Julieta v. Frauenheim

Filing 20

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus, filed by Julio Julieta Objections to R&R due by 7/18/2018. Replies due by 8/1/2018. Signed by Magistrate Judge Bernard G. Skomal on 6/18/2018.(All non-registered users served via U.S. Mail Service)(mxn)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JULIO JULIETA, aka ULYSES SANDOVAL BELTRAN, Petitioner, 13 14 15 Case No.: 16cv0987-BTM (BGS) REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DENYING PETITION FOR WRIT OF HABEAS CORPUS v. F. FRAUENHEIM, Warden, Respondent. 16 17 Petitioner Julio Julieta, aka Ulyses Sandoval Beltran, is a state prisoner proceeding 18 pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 19 1.) He challenges his March 15, 2013 San Diego County Superior Court convictions for 20 assault with a firearm, torture, two counts of forcible rape, and one count of forcible 21 sodomy, accompanied by firearm use and bodily injury sentence enhancements. (Id. at 1, 22 7.) The Petition contains six claims, the first three of which have been dismissed as moot. 23 (ECF No. 15.) The remaining claims allege that the imposition of consecutive sentences 24 on the two rape counts violates state law (claim four), the cumulative effect of errors in the 25 jury instructions on two kidnapping counts on which Petitioner was acquitted resulted in 26 an unfair trial (claim five), and denial of access to the victim’s sealed immigration records, 27 which the state trial and appellate courts reviewed in camera, violated his right to a record 28 adequate to permit meaningful appellate review (claim six). (ECF No. 1 at 32-43.) 1 16cv0987-BTM (BGS) 1 Respondent has filed an Answer and lodged the state court record. (ECF Nos. 9, 18- 2 19.) Respondent contends that: (1) all claims are without merit; (2) claims four and six are 3 not cognizable on federal habeas because they rely on state law only, and to the extent they 4 raise federal issues state court remedies have not been exhausted; (3) relief was granted in 5 the state court with respect to the jury instruction errors underlying claim five, rendering 6 any relief here unnecessary; and (4) relief on claim six is barred by Teague v. Lane, 489 7 U.S. 288 (1989), and any federal error on that claim is in any case harmless. (ECF No. 18 8 at 10-16.) Petitioner has not filed a Traverse. 9 As set forth herein, the Court finds that Petitioner is not entitled to federal habeas 10 relief because he has not demonstrated a federal constitutional violation in any respect. 11 The Court therefore recommends the Petition be denied. 12 I. STATE PROCEDURAL BACKGROUND 13 In a nine-count Information filed in the San Diego County Superior Court on April 14 10, 2012, Petitioner was charged with kidnapping for ransom (count one), kidnapping for 15 rape (count two), assault with a firearm (count three), torture (count four), three counts of 16 forcible rape (counts five, six and eight) and two counts of sodomy by use of force (counts 17 seven and nine). (Lodgment No. 1, Clerk’s Transcript [“CT”] at 16-24.) As to all counts 18 other than count four it was alleged Petitioner personally used a handgun and personally 19 inflicted great bodily injury, and as to the rape and sodomy counts it was alleged that he 20 substantially increased the risk of harm by kidnapping the victim. (Id.) On March 15, 21 2013, a jury found him not guilty on counts two, eight and nine, guilty on all remaining 22 counts, and found the enhancement allegations true. (CT 723-37.) On August 16, 2013, 23 he was sentenced to life in prison on count one, consecutive terms of twenty-five years to 24 life each on counts five and six, and consecutive terms of 40 years on the enhancements on 25 counts five and six, with sentences stayed on the remaining counts. (CT 743-45.) 26 Petitioner appealed, alleging, as he does here, there was insufficient evidence to 27 support the kidnapping for ransom conviction (claim one), the court failed to instruct on 28 lesser included offenses of kidnapping (claim two), the jury instructions omitted an element 2 16cv0987-BTM (BGS) 1 of kidnapping for ransom (claim three), imposition of consecutive sentences on counts five 2 and six violated state law (claim four), the cumulative effect of instructional errors on the 3 kidnapping counts resulted in an unfair trial (claim five), and the failure of the trial court 4 to disclose to the defense attorney-client privileged documents contained in the file of an 5 immigration advocacy group which assisted the victim, which it reviewed in camera and 6 sealed, prevented meaningful appellate review (claim six). (ECF No. 9, attach. # 7.) The 7 appellate court: (1) granted relief on claim one because insufficient evidence was presented 8 at trial to support the kidnapping for ransom conviction, remanded with instructions to 9 enter a judgment of acquittal on that count, and found it unnecessary to reach the merits of 10 claims two and three alleging instructional error on kidnapping, (2) rejected claim four on 11 the basis that consecutive sentences were appropriate as the rapes occurred on separate 12 occasions, (3) rejected claim five because there could be no cumulative prejudicial error 13 arising from jury instructional error on the kidnapping counts on which Petitioner was 14 acquitted, and (4) denied claim six after reviewing in camera the documents sealed by the 15 trial court and finding they did not contain discoverable material and that the trial court did 16 not abuse its discretion in refusing to disclose them to the defense. (ECF No. 9, attach. 17 # 10, People v. Beltran, No. D064469, slip op. (Cal.App.Ct. Jan. 12, 2015).) Petitioner 18 was later resentenced to 50 years to life on the two rape convictions plus 30 years in 19 enhancements on those counts, with sentences on the remaining counts stayed. (ECF No. 20 9, attachs. # 13-14.) 21 On February 25, 2015, Petitioner filed a pro se petition for review in the California 22 Supreme Court in which he raised the same claims presented here and on direct appeal. 23 (ECF No. 9, attach. # 11.) That petition was summarily denied. (ECF No. 9, attach. # 12, 24 People v. Beltran, No. S224692, order (April 22, 2015).) 25 II. TRIAL PROCEEDINGS 26 Guadalupe M. testified that she first met Petitioner at a dance hall in 1999, when she 27 was 24 years old, that she had a lot to drink that night and ended up at a house with 28 Petitioner and several of their friends. (Lodgment No. 2, Reporter’s Tr. [“RT”] at 136-38.) 3 16cv0987-BTM (BGS) 1 She fell asleep in a bedroom and awoke with Petitioner next to her on the bed, and although 2 she asked him to leave her alone, he had nonconsensual sexual intercourse with her. (RT 3 138.) She did not want to see Petitioner again, but he called her and they met at her house 4 about a month and a half after their first meeting and had consensual sexual intercourse. 5 (RT 139-42.) They met again sometime later at a barbecue at the house of an acquaintance, 6 where Petitioner forced her into his car, told her in a very forceful voice he wanted to have 7 sex, and attempted to take her clothes off, but she resisted and they did not have sex. (RT 8 142-43.) Sometime after that last incident Guadalupe began dating Petitioner’s cousin 9 Jesus Sandoval, and they had a son together in 2002. (RT 146-48.) When Petitioner found 10 out she was involved with his cousin, he called her from Mexico, accused her of “whoring 11 around,” and threatened her, telling her “to be very careful because he was going to come 12 back one day.” (RT 146-47.) 13 In 2004, Guadalupe was living in an apartment in San Ysidro with her brother 14 Giovanni M. and his girlfriend Marisela Rodriguez. (RT 157, 159, 167.) On October 18, 15 2004, around 3:00 a.m., she was feeding her baby when Marisela came to her bedroom 16 door and said Guadalupe’s brother-in-law Jorge Sandoval was there and wanted to speak 17 to her. (RT 157-58.) Jorge told Guadalupe that Petitioner wanted to speak to her and 18 pointed to Petitioner, who was in the living room. (RT 158-59.) She was surprised and 19 scared, as she had not seen Petitioner since 2000. (RT 159.) When Petitioner said “we 20 have to talk,” she replied “let’s talk,” and he said “but let’s go outside.” (RT 159.) She 21 refused and Petitioner pulled out a handgun, grabbed her and forced her outside. (RT 159- 22 61.) Jorge tried to convince Petitioner to stop, but Petitioner held a gun to Guadalupe’s 23 head and forced her to walk barefoot to a black truck. (RT 161, 170-74.) There were two 24 other men in the truck, including one she knew as Chino, who drove for 15 minutes as 25 Petitioner held the gun to her head and forced her head down so she could not see. (RT 26 182-83, 185-89.) When they stopped, her face was covered and she was taken inside a 27 house. (RT 188-89.) There were three people in the house, including a man named Tony 28 whom Guadalupe knew. (RT 190.) 4 16cv0987-BTM (BGS) 1 Inside the house Petitioner asked Guadalupe about a man named Chilacas, a very 2 good friend of Jesus Sandoval, the father of her child. (RT 181, 191.) Guadalupe said 3 Petitioner was “very violent. He was drunk. He was like drugged,” and told her Chilacas 4 owed him money. (RT 192.) When she told Petitioner she did not know anything about 5 Chilacas he hit her in the face very hard. (RT 192-93.) Tony and a man they called Cholo 6 then tied her hands and feet with tape, and Petitioner “ordered for some pliers to be brought 7 in to pull out my nails.” (RT 194-95.) She knelt on the floor as Petitioner sat in a chair 8 and ordered her to put her hands on his legs. (RT 196.) Cholo used the pliers to try to pull 9 out her fingernails as she begged Petitioner to stop. (RT 196-97.) Petitioner ordered Tony 10 to take her into another room, where they asked her again where they could find Chilacas, 11 and where they terrorized her with a gun and a knife. (RT 197-204.) 12 Petitioner ordered the men to leave the room and, while holding a gun in his hand, 13 removed Guadalupe’s clothes. (RT 205-06.) She tried to resist but he was too big and 14 strong. (Id.) Petitioner bit and scratched her as he had anal and vaginal intercourse with 15 against her wishes, while he continued to mock and threaten her. (RT 206-12.) Petitioner 16 fell asleep on her legs, and when he awoke he took her into the kitchen and ordered her to 17 clean it and cook for the men, which she did after someone went to a store for groceries. 18 (RT 215-17.) Sometime thereafter, Petitioner took Guadalupe back to the bedroom and 19 forced her to engage in anal and vaginal intercourse again, which was even more painful 20 than the first time. (RT 225-26.) 21 When Petitioner finally left her alone at dawn, Guadalupe found clothing which did 22 not belong to her and went to clean herself in the bathroom. (RT 230-31.) She was 23 bleeding from her anus and took a shower. (RT 231-32.) Petitioner forced her at gunpoint 24 to call her house, say she was fine, and tell her roommates not to call the police and that 25 she would be home soon. (RT 233-34.) Petitioner ordered two men to take her home, and 26 before she left he told her “to excuse him, to forgive him, that he didn’t want to harm me 27 and not to make a report with the police. And if I did it, he said that San Diego was a very 28 small place.” (RT 235.) Her face was covered and she was driven home. (RT 236-37.) 5 16cv0987-BTM (BGS) 1 She called the police when she got home and they took her to a hospital. (RT 245-47.) 2 The next and last time she heard from Petitioner was when he called her in 2009 or 2010, 3 even though she had changed her telephone number. (RT 267-68.) She was scared and 4 they spoke for two or three minutes before she hung up on him. (RT 268.) 5 Guadalupe admitted she had crossed into the United States from Mexico in August 6 1999 using a counterfeit passport. (RT 148.) She admitted being deported after being 7 convicted of possession of drugs for sale in 2002, and admitted having been deported 8 several times and each time illegally returning to the United States. (RT 150-51.) She 9 denied receiving any payment or benefits for testifying, although she said that when she 10 reported the incident in 2004 the police provided her with paperwork requesting permission 11 to stay in California, but she was told about four months later that “nothing could be done.” 12 (RT 283-86.) Guadalupe did nothing else about her immigration status until October 2012, 13 immediately after a meeting with Detective Esmeralda Tagaban, who made an appointment 14 for Guadalupe at the Casa Cornelia Law Center to assist her with a visa application, but 15 they were unable to assist her. (RT 286-87, 333-34, 371-74.) As a result of that referral 16 she had an upcoming appointment with a similar organization to seek immigration 17 assistance. (RT 333-34, 374.) 18 Defense counsel moved for a mistrial on the basis that the discovery provided by the 19 prosecutor did not disclose that the police had assisted Guadalupe in a visa application in 20 2004, which the defense argued was a benefit for her cooperation with the police. (RT 21 292-315.) The prosecutor responded that although she had disclosed to the defense that 22 the police assisted Guadalupe with her 2011 visa application around the time of the 23 preliminary hearing, the first time the prosecutor had heard the police had assisted her in a 24 2004 visa application was during Guadalupe’s trial testimony. (Id.) The trial judge denied 25 the mistrial motion, indicated that Guadalupe may have confused the 2004 and 2011 dates, 26 and allowed the defense to cross-examine her on the issue. (RT 315-16.) 27 On cross-examination Guadalupe said that on October 18, 2004, the day of the 28 incident, she spoke with a Spanish-speaking police officer whose name she did not recall 6 16cv0987-BTM (BGS) 1 but who took her statement and translated for her with a nurse. (RT 324-25.) The next day 2 she spoke with Detective Serrano, whom she remembered well, and two days later spoke 3 with a group of people in the office of the San Diego District Attorney. (RT 326.) After 4 that second interview a police detective provided her with information about a U-visa, the 5 first time she learned of such a procedure, which she understood permits crime victims to 6 remain in the United States. (RT 382, 446-47.) She admitted that she wanted to stay in 7 the United States, and understood that she would have to prove she was a crime victim to 8 obtain a U-visa, but said she did not know if Petitioner had to be convicted to obtain the 9 visa. (RT 383-85, 391.) She said that before Petitioner abducted and raped her she did not 10 know what a U-visa was, and as of the date of her testimony she had not been granted one. 11 (RT 442, 456.) The trial judge reviewed in camera, and sealed for purposes of appellate 12 review, attorney-client privileged documents from the Casa Cornelia Law Center. (RT 13 381, 409.) The trial judge ruled that based on his in camera review of those sealed 14 documents, the defense was already in possession of most of the documents, and the 15 remainder were collateral and would not provide assistance to the defense, in particular 16 with respect to their contention that Guadalupe had received a benefit from law 17 enforcement involvement in her attempt to obtain a U-visa. (RT 502-03.) Prior to trial the 18 judge had reviewed Guadalupe’s immigration file, which was obtained by the prosecution 19 from the federal government and provided to the defense, and stated that it did not contain 20 a reference to a U-visa. (RT 44-45.) 21 Marisela Rodriguez testified that she and her ex-husband Giovanni M. lived with 22 Giovanni’s sister Guadalupe M. for three months and never saw Petitioner come to their 23 apartment. (RT 459-61, 489.) On October 18, 2004, about 4:00 a.m., the doorbell rang, 24 and when she looked through the peephole she saw only one person, Jorge Sandoval. (RT 25 462-63.) Guadalupe came from her bedroom, and when Marisela said it was Jorge, 26 Guadalupe told her to open the door. (RT 463.) Petitioner, who was not visible through 27 the peephole, entered with Jorge as Marisela went back to her bedroom. (RT 464-67.) 28 Marisela heard Guadalupe talking to the men in a whisper, which soon changed to a scared 7 16cv0987-BTM (BGS) 1 voice saying “let me go.” (RT 467.) Marisela was scared and stayed in her bedroom, but 2 Giovanni left the bedroom and went into the living room. (RT 467-68.) Marisela went to 3 the window and saw Guadalupe being taken away with Petitioner holding a gun to her 4 head. (RT 472-73.) Marisela insisted that Giovanni call the police, but the police were not 5 called until Guadalupe returned later that day because Jorge had told them not to call the 6 police and that she would be fine and would be back. (RT 474.) When Guadalupe returned 7 later that afternoon she was wearing different clothes, crying, walking very slowly, her face 8 and neck were bruised, she was in pain, particularly when she sat down, and said Petitioner 9 had raped her. (RT 480-81, 484-85, 500.) 10 Giovanni M. testified that on October 18, 2004, he had been living for a short time 11 with his sister Guadalupe and his wife Marisela. (RT 517-18.) He had previously lived 12 with Guadalupe and her boyfriend Jesus Sandoval. (RT 518.) In the early morning hours 13 of October 18, Giovanni came out of his bedroom and saw Petitioner and Jorge Sandoval, 14 Jesus’s brother, in the living room telling Guadalupe to “calm down.” (RT 519-23.) 15 Giovanni saw Petitioner take Guadalupe from the house at gunpoint to a black truck, and 16 Giovanni told Jorge he was going to call the police. (RT 522-31.) Jorge told him nothing 17 was going to happen to Guadalupe, and Giovanni believed him because he was a friend of 18 the family, as Jorge’s brother had been Guadalupe’s boyfriend, and Jorge had been the 19 boyfriend of Giovanni’s other sister. (RT 531-32.) Guadalupe called later and said she 20 was okay, but when she returned she was crying, had bruises on her arms and neck, and 21 glue on her arms left by adhesive tape. (RT 533-35.) 22 Jorge Carranza, a San Diego Police Officer, testified that he responded to a report of 23 a rape on October 18, 2004, and took a statement from Guadalupe, who was unkempt with 24 fresh bruises, and had adhesive residue on her forearms. (RT 575-77.) Her statement to 25 Officer Carranza was consistent with her trial testimony. (RT 578-614.) He said he did 26 not give her information about a U-visa, and did not know what one was. (RT 1121.) 27 Stacia Mesleh, a Sexual Assault Nurse Examiner, examined Guadalupe on October 28 18, 2004 and documented her injuries, which were consistent with Guadalupe’s testimony 8 16cv0987-BTM (BGS) 1 regarding her injuries. (RT 1127-94.) Petitioner’s DNA was found in semen recovered 2 from Guadalupe’s anus and vagina. (RT 1164-65, 1278, 1312-22, 1324-30.) 3 John Serrano, a San Diego County District Attorney Investigator, testified that he 4 interviewed Giovanni and Marisela on October 19, 2004, and interviewed Guadalupe the 5 following day with a District Attorney present. (RT 1250-54.) He arranged for Guadalupe 6 to meet with a private advocate group on October 25, 2004, to provide her with support 7 and resources, such a counseling, but did not remember if he discussed a U-visa with her. 8 (RT 1255-56.) He did not offer or provide Guadalupe with any promises or benefits for 9 her testimony, including promises regarding her citizenship. (RT 1257.) He attempted at 10 that time to locate Petitioner and Tony but was unable to do so. (RT 1258.) 11 Ruben Gama, a San Diego County District Attorney Investigator, testified that he 12 met with Guadalupe a number of times in late 2012 and early 2013, in order to obtain 13 copies of her immigration documents. (RT 1262-66.) He said Guadalupe first applied for 14 a U-visa on October 1, 2012, and he denied making any promises or representations to her 15 about helping her obtain a U-visa. (RT 1266, 1269.) 16 Stephen Shebloski, a San Diego Police Officer, testified that on July 19, 2011, he 17 and Detective Tagaban were assigned to investigate this case, which was considered a cold 18 case because it was seven years old, after a “CODIS hit” identified Petitioner as a suspect. 19 (RT 1333-34.) He met with Guadalupe but did not make any promises or offer any benefits 20 for her testimony. (RT 1326.) Officer Shebloski said a U-visa is a tool law enforcement 21 uses which allows undocumented alien crime victims to temporarily avoid deportation, but 22 he did not assist Guadalupe with applying for a U-visa. (RT 1358-59.) 23 The defense called Alma Lomeli who testified that Guadalupe lied when she testified 24 that she and Petitioner came to Lomeli’s house after a dance. (RT 1493.) Gina Sanchez 25 testified that Petitioner is the father of her four children and that she got into an argument 26 with Guadalupe one night at a club over the fact that Petitioner gave them both flowers on 27 Valentine’s Day. (RT 1499-1501.) She said Guadalupe was Petitioner’s lover in 1999- 28 2000, and during that time they spoke often and had a good relationship. (RT 1501-02.) 9 16cv0987-BTM (BGS) 1 Arcadio Sandoval, Petitioner’s cousin, testified that Guadalupe dated Petitioner for 2 a couple of years in the 1998-2000 time frame. (RT 1512-13.) Arcadio accompanied 3 Petitioner to Guadalupe’s house at least ten times, where he occasionally slept on the couch 4 while Petitioner and Guadalupe slept together in the bedroom, and said they were 5 affectionate around each other. (RT 1513-14.) Shearly Rodriguez testified that she was 6 friends with Guadalupe and they lived together for about nine months in 2000. (RT 1528- 7 30.) She and Guadalupe went dancing and occasionally ran into Petitioner, and when they 8 did, he and Guadalupe sometimes left the dance together and she did not come home. (RT 9 1531.) She said Petitioner and Guadalupe never dated but were affectionate. (RT 1534.) 10 On March 15, 2013, after deliberating about seven hours, the jury found Petitioner 11 not guilty on count two of kidnapping for rape, and not guilty on counts eight and nine of 12 forcible rape and forcible sodomy relating to the second incident after Guadalupe was taken 13 to the kitchen. (CT 720-37.) He was found guilty on count one of kidnapping for ransom, 14 count three of assault with a firearm, count four of torture, counts five and seven of forcible 15 rape and forcible sodomy during the first incident before Guadalupe was taken to the 16 kitchen, and count six of forcible rape during the second incident after she was taken to the 17 kitchen, and returned true findings on the sentence enhancement allegations. (Id.) On 18 August 16, 2013, he was sentenced to life in prison on count one, plus consecutive terms 19 of twenty-five years to life each on counts five and six, with an additional consecutive 40 20 years on the count five and six enhancements. (CT 743-45.) 21 Petitioner appealed, raising the same claims he presents here, alleging insufficient 22 evidence to support the kidnapping for ransom count (claim one), failure to instruct on 23 lesser included offenses of kidnapping (claim two), instructional error on the kidnapping 24 for ransom count (claim thee), error in ordering consecutive sentences on the two rape 25 counts because they were committed in close temporal and spatial proximity (claim four), 26 the cumulative effect of the instructional errors on the kidnapping counts resulted in an 27 unfair trial (claim five), and the failure to disclose to the defense the sealed immigration 28 documents prevented meaningful appellate review (claim six). (ECF No. 9, attach. # 7.) 10 16cv0987-BTM (BGS) 1 The appellate court: (1) granted relief on claim one because insufficient evidence 2 was presented at trial to support the kidnapping for ransom conviction as there was no 3 evidence Petitioner kidnapped Guadalupe for ransom, reward, or to extort something of 4 value, remanded with instructions to enter a judgment of acquittal on that count, and found 5 it unnecessary to reach the merits of claims two and three alleging jury instructional errors 6 as to the kidnapping counts, (2) denied claim four because the two rapes occurred on 7 separate occasions and consecutive sentences were appropriate, (3) rejected claim five 8 because there could be no cumulative prejudice arising from the alleged jury instructional 9 errors on the acquitted kidnapping counts, and (4) denied claim six after reviewing in 10 camera the sealed immigration documents and finding no discoverable material and 11 concluding that the trial court did not err in finding that disclosure to the defense was not 12 appropriate. (ECF No. 9, attach. # 10, People v. Beltran, No. D064469, slip op. at 6-16.) 13 Petitioner was resentenced to consecutive terms of 25 years to life each on the two rape 14 convictions, plus 30 years on the enhancements. (ECF No. 9, attachs. # 13-14.) 15 On February 25, 2015, Petitioner filed a pro se petition for review in the state 16 supreme court presenting the same claims raised here and on direct appeal. (ECF No. 9, 17 attach. # 11.) The petition was denied with an order which stated: “The petition for review 18 is denied.” (ECF No. 9, attach. # 12, People v. Beltran, No. S224692, order at 1.) 19 III. PETITIONER’S CLAIMS 20 As previously noted, claims one through three were dismissed as moot because they 21 challenge the kidnapping counts upon which Petitioner was acquitted. (See ECF No. 15.) 22 In the three remaining claims, Petitioner alleges that: (1) the imposition of consecutive 23 sentences for the two forcible rape counts violates California law because they were 24 committed in close spatial and temporal proximity; (2) the cumulative effect of the jury 25 instructional errors on the kidnapping counts resulted in an unfair trial; and (3) the failure 26 of the trial court to disclose Guadalupe’s immigration documents, which it reviewed in 27 camera, violated his right to a record adequate to permit meaningful appellate review. 28 (ECF No. 1 at 32-43.) 11 16cv0987-BTM (BGS) 1 2 3 IV. DISCUSSION For the following reasons, the Court finds habeas relief unavailable because Petitioner has not demonstrated a federal constitutional violation. 4 A. 5 Title 28, United States Code, § 2254(a), sets forth the following scope of review for 6 7 8 9 10 11 Standard of Review federal habeas corpus claims: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a) (emphasis added). 12 In order to obtain federal habeas relief with respect to a claim which was adjudicated 13 on the merits in state court, a federal habeas petitioner must demonstrate that the state court 14 adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an 15 unreasonable application of, clearly established Federal law, as determined by the Supreme 16 Court of the United States; or (2) resulted in a decision that was based on an unreasonable 17 determination of the facts in light of the evidence presented in the State court proceeding.” 18 28 U.S.C.A. § 2254(d) (West 2006). A state court’s decision is “contrary to” clearly 19 established Supreme Court precedent (1) “if the state court applies a rule that contradicts 20 the governing law set forth in [the Court’s] cases” or (2) “if the state court confronts a set 21 of facts that are materially indistinguishable from a decision of [the] Court and nevertheless 22 arrives at a result different from [the Court’s] precedent.” Williams v. Taylor, 529 U.S. 23 362, 405-06 (2000). A state court decision involves an “unreasonable application” of 24 clearly established federal law, “if the state court identifies the correct governing legal rule 25 from this Court’s cases but unreasonably applies it to the facts of the particular state 26 prisoner’s case.” Id. at 407. Relief is available under the unreasonable application clause 27 “if, and only if, it is so obvious that a clearly established rule applies to a given set of facts 28 that there could be no ‘fairminded disagreement’ on the question.” White v. Woodall, 572 12 16cv0987-BTM (BGS) 1 U.S. ___, 134 S.Ct. 1697, 1706-07 (2014), quoting Harrington v. Richter, 562 U.S. 86, 103 2 (2011). To satisfy § 2254(d)(2), the factual findings upon which a state court’s decision 3 rests must be objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 4 Even if § 2254(d) is satisfied, or if it does not apply, a petitioner must show a federal 5 constitutional violation occurred in order to obtain relief. Fry v. Pliler, 551 U.S. 112, 119- 6 22 (2007). A petitioner must also show that any federal constitutional error is not harmless, 7 unless it is of the type included on the Supreme Court’s “short, purposely limited roster of 8 structural errors.” Gautt v. Lewis, 489 F.3d 993, 1015 (9th Cir. 2007), citing Arizona v. 9 Fulminante, 499 U.S. 279, 306 (1991) (recognizing “most constitutional errors can be 10 harmless.”) 11 B. 12 Petitioner alleges in claim four that the imposition of consecutive sentences for the 13 two forcible rape counts violates California law because they were committed in close 14 spatial and temporal proximity. (ECF No. 1 at 32-38.) Respondent answers that federal 15 habeas relief is unavailable as to this claim because it raises an issue of state law only, that 16 to the extent it raises a federal issue state court remedies have not been exhausted, and is 17 in any case without merit for the reasons given by the state appellate court in denying the 18 claim. (ECF No. 18 at 12-13.) Claim Four 19 Petitioner presented this claim to the state appellate and supreme courts in the exact 20 same manner it is presented here. (ECF No. 9, attachs. # 7, 11.) The state supreme court 21 summarily denied the petition for review in which it was raised. (ECF No. 9, attach. # 12, 22 People v. Beltran, No. S224692, order at 1.) The appellate court denied the claim, stating: 23 The trial court sentenced defendant to consecutive life sentences on the count 5 and 6 forcible rapes offenses, reasoning that the count 6 offense “was not committed in close temporal and spatial proximity to the offenses in counts 5 and 7.” The court reasoned: “After committing the offenses charged in counts 5 and 7 in one of the bedrooms of the house where the victim was taken and held against her will by the defendant and others, the defendant left the bedroom while the victim remained in the bedroom. (¶) Some short time thereafter, the defendant ordered the victim to cook for the victim and the others in the house. After cooking, as ordered, (Guadalupe) cleaned up for 24 25 26 27 28 13 16cv0987-BTM (BGS) 1 2 3 4 these men as ordered. (¶) Once this was completed, the defendant took the victim, once again, against her will, to another separate bedroom in the house, where he committed count 6. (¶) As a result, the offenses in count 6 occurred on a separate occasion than the offenses charged in counts 5 and 7. Accordingly, a separate custodial term from counts 5 and 7 may be imposed as to count 6.” 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant contends his multiple one-strike sentences violated former section 667.61, subdivision (g) because the forcible rape and forcible sodomy offenses of counts 5, 6 and 7 were committed in close temporal and spatial proximity to each other, though the “events played out over several hours.” He maintains the sentence is unauthorized under People v. Jones (2001) 25 Cal.4th 98 (Jones) and People v. Fuller (2006) 135 Cal.App.4th 1336 (Fuller). Section 667.61, also known as the “One Strike” law, provides for indeterminate terms of 25 or 15 years to life for certain forcible sex offenses committed under aggravating circumstances. (§ 667.61, subds. (a) & (b).) The aggravating circumstances include kidnapping that substantially increased the risk of harm to the victim. (Id., subd. (d)(2).) Before its 2006 amendment, section 667.61 subdivision (g) [footnote: Section 667.61 was amended in 2006, after the crimes in this case occurred (Stats. 2006, ch. 337, §33] stated that a One Strike sentence “shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.” (Italics added.) The statute does not define the phrase “single occasion” and it does not set out criteria for determining whether multiple counts were committed on a single occasion. In Jones, supra, 25 Cal.4th 98, the California Supreme Court held that the phrase “a single occasion” for purposes of then section 667.61, subdivision (g), meant the sex offenses “were committed in close temporal and spatial proximity.” (Jones, at p. 107.) There, the defendant’s sex crimes (one count of oral copulation and rape and three counts of sodomy) were committed in the backseat of a car over an hour and a half. (Id. at p. 101.) The court concluded that a single One Strike sentence should be imposed because the sexual assaults “occurred during an uninterrupted time frame and in a single location.” (Id. at p. 107.) In Fuller, supra, 135 Cal.App.4th 1336, the Court of Appeal held that the imposition of three One Strike sentences for three acts of rape against a single victim was improper in a situation where the defendant raped the victim twice in her bedroom, both got dressed and went into the living room, but as he was preparing to leave, he raped the victim again. (Id. at p. 1339.) The defendant had stayed in the apartment over an hour before forcing the victim to drop him off where he had kidnapped her. (Id. at p. 14 16cv0987-BTM (BGS) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1339.) The court reasoned: “All three rapes occurred within about an hour while both (the defendant) and Ms. L. remained inside her apartment. The only movement was the short distance from her bedroom to the living room. Defendant kept Ms. L. under his continuous and uninterrupted control during the entire time of the incident. Thus, there was a close temporal and spatial proximity between the three offenses. Accordingly, we vacate the sentence and remand for resentencing.” (Id. at p. 1343.) Defendant contends that Jones and Fuller require us to conclude that the forcible rape of Guadalupe in count 5 was committed on the same occasion as the forcible rape in count 6, because they occurred in the same house and were separated only by a “short interval” that occurred when Guadalupe cleaned the kitchen and cooked food for defendant and the other men. The contention is unpersuasive. Guadalupe’s testimony makes clear that the two rapes did not occur during an uninterrupted timeframe, or while Guadalupe was in defendant’s continuous and uninterrupted control. Though the two rapes occurred in the bedroom of the house, unlike in Jones and Fuller, an appreciable break in the events in this case occurred when Guadalupe was left undisturbed while defendant slept, and then forced into the kitchen to clean and cook for the men. Guadalupe testified that between the first rape and her second rape, some of the men went to the grocery store to purchase food, and defendant left the kitchen at some point. This interruption distinguishes Jones and Fuller. Further, defendant admits the kidnapping took place over the course of several hours, and though Guadalupe’s testimony is not exact as to how many hours she was away from her home, the duration of her overall captivity was longer than the incidents in Jones and Fuller. We conclude there is substantial evidence to support the trial court’s finding that the rapes did not occur on a single occasion, and thus it properly imposed a One Strike sentence for count 6. (ECF No. 9, attach. # 10, People v. Beltran, No. D064469, slip op. at 11-14.) 22 Petitioner did not identify a federal constitutional basis for this claim in his pro se 23 federal habeas Petition (ECF No. 1 at 32-38), did not do so in his pro se petition for review 24 in the California Supreme Court (ECF No. 9, attach. # 11 at 44-48), and did not do so in 25 the briefs filed by his attorney in the state appellate court (ECF No. 9, attach. # 7 at 42-46; 26 ECF No. 9, attach. # 9 at 17). The Court must construe pro se prisoner petitions liberally, 27 and liberal construction is especially important with regard to the determination as to which 28 claims are presented. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). However, 15 16cv0987-BTM (BGS) 1 under even the most liberal construction of his petitions Petitioner has not identified a 2 federal basis to challenge the consecutive sentences. Thus, he is not entitled to federal 3 habeas relief. See 28 U.S.C. § 2254(a) (“a district court shall entertain an application for 4 a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State 5 court only on the ground that he is in custody in violation of the Constitution or laws or 6 treaties of the United States.”) 7 Furthermore, even were the Court to allow Petitioner to amend his Petition to allege 8 a violation of his federal constitutional rights arising from the imposition of consecutive 9 sentences on the two rape counts, any such claim would necessarily fail. The Supreme 10 Court has stated that the decision by a state court to run sentences consecutively does not 11 implicate the federal Constitution. Oregon v. Ice, 555 U.S. 160, 171 (2009). The Court 12 recommends denying habeas relief as to claim four. 13 C. 14 Petitioner alleges in claim five that the cumulative effect of several jury instructional 15 errors resulted in an unfair trial. (ECF No. 1 at 38-39.) The errors identified are: (1) the 16 omission of an element of kidnapping for ransom that the victim was kidnapped for purpose 17 of extracting a valuable thing from another person, and (2) the failure to instruct the jury 18 on lesser included offenses on the two kidnapping counts. (Id.) Respondent argues that 19 the claim has no merit because the state appellate court reversed the kidnapping for ransom 20 conviction and Petitioner was found not guilty on the kidnapping for rape count, and any 21 instructional errors on those counts could have no prejudicial effect. (ECF No. 18 at 15.) Claim Five 22 Petitioner presented claim five to the state appellate and supreme courts in the same 23 manner presented here. (ECF No. 9, attachs. # 7, 11.) The state supreme court summarily 24 denied the petition for review. (ECF No. 9, attach. # 12, People v. Beltran, No. S224692, 25 order at 1.) The state appellate court reversed the conviction on kidnapping for ransom on 26 the basis that sufficient evidence was not presented to support the element that Petitioner 27 “kidnapped Guadalupe for ransom, reward, to extort property, or to exact from a third 28 person money or a valuable thing.” (ECF No. 9, attach. # 10, People v. Beltran, No. 16 16cv0987-BTM (BGS) 1 D064469, slip op. at 6-11.) The court remanded with instructions to acquit Petitioner on 2 that charge, and then stated: “Given our conclusion that the count 1 kidnapping offense is 3 unsupported by the evidence, we need not decide defendant’s claims of instructional error 4 related to that offense, including instructions on lesser included offenses.” (Id. at 11.) The 5 state appellate court then denied the cumulative error claim, stating: 6 7 8 9 10 Defendant contends the trial court’s errors cumulatively deprived him of due process and a fair and impartial trial, requiring reversal of the judgment. We have found merit to defendant’s sufficiency of the evidence challenge, but conclude no other error occurred. Under the circumstances, there is no cumulative prejudicial error. (Id. at 14.) 11 “The Supreme Court has clearly established that the combined effect of multiple trial 12 court errors violates due process where it renders the resulting trial fundamentally unfair.” 13 Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007), citing Chambers v. Mississippi, 410 14 U.S. 284, 298, 302-03 (1973). Where no single trial error in isolation is sufficiently 15 prejudicial to warrant habeas relief, “the cumulative effect of multiple errors may still 16 prejudice a defendant.” United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). 17 The instructional errors identified by Petitioner relate only to the two kidnapping 18 counts, and he was acquitted on both counts. Thus, if instructional errors occurred with 19 respect to the kidnapping counts, they could not have prejudiced him, individually or 20 cumulatively, because he was acquitted on those counts. Although he has not included any 21 other trial errors in this claim, even assuming he could be allowed to amend his Petition to 22 allege cumulative error with respect to any and all trial error claims, the claim would still 23 fail. The only other errors alleged are in claim six where he argues the trial court erred in 24 failing to disclose the sealed immigration documents to the defense, which as discussed 25 below this Court finds was not error, and claim three where he argues sentencing error, 26 where again the Court finds no error. Accordingly, the Court recommends denying habeas 27 relief as to claim five, alleging that the combined effect of the trial court errors violated 28 federal due process because they rendered the trial fundamentally unfair. 17 16cv0987-BTM (BGS) 1 D. 2 Petitioner alleges in his final claim that the failure of the trial court to disclose the 3 sealed documents from Casa Cornelia Law Center regarding Guadalupe’s attempt to obtain 4 immigration assistance, which the trial court reviewed in camera and found contained 5 material protected by the attorney-client privilege, violated his right to a record adequate 6 to permit meaningful appellate review. (ECF No. 1 at 40-43.) Claim Six 7 Respondent answers that: (1) this claim relies only on state law, as there is no federal 8 constitutional right to discovery in a state criminal trial; (2) the state trial and appellate 9 courts reviewed the material in camera and there is no basis to find that nondisclosure 10 adversely affected Petitioner’s rights; (3) any error is harmless because Guadalupe 11 admitted during her trial testimony that she had entered the United States illegally and had 12 been deported several times, at least once because of a conviction for possession of drugs 13 for sale, and there is no showing that the sealed documents contained any information 14 which would have assisted the defense in impeaching her; and (4) granting federal habeas 15 relief on such a claim would constitute a new rule of criminal procedure prohibited by 16 Teague v. Lane, 489 U.S. 288 (1989). (ECF No. 18 at 13-15.) 17 Petitioner presented this claim to the state appellate and supreme courts in the same 18 manner it is presented here. (ECF No. 9, attachs. # 7, 11.) The state supreme court 19 summarily denied the petition for review in which it was raised. (ECF No. 9, attach. # 12, 20 People v. Beltran, No. S224692, order at 1.) The state appellate court denied the claim, 21 stating: 22 23 24 25 26 27 28 Before trial, defense counsel sought information as to whether Guadalupe had obtained from the district attorney any promises of immigration relief in the form of either a “U-visa” that would allow her to remain in the United States as a crime victim, or some other favorable consideration. The district attorney’s office was then in the process of obtaining Guadalupe’s immigration file to determine if it contained discoverable Brady-type material. [Footnote: Defense counsel referred to Brady v. Maryland (1963) 373 U.S. 83 (Brady), but acknowledged that Brady did not strictly apply to the situation. The trial court observed that the circumstances did not implicate Brady because the immigration records were 18 16cv0987-BTM (BGS) not in the People’s possession, and thus the People had no obligation to produce them to the defense. Defense counsel was aware that in 2004, Guadalupe had obtained information about a U-visa from a police detective who had recommended she go through the process to remain in the U.S., that Guadalupe had made efforts to obtain such a visa via an organization called Casa Cornelia, that district attorney investigators had engaged in discussions with her concerning the status of her efforts, and that Guadalupe was denied such a visa in 2004 when she first made her application. Counsel sought to impeach Guadalupe with her motives in claiming she was a crime victim with regard to defendant.] The trial court eventually obtained the documents and informed counsel it would conduct an in camera review, and it later ordered them placed under seal at the conclusion of the case. 1 2 3 4 5 6 7 8 9 Asserting this court has a “constitutional responsibility to review trial court decisions where important rights are concerned,” defendant asks that we independently review the sealed records to determine if any of the documents or other materials were discoverable, and whether the court properly withheld disclosure of any documents or information. We have done so, and conclude the trial court neither abused its discretion in finding none of the materials was discoverable and that disclosure of the information was not appropriate, nor did the court violate any “important” right. (See, e.g., People v. Myles (2012) 53 Cal.4th 1181, 1209 (applying abuse of discretion standard).) 10 11 12 13 14 15 16 (ECF No. 9, attach. # 10, People v. Beltran, No. D064469, slip op. at 14-15.) 17 Petitioner has failed to identify what clearly established federal law was violated by 18 the trial court1 in sealing Guadalupe’s attorney-client privileged Casa Cornelia Law Center 19 file after reviewing it in camera and determining that the defense was in possession of most 20 of the documents contained therein and the remaining documents would not aid the defense 21 in its attempt to impeach Guadalupe. Petitioner appears to rely on the proposition that he 22 has a federal constitutional right to an appellate record sufficient to provide meaningful 23 appellate review. He appears to argue that his right to a meaningful appellate review was, 24 25 26 27 28 1 To the extent Petitioner challenges the manner in which the state appellate or supreme courts treated the sealed documents on appeal, as opposed to the trial court’s handling of the documents, he has not stated a claim cognizable on federal habeas. See Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (holding “that a petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.”) 19 16cv0987-BTM (BGS) 1 or potentially was, violated by the defense not having the opportunity to determine for itself 2 whether the Casa Cornelia Law Center file contained immigration documents with 3 impeachment value. 4 The United States Supreme Court has held that although the States have no federal 5 constitutional obligation to provide appellate review of criminal proceedings, once such 6 review is provided, a record which is not sufficient to permit adequate and efficient 7 appellate review can infringe upon federal constitutional rights. See Griffin v. Illinois, 351 8 U.S. 12, 18-20 (1956) (holding that denial of free trial transcripts to indigent defendants 9 violated due process and equal protection); Parker v. Dugger, 498 U.S. 308, 321 (1991) 10 (stating that the court has “emphasized repeatedly the crucial role of meaningful appellate 11 review in ensuring that the death penalty is not imposed arbitrarily or irrationally.”); see 12 also United States v. Herrera-Blanco, 232 F.3d 715, 718 (9th Cir. 2000) (holding that where 13 a defendant was able to and did collaterally attack the validity of a deportation order during 14 his criminal proceedings, the limitation on doing so again in collateral proceedings imposed 15 by AEDPA did not violate “his constitutional right to meaningful appellate review of his 16 due process claim.”) 17 Petitioner has not identified any “clearly established federal law” within the meaning 18 of 28 U.S.C. § 2254(d)(1) to support this claim, because he has not shown that the United 19 States Supreme Court has applied the constitutional right to meaningful appellate review 20 to his situation, where attorney-client privileged documents were reviewed in camera by 21 the trial court, sealed for appellate review, and not disclosed to the defense. See Woodall, 22 134 S.Ct. at 1706-07 (holding that “if a habeas court must extend a rationale before it can 23 apply to the facts at hand, then by definition the rationale was not ‘clearly established at 24 the time of the state-court decision.’”), quoting Yarborough v. Alvarado, 541 U.S. 652, 666 25 (2004). Although § 2254(d)(1) does not require an “identical factual pattern before a legal 26 rule must be applied,” Panetti v. Quarterman, 551 U.S. 930, 953 (2007), relief under that 27 provision is available “if, and only if, it is so obvious that a clearly established rule applies 28 to a given set of facts that there could be no ‘fairminded disagreement’ on the question.” 20 16cv0987-BTM (BGS) 1 Woodall, 134 S.Ct. at 1706-07, quoting Richter, 562 U.S. at 103. Such an extension is not 2 obvious here because the Supreme Court has held that in camera review of sealed material 3 can protect a defendant’s federal constitutional rights. See e.g. Pennsylvania v. Ritchie, 4 480 U.S. 39, 59-60 (1987) (holding that a defendant’s right to a fair trial was secured by 5 submitting privileged documents for in camera review, and stating that “[d]efense counsel 6 has no constitutional right to conduct his own search of the State’s files to argue 7 relevance.”)2 The Court finds that Petitioner has not satisfied 28 U.S.C. § 2254(d)(1). 8 Even to the extent Petitioner could satisfy § 2254(d)(1), or argue that he should be 9 excused from being required to satisfy § 2254(d)(2) because he is not privy to the factual 10 findings upon which the state court decision rests, he is still not entitled to federal habeas 11 relief unless he can establish that a federal constitutional violation occurred. See Fry, 551 12 U.S. at 119-22 (holding that even if § 2254(d) is satisfied, or does not apply, a petitioner 13 must show a federal constitutional violation occurred in order to obtain federal habeas 14 relief). Prior to examining the merits of the claim, however, the Court must first address 15 Respondent’s argument that relief is barred by Teague. See Caspari v. Bohlen, 510 U.S. 16 383, 389 (1994) (noting that when a respondent raises a Teague issue, the Court must apply 17 Teague before addressing the merits of the claim). 18 In Teague the court held that that a constitutional rule of criminal procedure which 19 “breaks new ground or imposes a new obligation on the States,” or “was not dictated by 20 precedent existing at the time defendant’s conviction became final,” do not apply 21 22 23 24 25 26 27 28 2 The Supreme Court has suggested that in camera review can be inadequate where large volumes of complex electronic surveillance records are obtained without probable cause, but was careful to distinguish that case from other sealed proceeding cases. See Alderman v. United States, 394 U.S. 165, 182 (1969) (“In both the volume of material to be examined and the complexity and difficulty of the judgments involved, cases involving electronic surveillance will probably differ markedly from those situations in the criminal law were in camera procedures have been found acceptable to some extent.”) Here, by contrast, the defense was already in possession of the majority of the documents contained in the sealed records, which consisted of the victim’s legal file of an advocacy group assisting her in obtaining immigration relief. 21 16cv0987-BTM (BGS) 1 retroactively to cases on collateral review unless they fall into one of two narrow 2 exceptions. Teague, 489 U.S. at 301. The exceptions are rules placing private conduct 3 beyond the power of criminal law to prohibit, id. at 307, and “‘watershed rules of criminal 4 procedure’ implicating the fundamental fairness and accuracy of the criminal proceedings.” 5 Saffle v. Parks, 494 U.S. 484, 495 (1990), quoting Teague, 489 U.S. at 311. 6 As discussed above, there is no clearly established United States Supreme Court 7 precedent supporting relief on this claim within the meaning of § 2254(d)(1), which 8 supports Respondent’s contention that this claim seeks to apply a new rule under Teague. 9 See Williams, 529 U.S. at 412 (“whatever would qualify as an old rule under our Teague 10 jurisprudence will constitute ‘clearly established Federal law, as determined by the 11 Supreme Court of the United States’ under § 2254(d)(1).”) However, when applying 12 Teague, unlike § 2254(d)(1), the Court may consider Ninth Circuit authority. Burton v. 13 Davis, 816 F.3d 1132, 1142 (9th Cir. 2016). Although the Ninth Circuit has recognized 14 that constitutional issues may arise from the denial of access to the defense of an 15 informant’s identity based solely on danger to the informant without balancing the needs 16 of the defense, see United States v. Ordonez, 722 F.2d 530, 540 (9th Cir. 1983), there is no 17 indication that has been extended that to the context of the type of documents at issue here. 18 See United States v. Hernandez-Escarsega, 886 F.2d 1560, 1581 (9th Cir. 1989) (“[C]ourts 19 have the inherent power to receive in camera evidence and place it under seal in appropriate 20 circumstances.”) Thus, the rule Petitioner seeks, that sealing for appellate review of 21 attorney-client privileged documents relating to possible impeachment evidence after an in 22 camera review does not provide an adequate appellate record, constitutes a new rule of 23 criminal procedure under Teague. 24 The new rule Petitioner seeks to apply does not fall into either narrow Teague 25 exception because it would not place private conduct beyond the power of criminal law to 26 prohibit, and is not the type of procedure implicit in the concept of ordered liberty without 27 which the likelihood of an accurate conviction is seriously diminished. Caspari, 510 U.S. 28 at 390. Thus, even assuming Petitioner could satisfy 28 U.S.C. § 2254(d)(1) or (2), or 22 16cv0987-BTM (BGS) 1 show that those provisions do not apply, and assuming he could demonstrate a federal 2 constitutional violation occurred, relief on this claim is barred by Teague. 3 Finally, even were the Court to address the merits, it would find, consistent with the 4 Supreme Court, see Ritchie, 480 U.S. at 59-60, and the Ninth Circuit, see Hernandez- 5 Escarsega, 886 F.2d at 1581, that Petitioner’s federal constitutional rights were adequately 6 protected by the trial court’s in camera review of the privileged documents and then sealing 7 them for appellate review. The Court recommends denying habeas relief as to Claim Six. 8 V. CONCLUSION 9 For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court 10 issue an Order: (1) approving and adopting this Report and Recommendation, and (2) 11 directing that Judgment be entered denying the Petition. 12 IT IS ORDERED that no later than July 18, 2018, any party to this action may file 13 written objections with the Court and serve a copy on all parties. The document should be 14 captioned “Objections to Report and Recommendation.” 15 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 16 the Court and served on all parties no later than August 1, 2018. The parties are advised 17 that failure to file objections with the specified time may waive the right to raise those 18 objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 19 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991). 20 Dated: June 18, 2018 21 22 23 24 25 26 27 28 23 16cv0987-BTM (BGS)

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