Flowers v. Foulk

Filing 128

ORDER ON PETITION FOR HABEAS CORPUS AND MISCELLANEOUS REQUESTS. Signed by Judge Claudia Wilken on 9/1/17. (Attachments: # 1 Certificate/Proof of Service)(dtmS, COURT STAFF) (Filed on 9/1/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH FLOWERS,
Petitioner,

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No. C 14-0589 CW
ORDER ON PETITION FOR
HABEAS CORPUS AND
MISCELLANEOUS REQUESTS

v.
F. FOULK, Warden,

(Docket Nos. 25, 27, 11719, 122-24, 126-27)

Respondent.

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United States District Court
For the Northern District of California

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________________________________/
Petitioner Joseph Flowers filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, following his state
convictions of robbery and kidnapping.

Respondent Fred Foulk

filed an answer and Petitioner filed a traverse.

Having

considered the parties’ papers, the record, and relevant
authority, the Court DENIES the petition and rules on a number of
associated requests as described herein.

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BACKGROUND
The underlying facts are restated in this Court’s March 9,
2016 order granting in part Respondent’s motion to dismiss.
Docket No. 74.
Petitioner filed this petition for writ of habeas corpus on
February 7, 2014.

On March 10, 2014, Petitioner filed a motion

for a stay and abeyance of his petition so that he could exhaust
in state court new grounds for his claim of insufficient evidence.
The Court granted the motion on March 18, 2014, and stayed the
petition.

The California Supreme Court denied relief on April 9,

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2014.

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Petitioner to file a Second Amended Petition.

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On June 3, 2014, this Court lifted the stay and ordered

On August 22, 2014, the Court issued an order to show cause,

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in which the Court deemed the documents at Docket Numbers 25 and

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27 together to constitute the operative petition and ordered

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Respondent to file an answer or motion to dismiss within sixty

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days.

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Petitioner’s claims in the amended petition were as follows.

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Claim 1, ineffective assistance of counsel: (a) trial counsel was

United States District Court
For the Northern District of California

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ineffective for failing to investigate victim Chen Wei’s

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background; (b) trial counsel was ineffective for failing to move

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to dismiss the kidnapping count based on a discrepancy between the

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victim’s name as listed on the information and the victim’s own

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recitation of her name at trial; and (c) appellate counsel was

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ineffective for failing to raise on appeal the ineffective

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assistance of trial counsel.

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violation of due process: (a) the trial court failed to grant a

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mistrial after a prosecution witness revealed that Petitioner was

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a parolee at large; (b) after a prosecution witness testified, in

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violation of a pretrial exclusionary order, that Petitioner was a

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pimp, the trial court failed to admonish the jury to disregard the

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testimony; and (c) the trial court failed to issue a ruling on the

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defense’s pretrial Aranda1/Bruton2 motion.

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misconduct: (a) the prosecutor failed to disclose evidence

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People v. Aranda, 63 Cal. 2d 518 (1965), superseded in part
by statute as recognized in People v. Capistrano, 59 Cal. 4th 830,
868 n.10 (2014).

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Claim 2, trial court errors in

Claim 3, prosecutorial

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Bruton v. United States, 391 U.S. 123 (1968).
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relating to the credibility of Chen Wei; and (b) the prosecutor

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presented false evidence regarding the identity of the kidnap

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victim.

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allowed confidential visits with trial counsel at the county jail.

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Claim 5, actual innocence: (a) evidence of an alibi was not

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presented; and (b) evidence of the identity of the kidnap victim

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was insufficient to support the conviction of kidnapping for

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robbery.

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errors alleged in claims 1 through 5 violated due process.

United States District Court
For the Northern District of California

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Claim 4, denial of right to counsel: Petitioner was not

Claim 6: cumulative error: the cumulative effect of

Respondent moved to dismiss claims 2(b), 4, and 5(b) as

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procedurally defaulted and claims 1(a)-(c), 3(b), and 6 as

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unexhausted.

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part and dismissed claims 2(b) and 4 as procedurally defaulted

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based on a rule from In re Dixon, 41 Cal. 2d 756 (1953), which

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“prohibits California state courts from considering habeas claims

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that should have been raised on direct appeal but were omitted,”

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Lee v. Jacquez, 788 F.3d 1124, 1126 (9th Cir. 2015).

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order, the Court granted Petitioner’s motion to withdraw claim

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1(a) and the part of claim 1(c) relating to claim 1(a).

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On March 9, 2016, the Court granted the motion in

In the same

On March 28, 2016, the Court granted in part Respondent’s

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motion for leave to file a motion for reconsideration and

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permitted Respondent to submit supplemental briefing on whether

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claim 5(b) was procedurally defaulted.

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an answer, Respondent filed a motion to dismiss claims 1(b), the

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remainder of 1(c) and 3(b) as procedurally defaulted.

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September 6, 2016, the Court granted Respondent’s motions.

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Court dismissed claims 1(b), 1(c), 3(b), and 5(b) as procedurally

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On May 4, 2016, in lieu of

On
The

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barred under In re Clark, 5 Cal. 4th 750, 797-98 (1993) (invoking

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procedural bars of untimeliness and successiveness).

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Following these orders, Petitioner’s remaining claims are

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2(a), 2(c), 3(a), 5(a) and 6.

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filed his answer.

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granted Petitioner extensions of time to file his traverse.

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Petitioner has filed his traverse.3

On February 2 and March 11, 2017, the Court

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On January 3, 2017, Respondent

LEGAL STANDARD
A federal court may entertain a habeas petition from a state

United States District Court
For the Northern District of California

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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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28 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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unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or

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

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determination of the facts in light of the evidence presented in

Under the Antiterrorism and Effective Death

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Petitioner filed an “Answer to Oppositions Dismissal
Request” (Docket No. 115), and subsequently filed an amendment to
that Opposition (Docket No. 117), a “Third Amendment to the Answer
to Oppositions Request for Dismissal” (Docket No. 121), and an
“Amendment to the Timely Response of Grounds 2(a)” (Docket No.
125). The Court construes these documents collectively as
Petitioner’s traverse. Petitioner also filed a motion to clarify
portions of his traverse papers. That request is GRANTED (Docket
No. 123) and the Court reviews the papers as clarified. Finally,
Petitioner also filed requests for leave to modify claims 1 and 4
(Docket Nos. 118, 124, 127). The Court addresses these requests
below.
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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).
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

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has on a set of materially indistinguishable facts.”

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529 U.S. at 412-13.

Williams,

A state court decision is an “unreasonable

United States District Court
For the Northern District of California

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application of” Supreme Court authority, that is, it falls under

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the second clause of § 2254(d)(1), if it correctly identifies the

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governing legal principle from the Supreme Court’s decisions but

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“unreasonably applies that principle to the facts of the

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prisoner’s case.”

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may not issue the writ “simply because that court concludes in its

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independent judgment that the relevant state-court decision

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applied clearly established federal law erroneously or

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incorrectly.”

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“objectively unreasonable” to support granting the writ.

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409.

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possibility fairminded jurists could disagree that the state

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court’s decision conflicts with this Court’s precedents.”

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Harrington v. Richter, 562 U.S. 86, 102 (2011).

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Id. at 413.

Id. at 411.

The federal court on habeas review

Rather, the application must be
Id. at

Under AEDPA, the writ may be granted only “where there is no

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.”

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

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619, 637 (1993)).
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Penry v. Johnson,

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The court “look[s] through” unexplained state-court opinions

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on a habeas claim and applies the standard of § 2254(d) to the

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last “explained” state-court opinion absent “strong evidence” that

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a later unexplained opinion rested upon different grounds.

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v. Nunnemaker, 501 U.S. 797, 801-06 (1991); see also Kernan v.

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Hinojosa, 136 S. Ct. 1603, 1605-06 (2016) (per curiam).

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Supreme Court has directed that “[w]hen a federal claim has been

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presented to a state court and the state court has denied relief,”

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even if the court gives no reasons for its decision, “it may be

Ylst

The

United States District Court
For the Northern District of California

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presumed that the state court adjudicated the claim on the merits

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in the absence of any indication or state-law procedural

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principles to the contrary.”

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298 (2013) (quoting Harrington, 562 U.S. at 99).

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Johnson v. Williams, 568 U.S. 289,

DISCUSSION

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Claim 2(a): The trial court refused to grant a mistrial
on the basis of a witness’ reference to Petitioner as a
parolee at large.

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The last explained state court opinion on this claim is that

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I.

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of the California Court of Appeal.

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court reasoned as follows:

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In dismissing this claim, that

“We review a trial court’s ruling on a motion for mistrial
for abuse of discretion. [Citation.] Such a motion should
only be granted when a defendant’s ‘chances of receiving a
fair trial have been irreparably damaged.’ [Citation.]”
(People v. Valdez (2004) 32 Cal. 4th 73, 128.) Even if
prosecutorial misconduct is involved, this court will not
reverse a conviction absent prejudice to the defendant. (See
People v. Riggs (2008) 44 Cal. 4th 248, 298 [under California
misconduct law, no reversal unless “reasonably probable that
without such misconduct, an outcome more favorable to the
defendant would have resulted”; under federal law, no
reversal “unless the challenged action ‘“so infected the
trial with unfairness as to make the resulting conviction a
denial of due process”’”].) Thus, if “any reasonable jury
would have reached the same verdict” even in the absence of
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United States District Court
For the Northern District of California

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Holton’s statement, the trial court’s ruling will stand.
(People v. Bolton (1979) 23 Cal. 3d 208, 214–215.)
We need not address whether prosecutorial misconduct
occurred. No matter the answer to that question, the passing
comment by Holton was cured by instruction and not
prejudicial. (See, e.g., People v. Bolden (2002) 29 Cal. 4th
515, 554–555 [upholding the trial court’s denial of a motion
for mistrial, finding it “doubtful that any reasonable juror
would infer from the [witness’s] fleeting reference to a
parole office that defendant had served a prison term for a
prior felony conviction”].) The surveillance tapes, the
testimony from Chen and Patterson, and the fingerprint
evidence strongly support the jury’s verdict and link
defendant with the charged crimes. (See id. at p. 555; cf.
People v. Ozuna (1963) 213 Cal. App. 2d 338, 341–342
[reversing denial of mistrial when defendant called “exconvict” and the evidence of guilt was not “so strong as to
preclude a finding of innocence”].) Further, the trial court
admonished the jury to ignore Holton’s statement, and we
presume the admonition avoided prejudice. (People v. Bennett
(2009) 45 Cal. 4th 577, 612 [“We assume the jury followed the
admonition and that prejudice was therefore avoided.”].)

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People v. Flowers, No. A129473, 2012 WL 2168589, at *4 (Cal. Ct.

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App. June 15, 2012) (alterations in original).

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“The admission of evidence does not provide a basis for

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habeas relief unless it rendered the trial fundamentally unfair in

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violation of due process.”

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1101 (9th Cir. 2009); see also Estelle v. McGuire, 502 U.S. 62, 72

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(1991).

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questions of state evidence law.”

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1031 (9th Cir. 1999).

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erroneously admitted, a federal court will interfere only if it

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appears that its admission violated fundamental due process and

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the right to a fair trial.”

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512 U.S. 1, 13 (1994).

Holley v. Yarborough, 568 F.3d 1091,

“A federal habeas court, of course, cannot review
Henry v. Kernan, 197 F.3d 1021,

“Even where it appears that evidence was

Id.; see also Romano v. Oklahoma,

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The California Court of Appeal’s reasoning is not contrary to

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or an unreasonable application of federal law as determined by the
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Supreme Court.

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admission of prior bad acts “violates due process if ‘there are no

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permissible inferences the jury may draw from the evidence,’”

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Houston v. Roe, 177 F.3d 901, 910 n.6 (9th Cir. 1999) (quoting

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Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991)), the

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Supreme Court has not clearly held that the admission of evidence

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of prior bad acts to prove propensity is unconstitutional.

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Estelle, 502 U.S. at 75 n.5.

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evidence of Petitioner’s prior bad acts through reference to his

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United States District Court
For the Northern District of California

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status as a “parolee at large” does not constitute a deficiency

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that could form the basis of habeas relief.

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presumed to follow the trial court’s limiting instruction and

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disregard this evidence.

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(2000).

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of the witness’ testimony immediately after it was given and no

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details about any prior conviction were elicited.

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Court finds that any such error did not have a “substantial and

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injurious effect or influence in determining the jury’s verdict,”

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Brecht, 507 U.S. at 637, when “quantitatively assessed in the

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context of other evidence presented,” id. at 629 (quoting Arizona

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v. Fulminante, 499 U.S. 279, 308 (1991).

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the testimony of Petitioner’s co-defendant Douglas Patterson, a

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positive identification made by one of the victims, Petitioner’s

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fingerprint on a demand letter subsequently received by one of the

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victims, and identification of Petitioner in surveillance footage

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of the incident.

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First, although the Ninth Circuit has held that

See

Accordingly, the introduction of

Second, the jury is

Weeks v. Angelone, 528 U.S. 225, 234

The court gave the instruction to disregard this portion

Third, the

That evidence included

Accordingly, Petitioner is not entitled to habeas relief on
this claim.
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United States District Court
For the Northern District of California

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II.

Claim 2(c): The trial court failed to issue a ruling on
the defense’s pretrial Aranda/Bruton motion.

Petitioner raised this claim in his September 2013 habeas
petition to the California Supreme Court, which summarily denied
his petition.

In Bruton, 391 U.S. at 137, the Supreme Court “held

that, despite the limiting instruction, the introduction of [the
co-defendant’s] out-of-court confession at Bruton’s trial had
violated Bruton’s right, protected by the Sixth Amendment, to
cross-examine witnesses.”
(1998).

Gray v. Maryland, 523 U.S. 185, 190

On September 18, 2009, Petitioner’s trial counsel filed a

motion to try Petitioner and Patterson separately under Bruton and
Aranda, 63 Cal. 2d at 526-27, on the basis that he believed
Patterson had made extrajudicial statements inculpating Petitioner
that the prosecution would introduce at trial.

On October 26, the

prosecution filed an opposition to the motion in which it stated
that it did not intend to introduce the statements at trial.
Patterson’s case was resolved before the jury was sworn in at
Petitioner’s trial and thus the men were not tried together.
Patterson testified at Petitioner’s trial and was cross-examined.
These facts cannot support a Bruton violation.

See Crawford

v. Washington, 541 U.S. 36, 59 n.9 (2004) (“[W]hen the declarant
appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial
statements.”).

Petitioner argues in his traverse that his

Aranda/Bruton motion was impeded by Respondent’s failure to
produce the transcripts from proceedings in December 2010 and
attaches exhibits attesting to his belief that Marin County jail
did not provide him a private space to confer with his attorney

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and that it held documents relating to his alibi defense.

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same reason, this argument is unavailing.

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9, 2016, the Court dismissed Petitioner’s claim 4, relating to the

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denial of confidential visits with trial counsel, as procedurally

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barred.

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For the

Additionally, on March

Accordingly, Petitioner is not entitled to habeas relief on

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this claim.

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III.

Claim 3(a): The prosecutor failed to disclose evidence
relating to the credibility of witness Wei Chen.

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United States District Court
For the Northern District of California

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Petitioner raised the claim in his September 2013 habeas
petition to the California Supreme Court, which summarily denied
his petition.

In essence, Petitioner argues a violation of his

due process rights as announced in Brady v. Maryland, 373 U.S. 83,
86 (1963).

He argues that the prosecutor failed to inform the

defense that he had evidence that victim and witness Wei Chen had
been charged with a violation of California Penal Code
section 647(b) (prostitution), and that this information could
have been used to impeach Chen’s credibility.
In Brady, the Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.”

373 U.S. at 87.

The government has a

duty to disclose Brady material even if the defense fails to ask
for it.

United States v. Agurs, 427 U.S. 97, 107 (1976).

Petitioner does not make out a Brady violation because the
prosecution did disclose this incident.

In an April 29, 2010

motion in limine, the prosecution moved to exclude evidence of
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Chen’s contact with law enforcement concerning Penal Code section

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647(b).

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about a 647(b) being a crime involving moral turpitude,” but that

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evidence of her prior contact with law enforcement could be used

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to impeach her if she denied that the spa was engaged in that sort

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of activity.

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told him about the charge.

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issue of Chen’s prior contact with law enforcement at trial.

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The trial court found that there were no “cases handy

Defense counsel did not raise the

Accordingly, Petitioner is not entitled to habeas relief on

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United States District Court
For the Northern District of California

Defense counsel acknowledged that the prosecutor

this claim.

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IV.

Claim 5(a): Actual innocence: Evidence of alibi not
presented.

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Petitioner raised this claim in his September 2013 habeas
petition to the California Supreme Court, which summarily denied
his petition.

Petitioner claims that at the time of the offense

he was at an address in Oakland and is therefore actually
innocent.

In support of his alibi, Petitioner offers Exhibit H to

his original petition in this Court, which is a November 8, 2011
declaration by Claudette Winston.

He also submits memoranda,

correspondence, and declarations regarding attorney and
investigator research into this issue.
Winston declared that on the day of the offense, December 24,
2008, she was living at the Oakland address, her daughter’s home.
She declared that Petitioner “arrived sometime before sundown on
Christmas Eve, and did not leave until sometime during the
afternoon on Christmas Day.”
H ¶ 2.

Docket No. 1-8, Habeas Petition, Ex.

She declared that those present included “Mack Wood Fox,

Arthur Cregett, his wife and children, Joseph Flowers, and other
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family members.”

Id. ¶ 1. Finally, she declared that she

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remembered the events “due to a conversation with the above

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parties, and because it is a long standing family tradition to

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spend Christmas Eve and Christmas morning together.”

Id. ¶ 3.

Petitioner asserts that he conveyed his alibi to his attorney

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and investigators in January 2009 when he was transferred to

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County of Marin jail but declined to discuss the matter further

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out of fears that his conversations could be overheard.

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transcript indicates that Petitioner asserted that he had an alibi

The trial

United States District Court
For the Northern District of California

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moments before the jury was sworn in.

Defense counsel immediately

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moved to continue the trial so that he could “investigate these

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facts, the alibi that he’s given me, and all the other witnesses

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that need to be interviewed and brought to court.”

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108-2, Answer, Ex. 2E, 6 RT 245.

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Id. at 246.

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alibi during trial.

Docket No.

The court denied the request.

Defense counsel did not raise Petitioner’s alleged

The Supreme Court has “not resolved whether a prisoner may be

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entitled to habeas relief based on a freestanding claim of actual

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innocence,” McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013),

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“absent an independent constitutional violation occurring in the

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underlying state criminal proceeding,” Herrera v. Collins, 506

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U.S. 390, 400 (1993).

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innocence claim is cognizable on federal habeas review, but it has

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noted that ‘the threshold showing for such an assumed right would

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necessarily be extraordinarily high.’”

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829 F.3d 1081, 1116 (9th Cir. 2016) (quoting Herrera, 506 U.S. at

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417).

It “has assumed that a freestanding

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Ayala v. Chappell,

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Petitioner has not made a showing of actual innocence

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sufficient to overcome the “extraordinarily high” threshold for

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such claims.

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innocence may function as a “gateway through which a habeas

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petitioner must pass to have his otherwise [procedurally] barred

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constitutional claim considered on the merits” to avoid a

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“fundamental miscarriage of justice.”

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this standard, a petitioner must show that it is “more likely than

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not that no reasonable juror would have convicted him in the light

Herrera, 506 U.S. at 392.

A claim of actual

Id. at 390.

To satisfy

United States District Court
For the Northern District of California

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of the new evidence.”

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“[W]hatever burden a hypothetical freestanding innocence claim

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would require” is even higher.

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(2006).

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the lower Schlup standard.

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not a disinterested party and the declaration must be considered

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in light of proof of guilt at trial.

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1935; House, 547 U.S. at 555; Herrera, 506 U.S. at 417-19.

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Schlup v. Delo, 513 U.S. 298, 327 (1995).

House v. Bell, 547 U.S. 518, 555

Petitioner does not satisfy this higher burden or even
The declarant supporting his claim is

See McQuiggin, 133 S. Ct. at

In his traverse, Petitioner construes this claim as an

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ineffective assistance of counsel claim, asserting in essence that

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his attorney failed to investigate his potential alibi.

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Petitioner did not raise this argument in support of his

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ineffective assistance of counsel claim, part of which Petitioner

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withdrew and the remainder of which the Court dismissed on

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September 6, 2016, as procedurally defaulted.

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to consider this argument as a new claim for ineffective

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assistance of counsel.

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would be procedurally defaulted under Clark, 5 Cal. 4th at 797-98.

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See Casey v. Moore, 386 F.3d 896, 919-922 (9th Cir. 2004) (claims

The Court declines

The new claim, like claims 1(b) and (c),

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not fairly presented to state courts may be exhausted if they are

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clearly procedurally barred).

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assistance of counsel claim were deemed unexhausted rather than

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procedurally barred, the Court would not now, at this late stage

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of the proceedings, grant another stay and abeyance to allow

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Petitioner to exhaust this argument.

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544 U.S. 269, 277 (2005).

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unavailing in the context of the record as a whole; therefore, he

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cannot show prejudice and any claim of ineffective assistance of

Even if the new ineffective

See Rhines v. Weber,

Petitioner’s evidence of an alibi is

United States District Court
For the Northern District of California

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counsel on this ground would lack merit.

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Washington, 466 U.S. 668, 694 (1984).

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present this unexhausted claim does not prevent the Court from

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denying all of his claims on the merits.

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See Strickland v.

Petitioner’s attempt to

28 U.S.C. § 2254(b)(2).

Petitioner also requests appointment of counsel on the basis

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of this new ineffective assistance claim.

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previously found that appointment of counsel is not warranted in

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this case.

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The Court has

The request is DENIED (Docket No. 117).

Accordingly, Petitioner is not entitled to habeas relief on
this claim.
V.

Claim 6: Cumulative error.

Petitioner raised this claim in his September 2013 habeas

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petition to the California Supreme Court, which summarily denied

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his petition.

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For the reasons discussed above, the Court has found that

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Petitioner does not raise a constitutional error.

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have been no errors to accumulate, there can be no constitutional

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violation based on a theory of “cumulative” error.

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Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (holding where there
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Because there

See Mancuso v.

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are no errors, there can be no cumulative error), overruled on

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other grounds by Slack v. McDaniel, 529 U.S. 473 (2000).

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Accordingly, Petitioner is not entitled to habeas relief on

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this claim.

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VI.

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Petitioner makes a number of miscellaneous requests in papers

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Miscellaneous requests.

associated with his traverse.
Petitioner seeks to file under seal a number of documents
including Exhibit A(1), an October 5, 2011 letter from an

United States District Court
For the Northern District of California

10

investigator; Exhibit A(16), a February 16, 2017 declaration by

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his trial attorney concerning the confidentiality of

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communications at County of Marin jail; Exhibit A(18), a September

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17, 2009 letter from the trial attorney concerning a confidential

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informant; Exhibit A(12), a March 24, 2017 letter and memorandum

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from Petitioner’s appellate attorney concerning alibi declarant

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Winston; and Exhibit A(19), documents purporting to show the time

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of sunset on December 24, 2008.

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documents are subject to attorney-client privilege.

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has waived this privilege by filing these documents in support of

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his petition and claiming ineffective assistance of counsel.

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Accordingly, the motion is DENIED (Docket No. 119).

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without prejudice to submitting a separate motion to strike the

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documents from the record.

Petitioner asserts that the

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25
26
27
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Petitioner

Denial is

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Petitioner requests leave to modify claims 1 and 4 (Docket

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No. 118, 124, 127).4

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request to modify claims 1 and 4, construing it as a motion for

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reconsideration.

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Court again construes Petitioner’s request as a motion for

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reconsideration.

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standard for such motions.

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The Court has previously denied Petitioner’s

Docket No. 94, September 6, 2016 Order 5-7.

The

The Court has previously discussed the legal
Id.

Petitioner argues that new evidence has been discovered that
justifies his request.

He argues that the new evidence shows that

United States District Court
For the Northern District of California

10

his conversations with counsel in County of Marin jail were

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overheard and confidentiality otherwise breached and, thus, that

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the trial court was incorrect when it found that the Sixth

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Amendment was not violated by virtue of the room the jail provided

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for meetings because it found “only that it’s possible that

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someone could overhear a conversation out of that room but not

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that anyone did.”5

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Petitioner also points out that the jail has since modified the

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room in question in a way that improves its soundproofing.

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Docket No. 108-2, Answer, Ex. 2B, 3 RT 149.

The arguments Petitioner makes in these papers are unrelated

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to the claims Petitioner states that he seeks to modify; rather,

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he reargues claim 5(a), actual innocence, and the Dixon bar.

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Claims 1(a) and part of 1(c) were withdrawn, Docket No. 74,
March 9, 2016 Order 6 n.4, and claims 1(b) and the remainder of
1(c) were dismissed as procedurally defaulted, Docket No. 94,
September 6, 2016 Order 8-12. Claim 4 was dismissed as
procedurally defaulted. Docket No. 74.
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The trial court also found that Petitioner had not stated
that he had not fully discussed things with his attorney as a
result of the allegedly deficient soundproofing.
5

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These issues have been adjudicated.

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modifications do not demonstrate a constitutional deficiency

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beforehand.

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118, 124, 127).

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Furthermore, the jail’s

Accordingly, the requests must be DENIED (Docket Nos.

Petitioner again moves for appointment of counsel and for

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discovery (Docket Nos. 122, 126).

Petitioner bases this renewed

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request on his new claim that his counsel was ineffective,

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primarily for failing to investigate sufficiently Petitioner’s

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alibi.

He also argues that potential investigators into his alibi

United States District Court
For the Northern District of California

10

have refused to work with him unless he is represented.

The Court

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has previously discussed the legal standard for such motions and

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found that appointment of counsel is not warranted in this case.

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Docket No. 17, Order Granting Mot. to Reopen Case 4-5.

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has also previously discussed the legal standard a habeas

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petitioner must meet to be entitled to discovery.

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March 9, 2016 Order 9.

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clear, but he appears to seek discovery into Chen’s background for

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the purpose of impeachment and into his alibi generally.

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Petitioner is not entitled to relief on these grounds as explained

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in this and the Court’s prior Orders, he is not entitled to

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discovery related to them.

The Court

Docket No. 74,

Petitioner’s discovery request is not

Because

The motion is DENIED (Docket No. 122).

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VII. Certificate of appealability.

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A judge shall grant a certificate of appealability (COA)

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“only if the applicant has made a substantial showing of the

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denial of a constitutional right.”

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“Where a district court has rejected the constitutional claims on

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the merits, the showing required to satisfy § 2253(c) is

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straightforward: the petitioner must demonstrate that reasonable
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28 U.S.C. § 2253(c)(2).

1

jurists would find the district court’s assessment of the

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constitutional claims debatable or wrong.”

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529 U.S. 473, 484 (2000).

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Slack v. McDaniel,

“Determining whether a COA should issue where the petition

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was dismissed on procedural grounds has two components, one

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directed at the underlying constitutional claims and one directed

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at the district court’s procedural holding.”

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529 U.S. 473, 484-85 (2000).

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habeas petition on procedural grounds without reaching the

Slack v. McDaniel,

“When the district court denies a

United States District Court
For the Northern District of California

10

prisoner’s underlying constitutional claim, a COA should issue

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when the prisoner shows, at least, that jurists of reason would

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find it debatable whether the petition states a valid claim of the

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denial of a constitutional right and that jurists of reason would

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find it debatable whether the district court was correct in its

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procedural ruling.”

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1074, 1077 (9th Cir. 2000).

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“threshold inquiry,” the federal court “may find that it can

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dispose of the application in a fair and prompt manner if it

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proceeds first to resolve the issue whose answer is more apparent

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from the record and arguments.”

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Court jurisprudence “allows and encourages” federal courts to

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first resolve the procedural issue.

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Id. at 484; see James v. Giles, 221 F.3d
As each of these components is a

Slack, 529 U.S. at 485.

Supreme

See id.

As to the “denial of a constitutional right” prong of the

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Slack test, the court simply takes a “quick look” at the face of

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the complaint, taking the factual allegations as true, and

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determines if the petitioner has “‘facially allege[d] the denial

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of a constitutional right.’”

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1026-27 (9th Cir. 2000) (quoting Jefferson v. Welborn, 222 F.3d at

Lambright v. Stewart, 220 F.3d 1022,

18

1

289(7th Cir. 2000).

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a Rule 12(b)(6) motion apply to this situation.

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petitioner has facially alleged the denial of a constitutional

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right and the procedural ruling is debatable, a COA should be

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granted.

6

All of the inferences that apply to ruling on
See id.

If the

See id.

For the reasons discussed above, Petitioner has not shown

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that reasonable jurists would find the Court’s rulings on claims

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2(c), 3(a) and 6 debatable, and the Court denies a COA on these

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claims.

For the reasons discussed in the Court’s March 9, 2016

United States District Court
For the Northern District of California

10

and September 6, 2016 orders, Petitioner has not shown that

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jurists of reason would find it debatable whether the Court is

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correct in its procedural dismissal of claims 1(b), part of 1(c),

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2(b), 3(b), 4 and 5(b), and the Court denies a COA on these

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claims.

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withdrawn by Petitioner, claims 1(a) and part of 1(c).

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The Court also denies a COA on the claims that were

However, the Court grants a COA on claims 2(a) (witness’s

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reference to Petitioner as a parolee at large) and 5(a) (actual

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innocence).

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CONCLUSION

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For the reasons set forth above, the Court must DENY the

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22

petition for habeas corpus (Docket Nos. 25, 27).
The request and motions for appointment of counsel are DENIED

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(Docket Nos. 117, 122, 126).

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claims 1 and 4 are DENIED (Docket No. 118, 124, 127).

25

for leave to file under seal is DENIED (Docket No. 119).

26

motion to clarify portions of Petitioner’s traverse papers is

27

GRANTED (Docket No. 123).

The requests for leave to modify

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19

The motion
The

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2
3

The Court GRANTS a COA on claims 2(a) and 5(a).

The Court

DENIES a COA on all other claims.
IT IS SO ORDERED.

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Dated: September 1, 2017

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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