Hurlbert v. Muniz et al

Filing 34

ORDER adopting re 30 Report and Recommendation. The Court OVERRULES Petitioner's objections, (Doc. No. 31), ADOPTS the R&R in its entirety, (Doc. No. 30), DENIES Petitioner's petition for writ of habeas corpus, (Doc. No. 1), and DECLINES to issue a certificate of appealability. Signed by Judge Anthony J. Battaglia on 2/6/2017. (All non-registered users served via U.S. Mail Service)(acc)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 GRANT DALE HURLBERT, Case No.: 15-CV-0752-AJB-PCL Petitioner, 13 14 15 ORDER: v. KAMALA HARRIS; KATHLEEN McKENNA, Deputy Attorney General; JEFFREY BEARD, Secretary of CDCR, 16 17 (1) ADOPTING THE REPORT AND RECOMMENDATION, (Doc. No. 30); (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (Doc. No. 1); AND Respondents. 18 19 (3) DENYING CERTIFICATE OF APPEALABILITY 20 21 22 23 24 On April 6, 2015, Grant Dale Hurlbert (“Petitioner”), a state prisoner proceeding pro 25 se, filed a petition for writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. 26 (Doc. No. 1.) The Petition challenges Petitioner’s state court conviction for first-degree 27 burglary. On November 5, 2015, Respondent filed a response to the Petition. (Doc. No. 28 19.) Petitioner filed a traverse on November 27, 2015. (Doc. No. 22.) 1 15-CV-0752-AJB-PCL 1 Magistrate Judge Peter C. Lewis issued a report and recommendation (“R&R”) 2 recommending the Petition be denied. (Doc. No. 30.) On June 20, 2016, Petitioner filed 3 timely objections to the R&R. (Doc. No. 31.) Respondent did not reply. For the reasons set 4 forth below, the Court ADOPTS the R&R, (Doc. No. 30), OVERRULES Petitioner’s 5 objections, (Doc. No. 31), DENIES the Petition, (Doc. No. 1), and DECLINES to issue a 6 certificate of appealability. FACTUAL BACKGROUND 7 8 The Court gives deference to state court findings of fact and presumes them to be 9 correct; Petitioner may rebut this presumption, but only by clear and convincing evidence. 10 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35–36 (1992) (holding that 11 findings of historical fact, including inferences properly drawn therefrom, are entitled to 12 statutory presumption of correctness). The following facts are taken from the California 13 Court of Appeal opinion: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In May 2011, officers responded to a call reporting a stolen white Mercury Sable. Items left where the car was taken contained fingerprints matching those belonging to Hurlbert. About a month later, officers responded to a call from a store about a suspicious person in the store who drove away in a white Mercury Sable. The license plate number of the Mercury matched that of the stolen vehicle. As officers approached the store, they saw a white Mercury exit the parking lot of the store. As the Mercury approached, one of the officers turned his police vehicle into oncoming traffic in an attempt to [] stop the car. However, the Mercury drove around the officer’s vehicle, veered into the construction area and sped away. At that point, one of the officers saw the driver of the Mercury and identified him as Hurlbert. Officer’s [sic] engaged their lights and sirens and chased Hurlbert for approximately one to two minutes until he stopped at a dead end. Hurlbert jumped out of the Mercury and hit the hood of one of the officer’s vehicles. One of the officers pulled out his gun, pointed it at Hurlbert and shouted, “Stop or I’ll shoot.” Hurlbert immediately took off running and hopped a nearby fence. After Hurlbert hopped the fence, one of the officers—before losing sight of him—saw Hurlbert empty his pockets and take off his black shirt and throw it on the ground. Hurlbert encountered and ran from at least two other 2 15-CV-0752-AJB-PCL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 officers. Officers lost sight of Hurlbert after he ran up the driveway of a nearby residence. Hurlbert walked onto the back deck of Wayne Tibbetts’s residence and attempted to speak with Tibbetts’s mother-in-law. However, she did not speak English and motioned for Hurlbert to go inside the house and speak to her daughter. Once inside the residence, Hurlbert spoke to Tibbetts’s wife. However, she also did not speak much English and, thus, called for her husband. When Tibbetts came downstairs, Hurlbert told him, “There’s some people outside trying to hurt me.” Tibbetts responded, “Who, the police?” Hurlbert did not respond and continued calmly walking through the house. As Hurlbert approached the kitchen door, he turned back and looked over his shoulder at Tibbetts, paused for a few seconds and then exited the house. Police found Hurlbert a short time later in Tibbetts’s yard under a tree and, although he was not wearing a shirt, a blue shirt was lying next to him on the ground. When officers contacted Hurlbert, he said, “Why are you doing this, I’m just . . . laying under a tree in my yard?” and “Why are you messing with me, this is my house . . . check my I.D.” Hurlbert also asked the officers, “[W]hat color shirt was the guy wearing that you are looking for, because I have a blue shirt.” When officers checked Hurlbert’s pockets, they found a wallet with an I.D. that belonged to Tibbetts and a set of car keys. Approximately 45 minutes after the incident, Tibbetts noticed his wallet and keys that he had left in a basket on the counter by the kitchen door were missing. Tibbetts called the police. The officers responded and showed Tibbetts the T-shirt, wallet and keys found on or near Hurlbert. Tibbetts identified the items as belonging to him. (Doc. No. 20-14 at 3–4.) PROCEDURAL BACKGROUND 22 In a second amended information, Petitioner was charged with first-degree burglary 23 (Cal. Penal Code §§ 459, 460), evading an officer with reckless driving (Cal. Veh. Code § 24 2800.2(a)), unlawful taking and driving of a vehicle (Cal. Veh. Code § 10851(a)), and 25 resisting an officer (Cal. Penal Code § 148(a)(1)). (Doc. No. 20-9 at 31–32.) It was also 26 alleged that Petitioner had previously been convicted of receiving a stolen vehicle (Cal. 27 Penal Code § 496d). (Id. at 32.) Finally, it was alleged that Petitioner suffered one prison 28 prior, as well as one prior serious felony conviction (Cal. Penal Code §§ 667(a)(1), 3 15-CV-0752-AJB-PCL 1 667.5(b), 668, 1192.7(c)). (Id. at 33.) 2 On April 27, 2012, following trial, a jury found Petitioner guilty of resisting an 3 officer. (Id. at 157; Doc. No. 31 at 10.) The jury was unable to reach a verdict on the other 4 three counts, and the trial court declared a mistrial as to those counts. (Doc. No. 20-9 at 5 156; Doc. No. 20-14 at 5; Doc. No. 31 at 10.) Petitioner was retried on those three counts. 6 (See Doc. No. 20-14 at 5.) On retrial, Petitioner represented himself. (Doc. No. 20-3 at 5.) 7 On June 22, 2012, a jury found him guilty on the remaining three counts. (Doc. No. 20-10 8 at 115–19.) The jury also found Petitioner had suffered one prior strike conviction, one 9 prior serious or felony conviction, and had served two prison sentences. (Id. at 120–21.) 10 The trial court sentenced Petitioner to seventeen years and four months in prison, including 11 five years for the prior serious felony enhancement and one year for the prison prior 12 enhancement. (Doc. No. 20-14 at 5.) 13 On March 5, 2013, Petitioner appealed to the California Court of Appeal, contending 14 there was insufficient evidence to support the burglary conviction, thus rendering his 15 conviction a violation of his Fifth and Fourteenth Amendment rights to due process of law; 16 and his sentence was improper because it imposed two enhancements for the same prior 17 conviction. (Doc. No. 20-11.) The appellate court agreed with the latter assertion, 18 modifying Petitioner’s sentence. (Doc. No. 20-14 at 9.) In all other respects, however, the 19 appellate court affirmed the trial court. (Id. at 10.) Petitioner then filed a petition for review 20 with the California Supreme Court, again asserting there was insufficient evidence to 21 support his burglary conviction. (Doc. No. 20-15.) On April 9, 2014, the California 22 Supreme Court denied the petition without comment or citation. (Doc. No. 20-16.) 23 On April 6, 2015, Petitioner filed the instant Petition, in which he alleges three 24 grounds for relief: (1) a due process violation for his conviction for first-degree burglary 25 because the evidence adduced at trial was insufficient to establish he had the requisite intent 26 to steal upon entering the Tibbetts’ residence; (2) a due process violation because the 27 prosecutor presented false evidence and withheld exculpatory evidence; and (3) appellate 28 counsel provided ineffective assistance of counsel (“IAC”) for failing to raise before the 4 15-CV-0752-AJB-PCL 1 state appellate court the false evidence claim asserted in ground two of this Petition. (Doc. 2 No. 1.) Though two of the grounds for relief appeared to be unexhausted, Magistrate Judge 3 Lewis ordered Respondent to answer the Petition. (Doc. No. 15.) Respondent did so on 4 November 5, 2015, arguing the California courts properly rejected ground one, ground two 5 is vague and conclusory, and ground three fails because there is no showing of deficient 6 performance or prejudice. (Doc. No. 19.) On November 27, 2015, Petitioner filed a 7 traverse. (Doc. No. 22.) 8 On May 20, 2016, Magistrate Judge Lewis issued an R&R, which made the 9 following findings: (1) there was sufficient evidence to support Petitioner’s burglary 10 conviction, specifically, that he entered the Tibbetts’ residence with the requisite intent; (2) 11 Petitioner’s claim that his due process rights were violated by the presentation of false 12 evidence and the withholding of exculpatory evidence is without merit; (3) Petitioner has 13 not established his Miranda rights were violated or he was prejudiced as a result; and (4) 14 because ground two is meritless, appellate counsel’s failure to raise ground two before the 15 California Court of Appeal did not render her assistance ineffective. (Doc. No. 30.) 16 Petitioner objected to the R&R on June 20, 2016. (Doc. No. 31.) While far from 17 clear, the Court construes Petitioner’s arguments as repeating the same arguments already 18 presented before Magistrate Judge Lewis and considered in the R&R: (1) insufficient 19 evidence exists to support his burglary conviction, (see id. at 10); (2) he was prejudiced by 20 the introduction of false evidence, (id. at 37–39); and (3) appellate counsel was ineffective 21 for failing to argue to the state appellate court that his conviction was obtained through the 22 use of false evidence, (id. at 4–5). Respondent did not reply to Petitioner’s objections. 23 LEGAL STANDARD 24 The Petition is governed by the Antiterrorism and Effective Death Penalty Act 25 (“AEDPA”), applying a “‘highly deferential standard for evaluating state-court rulings,’ 26 which demands that state-court decisions be given the benefit of the doubt.” Woodford v. 27 Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 28 333 & n.7 (1997)). Federal habeas relief may be granted if the state court (1) applied a 5 15-CV-0752-AJB-PCL 1 rule different from the governing law provided by the United States Supreme Court; or 2 (2) correctly identified the governing legal principle, but unreasonably applied it to the 3 facts of the case. Bell v. Cone, 535 U.S. 685, 694 (2002). 4 The duties of the district court with respect to a magistrate judge’s report and 5 recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 6 28 U.S.C. § 636(b)(1). The district court must “make a de novo determination of those 7 portions of the report . . . to which objection is made” and “may accept, reject, or modify, 8 in whole or in part, the findings or recommendations made by the magistrate judge.” 28 9 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); 10 United States v. Remsing, 874 F.2d 614, 617–18 (9th Cir. 1989). 11 As to portions of the report to which no objection is made, the Court may assume 12 the correctness of the magistrate judge’s findings of fact and decide the motion on the 13 applicable law. Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974); Johnson 14 v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). Under such circumstances, the 15 Ninth Circuit has held that a failure to file objections only relieves the district court of its 16 burden to give de novo review to factual findings; conclusions of law must still be reviewed 17 de novo. See Robbins v. Carey, 481 F.3d 1143, 1146–47 (9th Cir. 2007). DISCUSSION 18 19 I. Insufficient Evidence Claim 20 Petitioner first asserts he was denied due process because the evidence adduced at 21 trial was insufficient to establish that he had the specific intent to commit theft when he 22 entered the Tibbetts’ residence. (Doc. No. 1 at 8–20.) In the R&R, Magistrate Judge Lewis 23 found this claim had already been evaluated and rejected once by the state court. (Doc. No. 24 30 at 7–10.) Therefore, his only task was to determine whether the state court’s denial of 25 the claim was unreasonable under established federal law. See Harrington v. Richter, 562 26 27 28 6 15-CV-0752-AJB-PCL 1 U.S. 86, 100–01 (2011); Juan H. v. Allen, 408 F.3d 1262, 1274–75 (9th Cir. 2005).1 2 A habeas petitioner challenging a state criminal conviction based on sufficiency of 3 the evidence is entitled to relief “if it is found that upon the record evidence adduced at the 4 trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” 5 Jackson v. Virginia, 443 U.S. 307, 324 (1979). The critical inquiry is whether any rational 6 trier of fact could have found the essential elements of the crime charged beyond a 7 reasonable doubt when the evidence is viewed in the light most favorable to the 8 prosecution. Id. at 318–19. If the record contains facts that support conflicting inferences, 9 the reviewing court must presume that the trier of fact resolved any conflicts in favor of 10 the prosecution, and defer to that determination. Id. at 326. Under the AEDPA, courts apply 11 the Jackson standard with an additional layer of deference. Juan H., 408 F.3d at 1274–75. 12 Thus, when the last state court to consider a petitioner’s claim denies it without 13 explanation, a petitioner is entitled to relief only if “there was no reasonable basis for the 14 state court to deny relief.” Harrington, 562 U.S. at 98. 15 In evaluating a sufficiency of the evidence claim, a reviewing federal court must 16 look to the applicable state law defining the substantive elements of the crime. Chein v. 17 Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (citing Jackson, 443 U.S. at 324 n.16). Under 18 California law, a defendant commits a burglary if he or she “enters a residence . . . ‘with 19 intent to commit grand or petit larceny or any felony.’” People v. Ramirez, 39 Cal. 4th 398, 20 463 (2006) (quoting Cal. Penal Code § 459). A defendant commits first-degree burglary if 21 the dwelling is inhabited. Cal. Penal Code § 460(a). The intent required to commit a 22 burglary must be present at the time of entry into the residence or a room within the 23 24 25 26 27 28 1 It appears Magistrate Judge Lewis undertook the same analysis as that of the California Court of Appeal, finding the evidence “supports a reasonable inference that [Petitioner] intended to commit theft at the time he entered the residence” instead of inquiring whether denial of Petitioner’s claim was unreasonable. (Doc. No. 30 at 12.) However, the Court finds this error to be harmless, given that the inquiry undertaken by Magistrate Judge Lewis is a more lax standard for Petitioner to satisfy, and the Court ultimately agrees with Magistrate Judge Lewis’s conclusion that Petitioner has failed to satisfy his burden here. 7 15-CV-0752-AJB-PCL 1 residence within which a crime is committed. People v. Sparks, 28 Cal. 4th 71, 87–88 2 (2002); People v. Holt, 15 Cal. 4th 619, 669 (1997). 3 Intent is rarely demonstrated by direct proof; accordingly, intent may be inferred 4 from facts and circumstances shown through evidence. Holt, 15 Cal. 4th at 669–70. 5 “[E]vidence such as theft of property from a dwelling may create a reasonable inference 6 that there was intent to commit theft at the time of entry.” In re Leanna W., 120 Cal. App. 7 4th 735, 741 (2004). Whether entry was accompanied by the requisite intent is a question 8 of fact for the jury. People v. Hopkins, 149 Cal. App. 3d 36, 44 (1983). 9 Here, Petitioner was convicted of first-degree burglary. In support of the finding that 10 sufficient evidence supported Petitioner’s conviction, both the California Court of Appeal 11 and the R&R relied on the circumstantial evidence indicating that Petitioner attempted to 12 conceal his identity during his flight from officers and when he was ultimately apprehended 13 in the Tibbetts’ front yard. Specifically, the state appellate court found it telling that 14 Petitioner removed his black shirt and emptied his pockets as he fled police. (Doc. No. 20- 15 14 at 6–7.) Then, when he was found, Petitioner spontaneously shouted, “[W]hat color shirt 16 was the guy wearing that you are looking for, because I have a blue shirt.” (Id. at 7.) He 17 also informed police that he was in his own yard and they should check his ID. (Id.) That 18 blue shirt and ID, however, belonged to Tibbetts. (See id.) The state appellate court 19 concluded this evidence “strongly supports the finding that [Petitioner] was attempting to 20 change his identity in order to avoid capture and, as relevant to [the first-degree burglary 21 conviction], that he entered the home of Tibbetts with the intent to steal items to conceal 22 his identity and [] to continue to evade capture from the police.” (Id.) The R&R concludes 23 similarly, and also notes that “the mere fact that evidence showed [Petitioner] stole the 24 items from the Tibbetts’ home can support an inference that he had intent to steal when he 25 entered the residence.” (Doc. No. 30 at 14 (citing Leanna W., 120 Cal. App. 4th at 741).) 26 Reviewing the record de novo, the Court finds the California Court of Appeal’s 27 determination that the evidence at trial amply supports the jury’s conviction was not 28 contrary to, or an objectively unreasonable application of, clearly established federal law. 8 15-CV-0752-AJB-PCL 1 From the evidence relied upon by both the state appellate court and Magistrate Judge 2 Lewis, a rational trier of fact could have found beyond a reasonable doubt that Petitioner 3 harbored the specific intent to commit a theft when he entered the Tibbetts’ residence. This 4 is particularly so when the evidence is viewed in the light most favorable to the prosecution, 5 as the Court is obligated to do on habeas review. Jackson, 443 U.S. at 318–19. 6 In his objections, Petitioner essentially argues the jury erred in believing the 7 government’s evidence and not his. (Doc. No. 31 at 46, 48.) He does this in a variety of 8 ways, including by asserting that the sheriff’s reports contained conflicting evidence, (id. 9 at 17, 41), arguing that the testifying officers were not credible, (id. at 17), and relying on 10 his own statements and testimony that contradicted the officers’ version of events, (id. at 11 18, 44). (See also id. at 27–33 (Petitioner’s evaluation of the events that transpired).) 12 However, as the record reflects, Petitioner had the opportunity to tell, and did tell, his 13 version of events to the jury. Petitioner testified that he removed the black shirt because he 14 felt like he was having a heat stroke. (Doc. No. 20-6 at 58.) He explained that he 15 approached Tibbetts’s mother-in-law to ask for water and that she ushered him inside.2 (Id. 16 at 62–63.) He also stated he asked Tibbetts’s wife for water and help. (Id. at 63–64.) 17 Petitioner then testified that Tibbetts “offered [Petitioner] his shirt” and “took it off his own 18 back,” but Petitioner did not take it—or Tibbetts’s wallet and keys—from the residence. 19 (Id. at 65–66.) Rather, Petitioner testified that the sheriff’s deputies took those items from 20 the residence and planted the evidence on Petitioner. (See id. at 69–73.) In light of the 21 evidence contradicting Petitioner’s testimony, the jury was entitled to—and apparently 22 did—reject his version of events. (Doc. No. 20-4 at 57; Doc. No. 20-5 at 39–40, 80, 123, 23 125, 129–30.) The Court will not second-guess that rejection on habeas review. Jackson, 24 443 U.S. at 326 (requiring the reviewing court to presume the trier of fact resolved any 25 26 27 28 Tibbetts’s mother-in-law’s tacit permission does not undermine the circumstantial evidence of Petitioner’s specific intent upon entering the residence. See People v. Frye, 18 Cal. 4th 894, 954 (1998) (“The entry need not be a trespass to support a burglary conviction.”), disapproved on other grounds by People v. Doolin, 45 Cal. 4th 390 (2009). 2 9 15-CV-0752-AJB-PCL 1 conflicting inferences in favor of the prosecution and to defer to that resolution). 2 In sum, the Court finds that Petitioner has failed to carry his “heavy burden” as to 3 ground one. Juan H., 408 F.3d at 1274. The Court accordingly OVERRULES Petitioner’s 4 objection, ADOPTS the R&R in relation to ground one, and DENIES the Petition as to 5 Petitioner’s sufficiency of evidence claim.3 6 II. False Evidence Claim 7 Petitioner asserts he was denied due process because his conviction was based on 8 false evidence, specifically, that it was the sheriff’s deputies who removed Tibbetts’s wallet 9 and keys from the residence and planted them in the yard with Petitioner. (Doc. No. 31 at 10 17–20, 37.) In the R&R, Magistrate Judge Lewis concluded that despite Petitioner’s failure 11 to exhaust this claim, it is clear Petitioner has failed to present a colorable claim because 12 (1) the presentation of a conflicting version of events does not establish the use of false 13 evidence; (2) Petitioner failed to identify what evidence was allegedly suppressed; and (3) 14 Petitioner has failed to establish a Miranda violation or, even if Miranda was violated, that 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Petitioner makes additional arguments that warrant little discussion. First, Petitioner asserts the evidence is insufficient in part because there is no “actual[] physical evidence” of the crime. (Doc. No. 31 at 10.) Yet “[c]ircumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (quoting United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir. 1986)). Petitioner further asserts the California Court of Appeal erred in failing to review the sufficiency of the evidence de novo. (Doc. No. 31 at 39–40.) However, it is an uncontroversial statement of the law that an appellate court does not review findings of fact de novo, but rather affords deference to the trier of fact. See People v. Jennings, 50 Cal. 4th 616, 638 (2010) (stating the appellate court “neither reweigh[s] the evidence nor reevaluate[s] the credibility of witnesses” when assessing whether substantial evidence exists to support a verdict). Finally, to the extent Petitioner takes issue with the California Supreme Court’s denial of his petition without comment or citation, (see Doc. No. 31 at 43), the United States Supreme Court has recognized that summary denial is not inappropriate, see Cullen v. Pinholster, 563 U.S. 170, 187 (2011) (noting § 2254(d) “applies even where there has been a summary denial”). Under such circumstances, the federal courts are required to “look through” that decision to the last reasoned state court decision, here, the decision of the California Court of Appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 805–06 (1991). 10 15-CV-0752-AJB-PCL 1 Petitioner was prejudiced by such violation given that he introduced the incriminating 2 statements himself at trial. (Doc. No. 30 at 17–20.) In his objections, Petitioner reasserts 3 only that his conviction was based upon the introduction of false evidence at trial and that 4 forensic evidence was suppressed. (See Doc. No. 31 at 17, 29–33, 39–41.)4 5 “[I]t is established that a conviction obtained through use of false evidence, known 6 to be such by representatives of the State, must fall under the Fourteenth Amendment.” 7 Napue v. Illinois, 360 U.S. 264, 269 (1959); see Mooney v. Holohan, 294 U.S. 103, 112 8 (1935). The same rule applies when the State, not soliciting false evidence, allows it to go 9 uncorrected when it appears. Napue, 360 U.S. at 269. A claim under Mooney-Napue will 10 succeed when “(1) the testimony (or evidence) was actually false, (2) the prosecution knew 11 or should have known that the testimony was actually false, and (3) [] the false testimony 12 was material.” United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). In 13 determining materiality, the Court looks at whether there is “any reasonable likelihood that 14 the false testimony could have affected the judgment of the jury.” Hayes v. Brown, 399 15 F.3d 972, 984 (9th Cir. 2005) (quoting Belmontes v. Woodford, 350 F.3d 861, 881 (9th Cir. 16 2003)). In other words, the Court must ask “whether, despite the prosecution’s errors, the 17 defendant ‘received . . . a trial resulting in a verdict worthy of confidence.’” Jackson v. 18 Brown, 513 F.3d 1057, 1075–76 (9th Cir. 2008) (quoting Kyles v. Whitley, 514 U.S. 419, 19 434 (1995)). 20 Petitioner did not assert this claim before the state courts. Typically, a habeas 21 petitioner must first exhaust available state judicial remedies prior to seeking relief in 22 federal habeas corpus proceedings. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 522 23 24 25 26 27 28 4 Petitioner raises additional grounds for prejudice he suffered during the trial: (1) Petitioner was forced to wear “county jail blues” in the jury’s presence; (2) Petitioner was shackled and unable to move around in the jury’s presence; (3) the trial judge “flashed a ‘vacation shirt’” under his robe at the jury foreperson; and (4) Petitioner was not provided with the same technological equipment the prosecution used in presenting its case. (Doc. No. 31 at 11–13, 37–39, 46, 48–49.) These claims are not included in the instant Petition; accordingly, the Court need not address them here. 11 15-CV-0752-AJB-PCL 1 (1982). However, “[a]n application for a writ of habeas corpus may be denied on the merits, 2 notwithstanding the failure of the applicant to exhaust the remedies available in the courts 3 of the State.” 28 U.S.C. § 2254(b)(2). Courts may only deny unexhausted claims on the 4 merits if it is “perfectly clear” that the claim is not a “colorable federal claim.” Cassett v. 5 Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005) (quoting Granberry v. Greer, 481 U.S. 129, 6 135 (1987)). Unexhausted claims are reviewed de novo where there is no reasoned state 7 court decision addressing that claim. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 8 Having reviewed Petitioner’s argument and the record de novo, the Court agrees 9 with Magistrate Judge Lewis that it is perfectly clear Petitioner’s false evidence claim is 10 not colorable. First, Petitioner does not come forth with anything other than his own 11 explanation for the events to establish that the sheriff’s deputies falsified evidence and their 12 testimony. Simply showing that the prosecution presented the jury with a conflicting 13 version of events does not meet Petitioner’s burden on this claim. See United States v. 14 Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (“[T]he evidence proffered by Geston does 15 not establish that the government knew, or should have known, that Sims’ and Carr’s 16 testimony was false. At most, two conflicting versions of the incident were presented to 17 the jury. It was within the province of the jury to resolve the disputed testimony.” (citations 18 omitted)).5 19 20 21 22 23 24 25 26 27 28 And the jury in Petitioner’s case did resolve this conflict—against Petitioner. At trial, Petitioner presented his version of events, the version proffered here, through his testimony and cross-examination of the sheriff’s deputies. (See Doc. No. 20-5 at 46, 130; Doc. No. 20-6 at 69–73.) The Court will not question the jury’s credibility determination. See Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (per curiam) (“[a] jury’s credibility determinations are [] entitled to near-total deference”); United States v. Zuno-Arce, 44 F.3d 1420, 1422–23 (9th Cir. 1995) (“If the jury believed Godoy and Lopez, the evidence sufficed to establish that Zuno-Arce attended and participated in the meetings as they said. As for whether they lied, or erred in their perceptions or recollections, the judge properly left these questions to the jury. Zuno-Arce’s attorneys cross-examined Godoy and Lopez thoroughly and well on the discrepancies in their recollections, and the recency of some of their recollections. The district court was not obligated to decide the credibility question 5 12 15-CV-0752-AJB-PCL 1 Second, even if Petitioner carried this initial burden, he has utterly failed to provide 2 any evidence that the prosecution knew or should have known that the testimony was 3 actually false. See Murtishaw v. Woodford, 255 F.3d 926, 959 (9th Cir. 2001) (“Assuming 4 for the sake of argument that Laufenburger’s testimony . . . was false, Murtishaw presents 5 no evidence that the prosecution knew it was false.”). For these reasons, the Court agrees 6 with Magistrate Judge Lewis’s assessment that Petitioner has failed to state even a 7 colorable claim that the use of false evidence violated Petitioner’s due process rights. 8 Petitioner also asserts that exculpatory evidence was suppressed, namely, that the 9 sheriff’s deputies refused to undertake fingerprint or DNA analysis of Tibbetts’s wallet. 10 (Doc. No. 31 at 32.) Under Brady v. Maryland, 373 U.S. 83, 87 (1963), “the suppression 11 by the prosecution of evidence favorable to an accused upon request violates due process 12 where the evidence is material either to guilt or to punishment, irrespective of the good 13 faith or bad faith of the prosecution.” Favorable evidence is “material” only if there is a 14 reasonable probability that the result of the proceeding would have been different had the 15 evidence been disclosed to the defense. United States v. Bagley, 473 U.S. 667, 682 (1985). 16 “The question is not whether the defendant would more likely than not have received a 17 different verdict with the evidence, but whether in its absence he received a fair trial, 18 understood as a trial resulting in a verdict worthy of confidence. A ‘reasonable probability’ 19 of a different result is accordingly shown when the government’s evidentiary suppression 20 ‘undermines confidence in the outcome of the trial.’” Kyles, 514 U.S. at 434 (quoting 21 Bagley, 473 U.S. at 678). 22 Petitioner’s Brady claim must fail. The prosecution’s case did not hinge on forensic 23 science. Rather, multiple witnesses testified that Tibbetts’s keys and wallet were found in 24 Petitioner’s pockets. (Doc. No. 20-4 at 57; Doc. No. 20-5 at 49–50.) Petitioner testified at 25 length about his version of events, as well as cross-examined the prosecution’s witnesses 26 27 28 and strike their testimony, because the determination of credibility is for the jury.” (citations omitted)). 13 15-CV-0752-AJB-PCL 1 in an attempt to undermine their credibility. (See Doc. No. 20-5 at 46, 130; Doc. No. 20-6 2 at 69–73.) In light of the evidence that was presented at trial, the Court is not convinced 3 that the failure to conduct forensic testing on the wallet undermines the confidence that can 4 be placed on the jury’s verdict. Additionally, because the wallet was never submitted for 5 testing, there were no reports for production to Petitioner. “The prosecution therefore did 6 not ‘suppress’ any evidence for the simple reason that those reports did not exist.” Herring 7 v. McEwen, No. SA CV 11-781 DMG (MRW), 2012 WL 960674, at *5 (C.D. Cal. Jan. 10, 8 2012). The Court thus OVERRULES Petitioner’s objection, ADOPTS the R&R in 9 relation to ground two, and DENIES the Petition as to Petitioner’s false evidence claim. 10 III. Ineffective Assistance of Counsel Claim 11 Lastly, Petitioner argues appellate counsel was ineffective for failing to raise the 12 claims in ground two before the California Court of Appeal. (Doc. No. 1 at 47.) In the 13 R&R, Magistrate Judge Lewis rejected this claim based on his determination that ground 14 two is meritless. (Doc. No. 30 at 21–22.) Petitioner objects, reasserting the arguments 15 presented in the Petition. (Doc. No. 31 at 4–5.) 16 In order to succeed on an IAC claim, a petitioner must establish two criteria: (1) 17 counsel’s performance was so deficient as to fall short of the guarantee of counsel under 18 the Sixth Amendment, and (2) counsel’s errors were so prejudicial that the petitioner was 19 deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Smith 20 v. Robbins, 528 U.S. 259, 285 (2000) (“The proper standard for evaluating [a] claim that 21 appellate counsel was ineffective . . . is that enunciated in Strickland.” (citing Smith v. 22 Murray, 477 U.S. 527, 533–36 (1986))). This Strickland standard is highly deferential to 23 counsel based upon the ease of second-guessing one’s counsel after an adverse conviction 24 or sentence is entered. Strickland, 466 U.S. at 689. When analyzing an IAC claim, “a court 25 must indulge a strong presumption that counsel’s conduct falls within the wide range of 26 reasonable professional assistance[.]” Id. This standard is heightened when raised in a 27 federal habeas petition. Harrington, 562 U.S. 86 at 100–01. 28 Having reviewed this unexhausted claim de novo, Pirtle, 313 F.3d at 1167, the Court 14 15-CV-0752-AJB-PCL 1 agrees with Magistrate Judge Lewis that Petitioner’s IAC claim must fail. As explained in 2 the previous section, ground two is plainly meritless. See supra Discussion Section II. 3 Given that conclusion, appellate counsel’s performance was not deficient, and the failure 4 to assert the claim before the Court of Appeal clearly could not have prejudiced Petitioner. 5 The Court therefore OVERRULES Petitioner’s objection, ADOPTS the R&R in relation 6 to ground three, and DENIES the Petition as to Petitioner’s IAC claim. 7 IV. Certificate of Appealability 8 When a district court enters a final order adverse to the applicant in a habeas corpus 9 proceeding, it must either issue or deny a certificate of appealability, which is required to 10 appeal a final order in a habeas corpus proceeding. 28 U.S.C. § 2253(c)(1)(A). A certificate 11 of appealability is appropriate only where the petitioner makes “a substantial showing of 12 the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) 13 (quoting 28 U.S.C. § 2253(c)(2)). Under this standard, the petitioner must demonstrate that 14 reasonable jurists could debate whether the petition should have been resolved in a different 15 manner or that the issues presented were adequate to deserve encouragement to proceed 16 further. Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). Here, the Court finds that 17 reasonable jurists could not debate the Court’s conclusion to deny the Petition and therefore 18 DECLINES to issue a certificate of appealability. 19 CONCLUSION 20 Based on the foregoing, the Court OVERRULES Petitioner’s objections, (Doc. No. 21 31), ADOPTS the R&R in its entirety, (Doc. No. 30), DENIES Petitioner’s petition for 22 writ of habeas corpus, (Doc. No. 1), and DECLINES to issue a certificate of appealability. 23 IT IS SO ORDERED. 24 Dated: February 6, 2017 25 26 27 28 15 15-CV-0752-AJB-PCL

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