Thomas v. Santoro
Filing
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ORDER DENYING 1 , 2 PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Beth Labson Freeman on 11/30/2018. (blflc1S, COURT STAFF) (Filed on 11/30/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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MARK R. THOMAS,
Plaintiff,
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v.
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KELLY SANTORO,
Defendant.
United States District Court
Northern District of California
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Case No. 16-cv-05646-BLF
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY
[Re: ECF 1, 2]
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Mark R. Thomas (“Petitioner”), a state prisoner represented by counsel, filed a petition for
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writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state criminal conviction of
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five counts of California Penal Code § 211–212.5(C)(second degree robbery). Pet., ECF 1; see
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also ECF 2. Petitioner asserts that his Sixth Amendment rights were violated because his trial
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counsel provided him ineffective assistance of counsel. Respondent Kelly Santoro filed an
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answer, addressing the merits of Petitioner’s claims, and exhibits in support thereof. ECF 14
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(“Resp.”), 15-1–4. Petitioner filed a traverse in response. ECF 29. Having reviewed the briefs
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and the underlying record, the Court concludes that Petitioner is not entitled to relief and DENIES
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the petition for writ of habeas corpus.
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I.
BACKGROUND
Petitioner was sentenced on July 1, 2013, to 125 years to life, consecutive to a determinate
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term of 75 years, in state prison after a jury in Santa Clara County Superior Court convicted him
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of five counts of second-degree robbery and, in a bifurcated trial, the court found true allegations
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that petitioner had three prior strike convictions, one prior serious felony, and one prior prison
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term. ECF 15-1, Clerk’s Transcript (“CT”) 322–26, 332–34, 397–401; ECF 15-2, Reporter’s
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Transcript (“RT”) 639.
Petitioner filed a notice of appeal on August 5, 2013. CT 404. On February 13, 2014,
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Petitioner filed a petition for habeas corpus to the California Court of Appeal, ECF 15-4, Ex. 4,
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which the court considered with Petitioner’s appeal, id., Ex. 5. On May 5, 2015, the Court of
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Appeal affirmed the judgment, id., Ex. 8 (“Op.”), and denied the petition for writ of habeas
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corpus, id., Ex. 10. On July 8, 2015, the California Supreme Court denied Petitioner’s petition for
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review and his petition for writ of habeas corpus. Id., Exs. 11, 12.
Petitioner filed the instant habeas petition on October 5, 2016.
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II.
SUMMARY OF EVIDENCE
In its written opinion, the California Court of Appeal fairly and accurately summarized the
factual background of Petitioner’s case at trial as follows:
United States District Court
Northern District of California
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A. Prosecution Case
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At about 9:00 p.m. on March 23, 2009, Nelson Martinez, Omar Nava Carrillo, Raul
Martinez, Marisela Maria Mercado Vargas, and Maria Del Pilar Garduno were
working at a Burger King restaurant in San Jose when two armed men entered. One
of them pushed Carrillo towards the office and demanded money from the safe.
Carrillo gave him $7,930. According to Carrillo, this robber was wearing black
pants, a blue sweatshirt, and gloves. Though Carrillo could not see the robbers’
faces, he described their skin as “dark.” Neither robber was wearing a hat.
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The other robber grabbed Raul’s[FN3] back, led him to the cash register, and told
him to open it. According to Raul, the robber’s face was covered, and he was wearing
gloves and a black jacket. When Raul was unable to open the cash register, the
robber demanded Raul’s wallet. Raul gave him his wallet, which contained $400.
The robber then told Raul to go to the back of the restaurant. Garduno saw the armed
robber behind Raul, but could not see his face. The robber ordered Garduno, Nelson,
and Vargas to go to the back of the restaurant. According to Nelson, the robbers
were wearing long, black rain coats and dark blue or black pants. He could not tell
what race they were, but they were taller than he was, and big and “more robust.”
Vargas did not know the race of the robbers.[FN4] They were both wearing a black,
hooded sweatshirt or jacket, and gloves.
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[FN3] We refer to Raul Martinez and Nelson Martinez by their first names to
avoid confusion
[FN4] On the night of the robbery, Nelson told Officer Donald Guerra that
the robbers were African American men.
Brandon Doe and Jesus Cuevas were in their car at the drive-thru window of the
Burger King when the robbery occurred. After Garduno gave Brandon part of his
order, he saw a masked man pointing a gun at her. The robber then pushed Garduno
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United States District Court
Northern District of California
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to the next room and ripped the phone off the wall. Brandon called 911. While
talking to the 911 operator, Brandon saw the two robbers exit the restaurant. As
Brandon followed them in his van, the robbers ran to a Pontiac Grand Prix which
was parked in a red zone. After the robbers jumped into the car, it took off. Brandon
followed the car onto the northbound freeway.
As Brandon was following the car, he gave dispatch the license plate number. The
car eventually exited the freeway and stopped abruptly on the shoulder of the offramp. Brandon went around the car and stopped in front of it. Two doors opened,
and two people exited the car and ran through the ivy patch. After the car continued
down the off-ramp and entered a gas station, Brandon followed. Ellamae Daigle
exited the car and asked Brandon why he was following her. He replied, “You know
why I’m following you. The police are on their way.” The police arrived a minute
later. They searched the ivy patch, but they were unable to locate the robbers.
According to Brandon, the robbers were African American and similarly dressed,
though one wore a hood while the other wore a beanie. Cuevas described them as
African American men who were wearing dark clothing with a hooded top.
When Lieutenant Keith Miller responded to the scene, he observed Daigle talking on
her cell phone outside her car. He arrested Daigle. Lieutenant Jason Ta searched
Daigle’s cell phone and found defendant’s phone number. He also searched the car
and found a black beanie cap in the front passenger seat.
Cathleen Trowbridge, a criminalist, testified as an expert in the area of forensic
analysis of DNA and identification of persons. The results of a DNA test of the
beanie showed that defendant was a potential contributor. According to Trowbridge,
“[t]he probability that somebody who didn’t leave any DNA on that hat, still being
considered a potential contributor [was] . . . one in 300 billion in the African
American population, one in 1.2 trillion in the Caucasian population, and one in 5.6
trillion in the Hispanic population.”
On August 5, 2009, Lieutenant Miller went to Gesiele Thomas’s apartment to look
for defendant. Thomas was defendant’s cousin and lived near the Burger King that
was robbed. Lieutenant Miller told Thomas that he had a warrant for defendant’s
arrest and asked if she knew about it. She responded that “family talk was that he
had got in trouble . . . with that girl.” Lieutenant Miller asked if he could search her
residence. She consented to the search, but defendant was not there. He also asked
her whether she had received a phone call from defendant. She eventually said that
defendant called her that night when he “got in trouble . . . .” Thomas told him that
she received a call from defendant around 11:00 p.m. and “he had told her he had
been in trouble with the girl and wanted someplace to go. And she told him, that he
was not welcome at her apartment.” Defendant also told her that “he was going to
have to go on the run and not to call him on his cell phone.” Thomas also stated that
she had not seen defendant since March.
Lieutenant Miller reviewed defendant’s phone records. Defendant called Thomas at
12:49 a.m. on March 24, 2009, for one minute and 39 seconds. There were also more
than 10 calls from defendant to his sister Mary Magee on the evening of the robbery.
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At trial, Thomas did not remember the details of the interview with Lieutenant Miller
or phone calls from either defendant or his sister on March 23, 2009. Magee could
not remember at trial whether she had received phone calls from defendant on the
night of the robbery.
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United States District Court
Northern District of California
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While defendant was in jail awaiting trial, he called Magee.[FN5] During the May
26, 2011 phone call, he asked Magee to contact Thomas and ask her to tell the police
that he was at Thomas’s house on the night of the robbery. In a conversation in
December 2011, defendant and Magee referred to the preliminary hearing and
Thomas’s potential testimony. Magee understood that when defendant referred to
the girl, he was referring to Daigle.
[FN5] Three of the taped conversations between defendant and Magee were
played for the jury.
Jim Cook testified as an expert in the area of cellular technology and cell phone
records analysis. After reviewing the subscriber information related to the cell
phones of defendant and Daigle, he testified regarding their location based on the
connection between their cell phones and the closest cell tower sites when the calls
were initiated on the night of the robbery. Defendant’s cell phone records showed
that he was in the area of his residence and Daigle’s residence in Palo Alto from
12:45 p.m. through 8:03 p.m. Defendant arrived in the area of the crime scene at
8:45 p.m. Defendant was in the area of the crime scene from 8:45 p.m. through 12:
54 a.m. and he placed and received 26 calls. There were four calls to and from
Daigle, 10 calls to and from Magee, and two calls to and from Thomas. Daigle’s cell
phone records showed that she began traveling from Palo Alto toward the area of the
crime scene at 8:11 p.m. Daigle made cell phone calls in the area of the crime scene,
the getaway route, and the arrest site between 8:44 p.m. to 11:04 p.m. Defendant’s
cell phone records showed defendant called Magee six times between 11:57 p.m. and
12:46 a.m. on the night of the robbery. At 11:58 p.m., Magee’s cell phone connected
to a cell tower site near her residence. After Magee received a call from defendant
at 12:36 a.m., she traveled from her residence to the area of the crime scene. While
in the area of the crime scene, she received five more calls from defendant. At 1:23
a.m., Magee traveled toward defendant’s residence as she placed a call to him.
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On cross-examination, Cook conceded that his analysis did not reveal the identity of
the person holding the cell phone when the call was made. Cook also acknowledged
that he was unable to determine whether a cell tower site was not functioning in 2012.
Thus, the cell phone records would not disclose whether a particular cell phone
connected to the next closest cell tower site, thereby inaccurately indicating the
location of the cell phone.
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The parties stipulated that the prosecution called Daigle as a witness in this case. She
refused to testify and was held in contempt outside the presence of the jury.
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B. Defense Case
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Officer Brian Egan investigated a robbery, which occurred on February 10, 2009, at
an art supply store in Mountain View. During the investigation, he discovered that
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a car, which was associated with this robbery, was registered to Rekeshia Duffy,
Daigle’s daughter. At the time of trial in the present case, the art store robbery
remained unsolved. Lieutenant Jeffrey Sato also participated in the art store robbery
investigation. During a search of Duffy’s vehicle, he “found the front sight of a
Glock handgun.” The vehicle was released to Daigle on March 6, 2009.
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Op. at 2–6 (alterations in original).
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III.
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LEGAL STANDARD
This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in
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custody pursuant to the judgment of a State court only on the ground that he is in custody in
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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v.
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Hodges, 423 U.S. 19, 21 (1975). The writ may not be granted with respect to any claim that was
adjudicated on the merits in state court unless the state court’s adjudication of the claim: “(1)
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United States District Court
Northern District of California
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resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
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established Federal law, as determined by the Supreme Court of the United States; or (2) resulted
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in a decision 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 the state court
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arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if
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the state court decides a case differently than [the] Court has on a set of materially
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indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The only definitive
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source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed
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to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at
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412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be “persuasive
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authority” for purposes of determining whether a state court decision is an unreasonable
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application of Supreme Court precedent, only the Supreme Court’s holdings are binding on the
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state courts and only those holdings need be “reasonably” applied. Clark v. Murphy, 331 F.3d
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1062, 1069 (9th Cir.), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).
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“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if
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the state court identifies the correct governing legal principle from [the Supreme Court’s]
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decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams,
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529 U.S. at 413. “Under § 2254(d)(1)’s ‘unreasonable application’ clause, . . . a federal habeas
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court may not issue the writ simply because that court concludes in its independent judgment that
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the relevant 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 application” inquiry
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should ask whether the state court’s application of clearly established federal law was “objectively
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unreasonable.” Id. at 409.
Here, as noted, the California Supreme Court summarily denied Petitioner’s petitions for
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review. See Exs. 11 & 12. The California Court of Appeal, in its opinion on direct review,
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addressed the ineffective assistance of counsel claims Petitioner raises in the instant petition. See
generally Op. The Court of Appeal thus was the highest court to have reviewed the claims in a
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United States District Court
Northern District of California
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reasoned decision, and it is the Court of Appeal’s decision that this Court reviews herein. See Ylst
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v. Nunnemaker, 501 U.S. 797, 803–04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091–92 (9th
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Cir. 2005).
The Supreme Court has vigorously and repeatedly affirmed that under AEDPA, there is a
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heightened level of deference a federal habeas court must give to state court decisions. See Hardy
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v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam); Harrington v. Richter, 131 S. Ct. 770, 783-85
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(2011); Felkner v. Jackson, 131 S. Ct. 1305 (2011) (per curiam). As the Court explained: “[o]n
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federal habeas review, AEDPA ‘imposes a highly deferential standard for evaluating state-court
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rulings’ and ‘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 regarding the standard and limited scope of
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review in which this Court may engage in federal habeas proceedings, the Court addresses
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Petitioner’s claims.
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IV.
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DISCUSSION
Petitioner asserts a claim for ineffective assistance of counsel for his trial counsel’s “failure
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to object to cell phone tower tracking evidence and/or obtain [a] defense expert” to rebut the
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government’s cell-tower methodology expert Mr. Cook. See Pet. at 9. Specifically, Petitioner
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contends his counsel was ineffective for a variety of reasons, all related to his failure to challenge
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Mr. Cook’s evidence, including by “(1) failing to challenge Mr. Cook’s qualifications on this
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subject (RT 336); (2) by failing to request the People provide a proffer of the testimony (in order
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to object) (RT 337); (3) by failing to move to strike at the conclusion of direct testimony (RT
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432); (4) by failing to cross-examine . . . ; (5) by failing to call his own expert . . . (RT 432–436.)”;
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and (6) by failing to file a motion in limine or other motion challenging the reliability of the cell-
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tower methodology. Pet. at 17.
On direct review, the Court of Appeal considered and rejected this claim and the grounds
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Petitioner raises here:
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Defendant contends that his trial counsel rendered ineffective assistance when he
failed to file a motion in limine to exclude Cook’s testimony on Kelly1 grounds. He
also contends that trial counsel’s performance was deficient, because he failed to:
(1) challenge Cook’s qualifications; (2) request that the prosecutor provide a proffer
of the testimony; (3) move to strike at the conclusion of direct testimony; and (4) call
his own expert.
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United States District Court
Northern District of California
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“Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right
“entitles the defendant not to some bare assistance but rather to effective assistance.”
(Ibid.) But the “Sixth Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight.” (Yarborough v. Gentry (2003) 540
U.S. 1, 8.)
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“To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. [Citations.] Counsel’s performance was deficient if the
representation fell below an objective standard of reasonableness under prevailing
professional norms. [Citation.] Prejudice exists where there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different. [Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 92–93.)
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Pursuant to the Kelly rule, “the proponent of evidence derived from a new scientific
methodology must satisfy three prongs, by showing, first, that the reliability of the
new technique has gained general acceptance in the relevant scientific community,
second, that the expert testifying to that effect is qualified to do so, and, third, that
‘“correct scientific procedures were used in the particular case.”’” (People v. Roybal
(1998) 19 Cal.4th 481, 505.)
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When trial counsel reasonably determines that filing a motion would be futile, his
failure to do so does not constitute deficient performance. (People v. Price (1991) 1
Cal.4th 324, 387, superseded by statute on other grounds in People v. Hinks (1997)
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People v. Kelly, 17 Cal. 3d 24 (1976).
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United States District Court
Northern District of California
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58 Cal.App.4th 1157, 1161–1165.) Here, as the Attorney General points out, the cell
tower tracking technique had been widely accepted and admitted into evidence in
courts throughout the nation at the time of defendant’s trial in January 2013. (See,
e.g., People v. Martin (2002) 98 Cal.App.4th 408, 412 [prosecutor “relied on [the
defendant’s] cell phone records to establish his location during the crucial time
period”]; People v. Vu (2006) 143 Cal.App.4th 1009, 1016–1017 [prosecutor relied
on cell phone records to establish the locations of defendant’s accomplices]; United
States v. Dhinsa (2d Cir.2001) 243 F.3d 635, 661 [cell phone records confirmed the
defendant’s presence in the area where the victim was murdered]; Pullin v. State
(Ga.2000) 534 S.E.2d 69, 71 [Georgia Supreme Court concluded that evidence
supported the finding that “sound scientific theory” supported the use of cell phone
records to establish the location of calls]; State v. Tran (Minn.2006) 712 N.W.2d
540, 543–545 [cell phone records showed that the defendant was in the victim’s
neighborhood when the murder occurred]; Wilson v. State (Tex.Ct.App.2006) 195
S.W.3d 193, 196–197 [cell phone records showed the defendant “traveling from the
vicinity of his residence to the victim’s residence during the time period in
question”]; and Pantazes v. State (Md.Ct.App.2001) 785 A.2d 865, 872 [cell phone
records suggested that call from victim’s phone to the defendant’s phone not made
from the victim’s home].) Since a reasonably competent attorney would have
concluded that a challenge to the cell tower tracking evidence on Kelly grounds was
futile, defendant has failed to show that trial counsel’s performance was
deficient.[FN6]
[FN6] Defendant also claims ineffective assistance of counsel based on trial
counsel’s failure to: (1) challenge Cook’s qualifications on the subject; (2)
move to strike Cook’s testimony; (3) cross-examine Cook on the limits of
single-tower methodology; and (4) call a defense expert. As previously
stated, since cell tower tracking technique had been widely accepted at the
time of defendant’s trial, we reject these claims.
Even assuming that defendant has shown that trial counsel’s performance was
deficient because he failed to challenge Cook’s testimony and to call his own expert
witness, he has failed to show prejudice. The evidence against defendant was very
strong. Three eyewitnesses identified the robbers as African American men. One of
the eyewitnesses testified that one of the robbers wore a beanie, and defendant’s
DNA was found on a beanie in the getaway car. Defendant had extensive phone
contact with the driver of the getaway car and his sister on the night of the robbery.
He also spoke with his sister from jail and attempted to fabricate an alibi. Moreover,
defendant told his cousin on the night of the robbery that he was on the run and was
in “trouble with that girl.” Thus, it is not reasonably probable that appellant would
have received a more favorable outcome if trial counsel had successfully objected to
the cell tower tracking evidence or called his own expert witness.
Op. at 6–9 (alterations in original).
As discussed by the state appellate court, Petitioner must establish two things in order to
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prevail on a Sixth Amendment ineffectiveness of counsel claim. See id. at 7. First, he must
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establish that counsel’s 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, 466 U.S. 668,
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687–88 (1984). Second, he must establish that he was prejudiced by counsel’s deficient
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performance, i.e., that “there is a reasonable probability that, but for counsel’s unprofessional
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errors, the result of the proceeding would have been different.” Id. at 694. A court need not
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determine whether counsel’s performance was deficient before examining the prejudice suffered
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by the defendant as the result of the alleged deficiencies. Id. at 697.
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The Strickland framework for analyzing ineffective assistance of counsel claims is
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considered to be “clearly established Federal law, as determined by the Supreme Court of the
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United States” for the purposes of 28 U.S.C. § 2254(d) analysis. See Cullen v. Pinholster, 131 S.
Ct. 1388, 1403 (2011). A “doubly” deferential judicial review is appropriate in analyzing
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United States District Court
Northern District of California
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ineffective assistance of counsel claims under § 2254. See id. at 1410–11. The general rule of
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Strickland, i.e., to review a defense counsel’s effectiveness with great deference, gives the state
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courts greater leeway in reasonably applying that rule, which in turn “translates to a narrower
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range of decisions that are objectively unreasonable under AEDPA.” Cheney v. Washington, 614
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F.3d 987, 995 (9th Cir. 2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). When
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§ 2254(d) applies, “the question is not whether counsel’s actions were reasonable. The question is
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whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”
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Harrington, 131 S. Ct. at 788.
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The state appellate court’s decision rejecting Petitioner’s claim of ineffective assistance of
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counsel was not contrary to and did not involve an unreasonable application of clearly established
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federal law. Nor was it an unreasonable determination of the facts in the record before the state
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court. The appellate court reasonably concluded that Petitioner failed to satisfy both the
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performance and prejudice prongs of Strickland. The Court discusses each prong in turn.
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A.
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The appellate court reasonably held that Petitioner’s counsel’s actions were reasonable.
Performance
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The actions at issue are counsel’s failure to challenge Mr. Cook. As the appellate court
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recognized, counsel could have reasonably concluded that challenging Mr. Cook would have been
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futile. See Op. at 7–8. An attorney could make such a conclusion, the court held, because Mr.
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Cook’s testimony regarding cell-tower tracking was “widely accepted” in the scientific
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community such that it satisfied the requirements for testifying regarding new scientific
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methodologies set forth in Kelly, 17 Cal.3d 24 (known as the Kelly/Frye2 test).3 This test places
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the question of reliability of the evidence in the hands of the relevant scientific community, as
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opposed to the court. As the Kelly court recognized, “rather than turning to the trial judge,”
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California courts “have assigned the task of determining reliability of the evolving technique to
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members of the scientific community from which the new method emerges.” Kelly, 17 Cal. 3d at
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31 (1976). As to cell-tower tracking technology, the appellate court concluded that an attorney
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could reasonably believe that the scientific community had satisfied this requirement because
numerous courts had admitted and relied on such evidence. See Op. at 7–8 (citing cases); cf. Resp.
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United States District Court
Northern District of California
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at 8 (citing additional California cases). From there, the appellate court concluded that Petitioner’s
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counsel could have reasonably determined that filing a motion to exclude Mr. Cook’s testimony
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would have been futile. It then held that such a determination by counsel does not constitute
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deficient performance. See Op. at 7 (citing People v. Price, 1 Cal. 4th 324, 387 (1991) (“Counsel
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does not render ineffective assistance by failing to make motions or objections that counsel
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reasonably determines would be futile.”); see also Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.
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1996) (“[F]ailure to take a futile action can never be deficient performance . . . .”). Each of these
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determinations by the appellate court was imminently reasonable.
Petitioner’s arguments to the contrary are unavailing. First, Petitioner appears to argue that
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Mr. Cook’s testimony fails under the evidence standard articulated by the U.S. Supreme Court in
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Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993), or perhaps—read more
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generously—that the appellate court should have applied the Daubert test, as opposed to the
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Kelly/Frye test. See, e.g., Pet. at 9 (arguing that Petitioner’s counsel should have filed motion in
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limine on “Daubert” grounds); id. at 10–12 (explaining Daubert standard). But Daubert involved
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Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
Though Petitioner cursorily challenges counsel’s actions based on Kelly’s other two prongs (that
Mr. Cook was unqualified and that Mr. Cook did not use correct scientific procedures), he simply
raises these grounds without any accompanying argument. See, e.g., Pet. at 17. Instead, the thrust
of his Petition emphasizes the unreliability of the cell-tower tracking technique about which Mr.
Cook testified.
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an interpretation of the Federal Rules of Evidence, which do not apply to the states, such that the
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Daubert test does not supplant the Kelly test. See Daubert, 509 U.S. at 585–589. The California
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Supreme Court has held as much. See People v. Leahy, 8 Cal. 4th 587, 604 (1994) (“[W]e
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conclude that the Kelly formulation survived Daubert in this state . . . .”). Indeed, Petitioner
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appears to recognize this fact, stating that “the [Daubert] [C]ourt’s opinion was based not on
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Constitutional grounds, but rather an interpretation of Rule 702 of the Federal Rules of Evidence,
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thus this state was not bound to follow Daubert.” Pet. at 10. Yet elsewhere in his Petition,
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Petitioner appears to claim that the California Supreme Court decision in Sargon Enterprises, Inc.
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v. Univ. of S. Cal., 55 Cal. 4th 747 (2012) somehow narrowed the Kelly/Frye test. See Pet. at 12.
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But the court in Sargon explicitly upheld its decision in Leahy in full, stating “[n]othing we say in
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United States District Court
Northern District of California
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this case affects our holding in Leahy regarding new scientific techniques.” Sargon, 55 Cal. 4th at
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772 n.6. As such, the Kelly/Frye test applies in California, and Petitioner has failed to
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demonstrate that the appellate court applied the incorrect law here.
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Petitioner’s other line of attack pertains to the merits and reliability of cell-tower tracking
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methodologies generally. Throughout his Petition, Petitioner argues that his counsel should have
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challenged Mr. Cook because cell-tower tracking methodologies are unreliable. For example, he
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attaches an article that he claims demonstrates the “[c]ontroversy regarding cell phone tower
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tracking expert testimony was a hot topic among criminal defense attorney’s [sic] for at least a
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year” before Petitioner’s trial. Pet. at 9, 15 (citing Ex. B to Pet.). He also attaches a June 2011
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ABA Journal article entitled “Prosecutors’ use of mobile phone tracking is ‘junk science,’ critics
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say,” that discusses some of the shortcomings of cell-tower tracking methodologies. See Ex. A to
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Pet. And finally, he includes a declaration from a purported expert in the field, Mr. Manfred
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Schenk, who avers that that cell-tower methodology is “not scientifically valid or reliable in its
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forensic application for its lack of corroboration measurements necessary to establish locations.”
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See Ex. C to Pet. ¶ 7.
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Unfortunately for Petitioner, these arguments focus on the wrong question. This Court is
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not required (or even permitted) to answer the question of whether cell-tower methodology was
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reliable when Petitioner went to trial. Instead, the underlying question here is whether Petitioner’s
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counsel reasonably determined that such evidence was clearly admissible under Kelly, such that he
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could reasonably determine that a challenge to such evidence would be futile. What’s more, the
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ultimate question this Court must answer is even more difficult for Petitioner, because this Court
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asks only whether the state appellate court’s decision on the underlying question of futility was
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reasonable. Though Petitioner has successfully pointed to a few criticisms of cell-tower
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technology at the relevant time, this evidence is not sufficient to overcome the weight of case
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authority relied upon by the state appellate court for its determination that cell-tower tracking
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methodologies were “widely accepted” in the scientific community.
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For the same reasons, and because trial counsel is afforded wide deference in his or her
choice of how to present evidence most effectively, the appellate court reasonably concluded that
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Northern District of California
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Petitioner’s counsel did not act unreasonably in failing to call his own expert witness or challenge
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Mr. Cook more fiercely on cross. See Harrington v. Richter, 562 U.S. 86, 111 (2011) (“Strickland
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does not enact Newton’s third law for the presentation of evidence, requiring for every prosecution
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expert an equal and opposite expert from the defense. In many instances cross-examination will
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be sufficient to expose defects in an expert’s presentation.”); Pulido v. Grounds, No. 13-CV-
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01814-TLN, 2015 WL 6123616, at *17–*19 (E.D. Cal. Oct. 16, 2015) (“The failure to support a
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Kelly motion may well have been reasonable in that any evidentiary contest was sure to be met
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with a blizzard of authority to the opposite conclusion.”). Thus, the state court reasonably
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determined that Petitioner’s counsel’s decision not to challenge this evidence was not
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unreasonable.
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Accordingly, the state court reasonably held that Petitioner’s counsel’s performance was
not ineffective.
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B.
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Even were the appellate court’s decision regarding Petitioner’s counsel’s performance
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unreasonable, the court reasonably determined that Petitioner was not prejudiced by any such
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error. The Strickland standard for prejudice is a high bar; Petitioner must establish that “there is a
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reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
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would have been different,” i.e., that the jury would have changed its verdict. Strickland, 466 U.S.
Prejudice
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at 694. This he cannot do.
As the state appellate court recognized, the evidence against Petitioner was substantial,
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including the following:
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Northern District of California
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See Op. at 2–6. In light of this weighty evidence against Petitioner, the state appellate court
reasonably determined that Petitioner’s counsel’s failure to challenge Mr. Cook’s evidence was
not prejudicial.
V.
for a Writ of Habeas Corpus must be DENIED.
Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the Rules Governing
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CONCLUSION
After a careful review of the record and pertinent law, the Court concludes that the Petition
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Several witnesses identified the robbers as having dark skin or being African
American (like Petitioner)
A witness stated that one of the robbers wore a beanie
A beanie was located in the get-away car. The beanie had DNA on it that matched
to Petitioner (with a one in 300 billion chance that the DNA was not Petitioner’s)
Petitioner told his cousin on the night of the robbery that he had “got in trouble”
and “been in trouble with the girl” and said “he was going to have to go on the run”
Petitioner called Daigle, the get-away-car driver, several times on the night of the
robbery
Petitioner’s sister testified that when he referred to “the girl,” she believed him to
mean Daigle
Petitioner asked his sister to serve as an alibi for him
Section 2254 Cases. Petitioner has not made “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has Petitioner demonstrated that “reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate
of Appealability in this Court but may seek a certificate from the Court of Appeals under Rule 22
of the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254
Cases.
The Clerk shall terminate any pending motions, enter judgment in favor of Respondent,
and close the file.
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IT IS SO ORDERED.
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Dated: November 30, 2018
______________________________________
BETH LABSON FREEMAN
United States District Judge
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Northern District of California
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