Farley v. Soto
Filing
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REPORT AND RECOMMENDATION recommending that the 1 Petition for Writ of Habeas Corpus be denied. Objections to R&R due by 3/24/2017, Replies due by 4/7/2017. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Courts order. Signed by Magistrate Judge Bernard G. Skomal on 3/3/17. (All non-registered users served via U.S. Mail Service)(kas)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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CRAIG FARLEY,
Case No.: 16CV188 LAB (BGS)
Petitioner,
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v.
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REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE TO
DENY PETITION FOR WRIT OF
HABEAS CORPUS
SCOTT KERNAN,
Respondent.
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Petitioner Craig Farley (“Petitioner” or “Farley”) has filed a Petition for Writ of
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Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of first degree
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murder, robbery, and burglary.1 (Lodgment 3, Part 1 at 85, 92, 96.) The jury additionally
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found Petitioner committed the murder while engaged in a robbery and burglary, that
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Petitioner committed all three crimes for the benefit of a criminal street gang, and that
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while acting as a principal another principal used and personally discharged a firearm
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proximately causing great bodily injury or death. (Id. at 88-91.) The jury also found
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Petitioner committed the burglary and robbery in an inhabited dwelling. (Id. at 92, 96.)
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Case No. SCD 229026 in the Superior Court of San Diego County
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16CV188 LAB (BGS)
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Petitioner was sentenced to life without the possibility of parole plus an additional
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consecutive sentence of 25 years to life. (Lodgment 1, Part 14 at 3088.)
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The Court addresses nine claims2 for habeas relief: (1) ineffective assistance of
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trial counsel for failing to introduce evidence of witnesses’ failure to identify him in a
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live police line-up; (2) ineffective assistance of trial counsel for failing to present
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evidence of innocent explanations for Petitioner’s behavior following the murder; (3)
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ineffective assistance of trial and appellate counsel for failing to raise insufficiency of the
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evidence for first degree murder; (4) ineffective assistance of trial and appellate counsel
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for failing to raise a Batson/Wheeler challenge; (5) ineffective assistance of trial counsel
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for failing to raise third-party culpability as to Leroy Thomas; (6) admission of
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inadmissible gang expert opinion; (7) juror misconduct; (8) admission of evidence of
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Petitioner’s tattoos; and (9) exclusion of evidence of third-party culpability as to David
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Foster. (Pet. [ECF No. 1]3.) Respondent filed an Answer and Petitioner filed a Traverse.
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[ECF Nos. 18, 26.]
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The Court submits this Report and Recommendation to United States District
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Judge Larry A. Burns pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the
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United States District Court for the Southern District of California. After consideration
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of the Petition, Respondent’s Answer, Petitioner’s Traverse, as well as lodgments and
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exhibits submitted by the parties, the Court recommends the Petition be DENIED.
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In an effort to address all the issues potentially raised by Petitioner, the Court has
organized the issues raised in the Petition into nine claims. In analyzing each, the Court
notes where each was identified in the Petition and, if applicable, any corresponding
ground identified in the Petition. As the Court explains in more detail below, three of the
claims the Court addresses were not identified as “grounds” for relief in the Petition, but
rather, were listed as claims that were raised on collateral review before the state courts.
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All citations to the Petition are to the ECF chronological page numbers for ease of
reference.
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I.
BACKGROUND
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A.
Factual Background
This Court gives deference to state court findings of fact and presumes them to be
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correct; Petitioner may rebut the presumption of correctness, but only by clear and
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convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20,
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35-36 (1992) (holding findings of historical fact, including inferences properly drawn
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from these facts, are entitled to statutory presumption of correctness). Accordingly, the
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following facts are taken from the California Court of Appeal’s November 14, 2014
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opinion:
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A. The murder
Victim Jonathan Pleasant sold marijuana from his apartment. He often
possessed considerable amounts of marijuana, which he kept in a
backpack, as well as large amounts of cash. Pleasant kept a gun by his
bed, and sometimes carried the gun on his person.
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Pleasant spent the evening of June 28, 2010 at home with his
girlfriend, Esther Magnus. During the evening, Pleasant left the
apartment with about $2,000 in cash. He returned with several bags of
marijuana. At about 10:30 p.m. that evening, Farley came to
Pleasant’s apartment. While at the apartment, the two men smoked
marijuana and discussed a marijuana purchase. Farley said that he did
not have money, but that he would return. Ten minutes later, Farley
returned and told Pleasant that he would come back the following
morning to buy the marijuana. Farley departed the apartment.
The next morning, Pleasant and Magnus discussed their plan to go out
together that day. At approximately 11:15 a.m., Magnus left
Pleasant’s apartment. The two planned for Pleasant to meet Magnus at
her residence just after noon. Magnus testified that before she left,
Pleasant told her that he was waiting for Farley to come to the
apartment. Pleasant also told Magnus that his friend, Corey Wishom,
was planning to stop by the apartment, as well.
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As Magnus was leaving, Pleasant’s neighbor, Mark Dobie, came to
the apartment and smoked marijuana with Pleasant. While the two
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visited, Pleasant received a phone call. Dobie heard Pleasant tell the
caller to “hurry up and come” because Pleasant had to leave soon.
Soon thereafter, Wishom arrived at Pleasant’s apartment. Dobie met
Wishom and then went back to his own apartment. Pleasant showed
his marijuana to Wishom, who purchased some. Following a short
visit, Wishom said goodbye to Pleasant and began to leave the
apartment.
As Wishom was leaving, two men arrived at Pleasant’s door. Pleasant
said to one of the men, “Oh, I've been waiting for you.” One of the
men stepped into the living room and said, “This is my brother and
he’s cool.” Wishom testified that both men were African–American.
The man who said, “[t]his is my brother and he’s cool” was wearing
black Nike shoes, black basketball shorts, white socks pulled up to his
knees, a black hoodie, and a backpack strapped to his chest. The man
had short clipped hair and a tattoo on the top of one of his arms. Apart
from his race, Wishom was unable to provide any further description
of the second man. After this short encounter, which occurred at
approximately 11:30 a.m., Wishom left the apartment.
Pleasant’s neighbor, Lynshel Reid–Jones, testified that at about this
time, she heard a melee and a loud “boom” come from Pleasant’s
apartment. Reid–Jones then heard Pleasant crying for help. Reid–
Jones looked outside and saw two young African–American males
sprinting from Pleasant’s apartment with a backpack that she believed
belonged to Pleasant.
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At 11:44 a.m., Dobie received a phone call from his sister, Breanna
Sandle, saying that she had just seen two men running from the
apartment complex and that it appeared that someone had been
robbed. Sandle testified that she saw two African–American males,
who appeared to be in their 20s, running from the apartment complex.
One of the men was wearing a backpack. When shown a photographic
lineup by police, Sandle focused on two of the photographs, one of
which depicted Farley, before telling the officer that she could not be
sure whether he was one of the men she had seen fleeing the
apartment complex.
Immediately after the shooting, several neighbors attempted to help
Pleasant, who was bleeding profusely. Pleasant cried, “ ‘They shot
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me. They shot me. Oh, God, they shot me.’ ” Emergency personnel
responded to the apartment and pronounced Pleasant dead at the
scene.
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B. The crime scene
Investigators determined that Pleasant sustained a large gunshot
wound to his right buttock. The nature of the wound suggested that
Pleasant had been shot from a range of approximately one to three feet
away. Pleasant also suffered blunt force trauma to his head, consistent
with his having been struck by a gun.
Pleasant’s apartment was in disarray, consistent with a struggle or
fight having occurred. Police found a slide from a firearm, handcuffs,
and a handcuff key in a hallway. Police also found an open, empty
safe on the floor of a bedroom and a bag of marijuana on the living
room floor. In addition, police found a black Pittsburgh Pirates
baseball cap in the living room and a roll of duct tape in the bathroom.
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C. DNA and fingerprint evidence
Investigators determined that Farley’s DNA was on the duct tape.
Police found DNA from a person named Pierre Terry on the baseball
cap. Terry’s DNA was also found on the gun slide, on blood samples
collected from the apartment, and in fingernail scrapings taken from
Pleasant. Terry’s fingerprints were also found on artwork in the living
room.
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D. Cell phone records
On the morning of the murder, several short calls were made between
Farley’s and Pleasant’s cell phones, between 10:37 a.m. and 10:39
a.m. At 11:30 on the morning of the murder, the signal from an
outgoing phone call made on Farley’s phone that lasted 59 seconds
terminated at a cell phone tower located on Pleasant’s apartment
building. A text message was sent from Terry’s phone to Farley’s
phone at 11:33 a.m. From 11:31 a.m. until 11:48 a.m. there was no
activity on Farley’s cell phone. Beginning at 11:50 a.m., Farley and
Terry exchanged numerous text messages. Less than two hours later, a
request was made to Farley’s cell phone provider for a new phone
number. The request was granted. Cell phone records for Farley’s new
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cell phone number showed him leaving California the following
morning and traveling across the United States to Louisiana.
E. Farley’s arrest, escape and rearrest
Approximately a month and a half after the murder, authorities in
Baton Rouge, Louisiana arrested Farley and took him to a police
station. Farley escaped from the station and ran down a nearby street.
With the assistance of a police dog, police found Farley hiding in a
garbage can.
While being transported back to San Diego, Farley asked one of the
officers if he could be charged with a gang crime because the other
defendant was a gang member. While the officer had made some
statements about the case to Farley, he had not said anything to Farley
about the other defendant in the case being a gang member.
Police found several items in a Baton Rouge hotel room where Farley
had been staying, including a laptop computer. It was later determined
that searches had been performed on the computer related to the
murder and the ensuing investigation.
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F. Gang Evidence
Detective Joseph Castillo of the San Diego Police Department
testified as a gang expert. Detective Castillo stated that the Skyline
“Piru” gang is the largest African–American gang in San Diego. Gang
members wear the color red and sometimes wear Pittsburgh Pirates
baseball caps. Detective Castillo stated that the primary activities of
the Skyline Piru gang include murder and robbery.
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Castillo testified that Pierre Terry is a documented Skyline gang
member and that Farley also appeared to be a Skyline Piru gang
member, although he had not previously been documented. In
addition, . . . Castillo offered his opinion that a hypothetical crime
based on the evidence in this case would benefit, promote, assist and
further the criminal conduct of the Skyline Piru gang.
(Lodgment 6. at 3-8.)
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Petitioner was found guilty of first degree murder (Cal. Penal Code § 187(a));
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robbery (Cal. Penal Code § 211); and burglary (Cal. Penal Code § 459). (Lodgment 3,
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Part 1 at 85, 92, 96.) The jury additionally found Petitioner committed the murder while
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engaged in a robbery and burglary, (Cal. Penal Code § 190.2(a)(17)), that Petitioner
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committed all three crimes for the benefit of a criminal street gang, (Cal. Penal Code §
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186.22(b)(1)), and that while acting as a principal another principal used and personally
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discharged a firearm proximately causing great bodily injury or death, (Cal. Penal Code §
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122022.53(b)-(d), (e)(1). (Lodgment 3; Part 1 at 88-91.) The jury also found Petitioner
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committed the burglary and robbery in an inhabited dwelling, (Cal. Penal Code §
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212.5(a)). (Lodgment 3, Part 1 at 92, 96.)
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B.
Procedural Background
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Following multiple days of testimony before the trial court on Petitioner’s motion
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for a new trial approximately a year after Petitioner was convicted, including testimony
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from his trial counsel, Petitioner’s parents, and Petitioner, the trial court found Petitioner
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was not entitled to a new trial. Petitioner filed an appeal to the Fourth District Court of
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Appeal in which he argued he received ineffective assistance of counsel based on trial
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counsel’s failure to present evidence he was not identified by two witnesses in live police
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line-ups and innocent explanations for his departure to Louisiana immediately after the
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murder, his internet search history, and the changing of his phone number the day of the
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murder. (Lodgment 4 at 9-21.) He additionally argued the trial court erred in admitting
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gang expert testimony, failing to question a juror regarding potential misconduct,
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admitting evidence of Petitioner’s tattoos, and failing to allow evidence of third-party
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culpability as to David Foster, the victim’s brother. (Id. at 21-43.)
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The Court of Appeal found no ineffective assistance of counsel and no error by the
trial court.4 (Lodgment 6.) Petitioner filed a Petition for Review with the California
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The Court of Appeal did strike a parole revocation fine because Petitioner was
sentenced to life without the possibility of parole.
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Supreme Court raising the same claims. (Lodgment 7.) It was summarily denied.
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(Lodgment 8.)
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Petitioner then filed a writ of habeas corpus in San Diego Superior Court.5
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Petitioner raised claims that his trial and appellate counsel were ineffective for failing to
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raise: (1) third-party culpability as to Leroy Thomas; (2) insufficiency of the evidence for
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First Degree Murder; and (3) a Batson/Wheeler challenge. (Lodgment 9.) The superior
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court denied the petition, finding as to each claim that Petitioner had failed to set forth an
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adequate record to allow the court to conduct a rational review. (Lodgment 10.)
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Petitioner then filed a petition with the Fourth District Court of Appeal raising the same
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claims (Lodgment 11.) The Court of Appeal denied his petition, finding he failed to
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provide any record to support his claims. (Lodgment 12.) Petitioner then filed a Petition
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for Review with the California Supreme Court raising the same claims. (Lodgment 13.)
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The California Supreme Court summarily denied his Petition for Review. (Lodgment
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14.)
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II.
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STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
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applicable to this Petition, a habeas petition will not be granted unless that adjudication:
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(1) resulted in a decision that was contrary to, or involved an unreasonable application of
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clearly established federal law; or (2) resulted in a decision that was based on an
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unreasonable determination of the facts in light of the evidence presented at the state
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court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). “This is a
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‘difficult to meet’ and ‘highly deferential standard for evaluating state-court rulings,
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which demands that state-court decisions be given the benefit of the doubt.’” Cullen v.
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Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102
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(2011); Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
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Case No. HC22111.
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“The ‘contrary to’ and ‘unreasonable application of’ clauses in § 2254(d)(1) are
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distinct and have separate meanings.” Moses v. Payne, 555 F.3d 742, 751 (9th Cir. 2008)
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(citing Lockyer v. Andrade, 538 U.S. 63, 73-75 (2003)). “Under the ‘contrary to’ clause
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of § 2254(d)(1), a federal court may grant relief only when ‘the state court arrives at a
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conclusion opposite to that reached by the Supreme Court on a question of law or if the
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state court decides a case differently than the Supreme Court has on a set of materially
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indistinguishable facts.’” Loher v. Thomas, 825 F.3d 1103, 1111 (9th Cir. 2016) (quoting
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Williams v. Taylor, 529 U.S. 362, 413 (2000)).
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“Under the ‘unreasonable application’ clause of § 2254(d)(1), ‘a state-court
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decision involves an unreasonable application of the Supreme Court’s precedent if the
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state court identifies the correct governing legal rule . . . but unreasonably applies it to the
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facts of the particular state prisoners case.’” Id. (quoting White v. Woodall, 134 S. Ct.
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1697, 1705 (2014). Unreasonable application is “not merely wrong” or “even clear
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error.” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015). It must be “objectively
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unreasonable.” Id. “To satisfy this high bar, a habeas petitioner is required to ‘show that
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the state court’s ruling on the claim being presented in federal court was so lacking in
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justification that there was an error well understood and comprehended in existing law
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beyond any possibility for fairminded disagreement.’” Id. at 1377 (quoting Harrington,
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562 U.S. at 103). “[R]elief is available under § 2254(d)(1)’s unreasonable application
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clause if, and only if, it is obvious that a clearly established rule applies to a given set of
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facts that there could be no ‘fairminded disagreement’ on the question.” Woodall, 134 S.
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Ct. at 1706-07 (citing Harrington, 562 U.S. at 103); see also Williams, 529 U.S. at 411
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(“[A] federal habeas court may not issue the writ simply because that court concludes in
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its independent judgment that the relevant state-court decision applied clearly established
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federal law erroneously or incorrectly. Rather, that application must also be
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unreasonable.”).
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Under § 2254(d)(2) “a petitioner may challenge the substance of the state court’s
finding and attempt to show that those findings were not supported by substantial
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evidence” or “challenge the fact-finding process itself on the ground that it was deficient
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in some material way.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012).
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“Regardless of the type of challenge, ‘the question under AEDPA is not whether a federal
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court believes the state court’s determination was incorrect but whether that
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determination was unreasonable — a substantially higher threshold.” Id. “[W]hen the
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challenge is to the state courts procedure, . . . [the court] must be satisfied that any
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appellate court to whom the defect in the state court’s fact-finding process is pointed out
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would be unreasonable in holding that the state courts fact-finding process was
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adequate.’” Id. at 1146-47; see also Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir.
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2004). (the federal court “must be convinced that an appellate panel, applying the normal
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standards of appellate review, could not reasonably conclude that the finding is supported
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by the record.”).
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Section 2254(e) (1) provides: “a determination of a factual issue made by a State
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court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has “the
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burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.
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Where, as here, there is no reasoned decision from the state’s highest court, the
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Court “looks through” to the last reasoned decision and presumes it provides the basis for
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the higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797,
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805-06 (1991);6 see also Johnson v. Williams, 133 S. Ct. 1088, 1094 n.1 (2013). Here,
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the California Court of Appeal’s November 14, 2014 decision is the last reasoned
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decision on most of Petitioner’s claims.7
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The Court notes that the United States Supreme Court granted certiorari in Wilson v.
Sellers, 2017 WL 737820, on February 27, 2017 to address whether the Supreme Court’s
decision in Harrington, 562 U.S. 86 silently abrogated Ylst’s direction to look through a
summary ruling to the last reasoned decision.
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The Court of Appeal’s October 14, 2015 decision, that takes notice of the November 14,
2015 decision on direct appeal, is the last reasoned decision on the three claims raised
only on collateral review: (1) ineffective assistance of counsel for failing to raise thirdparty culpability as to Leroy Thomas; (2) ineffective assistance of counsel for failing to
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III.
DISCUSSION
A.
Ineffective Assistance of Counsel Claims
Petitioner raises numerous claims regarding ineffective assistance of counsel. He
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argues his trial counsel should have presented evidence that Breanna Sandle and Corey
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Wishom failed to identify Petitioner in live police line-ups. (Pet. at 2, 5; Lodgment 7 at
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5-9.8) Petitioner argues his trial counsel should have presented evidence of innocent
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explanations for his trip to Louisiana, his internet search history while there, and his
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change in phone number following the murder. (Pet. at 4; Lodgment 7 at 9-14.) Finally,
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Petitioner argues his trial and appellate counsel were ineffective for failing to raise
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sufficiency of the evidence for first degree murder, third-party culpability as to Leroy
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Thomas, and a Batson/Wheeler challenge. (Pet. at 12; Lodgment 13 at 8-25.) Each claim
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is addressed below.
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When evaluating claims for ineffective assistance of counsel under ADEPA, the
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Court’s review is “‘doubly deferential’ in order to afford ‘both the state court and the
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defense attorney the benefit of the doubt.” Woods, 135 S. Ct. at 1376 (quoting Burt v
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Titlow, 134 S. Ct. 10, 13 (2013)). As explained more fully below, review under
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Strickland, the standard for evaluating an ineffective assistance of counsel claim, is
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deferential to counsel’s decisions, and review under AEDPA is deferential to the state
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court’s decision finding no violation of Strickland. See Harrington, 562 U.S. at 105
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(“The standards created by Strickland and § 2254(d) are both highly deferential and when
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the two apply in tandem, review is doubly so.”)
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raise insufficiency of the evidence; and (3) ineffective assistance of counsel for failing to
raise a Batson/Wheeler challenge. (Lodgment No. 12.)
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In addition to the arguments Petitioner makes in the Petition itself, he refers to Exhibit A
attached to his Petition, his December 23, 2014 Petition on direct appeal to the California
Supreme Court, for more elaboration on numerous claims. The Court’s analysis takes
into consideration the arguments advanced in that filing, including the final page, not
included as part of Exhibit A, but provided by Respondent in Lodgment 7. All further
references are to Lodgment 7.
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Under Strickland, a defendant must “show that counsel’s performance was deficient.”
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Strickland v. Washington, 466 U.S. 668, 687 (1984). This “first prong sets a high bar.”
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Buck v. Davis, 2017 WL 685534, at *13 (2017). “A defense lawyer navigating a criminal
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proceeding faces any number of choices about how best to make a client’s case.” Id.
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Counsel’s constitutional obligation under Strickland is satisfied “so long as his decisions
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fall within the ‘wide range’ of professionally competent assistance.” Id. (quoting
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Strickland, 466 U.S. at 690); see also Harrington, 562 U.S. at 104 (A reviewing court
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must indulge “a strong presumption that counsel’s representation was within the ‘wide
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range’ of reasonable professional assistance.”). “The question is whether an attorney’s
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representation amounted to incompetence under ‘prevailing professional norms,’ not
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whether it deviated from best practices or most common custom.” Harrington, 562 U.S.
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at 105 (quoting Strickland, 466 U.S. at 690.) “It is only when the lawyer’s errors were
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‘so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth
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Amendment’ that Strickland’s first prong is satisfied.” Buck, 2017 WL 685534, at *13
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(quoting Strickland, 466 U.S. at 687).
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The Court need not address both the deficiency prong and the prejudice prong if
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the defendant fails to make a sufficient showing of either one. Strickland, 466 U.S. at
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697. However, assuming a defendant can establish deficient performance under this
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highly deferential standard, prejudice must also be shown. Harrington, 562 U.S. at 104.
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“It is not enough ‘to show that the errors had some conceivable effect on the outcome of
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the proceeding.’” Id. (quoting Strickland, 466 U.S. at 693). A defendant “must
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demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the
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result of the proceeding would have been different. A reasonable probability is a
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probability sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland,
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466 U.S. at 694); see also Buck, 2017 WL 685534, at *14. “This requires showing that
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counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
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result is reliable.” Strickland, 466 U.S. at 687.
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When evaluating claims of ineffective assistance of counsel under § 2254(d), as the
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Court is here, the court is not considering “whether defense counsel’s performance fell
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below Strickland’s standard.” Harrington, 562 U.S. at 101. “The pivotal question is
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whether the state court’s application of the Strickland standard was unreasonable.” Id.
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“A state court must be granted a deference and latitude that are not in operation when the
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case involves review under the Strickland standard itself.” Id. “When § 2254(d) applies,
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the question is not whether counsel’s actions were reasonable. The question is whether
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there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”
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Id. at 105.
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Failing to Introduce Evidence of Live Police Line-Ups9
Trial counsel did not introduce evidence that Sandle and Wishom failed to identify
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Petitioner in live line-ups. Petitioner argues this would have provided further evidence
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that he was not one of the individuals observed at Pleasant’s apartment before the murder
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or fleeing the apartment following the murder. (Pet. at 5; Lodgment 7 at 5-9) Petitioner
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argues this evidence was significant because the live line-ups occurred on September 17,
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2010 in closer proximity to the murder and when the prosecutor had obtained a “no
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haircut” order to allow witnesses to see him with a hairstyle similar to that he would have
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had at the time of the murder. (Lodgment 7 at 5.) The witnesses in-court non-
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identification of Petitioner did not occur until his trial in October 2011. Petitioner
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additionally argues this testimony was significant because both Sandle and Wishom
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testified they tentatively selected Petitioner in photographic line-ups before indicating
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they did not know if he was one of the individuals they saw. (Id. at 7.) Petitioner also
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argues that this evidence could have been presented through the officer that conducted
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27
28
9
Petitioner raises this issue in Ground One of his Petition with a reference to his
December 23, 2014 Petition on direct appeal to the California Supreme Court, for more
elaboration. As noted above, the Court has considered these arguments and all references
are to Lodgment No. 7.
13
16CV188 LAB (BGS)
1
the live line-up to avoid having Sandle or Wishom change their mind and identify
2
Petitioner. (Id. at 8.) Petitioner also argues trial counsel’s concern that the live line-up
3
evidence would emphasize police suspicion was unreasonable because police suspicion
4
would be obvious from Petitioner being charged with murder. (Id. at 8.)
5
Respondent argues that, given neither witness had identified Petitioner at trial and
6
both confirmed on cross examination that they did not identify Petitioner in six-pack
7
photographic line-ups conducted shortly after the murder, his trial counsel made a
8
reasonable tactical decision not to introduce additional evidence of non-identification in
9
the live police line-ups. Respondent emphasizes trial counsel’s testimony during the
10
hearing on Petitioner’s motion for a new trial that he did not want to give the witnesses a
11
chance to change their testimony by raising the live police line-ups or emphasize the
12
police interest in Petitioner.
13
The Court of Appeal concluded that counsel’s decision did not fall below
14
“prevailing professional norms.” (Lodgment 6 at 13.) The Court considered Petitioner’s
15
argument that the live line-up evidence could have been presented through the testimony
16
of the officers conducting it, avoiding the risk that the witnesses would reconsider their
17
non-identification of Petitioner on cross examination and identify him. (Id. at 12.) The
18
court also considered defense counsel’s testimony that he decided not to offer the live
19
line-up evidence because neither witness had identified Petitioner at trial and he wanted
20
to avoid emphasizing to the jury that Petitioner was a suspect immediately after the
21
murder. (Id. at 12.) The Court of Appeal found trial counsel could reasonably have
22
determined that additional evidence of a non-identification was of “marginal benefit.”
23
(Id. at 13.)
24
The Court of Appeal’s decision was not unreasonable. At the hearing on
25
Petitioner’s motion for a new trial, Petitioner’s trial counsel testified that he decided not
26
to introduce evidence that Wishom and Sandle had not identified Petitioner at live line-
27
ups because neither had identified Petitioner at trial. (Lodgment 1, Part 11 at 2567-68.)
28
He explained that “nobody in the courtroom was pointing the finger at him as an offender
14
16CV188 LAB (BGS)
1
in the case, I didn’t want to go back and rehash the police’s suspicion that he’d been one
2
of the offenders and had been in a line-up. I made a conscious decision not to present
3
that evidence.” (Id. at 2568.) He indicated he had a lack of in-court identification in
4
front of the jury and he did not want to risk giving them an opportunity on cross
5
examination to say something different. (Id. at 2604-05.) And, he stated more generally,
6
“it is my view that when – when there is a lack of an in-court identification of the
7
defendant, of my client, as an offender, that I don’t want to go back and give them
8
another chance to make their statement of identification better.” (Id. at 2603.)
9
There is certainly at least a reasonable argument that counsel satisfied Strickland’s
10
deferential standard. Harrington, 562 U.S. at 105 (“the question is not whether counsel’s
11
actions were reasonable. The question is whether there is any reasonable argument that
12
counsel satisfied Strickland’s deferential standard.”) No witness had identified Petitioner
13
at the location of the murder at the time of the murder and the two witnesses that did see
14
the individuals believe to be responsible for the murder coming and going from the
15
apartment did not identify Petitioner in court. There may have been some benefit in
16
emphasizing that Petitioner was also not identified at the live line-ups, closer to the time
17
to when the witnesses would have seen him. But, when weighed against trial counsel’s
18
concerns about the witnesses reconsidering their testimony or emphasizing further that
19
Petitioner was a suspect shortly after the murder, there is at least a reasonable argument
20
that counsel’s decision fell “within the ‘wide range’ of reasonable professional
21
assistance.” Id. at 104. The Court recommends Petitioner’s claim for ineffective
22
assistance of counsel for failing to introduce evidence of the live police line-ups be
23
DENIED.
24
25
26
27
28
15
16CV188 LAB (BGS)
1
2.
Failing to Introduce Evidence of Innocent Explanations10
At trial, the prosecutor argued Petitioner’s flight from San Diego to Louisiana, his
2
3
searching for information on who was in jail and for warrants issued for himself and
4
others, and his phone number change right after the murder reflected consciousness of
5
guilt. Petitioner argues his trial counsel should have presented evidence of innocent
6
explanations for his trip to Louisiana, his internet search history, and his change in phone
7
number the day of murder. (Pet. at 4; Lodgment 7 at 9-14.) The Court considers each.
8
a)
9
Trip to Louisiana
Petitioner asserts trial counsel was ineffective in failing to introduce evidence of
10
Petitioner’s calls to and from his wife in Louisiana in the months preceding the murder to
11
provide an innocent explanation why Petitioner went to Louisiana — it was a preplanned
12
trip to visit his wife rather than flight following a murder. (Pet. at 5; Lodgment 7 at 9-
13
10.) Respondent argues the innocent explanation for the trip to Louisiana that Petitioner
14
wanted his trial counsel to put before the jury was extremely problematic and declining to
15
do it was a tactical decision.
The Court of Appeal found trial counsel’s decision not to present evidence of
16
17
Petitioner’s communications with his wife in the months leading up to the murder was a
18
reasonable tactical decision. (Lodgment 6 at 16.) The court noted trial counsel had
19
explained he found Petitioner’s story regarding the trip preposterous and did not think it
20
would be well received by the jury. (Id.) Petitioner claimed that he preplanned the trip to
21
visit his wife, from whom he was separated, for his wedding anniversary, and brought his
22
girlfriend, a prostitute, on the trip for “female companionship.” (Id. at 14.) The court
23
also explained that trial counsel thought Petitioner’s wife and girlfriend, each of which
24
might have had to testify to the trip, particularly given Petitioner elected not to testify a
25
26
27
28
10
As with the prior claim, Petitioner raises this claim in Ground One of his Petition and
refers to his Petition to the California Supreme Court on direct appeal for more
elaboration.
16
16CV188 LAB (BGS)
1
week before trial, would not have been seen as credible. (Id. at 15.) The court also found
2
that while evidence of Petitioner’s communications with his wife in Louisiana might have
3
explained his going to that location, as opposed to another, it did not explain the timing of
4
the trip, the day after the murder. (Id. at 15-16.)
5
As to Petitioner’s wife, trial counsel testified that she “presented big problems,
6
potential problems . . . . She’d been interviewed by the police in the case, she was made
7
aware that Mr. Farley had come together with his other girlfriend, who was a prostitute,
8
and she was decidedly unhappy about that.” (Id. at 2631.) Trial counsel also explained
9
that Petitioner’s girlfriend would not have been a good witness. (Id. at 2594.) He
10
indicated he could not determine whether she was lying when they spoke and that
11
because she was a prostitute, she brought with her significant baggage, including that the
12
jury might think that Petitioner was her pimp, particularly given that she had apparently
13
prostituted herself on their trip. (Id. at 2566, 2590, 2594.) He acknowledges that having
14
an innocent explanation for the trip would have been helpful, but the options to present it
15
once Petitioner decided not to testify were not good. (Id. at 2594.) Although the Court of
16
Appeal did not specifically rely on it, trial counsel also explained that he relied on
17
Petitioner’s cell phone records, admitted by the prosecutor, showing calls between
18
Petitioner and a phone number with a Louisiana area code prior to the murder and argued
19
that this connection to someone in Louisiana prior to the murder showed an alternate
20
reason for his trip to Louisiana other than fleeing. (Id. at 2607-08, 2630-31.)
21
Trial counsel chose to avoid an undesirable and potentially unbelievable
22
explanation for the trip and having that less-than-appealing story presented by bad
23
witnesses to a jury. “[I]t is all too easy for a court, examining counsel’s defense after it
24
has proved unsuccessful, to conclude that a particular act or omission of counsel was
25
unreasonable.” Strickland, 466 U.S. at 689. But, the reviewing court must make every
26
effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
27
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
28
the time.” Id. Counsel identified significant problems with Petitioner’s explanation for
17
16CV188 LAB (BGS)
1
the trip in both the trip itself and the witnesses that would have to testify to it. He
2
decided not to attempt to get that explanation in front of the jury, and instead emphasized
3
evidence that Petitioner knew someone in Louisiana that he was communicating with
4
prior to the murder to suggest he was not fleeing. If trial counsel had sought to admit
5
evidence of Petitioner’s calls to his wife in advance of the murder to show the trip was
6
preplanned, the trip itself, with all its baggage, might have been presented to the jury. If
7
that had happened, Petitioner would surely be arguing now that counsel was ineffective
8
for putting that unfavorable and less-than-credible story in front of the jury instead of just
9
relying on phone records showing his calls to a Louisiana number prior to the murder for
10
an innocent explanation. It is exactly the type of decision that should not be second-
11
guessed, particularly under AEDPA’s doubly deferential review. See Woods, 135 S. Ct.
12
at 1376 (explaining doubly deferential review based on deference to both the state court
13
and the defense attorney’s decisions). The Court of Appeal’s conclusion that counsel did
14
not provide ineffective assistance in failing to present evidence of Petitioner’s calls to his
15
wife prior to the murder was not unreasonable. The Court recommends Petitioner’s claim
16
for ineffective assistance of counsel for failing to introduce evidence of Petitioner’s
17
communications with his wife prior to the murder be DENIED.
18
b)
Evidence of Petitioner’s Communications with His Parents
Petitioner asserts trial counsel failed to introduce evidence Petitioner’s parents told
19
20
him about the murder and the execution of a search warrant at their home related to the
21
murder while he was in Louisiana and evidence his mother changed his phone number.11
22
23
As to the issue of counsel failing to present testimony from Petitioner’s mother that she
changed his phone number, the claim is not clearly raised. The only reference in the
Petition or Traverse to it is under a section where he lists the claims he raised on direct
appellate review. (Pet. at 4.) In listing the claim raised on direct appeal for ineffective
assistance of counsel for failing to provide innocent explanations for the trip to Louisiana
and his internet searches, he also includes “the change in phone number.” (Id.). Unlike
the remainder of that claim, that he raises in Ground One in his Petition, he does not
otherwise raise this issue in his Petition or Traverse. Additionally, there is nothing else in
11
24
25
26
27
28
18
16CV188 LAB (BGS)
1
(Pet. at 5; Lodgment 7 at 11-14.) He asserts that this information would have provided an
2
innocent explanation for his internet searches for warrants and on the “Who’s in Jail”
3
website for himself and his co-defendant Terry as well as his question to a police officer
4
that escorted him from Louisiana to San Diego concerning whether he could be charged
5
with a gang crime because the other defendant was a gang member. (Pet. at 5; Lodgment
6
7 at 11-12.)
7
Respondent argues trial counsel’s decision not to introduce evidence Petitioner’s
8
mother told him about Pleasant’s killing and that Petitioner was a suspect was a tactical
9
decision. Specifically, Respondent argues that trial counsel assessed she would have
10
been a horrible witness because of her hostile and uncooperative demeanor.
11
Additionally, Respondent argues that this story was inconsistent with the story Petitioner
12
told counsel a week before trial — that he arranged for others to rob Pleasant.
13
The Court of Appeal found that trial counsel’s decision not to introduce evidence
14
that Petitioner’s mother had informed him that the police were investigating him was a
15
reasonable tactical choice. (Lodgment 6 at 19.) In summarizing trial counsel’s
16
testimony, the Court of Appeal explained that he had spoken with Petitioner’s parents
17
numerous times and found Petitioner’s mother to be hostile and assessed her as “likely to
18
be a ‘terrible witness.’” (Id. at 18.) The court also noted that evidence his mother
19
informed him about the police investigation was not necessarily inconsistent with his
20
guilt. (Id. at 19) As to Petitioner’s father, the Court of Appeal found Petitioner had not
21
claimed that trial counsel could have presented an explanation for the computer searches
22
23
24
25
26
27
28
the exhibits attached to his Petition, exhibits referenced in the Petition, or subsequent
filings with the Court suggesting he is raising a claim on this basis in his Petition.
Although Respondent does not address it and the Court could find it was not raised, the
Court gives the Petition the benefit of a very liberal construction and addresses the issue.
Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (citing Erickson v. Pardus, 551 U.S.
89, 94 (2007) and finding “[p]risoner pro se pleadings are given the benefit of liberal
construction.”).
19
16CV188 LAB (BGS)
1
solely through Petitioner’s father, rather it was his mother’s testimony that was important.
2
(Id. at 18.) The court does, however, note that trial counsel indicated that Petitioner’s
3
father had little to say and he did not recall having any discussions with him about
4
communications with Petitioner while Petitioner was in Louisiana. (Id. at 18.) Finally,
5
the Court of Appeal notes that Petitioner did not argue on appeal that trial counsel failed
6
to properly investigate his parents as potential witnesses. (Id. at 19 n.6.)
7
The Court of Appeal did not specifically address the potential testimony from
8
Petitioner’s mother that she had Petitioner’s phone number changed. Nor does
9
Respondent specifically address this argument. This is likely because the issue was noted
10
only in a single paragraph amidst Petitioner’s briefing to the Court of Appeal on trial
11
counsel’s decision not to present the testimony about Petitioner’s parents’
12
communications with him. (Lodgment 4 at 15-16.) The Court of Appeal’s conclusion
13
that trial counsel did not err in not having Petitioner’s mother testify because she would
14
be a bad witness would similarly apply to her testifying as to the phone number change.
15
Additionally, Petitioner has not shown that his counsel’s failure to present this evidence
16
“fell below an objective standard of reasonableness.” Harrington, 562 U.S at 104. This
17
Court notes that the record also reflects that had this testimony been presented, it might
18
have been harmful. Petitioner’s mother testified during the hearing on his motion for a
19
new trial that she was frustrated in speaking with Petitioner on the day of the murder
20
because he was getting so many calls. (Lodgment 1, Part 11 at 2451-52.) The many calls
21
were causing the phone to keep cutting off what Petitioner was saying, what she
22
described as the interference from the continual beeping as calls kept coming in. (Id.)
23
And when she asked him if he was going to answer the calls, he replied “No. I’m not
24
trying to hear crazy stuff.” (Id. at 2452.) Even if Petitioner’s statements to his mother
25
were not admitted, that he was receiving such an unusually high volume of calls that day
26
that his mother changed his phone number to stop it, could suggest he was receiving calls
27
related to the murder. A jury might have also thought she was just a mother making up a
28
story to protect her son. If the explanation — changing a phone number because of call
20
16CV188 LAB (BGS)
1
volume in one conversation — seemed odd, the jury might have even found it suggested
2
she was covering up something for him. Although it might have been helpful to have an
3
explanation for Petitioner’s phone number changing the day of the murder, the
4
explanation itself from his mother might have been more harmful to Petitioner’s case,
5
particularly given counsel’s assessment of her as a witness. Under these circumstances,
6
trial counsel’s representation did not “amount[] to incompetence under ‘prevailing
7
professional norms.’” Harrington, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 688.)
8
9
The Court of Appeal’s conclusion that trial counsel was not ineffective for failing
to introduce testimony from Petitioner’s parents that they informed him about the murder
10
was not unreasonable. Id. at 105 (“the question is not whether counsel’s action were
11
reasonable. The question is whether there is any reasonable argument that counsel
12
satisfied Strickland’s deferential standard.”). Given trial counsel’s assessment of
13
Petitioner’s parents, electing not to have them testify, assuming it was error at all, was not
14
the type of “error[] so serious that counsel was not functioning as the ‘counsel’
15
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Trial
16
counsel, having assessed Petitioner’s mother on many occasions, considered her a terrible
17
witness and it does not appear that he was aware Petitioner’s father had communicated
18
with Petitioner about the murder investigation while he was in Louisiana. Although not
19
specifically noted by the Court of Appeal, the proceedings on Petitioner’s motion for a
20
new trial also support counsel’s assessment. During questioning that does not appear to
21
be going smoothly, the prosecutor requests Petitioner’s mother be directed to answer his
22
questions and notes “this goes back to the same dynamic we had for three and a half
23
weeks in trial. This witness sat in the back gallery, as well as in the hallway, frequently
24
interrupted proceedings, even up to closing argument.” (Lodgment 1, Part 11 at 2423.)
25
The trial judge noted he had already made that direction, before giving it again. (Id.)
26
The Court recommends Petitioner’s claim for ineffective assistance of counsel for failing
27
to introduce evidence of innocent explanations for Petitioner’s conduct be DENIED.
28
21
16CV188 LAB (BGS)
1
3.
2
Review in State Court
3
Ineffective Assistance of Counsel Claims Raised on Collateral
a)
Whether These Claims Were Raised in the Federal Petition
4
Petitioner does not clearly assert these claims in his Petition. The claims —
5
ineffective assistance of trial and appellate counsel for failing to raise: sufficiency of the
6
evidence for First Degree Murder; third-party culpability as to Leroy Thomas; and a
7
Batson/Wheeler challenge — are referenced in his federal Petition in two places, but they
8
are under listings for grounds raised on collateral review in state court. (Pet. at 3, 12.)
9
He references Exhibit B to his Petition “for more established,” but as with the listing
10
above, it is under a heading for collateral review in state court. (Id. at 12.) Exhibit B is
11
his habeas Petition to the California Supreme Court, which raise these claims.
12
(Lodgment 13.) Another exhibit attached to his Petition, a request for stay and abeyance,
13
suggests he is raising these claims in his federal Petition because he is seeking to exhaust
14
these claims. (ECF No. 1 at 15-19.) Petitioner’s filings after Respondent Answered also
15
suggest he is raising these claims. Petitioner references and seeks relief on the claims,
16
including noting that Respondent failed to respond to them in his Answer. (ECF Nos. 28,
17
38-39.) Respondent’s Answer indicates that he did not address these claims because
18
Petitioner only raised them in the request for stay and abeyance attached as an exhibit to
19
his Petition, rather than in his Petition. (Answering Brief at 1, n.1 and 7 n. 5.)
20
Although the claims were arguably only identified in the actual Petition as part of
21
the procedural history of the proceedings in state court, when viewed in the context of the
22
exhibits attached to the Petition and Petitioner’s later filings it appears he is likely
23
attempting to raise these claims. And, because “[p]risoner pro se pleadings are given the
24
benefit of liberal construction” the Court addresses these claims.12 Porter, 620 F.3d at
25
958 (citing Erickson, 551 U.S. at 94).
26
27
12
28
The Court does not address whether these claims are procedurally defaulted.
“Procedural default is an affirmative defense” that the state must generally assert. Vang
22
16CV188 LAB (BGS)
1
2
3
b)
Failing to Raise Third-Party Culpability as to Leroy
Thomas
Petitioner argues13 that based on the evidence found in a search of Leroy Thomas’
4
residence and the close relationship between Thomas and Terry, Petitioner’s co-
5
defendant, his trial counsel should have presented a third-party culpability defense as to
6
Leroy Thomas and his appellate counsel should have raised his trial counsel’s failure to
7
do so on appeal. (Lodgment 13, ECF No. 19-29 at 14.14)
8
Petitioner explains that Thomas gave a statement to police indicating that Terry
9
was with Petitioner the day of the murder, things went bad, and Petitioner fired a shot.
10
(Id. at 11.) Petitioner points to testimony from Wishom indicating that one of the two
11
men that came to Pleasant’s apartment as Wishom was leaving just before the murder
12
stated “This is my brother, he’s cool.” (Id.) Petitioner argues the brothers referenced in
13
this statement were Terry and Thomas because Thomas indicated in a statement to police
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003). Respondent has not asserted it here.
However, the Court does have the “discretion to consider the issue sua sponte if the
circumstances warrant. Id. (citing Boyd v. Thompson, 47 F.3d 1124, 1128 (9th Cir.
1998)). In Boyd, the procedural default was obvious from the face of the petition and the
state had not waived the defense because the court raised it before the state responded.
Id. (citing Boyd, 147 F.3d at 1127-28). And in Vang, the court reversed the district court
for raising it sua sponte when the state did not raise the defense despite full briefing on
the claims. Id. Here, procedural default as to these claims is not obvious from the
Petition and the state has already responded to the Petition. While the Court would not
necessarily find the defense waived as in Vang — given how questionable it is Petitioner
even properly raised these claims in his federal Petition — the state has fully briefed the
Petition and did not assert the procedural default defense. Additionally, even if it were
proper to raise the defense sua sponte, courts may address the merits, as the Court does
here, instead of a potential procedural bar. See Lambrix v. Singletary, 520 U.S 518, 525
(1997).
13
This argument is drawn from the filing attached as Exhibit B and referenced for support
in the Petition, Petitioner’s Petition for Review filed with the California Supreme Court.
The same filing is before the Court as Lodgment 13. Further references are to Lodgment
13.
14
All references to Lodgment 13 are to the ECF page numbering.
23
16CV188 LAB (BGS)
1
that he spoke with Terry regularly and lived next door to him. (Id.) Petitioner
2
additionally argues that Terry utilized the assistance of another inmate, Miguel Gonzaba,
3
to get a letter out of the prison to have Thomas killed for snitching on Terry. (Id. at 12-
4
14.)
5
The Court of Appeal’s October 14, 2015 decision rejected Petitioner’s claim of
6
ineffective assistance of counsel for failing to raise third-party culpability as to Leroy
7
Thomas because Petitioner failed to provide any records or documents to support the
8
claim. (Lodgment 12 at 1-2.) The Court notes that it appears the only document
9
submitted in support of the state petition was a picture of Leroy Thomas. (Lodgment 12
10
at 15-16.) The Court cannot find the “state court’s determination was . . . unreasonable.”
11
Hibbler, 693 F.3d at 1146.
12
The Court also finds the claim has no merit. Although this claim was not raised on
13
direct appeal, Petitioner’s appointed counsel for purposes of his motion for a new trial did
14
question Petitioner’s trial counsel concerning third-party culpability as to Thomas during
15
the hearing on Petitioner’s motion for a new trial. Petitioner’s counsel testified that he
16
considered and chose not to introduce evidence of third-party culpability as to Leroy
17
Thomas for numerous reasons. (Lodgment 1, Part 11 at 2560-61.) As explained in more
18
detail below, trial counsel knew that Thomas could connect Petitioner to Terry and he
19
was trying to distance Petitioner from Terry. (Id. at 2561-62.) Additionally, trial counsel
20
found Petitioner’s own account of events, different a week before trial than it had been
21
prior, further supported trial counsel’s decision not to raise third-party culpability as to
22
Thomas at trial. (Id. at 2569.)
23
Trial counsel explained that he knew that Thomas had made statements to the
24
police. (Id. at 2561.) Thomas had indicated that Petitioner and his co-defendant Terry
25
were together on the day of the murder. (Id.) Additionally, Thomas had claimed to police
26
that Terry told him that Terry and Petitioner had been at Pleasant’s to rob him and that
27
Petitioner came out of the bathroom with a shotgun and shot Pleasant. (Id. at 2561, 2610-
28
11.) Trial counsel was concerned that if he raised third-party culpability as to Thomas,
24
16CV188 LAB (BGS)
1
Thomas might testify and the connection between Petitioner and Terry might have been
2
presented to the jury. (Id. at 2574.)
3
Thomas’ potential to create a connection between Petitioner and Terry was very
4
problematic for trial counsel. Counsel wanted to distance Petitioner from Terry for
5
numerous reasons. The scientific evidence against Terry was stronger. (Id. at 2562.)
6
Trial counsel needed to avoid any connection between the two to persuade the prosecutor
7
to sever Petitioner and Terry for trial, which he did. (Id. at 2573.)
8
9
Trial counsel was also aware there might be additional charges against Terry based
on allegations Terry had sent messages out of the jail asking that Thomas be dissuaded
10
from testifying, including, that he be hurt, and that Thomas was in fact hurt. (Id. at
11
2573.) Although not entirely clear, it appears this is the letter Petitioner describes
12
Gonzaba helping Terry get out of the prison. Trial counsel explained that a letter he was
13
aware of before trial indicated Terry thought Thomas had inculpated he and Petitioner.
14
(Id. at 2614.) He explains that the letter from Terry complained about “motor mouth,”
15
that he interpreted to be Thomas, “blound me and, even worse, the other boy,” and later
16
says he “let it all out on me and the other boy too.” (Id. at 2613-14.) It also references
17
Terry being charged as a gang member. (Id. at 2613.) Trial counsel was concerned that
18
if he raised third-party culpability as to Thomas, there might be evidence introduced
19
connecting Petitioner with Terry’s attempts to intimidate Thomas. (Id. at 2574.)
20
Counsel also explained that third-party culpability as to Thomas was itself weak.
21
The only evidence connecting Thomas to the murder was what counsel considered weak
22
DNA evidence linking Thomas to a piece of physical evidence in the apartment. (Id. at
23
2562.)
24
Counsel also indicated in his testimony that his decision not to raise third-party
25
culpability as to Thomas was bolstered when Petitioner told him, one week before trial,
26
that he had arranged for Thomas to buy marijuana from Pleasant the day before the
27
murder. (Id. at 2569.) Petitioner had previously claimed that he did not know Thomas.
28
(Id. at 2535.) A week before trial, Petitioner told trial counsel he did know Thomas —
25
16CV188 LAB (BGS)
1
met Thomas outside a barber shop and they had become acquaintances — and that
2
Thomas had asked Petitioner to arrange for him to purchase marijuana from Pleasant.
3
(Id. at 2538-39.) Petitioner additionally explained to his counsel that he made
4
arrangements with Pleasant the night before Pleasant was murdered for Thomas to make
5
a purchase from Pleasant. (Id. at 2539.) Petitioner also told his trial counsel that when he
6
tried to call Thomas the morning of the murder he got someone else — he thought it
7
might have been Terry, but did not know — and that person gave Petitioner a different
8
number for Thomas. (Id. at 2546.) Counsel was concerned this new version of events
9
involving Thomas might open Petitioner up to being an aider and abettor of the shooting
10
if Petitioner had made the arrangements for a drug buy that resulted in someone being
11
shot and killed. (Id. at 2569.)
12
Trial counsel made a strategic decision to, at a minimum, avoid connecting
13
Petitioner to his co-defendant against which the evidence was stronger. As with
14
Petitioner’s other claims, there might have been some benefit in attempting to introduce
15
evidence suggesting someone else was responsible, but counsel would have been calling
16
a witness that put Petitioner with the individual against whom the evidence was stronger
17
and who had stated Terry and Petitioner had robbed and shot Pleasant. Additionally, as
18
discussed more fully below, trial counsel unsuccessfully tried to admit third-party
19
culpability evidence as to Pleasant’s brother, David Foster. Attempting to raise third-
20
party culpability as to numerous individuals might have presented additional risks. Trial
21
counsel reasonably elected not to take these significant risks with little likely benefit.
22
As to appellate counsel, the claim fails for the same reasons noted above. Because
23
trial counsel was not ineffective in failing to raise the issue, appellate counsel reasonably
24
elected not to argue he was. Additionally, appellate counsel “need not (and should not)
25
raise every nonfrivolous claim, but rather may select from among them in order to
26
maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288
27
(2000). “Generally, only when ignored issues are clearly stronger than those presented,
28
will the presumption of effective assistance of counsel be overcome.” Id. at 288. Given
26
16CV188 LAB (BGS)
1
the many significant reasons trial counsel provided for not asserting third-party
2
culpability as to Leroy Thomas, particularly the possibility that he might inculpate
3
Petitioner, appellate counsel’s election to pursue stronger claims was not unreasonable.
4
The Court recommends Petitioner’s claim that trial and appellate counsel were ineffective
5
for failing to raise third-party culpability as to Leroy Thomas be DENIED.
6
4.
7
Degree Murder
Failing to Raise Insufficiency of the Evidence to Support First
8
Petitioner argues his trial and appellate counsel were ineffective because each
9
failed to challenge the sufficiency of the evidence that he was in the apartment at the time
10
of the shooting. (Lodgment 13 at 17.) Petitioner concedes the prosecution presented
11
evidence of Petitioner’s cell phone activity around the time of murder, evidence
12
Petitioner was at Pleasant’s apartment the night before the murder, evidence Pleasant was
13
expecting him to return the next morning, evidence Petitioner’s DNA was on a roll of
14
duct tape in the bathroom of the apartment that Pleasant’s girlfriend did not recall seeing
15
before the murder, and Petitioner escaped from custody in Louisiana. (Id.)
16
Petitioner’s argument relies largely on listing the items in the apartment that were
17
tested for DNA and he was excluded as a source of the DNA. (Id. at 18-20.) He also
18
dismisses the significance of his DNA being on the duct tape because duct tape is used to
19
package marijuana and he had previously been in the apartment. (Id. at 17) He disputes
20
the significance of the evidence that his cell phone was “pinging” off a cell tower near the
21
apartment as not being specific enough given the evidence that a phone could ping off a
22
tower from as far away as two miles. (Id. at 21-23.) Petitioner additionally notes the
23
prosecutor’s argument concerning Petitioner’s phone activity ceasing for approximately
24
eleven minutes that coincide with when the robbery and murder were taking place, but
25
seems to only challenge that evidence as it relates to his being in the location. (Id. at 22-
26
23.) He also argues there was no evidence of blood on his clothes at the time of his arrest
27
or in his car. (Id. at 20.) Petitioner also argues Pleasant’s statement, “they got me, oh
28
God they shot me” immediately after the shooting, before he died, establishes Petitioner
27
16CV188 LAB (BGS)
1
did not shoot him because Pleasant, having seen Petitioner the night before, would have
2
identified him by name. (Id. at 24.)
3
As recited above in the Court of Appeal’s summary of the evidence presented at
4
trial, there was evidence from which a jury could find Petitioner was at the apartment at
5
the time of the murder. Petitioner was at the apartment the night before and Pleasant was
6
expecting him to return the next morning. Pleasant’s girlfriend indicated that when she
7
left the apartment at approximately 11:15 a.m. she and Pleasant planned to meet at noon,
8
but Pleasant had indicated he was waiting for Petitioner to come to the apartment. A
9
visiting neighbor heard Pleasant tell a caller to hurry up and come because he was leaving
10
soon. When another visitor, Wishom, was leaving, two other men arrived, to which
11
Pleasant responded “Oh, I’ve been waiting for you.” Wishom left as the men entered the
12
apartment and at approximately the same time, a neighbor heard a melee and a loud boom
13
from Pleasant’s apartment, heard Pleasant crying for help, and looked outside to see two
14
African American males running from the apartment with a backpack. Pleasant sustained
15
a large gunshot wound to the buttocks and blunt force trauma to the head consistent with
16
being struck with a gun. He died at the scene. A jury could infer from this evidence that
17
Petitioner was one of the individuals that arrived at the apartment right before the murder
18
and was seen fleeing immediately after. Petitioner is dismissive of the cell phone records
19
presented, but as the Court of Appeal explained, they showed several short calls between
20
Petitioner and Pleasant that morning between 10:37 and 10:39 a.m. This further supports
21
the expectation that Petitioner was expected at Pleasant’s apartment that morning and was
22
the person Pleasant stated “Oh, I’ve been waiting for you” to.
23
The apartment was in disarray, including an open empty safe in the bedroom and a
24
bag of marijuana on the living room floor. Police also found a slide from a firearm,
25
handcuffs, and a handcuff key in the hallway. As Petitioner acknowledges above,
26
Petitioner’s DNA was found on duct tape in the bathroom that Pleasant’s girlfriend did
27
not recall seeing in the apartment before. This is further evidence from which the jury
28
could infer Petitioner was in the apartment. Although a jury might conclude his DNA
28
16CV188 LAB (BGS)
1
was on duct tape in the apartment from a prior visit as Petitioner now argues, that does
2
not mean a jury could not reach a different conclusion about the duct tape and the reason
3
it might have been in the apartment, particularly given the presence of handcuffs and a
4
robbery.
5
As previously noted, there was stronger DNA evidence as to Terry — his DNA
6
was found on a baseball cap, gun slide, blood samples from the apartment, and fingernail
7
scraping taken from Pleasant, in addition to his fingerprints being on artwork in the living
8
room. This is of consequence as to Petitioner because cell phone records show an 11:30
9
a.m. call placed from Petitioner’s phone that lasted 59 seconds and terminated at the cell
10
tower at Pleasant’s apartment. Terry’s phone also sent a text to Petitioner’s phone at
11
11:33 a.m. There was no activity on Petitioner’s phone from 11:31 to 11:48 a.m.
12
followed by Petitioner and Terry’s phones exchanging numerous text messages. Two
13
hours later Petitioner’s phone number is changed. The next morning, cell records on the
14
new phone show Petitioner leaving California and traveling to Louisiana.
15
Petitioner was arrested a month and a half later in Louisiana. This lengthy gap
16
makes Petitioner’s emphasis on the absence of blood on his clothes and in his car less
17
compelling. Additionally, as discussed above, there was evidence Petitioner asked an
18
officer about whether he could be charged with a gang crime if the other person involved
19
was in a gang and internet search history reflects Petitioner was searching for information
20
about the murder and investigation.
21
Petitioner identifies ways in which the evidence presented could be interpreted in
22
his favor, but that does not make an interpretation unfavorable to him wrong. For
23
example, he argues that because the maximum distance his cell phone could have been
24
from the tower was two miles this evidence was insufficient to show that he was in the
25
apartment. In isolation, he might be right, but in the context of all the other evidence, a
26
jury could interpret his phone pinging off a tower at the apartment as supporting or
27
confirming he was in that location that morning.
28
29
16CV188 LAB (BGS)
As with the prior claim, the Court of Appeal’s October 14, 2015 decision rejected
1
2
Petitioner’s claim of ineffective assistance of trial and appellate counsel for failing to
3
raise insufficiency of the evidence for First Degree Murder because Petitioner failed to
4
submit any records or documents to support the claim. (Lodgment 12 at 1-2.) And, as
5
with his prior claim, the Court cannot find this was unreasonable.
6
The Court also cannot find trial or appellate counsel were ineffective for failing to
7
raise insufficiency of the evidence. Although the evidence against him was
8
circumstantial, there was certainly sufficient evidence from which a jury could find
9
Petitioner was in the apartment and to support his murder conviction. “[E]vidence is
10
sufficient to support a conviction so long as “after viewing the evidence in the light most
11
favorable to the prosecution, any rational trier of fact could have found the essential
12
elements of the crime beyond a reasonable doubt.” Cavazos v. Smith, 565 U.S. 1, 7
13
(2011). (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). Not raising sufficiency of
14
the evidence, given the evidence against Petitioner, “falls within the ‘wide range’ of
15
professionally competent assistance.” Buck, 2017 WL 685534, at *13.
16
Similarly, because the evidence was sufficient, insufficiency of the evidence would
17
not have been stronger than the claims appellate counsel raised on direct appeal.
18
Robbins, 528 U.S. at 288 (“Generally, only when ignored issues are clearly stronger than
19
those presented, will the presumption of effective assistance of counsel be overcome.”)
20
The Court recommends Petitioner’s claim of ineffective assistance of trial and appellate
21
counsel for failing to raise insufficiency of the evidence be DENIED.
22
5.
Failing to Raise Batson/Wheeler Challenge
23
Petitioner argues his trial and appellate counsel were ineffective for failing to raise
24
a Batson/Wheeler challenge.15 (Lodgment 13 at 25.) More specifically, Petitioner argues
25
26
27
28
15
Batson v. Kentucky, 476 U.S. 79 (1986); People v. Wheeler, 22 Cal. 3d 258 (1978).
30
16CV188 LAB (BGS)
1
his counsel was ineffective for failing to challenge the absence of African Americans on
2
the jury.16 (Id.)
3
The issue here is not whether there was a Batson violation, but whether trial and
4
appellate counsel were ineffective in failing to raise a challenge on this basis. The
5
standards articulated above, particularly the “‘strong presumption’ that counsel’s
6
representation was within the ‘wide range’ range of reasonable professional assistance”
7
apply. Harrington, 562 U.S. at 104. However, the Court concludes that trial and
8
appellate counsel were not ineffective for failing to raise a Batson challenge because
9
what Petitioner alleges does not constitute the kind of purposeful discrimination in the
10
selection of a jury that warrants relief under Batson.
11
A Batson violation occurs when there is purposeful discrimination in the selection
12
of the jury. Batson, 476 U.S. at 86. “[A] defendant has no right to a ‘petit jury composed
13
in whole or in part of persons of his own race,” but rather the right to be tried by a jury
14
whose members are selected pursuant to nondiscriminatory criteria.” Id. at 85-86. It is a
15
challenge to the use of preemptory strikes to exclude jurors based on their race. Id. at 89.
16
There are three steps that guide the review of the preemptory strikes: (1) a prima facie
17
“showing that the totality of the relevant facts gives rise to an inference of discriminatory
18
purpose;” (2) if defendant makes that showing, the state must offer “permissible race-
19
neutral justifications for the strikes;” and then (3) the court must decide whether
20
defendant “has proved purposeful racial discrimination.” Johnson v. California, 545 U.S.
21
162, 168 (2005).
22
To establish a prima facie case of purposeful discrimination, the accusing party
23
must show: (1) the prospective juror is a member of a cognizable group, (2) the
24
prosecutor used a peremptory strike to remove the juror, and (3) the totality of the
25
circumstances raises an inference that the strike was motivated by race. Boyd v. Newland,
26
27
16
28
For purposes of this analysis, the Court assumes that there were no African Americans
on the jury. As noted above, Respondent did not address this issue.
31
16CV188 LAB (BGS)
1
476 F.3d 1139, 1143 (9th Cir. 2006). Here, Petitioner has made no showing that would
2
give rise to a discriminatory purpose in the use of preemptory strikes. There are no facts
3
or allegations that a prospective juror that was a member of a cognizable group was
4
struck by the prosecutor. And certainly no circumstances raising an inference a strike
5
was motivated by race. The first step, the prima facie showing has not been made.
Given the absence of any basis for a claim, trial and appellate counsel’s failure to
6
7
raise it cannot constitute ineffective assistance of counsel. The Court recommends
8
Petitioner’s claim of ineffective assistance of trial and appellate counsel for failing to
9
raise a Batson/Wheeler challenge be DENIED.
10
B.
11
Admission of Gang Expert Testimony17
Petitioner argues the trial court erred in admitting gang expert testimony
12
addressing whether the charged offenses were committed for the benefit of a gang. (Pet.
13
at 6.) Petitioner argues the witness essentially testified, based on his review of all the
14
reports and evidence in the case, that Petitioner and Terry committed the robbery for the
15
benefit of a gang because the individual referenced in the hypothetical scenario presented
16
to the witness was obviously Petitioner. (Lodgment 7 at 19.) Petitioner argues this could
17
give the jury the impression the charges were supported by evidence known to the
18
witness, but not before the jury. (Id. at 21.)
19
Respondent argues that this is a state evidentiary rule that does not present a
20
federal question and there was no violation of Petitioner’s due process rights recognized
21
by the Supreme Court in the admission of the evidence. Additionally, Respondent argues
22
the evidence was properly allowed under California law.
23
In evaluating this claim, the Court of Appeal included a portion of the testimony
24
Petitioner relied on in arguing the trial court erred in allowing the testimony. The
25
prosecutor asks a series of questions that involve a hypothetical in which two individuals,
26
27
28
17
Petitioner raised this claim under Ground Two in his Petition.
32
16CV188 LAB (BGS)
1
one a documented gang member, and the other not documented as a gang member,
2
commit armed robbery of a drug dealer. Applying California law, People v. Vang, 52
3
Cal. 4th 1038 (2011), the Court of Appeal found no error in the testimony because the
4
expert was allowed to testify that the conduct described was committed for the benefit of
5
a gang “based on assumed hypothetical facts rooted in the evidence.” (Lodgment 6 at
6
24.) The court also rejected Petitioner’s claim that the testimony was improperly based
7
on evidence in the case, rather than being limited to hypothetical questions based on
8
evidence as required under Vang. (Id.) The court found the testimony “was offered in
9
response to ‘the prosecutor’s hypothetical questions . . . based on what the evidence
10
showed these defendants did, not what someone else might have done.’” (Id. (quoting
11
Vang, 52 Cal. 4th at 1046.).)
12
The admission of evidence is an issue of state law. Holley v. Yarborough, 568
13
F.3d 1091, 1101 (9th Cir. 2009). Even if the Court assumes there was any error in the
14
admission of this evidence, “[s]imple errors of state law do not warrant federal habeas
15
relief.” Id. (citing Estelle v. McGuire, 502 US. 62, 67 (1991)). “The admission of
16
evidence does not provide a basis for habeas relief unless it rendered the trial
17
fundamentally unfair in violation of due process.” Id. (quoting Johnson v. Sublett, 63
18
F.3d 926, 930 (9th Cir. 1995)). And, “[u]nder AEDPA, even clearly erroneous
19
admissions of evidence that render a trial fundamentally unfair may not permit the grant
20
of federal habeas corpus relief if not forbidden by ‘clearly established Federal law,’ as
21
laid out by the Supreme Court. Id. (quoting § 2254(d)).
22
The gang expert’s testimony did not render Petitioner’s trial fundamentally unfair.
23
The testimony was phrased in terms of a hypothetical throughout.18 The opinion that an
24
armed robbery of a drug dealer committed by one documented and one undocumented
25
gang member was committed for the benefit of a gang only mattered if the jury found
26
27
In the one instance when the witness identified Petitioner by name, Petitioner’s counsel
objected and the objection was sustained. (Lodgment 1, Part 8 at 1981.)
18
28
33
16CV188 LAB (BGS)
1
Petitioner committed the armed robbery of the drug dealer with a documented gang
2
member. This was not fundamentally unfair because the prosecutor still had to prove
3
Petitioner’s conduct matched the hypothetical. Additionally, no Supreme Court authority
4
forbids the admission of testimony from a gang expert to assist a jury in determining
5
whether a crime was committed for the benefit of a gang.
The Court recommends Petitioner’s claim that the admission of the gang expert’s
6
7
testimony violated Due Process be DENIED.
8
9
C.
Juror Misconduct19
Petitioner argues the trial court erred in failing to question a juror regarding
10
potential bias or misconduct.20 (Pet. at 4; Lodgment 7 at 21-22.) He argues an exchange
11
between the prosecutor and a juror showed that a juror was biased in favor of the
12
prosecution. (Lodgment 7 at 21-22.) During the prosecutor’s closing he is recounting the
13
evidence that Petitioner was conducting internet searches for warrants and on the Who’s
14
in Jail website. The following exchange occurred:
Prosecutor: But the important question you can’t get around, and
there’s no reasonable alternate explanation for it, it why, why is he
going to these databases? Because at the end of the day he’s not just
putting in Pierre Terry’s name, is he? What other name did he put in
when it came time to look for warrants? Who was he worried about
for getting warrants.
15
16
17
18
19
Unidentified juror: Himself.
20
21
22
23
24
25
26
27
28
19
Petitioner raised this claim under Ground Three in his Petition.
To the extent Petitioner argues his trial counsel was ineffective for failing to object to
the alleged juror misconduct, the record reflects that his trial counsel did not hear the
juror respond to the rhetorical question. Additionally, as the trial court noted, he might
have elected not to object to avoid drawing more attention to it even if he had heard it.
As the Court of Appeal and the trial court explained, it was not a disputed issue and
objecting might have just led the entire jury to believe it was more significant. To the
extent there was any error in missing it or not objecting, it was not the kind of error “so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Buck, 2017 WL 685534, at *13.
20
34
16CV188 LAB (BGS)
1
Prosecutor: That’s right, himself. Why am I looking up warrants for
myself when I didn’t do anything?
2
3
4
(Lodgment 1, Part 9 at 2223-24.)21
The Court of Appeal found the remark did not suggest that the juror had formed an
5
6
7
8
opinion on the case or that good cause existed to remove the juror. The court explained
that the remark was brief and just provided an answer to a rhetorical question. The court
also agreed with the trial court that the answer to the question was not in dispute.
Clearly established federal law, as determined by the Supreme Court, does not
9
10
11
12
13
14
15
16
17
18
19
20
21
22
require state or federal courts to hold a hearing every time a claim of juror bias is raised
by the parties. Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th Cir. 2003) (citing Remmer
v. United States, 347 U.S. 227 (1954) and Smith v. Phillips, 455 U.S. 209, 217–18 and
finding no error where trial court, during questioning of one juror about potential
misconduct, declined to inquire about other jurors who were potentially subject to
misconduct); Sims v. Rowland, 414 F.3d 1148, 1153 (9th Cir. 2005) (trial court need not
order a hearing sua sponte whenever presented with evidence of juror bias). When
considering a claim of juror bias, federal district courts “should ‘consider the content of
the allegations, the seriousness of the alleged misconduct or bias, and the credibility of
the source’ when determining whether a hearing is required.” Sims, 414 F.3d at 1148
(quoting Tracey, 341 F.3d at 1044). Certainly no more is required of a state court to
comply with Due Process. Id. (“It would be anomalous to require more of a state trial
judge in order to comply with the Fourteenth Amendment’s Due Process Clause.”)
Here, the juror misconduct issue was raised as part of Petitioner’s motion for a new
23
24
trial. The trial court considered it. (Lodgment 1, Part 11 at 2389-2395.) Because the
25
26
27
28
Petitioner’s counsel did not hear the response from the juror and although the trial
judge did, he elected not to raise it out of concern that he would draw more attention to
the issue. (Lodgment 1, Part 11 at 2393.) The issue was not raised until Petitioner’s
motion for a new trial approximately a year later.
21
35
16CV188 LAB (BGS)
1
exchange was undisputed and in the transcript, the content of the allegation and the
2
credibility of the source of the alleged misconduct were not at issue. The only real issue
3
was how serious the alleged misconduct or bias was. In short, the juror answered a
4
rhetorical question that substantively concerned whether Petitioner was searching online
5
to find out if there was a warrant out for his arrest. Petitioner’s counsel for the motion for
6
a new trial argued it showed the juror had already made up his or her mind about
7
Petitioner’s guilt. (Id. at 2392.) The trial court was not even convinced it was
8
misconduct. (Id. at 2395.) The trial court considered whether the juror speaking up
9
indicated the juror had drawn a conclusion about Petitioner’s guilt and explained that at
10
most, it showed that this juror may have made up their mind that Petitioner was searching
11
online to see if there were warrants out for his arrest. (Id.) In the alternative he
12
suggested the juror may have just been caught up in the closing argument. (Id. at 2394.)
13
The trial court noted that this, Petitioner searching for warrants for himself online, was
14
not in dispute. (Id. at 2394.) He contrasted the question here with something that was
15
disputed, “who fired the gun,” and suggested a response to a question like that would be
16
significant. (Id.)
17
The Court of Appeals reasonably concluded that the brief, spontaneous remark on
18
an undisputed issue “did not suggest that the juror had formed an opinion on the case.”
19
(Lodgment 6 at 27.) The Court recommends Petitioner’s claim of juror misconduct or
20
bias be DENIED.
21
D.
22
Admission of Evidence of Petitioner’s Tattoos22
Petitioner argues the trial court violated his Fifth and Fourteenth Amendment
23
rights in admitting evidence of Petitioner’s tattoos. (Pet. at 8; Lodgment 7 at 22-24.)
24
Petitioner argues the admission of the tattoos portrayed Petitioner as greedy and
25
disrespectful of women. (Lodgment 7 at 24.)
26
27
28
22
Petitioner raised this claim under Ground Four in his Petition.
36
16CV188 LAB (BGS)
1
Respondent argues the tattoos were probative of Petitioner’s membership in a gang
2
for purposes of proving the gang enhancement under California Penal Code § 186.22(b)
3
because evidence of gang-related tattoos tends to prove gang membership. Respondent
4
emphasizes the prosecution had to prove Petitioner committed his crimes for the benefit
5
of the Skyline Piru gang and Petitioner disputed he was a gang member or had done
6
anything to benefit a gang. The gang expert testified that Petitioner’s tattoos — MOB for
7
“money over bitches” and a gun with the words “dead presidents”— were common
8
among gang members, but not a specific gang.
9
The California Court of Appeal found the tattoo evidence was highly probative to
10
prove the gang enhancement. (Lodgment 6 at 32.) The court noted the gang expert’s
11
testimony that these and similar tattoos were common among gang members. (Id.) The
12
court also explained that having gang-related tattoos was highly relevant to demonstrate
13
membership in a gang for purposes of proving the gang enhancement. (Id.) The court
14
rejected Petitioner’s argument that the tattoos should have been excluded because the jury
15
might have thought he was greedy, violent, or valued money over women. (Id.) The
16
court concluded the trial court did not err in admitting the evidence.
17
As previously noted, the admission of evidence is an issue of state law. Holley,
18
568 F.3d at 1101. Even if the Court assumes there was any error in the admission of this
19
evidence, “[s]imple errors of state law do not warrant federal habeas relief.” Id. (citing
20
Estelle, 502 U.S. at 67). “The admission of evidence does not provide a basis for habeas
21
relief unless it rendered the trial fundamentally unfair in violation of due process.” Id.
22
(quoting Johnson, 63 F.3d at 930). The Court cannot find the admission of this evidence
23
rendered Petitioner’s trial fundamentally unfair. His gang membership was disputed.
24
The gang expert testified that Petitioner was not a documented gang member, the police
25
had no gang-related contacts on file for him, and the gang expert assigned to the gang
26
Petitioner was alleged to be associated with had no knowledge of Petitioner prior to this
27
case. (Lodgment 1, Part 8 at 2005-07.) It was not fundamentally unfair to admit
28
evidence that was probative of proving the gang enhancement.
37
16CV188 LAB (BGS)
Additionally, “[u]nder AEDPA, even clearly erroneous admissions of evidence that
1
2
render a trial fundamentally unfair may not permit the grant of federal habeas corpus
3
relief if not forbidden by ‘clearly established Federal law,’ as laid out by the Supreme
4
Court. Holley, 568 F.3d at 1101 (quoting § 2254(d)). Absent clearly established Federal
5
law forbidding the admission of evidence under these circumstances, Petitioner is not
6
entitled to habeas relief. The Court recommends Petitioner’s claim that the admission of
7
his tattoos violated Due Process be DENIED.
8
E.
Exclusion of Evidence of Third Party Culpability23
9
Petitioner argues the trial court violated his Fifth and Fourteenth Amendment
10
rights by excluding evidence of third party culpability as to David Foster. (Pet. at 9;
11
Lodgment 7 at 24-27.) Petitioner’s trial counsel sought to admit evidence that Pleasant
12
got into a physical altercation with his half-brother, Foster, who at the time was living in
13
the apartment. (Pet. at 9; Lodgment 7.) The altercation was apparently about Foster not
14
having a job. (Pet. at 9.) At Pleasant’s demand, Foster moved out following the
15
altercation and Pleasant’s girlfriend believed they never reconciled. (Id.) Additionally,
16
DNA from blood stains in the apartment matched DNA from Foster. (Id.)
17
The California Court of Appeal noted the above background proffered by
18
Petitioner’s counsel. (Lodgment 6 at 36.) The court also noted that the blood recovered
19
was no more than a speck, Foster often visited the apartment to clean up after
20
skateboarding accidents, that Foster had indicated to police that he and Pleasant had
21
reconciled after the altercation and spent Earth Day together. (Id. at 36-37.) The
22
prosecutor produced a date-stamped picture corroborating they spent Earth Day together.
23
(Id. at 37.)
24
The Court of Appeal found the trial court could reasonably find the speck of blood
25
from Foster in the apartment doorway was no more than a remote connection to the crime
26
27
28
23
Petitioner raised this claim under Ground Five in his Petition.
38
16CV188 LAB (BGS)
1
scene, particularly given he lived in and visited the apartment and in the absence of any
2
evidence connecting him to the scene near the time of the murder. (Lodgment 6 at 37.)
3
The court also found the trial court could reasonably conclude that the single altercation
4
months prior was nothing more than mere motive and insufficient to raise reasonable
5
doubt as to Petitioner. (Id. at 38.)
6
As previously noted, “a federal habeas court cannot review questions of state
7
evidence law and it is well settled that a state court’s evidentiary rule, even if erroneous,
8
is grounds for federal habeas relief only if it renders the state proceedings so
9
fundamentally unfair as to violate due process.” Spivey v. Rocha, 194 F.3d 371, 977-78
10
(9th Cir. 1999). “[T]he Constitution permits judges ‘to exclude evidence that is repetitive
11
. . . only marginally relevant, or poses an undue risk of harassment, prejudice, or
12
confusion of the issues.’” Holmes v. South Carolina, 547 U.S. 319, 326-27 (2006).
13
Third party culpability evidence “may be excluded where it does not sufficiently connect
14
the other person to the crime, as, for example, where the evidence is speculative or
15
remote, or does not tend to prove or disprove a material fact at issue at the defendant’s
16
trial.” Id. at 327 (quoting 40A Am. Jur. 2d, Homicide § 286, pp 136-38 (1999) as
17
“widely accepted” rules).
18
The Court of Appeal reasonably concluded that the evidence as to Foster was too
19
remote and speculative. Foster’s only recent connection to the crime scene was a speck
20
of blood in an apartment he had previously lived in and his previous adversarial
21
connection to Pleasant was apparently resolved. The Court cannot find the exclusion of
22
this evidence rendered the state proceedings so fundamentally unfair as to violate due
23
process. Nor can the Court find the Court of Appeal’s decision was unreasonable.
24
Additionally, it is not clear Petitioner still intends to pursue this claim. As noted
25
above, in listing the claims he raised on collateral review, Petitioner references Exhibit B,
26
attached to his Petition. Exhibit B is his Petition for Review to the California Supreme
27
Court raising the claims discussed above on collateral review, also Lodgment 13. In that
28
filing Petitioner indicates “trial counsel should have moved to present evidence of third39
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party culpability, the third party being not David Foster, but Leroy Thomas.” (Lodgment
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13 at 11.)
The Court recommends Petitioner’s claim that the exclusion of third-party
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culpability evidence violated Due Process be DENIED.
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F.
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In addition to numerous other documents attached to the Petition, Petitioner
Stay and Abeyance
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included a document requesting stay and abeyance to exhaust the three new claims he
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raised on collateral review in state court. (Pet. at 15-19.) Respondent filed an Opposition
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to the request. (ECF 14.) Respondent cited the Lodgments filed in support of
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Respondent’s Answer to the Petition that showed the Superior Court, Court of Appeal,
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and California Supreme Court had all denied the claims for failing to provide any
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evidentiary support for the claims. (Id.). Petitioner then filed an Opposition for Stay in
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which indicates he has exhausted the three claims raised on collateral review and notes
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that Respondent failed to address those claims. (ECF 28.)
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To the extent there is a stay and abeyance motion properly before the Court, it is
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moot. Petitioner and Respondent agree there is no need for a stay because the claims were
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exhausted. To the extent they do not, the Court has considered the merits of these claims
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and recommends they be denied. The Court recommends that any request before the
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Court for stay and abeyance be DENIED.
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IV.
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Evidentiary Hearing
Petitioner does not request an evidentiary hearing in his Petition. In his Traverse
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under the section addressing third party culpability as to Foster, Petitioner notes the need
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for an evidentiary hearing to address whether Foster and Pleasant had reconciled.
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AEDPA prescribes the manner in which federal habeas courts must approach the
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factual record and “substantially restricts the district court’s discretion to grant an
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evidentiary hearing.” Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir.1999). “[A]
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determination of a factual issue made by a State court shall be presumed to be correct,”
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with the petitioner having “the burden of rebutting the presumption of correctness by
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clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Section 2254(e)(2) limits “the
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discretion of federal habeas courts to take new evidence in an evidentiary hearing.”
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Cullen, 563 U.S. at 185.
“If a claim has been adjudicated on the merits by a state court, a federal habeas
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petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that
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state court.” Cullen, 563 U.S. at 185(“[E]vidence introduced in federal court has no
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bearing on § 2254(d)(1) review”). If a claim subject to 28 U.S.C. § 2254(d)(1) does not
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satisfy that statutory requirement, it is “unnecessary to reach the question whether §
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2254(e)(2) would permit a [federal] hearing on th[at] claim.” Id. at 184 (citation
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omitted). “In practical effect, . . . this means that when the state-court record ‘precludes
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habeas relief’ under the limitations of § 2254(d), a district court is ‘not required to hold
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an evidentiary hearing.’” Cullen, 563 U.S. at 183. (citation omitted). Since Cullen, the
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Ninth Circuit has held that a federal habeas court may consider new evidence only on de
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novo review, subject to the limitations of § 2254(e)(2). See Stokley v. Ryan, 659 F.3d
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802, 808 (9th Cir.2011).
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As explained above, Petitioner is not entitled to relief under § 2254(d) and has not
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met any of the exacting requirements for an evidentiary hearing on federal habeas review.
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Accordingly, the Court recommends Petitioner’s request for an evidentiary hearing be
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DENIED.
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V.
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CONCLUSION & RECOMMENDATION
For all the foregoing reasons, IT IS HEREBY RECOMMENDED the Court
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issue an Order: (1) approving and adopting this Report and Recommendation; and (2)
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denying the Petition.
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IT IS ORDERED that no later than March 24, 2017, any party to this action
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may file written objections with the Court and serve a copy on all parties. The
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document should be captioned “Objections to Report and Recommendation.”
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IT IS FURTHER ORDERED that any reply to the objections shall be filed with
the Court and served on all parties no later than April 7, 2017.
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The parties are advised that failure to file objections within the specified time may
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waive the right to raise those objections on appeal of the Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th
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Cir. 1991).
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Dated: March 3, 2017
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