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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 JOSEPH FLOWERS, Petitioner, 6 7 8 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. 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 ________________________________/ 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. 18 19 20 21 22 23 24 25 26 27 28 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, 1 2014. 2 Petitioner to file a Second Amended Petition. 3 On June 3, 2014, this Court lifted the stay and ordered On August 22, 2014, the Court issued an order to show cause, 4 in which the Court deemed the documents at Docket Numbers 25 and 5 27 together to constitute the operative petition and ordered 6 Respondent to file an answer or motion to dismiss within sixty 7 days. 8 Petitioner’s claims in the amended petition were as follows. 9 Claim 1, ineffective assistance of counsel: (a) trial counsel was United States District Court For the Northern District of California 10 ineffective for failing to investigate victim Chen Wei’s 11 background; (b) trial counsel was ineffective for failing to move 12 to dismiss the kidnapping count based on a discrepancy between the 13 victim’s name as listed on the information and the victim’s own 14 recitation of her name at trial; and (c) appellate counsel was 15 ineffective for failing to raise on appeal the ineffective 16 assistance of trial counsel. 17 violation of due process: (a) the trial court failed to grant a 18 mistrial after a prosecution witness revealed that Petitioner was 19 a parolee at large; (b) after a prosecution witness testified, in 20 violation of a pretrial exclusionary order, that Petitioner was a 21 pimp, the trial court failed to admonish the jury to disregard the 22 testimony; and (c) the trial court failed to issue a ruling on the 23 defense’s pretrial Aranda1/Bruton2 motion. 24 misconduct: (a) the prosecutor failed to disclose evidence 25 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). 26 Claim 2, trial court errors in Claim 3, prosecutorial 1 27 2 28 Bruton v. United States, 391 U.S. 123 (1968). 2 1 relating to the credibility of Chen Wei; and (b) the prosecutor 2 presented false evidence regarding the identity of the kidnap 3 victim. 4 allowed confidential visits with trial counsel at the county jail. 5 Claim 5, actual innocence: (a) evidence of an alibi was not 6 presented; and (b) evidence of the identity of the kidnap victim 7 was insufficient to support the conviction of kidnapping for 8 robbery. 9 errors alleged in claims 1 through 5 violated due process. United States District Court For the Northern District of California 10 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 11 procedurally defaulted and claims 1(a)-(c), 3(b), and 6 as 12 unexhausted. 13 part and dismissed claims 2(b) and 4 as procedurally defaulted 14 based on a rule from In re Dixon, 41 Cal. 2d 756 (1953), which 15 “prohibits California state courts from considering habeas claims 16 that should have been raised on direct appeal but were omitted,” 17 Lee v. Jacquez, 788 F.3d 1124, 1126 (9th Cir. 2015). 18 order, the Court granted Petitioner’s motion to withdraw claim 19 1(a) and the part of claim 1(c) relating to claim 1(a). 20 On March 9, 2016, the Court granted the motion in In the same On March 28, 2016, the Court granted in part Respondent’s 21 motion for leave to file a motion for reconsideration and 22 permitted Respondent to submit supplemental briefing on whether 23 claim 5(b) was procedurally defaulted. 24 an answer, Respondent filed a motion to dismiss claims 1(b), the 25 remainder of 1(c) and 3(b) as procedurally defaulted. 26 September 6, 2016, the Court granted Respondent’s motions. 27 Court dismissed claims 1(b), 1(c), 3(b), and 5(b) as procedurally 28 3 On May 4, 2016, in lieu of On The 1 barred under In re Clark, 5 Cal. 4th 750, 797-98 (1993) (invoking 2 procedural bars of untimeliness and successiveness). 3 Following these orders, Petitioner’s remaining claims are 4 2(a), 2(c), 3(a), 5(a) and 6. 5 filed his answer. 6 granted Petitioner extensions of time to file his traverse. 7 Petitioner has filed his traverse.3 On February 2 and March 11, 2017, the Court 8 9 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 10 prisoner “only on the ground that he is in custody in violation of 11 the Constitution or laws or treaties of the United States.” 12 28 U.S.C. § 2254(a). 13 Penalty Act (AEDPA) of 1996, a district court may not grant habeas 14 relief unless the state court’s adjudication of the claim: 15 “(1) resulted in a decision that was contrary to, or involved an 16 unreasonable application of, clearly established Federal law, as 17 determined by the Supreme Court of the United States; or 18 (2) resulted in a decision that was based on an unreasonable 19 determination of the facts in light of the evidence presented in Under the Antiterrorism and Effective Death 20 21 22 23 24 25 26 27 28 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. 3 4 1 the State court proceeding.” 28 U.S.C. § 2254(d); Williams v. 2 Taylor, 529 U.S. 362, 412 (2000). A state court decision is “contrary to” Supreme Court 3 4 authority, that is, falls under the first clause of § 2254(d)(1), 5 only if “the state court arrives at a conclusion opposite to that 6 reached by [the Supreme] Court on a question of law or if the 7 state court decides a case differently than [the Supreme] Court 8 has on a set of materially indistinguishable facts.” 9 529 U.S. at 412-13. Williams, A state court decision is an “unreasonable United States District Court For the Northern District of California 10 application of” Supreme Court authority, that is, it falls under 11 the second clause of § 2254(d)(1), if it correctly identifies the 12 governing legal principle from the Supreme Court’s decisions but 13 “unreasonably applies that principle to the facts of the 14 prisoner’s case.” 15 may not issue the writ “simply because that court concludes in its 16 independent judgment that the relevant state-court decision 17 applied clearly established federal law erroneously or 18 incorrectly.” 19 “objectively unreasonable” to support granting the writ. 20 409. 21 possibility fairminded jurists could disagree that the state 22 court’s decision conflicts with this Court’s precedents.” 23 Harrington v. Richter, 562 U.S. 86, 102 (2011). 24 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 25 only if the error had a “substantial and injurious effect or 26 influence in determining the jury’s verdict.” 27 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 28 619, 637 (1993)). 5 Penry v. Johnson, 1 The court “look[s] through” unexplained state-court opinions 2 on a habeas claim and applies the standard of § 2254(d) to the 3 last “explained” state-court opinion absent “strong evidence” that 4 a later unexplained opinion rested upon different grounds. 5 v. Nunnemaker, 501 U.S. 797, 801-06 (1991); see also Kernan v. 6 Hinojosa, 136 S. Ct. 1603, 1605-06 (2016) (per curiam). 7 Supreme Court has directed that “[w]hen a federal claim has been 8 presented to a state court and the state court has denied relief,” 9 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 10 presumed that the state court adjudicated the claim on the merits 11 in the absence of any indication or state-law procedural 12 principles to the contrary.” 13 298 (2013) (quoting Harrington, 562 U.S. at 99). 14 Johnson v. Williams, 568 U.S. 289, DISCUSSION 16 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. 17 The last explained state court opinion on this claim is that 15 I. 18 of the California Court of Appeal. 19 court reasoned as follows: 20 21 22 23 24 25 26 27 28 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 6 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 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.”].) 14 People v. Flowers, No. A129473, 2012 WL 2168589, at *4 (Cal. Ct. 15 App. June 15, 2012) (alterations in original). 16 “The admission of evidence does not provide a basis for 17 habeas relief unless it rendered the trial fundamentally unfair in 18 violation of due process.” 19 1101 (9th Cir. 2009); see also Estelle v. McGuire, 502 U.S. 62, 72 20 (1991). 21 questions of state evidence law.” 22 1031 (9th Cir. 1999). 23 erroneously admitted, a federal court will interfere only if it 24 appears that its admission violated fundamental due process and 25 the right to a fair trial.” 26 512 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, 27 The California Court of Appeal’s reasoning is not contrary to 28 or an unreasonable application of federal law as determined by the 7 Supreme Court. 2 admission of prior bad acts “violates due process if ‘there are no 3 permissible inferences the jury may draw from the evidence,’” 4 Houston v. Roe, 177 F.3d 901, 910 n.6 (9th Cir. 1999) (quoting 5 Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991)), the 6 Supreme Court has not clearly held that the admission of evidence 7 of prior bad acts to prove propensity is unconstitutional. 8 Estelle, 502 U.S. at 75 n.5. 9 evidence of Petitioner’s prior bad acts through reference to his 10 United States District Court For the Northern District of California 1 status as a “parolee at large” does not constitute a deficiency 11 that could form the basis of habeas relief. 12 presumed to follow the trial court’s limiting instruction and 13 disregard this evidence. 14 (2000). 15 of the witness’ testimony immediately after it was given and no 16 details about any prior conviction were elicited. 17 Court finds that any such error did not have a “substantial and 18 injurious effect or influence in determining the jury’s verdict,” 19 Brecht, 507 U.S. at 637, when “quantitatively assessed in the 20 context of other evidence presented,” id. at 629 (quoting Arizona 21 v. Fulminante, 499 U.S. 279, 308 (1991). 22 the testimony of Petitioner’s co-defendant Douglas Patterson, a 23 positive identification made by one of the victims, Petitioner’s 24 fingerprint on a demand letter subsequently received by one of the 25 victims, and identification of Petitioner in surveillance footage 26 of the incident. 27 28 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. 8 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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 28 9 1 and that it held documents relating to his alibi defense. 2 same reason, this argument is unavailing. 3 9, 2016, the Court dismissed Petitioner’s claim 4, relating to the 4 denial of confidential visits with trial counsel, as procedurally 5 barred. 6 For the Additionally, on March Accordingly, Petitioner is not entitled to habeas relief on 7 this claim. 8 III. Claim 3(a): The prosecutor failed to disclose evidence relating to the credibility of witness Wei Chen. 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 10 1 Chen’s contact with law enforcement concerning Penal Code section 2 647(b). 3 about a 647(b) being a crime involving moral turpitude,” but that 4 evidence of her prior contact with law enforcement could be used 5 to impeach her if she denied that the spa was engaged in that sort 6 of activity. 7 told him about the charge. 8 issue of Chen’s prior contact with law enforcement at trial. 9 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 10 United States District Court For the Northern District of California Defense counsel acknowledged that the prosecutor this claim. 11 IV. Claim 5(a): Actual innocence: Evidence of alibi not presented. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 11 1 family members.” Id. ¶ 1. Finally, she declared that she 2 remembered the events “due to a conversation with the above 3 parties, and because it is a long standing family tradition to 4 spend Christmas Eve and Christmas morning together.” Id. ¶ 3. Petitioner asserts that he conveyed his alibi to his attorney 5 6 and investigators in January 2009 when he was transferred to 7 County of Marin jail but declined to discuss the matter further 8 out of fears that his conversations could be overheard. 9 transcript indicates that Petitioner asserted that he had an alibi The trial United States District Court For the Northern District of California 10 moments before the jury was sworn in. Defense counsel immediately 11 moved to continue the trial so that he could “investigate these 12 facts, the alibi that he’s given me, and all the other witnesses 13 that need to be interviewed and brought to court.” 14 108-2, Answer, Ex. 2E, 6 RT 245. 15 Id. at 246. 16 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 17 18 entitled to habeas relief based on a freestanding claim of actual 19 innocence,” McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013), 20 “absent an independent constitutional violation occurring in the 21 underlying state criminal proceeding,” Herrera v. Collins, 506 22 U.S. 390, 400 (1993). 23 innocence claim is cognizable on federal habeas review, but it has 24 noted that ‘the threshold showing for such an assumed right would 25 necessarily be extraordinarily high.’” 26 829 F.3d 1081, 1116 (9th Cir. 2016) (quoting Herrera, 506 U.S. at 27 417). It “has assumed that a freestanding 28 12 Ayala v. Chappell, 1 Petitioner has not made a showing of actual innocence 2 sufficient to overcome the “extraordinarily high” threshold for 3 such claims. 4 innocence may function as a “gateway through which a habeas 5 petitioner must pass to have his otherwise [procedurally] barred 6 constitutional claim considered on the merits” to avoid a 7 “fundamental miscarriage of justice.” 8 this standard, a petitioner must show that it is “more likely than 9 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 10 of the new evidence.” 11 “[W]hatever burden a hypothetical freestanding innocence claim 12 would require” is even higher. 13 (2006). 14 the lower Schlup standard. 15 not a disinterested party and the declaration must be considered 16 in light of proof of guilt at trial. 17 1935; House, 547 U.S. at 555; Herrera, 506 U.S. at 417-19. 18 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 19 ineffective assistance of counsel claim, asserting in essence that 20 his attorney failed to investigate his potential alibi. 21 Petitioner did not raise this argument in support of his 22 ineffective assistance of counsel claim, part of which Petitioner 23 withdrew and the remainder of which the Court dismissed on 24 September 6, 2016, as procedurally defaulted. 25 to consider this argument as a new claim for ineffective 26 assistance of counsel. 27 would be procedurally defaulted under Clark, 5 Cal. 4th at 797-98. 28 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), 13 1 not fairly presented to state courts may be exhausted if they are 2 clearly procedurally barred). 3 assistance of counsel claim were deemed unexhausted rather than 4 procedurally barred, the Court would not now, at this late stage 5 of the proceedings, grant another stay and abeyance to allow 6 Petitioner to exhaust this argument. 7 544 U.S. 269, 277 (2005). 8 unavailing in the context of the record as a whole; therefore, he 9 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 10 counsel on this ground would lack merit. 11 Washington, 466 U.S. 668, 694 (1984). 12 present this unexhausted claim does not prevent the Court from 13 denying all of his claims on the merits. 14 See Strickland v. Petitioner’s attempt to 28 U.S.C. § 2254(b)(2). Petitioner also requests appointment of counsel on the basis 15 of this new ineffective assistance claim. 16 previously found that appointment of counsel is not warranted in 17 this case. 18 19 20 21 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 22 petition to the California Supreme Court, which summarily denied 23 his petition. 24 For the reasons discussed above, the Court has found that 25 Petitioner does not raise a constitutional error. 26 have been no errors to accumulate, there can be no constitutional 27 violation based on a theory of “cumulative” error. 28 Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (holding where there 14 Because there See Mancuso v. 1 are no errors, there can be no cumulative error), overruled on 2 other grounds by Slack v. McDaniel, 529 U.S. 473 (2000). 3 Accordingly, Petitioner is not entitled to habeas relief on 4 this claim. 5 VI. 6 Petitioner makes a number of miscellaneous requests in papers 7 8 9 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 11 his trial attorney concerning the confidentiality of 12 communications at County of Marin jail; Exhibit A(18), a September 13 17, 2009 letter from the trial attorney concerning a confidential 14 informant; Exhibit A(12), a March 24, 2017 letter and memorandum 15 from Petitioner’s appellate attorney concerning alibi declarant 16 Winston; and Exhibit A(19), documents purporting to show the time 17 of sunset on December 24, 2008. 18 documents are subject to attorney-client privilege. 19 has waived this privilege by filing these documents in support of 20 his petition and claiming ineffective assistance of counsel. 21 Accordingly, the motion is DENIED (Docket No. 119). 22 without prejudice to submitting a separate motion to strike the 23 documents from the record. Petitioner asserts that the 24 25 26 27 28 15 Petitioner Denial is 1 Petitioner requests leave to modify claims 1 and 4 (Docket 2 No. 118, 124, 127).4 3 request to modify claims 1 and 4, construing it as a motion for 4 reconsideration. 5 Court again construes Petitioner’s request as a motion for 6 reconsideration. 7 standard for such motions. 8 9 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 11 overheard and confidentiality otherwise breached and, thus, that 12 the trial court was incorrect when it found that the Sixth 13 Amendment was not violated by virtue of the room the jail provided 14 for meetings because it found “only that it’s possible that 15 someone could overhear a conversation out of that room but not 16 that anyone did.”5 17 Petitioner also points out that the jail has since modified the 18 room in question in a way that improves its soundproofing. 19 Docket No. 108-2, Answer, Ex. 2B, 3 RT 149. The arguments Petitioner makes in these papers are unrelated 20 to the claims Petitioner states that he seeks to modify; rather, 21 he reargues claim 5(a), actual innocence, and the Dixon bar. 22 23 24 25 26 27 28 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. 4 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 16 1 These issues have been adjudicated. 2 modifications do not demonstrate a constitutional deficiency 3 beforehand. 4 118, 124, 127). 5 Furthermore, the jail’s Accordingly, the requests must be DENIED (Docket Nos. Petitioner again moves for appointment of counsel and for 6 discovery (Docket Nos. 122, 126). Petitioner bases this renewed 7 request on his new claim that his counsel was ineffective, 8 primarily for failing to investigate sufficiently Petitioner’s 9 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 11 has previously discussed the legal standard for such motions and 12 found that appointment of counsel is not warranted in this case. 13 Docket No. 17, Order Granting Mot. to Reopen Case 4-5. 14 has also previously discussed the legal standard a habeas 15 petitioner must meet to be entitled to discovery. 16 March 9, 2016 Order 9. 17 clear, but he appears to seek discovery into Chen’s background for 18 the purpose of impeachment and into his alibi generally. 19 Petitioner is not entitled to relief on these grounds as explained 20 in this and the Court’s prior Orders, he is not entitled to 21 discovery related to them. The Court Docket No. 74, Petitioner’s discovery request is not Because The motion is DENIED (Docket No. 122). 22 VII. Certificate of appealability. 23 A judge shall grant a certificate of appealability (COA) 24 “only if the applicant has made a substantial showing of the 25 denial of a constitutional right.” 26 “Where a district court has rejected the constitutional claims on 27 the merits, the showing required to satisfy § 2253(c) is 28 straightforward: the petitioner must demonstrate that reasonable 17 28 U.S.C. § 2253(c)(2). 1 jurists would find the district court’s assessment of the 2 constitutional claims debatable or wrong.” 3 529 U.S. 473, 484 (2000). 4 Slack v. McDaniel, “Determining whether a COA should issue where the petition 5 was dismissed on procedural grounds has two components, one 6 directed at the underlying constitutional claims and one directed 7 at the district court’s procedural holding.” 8 529 U.S. 473, 484-85 (2000). 9 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 11 when the prisoner shows, at least, that jurists of reason would 12 find it debatable whether the petition states a valid claim of the 13 denial of a constitutional right and that jurists of reason would 14 find it debatable whether the district court was correct in its 15 procedural ruling.” 16 1074, 1077 (9th Cir. 2000). 17 “threshold inquiry,” the federal court “may find that it can 18 dispose of the application in a fair and prompt manner if it 19 proceeds first to resolve the issue whose answer is more apparent 20 from the record and arguments.” 21 Court jurisprudence “allows and encourages” federal courts to 22 first resolve the procedural issue. 23 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 24 Slack test, the court simply takes a “quick look” at the face of 25 the complaint, taking the factual allegations as true, and 26 determines if the petitioner has “‘facially allege[d] the denial 27 of a constitutional right.’” 28 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). 2 a Rule 12(b)(6) motion apply to this situation. 3 petitioner has facially alleged the denial of a constitutional 4 right and the procedural ruling is debatable, a COA should be 5 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 7 that reasonable jurists would find the Court’s rulings on claims 8 2(c), 3(a) and 6 debatable, and the Court denies a COA on these 9 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 11 jurists of reason would find it debatable whether the Court is 12 correct in its procedural dismissal of claims 1(b), part of 1(c), 13 2(b), 3(b), 4 and 5(b), and the Court denies a COA on these 14 claims. 15 withdrawn by Petitioner, claims 1(a) and part of 1(c). 16 The Court also denies a COA on the claims that were However, the Court grants a COA on claims 2(a) (witness’s 17 reference to Petitioner as a parolee at large) and 5(a) (actual 18 innocence). 19 CONCLUSION 20 For the reasons set forth above, the Court must DENY the 21 22 petition for habeas corpus (Docket Nos. 25, 27). The request and motions for appointment of counsel are DENIED 23 (Docket Nos. 117, 122, 126). 24 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 28 19 The motion The 1 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. 4 5 6 7 Dated: September 1, 2017 CLAUDIA WILKEN United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20

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