Candler v. Miller

Filing 34

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 2/13/2015. (mklS, COURT STAFF) (Filed on 2/13/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MARK A. CANDLER,

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Petitioner,

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ORDER DENYING
PETITION FOR WRIT
OF HABEAS CORPUS

v.
AMY MILLER, Warden,

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No. C 13-05325 CW

Respondent.
________________________________/

United States District Court
For the Northern District of California

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Petitioner Mark A. Candler, a state prisoner, filed this

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petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

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challenging his state criminal conviction.

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ineffective assistance of counsel based on appellate counsel’s

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failure to challenge on appeal (1) the sufficiency of the evidence

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to support his conviction for attempted murder; and (2) the trial

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court’s denial of the motion to suppress evidence gathered by

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wiretap.

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points and authorities in support thereof and Petitioner has filed

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a traverse.

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reasons discussed below, the Court DENIES the motion for an

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evidentiary hearing and DENIES the petition.

Respondent has filed an answer and a memorandum of

Petitioner moves for an evidentiary hearing.

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He asserts claims for

For the

BACKGROUND
I.

Procedural History
On August 5, 2010, an Alameda County jury found Petitioner

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guilty of one count of attempted murder, one count of shooting at

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an inhabited dwelling, three counts of being a felon in possession

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of a firearm, and one count of possession of an assault weapon.

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Each charge was accompanied by an allegation that Petitioner

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committed it in association with a criminal street gang.

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enhancement allegations were also found to be true.

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29, 2010, the trial court sentenced Petitioner to forty-eight

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years to life.

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appeal to the California Court of Appeal, raising six grounds:

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(1) that the admission of a large volume of evidence related to

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gangs was inflammatory and unfairly prejudicial; (2) that the

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trial court wrongly allowed the State’s gang expert to opine that

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he shot the victim; (3) insufficiency of the evidence with respect

These

On October

Represented by counsel, Petitioner filed a direct

United States District Court
For the Northern District of California

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to the felon in possession counts; (4) sentencing error with

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respect to the felon in possession counts; and (5) erroneous

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denial of the motion to sever his trial from his co-defendants.

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On May 22, 2012, the Court of Appeal affirmed, except as to the

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claim of sentencing error.

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Supreme Court denied Petitioner’s petition for review of the

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denial of his direct appeal.

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On August 22, 2012, the California

On September 20, 2012, Petitioner, proceeding pro se, filed a

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state habeas petition raising three grounds for relief:

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(1) ineffective assistance of appellate counsel; (2) violation of

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his Fifth and Fourteenth Amendment rights based on the

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misapplication of case law regarding the suppression of wiretap

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evidence; and (3) insufficiency of the evidence based on reliance

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on unsworn, out-of-court statements.

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denied the petition on December 12, 2012.

The California Supreme Court

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On September 13, 2013, Petitioner filed a second habeas

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petition in the California Court of Appeal, raising the same

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grounds as those contained in his September 20, 2012 petition “for

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2

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the purpose of federalizing all claims.”

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Appeal denied the petition on October 4, 2013.

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The California Court of

Petitioner filed the instant habeas petition on November 15,

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2013.

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II.

Statement of Facts

6

A.

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According to trial testimony, gangs from the Acorn and Ghost

The 2006 shooting

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Town neighborhoods in West Oakland had a strong alliance in the

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period leading up to June 30, 2006.

On June 30, 2006, a funeral

United States District Court
For the Northern District of California

10

took place on Filbert Street for a Ghost Town resident named Sean.

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At the end of the funeral, Aaron Burrell and Marquis Burton got

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into a dispute after Burrell accused Burton of stealing his car.

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Although Mr. Burrell was a Ghost Town resident and Burton was an

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Acorn resident, they were close and Burrell referred to Burton as

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his god-brother.

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another Acorn resident, Wendell Stevenson, threatened to fight

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back against him.

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threatened to join the fight on Mr. Burrell’s side.

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and Mr. Holloway were members of the Acorn and Ghost Town gangs,

20

respectively.

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When Mr. Burrell threatened to fight Burton,

Another Ghost Town resident, Jermel Holloway,
Mr. Stevenson

After the funeral, mourners gathered on Martin Luther King

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(MLK) Way near 31st Street, in Ghost Town, for a candlelight

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vigil.

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Nequia Brooks, Dashawna Ross, Mr. Burrell and Mr. Holloway.

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approximately 4:50 PM, nearby police officers heard more than

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thirty gunshots in rapid succession.

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saw a white Dodge Magnum leaving the scene and driving very fast.

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Officer Saepern followed the Magnum but lost sight of the vehicle

Close to fifty people were there.

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Among them were JoyAt

One officer, Ouseng Saepern,

1

within a few blocks.

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Tedesco, arrived at the intersection of 31st Street and MLK. He

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saw many people looking south on MLK and testified that he began

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collecting shell casings because they were in a busy intersection.

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He recovered thirty-two 7.62 caliber casings associated with

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automatic assault rifles and eight .40 caliber casings from a

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handgun.

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type rifle, an AK-type rifle and a handgun.

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nearby homes testified that they heard gun fire and found bullet

Shortly thereafter, another officer, Anthony

Later analysis showed that the casings came from an SKSResidents of several

United States District Court
For the Northern District of California

10

holes in their homes.

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buttocks and legs during the incident.

He was not interviewed by

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the police at the time of the shooting.

No one at the scene was

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willing to talk to the police officers.

Mr. Holloway was shot three times in the

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B.

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Two years later, Sergeant Tony Jones was investigating a

The witnesses

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separate March 31, 2008 murder of Kevin McKenzie, a Ghost Town

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resident.

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sitting in the driver’s seat of the car that Mr. McKenzie was next

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to when he was shot.

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Mr. Burrell be brought to the station for questioning.

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Jones testified that Mr. Burrell told him that he believed the

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person who killed Mr. McKenzie intended to shoot Mr. Burrell.

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Sergeant Jones learned that Mr. Burrell had been

Accordingly, Sergeant Jones requested that
Sergeant

Based on this information Sergeant Jones asked Mr. Burrell to

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explain the history of the conflict between the Acorn and Ghost

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Town gangs.

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funeral dispute and the shooting that took place later that

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afternoon.

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Sergeant Jones also questioned Joy-Nequia Brooks, Dashawna Ross

Mr. Burrell relayed the story of the June 2006

Based on the information gathered from Mr. Burrell,

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and Jermel Holloway.

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charged with the 2006 shooting.

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the witnesses’ trial testimony are summarized below.

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5

1.

Petitioner and Elijah Thomas were then
Each of the 2008 statements and

Petitioner

At trial, Petitioner testified that, on the day of the 2006

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shooting, he received a phone call regarding the altercation

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between Mr. Stevenson and Mr. Holloway outside the funeral home on

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Filbert Street.

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Stevenson to find out what happened.

Petitioner further testified that he went to see
Mr. Stevenson told

United States District Court
For the Northern District of California

10

Petitioner about the gathering at MLK and 31st but said he did not

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want to go there because he heard Mr. Holloway was high.

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Petitioner testified that he went to the vigil both to try to talk

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to Mr. Holloway and to pay his respects.

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vigil in a red two-tone Buick and looked for Mr. Holloway.

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he arrived he saw about sixty people at the intersection.

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located Mr. Holloway and began walking towards him and calling his

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name from about twelve feet away.

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“whip out” but testified that he could not tell at first “if it

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was a fake gun or some type of joke.”

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testified that he could see Mr. Holloway pointing at him with

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whatever was in his hand and he heard gun shots.

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the gun shots, Petitioner began running toward his car.

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ran, Petitioner heard automatic gunfire coming from a different

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direction.

Petitioner drove to the
When
He

Petitioner saw Mr. Holloway

RT 2356-57.1

Petitioner

Once he heard
As he

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26
1

27
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In this Order, RT stands for Reporter’s Transcript; CT for
Clerk’s Transcript; RAT for Reporter’s Augmented Transcript, and
CST for Clerk’s Supplemental Transcript.
5

1

Petitioner testified that he fell to the ground and began

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crawling toward his car when he heard the automatic gunfire.

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some point, he looked up and saw Mr. Stevenson standing near a

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white Dodge Magnum, firing an automatic rifle into the air.

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shooting two bursts of gunfire, Mr. Stevenson got into his white

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Dodge Magnum and drove south on MLK.

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saw Mr. Holloway run into the intersection of 31st Street and MLK

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and then get into the backseat of a different white Dodge Magnum

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that also drove south on MLK.

At

After

Petitioner testified that he

After approximately a minute,

United States District Court
For the Northern District of California

10

Petitioner got in his car and drove to Kaiser Hospital in Oakland

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to pick up his son’s mother from work.

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13

2.

Jermel Holloway

Mr. Holloway, the victim of the 2006 shooting, was killed in

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a separate incident in November 2009 and, hence, was not available

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to testify at trial.

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discussed the injuries he sustained as a result of the 2006

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shooting, he denied that either Petitioner or his co-defendant,

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Elijah Thomas, shot him in 2006.

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of his child were present at the funeral, but denied that there

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had been any argument.

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was hit, and then ran into a nearby store.

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a stranger drove him to the hospital.

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At the 2008 preliminary hearing, while he

He stated that he and the mother

He stated that he heard shots, realized he
He further stated that

Prior to the preliminary hearing, Mr. Holloway, incarcerated

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in prison, had spoken to Sergeant Jones.

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the conversation to be recorded, but Sergeant Jones took notes and

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testified as to their conversation.

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Mr. Holloway told him that, prior to the shooting, the Ghost Town

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and Acorn gangs got along.

He had refused to allow

Sergeant Jones testified that

He told him that the argument at the
6

1

funeral was a result of Mr. Burton taking Mr. Burrell’s car.

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said that he then got involved in the argument, and told Mr.

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Stevenson that if he fought Mr. Burton, then he would fight Mr.

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Stevenson.

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interested in fighting.

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had a feeling the Ghost Town gang members were going to come back

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and retaliate.

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9

He

Mr. Stevenson then drove away, saying that he was not
Mr. Holloway told Sergeant Jones that he

Sergeant Jones testified that Mr. Holloway told him that on
the day of the 2006 shooting, he saw Petitioner and Mr. Thomas

United States District Court
For the Northern District of California

10

drive from 31st Street and get out of a white Dodge Magnum with a

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“long chopper.”

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“chopper” is common street terminology for an assault rifle.

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2078.

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the back of the legs.

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turned around and saw Petitioner shooting at him.

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17

RT 2063.

Sergeant Jones testified that a
RT

Next, he heard shots being fired behind him and got hit in

3.

He went on to tell Sergeant Jones that he

Joy-Nequia Brooks

At trial, Joy-Nequia Brooks testified that she was present at

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MLK and 31st Street at the time of the 2006 shooting.

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testified that she froze for five to ten seconds and then started

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running, so she did not see who was shooting.

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Brooks further testified that she had never seen Petitioner or Mr.

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Thomas before.

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She

At trial, Ms.

In Ms. Brooks’s 2008 statement, she admitted to knowing

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Petitioner as a member of the Acorn gang, knowing his real name

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and having seen him often.

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between Mr. Burrell, Mr. Holloway, Mr. Burton and Mr. Stevenson

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could have turned into a fight, “but they wanted to go get guns

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and they came back with guns . . . ”

Ms. Brooks stated that the argument

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CST 2498.

She stated that

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as she stood on the corner of 31st Street and MLK, she saw

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Petitioner and Mr. Thomas drive up in a Jaguar to the middle of

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the block on MLK between 31st and 32nd Streets.

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she saw Mr. Thomas stop the car in the middle of the block,

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Petitioner exit the passenger side, shoot Mr. Holloway, get back

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in the car and leave.

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gun . . . that was like a[n] army gun.”

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that Mr. Stevenson also drove up in a red “scraper car.”

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2499.

She stated that

She stated that Petitioner used a “big ass
CST 2503.

She stated
CST

Ms. Brooks stated that Mr. Stevenson got out of his car,

United States District Court
For the Northern District of California

10

but Ms. Brooks did not see him shoot at anybody.

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observed a third car drive up at the same time, but she could not

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remember what kind of car it was.

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3.

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15

Ms. Brooks also

Aaron Burrell

After invoking his Fifth Amendment rights at trial, Mr.
Burrell was granted immunity as to any testimony given.

RT 533.

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At trial, Mr. Burrell testified that prior to the 2006

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shooting, there were no problems between the Acorn and Ghost Town

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gangs.

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car, a Buick with chrome rims, was stolen.

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stolen, Mr. Burrell saw parts of what he believed to be his car,

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specifically his rims, in other cars in the Acorn neighborhood.

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Mr. Burrell was affiliated with the Ghost Town neighborhood.

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testified that he believed his god-brother, subsequently

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identified as Marquis Burton, also known as “Flip,” had the car

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because Mr. Burton had a master key used by car thieves to steal

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cars.

A month or two prior to the 2006 shooting, Mr. Burrell’s
After the car was

He

RT 826.

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Mr. Burrell testified that, on the day of the 2006 shooting,

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he and his cousin, Dashawna Ross, were at the funeral for Sean, a
8

1

Ghost Town resident.

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Mr. Burton and they began to argue about Mr. Burrell’s stolen car.

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Mr. Burrell stated that Mr. Holloway was with him and that Mr.

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Stevenson, also known as “Weezy,” came to Mr. Burton’s defense.

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During the argument, after Mr. Burrell indicated that he wanted to

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fight Mr. Burton, Mr. Stevenson said that if Mr. Burrell fought

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Mr. Burton, then Mr. Stevenson would fight Mr. Burrell.

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Holloway jumped in, saying that if Mr. Stevenson fought Mr.

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Burrell, then Mr. Holloway would fight Mr. Stevenson.

He stated that, after the funeral, he saw

Mr.

Mr. Burrell

United States District Court
For the Northern District of California

10

stated that after this exchange, Mr. Stevenson and Mr. Burton

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drove off together, while he and Mr. Holloway drove off together.

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Mr. Burrell testified that, after the funeral, a group of

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people gathered at 31st and MLK, which was in the Acorn

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neighborhood.

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Holloway.

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high by smoking marijuana and drinking “syrup,” a form of

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Robitussin with codeine.

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He arrived at the intersection in a car with Mr.

Then Mr. Holloway parked the car and Mr. Burrell got

RT 842.

Mr. Burrell testified that, right before the shooting began,

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he noticed several cars, including a white car, but did not see

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any people coming out of the cars.

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sitting in his friend’s car (which was the same car in which he

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and Mr. Holloway left Sean’s funeral) when the shots were fired

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from behind where he was parked.

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he ran on foot to the backyard of a home and, when the shooting

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stopped, he got back into the car.

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see who was doing the shooting or who was shot.

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testified that he, his friend, and two other people drove away to

Mr. Burrell stated that he was

As the shots were being fired,

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9

He testified that he did not
He further

1

East Oakland.

2

Holloway.

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Mr. Burrell stated that, later that day, he saw Mr.

At trial, after Mr. Burrell testified as described above, the

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prosecutor played a recording of a conversation between Mr.

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Burrell and Sergeant Jones made after the 2008 shooting that left

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Mr. Burrell’s friend, Mr. McKenzie, dead.

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that whatever he said that was recorded during that conversation,

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he was telling Sergeant Jones “whatever he wanted to hear to get

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out of there.”

RT 864.

Mr. Burrell testified

The prosecutor presented a diagram of the

United States District Court
For the Northern District of California

10

area, a diagram to which Mr. Burrell and Sergeant Jones refer in

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the recording.

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the dead end” of 31st Street during the shooting, looking towards

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32nd Street.

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of a white Dodge Magnum and that he saw Mr. Thomas get out of a

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blue BMW SUV.

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first to start shooting.

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shooting.

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-– he shot hella houses and sh-t.”

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Jones that Petitioner had an assault rifle that he used to do the

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shooting.

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Petitioner out of a photo array.

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23

Mr. Burrell told Sergeant Jones that he was “by

CST 2517.

He stated that he saw Petitioner get out

He then told Sergeant Jones that Mr. Thomas was the
He told Sergeant Jones, “They start

M-A2 had bounced out.

He had shot, but he was shooting
RT 882.

He also told Sergeant

In the recording, Mr. Burrell is heard picking

4.

Dashawna Ross (testifying as Raylon Bell)

At trial, Ms. Bell testified that she did not know

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Petitioner.

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went looking for her son at a funeral being held at Baker’s

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Funeral Home on Filbert Street in the Acorn neighborhood. She

She testified that on the day of the shooting, she

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2

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“M-A” or “M-A-C” are Petitioner’s street names.
10

1

stated that she did not find her son in the crowd, so she left the

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area after five or ten minutes.

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again looking for her son.

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parked her car, because there were no parking spots, and looked

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for her son in the crowd.

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know about Mr. Burrell’s stolen car nor did she see Petitioner

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outside of the funeral home on the date of the shooting.

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stated that she did not see a shooting.

9

Next, she went to 32nd and MLK,

Ms. Bell testified that she double-

She went on to testify that she did not

She

In her 2008 statement to Sergeant Jones, Ms. Bell stated that

United States District Court
For the Northern District of California

10

she knew Petitioner from having seen him around the neighborhood,

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and that they had had a two and a half hour conversation at a

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birthday party.

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argument at the funeral was stolen from in front of her home.

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was at the funeral that day, and had seen and heard the argument

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over the car.

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other people, including Ms. Brooks, drove from Ghost Town to 31st

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Street and MLK in the Acorn neighborhood.

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that, between two and three o’clock in the afternoon that day, she

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saw Petitioner and Mr. Thomas driving down the street.

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yelled that the men were coming, and then “MAC . . . jumped out,

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started shooting.”

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Petitioner had “a chopper, . . . a hundred rounder or something,”

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CST 2537, and that even though she was on the ground, she could

24

see Petitioner shooting as she looked under a car.

She stated that the car which started the
She

After the funeral, Ms. Bell, accompanied by two

CST 2536.

She told Sergeant Jones

Someone

She also told Sergeant Jones that

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C.

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On April 22, 2008, the Oakland Police Department (OPD)

The wiretap

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obtained a warrant authorizing a wiretap on three phone numbers

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associated with members of the Acorn gang.
11

The order was issued

1

upon an application by the Alameda County District Attorney, an

2

approval by the OPD Chief Wayne Tucker, and an affidavit by OPD

3

Officer Steve Valle.

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named in the application, as well as other “Target Subjects,”

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including Petitioner.

6

believed that they were involved in crimes associated with a

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street gang.

The operation focused on three individuals

The individuals were targeted because OPD

The wiretap was authorized for thirty days.

8

After the initial wiretap was authorized, Officer Valle

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submitted a new affidavit supporting a request to modify the

United States District Court
For the Northern District of California

10

original wiretap to include an authorization to tap Petitioner’s

11

cellphone, the number of which OPD had recently discovered.

12

Neither the District Attorney nor the Chief of Police signed the

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modification request.

14

Court Judge Jon Rolefson executed a modified order authorizing the

15

tapping of Petitioner’s phone.

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previous application by the District Attorney, and the approval by

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Chief Tucker.

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On May 5, 2008, Alameda County Superior

The order acknowledged the

A few weeks later, the District Attorney submitted an

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application requesting a thirty day extension of the modified

20

wiretap, supported by Officer Valle’s affidavit and OPD Assistant

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Chief Howard Jordan’s approval on behalf of Chief Tucker.

22

20, 2008, Judge Rolefson authorized an extension of the wiretap

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operation for an additional thirty days.

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acknowledged the past approval of Chief Tucker.

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gained from the wiretap was used to establish the 2008 firearms

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charges against Petitioner and Mr. Thomas.

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28
12

On May

The extension order
The evidence

1

LEGAL STANDARD

2

A federal court may entertain a habeas petition from a state

3

prisoner “only on the ground that he is in custody in violation of

4

the Constitution or laws or treaties of the United States.”

5

U.S.C. § 2254(a).

6

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

7

relief unless the state court’s adjudication of the claim:

8

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

9

unreasonable application of, clearly established Federal law, as

28

Under the Antiterrorism and Effective Death

United States District Court
For the Northern District of California

10

determined by the Supreme Court of the United States; or

11

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

12

determination of the facts in light of the evidence presented in

13

the State court proceeding.”

14

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

15

28 U.S.C. § 2254(d); Williams v.

A state court decision is “contrary to” Supreme Court

16

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

17

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

18

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

19

state court decides a case differently than [the Supreme] Court

20

has on a set of materially indistinguishable facts.”

21

13.

22

Supreme Court authority, that is, under the second clause of

23

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

24

principle from the Supreme Court’s decisions but “unreasonably

25

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

26

at 413.

27

“simply because that court concludes in its independent judgment

28

that the relevant state-court decision applied clearly established

Id. at 412-

A state court decision is an “unreasonable application of”

Id.

The federal court on habeas review may not issue the writ

13

1

federal law erroneously or incorrectly.”

2

application must be “objectively unreasonable” to support granting

3

the writ.

4

“where there is no possibility fairminded jurists could disagree

5

that the state court’s decision conflicts with this Court’s

6

precedents.”

7

Id. at 409.

Id. at 411.

Rather, the

Under AEDPA, the writ may be granted only

Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

If constitutional error is found, habeas relief is warranted

8

only if the error had a “‘substantial and injurious effect or

9

influence in determining the jury’s verdict.’”

Penry v. Johnson,

United States District Court
For the Northern District of California

10

532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S.

11

619, 638 (1993)).

12

When there is no reasoned opinion from the highest state

13

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

14

last reasoned opinion of the highest court to analyze whether the

15

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

16

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

17

case, the highest court to issue a reasoned decision on

18

Petitioner’s first claim is the California Court of Appeal, while

19

the highest court to state a reasoned decision on his second claim

20

is the Superior Court of Alameda County.

21

adjudicated a federal claim on the merits, the federal court must

22

review the claim de novo.

23

see also Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002)

24

(holding that de novo standard of review rather than the

25

deferential standard of § 2254(d) applies where state courts never

26

reached merits of habeas claim).

27

reasoned state court decision for Petitioner’s first claim; hence,

28

the Court reviews that claim de novo.

In the present

If no state court has

Cone v. Bell, 556 U.S. 449, 472 (2009);

As discussed below, there is no

14

1

DISCUSSION

2

Petitioner claims that he was denied the effective assistance

3

of counsel on appeal because appellate counsel did not challenge

4

(1) the sufficiency of the evidence with respect to the attempted

5

murder charge or (2) the admission of the wiretap evidence.

6

The Due Process Clause of the Fourteenth Amendment guarantees

7

a criminal defendant the effective assistance of counsel on his

8

first appeal as of right.

9

(1985).

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

Claims of ineffective assistance of appellate counsel are

United States District Court
For the Northern District of California

10

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

11

Washington, 466 U.S. 668 (1984).

12

285 (2000).

13

performance was objectively unreasonable, which in the appellate

14

context requires the petitioner to demonstrate that counsel acted

15

unreasonably in failing to discover and brief a meritorious issue.

16

Id.

17

context means that the petitioner must demonstrate a reasonable

18

probability that, but for appellate counsel’s failure to raise the

19

issue, the petitioner would have prevailed in his appeal.

20

Appellate counsel does not have a constitutional duty to raise

21

every nonfrivolous issue requested by the defendant.

22

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

23

issues is widely recognized as one of the hallmarks of effective

24

appellate advocacy.

25

Cir. 1989).

26

above an objective standard of competence and have caused his

27

client no prejudice for the same reason —— because he declined to

28

raise a weak issue.

Smith v. Robbins, 528 U.S. 259,

First, the petitioner must show that counsel’s

Second, the petitioner must show prejudice, which in this

Id.

Jones v.

The weeding out of weaker

Miller v. Keeney, 882 F.2d 1428, 1434 (9th

Appellate counsel therefore will frequently remain

Id.
15

1
2

I.

First Ground for Relief: Sufficiency of the evidence to
support the attempted murder conviction
Petitioner argues that appellate counsel was deficient

3
because he failed to challenge the sufficiency of the evidence to
4
support the attempted murder charge.

Specifically, Petitioner

5
argues that the evidence presented that he shot at Mr. Holloway
6
came through four unsworn, out-of-court statements that were later
7
recanted.
8
The Due Process Clause “protects the accused against
9
conviction except upon proof beyond a reasonable doubt of every
10
United States District Court
For the Northern District of California

fact necessary to constitute the crime with which he is charged.”
11
In re Winship, 397 U.S. 358, 364 (1970).

A state prisoner who

12
alleges that the evidence in support of his state conviction
13
cannot be fairly characterized as sufficient to have led a
14
rational trier of fact to find guilt beyond a reasonable doubt
15
states a constitutional claim, which, if proven, entitles him to
16
federal habeas relief.

Jackson v. Virginia, 443 U.S. 307, 321,

17
324 (1979).
18
A federal court reviewing collaterally a state court
19
conviction does not determine whether it is satisfied that the
20
evidence established guilt beyond a reasonable doubt.

Payne v.

21
Borg, 982 F.2d 335, 338 (9th Cir. 1992).

Nor does a federal

22
habeas court in general question a jury’s credibility
23
determinations, which are entitled to near-total deference.
24
Jackson, 443 U.S. at 326.

If confronted by a record that supports

25
conflicting inferences, a federal habeas court “must presume ——
26
even if it does not affirmatively appear in the record —— that the
27
trier of fact resolved any such conflicts in favor of the
28
16

1

prosecution, and must defer to that resolution.”

2

court “determines only whether, ‘after viewing the evidence in the

3

light most favorable to the prosecution, any rational trier of

4

fact could have found the essential elements of the crime beyond a

5

reasonable doubt.’”

6

U.S. at 319).

7

found proof of guilt beyond a reasonable doubt, may the writ be

8

granted.

9

recently emphasized that “Jackson claims face a high bar in

The federal

Payne, 982 F.2d at 338 (quoting Jackson, 443

Only if no rational trier of fact could have

Jackson, 443 U.S. at 324.

10
United States District Court
For the Northern District of California

Id.

federal habeas proceedings. . . .”

11

The Supreme Court has

2060, 2062 (2012) (per curiam).

12

Coleman v. Johnson, 132 S. Ct.

After AEDPA, a federal habeas court applies the standards of

13

Jackson with an additional layer of deference.

14

408 F.3d 1262, 1274 (9th Cir. 2005).

15

habeas court must conclude that “the state court’s determination

16

that a rational jury could have found that there was sufficient

17

evidence of guilt, i.e., that each required element was proven

18

beyond a reasonable doubt, was objectively unreasonable.”

19

v. Belleque, 659 F.3d 957, 965 (9th Cir. 2011).

20

Juan H. v. Allen,

To grant relief, a federal

Boyer

Petitioner’s claim that the evidence presented at trial was

21

insufficient to support an attempted murder conviction is premised

22

on the prosecution’s reliance on four out-of-court witness

23

statements, all of which were later recanted at trial.

24

argues that these statements were the “only evidence produced at

25

trial,” they were not reliable or substantial, and thus fail the

26

substantial evidence test.

27
28

Petitioner

“A substantial evidence inquiry examines the record in the
light most favorable to the judgment and upholds it if the record
17

contains reasonable, credible evidence of solid value upon which a

2

reasonable trier of fact could have relied in reaching the

3

conclusion in question.

4

substantial evidence test is satisfied.”

5

Cal. 4th 1038, 1052 (2007); see also People v. Banks, 59 Cal. 4th

6

1113, 1156 (2014) (“In reviewing a challenge to the sufficiency of

7

the evidence, we review the whole record to determine whether any

8

rational trier of fact could have found the essential elements of

9

the crime or special circumstances beyond a reasonable doubt”).

10
United States District Court
For the Northern District of California

1

Accordingly, to find that Petitioner’s counsel was objectively

11

unreasonable in failing to raise the sufficiency of evidence issue

12

on appeal, Petitioner must show that the out-of-court statements

13

at issue are not reasonable, credible evidence of solid value upon

14

which a jury could find him guilty of attempted murder.

15

Once such evidence is found, the
People v. Barnwell, 41

Both Petitioner and the State rely on People v. Cuevas, 12

16

Cal. 4th 252, 267 (1995), to support their arguments as to the

17

sufficiency of the four out-of-court statements.

18

defendant was convicted of assault with a firearm based on the

19

out-of-court identifications by two witnesses, both of whom

20

recanted their testimony at trial.

21

Court held that the probative value of a subsequently recanted

22

out-of-court identification depends on “many varied circumstances”

23

including, “(1) the identifying witness’s prior familiarity with

24

the defendant; (2) the witness’s opportunity to observe the

25

perpetrator during the commission of the crime; (3) whether the

26

witness has a motive to falsely implicate the defendant; and

27

(4) the level of detail given by the witness in the out-of-court

28

identification and any accompanying description of the crime.”
18

Id.

In Cuevas, the

The California Supreme

1

Id.

2

to requiring corroboration of out-of-court identifications, but

3

not of other types of hearsay that might be offered as evidence of

4

guilt.”

5

out-of-court identification can be sufficient by itself to support

6

a conviction even in the absence of other evidence connecting the

7

defendant to the crime.”

8

that out-of-court statements need not be corroborated to be

9

considered sufficient evidence upon which to base a conviction.

United States District Court
For the Northern District of California

10

Furthermore, the Supreme Court held that there was “no logic

Id. at 265.

It also agreed with other courts that “an

Id. at 266-67.

Thus, the Court held

After considering the Cuevas factors, this Court, in its de

11

novo review, finds that the out-of-court statements had sufficient

12

probative value to support the attempted murder conviction.

13
14

1.

Prior familiarity with Petitioner

Petitioner admits that “all four witnesses were familiar or

15

very familiar” with him.

16

Sergeant Jones, Ms. Bell stated that she and Petitioner had a two

17

and a half hour conversation at a recent birthday party.

18

Brooks admitted, in 2008, to knowing Petitioner, his gang

19

affiliation, and his real name and to having seen him often.

20
21

2.

Traverse, 35.

In her 2008 statement to

Ms.

Opportunity to observe Petitioner during the crime

At trial, Mr. Burrell, Ms. Brooks and Ms. Bell denied seeing

22

Petitioner at the scene of the crime.

23

pretrial statements, each placed Petitioner at the scene and

24

stated they were in a position to see the crime as it was

25

committed.

26

ground when the shots were fired, from her spot under the car, she

27

could see Petitioner shooting.

28

near the shooting and described the gun Petitioner carried.

However, in their 2008

Ms. Bell stated that, even though she was on the

Ms. Brooks stated that she was

19

Mr.

1

Burrell stated that from his car, parked at the “dead end” of 31st

2

Street, he saw Petitioner exit a white Dodge Magnum and start

3

shooting.

4

3.

Motive to falsely implicate Petitioner

5

Petitioner argues that because the witnesses are each

6

affiliated with Ghost Town, they have a motive to lie about him,

7

as a member of the rival Acorn gang.

8

interpreted against Petitioner.

9

seeking to frame Petitioner would recant the very statements that

United States District Court
For the Northern District of California

10

Yet, this fact could also be

It is unlikely that witnesses

implicate him in this crime.

11

4.

12

Level of detail given by the witnesses and any
accompanying description of the crime

Petitioner placed himself at the scene of the shooting, as
13
did all of the witnesses in their out-of-court statements.

Ms.

14
Brooks stated that she was privy to the argument at the funeral
15
home, and gave a detailed description of the shooting, including
16
seeing Petitioner with a gun, and a description of the gun
17
Petitioner carried.

Ms. Bell gave a similar description of the

18
gun, provided details about the car stolen from in front of her
19
house and stated details about what was said during the shooting,
20
what time it took place and identified Petitioner as a shooter.
21
Mr. Burrell also gave details about Petitioner’s car, the
22
direction from which the cars came before the shooting, and
23
corroborated Ms. Brooks’s and Ms. Bell’s statement about seeing
24
Petitioner fire his gun and the type of gun Petitioner used in the
25
shooting.

The statements about the type of gun used were

26
corroborated by the assault-rifle-caliber bullet holes found in
27
the surrounding houses.
28
20

1

On balance, each of the Cuevas factors for evaluating out-of-

2

court statements weighs heavily in favor of finding the out-of-

3

court statements to be credible evidence of solid value.

4

the witnesses were familiar with Petitioner, making it likely that

5

they would be able to identify him as the shooter.

6

to being present at the scene when the shooting took place and, by

7

recanting, eliminate the suggestion that they were trying to

8

implicate Petitioner falsely.

9

detailed accounts of the shooting, and their stories corroborate

United States District Court
For the Northern District of California

10
11

All of

They all admit

Lastly, all four witnesses provided

each other.
Furthermore, in Cuevas, the California Supreme Court set out

12

a number of factors for evaluating the significance of a failure

13

to make an in-court identification:

14
15
16
17
18
19
20
21

(1) whether the identifying witness admits, denies, or fails
to remember making the out-of-court identification;
(2) whether the witness remembers the underlying events of
the crime but no longer believes in the accuracy of the outof-court identification; (3) whether, if the witness claims
the identification was false or erroneous, the witness offers
an explanation for making a false or erroneous
identification; [and] (4) whether, if the witness claims a
failure of recollection, there are reasons supporting the
loss of memory; (5) whether there is evidence that the
witness’s failure to confirm the identification in court
resulted from the witness’s appreciation that doing so would
result in the defendant’s conviction; or (6) whether there is
evidence that . . . the witness’s failure to confirm the
identification arises from fear or intimidation.

22
12 Cal. 4th at 267-268.

The most relevant here is that of

23
evidence that a witness’s recantation is due to fear of
24
retaliation.
25
In her 2008 statement to Sergeant Jones, Ms. Ross stated that
26
she was afraid of retaliation and did not want to go to court
27
because of events that occurred the last time she was in court.
28
21

1

She explained, “I done got threatened and chased down and people

2

want to kill me behind going to court.”

3

then asked Ms. Ross if the reason she did not want to testify was

4

that she was “afraid of something happening to” her.

5

replied, “Exactly.

6

of retaliation can explain why her trial testimony was different

7

from her statements to the police.

8

her pretrial statement that after the 2006 shooting, she had

9

attempted to keep her distance from Petitioner, CST 2903, implying

United States District Court
For the Northern District of California

10
11

Exactly.”

Id.

CST 2529.

Sergeant Jones

Id.

She

Accordingly, Ms. Ross’s fear

Likewise, Ms. Brooks stated in

that she was afraid of Petitioner.
Thus, for the reasons stated above, the Court finds that the

12

out-of-court statements made by the witnesses meet the substantial

13

evidence test, in spite of the subsequent recantations.

14

appellate counsel could have reasonably concluded that, given that

15

the evidence was sufficient to support the conviction, there was

16

no merit to bringing a sufficiency of the evidence challenge on

17

appeal.

18

Hence,

Furthermore, Petitioner has not shown, as required under

19

Strickland, “that the deficient performance prejudiced the

20

defense.”

21

Strickland to ineffective assistance of appellate counsel.

22

Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989) (“We review

23

claims of ineffective assistance of appellate counsel according to

24

the standard set out in Strickland v. Washington, 466 U.S. 668,

25

(1984)).

26

Petitioner “must show that counsel’s advice fell below an

27

objective standard of reasonableness, . . . and that there is a

28

reasonable probability that, but for counsel’s unprofessional

Medley, 506 F.3d at 861.

The Ninth Circuit applies
See

Under Strickland, a showing of prejudice means

22

1

errors, [Petitioner] would have prevailed on appeal.”

2

F.2d at 1434.

3

Miller, 882

As discussed above, a challenge to the sufficiency of the

4

evidence likely would not have succeeded.

5

his counsel’s performance was unreasonable, Petitioner has not

6

shown that he suffered prejudice.

7

request for habeas relief on this ground is DENIED.

8

II.

9

Hence, even assuming

Accordingly, Petitioner’s

Second Ground for Relief: Motion to Suppress Wiretap Evidence
Petitioner next argues that appellate counsel was ineffective

United States District Court
For the Northern District of California

10

in failing to appeal the denial of his motion to suppress the

11

wiretap evidence used to support his firearms convictions.3

12

The original wiretap authorization, signed by the District

13

Attorney, the Chief of Police, and accompanied by an affidavit

14

from Officer Valle, allowed for the monitoring of three target

15

telephones.

16

Rolefson to add a fourth telephone line, specifically, that of

17

Petitioner.

18

application and the District Attorney also did not sign.

For the modification, Officer Valle asked Judge

Chief Tucker was unavailable to sign the modified
In the

19
20
21
22
23
24
25
26
27
28

3

Respondent argues that Petitioner’s claim is unexhausted to
the extent he argues that appellate counsel was ineffective in
failing to raise a Fourth Amendment argument regarding the wiretap
evidence. However, Respondent also appears to acknowledge that
Petitioner has exhausted both of his claims. See Docket No. 15 at
19. Even if Petitioner were making a Fourth Amendment claim, it
would fail for the reasons discussed herein. A habeas claim can
be denied even if it is unexhausted. See Pimpton v. Carey, 216 F.
App’x 696, 697 (9th Cir. 2007) (“§ 2254(b)(2) permits denial of a
federal habeas petition on the merits, notwithstanding the
applicant’s failure to exhaust, only where ‘it is perfectly clear
that the applicant does not raise even a colorable federal
claim’”) (quoting Cassett v. Stewart, 406 F.3d 614, 623-24 (9th
Cir. 2005)).
23

1

place of the Police Chief, however, the Assistant Chief of Police,

2

Howard Johnson, signed the application.

3

California law requires that “[e]ach application for an order

4

authorizing the interception of a wire or electronic communication

5

shall be made in writing upon the personal oath or affirmation of

6

the Attorney General. . . or [of] a district attorney, or the

7

person designated to act as district attorney in the district

8

attorney’s absence . . . to the presiding judge of the superior

9

court or one other judge designated by the presiding judge.”

United States District Court
For the Northern District of California

10
11

Cal.

Penal Code § 629.50(a).
California courts look to federal as well as California law

12

in applying the California wiretap statute.

13

129 Cal. App. 4th 129, 147 (2005).

14

the United States Supreme Court held that “exclusion of wiretap

15

evidence is required under Title III only when there is a failure

16

to satisfy any of those statutory requirements that directly and

17

substantially implement the congressional intention to limit the

18

use of intercept procedures to those situations clearly calling

19

for the employment of this extraordinary investigative device.”

20

Id. at 149 (citing United States v. Giordano, 416 U.S. 505, 506

21

(1974)).

22
23
24
25
26
27
28

People v. Jackson,

The Jackson court noted that

In Jackson, the California Court of Appeal explained the
proper analysis of a motion to suppress wiretap evidence:
(1) Has the defendant established a violation of a provision
of the wiretap law? If not, the motion is denied. (2) If a
wiretap violation has been established was the provision
violated one which “was intended to play a central role in
the statutory scheme[?]” If the provision was not intended
to “play a central role,” failing to comply with it will not
render interceptions under the wiretap order unlawful and the
motion is denied. (3) If the provision violated was central
to the legislative scheme was the purpose of the provision
24

achieved in spite of the error? If the purpose was achieved,
the motion is denied. If the purpose was not achieved, the
motion is granted.

1
2
Id.

The Jackson court relied on federal law, the Ninth Circuit’s

3
opinion in United States v. Chun, 503 F.2d 533, 592 (9th Cir.
4
1974).

See Jackson, 129 Cal. App. 4th at 150 n.38 (“This test is

5
drawn from United States v. Chun. . . .

The Chun test, or one

6
substantially like it, has been followed in most other circuits”).
7
Here, the Superior Court interpreted the facts surrounding
8
this wiretap in the light of the California statute and Jackson.
9
With regard to the first and second Jackson questions, the
10
United States District Court
For the Northern District of California

Superior Court stated,
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

It’s clear in reading the statute that the statute requires
the authorization of the District Attorney and the head of
the police agency for any order or modification. I don’t
know how it could be any clearer. So that’s my view of the
first question. Second question is does that . . .
authorization play a central role. . . Chavez would suggest
it does play a central role. . . . Even when we are talking
about a modification, because that seems to me that the
statute is contemplating, as I’ve already indicated in answer
to the first question, that the request to modify these
things, to the extent that they may include additional
persons or additional numbers, should also be authorized by
the enforcement officer, . . . in our case, the District
Attorney and the chief of police.
RAT 38-40.
On the last Jackson question, however, the trial court
stated,
Was the purpose of the provision achieved in spite of the
error. And it seems to me in reading all of the documents
that it was achieved. And that was what was originally
approved by Mr. Orloff [the District Attorney] and the chief
of police was a request to allow the wiretap of three target
telephones, 1, 2 and 3; however, what’s clear from all the
documents is the context of the investigation, the fact that
additional phones were at that point, phone numbers not
known, that from my reading of the documents, there was no
greater target of the investigation than Mr. Candler, seems
to me, have been the chief target of this investigation. All
the information before me in these dockets, what has alleged
to have been Mr. Candler’s role and the organization that he
25

12

is alleged to have been the chief executive officer of, was
the target of the investigation, and the purpose of the
initial request or the limitation of the initial request for
those first three phone numbers is because that’s all that
were known at the time.
It’s clearly indicated from the documents that the
officers did not know particular phone numbers associated
with Mr. Candler. They believe Mr. Candler changed his phone
number quite often. That was consistent with their
experience in similar investigations. Indeed, all the
information that was obtained was in regard to target phone
number, phone Number 4, was that it was only used by Mr.
Candler and not indeed in his name.
So that also was, to my mind, consistent with the
difficulty from the standpoint of the police at the time they
presented these documents to Judge Rolefson and consistent
with their representations about the difficulty of the
investigation, the difficulty of finding out information what
would be particular to Mr. Candler and while the requirement
of the authorization of Mr. Orloff and the chief of police is
both a statutory and seems to me to be one central to the
statutory scheme, it seems to me that their review and their
authorization of this investigation and its goals, which is
what the point is, was accomplished.

13

Petitioner argues that the trial court misapplied the

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11

14

California wiretap statute and that appellate counsel was

15

ineffective for not raising this issue on appeal.

16

this claim, Petitioner must show that the appellate court, had

17

this issue been raised, would have ruled in his favor and found

18

that the purpose of the violated provision was not achieved due to

19

the absence of key signatures on the wiretap modification

20

application.

21

To succeed on

Jackson, 129 Cal. App. 4th at 149.

Petitioner relies on United States v. Giordano, 416 U.S. 505

22

(1974), and United States v. Chavez, 416 U.S. 562 (1974).

23

Petitioner’s application of the principles discussed in both cases

24

is misplaced.

25
26
27
28

In Giordano,
it developed
interception
inaccurately
applications

at the hearings that the applications for
authority presented to the District Court had
described the official who had authorized the
and that neither the initial application for the
26

1
2

October 16 order nor the application for the November 6
extension order had been approved and authorized by Assistant
Attorney General Will Wilson, as the applications had
indicated.

3

416 U.S. at 509-510.

4

are confident that the provision for pre-application approval was

5

intended to play a central role in the statutory scheme and that

6

suppression must follow when it is shown that this statutory

7

requirement has been ignored.”

8

“neither the initial application . . . nor the application for the

9

. . . extension” contained the required signatures.

As a result, the Supreme Court ruled, “We

Id. at 528.

In Giordano, however,

Here, the

United States District Court
For the Northern District of California

10

original wiretap was authorized and signed by both the District

11

Attorney and the Chief of Police.

12

In Chavez, the Supreme Court held, “Under § 2515, suppression

13

is not mandated for every violation of Title III, but only if

14

‘disclosure’ of the contents of intercepted communications, or

15

derivative evidence, would be in violation of Title III.”

16

U.S. at 574-575.

17

suppression of wiretap evidence where the Assistant Attorney

18

General was misidentified as giving authorization when “the

19

Attorney General himself has actually given the approval.”

20

U.S. at 569.

21

authorized the initial wiretap.

22

at the time of the initial application, Petitioner was “the chief

23

target of th[e] investigation.”

24

416

In Chavez, the Court declined to require

416

Here, the District Attorney and the Chief of Police
The trial court also found that,

Docket No. 1-1 at 24.

Thus, Petitioner has not satisfied his burden of showing that

25

the trial court’s admission of the wiretap evidence was such that

26

the appellate court would likely have found that the trial court

27

erred.

28
27

1

Moreover, Petitioner has not shown, as required under

2

Strickland, “that the deficient performance prejudiced the

3

defense.”

4

appellate counsel were to have raised this issue on appeal, the

5

appellate court could have reasonably agreed with the trial court.

6

Hence, Petitioner has not satisfied his burden that appellate

7

counsel unreasonably failed to bring a challenge on this ground.

8

Accordingly, Petitioner’s request for habeas relief on this ground

9

is DENIED.

United States District Court
For the Northern District of California

10

Medley, 506 F.3d at 861.

As discussed above, even if

III. Evidentiary Hearing

11

A habeas petitioner is entitled to an evidentiary hearing on

12

disputed facts where his allegations, if proven, would entitle him

13

to relief.

14

2006); Williams v. Calderon, 52 F.3d 1465, 1484 (9th Cir. 1995).

15

Petitioner is not entitled to an evidentiary hearing because he

16

has failed to present any allegations which, if proven, would

17

entitle him to relief.

18

IV.

19

Perez v. Rosario, 459 F.3d 943, 954 n.5 (9th Cir.

Certificate of Appealability
The federal rules governing habeas cases brought by state

20

prisoners require a district court that denies a habeas petition

21

to grant or deny a certificate of appealability in the ruling.

22

Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254.

23

A petitioner may not appeal a final order in a federal habeas

24

corpus proceeding without first obtaining a certificate of

25

appealability.

26

judge shall grant a certificate of appealability “only if the

27

applicant has made a substantial showing of the denial of a

28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

28
28

A

1

constitutional right.”

2

must indicate which issues satisfy this standard.

3

§ 2253(c)(3).

4

constitutional claims on the merits, the showing required to

5

satisfy § 2253(c) is straightforward: The petitioner must

6

demonstrate that reasonable jurists would find the district

7

court’s assessment of the constitutional claims debatable or

8

wrong.”

9

28 U.S.C. § 2253(c)(2).

The certificate
28 U.S.C.

“Where a district court has rejected the

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The Court finds that reasonable jurists would not find its

United States District Court
For the Northern District of California

10

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

11

Therefore, a certificate of appealability is denied.

12

Petitioner may not appeal the denial of a certificate of

13

appealability in this Court but may seek a certificate from the

14

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

15

Procedure.

16

Cases.

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

17
18

CONCLUSION
Based on the foregoing, the Court orders as follows:

19

1. The request for an evidentiary hearing is denied.

20

2. The petition for a writ of habeas corpus is denied.

21

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

22

terminate all pending motions and close the file.

23

4. A certificate of appealability is denied.

24

IT IS SO ORDERED.

25
26
27

Dated: February 13, 2015
CLAUDIA WILKEN
United States District Judge

28
29