Snow v. Paramo

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION 10 , overruling petitioner's objections to the Report and Recommendation, and denying the petition. A Certificate of Appealability is denied. Signed by Judge Larry Alan Burns on 1/23/15. (All non-registered users served via U.S. Mail Service)(kas)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDWARD LEROY SNOW, 12 CASE NO. 14cv536-LAB (BLM) Plaintiff(s), ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS vs. 13 DANIEL PARAMO, 14 Defendant(s). 15 16 On March 10, 2014, Petitioner Edward Snow, a prisoner in state custody, filed his 17 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Snow is currently in state 18 custody following his conviction for first degree murder committed during a robbery. 19 Pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72 , this matter was referred to Magistrate 20 Judge Barbara Major for report and recommendation. On September 9, 2014, Judge Major 21 issued her report and recommendation, recommending that the petition be denied. Snow 22 filed objections. 23 A district court has jurisdiction to review a Magistrate Judge's report and 24 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “The district judge must 25 determine de novo any part of the magistrate judge's disposition that has been properly 26 objected to.” Id. (emphasis added) “A judge of the court may accept, reject, or modify, in 27 whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. 28 § 636(b)(1). The Court is required to review only those portions of the R&R to which specific -1- 14cv536 1 objections have been made. United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2 2003) (en banc). 3 Snow’s objections purport to incorporate by reference his entire traverse, and ask the 4 Court to review the entire case, and find the “conflict[s] and inconsistencies in the 5 testimonies of Bo Lemler, Terry Taylor and James Myers.” (Obj. to R&R (Docket no. 11 at 6 2.) These objections are improper for two primary reasons. First, objections to the R&R must 7 be “specific” — a petitioner cannot simply object to the R&R as a whole, in generalized 8 terms. See United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007) (“Section 636(b)(1) 9 does not countenance a form of generalized objection to cover all issues addressed by the 10 magistrate judge; it contemplates that a party's objection to a magistrate judge's report be 11 specific and particularized . . . ..” (internal citations and quotations omitted)). Second, the 12 Court is a neutral arbiter, and as such it cannot properly act as Snow’s advocate. Here, that 13 means it cannot accede to Snow’s request that it review the entire case, find inconsistencies 14 in the evidence, and create arguments for him. See Jacobson v. Filler, 790 F.2d 1362, 1365 15 (9th Cir.1986)) (“It is not for the trial court to inject itself into the adversary process on behalf 16 of one class of litigant.”) See also Donahue v. United States, 660 F.3d 523, 524 (1st 17 Cir.2011) (“The courts cannot assume the role of advocates and create arguments never 18 made.”) 19 Even assuming Snow’s reference to inconsistencies in the three witnesses’ testimony 20 amounted to a specific objection, and assuming the Court were to comb through the record 21 and locate inconsistencies, it would make no difference to the outcome. The one claim in his 22 petition (and indeed, the only claim he exhausted by raising it before the California Supreme 23 Court) is that the trial court denied his due process rights under Brady v. Maryland, 383 U.S. 24 83 (1963) by failing to disclose a fraud investigation against Lemler. Under Brady, the 25 suppression of evidence favorable to a defendant amounts to a constitutional error requiring 26 that a conviction be set aside, but only if the evidence is prejudicial or material. Strickler v. 27 Greene, 527 U.S. 263, 282–82 (1999). Materiality, in this context, refers to prejudice; 28 suppressed evidence is material if there is “reasonable probability that, had the evidence -2- 14cv536 1 been disclosed to the defense, the result of the proceeding would have been different,” or 2 if suppression “undermines confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 3 419, 434 (1995) (citing United States v. Bagley, 473 U.S. 667, 682 (1985)). If a violation is 4 found, there is no need for further harmless error analysis. Kyles at 435. In other words, 5 materiality or prejudice is essential to a finding of a Brady violation. Suppression of 6 immaterial evidence is not a harmless Brady violation; rather, it is not a Brady violation at all. 7 On federal habeas review, a state court’s determination that no Brady violation occurred 8 because of the immateriality of the suppressed evidence is reviewed only for 9 reasonableness. Towery v. Schriro, 641 F.3d 300, 310 (9th Cir., 2010) (upholding as 10 reasonable the state court’s finding that suppressed information was immaterial); 28 U.S.C. 11 § 2254(d). Reasonableness is a “high threshold” for a petitioner to surmount. Cullen v. 12 Pinholster, 131 S.Ct. 1388, 1402–03 (2011). A petitioner must show that there was “no 13 reasonable basis” for the state court’s determination, and that fairminded jurists could not 14 agree with it. Id. at 1402. Under this high standard, federal courts will not issue writs of 15 habeas corpus merely because they would have reached a different decision or because the 16 state court determination is found to be incorrect or erroneous. Clark v. Arnold, 769 F.3d 17 711, 724–25 (9th Cir. 2014). 18 The state courts found the suppressed evidence immaterial and nonprejudicial. (See 19 R&R, 10:4–10, 11:7-24 (citing California Court of Appeals’ decision)). The R&R discussed 20 the factual basis for this determination at length. (R&R, 12:17–16:9.) 21 Furthermore, even assuming there were conflicts or contradictions between the 22 testimony of Lemley, Taylor, and Myers, the state courts’ determinations were eminently 23 reasonable. In addition to other points fully covered in the R&R, the Court notes that the 24 evidence against Snow, even discounting any testimony that might have been impeached 25 by the suppressed evidence, powerfully pointed to Snow’s guilt. 26 Lemley was the owner of a towing business, where Taylor and Myers were 27 employees. Taylor and Myers testified that Snow told them about his plans to rob the 28 business where they all worked, and solicited their help. Both became his somewhat -3- 14cv536 1 reluctant accomplices, and as of the time of his trial, both had pled guilty to voluntary 2 manslaughter for their part in the robbery. 3 The robbery was committed on the day and at the time Snow had said it would, when 4 he knew Taylor and Myers would not be present and the business would be minimally 5 guarded. Both also testified that he warned them afterwards not to go to the police, and that 6 he had boasted about the robbery. Myers also testified that Snow had boasted about the 7 killing, saying the victim had “never seen it coming.” Their testimony was corroborated by cell 8 phone records. Lemley, the only witness whose testimony might have been impeached by 9 the undisclosed evidence, had no personal knowledge of those conversations, and any 10 conflict or contradiction between his testimony and theirs would have made no real 11 difference. 12 Other evidence unrelated to Lemley’s testimony supported the conviction as well. For 13 example, the crime was committed in a manner suggesting it was committed by someone 14 with inside knowledge of the business. After the robbery, expensive new merchandise and 15 over $30,000 in small bills similar to those taken during the robbery were found in Snow’s 16 home; he had provided his family with a shaky explanation of how he acquired this money. 17 The state courts considered several other factors in addition to the compelling evidence of 18 guilt, such as defense counsel’s impeachment of Lemley through cross-examination. See 19 Towery, 641 F.3d at 310 (upholding as reasonable a state court’s determination that witness 20 was adequately impeached at trial, rendering the suppressed information immaterial). 21 For these reasons, Snow’s objections to the R&R are OVERRULED. The Court has 22 reviewed the R&R, finds it to be correct, and ADOPTS it. The petition is DENIED. Because 23 reasonable jurists would not find it debatable that the state courts’ determination meets the 24 “reasonableness” standard, a certificate of appealability is likewise DENIED. 25 26 IT IS SO ORDERED. DATED: January 23, 2015 27 28 HONORABLE LARRY ALAN BURNS United States District Judge -4- 14cv536

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