Milton v. Janda

Filing 17

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Edward J. Davila on 5/20/2015. (ecg, COURT STAFF) (Filed on 5/21/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY MILTON

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v.

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For the Northern District of California

United States District Court

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Petitioner,

GERALD JANDA, Warden,
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Respondent.
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No. C 12-05758 EJD (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY

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Petitioner, represented by counsel, has filed a petition for a writ of habeas

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corpus under 28 U.S.C. § 2254 challenging his state conviction. For the reasons set

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forth below, the Petition for a Writ of Habeas Corpus is DENIED.

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PROCEDURAL BACKGROUND

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On August 10, 2009 an Alameda County jury convicted Petitioner of first

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degree murder with the special circumstance of committing the murder during a

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robbery, with an enhancement for discharge of a firearm resulting in death. 2 Court

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Transcript (“CT”) 386, 644; 4 Reporter’s Transcript (“RT”) 768-69. On November

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20, 2009, Petitioner was sentenced to life in prison without the possibility of parole.

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2 CT 647-48.

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On May 10, 2011, the California Court of Appeal affirmed Petitioner’s

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judgment in an unpublished decision. Ex. H, People v. Milton, 2011 WL 1782338

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(Cal. Ct. App. May 10, 2011). The California Supreme Court denied review on

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August 10, 2011. Ex. I.

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On August 6, 2010, Petitioner filed a petition for a writ of habeas corpus in

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the California Court of Appeal, which was denied on August 11, 2010. Exs. J, K

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The California Supreme Court denied review on October 20, 2010. Ex. K.

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On November 8, 2012, Petitioner filed this federal habeas petition.
FACTUAL BACKGROUND

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The California Court of Appeal summarized the facts as follows:

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A. Prosecution Case

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On the night of December 1, 2003, defendant was driving his 1988
Buick Skylark in the vicinity of High Street in Oakland,
accompanied by his brother, Juan Milton, his cousin, Fred Collins,
and friends, Arturo Stern (also known as Toro) and Dante Petty. He
had just purchased the Buick that day from a neighbor. About 11:00
p.m., defendant parked his car on Bancroft Way near 46th Avenue.
As they got out of the car, defendant handed Juan his Intra-Tech
nine-millimeter semi-automatic firearm (Tech-9) and asked him to
hold it. Defendant told Juan he had the gun because someone named
Laron was trying to kill him. Defendant and his companions walked
up 46th Avenue and joined Mia Smith and her boyfriend, William
Simpson, who were sitting outside with friends on the front porch of
an apartment where one of Simpson’s relatives lived. As soon as
they got to the porch, defendant took his gun back from Juan. At
some point, one or two police cars turned onto 46th Avenue.
Everyone on the porch ran into the backyard to avoid contact with
the police. Defendant ran to his car on Bancroft and moved it one
block, from Bancroft at 46th Avenue to Bond Street at 46th. Smith
and Simpson got into Smith’s white Saturn and drove to a motel on
High Street where they checked in.

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Defendant and Juan were walking toward Bond on 46th Avenue
when they saw two Hispanic men FN2 and a Hispanic woman, later
identified as Perla Hilarios, walking toward them on the opposite
side of the street. FN3 Toro was standing at the corner of 46th
Avenue and Bond watching. Defendant and Juan crossed the street
and approached Hilarios and her companions. Defendant was
holding his gun in his hand. At first, defendant pointed his gun
toward one of the men, who was wearing a poncho. Then he pointed
the gun toward the other Hispanic male and told Juan to check his
pockets for money. Juan put his hands into the man’s pockets but
found no money. Juan thought defendant wanted money because he
had spent all his money on the Buick.
FN2 Other testimony established that three Hispanic males
were present when the ensuing events occurred.

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FN3 Although defendant and Juan did not know Hilarios,
Smith had seen her on 46th Avenue before, and knew that her
boyfriend’s brother lived next door to the apartment where
Simpson’s relatives lived.
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As Juan was going through the man’s pockets he heard defendant
say, “He got a gun,” apparently referring to the man wearing the
poncho. Right after that, defendant fired his weapon. He fired the
first shot. Hilarios immediately fell to the ground. The man wearing
the poncho shot back and defendant and Juan started running toward
Bond Street. By the time they reached defendant’s car, Juan realized
he had been shot in the leg, and defendant was bleeding from his
chest. FN4

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FN4 Most of the foregoing account is based on Juan’s
statements during a December 2, 2003 interview by Sergeant
Louis Cruz. A tape of the interview was played for the jury
and a transcript was provided to aid jurors in following it. As
further discussed post, Juan gave conflicting versions of what
occurred in that interview, and testified at his own trial and
again at defendant’s trial that many of his inculpatory
statements to Cruz and others were not true.
Elizabeth Tofting, who lived on 46th Avenue, heard male and female
voices arguing loudly in English and Spanish in front of her house.
A female said, “Everything is okay. Everything is cool,” a couple of
times. Ten to 15 seconds later, Tofting heard rapid gunfire that
sounded continuous, followed by slower gunfire that sounded like a
shot followed by a pause followed by another shot. The shots
sounded like they came from different guns. She heard 5 to 10 shots
in all. A man she believed was Hilarios’s boyfriend knocked on her
door and asked her to call 911. After the police arrived, Tofting
came outside and observed Hilarios lying on the ground face down,
not moving. Hilarios had suffered massive head injuries and died at
the scene. An autopsy later established she died of a single gunshot
to the head, entering through the center of her forehead. A bullet
recovered from Hilarios’s head was consistent with cartridges
ultimately recovered from defendant’s Tech-9. Three
nine-millimeter casings found at the scene were found to have been
fired from the Tech-9.
Raquel Barrios, who lived on Bond Street, was woken by the sound
of approximately 15 gun shots. The first set of gunshots was louder
than the second set. The first set sounded to Barrios like .45-caliber
bullets, and the second sounded like .20- or .22-caliber bullets.
Barrios looked out her window and saw two men pick up another
man and put him in the back seat of a car. A white car pulled up and
the occupants of the two cars talked to each other.
Smith testified she and Simpson spent about 30 minutes at the motel
before deciding to drive back to 46th Avenue. As Smith turned left
from Bancroft onto 46th Avenue, she saw two Hispanic males
running to the corner. She saw a body lying face down on the
ground with a man standing over it, yelling for help. At that point,
Simpson told Smith to “drive off,” and she turned onto Bond Street,
where she saw defendant, Juan, and a couple of others getting into
their car. Simpson had a brief conversation with the men through the
passenger-side window, which Smith could not hear. Smith and
Simpson drove to a gas station, where Juan and defendant met them.
Defendant was in the back seat in a fetal position with his eyes
closed. Juan handed a gun to Simpson. Smith and Simpson drove
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back to the motel and Simpson placed the gun, later identified as
defendant’s Tech-9, in the nightstand drawer, along with a 33-round
ammunition clip for the weapon containing 14 live rounds. The
police arrived at the motel early the next morning and recovered the
weapon and ammunition from the nightstand. Simpson had also
placed his own weapon in the nightstand, a nine-millimeter High
Point. The Tech-9 trigger pull was measured at six and one-half
pounds, which was higher than most weapons of this kind.5

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FN5 The California Highway Patrol eventually recovered the
.25-caliber Raven pistol fired at Juan and defendant by the
Hispanic man wearing the poncho. Defendant’s Tech-9 had a
bigger cartridge and louder sound than the Raven.
After meeting Smith and Simpson at the gas station, Toro and Juan
drove defendant to the Highland Hospital emergency room and
dropped him off. Defendant identified himself there as Juan Milton.
Juan did not seek medical attention at Highland Hospital because
defendant “was on the run from [a] juvenile facility,” and Juan knew
defendant was going to use his name. Defendant was treated in the
Highland Hospital trauma room and transferred to the intensive care
unit. After dropping defendant off at Highland Hospital, Toro drove
Juan to the Kaiser Hospital emergency room, and left him there.
At 4:06 p.m. on December 3, Sergeant Cruz questioned defendant at
Highland Hospital after giving him Miranda FN6 warnings.
Defendant was in a hospital bed and hooked up to machines. Cruz
recorded the interview, and the recording was played for the jury.
During the interview, defendant admitted he was holding the Tech-9
gun. When defendant noticed Cruz holding a picture of the
nine-millimeter High Point found in Simpson’s hotel room, he asked
Cruz if that was the gun he had been shot with. When Cruz asked
defendant to describe the gun used to shoot him, defendant said he
had never seen it. He added, “First we was talkin’. . . . [] . . . [] And
then I just started shootin’.” Defendant said he did not know if Juan
got any money from their pockets “cuz right after he went in the
pockets, they shot me.” He stated, “I guess he felt disrespected when
[Juan] went in his pockets, so that’s when [inaudible] shoot.”
Defendant said he did not know who he shot, “I just know I shot
towards they way.” Defendant told Cruz he brought out his gun to
scare the men, but it “[t]urned into a whole different thing.”
FN6 Miranda v. Arizona (1966) 384 U.S. 436.
Juan initially told Cruz he received the gunshot wound to his leg
when he was the victim of a robbery at a taco truck. He said a
Latino in a poncho shot him. Cruz, who already had evidence of
Juan’s involvement in the 46th Avenue shootings, accused him of
being untruthful. At that point, Juan became emotional and admitted
he had not told the truth. Cruz began to ask Juan more directly about
what happened on 46th Avenue. Juan then offered a different
version of the shooting in which he was confronted by two Mexicans
on 46th Avenue who asked him, “What you got?” and were about to
hurt him or rob him. He called out to his brother, and told defendant
the men were trying to do something to him. Defendant ran up,
pulled out his gun, and “told ‘em why was they doin’ that shit?”
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When one of the men pulled out a gun, defendant started shooting,
the Mexicans shot back, and Juan and defendant ran to their car.
Only after Cruz confronted him with a picture of the recovered
murder weapon did Juan admit he had started to go through one of
the men’s pockets for money before the shooting started, or that
defendant had shot the female first and he had seen her fall to the
ground.

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B. Defense Case

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The defense called a single witness, Frederick Collins. Collins
testified that on the evening of December 1, 2003, he accompanied
Toro, Dante Petty, and his cousins-Juan and defendant-to a liquor
store to buy alcohol and then to 46th Avenue between Bond and
Bancroft. Defendant wandered off when they got out of the car.
Collins, Juan, and either Toro or Petty were walking on 46th Avenue
on their way to a burrito truck when a Mexican man and woman
approached from the opposite side of the street. Collins slowed
down but Juan kept walking toward them. The man and woman
started arguing with Juan and yelling at him “like they were fixin’ to
rob him.”

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Juan told the man and woman, “You ain’t getting’ shit from me.”
The man pulled out a gun from underneath his poncho and pointed it
toward Juan. Collins ran as soon as he saw the gun. He heard
gunshots and turned around. Juan yelled, “Anthony, Anthony.”
Collins saw Juan pick defendant up off of the ground in the middle
of the street. Collins kept running. FN7

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FN7 When Collins spoke with police on December 5, 2003,
he acknowledged going to 46th Avenue but would not give
details as to what happened there.

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Defense counsel argued to the jury the shooting of Hilarios resulted
from defendant trying to protect himself from a hail of bullets fired
by her companion, and not from an attempted robbery gone bad by
Juan and defendant.

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People v. Milton, 2011 WL 1782338, at *1-4 (footnotes in original).

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Counsel argued Petitioner accidentally shot Hilarios when, from a distance,
he fired back at the person who was shooting at him and Juan. 4 RT at 742.

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DISCUSSION
I.

Standard of Review
This Court may entertain a petition for a writ of habeas corpus “in behalf of a

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person in custody pursuant to the judgment of a State court only on the ground that

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he is in custody in violation of the Constitution or laws or treaties of the United

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States.” 28 U.S.C. § 2254(a). The writ may not be granted with respect to any
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claim that was adjudicated on the merits in state court unless the state court’s

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adjudication of the claim: “(1) resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or (2) resulted in a decision

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that was based on an unreasonable determination of the facts in light of the evidence

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presented in the State court proceeding.” 28 U.S.C. § 2254(d).

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if

Court on a question of law or if the state court decides a case differently than [the]

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Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529

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the state court arrives at a conclusion opposite to that reached by [the Supreme]

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United States District Court

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U.S. 362, 412-13 (2000). The only definitive source of clearly established federal

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law under 28 U.S.C. § 2254(d) is in the holdings, as opposed to the dicta, of the

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Supreme Court as of the time of the state court decision. Id. at 412; Brewer v. Hall,

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378 F.3d 952, 955 (9th Cir. 2004).

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“Under the ‘unreasonable application’ clause, a federal habeas court may

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grant the writ if the state court identifies the correct governing legal principle from

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[the Supreme Court’s] decisions but unreasonably applies that principle to the facts

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of the prisoner’s case.” Williams, 529 U.S. at 413. “Under § 2254(d)(1)’s

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‘unreasonable application’ clause, . . . a federal habeas court may not issue the writ

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simply because that court concludes in its independent judgment that the relevant

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state-court decision applied clearly established federal law erroneously or

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incorrectly.” Id. at 411. A federal habeas court making the “unreasonable

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application” inquiry should ask whether the state court’s application of clearly

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established federal law was “objectively unreasonable.” Id. at 409. The federal

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habeas court must presume correct any determination of a factual issue made by a

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state court unless the petitioner rebuts the presumption of correctness by clear and

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convincing evidence. 28 U.S.C. § 2254(e)(1).

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The state court decision to which § 2254(d) applies is the “last reasoned
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decision” of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991);

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Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there is no

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reasoned opinion from the highest state court considering a petitioner’s claims, the

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court “looks through” to the last reasoned opinion. Ylst, 501 U.S. at 805. In this

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case, the last reasoned opinion is that of the California Court of Appeal on direct

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review.

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The Supreme Court has repeatedly affirmed that under AEDPA, there is a

decisions. Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam); Harrington v.

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Richter, 131 S.Ct. 770, 783-85 (2011); Felkner v. Jackson, 131 S.Ct. 1305 (2011)

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heightened level of deference a federal habeas court must give to state court

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United States District Court

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(per curiam). As the Court explained: “[o]n federal habeas review, AEDPA

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‘imposes a highly deferential standard for evaluating state-court rulings’ and

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‘demands that state-court decisions be given the benefit of the doubt.’” Id. at 1307

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(citation omitted). With these principles in mind, the Court addresses Petitioner’s

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claims.

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II.

Claims and Analysis

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Petitioner claims the following as grounds for federal habeas relief:

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(1) trial counsel provided ineffective assistance; (2) the trial court violated

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Petitioner’s constitutional rights by failing to give a limiting instruction and

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admitting evidence that Petitioner’s brother, Juan, had been convicted of felony

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murder; and (3) the trial court violated Petitioner’s constitutional rights by denying

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his motion to suppress his statement to police.

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A.

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Petitioner claims that he was denied effective assistance of counsel when

Ineffective Assistance of Counsel

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counsel failed to object to evidence that Petitioner’s brother, Juan Milton, had been

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convicted of murder based on the incident for which Petitioner was on trial.1

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Because Petitioner and his brother have the same last names, the brother will
be referred to by his first name, “Juan.”
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1.

Background

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The Court of Appeal rejected this claim as follows:

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1. Facts

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The prosecution called Juan Milton as a witness. Juan was asked the
following questions and gave the following answers at the outset of his
testimony on direct:

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“Q. . . . [L]et me ask you this, you’re currently a sentenced prisoner; is
that correct?

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“A. Yes.
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“Q. Okay. And you’re serving time where?
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“A. Lancaster.
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“Q. Okay. And what have you been convicted of?
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“A. First-degree murder.
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“Q. Okay. And that is in relationship to this case where your brother
shot the female.

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“A. Yes.”

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After the prosecutor asked Juan a few more questions about a different
subject, the court interrupted the questioning and instructed the jury as
follows: “Let me interrupt[.] [T]o the extent it has come out that he is
a sentenced prisoner, that’s admissible for a limited purpose only. It
gives you the context of his position. It has-under the law will be
allowed to be considered by you for impeachment purposes. [] We had
a witness who admitted a felony conviction previously, a recent one he
has done, so it comes in for those limited purposes. It doesn’t come in
for any other purpose at this time concerning anything about the
incident in question. You all understand that. Okay. [] Go ahead.”

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After the close of evidence, the jury was also instructed as follows
under CALJIC No. 2.23: “The fact that a witness has been convicted
of a felony, if such be a fact, may be considered by you only for the
purpose of determining the believability of that witness. The fact of
the conviction does not necessarily destroy or impair a witness’s
believability. It is one of the circumstances that you may take into
consideration in weighing the testimony of such a witness.”

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Defense counsel interposed no objection to the prosecutor’s questions
about Juan’s conviction, and he did not ask the court for a different
instruction in relation to the testimony given on that subject.

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2. Analysis
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Defendant contends evidence of an accomplice’s conviction based on
the crime charged in the current case is irrelevant, inadmissible, and
highly prejudicial to a defendant because it invites the jury to
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impermissibly rely on what they assume another jury has found rather
than on their own assessment of the remaining defendant’s personal
culpability. (See U.S. v. Mitchell (4th Cir. 1993) 1 F.3d 235, 240
(Mitchell); accord People v. Leonard (1983) 34 Cal. 3d 183, 188-189
(Leonard) [substantial prejudicial effect of accomplice’s guilty plea to
charged crime far outweighs evidence’s probative value].) According
to defendant, his trial counsel “could have had no valid tactical reason
for failing to object” to the evidence of Juan’s first degree murder
conviction, especially in view of the fact he did object later in the trial
to the introduction of evidence that Juan’s murder conviction was
based on felony murder because the defense position was that there
was no robbery attempt by defendant or his brother before Hilarios
was shot.

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...

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At the outset, we reject defendant’s claim that the evidence was
irrelevant and inadmissible. As the trial court’s immediately ensuing
instruction indicated, the evidence about Juan’s felony conviction
came in “for a limited purpose only” to give jurors “the context of
[Juan’s] position” and could be “considered . . . for impeachment
purposes” and “[not] for any other purpose . . . concerning anything
about the incident in question.” FN8 (Italics added.) Evidence Juan
was convicted of a felony was admissible for impeachment purposes.
(Evid. Code, § 788; People v. Castro (1985) 38 Cal. 3d 301, 314.)

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FN8 The court’s limiting instruction referred to “a witness who
admitted a felony conviction previously, a recent one he has
done,” which could only refer to Juan. Although the court did
not reference Juan’s admission that his conviction was “in
relationship to this case,” it was clear from the instruction as a
whole and the context in which it was given that the court was
cautioning the jury not to consider any of Juan’s admissions
about his conviction for any purpose other than impeachment.

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Defendant asserts “the trial court did not give a limiting instruction
preventing the jury from using the prior conviction [as substantive
proof of his guilt],” and cites various cases in which no cautionary
instruction was given. But he fails to explain why the court’s
admonition to the jury-that Juan’s testimony could not be considered
“for any other purpose . . . concerning anything about the incident in
question”-and use of CALJIC No. 2.23-were insufficient to address the
jury’s potential misuse of the evidence. Defendant accepts the
principle that when evidence of a testifying accomplice’s conviction is
admitted, a court should instruct the jury such evidence “is to be used
only for the limited purpose of impeachment and not as substantive
evidence of the defendant’s guilt.” . . . He cites no case holding
limiting instructions comparable to the two given in this case violate
that principle. In U.S. v. Rewald (9th Cir. 1989) 889 F.2d 836, the
court upheld the sufficiency of a single instruction given at the end of
the trial that evidence of an accomplice’s guilty plea was “relevant
only to assess his credibility and was not ‘evidence against the
defendant.’” (Id. at p. 865.) In United States v. Solomon (9th Cir.
1986) 795 F.2d 747, the court upheld the sufficiency of an instruction
that “the [codefendants’ guilty pleas] should not control or influence

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your verdict as to Mr. Solomon. And you must base your verdict as to
Mr. Solomon solely on the evidence that there is presented here
against him.” (Id. at p. 748.) Defendant fails to persuade us there is a
constitutionally significant difference between admonishing the jury
not to consider impeachment evidence against Juan as “’evidence
against the defendant’” and admonishing it not to consider such
evidence “for any other purpose . . . concerning anything about the
incident in question” or to use it “only for the purpose of determining
[Juan’s] believability.” FN9
FN9 In Baker v. United States (9th Cir. 1968) 393 F.2d 604,
the court approved of an instruction that the jury could not
consider the guilty plea of a testifying coconspirator “as
evidence against any of the other defendants,” and observed
that, “No case has been called to our attention where, in the
face of such a cautionary instruction, reversible error has been
declared.” (Id. at p. 614.)
Defendant claims there was no tactical reason for defense counsel’s
failure to object to the prosecution’s impeachment of Juan since Juan
gave testimony favorable to the defense. But counsel did not know
whether Juan’s testimony would be helpful or harmful to his client
when the impeachment evidence was offered. It came at the very
outset of Juan’s testimony. Juan acknowledged on cross-examination
he had never spoken to defense counsel or discussed the case with him
before the trial. Juan had given so many different versions of what
occurred on the night in question it would have been impossible for
trial counsel to know whether everything he might say under an
aggressive direct examination by the prosecution would support the
defense theory. It was therefore a reasonable tactical decision by
defense counsel to allow Juan’s prior conviction to come in for his
own possible impeachment use. We are also not persuaded counsel
was ineffective for failing to request the evidence be “sanitized” to
reflect a generic murder conviction. (See People v. Hinton (2006) 37
Cal. 4th 839, 888 & fn. 17 [no ineffective assistance in failing to seek
to sanitize evidence concerning the defendant’s own prior
convictions].)
Defendant further contends the trial court violated his constitutional
right to due process by failing sua sponte to give a limiting instruction
precluding the jury from using Juan’s murder conviction as evidence
against him. Defendant’s argument is considerably weakened by his
decision to ignore the instruction the trial court did give at the time
Juan testified as to his conviction. In any event, absent an
extraordinary likelihood of jury misuse, the trial court had no sua
sponte duty to give limiting instructions on the use of evidence.
(People v. Hernandez (2004) 33 Cal. 4th 1040, 1051-1052.) This is
not one of those exceptional cases. Limiting instructions were in fact
given, the prosecution made no argument that Juan’s conviction
proved defendant’s guilt, and there is no evidence the jury decided the
case based on Juan’s conviction.
We find no trial court error or ineffective assistance of counsel arising
from Juan’s testimony that he was convicted of murder in connection
with Hilarios’s shooting.
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Milton, 2011WL 172338, at *4-7 (footnotes in original).
Petitioner raised his ineffectiveness claim again in his petition for a writ of

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habeas corpus in the California Court of Appeal and added, as extra-record

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evidence, the declaration of his direct appeal counsel, Peter Gold. Ex. J. Gold

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stated that he had spoken to trial counsel, Albert Thews, who said that he did not

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object to the evidence about Juan’s murder conviction because “he believed this

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evidence merely showed that Juan was a convicted felon.” Ex. J at Ex. A. Gold

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stated that he drafted a declaration for Thews to sign, but he declined to sign it. Id.

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The California Supreme Court asked for a response from Respondent on
Petitioner’s petition for review in that Court. Respondent submitted with his

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response a declaration from trial counsel, Thews. Ex. K, Answer to Petition for

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Review Ex. A, Thews Dec. Thews stated that he did not object for the following

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tactical reasons: (1) he wanted the jury to know that Juan was a convicted felon and

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that he had been convicted of murder in this case; (2) the prosecutor asked Juan

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about his murder conviction at the beginning of his testimony, at which point Thews

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did not know how he would testify, especially given his previous and numerous

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conflicting statements; and (3) he wanted to be able to use Juan’s conviction, which

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was a crime of moral turpitude, to impeach his trial testimony. Id.

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2.

Federal Authority

To prevail on a Sixth Amendment claim for ineffectiveness of counsel, a

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petitioner must establish two things. First, he must establish that counsel’s

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performance was deficient, i.e., that it fell below an “objective standard of

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reasonableness” under prevailing professional norms. Strickland v. Washington,

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466 U.S. 668, 688 (1984). Second, he must establish that he was prejudiced by

25

counsel’s deficient performance, i.e., that “there is a reasonable probability that, but

26

for counsel’s unprofessional errors, the result of the proceeding would have been

27

different.” Id. at 694. A reasonable probability is a probability sufficient to

28

undermine confidence in the outcome of the proceedings. Id.
11

1

A “doubly” deferential judicial review is appropriate in analyzing ineffective

2

assistance of counsel claims under § 2254. Cullen v. Pinholster, 131 S.Ct. 1388,

3

1410-11 (2011); Premo v. Moore, 131 S.Ct. 733, 740 (2011). The general rule of

4

Strickland, i.e., to review a defense counsel’s effectiveness with great deference,

5

gives the state courts greater leeway in applying that rule, which in turn “translates

6

to a narrower range of decisions that are objectively unreasonable under AEDPA.”

7

Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing Yarborough v.

8

Alvarado, 541 U.S. 652, 664 (2004)). When § 2254(d) applies, “the question is not

9

whether counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.”

11
For the Northern District of California

United States District Court

10

Harrington v. Richter, 131 S.Ct. 770, 788 (2011).

12
13

3.

Analysis

Petitioner argues here, as he did in state court, that the evidence of Juan’s

14

murder conviction was irrelevant to the determination of Petitioner’s guilt.

15

However, as the Court of Appeal explained, under California law, the evidence was

16

admissible and relevant for impeachment purposes. Milton, 2011 WL 1782338, at

17

*5. The trial court’s limiting instruction immediately after Juan acknowledged his

18

conviction, ensured that the jury only considered the evidence for impeachment, not

19

for any other purpose. Id. at *4. The trial court gave a second limiting instruction at

20

the end of the trial. Id. It is presumed that the jury followed the instructions it

21

received. Weeks v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481

22

U.S. 200, 206 (1987). Counsel did not render deficient performance by failing to

23

bring a futile motion. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996)

24

(failure to take a futile action can never constitute deficient performance).

25

Citing his appellate counsel’s declaration, Petitioner argues that trial counsel

26

Thews had no valid tactical reason for failing to object to the evidence of Juan’s

27

murder conviction. However, Petitioner fails to address Thews’ declaration stating

28

that he did not object to the evidence because it was admissible to impeach Juan and
12

1

he wanted to be able to use it for his own impeachment purposes. Ex. K, Ex. A,

2

Thews Dec. Thews also stated that, at the time the evidence was admitted, he did

3

not know how Juan would testify because previously he had given multiple versions

4

of events pertaining to Hilarios’s murder. Counsel’s rationale is supported by the

5

evidence. See Milton, 2011 WL 1782338, at *7. Because counsel’s action are

6

evaluated at the time they were made, not in hindsight, counsel’s strategic decision

7

not to object to the evidence did not constitute deficient performance. See Lowry v.

8

Lewis, 1 F.3d 344, 346 (9th Cir. 1994) (Counsel’s conduct must be evaluated for

9

purposes of the performance standard of Strickland “as of the time of counsel’s

11
For the Northern District of California

United States District Court

10

conduct.”); Strickland, 466 U.S. at 690.
Citing United States v. Binger, 469 F.2d 275, 276 (9th Cir. 1972), Petitioner

12

argues that the limiting instructions given by the trial court were insufficient because

13

they failed specifically to inform the jury that it could not use the evidence of Juan’s

14

conviction to determine Petitioner’s guilt or innocence. In Binger, the Ninth Circuit

15

concluded that a similar jury instruction was insufficient to warn the jurors that a

16

crime-partner’s guilty plea was not evidence of the defendant’s guilt. Id. However,

17

the court held that the error was harmless because the government’s evidence of the

18

defendant’s guilt was clear and convincing. Id.

19

Assuming that the jury instructions were insufficient, no prejudice resulted

20

from the admission of the evidence because the prosecutor’s case against Petitioner

21

was strong. Because witness testimony placed Petitioner at the scene of the crime

22

and physical evidence established that Petitioner’s gun killed Hilarios, the question

23

was not whether Petitioner shot and killed Hilarios, but whether he shot her in the

24

course of an attempted robbery or in self defense. See Milton, 2011 WL 1782338, at

25

*8. Smith testified that Juan gave Petitioner’s gun to Simpson after the shooting. 1

26

RT 200-01. The gun was recovered by the police and, during his interview with

27

Cruz, Petitioner admitted the gun belonged to him. Ex. F, People’s Trial Ex. 1A at

28

3. Juan admitted that Petitioner told him to check Hilarios’s male companion’s
13

1

pockets for money and that Juan followed these instructions. 2 RT 337-38; 345-46;

2

352; Ex. F, People’s Trial Ex. 23d at 23; 42-44. Juan stated that Petitioner fired his

3

gun first. Id. at 45. Juan’s admissions were corroborated by Petitioner’s statements

4

to the police that Juan had his hand in the pockets of one of Hilarios’s companions

5

and that Petitioner fired his gun without seeing anyone else with a gun. Ex. F,

6

People’s Trial Ex. 25a at 7-14. The location of bullet casings and the autopsy

7

evidence that Hilarios was shot from a position directly in front of her was strong

8

evidence that she was shot in the course of a robbery and not while Petitioner was

9

trying to protect himself by shooting at Hilarios and her two companions from a
distance, as Thews postulated in his closing argument. 4 RT 721-22.

11
For the Northern District of California

United States District Court

10

In light of this strong evidence that Petitioner shot Hilarios in the course of an

12

attempted robbery, Petitioner has failed to show that there is a reasonable probability

13

that, but for counsel’s failure to object to the evidence that Juan was convicted of

14

murder, the result of the proceeding would have been different. Accordingly, the

15

claim of ineffective assistance of counsel is denied.

16

B. Trial Court’s Failure to Give Limiting Instruction

17

Petitioner contends the trial court violated his right to due process because it

18

failed sua sponte to give the jury a limiting instruction precluding it from using Juan

19

Milton’s murder conviction as evidence in convicting Petitioner.

20

A state trial court’s failure to give an instruction does not alone raise a ground

21

cognizable in a federal habeas corpus proceeding. Dunckhurst v. Deeds, 859 F.2d

22

110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was

23

deprived of the fair trial guaranteed by the Fourteenth Amendment. Id. The

24

omission of an instruction is less likely to be prejudicial than a misstatement of the

25

law. Walker v. Endell, 850 F.2d at 475-76 (citing Henderson v. Kibbe, 431 U.S.

26

145, 155 (1977)). Thus, a habeas petitioner whose claim involves a failure to give a

27

particular instruction bears an “especially heavy burden.” Villafuerte v. Stewart,

28

111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson, 431 U.S. at 155). The
14

1

significance of the omission of such an instruction may be evaluated by comparison

2

with the instructions that were given. Murtishaw v. Woodford, 255 F.3d 926, 971

3

(9th Cir. 2001). A habeas petitioner is not entitled to relief unless the instructional

4

error “had substantial and injurious effect or influence in determining the jury’s

5

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

6

As discussed above, the trial court cured any prejudice from the admission of

instructions that it could use that evidence for no purpose other than impeachment.

9

As also discussed above, even if the limiting instructions did not cure any alleged

10

prejudice, the evidence that Petitioner shot Hilarios in the course of a robbery was

11
For the Northern District of California

the evidence that Juan was convicted of murder by giving the jury two limiting

8

United States District Court

7

strong so that any error did not have a substantial and injurious effect or influence in

12

determining the jury’s verdict.

13

The state court’s denial of this claim was not objectively unreasonable.

14

C. Admission of Juan Milton’s Conviction of Felony-Murder

15

Petitioner contends his right to due process was violated when the trial court

16

admitted evidence that the basis of Juan Milton’s murder conviction was felony-

17

murder.

18

1.

Background

19

The Court of Appeal summarized the facts pertaining to this claim as follows:

20

Under direct examination at defendant’s trial, Juan was asked about many of
the statements he made to Sergeant Cruz concerning the events preceding the
shooting. Juan repeatedly claimed Cruz did not allow him to say some things
he wanted to say. In response, the prosecutor got Juan to admit that as part of
a sentencing deal he reached with the prosecution after his own trial, he
admitted he had lied when he testified at that trial Cruz had treated him
unfairly and did not let him say some things he wanted to say. Then, under
cross-examination at defendant’s trial, Juan again claimed much of what he
had told Cruz and others was a lie.

21
22
23
24
25
26
27
28

After this testimony, the prosecution sought to impeach Juan’s
testimony with a transcript of his admission at his sentencing hearing
to the effect that Cruz had not coerced him to say things he did not
want to say. Defendant objected. As a backup position, defense
counsel insisted if the portion of the transcript containing the
admission was read to the jury, other portions should also be read to
show Juan was coerced into making the admission in order to avoid a
life-without-parole sentence. The court ruled it would admit the
15

1
2
3
4
5
6
7
8
9

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For the Northern District of California

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10

12

portion sought by the prosecution and reserve a ruling on defendant’s
request until later. The court took judicial notice of a portion of the
transcript, which it read to the jury, in which Juan admitted (1) Cruz
had not coerced or threatened him, (2) the portions of his statement to
Cruz in which he described his brother and himself participating in a
robbery at the time Hilarios was killed were true, and (3) his
statements to the contrary at his trial were false.
Before the close of the defense case, defendant proposed specific
further passages from Juan’s sentencing hearing be read explaining the
reasons Juan retracted his trial testimony. The prosecution argued the
reading should also include a passage in which the prosecutor in
Juan’s case explained the reasons why he was proposing a lesser
sentence, which included the fact Juan was found guilty of felony
murder, not of being the shooter. Over the defense’s objection, the
trial court took judicial notice of the passages proposed by both sides
and read them to the jury. The prosecution portion disclosed that the
prosecution in Juan’s case was willing to have the special
circumstance allegation against Juan dismissed, in part, because he
was 19 years old, and “was the non-shooter in a felony murder
situation,” and would agree to waive his appeal.
Milton, 2012 WL 172338, at *7-8.

13

The Court of Appeal found that the felony-murder reference was not relevant

14

to impeach any witness’s testimony or for any other substantive purpose. However,

15

in light of the overwhelming evidence against Petitioner, it rejected the claim

16

because it was not reasonably probable that the verdict against Petitioner was

17

affected by the passing mention of the basis of Juan’s conviction. Id. at *8-9.

18
19

2.

Federal Authority

The admission of evidence is not subject to federal habeas review unless a

20

specific constitutional guarantee is violated or the error is of such magnitude that the

21

result is a denial of the fundamentally fair trial guaranteed by due process. Henry v.

22

Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784 F.2d 984, 990

23

(9th Cir. 1986). The Supreme Court “has not yet made a clear ruling that admission

24

of irrelevant or overtly prejudicial evidence constitutes a due process violation

25

sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091,

26

1101 (9th Cir. 2009). Only if there are no permissible inferences that the jury may

27

draw from the evidence can its admission violate due process. Jammal v. Van de

28

Kamp, 926 F.2d 918, 920 (9th Cir. 1991). Even if an evidentiary error is of
16

1

constitutional dimension, habeas relief cannot be granted unless the error had a

2

substantial and injurious effect on the verdict. Brecht, 507 U.S. at 623; Dillard v.

3

Roe, 244 F.3d 758, 767 n.7 (9th Cir. 2001).

4
5

3.

Analysis

This claim fails because no Supreme Court authority holds that admission of

6

irrelevant or prejudicial evidence constitutes a due process violation. See Holley,

7

568 F.3d at 1101. Therefore, the Court of Appeal’s rejection of this claim was not

8

contrary to or an unreasonable application of Supreme Court authority.

reference was not relevant for any purpose, it noted that the evidence was admitted

11
For the Northern District of California

Furthermore, even though the Court of Appeal found that the felony-murder

10

United States District Court

9

to explain the willingness of Juan’s prosecutor to have the special circumstances

12

finding against him stricken and to negotiate a reduced sentence. Milton, 2011 WL

13

1782338, *8. Because there was some permissible use for the evidence, its

14

admission did not constitute a due process violation. See Jammal, 926 F.3d at 920.

15

Finally, even assuming the trial court erred in admitting the evidence, it did

16

not prejudice Petitioner’s defense. In her closing argument, the prosecutor focused

17

on the evidence of Petitioner’s guilt; she did not mention Juan’s role as the non-

18

shooter in a felony-murder conviction. See 4 RT 704-36; 751-63, Prosecutor’s

19

Closing and Rebuttal Arguments. And, discussed previously, the evidence against

20

Petitioner was strong. Given the strong evidence against Petitioner, the brief

21

mention that Juan was convicted of felony-murder did not have a substantial and

22

injurious effect or influence on the jury’s verdict. See Brecht, 507 U.S. at 637.

23

D.

24

Petitioner argues the trial court violated his due process rights and his

25

privilege against self-incrimination by admitting the statement he made to Sergeant

26

Louis Cruz while Petitioner was in the hospital. Petitioner asserts that, because he

27

was in pain from gunshot wounds and was on medication, his statement was not

28

freely or voluntarily given.

Failure to Suppress Petitioner’s Statement to Police

17

1
2

1.

Background

Before trial, Petitioner moved to suppress the statement he made to Cruz

3

when he was in the hospital. At the suppression hearing, Cruz testified to the

4

following: As primary investigator in the case, he went to Highland Hospital with

5

Sergeant Mark Dunakin at approximately 4:00 p.m. on December 3, 2003, to speak

6

with Petitioner. 1 RT 55, 57. Petitioner had been treated in the emergency room

7

and was in “a regular hospital room receiving care at a very high level.” 1 RT 61.

8

Although Petitioner’s voice was low, he was lucid and could carry on a

9

conversation. 1 RT 57, 66-67. Cruz turned on the tape recorder and advised
Petitioner of his Miranda rights. 1 RT 58. Cruz did not make any threats or offers

11
For the Northern District of California

United States District Court

10

of leniency. 1 RT 63. Petitioner agreed to speak with Cruz. 1 RT 59. Petitioner

12

said he “can’t really talk that much,” so he asked Cruz to ask “me questions, I could

13

give you the answers.” Ex. F, People’s Trial Ex. 1A at 2. Cruz had difficulty

14

gauging Petitioner’s pain level, but he “could definitely tell [he] had trouble

15

speaking” and “definitely had a breath issue.” 1 RT 61, 66. Petitioner had upper

16

torso wounds, with one lung punctured by a bullet. 1 RT 66.

17

Petitioner appeared to be in physical discomfort from the gunshot wounds,

18

but during the entire interview, he appeared lucid. 1 RT 66-69. Cruz based this

19

conclusion on the quality of Petitioner’s answers to the questions and the fact that

20

Petitioner noticed pictures that Cruz had and identified what they were before Cruz

21

“was actually able to put the picture all the way in front of his face.” 1 RT 67.

22

Petitioner identified a photograph of a Tech-9-type firearm with tape around the

23

magazine as his gun, which he had during the incident. 1 RT 60, Ex. F, People’s

24

Trial Ex. 1A at 3. Petitioner said he fired his gun once or twice after he was shot.

25

Ex. F, People’s Trial Ex. 1A at 3-6. He stated that the “Mexicans” fired at him after

26

his brother went into their pockets. Id. Throughout the interview, Petitioner

27

identified people, talked about what had happened, knew where he was, knew how

28

he had received the weapon that he identified as belonging to him and how long he
18

1

had owned the weapon. 1 RT 67-68. Cruz stated, “the quality of his answers to the

2

questions reflected that he was understanding what was going on.” 1 RT 68. The

3

interview lasted twenty-four minutes. 1 RT 64.

4

After Cruz’s testimony, the prosecutor indicated that the interview took place

5

thirteen hours after Petitioner had been shot. 1 RT 71. However, the Court of

6

Appeal, based on its review of the evidence, determined that the interview took

7

place thirty-nine hours after Petitioner was shot. Milton, 2011 WL 1782338, at *9

8

n.10. The trial court stated that it had Petitioner’s medical records and defense

9

counsel stated he had reviewed the medical records while examining Cruz, and
Cruz's testimony was “pretty accurate as to what the medical records reflect.” 1 RT

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For the Northern District of California

United States District Court

10

71, 72.

12

The trial court ruled as follows:

13

I clearly have a young, not quite 18-year old in substantial distress in
the hospital, the distress is clearly from gunshot wounds. He clearly is
marked a suspect; that’s why he is given Miranda rights, whether he
knows it or not.

14
15

It is clear he’s in custody.
16
...
17
I am supposed to measure how free and voluntary [his Miranda waiver was].
18
19
20

The actual Miranda warnings were given and there can be no violation
of Miranda, in the sense of, how he was treated. There is no
discussion beforehand that’s meaningful. There is no dispute about
that. His rights are given, clearly, preserved as such. He responds
clearly. And it’s: how much does his condition weigh?

21
22
23

And that really is captured by the answer of the Sergeant in talking
about this perception, I believe on cross but he began that answer with
pointing to the quality of the defendant’s answers, highlighted things
that are clear from the tape, and ended with the quality of the
defendant’s answers.

24
25

He, far better than average, in terms of statements I’ve heard,
understands the questions. There is no lack of understanding, and his
answers respond again and again directly to the questions.

26
27

He, on occasion, is inconsistent, and the inconsistency repeatedly
appears to be one consistent with protecting himself, and then later on
concedes some of that protection in the direction of the truth.

28
...
19

1
2
3
4

He has some clear understanding what’s happened here may have him
in substantial trouble, and it may not have him in as much trouble as
he deserves. Thus, at the end, he wants to know if he is going to be
able to get out, can he leave? And there is nothing in the tone of the
officer that would in any way affect the voluntariness of all this.

5

So as I weigh all of this, I have a really clear picture . . . [The
statement] is freely given. The defendant is voluntarily doing this.
Nothing inappropriate is happening by the police.

6

...

7

This is something the jury should be able to hear. Arguments that go
to reliability, to voluntariness. At this point, as a legal matter, should
not lead to suppression. It may be good argument to tell a jury why
everything they heard shouldn’t be taken a certain way that
incriminates, but the reality is, this is valid evidence that is fair to be
presented before a jury.

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16

This is total compliance with Miranda. Nothing about the defendant’s
situation is such that this evidence should be suppressed on any
voluntariness theory, and it is his own words, his own intonations, his
whole context of his statement that has no real possibility of being
misconstrued because of the events that the police created before that,
that can affect him. Here is the contact, and here we go with the tape.
That makes it really clean and it makes me very comfortable with my
ruling.
1 RT 80-82.
The Court of Appeal concluded that, despite Petitioner’s physical condition,

17

“there is ample evidence he understood his rights and voluntarily waived them.”

18

Milton 2011 WL 1782338, at *11.

19
20

2.

Federal Authority

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that

21

certain warnings must be given before a suspect’s statement made during custodial

22

interrogation can be admitted in evidence. Miranda requires that a person subjected

23

to custodial interrogation be advised that “he has the right to remain silent, that any

24

statement he does make may be used as evidence against him, and that he has a right

25

to the presence of an attorney.” Id. at 444. Once properly advised of his rights, an

26

accused may waive them voluntarily, knowingly and intelligently. Id. at 475. The

27

distinction between a claim that a Miranda waiver was not voluntary, and a claim

28

that such waiver was not knowing and intelligent is important. Cox v. Del Papa, 542
20

1

F.3d 669, 675 (9th Cir. 2008). The voluntariness component turns on the absence of

2

police overreaching, i.e., external factors, whereas the cognitive component depends

3

upon the defendant’s mental capacity. Id. A valid waiver of Miranda rights depends

4

upon the totality of the circumstances, including the background, experience and

5

conduct of the defendant. United States v. Bernard S., 795 F.2d 749, 751 (9th Cir.

6

1986). The government must prove waiver by a preponderance of the evidence.

7

Colorado v. Connelly, 479 U.S. 157, 168-69 (1986).

8

3.

Analysis

voluntary because Cruz’s interrogation took place just thirteen hours after Petitioner

11
For the Northern District of California

Petitioner argues here, as he did in state court, that his waiver was not

10

United States District Court

9

had been shot in the chest and he was receiving medical attention “at a very high

12

level” with tubes attaching him to machines. Petition at 32.2 Cruz admitted that

13

Petitioner was in substantial distress, had trouble breathing and could not speak in a

14

normal tone of voice. Id. Petitioner argues that, under these circumstances, he

15

could not voluntarily waive his Miranda rights.

16

However, the fact that Petitioner was receiving medical care and was in pain,

17

does not, alone, render him unable to voluntarily waive his Miranda rights. Courts

18

examine the facts of each case and determine under the totality of the circumstances

19

whether the defendant freely, knowingly and voluntarily waived his rights. Moran

20

v. Burbine, 475 U.S. 412, 421 (1986).

21

As reasonably found by the Court of Appeal, ample evidence supported the

22

conclusion that Petitioner understood his rights and voluntarily waived them. Cruz

23

was respectful throughout the interview, no discussion occurred before the tape

24

recorder was turned on and the interview itself lasted only twenty-four minutes.

25
26
27
28

2

As indicated above, the Court of Appeal found that thirty-nine hours had
elapsed before Cruz interviewed Petitioner. See Milton, 2011 WL 1782338, at *9
n.10. Petitioner does not rebut this finding of fact with clear and convincing
evidence and, thus, it is presumed to be correct. See 28 U.S.C. § 2254(e)(1) (federal
habeas court must presume correct any determination of a factual issue made by
state court unless petitioner rebuts the presumption of correctness by clear and
convincing evidence).
21

voluntary. The pertinent question is, given Petitioner’s physical condition, whether

3

he had the mental capacity to understand the significance of his waiver and the

4

questions he was answering. The Court of Appeal found the following evidence

5

showed that Petitioner understood the rights he was waiving and the significance of

6

Cruz’s questions: First, Petitioner directed how the officers were to conduct the

7

interview by telling them that, although he had trouble speaking, if they asked him

8

questions, he would answer them. Second, he clearly understood the questions

9

asked and gave prompt, responsive answers, including details and times. Third, he

10

recognized and identified pictures, such as the picture of his gun. And, significantly,

11
For the Northern District of California

Therefore, no police coercion took place and, in this regard, the confession was

2

United States District Court

1

he offered mostly false and evasive answers about the shooting, showing that he was

12

aware of the nature of his situation and the significance of his answers. This

13

evidence does not suggest that Petitioner’s judgment or ability to waive his rights

14

was affected by the medical treatment he was receiving or the pain he was

15

experiencing. In light of the totality of these circumstances, the state courts’ denial

16

of this claim was not contrary to or an objectively unreasonable application of

17

Miranda.

18

Petitioner argues that the prosecutor’s failure to introduce evidence about the

19

nature of Petitioner’s medications or their effect on him necessitates against finding

20

a valid waiver. Although Petitioner’s medical records were not explicitly discussed

21

at the hearing, the trial court stated it had Petitioner’s medical records and this was

22

corroborated by defense counsel. 1 RT 71-72. Thus, Petitioner’s argument is

23

unpersuasive.

24

Even assuming the court erred in admitting Petitioner’s statement, it did not

25

have a substantial and injurious effect or influence in determining the jury’s verdict

26

because evidence, other than the statement, established that Petitioner shot Hilarios

27

in the course of an attempted robbery. The strong case against Petitioner has been

28

described previously. A summary of the salient evidence includes the following:
22

1

Petitioner’s gun was matched to the bullet killing Hilarios by ballistics and forensics

2

showed the bullet was shot from close range, contradicting the defense theory that

3

Petitioner shot in self-defense from a distance. 4 RT 721-22. Juan told Cruz that

4

Petitioner told him to go into Hilarios’s companion’s pockets to look for money and

5

Juan did so. 4 RT 729. Juan also told Cruz that, after Hilarios was shot, everyone

6

started running. 4 RT 731.

7

Although the prosecutor cited Petitioner's statement in her closing argument,

8

she told the jury that, under the corpus delicti rule, the statement alone would be

9

insufficient to prove his guilt. 4 RT 721. She then detailed the other evidence
showing that Petitioner and Juan were perpetrating a robbery and that Hilarios was

11
For the Northern District of California

United States District Court

10

shot during the course of that robbery before Petitioner reached a place of safety,

12

establishing the prosecution's felony-murder theory of the shooting. 4 RT 731.

13

In light of the overwhelming evidence of Petitioner’s guilt, independent of his

14

statement to Cruz, Petitioner fails to show that any alleged error in admitting his

15

statement had a substantial and injurious effect or influence on the jury’s verdict.

16
17
18
19

CONCLUSION
After a careful review of the record and pertinent law, the Court concludes
that the Petition for a Writ of Habeas Corpus must be DENIED.
Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the

20

Rules Governing Section 2254 Cases. Petitioner has not made “a substantial

21

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has

22

Petitioner demonstrated that “reasonable jurists would find the district court’s

23

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

24

529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate of

25

Appealability in this Court but may seek a certificate from the Court of Appeals

26

under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the

27

Rules Governing Section 2254 Cases.

28

The Clerk shall terminate any pending motions, enter judgment in favor of
23

1

Respondent, and close the file.

2

IT IS SO ORDERED.

3
4

DATED:

5/20/2015

EDWARD J. DAVILA
United States District Judge

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For the Northern District of California

United States District Court

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