Foley v. People of the State of California

Filing 37

REPORT AND RECOMMENDATION of United States Magistrate Judge re: Denying Petition for a Writ of Habeas Corpus. It is ordered that Objections to R&R are due by 9/22/2017 and replies to the objections shall be filed with the Court and served on all parties no later than by 10/6/2017. Signed by Magistrate Judge Bernard G. Skomal on 9/1/2017.(All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GREGORY FOLEY,

Case No.: 16cv0408-JLS (BGS)
Petitioner,

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REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE
JUDGE RE: DENYING PETITION
FOR A WRIT OF HABEAS CORPUS

v.
SCOTT KERNAN, Secretary, et al.,
Respondents.

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Gregory Foley (hereinafter “Petitioner”) is a state prisoner proceeding pro se and in

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forma pauperis with a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C.

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§ 2254. (ECF No. 1.) He challenges his San Diego Superior Court convictions for two

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counts of elder abuse likely to cause great bodily injury (one involving his mother and the

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other his father), and one count of resisting an officer with violence, which included jury

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findings that he used a deadly or dangerous weapon in all counts and inflicted great bodily

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injury on his mother, for which he was sentenced to twelve years and four months in state

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prison. (Pet. at 1-2.)1 Petitioner claims there is insufficient evidence to show he attacked

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his father with force likely to cause great bodily injury (claim one), the trial court erred in

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finding his mother incompetent to testify (claim two), the hammer he used to strike his

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All pleading citations are to page numbers as assigned by the Electronic Case Filing (“ECF”) system.
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father was illegally seized (claim three), his brother testified falsely (claim four), the

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arresting officers used excessive force and committed perjury (claim five), the chain of

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custody of the hammer was improper (claim six), and he received ineffective assistance of

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trial counsel (claim seven).2 (Id. at 26-60.)

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Respondent has filed an Answer and lodged portions of the state court record. (ECF

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Nos. 26-27.) Respondent contends that claim one is the only claim which was adjudicated

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on the merits in state court, and argues that the state court adjudication is neither contrary

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to, nor involves an unreasonable application of, clearly established federal law, and is not

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based on an unreasonable determination of the facts. (Memo. of P&A in Supp. of Answer

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[“Ans. Mem.”] at 11-13.) Respondent argues that the remaining claims are unexhausted

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because they were presented to the state supreme court in a petition for review on direct

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appeal without first being presented to the appellate court, thereby depriving the state court

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of a fair opportunity to address them, but they should be denied notwithstanding the failure

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to exhaust because they are without merit. (Id. at 13-18.)

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Petitioner has filed a Traverse. (ECF No. 36.) He requests an evidentiary hearing

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and presents new claims of cumulative error and ineffective assistance of trial counsel.

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(Traverse at 7-55.) Petitioner did not explicitly identify a federal basis for his claims in the

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Petition, and clarifies in the Traverse that his claims are based on violations of his rights

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under the Fourth, Fifth, Sixth and Fourteenth Amendments. (Id.)

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For the following reasons, the Court finds that the state court adjudication of claim

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one is neither contrary to, nor involves an unreasonable application of, clearly established

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federal law, and is not based on an unreasonable determination of the facts. The Court

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finds that the remaining claims should be denied irrespective of a failure to properly present

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them to the state court because they fail under a de novo review. Finally, the Court finds

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that an evidentiary hearing is not warranted, and recommends denying the Petition.

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Petitioner filed an Amended Petition on April 14, 2016, which amended the first page of the Petition in
order to name a proper Respondent, but did not add or modify any claims. (ECF No. 9.)
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I.

PROCEDURAL BACKGROUND

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In a four-count amended information filed in the San Diego County Superior Court

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on July 23, 2014, Petitioner was charged with attempted murder in violation of California

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Penal Code §§ 187(a) and 664 (count one), two counts of willful cruelty to an elder or

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dependent adult with great bodily injury in violation of Penal Code § 368(b)(1) (counts two

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and three), and resisting an officer in violation of Penal Code § 69 (count four). (Lodgment

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No. 1, Clerk’s Transcript [“CT”] at 5-7.) The amended information alleged that Petitioner

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personally inflicted great bodily injury during the commission of counts one and two within

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the meaning of Penal Code § 12022.7(c), and personally used a deadly or dangerous

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weapon (a hammer during the commission of count three and a knife as to all other counts)

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within the meaning of Penal Code § 12022.3(b)(1). (Id.)

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On August 6, 2014, the jury indicated they were deadlocked on attempted murder,

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and a mistrial was declared as to count one. (CT 189.) The jury found Petitioner guilty on

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all remaining counts and returned true findings on all of the great bodily injury and weapon

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use allegations. (CT 187-89.) On September 4, 2014, he was sentenced to twelve years

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and four months in state prison. (CT 191.)

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Petitioner appealed, raising claim one presented here. (Lodgment No. 4.) The

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appellate court affirmed. (Lodgment No. 6, People v. Foley, No. D066567, slip op.

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(Cal.App.Ct. Aug. 12, 2015).) Petitioner filed a pro se petition for review in the state

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supreme court presenting all of the claims raised in his Petition here, which was summarily

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denied on November 24, 2015. (Lodgment Nos. 7-8.)

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II.

TRIAL PROCEEDINGS

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Presentation of evidence at Petitioner’s trial began with the jury hearing recordings

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of two 911 emergency calls placed by Beverly Foley, Petitioner’s mother, on September 1,

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2013. (Lodgment No. 3, Reporter’s Tr. [“RT”] at 111-12.) Transcripts are in the record.

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(Lodgment No. 2, Supplemental Clerk’s Tr. at 7-13.) In the first call, placed at 5:08 p.m.,

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Beverly asked the police to respond because her son is “acting up and threatening as usual.”

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(Id. at 8.) In the second call, placed at 6:09 p.m., Beverly is heard saying that her son had
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attacked her with his fists, that he had a knife, and that she was bleeding to death. (Id. at

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11-12.) A male voice can be heard in the background just before the call is disconnected

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saying: “You’re dead. You’re fucking dead.” (Id. at 12.)

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Petitioner’s trial counsel requested a competency hearing to establish Beverly

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Foley’s competence to testify at trial, contending that at the preliminary hearing she was

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unable to recall the events of September 1, 2013, had difficulty tracking questions, gave

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inappropriate responses, and believed she still lived at home despite the fact that she

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currently lived in a secure dementia facility. (CT 19.) The Court held a competency

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hearing outside the presence of the jury at which Beverly Foley testified. (RT 21-45.)

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Beverly identified Petitioner as her son but asked several times “why are we here?” and

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“what’s this all about?”, asked if Petitioner was “on trial for something?”, did not know

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what day of the week it was, thought her husband was at home although he had died six

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months earlier, was not aware that she lived in a secure dementia facility or that she had

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been diagnosed with dementia, and did not remember the events of September 1, 2013.

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(RT 23-37, 42.) The trial judge determined that she no longer had any personal knowledge

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of the events at issue, and would be permitted only to identify Petitioner as her son, which

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she did in front of the jury. (RT 49, 68.)

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The parties stipulated that Milford Foley, Petitioner’s father, died at the age of 86 on

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January 11, 2014, of natural causes unrelated to the September 1, 2013 incident. (RT 439.)

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His preliminary hearing testimony was read to the jury. (RT 106-07.) The appellate court

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noted that Milford “had some difficulty testifying,” and that “his testimony was not entirely

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clear . . . [and] . . . was problematic and somewhat inconsistent.” (Lodgment No. 6, People

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v. Foley, No. D066567, slip op. at 3-5.) Milford testified that he was in his bedroom half

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asleep about 6:30 p.m. on September 1, 2013, rather than in the living room, because his

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son, who he identified in court as Petitioner, had been drinking rum and coke, and every

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time Petitioner drinks rum and coke he ties a sheet to the banister and tries to kill himself.

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(Lodgment No. 9, Preliminary Hearing Tr. at 49-50.) Milford said he locked himself in his

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bathroom that day, which was inside his bedroom which he had also locked, and that
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Petitioner broke both locks and “had a God damn knife or a hammer and beat on me. And

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I bit him on the left arm” which caused him to drop the hammer. (Id. at 51-53.) He said

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Petitioner stabbed him in the back, hit him with an old claw hammer from the garage, and

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then put his knee on his neck and pinned him to the floor which caused him to pass out.

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(Id. at 53-56, 58-59, 64-65.) When he awoke, the police were there. (Id. at 56.) Milford

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said he tried to warn his wife downstairs but was unable to do so. (Id. at 58.)

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Christopher Foley testified that Petitioner is his brother, Beverly Foley is his 82 year

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old mother, his father Milford Foley is dead, and that he and Petitioner have a younger

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sister and an older half-sister. (RT 70-72.) He said Beverly and Milford purchased a house

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at 4525 Milano Way in Oceanside, California in the mid-1990s, and that Petitioner moved

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in with them in January 2013. (RT 71-72.) Christopher said Beverly currently lives in a

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secure dementia ward because she requires constant monitoring, and although Beverly had

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begun showing signs of dementia prior to September 2013, her dementia became much

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more severe as a result of the events of September 1, 2013. (RT 75-76.) He said Milford

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had a stroke in June 2013, and thereafter had severe difficulty speaking. (RT 76-77.)

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Christopher said Petitioner was currently in line to inherit twenty-five percent of

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Beverly’s estate upon her death, about $250,000, and he did not want Petitioner “to have a

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single nickel” of the money because of “what happened in this case.” (RT 77-78.) On

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September 2, 2013, Christopher, his girlfriend and his sister went to his parents’ house to

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“clean up all the blood.” (RT 79.) He said his girlfriend found a hammer at the foot of

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Petitioner’s bed with blood and several of his mother’s hairs on the handle, which they

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immediately placed into a bag and turned over to the police. (RT 79-81, 88.) On September

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9, 2013, Christopher took Beverly to the emergency room after she had thrown a glass of

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water at Milford, and because she was threatening to hurt relatives and strangers. (RT 85-

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86.) He never had to take her to the hospital for aggressive behavior before, and noticed a

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decline in her mental health after September 1, 2013. (RT 90.)

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Mary Altomare testified that she has lived in the house next to Beverly and Milford

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Foley for thirteen years and has known the Foleys for twelve years. (RT 92.) She said
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they were an elderly couple whose arguments were a regular occurrence, with Beverly

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typically yelling at Milford. (RT 93, 103.) On one occasion, in April or May of 2013,

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Altomare was in her bedroom looking down on the Foley backyard when she heard Beverly

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yell at Milford that he was not pruning a tree properly, and then saw Beverly strike Milford

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in the face and knock off his glasses. (RT 93-94.) She never saw Milford yell at or strike

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Beverly. (RT 94.) Altomare said Petitioner moved in with the Foleys in early 2013, and

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in May or June of 2013 she saw Petitioner walk into the garage and heard Milford, who

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was just inside the garage, tell him: “You’ve been drinking. I told you you’re not allowed

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to come in the house if you’re drinking.” (RT 95-98.) Altomare then saw Petitioner shove

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Milford aside with two hands on Milford’s chest and enter the house, and then heard yelling

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inside the house. (RT 99-101.)

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Mark Wheeler, an Oceanside Police Officer, testified that he responded to 4525

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Milano Way in Oceanside on September 1, 2013, just after 5:08 p.m. (RT 115.) Beverly

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Foley, an elderly female, answered the door, appeared uninjured, and said “they’re at it

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again,” which he took to be a reference to her husband Milford Foley and her son Petitioner.

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(RT 116.) Officer Wheeler spoke to Petitioner, who appeared uninjured and said he had

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been in a verbal argument with his father. (RT 117.) Milford was not cooperative but did

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not appear injured. (RT 118.) After ensuring that everyone was safe and advising Beverly

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that she could obtain a restraining order against her son if she wished to have him removed

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from the house, Officer Wheeler left. (RT 119.)

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Officer Wheeler responded to the house again about an hour later in response to a

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second 911 call, and was the first officer on the scene. (RT 119-20.) Beverly was leaning

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against a vehicle inside the open garage, covered in blood with a swollen face and multiple

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cuts. (RT 122-23.) He asked her who had done that to her, and she said it was her son.

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(RT 125.) Officer Wheeler’s supervisor Lieutenant Cosby arrived and moved Beverly to

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a police car for safety. (RT 123.) Officer Wheeler remained standing about five feet

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outside the open garage waiting for backup when Petitioner opened the front door. (RT

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124.) Office Wheeler ordered Petitioner to come outside, and he responded: “Fuck you.
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Come in and get me,” and slammed the door. (RT 125.) Officer Wheeler was concerned

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that Petitioner had a weapon because Beverly looked as though she had been slashed with

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a knife, so he waited for back up to arrive. (RT 126-27.).

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Officer Wheeler drew a diagram of the interior of the house for an entry team based

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on his previous visit that day, and the house was surrounded. (RT 127.) Attempts were

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made to have Petitioner and Milford exit the house, including telephone calls which went

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unanswered and loudspeaker announcements which were ignored. (RT 129.) After those

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attempts failed, Officer Wheeler remained at the front door as an entry team entered the

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house. (RT 128.) During the ensuing thirty to forty-five seconds he heard continuous

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verbal commands of: “Oceanside police. Get down. Stop,” heard four or five 40-millimeter

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non-lethal rounds being fired, which he said are essentially small rubber balls, and heard

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one rifle shot. (RT 128-30.) Officer Wheeler then entered the house and saw the entire

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entry team struggling with Petitioner in his second floor bedroom. (RT 131-32.) Officer

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Wheeler kicked in the locked door of Milford’s bedroom and found him in his bathroom

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bleeding from an open wound to his back and scratches on his arms, injuries which Milford

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did not have when Officer Wheeler had visited an hour earlier. (RT 132-34.) He said that

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Milford was uncooperative, did not want to show the officers his injuries, and had to be

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physically removed from the bathroom. (RT 134.)

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Leonard Cosby, a Lieutenant with the Oceanside Police Department, testified that

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he was the Watch Commander on the evening of September 1, 2013, and responded to a

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911 dispatch where he found an elderly woman seated on the back of a vehicle in a garage

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with blood flowing copiously from the top of her head to her shoulders and dripping on the

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ground. (RT 165-69.) The woman, Beverly Foley, when asked: “How did this happen?”,

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told Lieutenant Cosby that: “My son did it with his hands and fists.” (RT 171.) A SWAT

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team was summoned because there was another potential victim in the house, and the

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officers unsuccessfully tried to contact the occupants before entering. (RT 173-75.) After

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the SWAT team entered, Lieutenant Cosby heard three “pops” which he associated with

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40-millimeter non-lethal rounds, and then heard a rifle shot. (RT 176.)
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Ronald Nevares, an Oceanside Police Officer, testified that he made the phone calls

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and loudspeaker announcements in a failed attempt to have the residents of the house come

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outside. (RT 188-89.) As he was standing in the garage he heard the crisis entry team

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make announcements to: “Drop the weapon. Drop the knife. This is the Oceanside Police

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Department with a K9. Put your hands up.” (RT 189.) He heard 40-millimeter rounds

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fired followed by a rifle shot, and entered the residence where he saw blood and a knife,

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and saw Petitioner, who looked as though he had been bitten by a police dog, having his

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wounds treated. (RT 190-91.)

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Larry Weber, an Oceanside Police Officer, testified that he was Officer Nevares’

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partner on September 1, 2013, and was told by Beverly Foley that her elderly husband was

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mentally able to comprehend the instructions to exit his house and was physically capable

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of doing so. (RT 197-98) Officer Weber entered the house with five other members of his

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SWAT team, which included a K9 officer. (RT 204-05.) The SWAT team consisted of

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Officer Kaldenbach, the designated lethal-use officer armed with an AR-15 automatic rifle,

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Officer Weber as the designated less lethal-use officer armed with a 40-millimeter launcher

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which fires a hard rubber sponge the equivalent of a baton strike, an officer designated to

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give voice commands, an officer designated to place handcuffs on the suspect, and a K-9

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officer, all with the goal of using the least amount of force necessary to end the crisis. (RT

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203-07.) Upon entering the house, they observed drag marks through blood on the kitchen

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floor, and saw Petitioner at the top of the stairs. (RT 209-11.)

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Petitioner was holding a kitchen knife in his right hand raised over his head, and he

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told the officers: “Get out of my house.” (RT 212.) Officer Weber ordered Petitioner to

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drop the knife and launched a 40-millimeter round which hit Petitioner in his right leg. (RT

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212-15.) The 40-millimeter round had no effect, and two officers went several steps up

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the staircase ahead of Officer Weber before he fired a second 40-millimeter round. (RT

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219-20.) He did not know if the second round hit Petitioner, who was pacing back and

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forth at the top of the stairs holding the knife and pointing it towards the officers despite

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repeated commands to drop the knife. (RT 221.) Petitioner was not stumbling or slurring
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his words. (RT 222.) Officer Weber fired a third 40-millimeter round which again struck

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Petitioner in his upper leg and again had no effect. (RT 224-25.) Another officer then

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launched a 40-millimeter round at Petitioner just as Officer Kaldenbach fired his AR-15

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rifle, and Petitioner ran into his bedroom. (RT 225-26.)

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Officer Weber said he looked through the open bedroom door and saw Petitioner

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sitting on his bed with the knife still in his hand raised above his head, and Petitioner again

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ignored commands to drop the knife. (RT 226.) An officer launched another 40-millimeter

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round which struck Petitioner in the stomach, which caused him to throw the knife on the

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bed. (RT 227-28.) Officer Weber said the ensuing struggle to restrain Petitioner was

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“chaotic” because he was actively resisting being restrained by kicking and throwing

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punches at the officers, even after the K9 dog had latched on to him, all the while with the

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knife still within his reach. (RT 228-29.) Officer Weber then struck Petitioner in his torso

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with the muzzle of his 40-millimeter launcher, which allowed the officers to handcuff him,

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and they began treating him for the gunshot wound to his back. (RT 229-31.) While

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Officer Weber was standing next to Petitioner waiting for the medics to arrive, Petitioner

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said: “I just want to die.” (RT 232.) Officer Weber said he had very successfully shot

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younger, fitter men with his 40-millimeter launcher in the same manner as Petitioner, and

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was surprised it had no effect on him. (RT 251-52.)

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Corey Kaldenbach, an Oceanside Police Officer, testified that he made entry into the

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house with the SWAT team after verbal efforts to evacuate the occupants had failed. (RT

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260-61.) While they were clearing the first floor, an officer yelled “suspect” and Officer

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Kaldenbach looked up the stairs and saw Petitioner with a knife in his right hand. (RT 261-

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62.) The officers went up the stairs single file with Officer Weber in front and Officer

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Kaldenbach second. (RT 263.) Petitioner had the knife in his hand, was pacing back and

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forth at the top of the stairs, and ignored ten or fifteen commands to drop the knife. (RT

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263-64.) Petitioner was about four or five feet away from the officers, where he was able

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with one quick lunge to make contact with them, and repeated several times: “You don’t

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need to be here. I already cut myself. Go away.” (RT 266, 300.) He was not slurring his
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words or stumbling, but was swiping the air with the knife as five or six 40-millimeter

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rounds hit him without any effect, which surprised Officer Kaldenbach. (RT 268.)

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Petitioner walked toward the officers, and then turned and walked toward the

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bedrooms where Officer Kaldenbach had been told Petitioner’s father might be, and

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someone yelled: “Don’t let him get to the bedroom,” so Kaldenbach shot Petitioner in the

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back left shoulder with his AR-15 rifle. (RT 269-70, 281-82.) Petitioner flinched and

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crouched down out of sight and the officers pushed forward. (RT 271.) When they reached

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the landing Petitioner was not there, but they saw him in his room standing with his back

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to them. (RT 272.) Petitioner was moving the knife in his right hand around the left side

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of his neck, and was hit in the back with a 40-millimeter round which spun him around.

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(RT 273-75.) He sat down on the bed and threw the knife on the bed within his reach. (RT

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275-76.) He ignored the commands to lay down on the floor with his hands out, and when

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he reached for the knife he was struck by a 40-millimeter round in the stomach. (RT 276-

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77.) Petitioner started to close the door, and Officer Trabelsi released the K9 officer named

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Max. (RT 277-78.) Officer Max latched onto Petitioner’s right arm, and Officer Trabelsi

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grabbed the knife off the bed and threw it across the room. (RT 278-79.) The team

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attempted to handcuff Petitioner but he kicked and punched the officers, including Max.

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(RT 280.) Officer Kaldenbach struck Petitioner in the face with his fist two or three times

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without effect. (RT 280-81.) The officers subdued Petitioner after each officer grabbed

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an arm and a leg, and then put direct pressure on the gunshot wound to his back shoulder

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blade. (RT 281-82.)

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Steve Stracke, an Oceanside Police Detective assigned to the Family Protection Unit,

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testified that he responded to the scene about thirty minutes after the second 911 call was

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received. (RT 302.) He met Beverly Foley, an elderly woman, who was covered in blood

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with her right eye swollen shut. (RT 303.) He tried to obtain a statement from her but she

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was barely conscious and unable to say anything other than her name. (RT 304.) He

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secured the scene, obtained a search warrant, and accompanied the field evidence

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technician to collect evidence, which included taking photographs which were shown to
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the jury. (RT 305-22.) No hammer was found in Petitioner’s bedroom, which Detective

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Stracke said was littered with copious amounts of medical waste. (RT 327-28.)

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Fady Nasrallah, surgical specialist in trauma and critical care, testified that he was

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called in to consult when Beverly Foley was brought to the hospital on September 1, 2013.

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(RT 365.) Beverly had three cuts to her scalp, three to her forehead, and two to her right

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cheek; she had bruising and swelling to the right cheek related to a fracture of the right

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cheekbone and a fracture of the right eye socket. (RT 366-67.) She had a minor cuts to

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her left hand, deeper cuts to her right hand, and a deep cut to her left elbow, all which

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appeared to be defensive wounds. (RT 367, 383.) Dr. Nasrallah said that Beverly suffered

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from concussion and dementia. (RT 393-94.)

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That same day, Dr. Nasrallah treated Petitioner for a gunshot wound to his shoulder,

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a dog bite to his forearm, and small superficial knife cuts to his neck. (RT 376-78.) He

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had an entry wound from a bullet, but no exit wound, and a CAT scan revealed eight bullet

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fragments in his body, which Dr. Nasrallah said was typical when a bullet hits a bone. (RT

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387-88.) Petitioner had a blood alcohol content of .23 percent, which could cause a person

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unaccustomed to drinking to be “falling over and peeing on themselves,” but Dr. Nasrallah,

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who had treated severely intoxicated persons before, said Petitioner did not appear to be

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drunk, which could be explained if he had acquired a tolerance to alcohol. (RT 394-95.)

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Neil Tomaneng, an emergency physician, treated Beverly Foley on September 9,

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2013. (RT 333-34.) Beverly was brought in by her son Christopher and her daughter for

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a psychiatric evaluation because they said she had become violent and was exhibiting angry

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mood swings ever since she had been attacked a week earlier. (RT 334-37.) They said she

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had been exhibiting combative and unusual behavior for the past year and a half, but had

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become more hostile toward her husband and their guests in the past week, and had started

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carrying a knife around with her. (RT 337-38.) Dr. Tomaneng said Beverly did not know

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why she had been brought to the hospital, and was transferred to a psychiatric facility where

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she was diagnosed with acute traumatic stress disorder. (RT 338-39.) He opined that

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Beverly had suffered a concussion which exacerbated her dementia. (RT 341.)
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Petitioner had a prior misdemeanor conviction for elder abuse of his parents arising

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from events several months earlier, and evidence leading to that conviction was presented

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to the jury. Johnathan Kislingbury, an Oceanside Police Officer, testified that he responded

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to the Foley house about 8:05 p.m. on April 19, 2013, in response to a call of a family

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disturbance. (RT 347.) As he approached the front door, he heard a male voice yell: “Be

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quiet, go to bed.” (RT 348.) Beverly Foley, an elderly woman, answered the door; she

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appeared scared and upset, and motioned Officer Kislingbury into the house where he saw

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a broken flower pot on the floor and Petitioner in the kitchen. (RT 348-49.) Beverly

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seemed afraid to speak in front of Petitioner, so Officer Kislingbury took her to another

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room, where she spoke quietly and seemed confused and frustrated that he would not just

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take Petitioner into custody. (RT 351-52.)

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Officer Kislingbury went upstairs and encountered Milford Foley, an elderly man

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holding a flashlight looking scared. (RT 352-53.) Milford walked from his bedroom very

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slowly and deliberately and told Officer Kislingbury that he did not want to be around

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Petitioner because he was verbally abusive and threatening when he has been consuming

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alcohol. (RT 354.) Milford lifted his sleeves and showed Officer Kislingbury injuries he

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said were caused by Petitioner, including contusions, bruises, and skin tears on both arms.

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(RT 355.) When asked if he was afraid, Milford said no, not really, because he was able

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to lock himself in his bedroom to avoid Petitioner. (RT 356.) Petitioner then yelled at

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Beverly that if he was arrested he would have no choice but to put her and Milford in a

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nursing home, which upset Beverly, who immediately asked Officer Kislingbury not to

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arrest Petitioner. (Id.) The parties stipulated that on April 22, 2013, Milford and Beverly

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Foley contacted the San Diego District Attorney’s office and made the following request:

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“We wish to drop charges. Father partly to blame for trying to get him into his room.” (RT

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359.) The People rested. (RT 397.)

26

The parties stipulated that DNA testing of blood stains found on the handle and blade

27

of the knife matched Petitioner’s DNA profile and excluded Beverly and Milford Foley,

28

and blood stains on the head of the hammer matched the DNA profiles of Beverly and
12
16cv0408-JLS (BGS)

1

Milford and excluded Petitioner as a contributor. (RT 447-48.) Petitioner testified that

2

four or five years before he moved in with his mother and father in January 2013, his

3

mother came to him, showed him bruises, and said her husband had been hitting her for

4

most of their marriage. (RT 449-50.) Petitioner said the property and assets of his parents

5

are in an irrevocable trust benefiting Petitioner and his brother Christopher only, Beverly

6

having removed their two sisters as beneficiaries several years earlier due to a conflict

7

between the sisters and Beverly. (RT 451.) He said that when he first moved in with his

8

parents, they got along fine for the first couple of months, but then began arguing about

9

Beverly wanting to go places and Milford wanting to stay home. (RT 452.) Petitioner said

10

his mother suffers from dementia, and that his father exhibits similar strange behavior, such

11

as hiding in his closet at times. (RT 452-53.)

12

Petitioner said that on the evening of April 19, 2013, when the police were called to

13

their home and arrested him, his parents had been arguing all day and he was trying to be

14

a go-between, but Beverly did not like him doing so for some reason. (RT 453.) Petitioner

15

said Milford’s injuries that day were caused by Beverly grabbing and hitting him. (Id.) He

16

did not tell that to the police because he was trying to protect his mother, just as he was

17

trying to protect her when he admitted in court on April 24, 2013, that he had willfully and

18

unlawfully caused an elder to suffer in that incident. (RT 453, 481-82.)

19

Petitioner said that on September 1, 2013, his parents had been arguing all day, but

20

without any physical violence, and he was in his bedroom that afternoon drinking 7-up and

21

rum when he heard them arguing in the backyard. (RT 456-57.) He attempted to mediate

22

the dispute but Beverly insisted Milford do yard work in the backyard, which Milford did

23

not like to do, so Petitioner watched television downstairs and continued drinking. (RT

24

457-58.) They resumed arguing a couple of hours later, and when the police arrived in the

25

late afternoon for the first time that day he thought they were there because of their arguing.

26

(RT 458-59.) Petitioner told the police to speak to his parents, and they left. (RT 459.)

27

Petitioner said that about half an hour later his parents started arguing again in the

28

backyard, much louder, and they came in the house screaming at each other. (RT 459-60.)
13
16cv0408-JLS (BGS)

1

Petitioner said he went into the kitchen and saw them struggling over a kitchen knife, with

2

Beverly holding the knife and bleeding, and Milford trying to grab her hands. (RT 460.)

3

Petitioner was afraid someone was going to be killed, so he grabbed Milford, told him to

4

leave the kitchen, and told Beverly to give him the knife. (RT 460-61.) Beverly had a

5

frightening look in her eyes, as if she was looking at Petitioner but could not see him, and

6

she did not answer him, so he pushed her on the shoulder. (RT 461-62.) She spun around,

7

hit a rounded corner of a counter and dropped the knife. (RT 462.) Petitioner kicked the

8

knife aside and tried to help Beverly to her feet, but she replied: “No. Leave me alone.

9

I’m calling the police.” (RT 462-63.) Beverly called the police from the kitchen as

10

Petitioner picked up and held the knife to make sure it was “secure.” (RT 463-64.) He

11

denied ever having a hammer. (RT 464.) When Beverly spoke to the 911 operator, instead

12

of accusing her husband like he assumed she would, Petitioner was shocked to hear her tell

13

the police that he had attacked her. (RT 463-64.) Petitioner said he got mad at that point,

14

which is why his voice can be heard on the 911 tape saying: “You’re dead. You’re fucking

15

dead.” (RT 465.) He said it was just a figure of speech and he never intended to hurt her,

16

but was just upset and had “had enough.” (RT 465, 493.) He denied ever punching her or

17

cutting her with the knife. (RT 464-65.)

18

Petitioner said he knew the police were coming so he went upstairs, still holding the

19

knife to keep it “secure,” and looked for Milford in Milford’s bedroom, but did not see

20

him. (RT 466.) He went to his own bedroom, looked in the mirror, and decided that: “I

21

didn’t want to live anymore. . . . I didn’t want to deal with it any longer. I was trapped.”

22

(RT 466.) He said he stuck the knife in his throat but it was too dull to cut very deeply,

23

and then he heard Milford yell: “Get out of my house.” (RT 466.) He said he did not

24

remember going to the front door and telling the police officers to “fuck off and come and

25

get me,” and did not hear the loudspeaker announcements. (RT 467.)

26

Petitioner said that when he came out of his room he encountered Milford standing

27

by the stairs telling Petitioner to “get out of my house,” and saw several police officers

28

lined up halfway up the stairs. (RT 468.) The officers told Milford to go to his room and
14
16cv0408-JLS (BGS)

1

lock the door, which he did, and Petitioner stuck the knife in his throat again because he

2

wanted to die. (Id.) He was then shot in the leg and stomach with rubber bullets, and

3

because he had had “enough,” he turned around, walked into his bedroom, and threw the

4

knife on the floor up against the closet. (RT 468-69.) He knew it was over so he got on

5

his knees, laid his torso across the bed with his hands behind his back, and was attacked by

6

a dog. (RT 469, 480-81.) The dog grabbed his right arm and began shaking him like a rag

7

doll while he gave no resistance whatsoever. (RT 470.) The officers did not enter his

8

room, apparently because they did not want to be in there with the dog either, but stood at

9

the threshold. (RT 470-71.) The dog was eventually removed, the officers entered, and

10

while Petitioner was giving “absolutely” no resistance to being restrained, he was shot in

11

the back from two feet away. (RT 472-73, 509.) He asked the officer: “Why did you shoot

12

me, asshole?”, and passed out. (RT 472.) He woke up as the paramedics were strapping

13

him to a board, passed out again, and woke up in a helicopter. (RT 472-73.) Petitioner

14

admitted that Beverly’s dementia was worse when she testified at trial than before she was

15

injured on September 1, 2013, and denied shoving Milford in the garage as described by

16

their neighbor Mary Altomare. (RT 486-89.) The defense rested. (RT 512.)

17

Mark Lavake, an Oceanside Police Detective, was called on rebuttal and testified

18

that an officer-involved shooting investigation confirmed that Officer Kaldenbach’s .223

19

caliber AR-15 discharged one round on September 1, 2013, and that no other officer’s

20

firearm fired a round that night. (RT 515-16, 527.) He testified that he would expect to

21

see an exit wound in someone shot at close range with a .223 caliber AR-15 rifle. (RT

22

515.) He said that no bullet holes were found in Petitioner’s bed or bedroom floor. (RT

23

516.) Although a bullet was not recovered from anywhere in the house, bullet holes were

24

found in a wall and a ceiling of the house on a trajectory exactly as testified to by Officer

25

Kaldenbach, that he shot Petitioner while Petitioner was on the upper landing of the stairs

26

and Officer Kaldenhach was on the stairs looking up. (RT 517-22.) Detective Lavake said

27

those bullet holes were consistent with the AR-15 rifle bullet fragmenting when it hit

28

Petitioner. (RT 520.)
15
16cv0408-JLS (BGS)

1

After deliberating about a day and a half, the jury informed the court they were

2

deadlocked on count one (attempted murder of Beverly), and a mistrial was declared as to

3

that count. (CT 184-89.) The jury found Petitioner guilty of: (1) elder abuse likely to cause

4

great bodily injury to Beverly Foley (count two), and found he personally used a deadly or

5

dangerous weapon (a knife) during the commission of that crime, and personally inflicted

6

great bodily injury on her; (2) guilty of elder abuse likely to cause great bodily injury to

7

Milford Foley (count three), and found he personally used a deadly or dangerous weapon

8

(a hammer) during the commission of that crime; and (3) guilty of resisting an officer with

9

violence (count four), and found he personally used a deadly or dangerous weapon (a knife)

10

during the commission of that crime. (CT 126-28.) Petitioner was sentenced to four years

11

on count two, with a consecutive five-year enhancement for the weapon use finding and a

12

consecutive one-year enhancement for the great bodily injury finding; a consecutive one-

13

year term for count three, with a consecutive four-month enhancement for the weapon use

14

finding; and a consecutive eight-month term on count four, with a consecutive four-month

15

term for the weapon use finding, for a total term of twelve years and four months in state

16

prison. (RT 713-15.)

17

III.

DISCUSSION

18

Petitioner claims that the evidence is not sufficient to support the conviction for elder

19

abuse of his father because there is no evidence he attacked Milford in a manner likely to

20

cause great bodily injury, and no evidence Milford sustained great bodily injury (claim

21

one); the trial judge erred in finding his mother was not competent to testify because she

22

was able to answer a few questions correctly and because competency is for the jury to

23

decide (claim two); the hammer was illegally seized because his brother, his sister, and his

24

brother’s girlfriend were trespassing when they found it (claim three); his brother testified

25

falsely because: (a) he testified he was present when the hammer was found despite a police

26

report indicating he said he was downstairs when it was found, which also made his

27

testimony regarding the finding of the hammer improper hearsay, (b) an object that size

28

could not have been missed in the police search, and (c) he wished to prevent Petitioner
16
16cv0408-JLS (BGS)

1

from inheriting from their mother (claim four); the arresting officers used excessive force

2

by using a rifle against an unresisting 150-pound, 56 year old man, and committed perjury

3

regarding the shooting because he still has a 9 millimeter bullet in his body from that night,

4

and their testimony and the crime scene evidence should have been excluded as “fruit of

5

the poisonous tree” (claim five); the chain of custody of the hammer was improper and

6

unprofessional because it was picked up with bare hands which contaminated it, and then

7

put in a bag and left overnight on a counter (claim six); and he received ineffective

8

assistance of trial counsel when counsel failed to challenge the police officers’ false

9

statements about the type of weapon he was shot with, and failed to object to the

10

introduction of the photographs of blood at the scene because the source of the blood had

11

not been established by scientific testing (claim seven). (Id. at 26-60.)

12

Respondent answers that the adjudication of claim one by the state appellate court is

13

neither contrary to, nor involves an unreasonable application of, clearly established federal

14

law, and is not based on an unreasonable determination of the facts. (Ans. Mem. at 11-13.)

15

Respondent argues that the remaining claims are unexhausted because they were presented

16

to the state supreme court for the first and only time in the petition for review, which

17

deprived the state court of a fair opportunity to address them, but they should be denied as

18

meritless. (Id. at 13-18.)

19

Petitioner replies that he has established violations of his rights under the Fourth,

20

Fifth, Sixth and Fourteenth Amendments, requests an evidentiary hearing, and presents

21

new claims alleging cumulative error and ineffective assistance of trial counsel based on

22

counsel’s request for a competency hearing for his mother. (Traverse at 7-55.)

23

A. Standard of Review

24

In order to obtain federal habeas relief with respect to a claim which was adjudicated

25

on the merits in state court, a federal habeas petitioner must demonstrate that the state court

26

adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an

27

unreasonable application of, clearly established Federal law, as determined by the Supreme

28

Court of the United States; or (2) resulted in a decision that was based on an unreasonable
17
16cv0408-JLS (BGS)

1

determination of the facts in light of the evidence presented in the State court proceeding.”

2

28 U.S.C.A. § 2254(d) (West 2006). Even if § 2254(d) is satisfied, a petitioner must show

3

a federal constitutional violation occurred in order to obtain relief. Fry v. Pliler, 551 U.S.

4

112, 119-22 (2007); Frantz v. Hazey, 533 F.3d 724, 735-36 (9th Cir. 2008) (en banc).

5

Furthermore, a petitioner must also show that any constitutional error is not harmless,

6

unless it is of the type included on the Supreme Court’s “short, purposely limited roster of

7

structural errors.” Gautt v. Lewis, 489 F.3d 993, 1015 (9th Cir. 2007), citing Arizona v.

8

Fulminante, 499 U.S. 279, 306 (1991) (recognizing “most constitutional errors can be

9

harmless.”)

10

A state court’s decision may be “contrary to” clearly established Supreme Court

11

precedent (1) “if the state court applies a rule that contradicts the governing law set forth

12

in [the Court’s] cases” or (2) “if the state court confronts a set of facts that are materially

13

indistinguishable from a decision of [the] Court and nevertheless arrives at a result different

14

from [the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state

15

court decision may involve an “unreasonable application” of clearly established federal

16

law, “if the state court identifies the correct governing legal rule from this Court’s cases

17

but unreasonably applies it to the facts of the particular state prisoner’s case.” Id. at 407.

18

Relief under the “unreasonable application” clause of § 2254(d) is available “if, and only

19

if, it is so obvious that a clearly established rule applies to a given set of facts that there

20

could be no ‘fairminded disagreement’ on the question.” White v. Woodall, 572 U.S. ___,

21

134 S.Ct. 1697, 1706-07 (2014), quoting Harrington v. Richter, 562 U.S. 86, 103 (2011).

22

In order to satisfy § 2254(d)(2), the petitioner must show that the factual findings upon

23

which the state court’s adjudication of his claims rest are objectively unreasonable. Miller-

24

El v. Cockrell, 537 U.S. 322, 340 (2003).

25

B.

26

Petitioner alleges in claim one that the evidence is not sufficient to support his

27

conviction for elder abuse of his father because the evidence failed to show he used the

28

hammer in a manner likely to cause great bodily injury, and because his father did not

Claim One

18
16cv0408-JLS (BGS)

1

suffer a serious injury but was treated with “a couple of Band-Aids.” (Pet. at 20, 26, 30.)

2

Respondent argues that the state court denial of the claim (on the basis that swinging a

3

hammer at a person’s face and choking an elderly person into unconsciousness by kneeling

4

on his neck constitutes force likely to cause great bodily injury), is neither contrary to, nor

5

involves an unreasonable application of, clearly established federal law, and is not based

6

on an unreasonable determination of the facts in light of the evidence presented in the state

7

court proceedings. (Ans. Mem. at 11-13.)

8

Petitioner presented this claim to the state supreme court in his petition for review.

9

(Lodgment No. 7.) That petition was denied with an order which stated: “The petition for

10

review is denied.” (Lodgment No. 8.) The same claim was presented to the state appellate

11

court on direct appeal. (Lodgment No. 4.) The appellate court denied the claim on the

12

merits in a written opinion. (Lodgment No. 6.)

13

There is a presumption that “[w]here there has been one reasoned state judgment

14

rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the

15

same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991).

16

Therefore, with respect to claim one, the Court will look through the silent denial of this

17

claim by the state supreme court on direct appeal to the last reasoned state court opinion

18

addressing the claim, the appellate court opinion on direct appeal, which stated:

19
20
21
22
23
24
25
26
27
28

We first note, Foley does not challenge his convictions in counts 2 and
4. His only contention on appeal is that the evidence does not support a
finding he used force likely to cause great bodily injury in the assault on
Milford. His argument is largely based on the fact that Milford only received
fairly minor injuries. However minor the injuries may have been to Milford,
the force used, such as attempting to hit Milford with a hammer and a placing
a knee on Milford’s neck until he passed out, is more than adequate to support
the conviction.
When we consider a challenge to the sufficiency of the evidence to
support a conviction we apply the familiar substantial evidence standard of
review. Under that standard we review the entire record drawing all
reasonable inferences in favor of the jury’s decision. We do not weigh the
evidence or make credibility decisions. Our task is to determine whether there
is sufficient, substantial evidence from which a reasonable jury could have
19
16cv0408-JLS (BGS)

1
2

found the elements of the offense have been proved beyond a reasonable
doubt. (People v. Johnson (1980) 26 Cal.3d 557, 575–577; People v. Bolin
(1998) 18 Cal.4th 297, 331.)

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

In order to establish that Foley was guilty of willful cruelty to Milford
as charged, the prosecution was required to show that the acts were done under
circumstances likely to cause great bodily injury. In order to prove such force,
it is not necessary that the victim actually be injured. (People v. Hopkins
(1978) 78 Cal.App.3d 316, 320.) The presence or absence of injury is
probative on the issue of the amount of force, but injury alone does not
establish the requisite force. (People v. Muir (1966) 244 Cal.App.2d 598,
604.) The determination of the amount and nature of the force used is a
question of fact to be decided by the jury. (Ibid.)
This case illustrates the difference between the role of the original fact
finder deciding guilt or innocence and an appellate court reviewing the
conviction. Milford’s testimony was problematic and somewhat inconsistent.
However, Milford insisted that Foley attempted to hit him in the face with a
hammer. Milford also maintained that Foley placed his knee on Milford’s
neck and choked him until he became unconscious.
A jury could have rejected Milford’s testimony, but it did not do so. It
is apparent the jury accepted Milford’s testimony as true. It is not our role to
second guess the jury’s credibility decision or to reweigh the evidence. If the
jury credited Milford’s testimony there is plainly enough evidence to show
the use of force likely to cause great bodily injury.
Swinging a hammer at a person’s face in an effort to hit the person is
obviously potentially deadly force. Likewise, using a knee placed against an
elderly person’s neck to choke the person into unconsciousness poses a grave
risk of death or great bodily injury. On this record, it is only fortuitous that
the 86–year–old victim was not killed or gravely injured. As we said at the
outset of this discussion, there is more than adequate evidence in the record to
support the conviction for count 3.
(Lodgment No. 6, People v. Foley, No. D066567, slip op. at 4-6.)

25

“[T]he Due Process Clause protects the accused against conviction except upon

26

proof beyond a reasonable doubt of every fact necessary to constitute the crime with which

27

he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The Fourteenth Amendment’s

28

Due Process Clause is violated, and an applicant is entitled to federal habeas corpus relief,
20
16cv0408-JLS (BGS)

1

“if it is found that upon the record evidence adduced at the trial no rational trier of fact

2

could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

3

307, 324 (1979). The Court must apply an additional layer of deference in applying the

4

Jackson standard when the Court also applies the standards of 28 U.S.C. § 2254(d). Juan

5

H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In fact, “Section 2254(d) reflects the

6

view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal

7

justice systems,’ not a substitute for ordinary error correction.” Harrington v. Richter, 562

8

U.S. 86, 103 (2011), quoting Jackson, 443 U.S. at 332 n.5.

9

Petitioner contended in state court that the hair and blood found on the hammer could

10

have gotten there when he dropped it next to Milford, as Milford testified, without it ever

11

having come into contact with Milford, that Milford testified only that Petitioner “tried” to

12

hit him with the hammer and was not sure if he did, and that Milford’s memory of the

13

events was unclear at best, and was possibility manipulated by Christopher or his girlfriend

14

after the fact. (Lodgment No. 4 at 16-24 [ECF No. 27-9 at 23-29].) Given the fact that

15

Milford suffered no injuries, he argued that it is pure speculation that kneeling on an elderly

16

person’s neck constitutes force likely to cause great bodily injury. (Id.) Petitioner contends

17

here that he was protecting his parents when he omitted from his trial testimony that when

18

he entered the kitchen he saw his father holding a hammer and his mother holding a knife,

19

that he separated them, and then washed the blood off the knife. (Pet. at 60.)

20

The jury heard testimony regarding the force Petitioner used against Milford.

21

Milford testified that he locked himself in his bathroom inside his locked bedroom, that

22

Petitioner broke both locks, and “had a God damn knife or a hammer and beat on me. And

23

I bit him on the left arm” which caused him to drop the hammer. (Lodgment No. 9,

24

Preliminary Hearing Tr. at 51-53.) He said Petitioner stabbed him in the back, hit him with

25

the hammer, and then put his knee on his neck and pinned him to the floor which caused

26

him to pass out. (Id. at 53-56, 58-59, 64-65.) Petitioner contends Milford testified that

27

Petitioner tried and failed to hit him with the hammer, relying on a passage in Milford’s

28

testimony where he testified that as he was lying on the floor covered in blood Petitioner
21
16cv0408-JLS (BGS)

1

“tried to hit me here,” and pointed to the right side of his face. (Id. at 54.) The prosecutor

2

in closing argument admitted that Milford did not say he was hit in the head with the

3

hammer, just that Petitioner attacked him with a hammer, and admitted that Milford did

4

not have a head injury. (RT 633.)

5

The jury was instructed that in order to find Petitioner guilty of elder abuse likely to

6

cause great bodily injury, the prosecution was required to prove beyond a reasonable doubt

7

that Petitioner “willfully inflicted unjustifiable physical pain or mental suffering on another

8

person,” and “inflicted suffering on that person under circumstances or conditions likely to

9

produce great bodily harm or death.” (RT 557.) They were instructed that: “Great bodily

10

injury means significant or substantial physical injury. It is an injury greater than minor or

11

moderate harm.” (Id.) The Court finds that it was objectively reasonable for the state

12

appellate court to find that Milford’s testimony that Petitioner hit him in the head with a

13

hammer and knelt on his neck until his lost consciousness adequately established the

14

elements of the offense as they are defined by state law. See Jackson, 443 U.S. at 324 n.16

15

(holding that federal habeas courts must analyze Jackson claims “with explicit reference to

16

the substantive elements of the criminal offense as defined by state law.”); see also

17

Coleman v. Johnson, 566 U.S. 650, ___, 132 S.Ct. 2060, 2065 (2012) (“The jury in this

18

case was convinced, and the only question under Jackson is whether that finding was so

19

insupportable as to fall below the threshold of bare rationality.”)

20

With respect to the contention that Milford’s memory was questionable, which was

21

arguably supported by Officer Weber’s testimony that he had to kick in the locked bedroom

22

door despite Milford’s testimony that Petitioner had earlier broken the lock, or that his

23

memory was influenced by conversations with Christopher, who admitted antagonism

24

toward Petitioner, that evidence was presented to the jury, and this Court must respect the

25

jury’s credibility findings. See Jackson, 443 U.S. at 319 (federal habeas courts must

26

respect the “factfinder’s province to determine witness credibility, resolve evidentiary

27

conflicts, and draw reasonable inferences from proven facts,” by assuming “the trier of fact

28

resolved all such conflicts in favor of the prosecution.”)
22
16cv0408-JLS (BGS)

1

In light of the two layers of deference required by Jackson and 28 U.S.C. § 2254(d),

2

see Juan H., 408 F.3d at 1274, and the admonition that federal habeas relief functions as a

3

“guard against extreme malfunctions in the state criminal justice systems,” and not simply

4

as a means of error correction, Richter, 562 U.S. at 103, quoting Jackson, 443 U.S. at 332

5

n.5, it is clear that the state appellate court reasonably denied claim one on the basis that

6

sufficient evidence was presented at trial to support Petitioner’s conviction for elder abuse

7

likely to cause great bodily injury against Milford Foley. The Court finds that the state

8

court adjudication of claim one is neither contrary to, nor involves an unreasonable

9

application of, clearly established federal law. Richter, 562 U.S. at 102; Jackson, 443 U.S.

10

at 324; In re Winship, 397 U.S. at 364; Juan H., 408 F.3d at 1274. Nor is there any basis

11

to find that the state court adjudication is based on an unreasonable determination of the

12

facts. Miller-El, 537 U.S. at 340.

13

C.

14

Respondent contends that claims two through seven were not presented to the state

15

appellate court before they were presented to the state supreme court in the petition for

16

review, which deprived the state court of a fair opportunity to address them, and renders

17

them unexhausted. (Ans. Mem. at 13.) Respondent argues the claims should be denied

18

irrespective of the failure to exhaust because they lack merit. (Id. at 13-14.)

Exhaustion of Remaining Claims

19

Petitioner presented claims two though seven to the state supreme court for the first

20

and only time in a petition for review on direct appeal. (Lodgment No. 7.) That petition

21

was denied in an order which stated: “The petition for review is denied.” (Lodgment No.

22

8, People v. Foley, No. S229887, order at 1 (Nov. 24, 2015).) The United States Supreme

23

Court has indicated that: “When a federal claim has been presented to a state court and the

24

state court has denied relief, it may be presumed that the state court adjudicated the claim

25

on the merits in the absence of any indication or state-law procedural principles to the

26

contrary.” Richter, 562 U.S. at 89 (emphasis added). Respondent relies on the pre-Richter

27

decision of the Ninth Circuit in Casey v. Moore, 386 F.3d 896, 917-18 (9th Cir. 2004),

28

which found that because the Washington State Supreme Court will not grant a petition for
23
16cv0408-JLS (BGS)

1

appeal as a matter of right, but only within its discretion, the petitioner had failed to exhaust

2

by failing to present his claims to the lower Washington court before seeking discretionary

3

review in the state supreme court. Id., citing Castille v. Peoples, 489 U.S. 346, 351 (1989)

4

(holding that absent a decision on the merits by the state high court, the exhaustion

5

requirement was not satisfied by presenting a claim “for first and only time in a procedural

6

context in which its merits will not be considered unless ‘there are special and important

7

reasons therefore.’”), quoting Pa. Rules of App. Proc., rule 1114.

8

California law provides that “as a matter of policy, on petition for review we

9

normally will not consider any issue that could have been but was not timely raised in the

10

briefs filed in the Court of Appeal.” Conservatorship of Susan T., 8 Cal.4th 1005, 1013

11

(Cal. 1994), citing Cal. Rules of Court, rule 29(b)(1). The California Supreme Court has

12

noted that Rule 29(b)(1) “is not absolute,” because that rule “recognizes that this court may

13

decide ‘any issues that are raised or fairly included in the petition or answer.’” People v.

14

Braxton, 34 Cal.4th 798, 809 (Cal. 2004), quoting Cal. Rules of Court, rule 29(b)(1).3

15

If the Richter presumption applies, the silent denial of claims two through seven

16

should be treated as a denial on the merits of the claims, and this Court “must determine

17

what arguments or theories . . . could have supported the state court’s decision; and then it

18

must ask whether it is possible fairminded jurists could disagree that those arguments or

19

theories are inconsistent with the holding in a prior decision of” the Supreme Court.

20

Richter, 562 U.S. at 102. If Castille applies, Petitioner deprived the state court of a fair

21

opportunity to address the merits of his federal claims, and he did not exhaust his state

22

court remedies by presenting claims two through seven in the petition for review. See Rose

23

v. Lundy, 455 U.S. 509, 515 (1982) (holding that as a matter of federal-state comity, federal

24

habeas courts generally will not consider a claim until the state court have had an

25
26
27
28

3

The Court notes that other district courts in California have found, pre-Richter, that a failure to present
claims to the California appellate court prior to presenting them to the state supreme court in a petition for
review renders them unexhausted. See Reynoso v. Lamarque, No. 03cv0272-RRB (EFB), 2007 WL
707521 at *7 (E.D. Cal. Mar. 6, 2007); Dixon v. Brown, No. 08cv3725-SBA (PR), 2010 WL 1028720 at
*3 (N.D. Cal. Mar. 18, 2010).
24
16cv0408-JLS (BGS)

1

opportunity to act upon the claim); Picard v. Connor, 404 U.S. 270, 275 (1971) (noting that

2

the exhaustion requirement assures the state court of the “initial opportunity to pass upon

3

and correct alleged violations of its prisoners’ federal rights.”) Of course, the exhaustion

4

requirement applies only to claims which are cognizable on federal habeas, and as

5

discussed below, several of the claims do not satisfy that requirement. See Acosta-Huerta

6

v. Estelle, 7 F.3d 139, 142 (9th Cir. 1992) (noting that Rose presumes the claims are

7

cognizable on federal habeas, and that it would be futile to require the petitioner to exhaust

8

state court remedies as to claims that “clearly do not rise to the level of alleged deprivation

9

of [federal] constitutional rights and that may be denied summarily on their merits.”)

10

Here, however, the Court need not determine whether Respondent has rebutted the

11

post-Castille presumption in Richter that the state supreme court’s silent denial of the

12

petition for review was a denial on the merits of the claims presented, because claims two

13

through seven fail under a de novo review. See Berghuis v. Thompkins, 560 U.S. 370, 390

14

(2010) (holding that when it is unclear whether AEDPA deference applies, a federal habeas

15

court may conduct a de novo review to deny a petition but not to grant one); see also 28

16

U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the

17

merits, notwithstanding the failure of the applicant to exhaust the remedies available in the

18

courts of the State.”)

19

In order to deny relief on an unexhausted claim under 28 U.S.C. § 2254(b)(2), the

20

claim must not present a “colorable” claim for relief, that is, it must be clear the claim does

21

“not rise to the level of alleged deprivations of constitutional rights.” Acosta-Huerta, 7

22

F.3d at 142. As discussed below, most of the claims are sufficiently lacking in merit so as

23

to satisfy that standard. However, even if any of the claims are “colorable,” the Court

24

would recommend finding that Petitioner has satisfied the exhaustion requirement because

25

there is now an absence of state judicial remedies available to him. See Castille, 489 U.S.

26

at 351 (“The requisite exhaustion may nonetheless exist, of course, if it is clear that

27

respondent’s claims are now procedurally barred under [state] law.”), citing Engle v. Isaac,

28

456 U.S. 107, 125 n.28 (1982) (“[The exhaustion] requirement, however, refers only to
25
16cv0408-JLS (BGS)

1

remedies still available at the time of the federal petition.”) It appears that if Petitioner

2

were to return to state court to present his claims now, over a year and a half after the state

3

supreme court denied his petition for review, they would be met with a state timeliness bar.

4

See Walker v. Martin, 562 U.S. 307, 312-21 (2011) (holding that California’s timeliness

5

rule requiring that a petitioner must seek relief without “substantial delay” as “measured

6

from the time the petitioner or counsel knew, or should reasonably have known, of the

7

information offered in support of the claim and the legal basis for the claim,” is clearly

8

established and consistently applied).

9

Thus, to the extent claims two through seven were not properly presented to the state

10

court, they are now technically exhausted and procedurally defaulted in this Court.

11

Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (holding that a procedural default

12

arises when “the court to which the petitioner would be required to present his claims in

13

order to meet the exhaustion requirement would now find the claims procedurally

14

barred.”); see id. at 729-30 (a procedural default arises from a violation of a state procedural

15

rule which is independent of federal law, and which is clearly established and consistently

16

applied.); Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003) (“We conclude that

17

because the California untimeliness rule is not interwoven with federal law, it is an

18

independent state procedural ground.”) The Court may reach the merits of a procedurally

19

defaulted claim if Petitioner can demonstrate cause for his failure to satisfy the state

20

procedural rule and prejudice arising from the default, or that a fundamental miscarriage

21

of justice would result from the Court not reaching the merits of the defaulted claim.

22

Coleman, 501 U.S. at 750.

23

The Court need not make a determination whether Petitioner could make a showing

24

sufficient to excuse any default because claims two through seven are insufficiently

25

meritorious to provide for federal habeas relief under any standard of review, and the Ninth

26

Circuit has indicated that: “Procedural bar issues are not infrequently more complex than

27

the merits issues presented by the appeal, so it may well make sense in some instances to

28

proceed to the merits if the result will be the same.” Franklin v. Johnson, 290 F.3d 1223,
26
16cv0408-JLS (BGS)

1

1232 (9th Cir. 2002), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (“We do not

2

mean to suggest that the procedural-bar issue must invariably be resolved first; only that it

3

ordinarily should be.”) The standard of review for claims which are technically exhausted

4

and procedurally defaulted is unclear. Slovik v. Yates, 556 F.3d 747, 751 n.4 (9th Cir.

5

2009). Denial of the claims under a de novo review, however, assures a finding that

6

Petitioner is not entitled to federal habeas relief irrespective of any procedural default or

7

failure to exhaust. See Berghuis, 560 U.S. at 390 (holding that when the standard of review

8

is unclear, a federal habeas court may conduct a de novo review to deny a petition “because

9

a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is

10

rejected on de novo review.”)

11

For the reasons discussed below, claims two through seven are clearly insufficiently

12

meritorious to provide for federal habeas relief under a de novo review. Accordingly, with

13

respect to these claims, the Court recommends denying relief based on a de novo review

14

without determining whether the claims were adjudicated on the merits in state court, and

15

without determining whether Petitioner has exhausted state court remedies.

16

Under a de novo review, “state court judgments of conviction and sentence carry a

17

presumption of finality and legality and may be set aside only when a state prisoner carries

18

his burden of proving that (his) detention violates the fundamental liberties of the person,

19

safeguarded against state action by the Federal Constitution.” Hayes v. Brown, 399 F.3d

20

972, 978 (9th Cir. 2005) (en banc). To the extent the state court’s reasoning on related

21

claims is relevant, it must be considered. See Frantz, 533 F.3d at 738 (holding that even if

22

the state court does not address the constitutional issue, where the reasoning of the state

23

court is relevant, that reasoning must be part of a federal habeas court’s consideration even

24

under a de novo review).

25

D.

26

Petitioner contends in claim two that his mother was competent to testify at his trial

27

because she understood the nature of her oath and could remember some of the events of

28

September 1, 2013, and the trial judge therefore erred in finding that she no longer had any

Claim Two

27
16cv0408-JLS (BGS)

1

memory of those events and was only competent to identify Petitioner as her son. (Pet. at

2

20, 26, 28-29.) He points to passages from Beverly’s preliminary hearing testimony where

3

she was asked if she remembered calling the police and she answered: “Oh yeah, they had

4

a argument,” which he contends was a reference to Petitioner and his father, and when

5

asked if Petitioner had ever hit her, she answered: “No, he’s not that kind of kid.” (Id. at

6

28, citing Lodgment No. 9, Preliminary Hearing Tr. at 36, 38.) He claims he was

7

prejudiced by the trial court’s refusal to allow her to testify, and that the competency of a

8

witness is for the jury to decide. (Id. at 20; Traverse at 29-34.)

9
10
11
12
13
14
15
16
17
18

Defense counsel filed a pre-trial motion requesting an evidentiary hearing pursuant
to California Evidence Code §§ 402 and 701, stating:
For a least a one year prior to the alleged incident Ms. Foley has
suffered from Dementia. At the preliminary hearing, Ms. Foley was called as
a witness by the People. While it is unclear if she was deliberately
uncooperative or suffering from the effects of her disease, Ms. Foley was
unable to recall any of the events of the alleged incident, had difficulty
tracking questions, and offered inappropriate responses to questions. Ms.
Foley believed she still resided in the Oceanside home with her husband when
in fact she was placed in a skilled nursing facility after this incident. Defense
request a hearing pursuant to Evidence Code 402 to determine if Ms. Foley
meets the competency grounds established in Evidence Code 701.
(CT 19.)

19

The trial court granted the defense motion for a hearing. (RT 5.) After the jury was

20

selected but before any evidence was presented or any witness testified, a hearing was held

21

outside the presence of the jury at which Beverly Foley testified. (RT 21-45.) During that

22

hearing she asked the court repeatedly “why are we here?” and “what’s this all about?”

23

(RT 23-24, 26.) She was unable to say when she saw Petitioner last, and asked: “Is he on

24

trial for something?” (RT 29-30.) She did not know what day of the week it was, and she

25

thought her husband was at home although he had died six months earlier. (RT 35.) She

26

did not know that she lived in a secure dementia facility or that she had been diagnosed

27

with dementia. (RT 37.) She did not remember being injured on September 1, 2013, and

28

did not remember the police coming to her home that evening. (RT 42.) Defense counsel
28
16cv0408-JLS (BGS)

1

cross-examined Beverly with a diary Beverly kept, and confronted her with an entry for

2

April 13, 2013, which stated: “Later in the evening, upstairs the three of us got into an

3

argument, and I got knocked down. Mel also got up, reinjured his – my leg. Made Greg –

4

made Greg leave.” (RT 39-40.) Beverly said she always wrote the truth in her diary but

5

did not remember that event. (RT 40.)

6

After the hearing, the prosecutor indicated that he only intended to call Beverly to

7

testify that Petitioner is her son and that he lived with her in Oceanside, to which defense

8

counsel did not object. (RT 64.) The trial judge found: “For that limited inquiry, I’m going

9

to find that she is capable and does qualify as a witness pursuant to the Penal Code for that

10

limited inquiry and is competent to testify to that.” (Id.) After a break, defense counsel

11

indicated that, “for purposes of a thorough defense,” she wanted to call Beverly to testify

12

regarding the events of the evening.4 (RT 46.) The trial judge stated:
And those are the facts [referring to a stipulation that Beverly’s husband
was dead at the time of the hearing and Beverly no longer resided in
Oceanside] that this court is relying upon to demonstrate to it that Ms. Foley
no longer has a memory of events of where she lives, whether her husband’s
alive, what happened last week, a year ago, several years ago.

13
14
15
16
17

You cross-examined her on writings that purport to document events
over her life in the past out of her diary which would actually be, in this court’s
opinion, much more reliable than her testimony that she’s giving here in court.

18
19

So I’m finding that she, Ms. Foley, has no personal knowledge of the
matters that occurred on the dates that are alleged in the information, and that
personal knowledge is [sic] that she might have had it at one time, but it has
now left her. [¶] Under 702, I find she no longer has personal knowledge of
the matter and therefore has nothing to testify to other than the fact that she
can recognize her child, which I will allow that limited inquiry.5

20
21
22
23
24

(RT 47-49.)

25
26

4

27

5

28

Thus, it does not appear that Petitioner waived his claim as a result of the motion in limine.

California Evidence Code § 702, referred to by the trial judge, provides that “the testimony of a witness
concerning a particular matter is inadmissible unless he has personal knowledge of the matter.”
Cal.Evid.Code § 702.
29
16cv0408-JLS (BGS)

1

The California Supreme Court has stated:

2

As noted above, a witness must be allowed to testify unless he or she
(1) cannot communicate intelligibly, (2) cannot understand the duty of truthful
testimony, or (3) lacks personal knowledge of the events to be recounted.
While the first two questions are determined entirely by the court, its role with
respect to the issue of personal knowledge is more limited. A witness
challenged for lack of personal knowledge must nonetheless be allowed to
testify if there is evidence from which a rational trier of fact could find that
the witness accurately perceived and recollected the testimonial events. Once
that threshold is passed, it is for the jury to decide whether the witness’s
perceptions and recollections are credible.

3
4
5
6
7
8
9

People v. Anderson, 25 Cal.4th 543, 574 (2001)

10

Petitioner cites to passages from Beverly’s preliminary hearing testimony where,

11

when asked if she remembered: “something happening where the paramedics had to come

12

to the house or the police?”, she answered: “Oh, yeah. [Petitioner and his dad] did get into

13

an argument.” (Lodgment No. 9, Preliminary Hearing Tr. at 36.) He also cites to a passage

14

from that hearing where she said she does not have dementia. (Id. at 42.) He argues that

15

although she may have had delusions, the weight of her testimony should have been left to

16

the jury. (Pet. at 28.)

17

Respondent answers that on the whole there was no error in the finding of

18

incompetence, and that in any case such a competency determination is a matter of state

19

law only and this Court must defer to the state court’s determination of state law. (Ans.

20

Mem. at 14-15.) Petitioner replies that his rights to due process and to present a defense

21

as protected by the Sixth and Fourteenth Amendments were violated by not allowing his

22

mother to testify. (Traverse at 29-34.) He also argues that state law was violated because

23

under California Evidence Code § 780, it is for the jury to determine the competence of a

24

witness. (Id.)

25

“Few rights are more fundamental than that of an accused to present witnesses in his

26

own defense.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). “Whether rooted

27

directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory

28

Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees
30
16cv0408-JLS (BGS)

1

criminal defendants ‘a meaningful opportunity to present a complete defense.” Crane v.

2

Kentucky, 476 U.S. 683, 690 (1986), quoting California v. Trombetta, 467 U.S. 479, 485

3

(1984) (“Under the Due Process Clause of the Fourteenth Amendment, criminal

4

prosecutions must comport with prevailing notions of fundamental fairness.”)

5

“[S]tate and federal rulemakers have broad latitude under the Constitution to

6

establish rules excluding evidence from criminal trials. Such rules do not abridge an

7

accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate

8

to the purposes they are designed to serve.” United States v. Scheffer, 523 U.S. 303, 308

9

(1998), quoting Rock v. Arkansas, 483 U.S. 44, 56 (1988) (“a State may not apply an

10

arbitrary rule of competence to exclude a material defense witness from taking the stand.”)

11

Petitioner has not identified an error in the trial court’s exclusion under California

12

Penal Evidence Code § 702 of Beverly’s testimony, because the record clearly supports the

13

finding that she was unable to remember the incident. His contention that California

14

Evidence Code § 780 was violated is without merit because that section provides that

15

“Except as otherwise provided by statute, the court or jury may consider in determining

16

the credibility of a witness any matter that has any tendency in reason to prove or disprove

17

the truthfulness of his testimony . . .” Cal.Evid.Code § 780 (italics added). As set forth

18

above, California Evidence Code § 702, relied on by the trial judge, provides that “the

19

testimony of a witness concerning a particular matter is inadmissible unless he has personal

20

knowledge of the matter.” Cal.Evid.Code § 702. Furthermore, Petitioner cites to passages

21

from Beverly’s preliminary hearing testimony, which took place over nine months before

22

she testified at trial. It is clear from her testimony at the pre-trial hearing that she did not

23

remember the events of September 1, 2013. Her son Christopher testified that at the time

24

of trial Beverly’s condition had deteriorated to the point which required her to live in a

25

secure dementia ward with constant monitoring for her safety. (RT 75-76.) Dr. Tomaneng

26

testified that when he treated Beverly he consulted with a psychiatrist, and opined that

27

Beverly suffered a concussion on September 1, 2013, which had exacerbated her dementia.

28

(RT 340-41.) Even Petitioner testified that Beverly’s dementia was worse when she
31
16cv0408-JLS (BGS)

1

testified at trial than before she was injured. (RT 486.) Thus, Petitioner is in essence

2

complaining it is unfair that a witness he played some part in rendering unavailable to

3

testify was unavailable to testify. Petitioner has failed to identify a state law error in

4

excluding his mother from testifying at his trial because he has not identified “evidence

5

from which a rational trier of fact could find that [his mother] accurately perceived and

6

recollected the testimonial events.” Anderson, 25 Cal.4th at 574; see also Estelle v.

7

McGuire, 502 U.S. 62, 72 (1991) (holding that to merit federal habeas relief based on an

8

error of state law, the petitioner must show that the error, considered in the context of the

9

trial record as a whole, so infected the entire trial that the resulting conviction violated due

10

process).

11

However, “the issue for us, always, is whether the state proceedings satisfied due

12

process; the presence or absence of a state law violation is largely beside the point.”

13

Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991) (“While adherence to state

14

evidentiary rules suggests that the trial was conducted in a procedurally fair manner, it is

15

certainly possible to have a fair trial even when state standards are violated; conversely,

16

state procedural and evidentiary rules may countenance processes that do not comport with

17

fundamental fairness.”) Nevertheless, state evidentiary rules “do not abridge an accused’s

18

right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the

19

purposes they are designed to serve.” Scheffer, 523 U.S. at 308, quoting Rock, 483 U.S.

20

at 56 (“a State may not apply an arbitrary rule of competence to exclude a material defense

21

witness from taking the stand.”) Petitioner has failed to show a federal constitutional

22

violation because he has failed to show there was anything arbitrary about his mother being

23

disqualified as a witness due to her dementia, that her failure to testify deprived him of a

24

meaningful opportunity to present a defense, or that his trial was rendered fundamentally

25

unfair by her failure to testify. Chambers, 410 U.S. at 302; Holmes, 547 U.S. at 324-25;

26

Trombetta, 467 U.S. at 485.

27

Finally, even if Petitioner could demonstrate an error in excluding his mother as a

28

witness, and assuming he could satisfy the provisions of 28 U.S.C. § 2254(d)(1) or (2),
32
16cv0408-JLS (BGS)

1

habeas relief is not available if the error is harmless. Fulminante, 499 U.S. at 306

2

(recognizing “most constitutional errors can be harmless.”) Under that standard, habeas

3

relief is not available “unless the error resulted in ‘substantial and injurious effect or

4

influence in determining the jury’s verdict,’ . . . or unless the judge ‘is in grave doubt’ about

5

the harmlessness of the error.” Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004),

6

quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) and O’Neal v. McAninch, 513

7

U.S. 432, 436 (1995). “There must be more than a ‘reasonable possibility’ that the error

8

was harmful.” Davis v. Ayala, 576 U.S. ___, 135 S.Ct 2187, 2198 (2015), quoting Brecht,

9

507 U.S. at 637.

10

Petitioner has not shown that his mother’s testimony was necessary to present a

11

meaningful defense, or for that matter, that she was even a witness favorable to the defense.

12

Rather, the jury heard Beverly’s voice on the 911 recordings saying Petitioner is “acting

13

up and threatening as usual,” that: “I’ve been attacked . . . by my son,” that Petitioner “had

14

a knife,” and “I am bleeding to death.” (Lodgment No. 2, Supplemental Clerk’s Tr. at 8,

15

11-12.) Officer Cosby testified that when he asked Beverly at the scene how she was

16

injured she told him: “My son did it with his hands and fists.” (RT 171.) A doctor testified

17

that the knife cuts to Beverly’s hands and arms were defensive wounds. (RT 383.) Milford

18

testified that he locked himself in his room that night because Petitioner had been drinking.

19

(Lodgment No. 9, Preliminary Hearing Tr. at 49-59.) Petitioner’s blood alcohol content

20

was .23 percent (RT 386), and a neighbor said she heard Milford tell Petitioner he was not

21

allowed in the house when he had been drinking. (RT 97.)

22

Even setting aside the fact that Petitioner relies on Beverly’s preliminary hearing

23

testimony which took place over nine months before trial, and setting aside the evidence

24

that her condition had deteriorated by the time of trial, if she had been allowed to testify in

25

front of the jury that Petitioner is not the “kind of kid” that would hit her, the jury would

26

have seen what the parties observed during her testimony at the competency hearing, that

27

the increase in her dementia from the day of the events to the trial, perhaps as a result of

28

the injuries Petitioner was accused of inflicting upon her, prevented her from being a
33
16cv0408-JLS (BGS)

1

reliable witness. Petitioner has not demonstrated “a ‘reasonable possibility’ that [any] error

2

[in excluding her testimony] was harmful.” Ayala, 135 S.Ct at 2198, quoting Brecht, 507

3

U.S. at 637. The Court is not “in grave doubt” that the alleged “error resulted in ‘substantial

4

and injurious effect or influence in determining the jury’s verdict.’” Medina, 386 F.3d at

5

877, quoting Brecht, 507 U.S. at 637 and McAninch, 513 U.S. at 436.

6

The Court finds, based on a de novo review of claim two, there was no federal

7

constitutional violation arising from the exclusion of the testimony of Petitioner’s mother

8

at his trial. The Court also finds that any error is harmless. Accordingly, the Court

9

recommends denying habeas relief as to claim two.

10

E.

11

Petitioner contends in claim three that the hammer he was convicted of hitting his

12

father with was illegally seized because it was found when his sister, his brother, and his

13

brother’s girlfriend illegally entered his bedroom while trespassing. (Pet. at 20, 26, 30-32,

14

56.) Respondent answers that even assuming the action of Petitioner’s relatives could be

15

attributed to law enforcement so as to implicate his Fourth Amendment rights, he is

16

precluded from bringing such a claim on federal habeas. (Ans. Mem. at 15.)

Claim Three

17

“[W]here the State has provided an opportunity for full and fair litigation of a Fourth

18

Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the

19

ground that evidence obtained in an unconstitutional search or seizure was introduced at

20

his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976). Under California law, a defendant

21

can move pretrial to suppress evidence on the basis that the evidence was obtained in

22

violation of the Fourth Amendment. See Cal. Penal Code § 1538.5 (West 2011).

23

In Gordon v. Duran, 895 F.2d 610 (9th Cir. 1990), the Ninth Circuit found it

24

unnecessary to reach the issue of whether or not the petitioner’s Fourth Amendment claim

25

was, in fact, fully and fairly litigated, and held that the mere fact that the state of California

26

provides an opportunity to fully and fairly litigate Fourth Amendment claims through Penal

27

Code § 1538.5 precludes federal habeas review, irrespective of whether or not the petitioner

28

availed himself of the opportunity. Gordon, 895 F.2d at 613-14. Because California
34
16cv0408-JLS (BGS)

1

provides a means by which defendants can challenge the constitutionality of searches and

2

seizures, Petitioner’s Fourth Amendment claim is not cognizable on federal habeas. See

3

Stone, 428 U.S. at 494; Gordon, 895 F.2d at 613-14.

4
5

The Court finds that Petitioner’s claim that the hammer was illegally seized is not
cognizable on federal habeas, and recommends denying habeas relief as to claim three.

6

F.

7

Petitioner contends in claim four that his brother Christopher testified falsely at his

8

trial because: (1) he testified he was present when the hammer was found despite a police

9

report stating he said he was downstairs when it was found, which also made his testimony

10

regarding the finding of the hammer improper hearsay; (2) an object that size could not

11

have been missed in the police search; and (3) Christopher was antagonistic to Petitioner

12

because he wished to prevent Petitioner from inheriting from their parents’ estate. (Pet. at

13

21, 26, 37, 41, 56.)

Claim Four

14

Respondent answers that the claim relies on minor inconsistencies in Christopher’s

15

testimony, which does not support an allegation of perjury. (Ans. Mem. at 16.) Petitioner

16

replies that his Sixth Amendment right to confront the person who found the hammer was

17

violated by the introduction of what he characterizes as Christopher’s hearsay testimony

18

that his girlfriend found the hammer at the foot of Petitioner’s bed. (Traverse at 22.)

19

State evidentiary rulings are not cognizable on a federal habeas proceeding unless

20

the admission of the evidence violated Petitioner’s due process right to a fair trial. Estelle,

21

502 U.S. at 70, Gordon, 895 F.2d at 613. In order to establish a due process violation,

22

Petitioner must show that the introduction of the evidence was so prejudicial that it

23

rendered his trial fundamentally unfair. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 897 (9th

24

Cir. 1996); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991).

25

The hammer itself was not introduced into evidence at trial, merely photographs of

26

it and a stipulation that blood stains on the hammer head matched the DNA profiles of

27

Beverly and Milford and excluded Petitioner as a contributor. (RT 447-48.) Christopher

28

did not, as Petitioner contends, contradict his statement to the police that he was not present
35
16cv0408-JLS (BGS)

1

when it was found. When shown a photograph of Petitioner’s bed and asked at trial if that

2

is where the hammer was found, Christopher replied: “I believe that’s where it was found.

3

I myself did not personally find it. I had so much going on. I believe Gina found it, and

4

she immediately yelled for me.” (RT 80.) Detective Stracke testified that he accompanied

5

the field evidence technician in collecting evidence from the house, but did not find a

6

hammer, although he noted that there were copious amounts of medical waste in

7

Petitioner’s bedroom, presumably from the treatment of his gunshot wound and dog bites

8

which required him to be taken to the hospital in a helicopter. (RT 327-28.)

9

Thus, Petitioner has not established that Christopher testified falsely based on any

10

inconsistency in his statements, or that it was obvious that the hammer could not have been

11

overlooked by the evidence technician. He has failed to demonstrate that the introduction

12

of the testimony regarding finding the hammer was so prejudicial that it rendered his trial

13

fundamentally unfair. Ortiz-Sandoval, 81 F.3d at 897; Jammal, 926 F.2d at 919. Likewise,

14

Petitioner’s contention that Christopher’s credibility was called into question by his trial

15

testimony that he did not want Petitioner to “have a single nickel” of the inheritance “based

16

on what happened in this case,” (CT 78), does not provide for relief because a federal

17

habeas petition is not a proper vehicle for challenging the credibility of a state trial witness.

18

See Jackson, 443 U.S. at 319 (federal habeas courts must respect the “factfinder’s province

19

to determine witness credibility.”); Schlup v. Delo, 513 U.S. 298, 330 (1995) (“under

20

Jackson, the assessment of the credibility of witnesses is generally beyond the scope of

21

review.”)

22

Neither is habeas relief available for Petitioner’s allegation that Christopher’s

23

testimony that his girlfriend Gina found the hammer deprived him of his right to confront

24

Gina. The Confrontation Clause does not apply to non-testimonial evidence. Davis v.

25

Washington, 547 U.S. 813, 821 (2006). The United States Supreme Court has indicated

26

that testimonial statements are the functional equivalent of court testimony, such as

27

affidavits, depositions, confessions, or “statements that were made under circumstances

28

which would lead an objective witness reasonably to believe that the statement would be
36
16cv0408-JLS (BGS)

1

available to use at a later trial.” Crawford v. Washington, 541 U.S. 36, 51-52 (2004). The

2

statement by Christopher’s girlfriend that she had found a hammer in Petitioner’s bedroom

3

while cleaning the house is not testimonial under Crawford. Even assuming it is, a

4

Confrontation Clause violation is subject to harmless error review. United States v.

5

Nielsen, 371 F.3d 574, 581 (9th Cir. 2004). As discussed below in claim six challenging

6

the chain of custody of the hammer, Petitioner has not shown that the manner in which it

7

was found and turned over to the police had any impact whatsoever on the outcome of his

8

trial. Thus, any confrontation error is harmless because Petitioner has not shown that the

9

manner in which the hammer was found, or his inability to confront the person who found

10

the hammer, had a “substantial or injurious effect or influence in determining the jury’s

11

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), quoting Kotteakos v. United

12

States, 328 U.S. 750, 765 (1946) (“[I]f one cannot say, with fair assurance, after pondering

13

all that happened without stripping the erroneous action from the whole, that the judgment

14

was not substantially swayed by the error, it is impossible to conclude that substantial rights

15

were not affected.”)

16

The Court finds, based on a de novo review, there was no federal constitutional

17

violation arising from Christopher Foley’s trial testimony.

18

Accordingly, the Court

recommends denying habeas relief as to claim four.

19

G.

20

Petitioner alleges in claim five that the police used excessive force in his arrest and

21

committed perjury at trial, and therefore their testimony and the crime scene evidence

22

should have been excluded as “fruit of the poisonous tree.” (Pet. at 21-22, 27, 42-47, 58;

23

Traverse at 9, 35-46.) Specifically, he contends they used excessive force by shooting a

24

150-pound, 56 year old man point-blank with a rifle after he had surrendered. (Id.) He

25

contends they lied about shooting him with an .223 caliber AR-15 rifle because the treating

26

physician removed a 9-millimeter bullet fragment from his body, and lied about the bullet

27

creating an exit wound in his body and leaving a hole in the ceiling of his parents’ house

28

because he still has the 9-millimeter bullet in his body from that night. (Id.)

Claim Five

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1

Respondent answers that the claim of perjury is based on Petitioner’s self-serving

2

contention that his version of the events is true so the officers’ version must be false, which

3

Respondent contends is irrelevant because federal habeas is not a proper forum to re-litigate

4

a jury determination regarding the credibility of witnesses. (Ans. Mem. at 16-18.)

5

Respondent also argues that the excessive force claim is only cognizable here as a challenge

6

to the sufficiency of the evidence of the conviction for resisting arrest, but that Petitioner

7

does not dispute the evidence that he retreated inside his home after challenging the officers

8

to come and get him, or that force was used only in response to his refusal to drop the knife

9

he was brandishing at the officers. (Id.)

10

The jury was instructed that Petitioner could not be convicted of resisting an officer

11

if the officers were “unlawfully arresting or detaining [him] or using unreasonable or

12

excessive force,” and instructed that an arrest is unlawful “when force is unreasonable or

13

excessive.” (RT 560.) The jury heard the testimony of the arresting officers that the 40-

14

millimeter non-lethal rubber rounds had no effect on Petitioner, that he was given as many

15

as fifteen commands to drop the knife before he was shot with a firearm, and that he was

16

only shot with the rifle after he turned toward his father’s bedroom with the knife in his

17

hand. The treating surgeon testified that Petitioner did not have an exit wound, and there

18

were eight bullet fragments remaining in his body. The jury heard evidence that the only

19

firearm fired that night was a rifle, that the trajectory of the rifle bullet, as determined from

20

the holes in the wall and the ceiling caused by fragments of the bullet after it hit Petitioner,

21

was consistent with him being shot at the top of the stairs, that there were no bullet holes

22

in his bed or bedroom, and that if he had been shot point-blank he would have had an exit

23

wound. The jury also heard Petitioner’s version, that he was attacked by a dog and shot

24

point-blank in the back with a rifle after he disarmed and surrendered. Petitioner admitted

25

he could not remember challenging the officers to come in and get him, and medical

26

evidence established that he had a .23 percent blood alcohol level that evening.

27

Petitioner states that the physician who operated on him on the night of the incident

28

told his assistant that he removed a fragment of a 9-millimeter bullet from Petitioner’s
38
16cv0408-JLS (BGS)

1

body, that an MRI shows that he still has a 9-millimeter bullet in his body, and that he

2

informed his defense counsel of those facts prior to trial. (Traverse at 10-11.) The evidence

3

presented at trial that he was shot with a .223 caliber rifle included the testimony of the

4

officer who shot Petitioner, another officer who saw the rifle shot, three other officers who

5

heard a rifle shot, as well as the officer-involved shooting investigation which accounted

6

for all rounds taken into the house by the police except one .223 caliber AR-15 round.

7

Defense counsel argued in closing that the testimony of the officers diverged in numerous

8

respects due to the stressful nature of the situation, which could also explain any

9

inconsistencies in Petitioner’s testimony. (RT 619-21.) The prosecutor replied in closing

10

that in the final analysis those inconsistencies were unimportant. (RT 633-34.) Thus, even

11

if Petitioner could prove his contention about the caliber of the bullet, it would have been

12

one additional divergent facet of the police testimony. Because Petitioner states that he

13

informed defense counsel of the issue, and because he has identified no basis for his

14

knowledge of what the surgeon, who testified at trial, told his assistant during Petitioner’s

15

surgery, the Court must presume there was no such argument available to the defense. See

16

Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (recognizing a strong presumption that counsel

17

took actions “for tactical reasons rather than through sheer neglect.”), citing Strickland v.

18

Washington, 466 U.S. 668, 690 (1984) (holding that counsel is “strongly presumed” to

19

make decisions in the exercise of professional judgment), and Massaro v. United States,

20

538 U.S. 500, 505 (2003) (noting that the presumption of competence has particular force

21

where a claim is based solely on the trial record).

22

The evidence was sufficient to support the verdict that Petitioner was guilty of

23

resisting a lawful arrest which did not involve the excessive use of force, and Petitioner has

24

not demonstrated a federal constitutional violation. See Jackson, 443 U.S. at 324 n.16

25

(holding that federal habeas courts must analyze Jackson claims “with explicit reference to

26

the substantive elements of the criminal offense as defined by state law.”); see also

27

Johnson, 132 S.Ct. at 2065 (“The jury in this case was convinced, and the only question

28

under Jackson is whether that finding was so insupportable as to fall below the threshold
39
16cv0408-JLS (BGS)

1

of bare rationality.”) The Court must respect the jury’s credibility findings regarding the

2

different versions of the events. See Jackson, 443 U.S. at 319 (habeas courts must respect

3

the “factfinder’s province to determine witness credibility, resolve evidentiary conflicts,

4

and draw reasonable inferences from proven facts” by assuming “the trier of fact resolved

5

all such conflicts in favor of the prosecution.”)

6

The Court finds, based on a de novo review, that Petitioner’s claim that his federal

7

constitutional rights were violated because the arresting officers committed perjury or used

8

excessive force is without merit. Accordingly, the Court recommends denying habeas

9

relief as to claim five.

10

H.

11

Petitioner contends in claim six that the chain of custody of the hammer was

12

improper and unprofessional because it was not found when the police searched the house,

13

but later by his relatives, and was picked up with bare hands, contaminating it, and then

14

put in a bag and left overnight on a counter. (Pet. at 27, 47, 58.) Respondent answers that

15

a federal habeas court cannot review a question of the admissibility of state evidence, and

16

that the state court determination that the chain of custody was sufficiently satisfactory is

17

binding on this Court. (Ans. Mem. at 18.)

Claim Six

18

Defense counsel argued in closing that it was suspicious law enforcement did not

19

find the hammer in Petitioner’s bed when they “were all over that bed,” that Milford’s

20

injuries were not consistent with being hit with a hammer, and there was no evidence of

21

the struggle described by Milford. (RT 616-17.) Defense counsel suggested that because

22

Milford and Beverly’s DNA were found on the hammer, but not Petitioner’s DNA, and

23

given their long history of quarreling with each other, Beverly and Milford may have

24

inflicted their wounds upon each other. (RT 615-19.) The jury also heard Petitioner’s

25

father testify that Petitioner attacked him with a hammer. Petitioner speculates the hammer

26

might have gotten contaminated, but speculative allegations are insufficient to challenge a

27

chain of custody finding in state court. See People v. Hall, 187 Cal.App.4th 282, 294

28

(2010) (“When there is only the barest speculation that the evidence was altered, it is proper
40
16cv0408-JLS (BGS)

1

to admit the evidence over a chain-of-custody objection and let what doubt remains go to

2

its weight.”); People v. Catlin, 26 Cal.4th 81, 134 (2001) (“While a perfect chain of custody

3

is desirable, gaps will not result in the exclusion of evidence, so long as the connections

4

offered link the evidence with the case and raise no questions of tampering.”) Petitioner’s

5

speculative allegation of tampering is also insufficient to establish an entitlement to federal

6

habeas relief. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (holding that conclusory

7

allegations are insufficient to support granting federal habeas relief); see also Richter, 562

8

U.S. at 111 (“When defense counsel does not have a solid case, the best strategy can be to

9

say that there is too much doubt about the State’s theory for a jury to convict.”) Thus, the

10

Court finds that Petitioner has not shown that the manner in which the hammer was found,

11

or its introduction into evidence, rendered his trial fundamentally unfair. See Estelle, 502

12

U.S. at 70 (state evidentiary rulings are not cognizable on a federal habeas proceeding

13

unless the admission of the evidence violated Petitioner’s due process right to a fair trial);

14

Ortiz-Sandoval, 81 F.3d at 897 (in order to establish a due process violation, a petitioner

15

must show that the trial court’s ruling was so prejudicial that it rendered his trial

16

fundamentally unfair); Jammal, 926 F.2d at 920 (“Only if there are no permissible

17

inferences the jury may draw from the evidence can its admission violated due process.

18

Even then, the evidence must be of such quality as necessarily prevents a fair trial.”)

19

The Court finds, based on a de novo review, that Petitioner’s claim that his federal

20

constitutional rights were violated by an improper and unprofessional chain of custody of

21

the hammer is without merit. Accordingly, the Court recommends denying habeas relief

22

as to claim six.

23

I.

24

Petitioner contends in his final claim that he received ineffective assistance of

25

counsel because his trial counsel: (1) failed to challenge the police officer’s false statements

26

about the type of weapon he was shot with; and (2) failed to object to the introduction of

27

the photographs of blood taken at the scene on the basis that the source of the blood had

28

not been established by scientific testing. (Pet. at 22, 26, 49-55.) Respondent answers that

Claim Seven

41
16cv0408-JLS (BGS)

1

claim seven is without merit because Petitioner does not explain how defense counsel could

2

have impeached the officers, or what could have been established by scientific testing of

3

the blood. (Ans. Mem. at 18.) Petitioner adds claims that defense counsel was deficient

4

in asking for a competency hearing for his mother, and that the cumulative effect of the

5

trial errors violates federal due process. (Traverse at 29-34.)

6

For ineffective assistance of counsel to provide a basis for habeas relief, Petitioner

7

must show that counsel’s performance was deficient. Strickland, 466 U.S. at 687. “This

8

requires showing that counsel made errors so serious that counsel was not functioning as

9

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Petitioner must also

10

show that counsel’s deficient performance prejudiced the defense, which requires showing

11

that “counsel’s errors were so serious as to deprive [Petitioner] of a fair trial, a trial whose

12

result is reliable.” Id. To show prejudice, Petitioner need only demonstrate a reasonable

13

probability that the result of the proceeding would have been different absent the error. Id.

14

at 694. A reasonable probability is “a probability sufficient to undermine confidence in

15

the outcome.” Id. Petitioner must establish both deficient performance and prejudice to

16

establish ineffective assistance of counsel. Id. at 687.

17

Petitioner contends that his defense counsel was deficient in failing to challenge the

18

police officers’ version of what type of firearm they used to shoot him. He states that he

19

told defense counsel that the surgeon told his assistant that he removed fragments of a 9-

20

millimeter bullet, and that an MRI shows that he currently has a 9-millimeter bullet in his

21

body, but counsel did not present that evidence at trial. (Traverse at 11.) His surgeon

22

testified at trial that Petitioner had an entry wound from a bullet, but no exit wound, and

23

that a CAT scan revealed eight bullet fragments in his body, which is typical when a bullet

24

hits a bone. (RT 387-88.) Petitioner does not identify the basis for his knowledge that the

25

surgeon, had he been asked by defense counsel at trial, would have testified that the eight

26

bullet fragments came from a 9-millimeter bullet rather than a .223 caliber AR-15 rifle as

27

described by the witnesses and supported by the officer-involved shooting investigation.

28

Petitioner has shown neither deficient performance of counsel in failing to challenge that
42
16cv0408-JLS (BGS)

1

evidence, or prejudice as a result of counsel’s failure to do so. See Strickland, 466 U.S. at

2

689 (“There are countless ways to provide effective assistance in any given case. Even the

3

best criminal defense attorneys would not defend a particular client in the same way.”);

4

Gentry, 540 U.S. at 5 (recognizing a strong presumption that counsel took actions “for

5

tactical reasons rather than through sheer neglect.”); Matylinsky v. Budge, 577 F.3d 1083,

6

1091 (9th Cir. 2009) (holding that a petitioner must overcome a “heavy burden of proving

7

that counsel’s assistance was neither reasonable nor the result of sound trial strategy.”);

8

Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (“Surmounting Strickland’s high bar is

9

never an easy task.”)

10

Petitioner next contends that defense counsel was deficient in failing to object to the

11

introduction at trial of the photographs of the blood at the scene because the source of the

12

blood had not been established by scientific testing. Several witnesses testified that

13

Beverly was bleeding profusely when the police arrived at her house, and the jury heard

14

Beverly tell the 911 dispatcher that: “I am bleeding to death.”

15

Supplemental Clerk’s Tr. at 13.) Officer Weber testified that when the team entered though

16

the back door he saw “a large amount of blood on the kitchen floor,” with “what appeared

17

to be drag marks through it.” (RT 209.) Photographs showing blood in and around the

18

house were shown to the jury. (RT 309-21.)

(Lodgment No. 2,

19

Defense counsel filed a pre-trial motion seeking exclusion of photographs which

20

were unduly inflammatory. (CT 19-20.) Defense counsel argued to the jury in her closing

21

argument that it was uncertain whose blood was on the floor of kitchen or the patio, because

22

although those areas were swabbed for DNA testing, no evidence was presented regarding

23

whose blood it was. (RT 614-15.) In his closing argument, the prosecutor addressed

24

defense counsel’s opening statement that “this case is not about graphic photos,”

25

apologized for having to show the jurors graphic photographs, and argued that the defense

26

had submitted graphic photographs of Petitioner’s wounds in an attempt to garner

27

sympathy for him. (RT 637.) Thus, Petitioner has not shown deficient performance

28

regarding a failure to object to the introduction of the photographs of blood on the basis
43
16cv0408-JLS (BGS)

1

that the source of the blood had not been established by scientific testing. See Strickland,

2

466 U.S. at 687 (a showing of deficient performance “requires showing that counsel made

3

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

4

by the Sixth Amendment.”) Petitioner has also failed to show that he was prejudiced

5

because he has not shown a reasonable probability of a different outcome if the jury had

6

not viewed the photographs. Id. at 694 (a showing of prejudice requires a reasonable

7

probability that the result of the proceeding would have been different absent the error).

8

The Court has discretion to consider or refuse to consider claims raised for the first

9

time in the Traverse because Petitioner was specifically warned in this Court’s October 19,

10

2016, Order directing a response to the Petition [ECF No. 14 at p. 3-4] that his Traverse

11

“shall not raise new grounds for relief that were not asserted in the Petition. Grounds for

12

relief withheld until the traverse will not be considered.” See Cacoperdo v. Demosthenes,

13

37 F.3d 504, 507 (9th Cir. 1994) (stating that court may ignore issue raised for first time in

14

traverse when scope of traverse has been specifically limited by court order and petitioner

15

ignores order to file a separate pleading indicating intent to raise claim). Even were the

16

Court to exercise its discretion to consider Petitioner’s Traverse claim that defense counsel

17

was deficient in requesting that Beverly Foley submit to a competency evaluation prior to

18

testifying at trial, the Court would find the claim to lack merit. The record supports a

19

finding that it was reasonable trial strategy for defense counsel to request a competency

20

hearing for a prosecution witness who had the potential to provide evidence damaging to

21

the defense and who appeared incompetent during her preliminary hearing testimony. In

22

any case, after Beverly testified at the pre-trial evidentiary hearing, defense counsel asked

23

to have Beverly testify at trial regarding the events at issue. (RT 46.) Thus, Petitioner has

24

not satisfied the deficient performance prong of Strickland. See Strickland, 466 U.S. at

25

690 (holding that counsel is “strongly presumed” to make decisions in the exercise of

26

professional judgment); Matylinsky, 577 F.3d at 1091 (holding that a petitioner must

27

overcome a “heavy burden of proving that counsel’s assistance was neither reasonable nor

28

the result of sound trial strategy.”) Petitioner has also failed to demonstrate prejudice in
44
16cv0408-JLS (BGS)

1

light of the potentially damaging nature of Beverly’s testimony as shown by her prior

2

statements to the police accusing Petitioner of hitting her, the 911 calls she made telling

3

the dispatcher that Petitioner had hit her, her defensive wounds, her diary entry stating that

4

she asked Petitioner to leave the house after she had been knocked down in a struggle, and

5

Petitioner’s prior conviction for abusing her, coupled with the fact that her testimony at the

6

competency hearing showed she did not recall the events of September 1, 2013. Strickland,

7

466 U.S. at 694 (prejudice requires showing “a probability sufficient to undermine

8

confidence in the outcome.”); Richter, 562 U.S. at 110 (“Representation is constitutionally

9

ineffective only if it ‘so undermined the proper functioning of the adversarial process’ that

10

the defendant was denied a fair trial.”), quoting Strickland, 466 U.S. at 686.

11

The same is true of the Traverse claim of cumulative error. (Traverse at 34.) “[T]he

12

combined effect of multiple trial court errors violates due process where it renders the

13

resulting trial fundamentally unfair.” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007).

14

Where no single trial error in isolation is sufficiently prejudicial to warrant habeas relief,

15

“the cumulative effect of multiple errors may still prejudice a defendant.” United States v.

16

Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). “Where the government’s case is weak, a

17

defendant is more likely to be prejudiced by the effect of cumulative errors.” Id.

18

This is not a case where the prosecution’s case was weak. In fact, as discussed

19

throughout this Report, the evidence was extremely strong that Petitioner attacked his

20

parents with force likely to cause great bodily injury, and that he resisted arrest. For that

21

reason, and because there are no errors to accumulate, to the extent the Court would

22

exercise its discretion to address Petitioner’s Traverse claim of cumulative error, the Court

23

would recommend denying relief.

24

Accordingly, based on a de novo review, the Court recommends denying habeas

25

relief as to claim seven and as to the claims raised for the first time in the Traverse.J.

26

Evidentiary Hearing

27

Petitioner requests an evidentiary hearing. (Traverse at 7.) The Court recommends

28

denying Petitioner’s request for an evidentiary hearing on the basis that, even assuming the
45
16cv0408-JLS (BGS)

1

allegations in the Petition are true, the state court record provides an adequate basis to

2

adjudicate his claims. See Campbell v. Wood, 18 F.3d 662, 679 (9th Cir. 1994) (holding

3

that an evidentiary hearing is not necessary where the federal claim can be denied on the

4

basis of the state court record, and where the allegations, even if true, do not provide a basis

5

for relief).

6

IV.

CONCLUSION

7

For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court

8

issue an Order: (1) approving and adopting this Report and Recommendation, and

9

(2) directing that Judgment be entered denying the Petition.

10

IT IS ORDERED that no later than September 22, 2017 any party to this action

11

may file written objections with the Court and serve a copy on all parties. The document

12

should be captioned “Objections to Report and Recommendation.”

13

IT IS FURTHER ORDERED that any reply to the objections shall be filed with

14

the Court and served on all parties no later than October 6, 2017. The parties are advised

15

that failure to file objections with the specified time may waive the right to raise those

16

objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th

17

Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).

18

Dated: September 1, 2017

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16cv0408-JLS (BGS)