Simpson v. Swarthart

Filing 41

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Hon. Lucy H. Koh on 8/5/2015. (sms, COURT STAFF) (Filed on 8/5/2015)

2
3

FILE

4

AUG 05 2015

5

,..~Ji,M~~D W. WI~KI G

-vmr~ ~I r~l~f~~ cxB R[w/A

6

AN JOSE

7
8
IN THE UNITED STATES DISTRICT COURT

9
FOR THE NORTHERN DISTRICT OF CALIFORNIA
10
II

TIMOTHY TYRONE SIMPSON,

I2
13

14

Petitioner,

)
)
)

)
)

v.
GARY SWARTHOUT,
Respondent.

I5

)
)
)
)
)

No. C I4-I060 LHK (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY

I6
Petitioner, a state prisoner proceeding prose, filed a petition for writ of habeas corpus
I7

pursuant to 28 U.S.C. § 2254. Respondent was ordered to show cause why the petition should
I8

not be granted. 1 Respondent has filed an answer. Petitioner has filed a reply, which the court

I9

construes as a traverse. Having reviewed the briefs and the underlying record, the court
20
concludes that petitioner is not entitled to relief, and DENIES the petition.
2I

PROCEDURAL IDSTORY

22
On October 6, 20 I 0, petitioner was convicted after a jury trial of a lewd or lascivious act
23
on a child under the age of I4 (Victim 2); sexual penetration by force, violence, duress, menace
24
or fear of bodily injury (Victim I); rape by force, violence, duress, menace or fear (Victim I);
25
and sexual battery (Victim 3). As to the charges regarding Victim I and Victim 2, the jury found
26

27
28

1

This case was reassigned to the undersigned judge on October 9, 20I4, after respondent
declined to consent to magistrate judge jurisdiction.
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
P:\PRO-SE\LHK\HC.l4\Simpson060hcden. wpd

true multiple victims enhancements. Petitioner admitted a prior strike and a prior felony
2

conviction. On November 8, 20IO, the trial court sentenced petitioner to a total term of90 years

3

to life plus I5 years, and 90 days in county jail for the misdemeanor sexual battery conviction.

4

On September 26, 20 II, the California Court of Appeal reversed and remanded the case.

5

It instructed the trial court to reduce petitioner's convictions regarding Victim I to the lesser

6

included offenses of assault with intent to commit sexual penetration (count 2) and assault with

7

intent to commit rape (count 3), and re-sentence petitioner. On November 30, 20II, the

8

California Supreme Court denied review.

9

On September I 0, 20 I2, the trial court re-sentenced petitioner, as instructed, to a total

10

term of33 years in prison. On November I4, 2013, the California Court of Appeal affirmed. On

II

January 2I, 20I4, the California Supreme Court denied review.

I2
I3
I4
I5
I6

Petitioner filed the underlying federal habeas petition on March 6, 20I4.
BACKGROUND

The following facts are taken from the Court of Appeal's opinion in People v. Simpson,
No. H036255, 20II WL 4436758 (Cal. App. Sept. 26, 20II).
In May 2008, Victim I was I6 years old. !d. at *2. At that time, Victim I was living

I7

with her aunt and legal guardian, A. !d. Victim I referred to petitioner as "Uncle Tim." !d.

I8

Petitioner, who is Victim 2's father, sometimes lived with A. and Victim I. !d. On May II,

I9

2008, Victim I was sleeping on the sofa, and awoke to find petitioner, who was naked, on top of

20

her. She felt his fingers inside her vagina, noticed her pants and underwear had been removed,

2I

and her legs had been spread apart. !d. Victim I felt petitioner insert his penis about a quarter of

22

the way into her vagina. !d. Victim I told petitioner to get off, and pushed him away. !d.

23

Victim I grabbed her clothes and ran to her bedroom. !d. Petitioner entered her bedroom and

24

told her that no one would believe her if she said anything and she should not tell anyone what

25

happened. !d. Later that morning, Victim I told A. what had happened. !d. Victim I told A.

26

that Victim I would not report it to the police, however, because Victim I was embarrassed and

27

was worried about splitting up the family. !d.

28

On June 13, 2009, Victim 2, who was I3 at the time of trial, had fallen asleep on the
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
P:\PRO-SE\LHK\HC.l4\Simpson060hcden. wpd
2

couch. !d. at *3. Around midnight or I :00 a.m., Victim 2 woke up and felt petitioner touching
2

her thigh over her clothing, and moving his hand toward her crotch. !d. Victim 2 was not sure

3

whether petitioner's hand reached her crotch, but she kicked her legs at his hands and petitioner

4

walked away. !d. Victim 2 fell back asleep after that. !d. When Victim 2 woke up, she told her

5

mother what happened, and told her mother that her "private spot" itched. !d.

6

Victim 3 was visiting Victim I in June 2009. !d. One night, Victim 3 was watching

7

television with Victim I, but got tired and went to sleep in Victim 1's bedroom. !d. Around

8

4:00 a.m., Victim 3 woke up and petitioner was on the bed next to her, rubbing her bottom

9

through her pajamas. !d. at *4. Victim 3 believes petitioner did so for about 15 seconds, but

I0

when she started to get up, petitioner quickly left the room. !d. Victim 3 went out to the living

II

room where Victim I was sleeping, and slept next to her. !d. Between 7:00 and 8:00 a.m.,

12

Victim 3 woke Victim I up and explained to her what had happened. !d.

I3

At trial, a prior victim testified that she met petitioner in I997 when she was IS years old

I4

at an apartment complex with her friends. !d. at *5. After petitioner drove the victim and her

IS

friends to get food, petitioner told the victim he wanted to talk to her. /d. She agreed, thinking

16

that it would be a brief conversation. !d. Everyone except the victim and petitioner got out of

I7

the van, and petitioner drove down a few streets away from the apartment complex. !d. at *5-6.

I8

Petitioner asked the victim if she wanted to make some money, and the victim agreed as long as

I9

it was legal. !d. Petitioner drove onto the freeway and pulled over into a sparsely populated

20

neighborhood. !d. Petitioner began touching the victim's leg, and told her that she had to show

2I

her loyalty. !d. The victim began to scream and cry, and petitioner told her that someone had

22

sent him to kill her, and that she needed to prove her loyalty. !d. Petitioner raped the victim, and

23

afterward, warned her not to say anything to anyone. !d.

24
25
26

The court will provide further relevant facts as necessary in the discussion section of this
order.

STANDARD OF REVIEW

27

This court may entertain a petition for writ of habeas corpus "in behalf of a person in

28

custody pursuant to the judgment of a State court only on the ground that he is in custody in
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
P:\PRO-SE\LHK\HC.l4\Simpson060hcden.wpd
3

violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The
2

petition may not be granted with respect to any claim that was adjudicated on the merits in state

3

court unless the state court's adjudication of the claim: "(I) resulted in a decision that was

4

contrary to, or involved an unreasonable application of, clearly established Federal law, as

5

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

6

based on an unreasonable determination of the facts in light ofthe evidence presented in the

7

State court proceeding." 28 U.S.C. § 2254(d).

8
9

"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of

10

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

II

indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 4I2-13 (2000). "Under the

I2

'reasonable application clause,' a federal habeas court may grant the writ if the state court

13

identifies the correct governing legal principle from [the] Court's decisions but unreasonably

14

applies that principle to the facts of the prisoner's case." /d. at 413.

15

"[A] federal habeas court may not issue the writ simply because the court concludes in its

I6

independent judgment that the relevant state-court decision applied clearly established federal

17

law erroneously or incorrectly. Rather, the application must also be unreasonable." /d. at 411.

18

A federal habeas court making the "unreasonable application" inquiry should ask whether the

I9

state court's application of clearly established federal law was "objectively unreasonable." /d. at

20

409.

2I

The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is

22

in the holdings (as opposed to the dicta) of the United States Supreme Court as of the time ofthe

23

state court decision. /d. at 4I2. Clearly established federal law is defined as "the governing

24

legal principle or principles set forth by the [United States] Supreme Court." Lockyer v.

25

Andrade, 538 U.S. 63, 71-72 (2003).

26

DISCUSSION

27

Petitioner raises the following claims in his petition: (I) the trial court erred in admitting

28

evidence of a prior sexual offense; (2) the trial court erred in admitting evidence of child sexual
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
4
P:\PRO-SE\LHK\HC.l4\Simpson060hcden.wpd

abuse accommodation syndrome (CSAAS); and (3) trial counsel rendered ineffective assistance
2

by (a) failing to state all possible grounds to exclude CSAAS evidence, and (b) failing to object

3

to the imposition of consecutive sentences. 2

4

I.

5

Admission of prior sexual offense evidence
Petitioner claims that the trial court should not have permitted a prior victim to testifY

6

about facts underlying petitioner's 1997 conviction for unlawful sexual intercourse by a person

7

over 21 years old with a minor under 16 years old. Specifically, petitioner argues that the

8

evidence should have been excluded as overly prejudicial. Petitioner states that the only

9

similarity between the underlying convictions and the 1997 offense was that the victim in the

10
II
12

1997 offense was also underage at the time ofthe offense.
The California Court of Appeal considered this claim and rejected it. Simpson, 20 II WL
4436758, at *8.

I3

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

14

constitutional guarantee is violated or the error is of such magnitude that the result is a denial of

15

the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021,

I6

I 03I (9th Cir. I999). The United States Supreme Court "has not yet made a clear ruling that

I7

admission of irrelevant or overtly prejudicial evidence constitutes a due process violation

I8

sufficient to warrant issuance ofthe writ." Holley v. Yarborough, 568 F.3d I09I, IIOI (9th Cir.

I9

2009). In fact, the United States Supreme Court has expressly left open the question of whether

20

admission of propensity evidence violates due process. Estelle v. McGuire, 502 U.S. 62, 75 n.5

21

(1991). Based on the United States Supreme Court's reservation ofthis issue as an "open

22

question," the Ninth Circuit has held that a petitioner's due process right concerning the

23

admission of propensity evidence is not clearly established as required by AEDP A. See Alberni

24

v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006); accord Mejia v. Garcia, 534 F.3d I036,

25

I 046 (9th Cir. 2008) (reaffirming Alberni and stating that there is "no Supreme Court precedent

26
27
28

2

Although petitioner raised two additional claims in his petition, on June 13, 2014, the
court dismissed those claims (Claims 4 and 5) for failure to state a cognizable federal habeas
claim. (Docket No. 5.)
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
5
P:\PRO-SE\LHK\HC.I4\Simpson060hcden.wpd

establishing that admission of propensity evidence, as here, to lend credibility to a sex victim's
2

allegations, and thus indisputably relevant to the crimes charged, is unconstitutional."). As

3

federal courts may grant habeas relief only if a state court decision is contrary to, or an

4

unreasonable application of clearly established federal law as determined by the United States

5

Supreme Court, see 28 U.S.C. § 2254(d)(l), there can be no federal habeas relief on this claim

6

because there is no clearly established federal law. Therefore, a state court's rejection of such a

7

claim cannot be grounds for federal habeas relief. Larson v. Palmateer, 515 F.3d 1057, 1066

8

(9th Cir. 2008).

9

Furthermore, courts have "routinely allowed propensity evidence in sex-offense cases,

10

even while disallowing it in other criminal prosecutions." United States v. LeMay, 260 F.3d

II

I018, I025 (9th Cir. 2001)."

I2

In sum, because the United States Supreme Court expressly has left open the question

13

presented in the petition, the state court's rejection of petitioner's claim that the trial court's

I4

admission of propensity evidence under section II 08 violated his due process rights was not

15

contrary to, or an unreasonable application of, clearly established United States Supreme Court

I6

law. 3

I7

II.

I8

Admission of CSAAS evidence
Petitioner claims that the trial court violated his right to due process when it allowed Carl

I9

Lewis, an expert on the subject of CSAAS, to testifY about CSAAS because the testimony was

20

improper and irrelevant expert testimony, and was overly prejudicial.

2I

At trial, Lewis testified that CSAAS "is a tool used by those dealing with child sexual

22
23
24
25
26
27
28

3

To the extent petitioner asserts that Section II 08 is unconstitutional, that claim is not
properly before the court because petitioner raises it for the first time in his traverse. (Traverse
at 3-4.) A traverse is not the proper pleading to raise additional grounds for relief. In order for
the respondent to be properly advised of additional claims, they should be presented in an
amended petition or in a statement of additional grounds. Cacoperdo v. Demosthenes, 37 F.3d
504, 507 (9th Cir. I994). Nonetheless, even assuming this claim is properly before the court, it
is without merit. There is no clearly established law holding that Section II 08 is
unconstitutional. Moreover, courts have considered the constitutionality of Section I1 08 or its
federal counterpart, Rule 414, and have consistently upheld it. See, e.g., LeMay, 260 F.3d at
I025; People v. Falsetta, 2I Cal. 4th 903 (1999).
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
6
P:\PRO-SE\LHK\HC.l4\Simpson060hcden.wpd

abuse intervention to not automatically rule out the possibility of such abuse due to preconceived
2

notions of how a child victim should behave. There are five categories which comprise CSAAS:

3

secrecy; helplessness; entrapment and accommodation; delayed, conflicted, unconvincing

4

disclosure; and retraction." Simpson, 2011 WL 4436758, at *6. Lewis described each category,

5

and explained that the categories were "intended to assist in explaining unexpected

6

circumstances which occur regularly in cases of child sexual abuse." !d. at *7.

7

The California Court of Appeal rejected petitioner's claim. It stated that petitioner's

8

argument that expert testimony on CSAAS was unnecessary because the behavior of child abuse

9

victims was common knowledge of jurors is contrary to California case law. !d. at * 13. Further,

10

the state appellate court recognized that "testimony concerning CSAAS was helpful in

11

explaining the different stages of reaction that some victims progress through. Jurors may have

12

an understanding that victims of abuse are reluctant to report the offense, but they may not

13

understand the reasons for the delayed reporting, or why the victims did not retaliate.

14

Accordingly, the trial court could have reasonably found that the expert testimony would add to

15

the jurors' common fund of information regarding the reactions of abuse victims." !d. (citation

16

omitted). Finally, the state appellate court rejected petitioner's claim that the admission was

17

overly prejudicial. !d. at * 14. It reasoned that the testimony was not specific to the facts of this

18

case, but as a general explanation of how child abuse victims may act. !d. It also noted that the

19

trial court specifically instructed the jury twice on the proper use of the evidence. !d.

20

Under federal review, "[t]he admission of evidence does not provide a basis for habeas

21

relief unless it rendered the trial fundamentally unfair in violation of due process." Holley, 568

22

F.3d at 1101. Petitioner cites to no United States Supreme Court authority to support his claim

23

that the trial court's decision to admit the CSAAS evidence violated his right to due process.

24

In addition, the Ninth Circuit has found that the admission ofCSAAS evidence in

25

child-sexual-abuse cases in federal cases is proper when "the testimony concerns general

26

characteristics of the victims and is not used to opine that a specific child is telling the truth."

27

Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir. 2003) (citing United States v. Bighead, 128 F.3d

28

1329 (9th Cir. 1997) (per curiam)). Here, the trial court only allowed the CSAAS expert to
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
7
P:\PRO-SE\LHK\HC.l4\Simpson060hcden. wpd

testify about the general nature of the syndrome. Simpson, 2011 WL 4436758, at * 14. The
2

expert explained to the jury that he did not interview any of the witnesses, investigate this case,

3

or review any reports or transcripts from this case. Id. at *7. Thus, the CSAAS testimony

4

complied with the limits set forth by the Ninth Circuit in Brodit, and the admission of the

5

testimony did not violate petitioner's due process rights. See, e.g., Manson v. Grounds, No. 12-

6

6043 CRB (PR), 2014 WL 688614, at *7-8 (N.D. Cal. Feb. 20, 2014) (rejecting petitioner's

7

challenge to the admission of CSAAS evidence as foreclosed by Brodit).

8
9
10
11

Accordingly, the state court's rejection ofthis claim was not contrary to, or an
unreasonable application of, clearly established United States Supreme Court law.
III.

Ineffective assistance of counsel
Petitioner alleges that counsel rendered ineffective assistance by: (a) failing to state all

12

possible grounds for the exclusion ofCSAAS evidence, and (b) failing to object to the

13

imposition of consecutive sentences.

14

A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth

15

Amendment right to counsel, which guarantees not only assistance, but effective assistance of

16

counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). Normally, in order to prevail on a

17

Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First,

18

he must establish that counsel's performance was deficient, i.e., that it fell below an "objective

19

standard ofreasonableness" under prevailing professional norms. Jd. at 687-88. Second, he

20

must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a

21

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

22

would have been different." Jd. at 694. A reasonable probability is a probability sufficient to

23

undermine confidence in the outcome. Jd.

24

A.

25

Petitioner does not elaborate on his claim. A review of the record shows that counsel

Failing to state all possible grounds for the exclusion ofCSAAS evidence

26

objected to the inclusion of CSAAS evidence on the basis of relevance and California Evidence

27

Code§ 352. (Resp. Ex. 3 at 47.) During a hearing on the prosecution's motion to admit the

28

CSAAS evidence, counsel also commented that expert testimony on CSAAS was unnecessary
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
8
P:\PRO-SE\LHK\HC.l4\Simpson060hcden. wpd

because the subject matter was not beyond the common knowledge of the jurors. (!d. at 47-48.)
2
3

However, counsel did not formally object on this basis.
Petitioner does not specifY what other grounds counsel should have raised to exclude the

4

CSAAS evidence. In addition, on direct appeal, petitioner conceded that the CSAAS evidence

5

"was in accordance with guidelines set forth in applicable current California caselaw." Simpson,

6

20II WL 4436758, at* 13. Thus, petitioner fails to establish that defense counsel's failure to

7

raise all possible grounds for the exclusion of CSAAS testimony fell below an objective standard

8

of reasonableness. See Toomey v. Bunnell, 898 F.2d 741, 743 (9th Cir. I990) (stating that a

9

habeas petitioner has the burden of showing that counsel's performance was deficient); see also

IO

Jones v. Gomez, 66 F.3d 199,205 (9th Cir. I995) (concluding that conclusory or bald allegations

II

of ineffective assistance of counsel do not warrant federal habeas relief).

I2

Even assuming that counsel's performance was somehow deficient by failing to object to

I3

the CSAAS evidence on other unspecified grounds, petitioner also has the burden to show that

I4

counsel's performance was prejudicial. See Rios v. Rocha, 299 F.3d 796, 813 n.23 (9th Cir.

I5

2002) (rejecting two ineffective assistance of counsel claims based on petitioner's failure to

I6

produce evidence of prejudice). Petitioner has not done so. The state appellate court rejected

I7

petitioner's ineffective assistance of counsel claim, stating that even if counsel had formally

I8

objected to the CSAAS testimony on the basis that expert testimony is no longer needed on this

I9

subject, the objection would have been meritless. Simpson, 20II WL 4436758, at *13. Further,

20

petitioner has failed to set forth any evidence suggesting that, had petitioner's counsel raised any

2I

other ground for the exclusion ofCSAAS evidence, the outcome oftrial would have been

22

different.

23
24

Accordingly, the state court's rejection of this claim was not contrary to, or an
unreasonable application of, clearly established United States Supreme Court law.

25

B.

Failure to object to imposition of consecutive sentences

26

Petitioner claims that counsel rendered ineffective assistance when counsel failed to

27

object to the imposition of consecutive sentences as to counts 2 and 3, both of which concerned

28

Victim I, imposed by the trial court after remand. Specifically, petitioner argues that counsel
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
9
P:\PRO-SE\LHK\HC.14\Simpson060hcden. wpd

should have argued that the trial court failed to establish a factual predicate for imposing
2
3

consecutive sentences.
The California Court of Appeal considered and rejected this claim. Applying California

4

law, it stated that in order for a trial court to sentence a defendant to a consecutive term under

5

California Penal Code§ 667.6(c), the trial court must state its reasons for the record. People v.

6

Simpson, No. H038847, 2013 WL 60I9889, *5-6 (Cal. App. Nov. I3, 2013). Further, a

7

consecutive sentence is proper even if supported by only one aggravating factor. !d. at *6.

8

Reviewing the record, the state appellate court concluded that the trial court expressly stated that

9

it was choosing to sentence petitioner under section 667.6(c), and was going to impose a

I0

consecutive term "based on the fact that [the offenses] were separately manifested intents to do

II

separate acts of violence against a single victim." !d. at *7. The state appellate court also noted

I2

that even if the trial court's statement of reasons was insufficient, because "numerous

I3

aggravating factors" were present, there was no reasonable probability that the outcome would

I4

have been different even if counsel had objected to an insufficient statement of reasons. !d.

IS

As an initial matter, the United States Supreme Court has not decided what standard

I6

should apply to counsel's performance in non-capital sentencing proceedings. Cooper-Smith v.

I7

Palmateer, 397 FJd I236, I244 (9th Cir. 2005). Strickland declined to '"consider the role of

I8

counsel in an ordinary sentencing, which ... may require a different approach to the definition

I9

of constitutionally effective assistance,"' and no later United States Supreme Court decision has

20

done so, either. !d. (quoting Strickland, 466 U.S. at 686). Consequently, there is no clearly

2I

established United States Supreme Court precedent governing ineffective assistance of counsel

22

claims in a noncapital sentencing context. See Davis v. Grigas, 443 F.3d II 55, II 58-59 (9th Cir.

23

2006); Cooper-Smith, 397 F.3d at I244-45; cf Daire v. Lattimore, 780 F.3d I2I5, I22I-22 (9th

24

Cir. 20I5) (intimating that Davis and Cooper-Smith's conclusion should be re-examined in light

25

of post-Strickland United States Supreme Court cases, but recognizing that "we are bound by

26

prior panel opinions and can only reexamine them when the reasoning or theory of our prior

27

circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher

28

authority") (internal quotation marks omitted). Because there is no clearly established United
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
I0
P:\PRO-SE\LHK\HC.I4\Simpson060hcden.wpd

States Supreme Court standard to analyze ineffective assistance of counsel claims in a noncapital
2

sentencing, petitioner is not entitled to habeas relief on this ground.
Alternatively, even assuming that Strickland applies to this claim, petitioner cannot

3
4

demonstrate that counsel's performance was deficient, or that petitioner was prejudiced. In light

5

of the state appellate court's conclusion that, based on state law, the trial court's statement of

6

reasons was sufficient to impose consecutive sentencing, and that any objection trial counsel

7

could have made was unlikely to change the outcome, the court cannot say that there is a

8

reasonable probability that, but for counsel's failure to object, the result ofthe proceeding would

9

have been different.

10
11

Accordingly, the state court's rejection of this claim was not contrary to, or an
unreasonable application of, clearly established United States Supreme Court law.

12

CONCLUSION

13

The petition for writ of habeas corpus is DENIED. 4

14

The federal rules governing habeas cases brought by state prisoners require a district

15

court that denies a habeas petition to grant or deny a certificate of appealability ("COA'') in its

16

ruling. See Rule 11(a), Rules Governing§ 2254 Cases, 28 U.S.C. foil.§ 2254. Petitioner has

17

not shown "that jurists of reason would find it debatable whether the petition states a valid claim

18

of_the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473,484 (2000).

19

Accordingly, a COA is DENIED.
The clerk is instructed to enter judgment in favor of respondent, terminate all pending

20
21

motions, and close the file.

22

Ill

23
24
25
26
27
28

4

Petitioner's motion for an evidentiary hearing and motion to supplement the reply are
denied. In light of the court's denial of this federal habeas petition, the request for an evidentiary
hearing is moot. In petitioner's motion to supplement the reply, petitioner asserts that he has
new evidence to support his claim that his right to due process was violated. Petitioner provides
a copy of his "new evidence" by attaching a copy of California Senate Bill No. 1058, which was
approved, and codified in California Penal Code§ 1473. California Penal Code§ 1473 sets forth
who is authorized to prosecute a state writ of habeas corpus. It is not relevant to this federal
proceeding. Thus, petitioner's motion to supplement the reply is denied.
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
11
P:\PRO-SE\LHK\HC.I4\Simpson060hcden.wpd

IT IS SO ORDERED.
2

DATED:

8/5 j ?-D I )
I

I

3
4

5
6

7
8
9

IO
II
I2
13

I4
I5

I6
I7

I8
I9
20

2I
22
23

24
25

26
27
28
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
P:\PRO-SE\LHK\HC.l4\ Simpson060hcden. wpd
I2