Hosley v. Foulk

Filing 67

ORDER denying Petitioner's motion to stay; Denying Petitioner's motion to amend; Overruling Petitioner's objections and adopting the Report and Recommendation. The petition is denied in its entirety. Signed by Judge John A. Houston on 11/30/2020. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WALTER HOSLEY,

Case No.: 15cv00877 JAH-AGS
Petitioner,

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v.

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ORDER DENYING PETITIONER’S
MOTION TO STAY; DENYING
PETITIONER’S MOTION TO
AMEND; OVERRULING
PETITIONER’S OBJECTIONS AND
ADOPTING THE REPORT AND
RECOMMENDATION [Doc. Nos. 40,
54, 56, 63, 66]

SANDRA ALFARO,

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Defendant.

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INTRODUCTION

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After a jury found Petitioner guilty of one count of robbery and two counts of

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burglary, the trial court sentenced Petitioner to 21 years and four months imprisonment.

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Lodg. 5 at 5 (Doc. No. 22-9). Following his unsuccessful appeal and state collateral

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challenges, Petitioner filed a writ of habeas corpus under 28 U.S.C. section 2254. See

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Amended Petition at 6 (Doc. No. 12). The Honorable Clinton E. Averitte, United States

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Magistrate Judge, submitted a Report and Recommendation (“Report”) to this Court

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recommending denial of the petition. See Doc. No. 40. Neither party filed objections and

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this Court adopted the Report. See Doc. No. 44.

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In response, Petitioner filed a motion for relief from judgment and a notice of appeal.

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See Doc. Nos. 41, 44, 45. The Ninth Circuit Court of Appeals held the appeal in abeyance
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pending the Court’s decision on Petitioner’s motion for relief from judgment. This Court

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granted Petitioner’s motion and provided him another opportunity to file objections to the

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Report.

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Petitioner filed objections and, later, filed a motion for stay and abeyance and a

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motion to amend his petition. See Doc. Nos. 54, 56, 63, 66. For the reasons set forth

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below, the Court DENIES Petitioner’s motion for stay and abeyance as moot, DENIES

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Petitioner’s motion to amend and OVERRULES Petitioner’s objections and ADOPTS the

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Report.

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DISCUSSION
I. Motion for Stay and Abeyance

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Petitioner filed a motion to stay the petition while he exhausted an additional ground

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for habeas relief. Because Petitioner provides documentation to demonstrate he exhausted

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and now seeks to amend his petition to add the new ground, his motion to stay is DENIED

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as moot.

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II. Motion to Amend

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Petitioner seeks to amend his petition to add another ground for relief. Habeas

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petitions “may be amended or supplemented as provided in the rules of procedure

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applicable to civil actions.” 28 U.S.C. § 2242. A party may amend a pleading once as a

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matter of course within 21 days after serving a pleading or 21 days after service of a

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responsive pleading or motion and may otherwise amend by leave of court. FED. R. CIV.

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P. 15(a).

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International Association of Machinists & Aerospace Workers v. Republic Airlines, 761

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F.2d 1386, 1390 (9th Cir. 1985). This discretion must be guided by the strong federal

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policy favoring the disposition of cases on the merits. DCD Programs Ltd. v. Leighton,

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833 F.2d 183, 186 (9th Cir. 1987). Even though leave to amend is generally granted freely,

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it is not granted automatically. See Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080,

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1087 (9th Cir. 2002). Four factors are considered when a court determines whether to

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allow amendment of a pleading. These are prejudice to the opposing party, undue delay,

Granting leave to amend rests in the sound discretion of the trial court.

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bad faith, and futility. See DCD Programs, 833 F.2d at 186; see also Foman v. Davis, 371

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U.S. 178, 182 (1962).

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Petitioner seeks to amend his petition to add a new ground for habeas relief asserting

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he was denied due process of law when the state court denied application of California

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Senate Bill 1393. Notwithstanding his reference to due process, a review of his motion to

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amend demonstrates he is solely challenging the state court’s application of California law

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which is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62,

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67-68 (1991) (“Today, we reemphasize that it is not the province of a federal habeas court

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to reexamine state-court determinations on state-law questions.”). Petitioner’s passing

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reference to due process does not transform his state law claim into a cognizable federal

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claim. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).

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Because his proposed additional ground for relief is not cognizable, amendment of

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the petition is futile. Accordingly, Petitioner’s motion to amend is DENIED.

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III. Petitioner’s Objections

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A. Legal Standard

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The district court’s role in reviewing a magistrate judge’s report and

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recommendation is set forth in 28 U.S.C. section 636(b)(1). Under this statute, the district

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court “shall make a de novo determination of those portions of the report . . . to which

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objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate [judge].” Id.

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B. Analysis

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In seeking federal habeas relief, Petitioner asserts he was denied effective assistance

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of counsel when (1) his trial attorney failed to object on confrontation grounds to the trial

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court’s refusal to allow counsel to impeach a witness with a magazine addressing the

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witness’s reputation and (2) failed to request a CALCRIM No. 315 instruction.

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1. Confrontation Clause

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Trial counsel sought to impeach the victim witness with a magazine article which

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included a description of the victim based on his business dealings but the trial court denied
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the request. Lodge. 2 at 28-30 (Doc. No. 22-3). Petitioner asserts trial counsel was

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ineffective when he failed to object to the denial on confrontation clause grounds.

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The California Court of Appeal found the magazine article which discussed the

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victim witness’s reputation in the motorcycle community was only collateral to the case

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and trial counsel had ample opportunity to impeach the witness and cross-examination did

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reveal inconsistencies in the witness’s statements. The court determined there was no

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violation of the confrontation clause. In denying Petitioner’s habeas corpus petition, the

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Court of Appeal determined that Petitioner failed to demonstrate a reasonable probability

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the jury would have found reasonable doubt had counsel challenged the denial on

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confrontation grounds. Lodge. 10 at 2 (Doc. No. 22-14).

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Relying on United States v. Owens, 484 U.S. 554, 559 (1988), Judge Averitte

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reasoned that the confrontation clause does not give a defendant the right to cross-examine

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a witness in any way he wishes and found trial counsel confronted the victim witness on

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his contradictory statements and attempted to impeach him. Judge Averitte determined,

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the state court’s application of Strickland v. Washington, 466 U.S. 668, 691 (1984) was not

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unreasonable.

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Petitioner objects to the findings pointing to various inconsistencies in the victim

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witness’s statements.

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inconsistencies of the witness’s various statements and provided Petitioner the opportunity

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to impeach the witness. As noted by Judge Averitte and the Court of Appeals, “[t]he

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Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not

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cross-examination that is effective in whatever way, and to whatever extent, the defense

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might wish.’” Owens, 484 U.S. at 559 (citing Kentucky v. Stincer, 482 U.S. 730, 739

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(1987). Additionally, Petitioner fails to demonstrate that but for counsel’s failure to object,

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there is a reasonable probability the jury would have reached a different verdict. See

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Strickland, 466 U.S. at 694. Accordingly, counsel’s failure to object to the trial court’s

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denial of his request to impeach the witness with the magazine on confrontation clause

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grounds did not deny Petitioner effective assistance of counsel. This Court, therefore,

Counsel’s cross-examination of the witness revealed the

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agrees the state court’s denial of the claim was neither contrary to nor an unreasonable

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application of clearly established Supreme Court law nor based on an unreasonable

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determination of the facts. Petitioner’s objection is overruled and the Court adopts Judge

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Averitte’s recommendation to deny this claim.

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2. CALCRIM No. 315 instruction

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Petitioner argues counsel was ineffective for failing to request the trial court give

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jury instruction CALCRIM No. 315 because eye witness identification was a critical and

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contested issue at trial. The Court of Appeal did not address the argument in the opinion

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denying Petitioner’s appeal. However, in the denial of his petition for a writ of habeas

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corpus, the Court of Appeal determined Petitioner failed to demonstrate a reasonable

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probability the jury would have found reasonable doubt had counsel requested the court

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give the instruction. Lodge. 10 at 2 (Doc. No. 22-14).

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Noting the Court of Appeal did not address the issue in Petitioner’s direct appeal,

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Judge Averitte conducted an independent review and found the trial court gave instructions

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similar to CALCRIM No. 315 that included factors which were favorable to Petitioner such

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as “personal bias or prejudice” and “personal interest in how the case is decided.” Although

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Petitioner argued failure to give the instruction was per se prejudicial, Judge Averitte

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determined some CALCRIM No. 315 factors would have been unfavorable to Petitioner

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because the witness knew or had contact with Petitioner before the event and very little

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time passed between the event and the time when the witness identified Petitioner.

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Additionally, Judge Averitte found because the evidence against Petitioner, which included

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U-Haul rental information showing Petitioner rented a truck during the time of the robbery,

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tools with the victim’s initials in Petitioner’s garage, and video which showed Petitioner

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pawned tools identified as belonging to the victim, was overwhelming, the failure to

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request CALCRIM No. 315 was not prejudicial. Judge Averitte determined there is not a

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substantial likelihood the result of the case would have changed if the court gave the jury

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the instruction. Judge Averitte also found the state law case Petitioner relies upon

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distinguishable because, unlike the case cited by Petitioner, there was significant evidence

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to corroborate the identification in Petitioner’s trial.

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Petitioner objects. He points to factors in CALCRIM No. 315 he deems favorable.

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He also maintains People v. Palmer, 154 Cal.App.3d 79, 89 (1984), the case distinguished

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by Judge Averitte, supports that only an instruction such as CALCRIM No. 315 can protect

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a defendant when eyewitness identification is an issue at trial.

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This Court agrees with Judge Averitte that there is no substantial likelihood the result

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of case would have changed in light of the overwhelming evidence of Petitioner’s guilt.

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Accordingly, Petitioner fails to demonstrate ineffective assistance of counsel. The Court

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overrules Petitioner’s objections and adopts Judge Averitte’s recommendation to deny this

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ground for relief.

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C. Evidentiary Hearing

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In his objections, Petitioner requests a hearing. The Court finds Petitioner is not

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entitled to an evidentiary hearing. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir.

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1998).

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CONCLUSION AND ORDER

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Based on the foregoing, IT IS HEREBY ORDERED:

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1.

Petitioner’s motion for stay and abeyance (Doc. No. 56) is DENIED as moot.

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2.

Petitioner’s motion to amend his petition (Doc. Nos. 63, 66) is DENIED.

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3.

Petitioner’s objections to the Magistrate Judge’s report and

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recommendation are OVERRULED.

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The Magistrate Judge’s report and recommendation is ADOPTED.

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The petition is DENIED in its entirety.

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DATED:

November 30, 2020
_________________________________
JOHN A. HOUSTON
United States District Judge

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