Thomas v. Santoro

Filing 24

ORDER DENYING 17 MOTION FOR EVIDENTIARY HEARING. Signed by Judge Beth Labson Freeman on 5/31/2017. (blflc4, COURT STAFF) (Filed on 5/31/2017)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 MARK R. THOMAS, Plaintiff, 8 KELLY SANTORO, [Re: ECF 17] Defendant. 11 United States District Court Northern District of California ORDER DENYING MOTION FOR EVIDENTIARY HEARING v. 9 10 Case No. 16-cv-05646-BLF 12 13 Before the Court is Petitioner Mark Thomas’ motion for evidentiary hearing in support of 14 his habeas petition. Mot., ECF 17. This motion was filed after the Response to Petition for Writ 15 of Habeas Corpus but Petitioner has yet to file his traverse. The Petition for Habeas Corpus seeks 16 relief based on Petitioner’s claim of ineffective assistance of counsel by failing to move in limine 17 to exclude the prosecution’s wireless phone expert on Kelly grounds and failing to call his own 18 experts. Petitioner argues that an examination of the defense trial attorney would be necessary to 19 evaluate his ineffective assistance of counsel claims. Id. at 1; Supp. Points and Authorities 20 (“Mem.”) 7-8, ECF 17-1. Respondent opposes the motion, contending that the threshold matter 21 under 28 U.S.C. § 2254(d) must first be assessed prior to determining whether an evidentiary 22 hearing is warranted. Opp’n 2, ECF 21. Respondent also points out that Petitioner fails to meet 23 the statutory requirement for an evidentiary hearing, including demonstrating that “a factual 24 predicate that could not have been previously discovered through the exercise of due diligence.” 25 28 U.S.C. § 2254(e)(2)(A)(ii). For the reasons set forth below, the Court DENIES the motion for 26 an evidentiary hearing. 27 28 I. BACKGROUND The following facts were undisputed at trial. At around 9:30 p.m. on March 23, 2009, two 1 men entered a Burger King in San Jose. Mem. 3. Dressed in black “hoodies,” wearing dark 2 gloves and masks, the two men displayed handguns and ordered the five employees to open a safe. 3 Id. Thereafter, the robbers exited out the front door with money in hand. Id. While the robbery 4 was underway, two witnesses in a vehicle observed the robbery taking place inside and followed 5 the robbers as they make their escape. Id. One of the witnesses saw the getaway car and 6 contacted a 911 dispatcher, providing information regarding the route, a description of the 7 getaway car, and the license plate number. Id. at 4. When the getaway car entered the ramp leading back onto Lawrence Expressway, it 9 suddenly stopped and the two robbers jumped out and ran into a foliage area adjacent to the ramp. 10 Id. Shortly thereafter, the getaway car continued on but the police eventually swarmed around the 11 United States District Court Northern District of California 8 car and arrested the driver, Ellamae Daigle. Id. Following the arrest of Ms. Daigle, officers 12 traveled to the scene where the two robbers exited her vehicle and conducted a manhunt to no 13 avail. Id. at 4-5. Petitioner claims he was not one of the robbers. See id. at 3. 14 On December 20, 2011, Petitioner was charged with five counts of second degree robbery. 15 Id. at 2. On January 23, 2013, a jury trial commenced in Santa Clara County Superior Court. Id. 16 At trial, Petitioner’s cell phone records were introduced, indicating numerous calls before 17 and after the robbery between his cell phone and the telephone numbers for his cousin, Gisiele 18 Thomas, his sister, Mary Magee, and Ms. Daigle, the getaway driver. Id. at 5. An expert, Jim 19 Cook, also testified based on his examination of Petitioner’s cell phone records. Id. Mr. Cook 20 testified that on the day of the robbery, Petitioner was in the area of his residence and Ms. Daigle’s 21 residence until 8:03 p.m., and was at the crime scene from 8:45 p.m. through around midnight. Id. 22 at 6. He further testified that Petitioner placed four calls to and from Ms. Daigle. Id. 23 24 25 On January 31, 2013, the jury returned verdicts of guilty on all counts. Id. at 1. On July 1, 2013, Petitioner was sentenced to “125 years to life consecutive to 75 years.” Id. Petitioner raised on appeal to the state appellate court the same ineffective assistance of 26 counsel claims made in the instant petition. However, the state appellate court denied him relief in 27 a reasoned decision. Ex. 8 to Response (“Cal. Ct. App. Order”), ECF 15-4. The state court first 28 found that the cell tower tracking technique had been widely accepted and admitted into evidence 2 1 in courts throughout the nation at the time of Petitioner’s trial in January 2013. Id. at 6-7. It then 2 concluded that if the trial counsel reasonably determined that challenging the expert evidence 3 would be futile, his failure to do so would not constitute deficient performance. Id. at 7. It further 4 noted that even assuming his trial counsel’s performance was deficient, Petitioner failed to show 5 prejudice in light of the other strong evidence in support of the guilty verdict. Id. at 8-9. In support of his federal habeas petition, Petitioner seeks to call the following witnesses at 6 an evidentiary hearing: (1) “his expert witness on historic cell phone record analysis used to locate 8 a particular cell phone at a particular time”; (2) “two criminal defense attorney’s [sic] regarding 9 effective cross examination of cell phone tracking experts”; and, (3) his “trial attorney . . . to 10 inquire as to why he did not call a[n] opposing cell phone tracking expert to the stand, why he 11 United States District Court Northern District of California 7 asked so few cross examination questions, why he did not object to certain assertions by the 12 prosecution expert and what strategy he had to deal with the cell phone location evidence in 13 general.” Mot. 2. 14 15 II. LEGAL STANDARD Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal 16 court cannot grant relief on any claim adjudicated on the merits by a state court unless that 17 adjudication: 18 19 20 21 22 23 24 25 26 27 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Under Cullen v. Pinholster, habeas review under AEDPA “is limited to the record that was before the state court that adjudicated the claim on the merits.” 563 U.S. 170, 180-81 (2011). The Ninth Circuit has recognized that Pinholster “effectively precludes federal evidentiary hearings” on claims adjudicated on the merits in state court. Gulbrandson v. Ryan, 738 F.3d 976, 993 (9th Cir. 2013); see also Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013) (“Although the Supreme Court has declined to decide whether a district court may ever choose to hold an evidentiary 28 3 1 hearing before it determines that § 2254(d) has been satisfied . . . an evidentiary hearing is 2 pointless once the district court has determined that § 2254(d) precludes habeas relief.”) (internal 3 quotation marks and citation omitted). 4 III. DISCUSSION 5 Petitioner presents several arguments in support of his motion for an evidentiary hearing, 6 most of which pertain to the merits of whether his trial counsel was ineffective. First, Petitioner 7 faults his trial counsel for not challenging the qualification of the prosecution’s expert witness to 8 testify on cell tower data analysis. Mem. 7. Second, Petitioner contends that having a rebuttal 9 expert witness, which his trial counsel did not call at trial, would have cast reasonable doubt on his guilt. Id. at 7-8. According to Petitioner, if counsel properly challenged the prosecution’s expert 11 United States District Court Northern District of California 10 testimony, the remaining evidence would have been insufficient to persuade the jury of a guilty 12 verdict. Id. at 10-11. 13 Respondent contends that this Court should not hold an evidentiary hearing because 14 Petitioner cannot meet the threshold burden of showing that the state court’s adjudication of his 15 claims was objectively unreasonable. Opp’n 2-3. Respondent further argues that Petitioner’s 16 motion also does not satisfy the standard set forth under 28 U.S.C. § 2254(e)(2). Id. at 4. 17 According to Respondent, Petitioner has made no attempt to “show that he has not failed to 18 develop the factual basis of the claim in state courts.” Id. at 5. Specifically, Respondent avers that 19 Petitioner fails to demonstrate “diligence” in developing the record in state court. Id. 20 A district court’s ability to conduct an evidentiary hearing was severely cabined by the 21 Supreme Court’s decision in Cullen v. Pinholster, 131 S. Ct. 1388 (2011); see, e.g., Hill v. 22 Sheldon, No. 11-2603, 2014 WL 700024, at *19 (N.D. Ohio Feb. 21, 2014) (noting that Pinholster 23 “greatly limits the circumstances where any federal evidentiary hearing would be warranted”); 24 Quezada v. Scribner, No. 04-7532, 2011 WL 3652245 (C.D. Cal. Aug. 19, 2011) (“Pinholster’s 25 limitation on evidentiary hearings has consequences for discovery in habeas cases.”). In 26 Pinholster, the Supreme Court held that “review under § 2254(d)(1) is limited to the record that 27 was before the state court that adjudicated the claim on the merits.” 131 S. Ct. at 1398. The 28 Supreme Court noted that it would “be strange to ask federal courts to analyze whether a state 4 1 court’s adjudication resulted in a decision that unreasonably applied federal law to facts not before 2 the state court.” Id. at 1399.1 Accordingly, after Pinholster, for claims that were adjudicated on 3 the merits in the state court, petitioners can rely only on the record before the state court in order 4 to satisfy the requirements of § 2254(d). This effectively precludes federal evidentiary hearings 5 for such claims because the evidence adduced during habeas proceedings in federal court could 6 not be considered in evaluating whether the claim meets the requirements of § 2254(d). 7 Gulbrandson, 738 F.3d at 993–94 (citation omitted); see also Martin v. Allison, No. 11-0870, 8 2014 WL 3058442 (E.D. Cal. July 3, 2014) (“[E]videntiary hearings are not granted unless it can 9 be determined from the existing record that the California courts acted [] unreasonably in arriving 10 at the determination on a legal or mixed fact/legal issue”). “An evidentiary hearing may be appropriate after Pinholster only if the district court first United States District Court Northern District of California 11 12 determines that the state court made an unreasonable application of federal law or made an 13 unreasonable determination of facts based on the record before it.” Grecu v. Evans, No. 07-0780- 14 EMC, 2014 WL 5395783, at *17 (N.D. Cal. Oct. 22, 2014). If such a determination is made, an 15 evidentiary hearing may be conducted to determine whether a petitioner has demonstrated a 16 constitutional violation (without giving any deference at that point to the state court decision). See 17 Pinholster, 131 S. Ct. at 1411 n.20 (“Because Pinholster has failed to demonstrate that the 18 adjudication of his claim based on the state-court record resulted in a decision ‘contrary to’ or 19 ‘involv[ing] an unreasonable application’ of federal law, a writ of habeas corpus ‘shall not be 20 granted’ and our analysis is at an end.”) (quoting 28 U.S.C. § 2254(d)). There may be an 21 exception to Pinholster where the state court did not reject the petitioner’s claims on the merits, 22 but instead relied upon a state procedural bar that is either not independent or adequate or 23 otherwise was excused. Grecu, 2014 WL 5395783, at *17 (citation omitted). Here, however, the state court reached the merits of Petitioner’s claims. Cal. Ct. App. 24 25 Order. Pinholster thus does not permit an evidentiary hearing absent the showing discussed 26 above. See Gulbrandson, 738 F.3d at 993 (“Thus, for claims that were adjudicated on the merits 27 1 28 Similarly, by its express terms, review under § 2254(d)(2) is also limited to the record before the state court. 5 1 in state court, petitioners can rely only on the record before the state court in order to satisfy the 2 requirements of § 2254(d)”). Accordingly, an evidentiary hearing is not warranted until and 3 unless Petitioner makes a threshold showing that the state court made an unreasonable application 4 of federal law or made an unreasonable determination of facts based on the record before it. Earp 5 v. Ornoski, 431 F.3d 1158, 1166-67 (9th Cir. 2005) (noting that until the petitioner can satisfy an 6 exception to 28 U.S.C. § 2254(d), the petitioner is not entitled to an evidentiary hearing on the 7 merits of his claims). 8 As noted by Respondent, Petitioner bears a heavy burden to show that his ineffective assistance of counsel claims meet the § 2254(d) requirements, in light of the doubly-deferential 10 standard under AEDPA and the Strickland standard of review. Harrington v. Richter, 562 U.S. 11 United States District Court Northern District of California 9 86, 105 (2011); Opp’n 3. In the motion for evidentiary hearing, Petitioner fails to address how he 12 has met the § 2254(d) threshold showing as required in Pinholster – that the state court made an 13 unreasonable application of federal law or made an unreasonable determination of facts based on 14 the record before it. Accordingly, the Court denies the motion for an evidentiary hearing on the 15 basis that Petitioner has yet to show that 28 U.S.C. § 2254(d) applies. 16 Petitioner’s motion for an evidentiary hearing is not warranted on the additional basis that 17 he has not demonstrated that he has met the statutory requirements set forth in 28 U.S.C. § 18 2254(e)(2). 19 20 21 If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-(A) the claim relies on-- 23 (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or 24 (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and 22 25 26 27 28 (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). 6 In accordance with the statutory requirement, Petitioner needs to first demonstrate that his 1 2 failure to develop the factual basis of a claim in State court proceedings is excused under the 3 express exceptions set forth in § 2254(e)(2)(A)(i) or (ii) and (B). The Supreme Court has 4 interpreted “failed” to mean “lack of diligence or some other fault.” Williams v. Taylor, 529 U.S. 5 420, 434 (2000). This Petitioner neglects to address in his motion. Nowhere in Petitioner’s 6 motion or the attached exhibits does he show that he made a reasonable attempt, in light of the 7 information available at the time, to investigate and pursue claims in state court, that he made a 8 request for evidentiary hearing that the state court denied, or that the efforts to discover the facts 9 now sought by Petitioner would have been in vain. See § 2254(e)(2)(A)(ii); Williams, 529 U.S. at 435. Next, Petitioner also fails to show that the requested hearing intends to establish a “factual 11 United States District Court Northern District of California 10 predicate that could not have been previously discovered through the exercise of due diligence.”2 12 § 2254(e)(2)(A)(ii); see Henry v. Ryan, 720 F.3d 1073, 1085 (9th Cir. 2013) (affirming the denial 13 of an evidentiary hearing because “the facts underlying [the petitioner’s] claim could have been 14 previously discovered through diligence on [his] part”). Moreover, Petitioner seeks to establish 15 facts through an evidentiary hearing merely to bolster the same factual bases for his ineffective 16 assistance of counsel claims submitted to the state court. Cal. Ct. App. Order 6. Such facts cannot 17 constitute a different factual predicate “that could not have been previously discovered through the 18 exercise of due diligence.” See Williams, 529 U.S. at 436 (noting that § 2254(e)(2) provides 19 petitioners an opportunity to obtain an evidentiary hearing where the legal or factual basis of the 20 claims did not exist at the time of state-court proceedings). Petitioner also has not put forth a 21 convincing claim of innocence as required by the statute. Id. § 2254(e)(2)(B). Given that Petitioner fails to meet his burden in showing that an evidentiary hearing is 22 23 warranted at this stage, the Court DENIES his motion. 24 25 IV. ORDER For the foregoing reasons, the Court DENIES the motion for an evidentiary hearing. 26 27 2 28 Petitioner does not allege that there is now a new rule of constitutional law made retroactive that was previously unavailable to Petitioner. 7 1 2 3 4 Dated: May 31, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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