Hosley v. Foulk

Filing 40

REPORT AND RECOMMENDATION re 12 Amended Petition for Writ of Habeas Corpus filed by Walter L. Hosley. Signed by Magistrate Judge Clinton Averitte on 8/9/2018.(All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Walter L. HOSLEY,

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Case No.: 15-cv-0877-JAH-AGS
Petitioner,

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v.

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Sandra ALFARO,

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REPORT AND RECOMMENDATION
TO DENY HOSLEY’S PETITION
FOR A WRIT OF HABEAS CORPUS
(ECF No. 12)

Respondent.

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Hosley was found guilty of multiple felonies including robbery and sentenced to

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more than twenty years in custody. He now seeks a writ of habeas corpus. Although his

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petition is timely, it is without merit. His counsel’s allegedly deficient performance caused

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no prejudice.

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BACKGROUND

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In the state trial court, the victim testified as an eyewitness and implicated Hosley.

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To impeach the victim, Hosley’s counsel attempted to offer into evidence an article from a

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motorcycle magazine about the victim’s reputation for dishonesty which did not cite

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sources. The trial judge found that the magazine was inadmissible under California

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Evidence Code § 352 because it lacked foundation and was unduly prejudicial. (ECF

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No. 21-1, at 14.) Instead, Hosley’s counsel impeached the victim in cross-examination with

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prior, inconsistent, and contradictory testimony. (ECF No. 22-9, at 7-8.)

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At trial, Hosley’s counsel argued that the victim eyewitness identification was

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mistaken but failed to request a California standard jury instruction—CALCRIM No.

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315—concerning eyewitness identification. (ECF No. 12, at 8-9.)

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In this petition, Hosley argues: (1) counsel provided ineffective assistance by failing

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to object on confrontation grounds to the trial court’s refusal to admit the magazine as

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evidence; and (2) counsel provided ineffective assistance by failing to request a CALCRIM

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No. 315 instruction.

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DISCUSSION
A. Timeliness

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Initially, respondent asserts Hosley’s petition is barred by the statute of limitations.

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Habeas corpus petitions carry a one-year period of limitation. 28 U.S.C. § 2244(d). Here,

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the applicable accrual date would be “the date on which judgment became final by the

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conclusion of direct review or the expiration of the time for seeking such review.” Id. The

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time for seeking review includes the ninety-day period for seeking certiorari with the

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Supreme Court of the United States. Brown v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

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The California Supreme Court denied review of Hosley’s petition on July 30, 2014, so

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judgment became final ninety days later, on October 28, 2014. Thus, absent any tolling

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provisions, the latest date which Hosley could file a timely petition would be October 29,

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2015.

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Hosley filed his first federal habeas corpus petition on April 17, 2015. (ECF No. 1.)

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On May 4, 2015, the Court dismissed his petition without prejudice for procedural errors,

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with leave to amend through June 6, 2015. (ECF No. 2, at 4-9.) On June 1, 2015, he filed

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a request to proceed in forma pauperis and moved for an extension of time. The motion

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was granted, which extended the time to file his amended petition to August 11, 2015.

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He filed another request for extension on July 30, 2015, and a third on

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October 16, 2015. The latter request was for an extension up to and including
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December 5, 2015. This Court did not rule on those motions, and Hosley filed his amended

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petition on December 6, 2015, which was to be filed nunc pro tunc pending the time

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extension motions. On December 18, 2015, this Court granted both motions for time

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extension and reopened the case. Although his amended petition was filed after the statute

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of limitations had run, a federal court’s extension of time beyond the statutory deadline

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will toll the limitation period. Sossa v. Diaz, 729 F.3d 1225, 1237 (9th Cir. 2013). Thus,

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Hosley’s amended petition for a writ of habeas corpus is timely.

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B. Grounds for Petition

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In Hosley’s petition, he argues his Sixth Amendment right to effective counsel was

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violated when his attorney (i) did not object to the exclusion of a magazine article from

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evidence and (ii) failed to request an instruction under CALCRIM No. 315 be given to the

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jury. (ECF No. 12.) Pursuant to 28 U.S.C. 2254(d), a writ of habeas corpus shall not be

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granted unless the state court unreasonably applied clearly established federal law as

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determined by the U.S. Supreme Court. To establish that counsel was ineffective, petitioner

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must show his attorney’s conduct was both deficient and prejudicial. Strickland v.

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Washington, 466 U.S. 668, 691 (1984). For an alleged error to be prejudicial, petitioner

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must affirmatively prove there is a reasonable probability the result would have been

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different had the error not been made. Id. at 693-94. “The likelihood of a different result

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must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 113 (2011).

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1) Failure to Object under the Confrontation Clause

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Although the Court believes this claim is actually a claim of an erroneous evidentiary

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ruling, both Hosley and the state court treated it as a Confrontation Clause claim. This

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Court will deal with it as such.

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A defendant’s right to confront adverse witnesses is fundamental. Pointer v. Texas,

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380 U.S. 400, 403 (1965). However, the Confrontation Clause guarantees a defendant the

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opportunity to effectively cross-examine the witness, “not cross-examination in whatever

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way, and to whatever extent, the defense might wish.” United States v. Owens, 484 U.S.

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554, 559 (1988). On appeal, the state court ruled that if Hosley’s attorney had objected to
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the exclusion of the evidence on Confrontation Clause grounds, the objection would have

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been overruled because there was other admissible evidence which would have allowed

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the witness to be confronted regarding his veracity. (ECF No. 22-9, at 20.) Indeed, defense

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counsel confronted the witness regarding his contradictory statements and attempted to

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impeach him. (Id.) Therefore, defense counsel had the opportunity for an effective cross-

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examination. Thus, this Court finds the application of Strickland by the state court of

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appeals was not only reasonable but was correct.

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2) Failure to Request CALCRIM No. 315

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Hosley’s second claim of ineffective assistance of counsel is based on the failure to

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request a jury instruction regarding eyewitness identification, CALCRIM No. 315. This

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issue was raised in Hosley’s state collateral attack, but the California court of appeals

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denied his petition without analysis. When the state court does not supply reasoning for its

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decision, “an independent review of the record is required to determine whether the state

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court clearly erred in its application of controlling federal law.” Delgado v. Lewis, 223 F.3d

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976, 982 (9th Cir. 2000).

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Hosley argues that his attorney’s failure to request the eyewitness jury instruction

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was prejudicial because the prosecution’s case was based on the victim’s eyewitness

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identification.

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CALCRIM No. 315 provides for instructions to guide the jury in determining the

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reliability of the eyewitness’s identification such as the “circumstances affecting the

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witness’s ability to observe,” how the “description compare[d] to the defendant,” and

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whether “the witness ever fail[ed] to identify the defendant.” The instructions the state trial

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court gave were similar to CALCRIM No. 315 in many respects including circumstances

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and conditions, accuracy, and consistency. (See ECF No. 22-5, at 189-90.) In fact, those

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instructions included additional factors which were favorable to Hosley such as personal

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“bias or prejudice” and “personal interest in how the case is decided.” (See Id.) Hosley

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argues that because CALCRIM No. 315 leans in his favor, the failure to request was

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prejudicial per se. However, multiple CALCRIM No. 315 factors would have been
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unfavorable to Hosley because “the witness kn[e]w or ha[d] contact with the defendant

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before the event” and very little “time passed between the event and the time when the

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witness identified the defendant.”

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In any event, the evidence against Hosley was overwhelming, and the failure to

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request CALCRIM No. 315 was not prejudicial. The prosecution provided evidence to

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corroborate the victim’s eyewitness identification such as U-Haul rental information which

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showed Hosley had rented a truck during the time of the robbery, tools with the victim’s

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initials in Hosley’s garage, and video which showed Hosley pawned tools identified as the

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victim’s. (ECF 22-9, at 3-4.) If the jury had been given the instruction, there is not a

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substantial likelihood the result of the case would have changed.

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In support of his argument, Hosley cites Palmer, a California appellate court case.

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In Palmer, the Court ruled that the failure to request CALCRIM No. 315 was prejudicial

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because the identification was uncorroborated. People v. Palmer, 154 Cal. App. 3d 79, 83

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(1984). Even if state law were determinative, this case is distinguishable in that there is

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ample evidence corroborating the identification of Hosley.

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Consequently, the failure to request CALCRIM No. 315 was not prejudicial, and no
cognizable ineffective assistance claim exists.

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CONCLUSION

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Thus, the Court recommends Hosley’s petition for writ of habeas corpus be denied.

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Additionally, because no reasonable jurist would consider this conclusion “debatable or

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wrong,” the Court recommends no certificate of appealability issue. See Robertson v.

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Pichon, 849 F.3d 1173, 1187 (9th Cir. 2017) (citation omitted).

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The parties may file written objections within 14 days of service of this report.

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Failure to file objections may result in a waiver of those objections on appeal. Thomas v.

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Arn, 474 U.S. 140 (1985).

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Dated: August 9, 2018

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