Sissac v. Montgomery

Filing 30

REPORT AND RECOMMENDATION re 28 MOTION to Amend/Correct 1 Petition for Writ of Habeas Corpus, filed by Demetrius Sissac. Court recommends that Court issue an Order: 1.) approving and adopting this Report and Recommendation, 2,) granting Pe titioner's Motion to Amend 28 and directing that the proposed First Amended Petition become the operative pleading in this action, and 3.) directing that Judgment be entered denying the First Amended Petition. Objections to R&R due by 8/1/2018. Replies due by 8/10/2018. Signed by Magistrate Judge Jill L. Burkhardt on 7/11/2018. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DEMETRIUS SISSAC,

Case No.: 16cv2287-BAS (JLB)
Petitioner,

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REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE
JUDGE

v.
W. L. MONTGOMERY, Warden,
Respondent.

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(1) GRANTING MOTION TO AMEND
PETITION FOR A WRIT OF HABEAS
CORPUS; and

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(2) DENYING FIRST AMENDED
PETITION

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Petitioner Demetrius Sissac, a state prisoner, initiated this action by filing a pro se

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Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San

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Diego County Superior Court conviction for second degree murder. (ECF No. 1.) He has

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since retained counsel who has filed a Motion to Amend the Petition with an attached

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proposed First Amended Petition which presents the same claims with more extensive

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briefing. (ECF No. 28.) Petitioner claims here, as he did in state court, that, either

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individually or cumulatively, the admission of evidence of text messages and telephone

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calls between himself and the men he was with at the time of the murder, the testimony of

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two of those men to ultimate legal and factual issues when they testified they thought it
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was a sin that he had murdered an innocent victim, and the admission of testimony about

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the deletion of text messages from Petitioner’s phone, as well as the manner in which his

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trial counsel handled the admission of the evidence, violated his constitutional rights.

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Specifically, Petitioner claims violations of his rights to due process, a fair trial, a reliable

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determination of guilt, the confrontation and cross-examination of witnesses, and the

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effective assistance of counsel under the Fifth, Sixth, Eighth and Fourteenth Amendments

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to the United States Constitution. (Id.)

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Respondent has filed an Answer and a Notice of Lodgment of the state court record.

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(ECF Nos. 7-8.) Respondent contends that state court remedies have not been exhausted

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as to any claim in the pro se Petition because the only claims it presents are ineffective

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assistance of counsel claims raised only on habeas in the state appellate court. (ECF No.

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7 at 2.) Respondent contends the claims can be denied here notwithstanding the failure to

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exhaust because the state appellate court adjudication is neither contrary to, nor an

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

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unreasonable determination of the facts. (Id.; ECF No. 7-1 at 6-10.) Respondent opposes

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the Motion to Amend on the basis that amendment would be futile because the proposed

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amended petition does not add any new claims, merely argument in support of the claims

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in the pro se Petition. (ECF No. 29.)

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As set forth herein, the Court makes the following findings and recommendations.

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The Court recommends granting the timely Motion to Amend. The proposed amended

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petition contains the same claims as the original pro se Petition, but presents a more

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thorough briefing closely resembling the manner in which the claims were presented to the

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state court. Both versions of the federal petition contain five claims with four subparts

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(due process, confrontation, a fair and reliable determination of guilt, and ineffective

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assistance of counsel), all of which, other than the ineffective assistance of counsel claims,

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are exhausted because they were presented to the state supreme court on direct appeal. The

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ineffective assistance of counsel claims were presented only to the state appellate court on

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habeas, but the exhaustion requirement is technically satisfied as to those claims because
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more than three years have passed since they could have been timely presented to the state

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supreme court and state court remedies no longer remain available. The Court recommends

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denying habeas relief because the state court adjudication of all claims, other than the

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ineffective assistance of counsel aspect of claim one, is neither contrary to, nor an

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

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unreasonable determination of the facts, because any evidentiary errors are harmless, and

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because the ineffective assistance of counsel aspect of claim one fails under a de novo

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review.

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I.

STATE PROCEDURAL BACKGROUND

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In a one-count Information filed in the San Diego County Superior Court on

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February 16, 2012, Petitioner was charged with first degree murder in violation of

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California Penal Code § 187(a), with the special circumstance that the victim was a taxicab

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driver intentionally killed while engaged in the course of his duties within the meaning of

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California Penal Code § 190.25. (Lodgment No. 1, Clerk’s Transcript [“CT”] at 4-6.) The

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Information also alleged Petitioner personally used a firearm within the meaning of

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California Penal Code §§ 12022.5(a) & 12022.53(b), personally used and intentionally

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discharged a firearm within the meaning of California Penal Code § 12022.53(c), and

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personally used and intentionally discharged a firearm causing great bodily injury or death

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within the meaning of California Penal Code § 12022.53(d). (Id.)

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On June 28, 2013, after deliberating for about ten hours over three days, the jury

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indicated they were deadlocked on first degree murder, and the People dismissed that

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charge. (CT 345.) After deliberating an additional thirty minutes, the jury found Petitioner

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guilty of second degree murder and returned true findings on the firearm use allegations.

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(CT 209-10, 346.) On August 16, 2013, Petitioner was sentenced to fifteen years to life

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for second degree murder, with a consecutive term of twenty-five years to life for the

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California Penal Code § 12022.53(d) firearm use enhancement, with terms on the other

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enhancements stayed, for a total term of 40 years to life in state prison. (CT 191.)

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Petitioner appealed, alleging, as relevant here, that his federal constitutional rights

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to due process, to a fair trial, to confront and cross-examine witnesses, and to a reliable

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determination of guilt were violated, individually or cumulatively, because: (1) evidence

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regarding cellular telephone communications between him and the men he was with on the

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night of the murder constituted unreliable inadmissible hearsay which lacked adequate

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foundation and proper authentication; and (2) the trial testimony of two of those men that

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they thought it was a sin for Petitioner to have murdered an innocent victim constituted

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improper lay opinion as to ultimate legal and factual issues. (Lodgment No. 3.) Petitioner

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filed a habeas petition in the appellate court on the same day, accompanied by a motion to

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consolidate it with the direct appeal, alleging any forfeiture of the evidentiary claims

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arising from a failure to object at trial was due to ineffective assistance of trial counsel, and

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raising additional claims of ineffective assistance of counsel predicated on trial counsel’s

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failure to object to the admission of the evidence supporting the underlying claims of

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evidentiary error. (Lodgment No. 6.) The People responded by arguing that defense

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counsel’s failure to object at trial to the alleged evidentiary errors resulted in forfeiture of

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those claims, that the challenged evidence was properly admitted, and any errors were

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harmless. (Lodgment No. 4.)

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The appellate court affirmed, finding: (1) the claims of evidentiary error involving

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the telephone communications (claims two through four here) failed, regardless of any

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forfeiture resulting from a failure to object as to some of the evidence, because they were

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harmless in light of the strong evidence of guilt; (2) Petitioner forfeited the claim

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challenging the introduction of lay opinions (claim five) due to trial counsel’s failure to

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object, but this did not amount to ineffective assistance of counsel because Petitioner was

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not prejudiced as there was no reasonable probability of a more favorable result had an

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objection been made; and (3) there was no cumulative error (claim one). (Lodgment No.

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5, People v. Sissac, No. D064910, slip op. (Cal.App.Ct. Mar. 3, 2015).) In a separate order

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the appellate court denied the motion to consolidate, and denied habeas relief stating: “For

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reasons explained in our opinion in the direct appeal, we reject Sissac’s claims.”

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(Lodgment No. 7, In re Sissac, No. D065927, Order (Cal.App.Ct. Mar. 3, 2015).)

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On April 6, 2015, Petitioner filed a petition for review in the California Supreme

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Court in which he raised the same claims presented on direct appeal. (Lodgment No. 8.)

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The petition for review did not include the ineffective assistance of counsel claims raised

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on state habeas, although Petitioner argued that to the extent any issue was forfeited by his

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trial counsel’s failure to object to the introduction of the challenged evidence it was a result

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of constitutionally ineffective assistance of counsel. (Id.) That petition was denied in an

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order which stated: “The petition for review is denied.” (Lodgment No. 9, People v. Sissac,

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No. S225613, order (June 10, 2015).)

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II.

FEDERAL PROCEEDURAL BACKGROUND

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Petitioner initiated this action by filing a pro se Petition on September 6, 2016. (ECF

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No. 1.) The headings on the claims in the pro se Petition are taken from the state appellate

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court habeas petition which allege ineffective assistance of counsel for failing to object to

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the introduction of the challenged evidence (id. at 6, 9, 13, 17, 20), but the substance of the

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claims in the body of the Petition uses language from the briefs on direct appeal to allege

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the admission of that evidence violated his Fifth, Sixth, Eighth and Fourteenth Amendment

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rights to due process, a fair trial, confrontation and cross-examination of witnesses, and a

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reliable determination of guilt. (Id. at 13-15, 18-20.) Petitioner alleges he exhausted all

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claims by presenting them to the state supreme court in the petition for review (id. at 6-9,

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13, 16-17, 19-20, 23), despite the fact that the ineffective assistance of counsel claims were

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not presented in the petition for review. (See Lodgment No. 8.) As discussed below, he

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attributes that mistake to his not being informed that his motion to consolidate his habeas

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petition with his direct appeal had been denied.

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“The Supreme Court has instructed the federal courts to liberally construe the

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‘inartful pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.

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1987), quoting Boag v. MacDougall, 454 U.S. 354, 365 (1982). Liberal construction of

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pro se prisoner habeas petitions is especially important with regard to the determination as
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to which claims are presented. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). The

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Court finds that the pro se Petition presents the same claims of evidentiary error raised on

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direct appeal, as well as the ineffective assistance of counsel claims raised on state habeas

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that trial counsel’s performance was deficient due to the manner in which he handled the

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admission of that same evidence.

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Respondent filed an Answer on November 29, 2016, construing the Petition as only

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raising ineffective assistance of counsel claims. (ECF No. 7-1 at 6.) Respondent contends

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that because none of those claim were presented to the state supreme court, Petitioner has

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not exhausted state court remedies as to any claim presented here, but that he retains the

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right to file a habeas petition in the state supreme court to exhaust those claims. (ECF No.

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7 at 2.) Respondent argues habeas relief can be denied notwithstanding the failure to

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exhaust because the adjudication of the ineffective assistance of counsel claims by the state

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appellate court is objectively reasonable. (ECF No. 7-1 at 7-10.)

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Petitioner replied to Respondent’s characterization of his pro se Petition as

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containing only unexhausted claims by filing a Motion for Stay and Abeyance on January

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19, 2017. (ECF No. 14.) Respondent filed an Opposition to the stay motion, contending

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that stay and abeyance is not appropriate because Petitioner failed to establish good cause

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for not timely presenting his claims to the state supreme court. (ECF No. 16.) Petitioner

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replied by stating he was unaware his request to consolidate his state habeas action with

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his direct appeal had been denied by the state appellate court, and requested a stay in order

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to present any claims he had not yet “wholly exhausted” to the state supreme court. (ECF

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No. 18.) The Court granted the motion on May 10, 2017, issued a stay, and notified

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Petitioner he was required to file a status report by June 9, 2017, informing the Court he

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had filed a state court petition. (ECF No. 19.)

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Petitioner failed to file a status report and on July 11, 2017, the Court ordered him

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to show cause why the stay should not be lifted. (ECF No. 20.) On July 28, 2017,

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Petitioner’s newly retained counsel appeared and filed a status report. (ECF No. 21.)

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Petitioner’s counsel contended (erroneously, as explained below), that state court remedies
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as to the ineffective assistance of counsel claims had been exhausted when the state

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appellate court denied the habeas petition on March 3, 2015, prior to initiating this action.

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(Id. at 1.) Counsel indicated that this matter was therefore ready to proceed, but requested

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a 120-day extension in order to research and explore issues which may not have been

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raised, and to prepare a “more legal” and analytical presentation of the claims. (Id. at 1-

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2.)

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On August 15, 2017, the Court vacated the stay, dismissed the show cause order,

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and set a deadline to file a motion to amend the petition, which was extended to December

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22, 2017. (ECF Nos. 23-27.) Petitioner’s counsel timely filed a Motion to Amend the

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Petition on December 21, 2017, with an attached proposed First Amended Petition. (ECF

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No. 28.) On December 26, 2017, Respondent filed an Opposition. (ECF No. 29.)

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The proposed First Amended Petition, like the pro se Petition, initially headlines

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each claim in the “table of contents” and “preliminary allegations” sections as presenting

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ineffective assistance of trial counsel claims. (ECF No. 28-1 at 2, 15-23.) However, the

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“argument” section of the memorandum of points and authorities supporting the proposed

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First Amended Petition, like the pro se Petition, contains all the underlying evidentiary

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claims raised in the petition for review on direct appeal. (Id. at 45-87.) As set forth in

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detail below, Petitioner claims in the pro se Petition and the proposed First Amended

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Petition that his federal constitutional rights were violated by the cumulative effect (claim

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one) of the erroneous admission of, and ineffective manner in which trial counsel handled

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the admission of: evidence of text messages Petitioner exchanged with Devin Patton in the

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days after the murder (claim two); testimony that Petitioner deleted those text messages

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(which the prosecutor argued showed a consciousness of guilt), and evidence of telephone

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calls between him and Anthony Roy, one of the men he was with that night who testified

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he never spoke to Petitioner (which the prosecutor argued undermined Roy’s credibility)

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(claim three); a pretext call to Petitioner from Devin Patton recorded and partially scripted

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by the police, which the prosecutor argued contained adoptive admissions (claim four); and

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the testimony of Devin Patton and David Glenn that they thought what Petitioner did was
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a sin and that he murdered an innocent man, which constituted lay opinions on the ultimate

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legal and factual issues (claim five).

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III.

TRIAL PROCEEDINGS

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Barbra Oborski, a San Diego County Deputy Sheriff, testified that she was on patrol

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on October 30, 2011, and responded to a radio call at the Lemon Grove Avenue trolley

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station about 3:45 a.m. (Lodgment No. 2, Reporter’s Tr. [“RT”] at 133-140.) When she

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arrived she found an overturned taxicab with an unresponsive driver hanging upside down

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by his seatbelt having trouble breathing. (RT 141-43.) Deputy Oborski requested an

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ambulance, and the paramedics determined that the driver had been shot. (RT 142-45.)

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The taxicab had knocked down a palm tree, a metal signpost and a length of construction

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fence before overturning. (RT 150.) A specialist in accident reconstruction opined that

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the taxicab hit a curb which caused it to jump onto a sidewalk, and then hit a palm tree

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which caused it to overturn. (RT 271-83.) A $20 bill was found loose in the taxicab, and

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the driver had $300 in cash in his pants pocket. (RT 921, 933-34.)

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Michael Arroyo, a San Diego County Deputy Sheriff, testified that he responded to

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the Lemon Grove Trolley station about one minute after Deputy Oborski reported an

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overturned taxicab. (RT 176-77.) The taxicab driver was having trouble breathing, and he

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squeezed Deputy Arroyo’s hand as the deputy spoke to him. (RT 177-78.) The paramedics

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arrived about two minutes later, determined the driver had a gunshot wound to his chest,

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was not breathing and had no pulse, and pronounced him dead at 4:11 a.m. (RT 178-82.)

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An autopsy revealed an entrance wound to the victim’s chest from a bullet found inside his

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body, and death was caused by internal bleeding from the bullet. (RT 607, 617.) The bullet

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traveled on a slight downward trajectory from the victim’s right to left side, appeared to

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have been fired from between one to three feet away, and was consistent with having been

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fired from a .38 caliber weapon. (RT 613, 621, 965-66.)

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Suzanne Fiske, a San Diego County Sheriff Homicide Detective, testified that she

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identified the victim as a taxi driver named Jalaludin Hamrah, determined he picked up his

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last fare at the El Cajon trolley station, and obtained surveillance video from that station
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and the Lemon Grove trolley station. (RT 324-30.) The El Cajon station video showed

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several individuals entering a taxicab about 3:30 a.m., and the Lemon Grove station video

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showed the same taxicab flipping over about 3:40 a.m. (RT 361-72.) Detective Fiske was

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told that Kim Patton, a former Deputy Sheriff with whom Detective Fiske had worked

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twenty years earlier, wanted to speak to her. (RT 334-35.) Kim Patton arranged for her

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son Devin to come to the police station for an interview, after which a consensual search

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was conducted of Devin’s bedroom in Kim’s home, and a hat, a shirt and a pair of shoes

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were seized. (RT 335-38, 348.)

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Devin Patton testified that when he lived in New Jersey in 2008, he visited his

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mother in La Mesa, California, where he met and became friends with David Glenn, who

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he called Jodi. (RT 414-15.) When Patton moved to San Diego in 2011, he moved in with

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his mother and reconnected with Glenn, who introduced him to Petitioner, who Patton

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knew as Meech or Metrie. (RT 415-16.) Patton described Petitioner as one of his best

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friends, and said they went to school together and worked and hung out together after

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school nearly every day. (RT 416-17.) Patton often ate dinner at Petitioner’s house, and

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said Petitioner’s mother and uncle were “good to me, like family.” (RT 417.)

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On October 29, 2011, a Saturday, Patton was invited to a Halloween party in El

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Cajon, and texted Petitioner about the party. (RT 421-22.) Patton left his house about 6:00

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p.m., took a bus to the nearby Lemon Grove trolley station, rode the trolley to El Cajon

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where he met a friend, and they took a bus to their friend Natasha’s house before going to

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the party, which was at Natasha’s uncle’s house. (RT 423-24.) Patton was 21 years old at

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the time, and said he had four or five alcoholic drinks at the party. (RT 425.)

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Patton texted Petitioner throughout the evening asking him to come to the party. (RT

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426.) Petitioner, who was 19 years old at the time, arrived at the party about 11:00 p.m.

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with Glenn, Anthony Roy, and another male Patton did not know but who was about 17 or

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18 years old with braided hair. (RT 427-29.) Those four left after about an hour and a

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half, and Patton left about thirty minutes later and caught up with them. (RT 429-33.)

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Patton said it was a very cold night and their group seemed to be walking without

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purpose or destination, and eventually decided to walk to the El Cajon trolley station, a

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long walk. (RT 432-33.) They arrived at the trolley station about 1:30 or 2:00 a.m., waited

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for about thirty minutes, and were told by a taxicab driver that the next trolley would not

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come until 4:00 or 5:00 a.m. (RT 433-35.) Patton said Petitioner went down to the line of

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taxicabs to negotiate a price, and came back and told the group he had paid a cabdriver $20

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to take them to Lemon Grove. (RT 436.) Petitioner sat in the front of the taxicab, Patton

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sat behind the driver, Roy was to Patton’s right, the unknown teenager to Roy’s right, and

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Glenn was next to the right rear passenger door behind Petitioner, which Patton said was a

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very tight squeeze. (RT 436-37.) It was about 2:00 a.m., and the trip to the Lemon Grove

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took about 15 minutes. (RT 437.) Patton said the driver was cool during the trip, making

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jokes, and the atmosphere in the taxicab was cool. (RT 438-39.)

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When they arrived at the Lemon Grove trolley station, Patton said he and Roy

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popped out quickly because they had been squeezed in together. (RT 438.) Patton walked

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about twenty steps when he heard a loud pop, which he recognized as a gunshot, and

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immediately ran several blocks before stopping, with Roy running right behind him and

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the unknown teenager close behind Roy. (RT 440-41.) Roy was crying and the unknown

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teenager looked shocked and frightened. (RT 441.) While they were running Patton said:

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“What was that? What happened?” and he “heard someone say that ‘Meech shot him.

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Meech shot the cab driver,’” but he did not know who said it, although it must have been

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either Roy or the unknown teenager. (RT 442, 522.) Petitioner and Glenn caught up with

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them a couple of seconds later and Patton heard Glenn ask Petitioner: “What the fuck did

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you do? Why the fuck did you do that?” (RT 442.) Patton said Petitioner appeared scared

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rather than angry, and had “a cold, blank look” on his face when he responded by saying

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the cabdriver had “laughed at him or smiled at him.” (RT 442-44.)

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Patton went home, slept for about an hour, and began texting Petitioner. (RT 444.)

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He testified that he asked Petitioner in the texts “to do the right thing and turn himself in.”

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(RT 444-45.) Petitioner did not text Patton back at that time, and Patton decided to give
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him “a day to realize what he did” and turn himself in to the police. (RT 446.) When

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Petitioner eventually responded to his texts, it appeared to Patton that Petitioner did not

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intend to turn himself in to the police. (Id.) On Monday, Patton told his mother what

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happened and she immediately called the police. (RT 447.) Patton told the police what

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happened, including what clothes he was wearing, and allowed the police to search his

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room and seize his clothes. (RT 448-49.)

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The prosecutor projected printouts of the text messages exchanged between Patton

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and Petitioner on a screen for the jury. (RT 457.) Defense counsel objected to a lack of

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foundation regarding the times the texts were sent and received, and the prosecutor had

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Patton read each text aloud for the jury. (RT 455-59.) They included one at 5:51 a.m. on

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Sunday, October 30, 2011, which read: “Meech, turn yourself in, Meech. This shit is not

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going to be on my heart. This is crazy, nigga. I’m so serious.” (RT 455-57.) Petitioner

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texted back at 5:52 a.m.: “I’ma call you later.” (RT 456-57.) At 5:54 a.m. Patton texted:

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“You hear what I’m telling you? This is way back.” (Id.) Petitioner replied at 5:54 a.m.:

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“I know.” (Id.) Patton texted Petitioner at 11:03 p.m. that evening: “Nigga, this ain’t cool

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at all. I can’t sleep or nothing. Yo, I didn’t even do shit. You need to be a man and own

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up, Meech.” (RT 458.) With no reply, Patton sent another text at 11:05 p.m.: “You ain’t

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thinking about my life, my fam, and this shit hurts like fuck.” (RT 458-59.) Again without

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a reply, Patton sent a text at 11:13 p.m.: “Do the right thing, please, yo.” (RT 459.)

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Patton testified that he fell asleep after that last text, and the next morning, Monday,

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October 31, he read a text from Petitioner which had been sent the previous midnight: “You

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have to pray.” (Id.) Patton texted back: “No, you pray, nigga. That’s some coward ass

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shit. I got nothing else to say.” (Id.) Patton determined at that point that Petitioner was

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not going to turn himself in, and decided to tell his mother what happened. (RT 461.)

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Patton testified that when he made his statement to the police he offered to help in

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any way, and they asked him to make a pretext call to Petitioner, which he did on November

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1 at 10:42 p.m., with the police present telling him what questions to ask. (RT 462-63,

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537-38, 567-70, 584-86.) A recording was played for the jurors, who were given a
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transcript of the call. (RT 568-70.) A transcript is in the record. (CT 135-41.) In that call

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Petitioner did not directly admit or deny shooting the victim, although he was never asked

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if he had, but he did deny that he “got any money out of it.” (Id.) At a pretrial hearing,

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Petitioner’s trial counsel argued that the statements in the pretext call “are not true

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admissions,” but after the trial court ruled it contained “some incriminating language,”

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defense counsel stated: “I’m conceding [it] has admissions, your honor, what could be

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deemed admissions.” (RT 46, 79, 82.) During closing argument defense counsel argued

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that Petitioner had made no admissions during that call, and pointed out that despite the

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fact it was scripted by the police, Petitioner was never asked if or why he shot the driver.

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(RT 1331-32.) The prosecutor argued to the jury that Petitioner’s failure to deny he shot

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the driver was an adoptive admission. (RT 1351-52.) Patton testified that he made a similar

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pretext call to Glenn that night. (RT 570.) A transcript is in the record. (CT 66-85.) Glenn

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told Patton during that call, which was not played for the jury, that Petitioner admitted

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shooting the driver but did not mean to kill him, and Glenn asked Patton to wait to contact

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the police to give Petitioner time to turn himself in because he had promised he would and

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was scared and remorseful. (Id.) Defense counsel succeeded in having three recorded calls

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excluded, the call from Patton to Glenn, a call to Petitioner from his mother when he was

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in custody, and a second pretext call from Patton to Petitioner. (RT 79-82, 93-106.)

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Patton testified that he moved back east in order to spare his family having to deal

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with the situation, as they might be in danger living with a snitch, and said he had been

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receiving monthly payments from the District Attorney of $450 for food and $650 for rent.

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(RT 463-64, 561-62.) He identified himself, Petitioner, Roy, Glenn and the unknown

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teenager on the El Cajon trolley station video. (RT 465-66.) When asked by the prosecutor

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why he had decided to come forward, Patton said: “Because certain things I can’t live with,

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sir. Murder isn’t – murder is just not one of them. It was wrong.” (RT 473.) When asked

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what he did when he woke up the morning after the killing, he said he started texting

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Petitioner in order to try to get him to come forward because: “What happened that night

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was crazy, I know, but the victim, he was – the cab driver, he was innocent.” (RT 444-45.)
12
16cv2287-BAS (JLB)

1

Defense counsel’s hearsay objection was overruled. (RT 445.) When then asked “What

2

did you text him,” Patton replied: “I asked him to man up and I asked him to turn himself

3

in because if he didn’t, things were going to get really bad, things like this is what I was

4

saying to him, things like this don’t just pass over, this is a sin.” (Id.)

5

Patton testified that he used to smoke marijuana but stopped on the day of the

6

murder. However, he admitted he texted Glenn a couple of days later that he was planning

7

to pick up some marijuana, although he denied he was actually going to do so. (RT 543-

8

44.) Patton admitted he had been convicted of misdemeanor embezzlement of less than

9

$200 in 2010. (RT 454-55.) He also admitted he was with Petitioner on May 8, 2011,

10

when Petitioner was pulled over driving a stolen car after a high speed chase. (RT 566-

11

67.) He testified Petitioner ran from the police while he, Patton, stayed in the car. (Id.)

12

He testified he later cooperated with the police. (RT 534-35.) Petitioner pleaded guilty to

13

vehicle theft and evading the police, and Patton was not charged. (RT 532-35, 579-80.)

14

David Glenn testified, under a grant of immunity, that he has lived in San Diego his

15

entire life, and has known Petitioner, who he calls Meech and Metrie, for about four years,

16

and thinks of him as a little brother. (RT 638-39.) Roy is Glenn’s cousin who he has

17

known his entire life, and Patton is a friend Glenn has known for three or four years. (RT

18

639-40.) Glenn said that about 5:00 or 6:00 p.m. on Saturday, October 29, 2011, he,

19

Petitioner, Roy, and a mutual friend he did not really know who had braids in his hair, went

20

to a party in El Cajon to which Patton had invited them. (RT 640-42.) The four of them

21

took the trolley to the El Cajon station, and from there walked to the party, arriving about

22

11:00 p.m., where they met Patton. (RT 642-43.) Glenn drank “quite a bit” of liquor at

23

the party, with the rest of the group also drinking, left after about two hours because the

24

party was boring, and said Patton caught up with them less than an hour later. (RT 643-

25

45, 678, 687-88, 722-23.) The five of them walked to the El Cajon trolley station, arriving

26

about 3:00 a.m., and waited on the platform. (RT 645.) Glenn said he was no longer drunk

27

at that time but was high because he smoked marijuana before, during and after the party,

28

///
13
16cv2287-BAS (JLB)

1

but it did not affect his memory of the events because, although he is a heavy marijuana

2

smoker, he could “handle” his marijuana. (RT 684-85, 722-23.)

3

As far as Glenn knew no one had any money, and when they arrived at the El Cajon

4

trolley station he suggested they wait for the trolley to start running at 5:00 a.m. and “trolley

5

hop,” ride without paying, but Petitioner said “he wanted to ditch a cab,” which meant take

6

a taxicab and not pay. (RT 646.) All five of them agreed to Petitioner’s plan and Petitioner

7

went to ask the taxicab drivers for a ride, but Glenn said the drivers were hesitant to give

8

them a ride because they were “five black males in the middle of the night.” (RT 646-47,

9

693.) Petitioner returned to the platform and said he found a taxicab driver willing to give

10

them a ride, and they left in the taxicab about thirty minutes after they had arrived at the

11

trolley station. (RT 647-48.) Petitioner sat in the front passenger seat with Glenn directly

12

behind him. (RT 648.) They arrived at the Lemon Grove trolley station about ten or fifteen

13

minutes later after a pleasant trip, with the cab driver laughing and talking to them and no

14

tension or hostility between anyone. (RT 649, 696.)

15

Glenn testified that as soon as the taxicab arrived at the station, he, Patton, Roy and

16

the unknown male all quickly exited the cab and began to run away. (RT 650.) After the

17

four of them had run a short distance, Glenn heard a gunshot, and slowed down to allow

18

Petitioner to catch up. (RT 651-52.) Glenn asked Petitioner: “What happened. What the

19

fuck did you just do?” and “Did you just shoot that guy?” (RT 651-52, 704.) Glenn said

20

Petitioner did not say anything but: “He just looked at me like he peed on hisself.” (RT

21

652.) Glenn then noticed Petitioner had a gun, a small .38 caliber semiautomatic pistol

22

which Glenn found about a month earlier and had given to Petitioner the previous day

23

because Petitioner “wanted it,” but Glenn said he did not know until that moment Petitioner

24

had the gun with him that night. (RT 655-56, 659, 661-63.)

25

They continued running until they stopped behind a Home Depot where Glenn

26

“jumped in [Petitioner’s] face” and asked him again what he had done, but Petitioner just

27

had a blank look on his face. (RT 652.) Glenn said Roy was crying and Patton was “real

28

hysterical about the situation, saying ‘Meech, you need to turn yourself in, dog, like right
14
16cv2287-BAS (JLB)

1

now.’” (Id.) Glenn said to Petitioner: “You just smoked the cab driver. We just came

2

from the El Cajon trolley station. They got video surveillance cameras of us getting inside

3

the cab. Now it’s going to incriminate all of us. You know what I mean? Possibly

4

everybody could go down for this.” (RT 653.) Glenn said he was “in [Petitioner’s] face”

5

and “was going to do something to him,” but Petitioner said: “Since I’m the one that did it,

6

there’s no need to take everybody down with me.” (Id.) Glenn told Petitioner he would

7

hold him to his word, Patton adamantly told Petitioner, “You need to turn yourself in,” and

8

they all went home. (Id.) When Glenn asked Petitioner a couple of days later why he shot

9

the driver, Petitioner said “the dude had laughed at him.” (RT 654-55.) Glenn admitted

10

that when he was initially interviewed by the police he falsely denied that he had heard

11

Petitioner make that statement. (RT 1089-90.)

12

Glenn wore jail clothing during his testimony, and stated that he was incarcerated

13

because he had failed to respond to a subpoena to testify because he loved Petitioner and

14

because “snitches get found in ditches.” (RT 656-58.) Glenn admitted he could not be

15

prosecuted for aiding and abetting the murder because he was testifying with immunity,

16

and that according to the terms of the agreement he was to be released immediately after

17

testifying, which he was. (RT 659, 667-69, 720-21.) With respect to the pretext telephone

18

call initiated by Patton to Glenn recorded by the police but not heard by the jury, Glenn

19

was asked what he was “trying to get across in the conversation.” (RT 724-25.) Glenn

20

testified that Patton was adamant Petitioner turn himself in, and Glenn was trying to

21

convince Patton to give Petitioner a little more time before Patton went to the police

22

because Petitioner had agreed to “take the rap for what he did.” (RT 724-25.) When asked

23

if he felt responsible because he supplied Petitioner with the gun used to shoot the victim,

24

Glenn said: “I felt like everybody is responsible for their own actions. I didn’t give him a

25

gun to shoot anybody. I don’t believe in murdering nobody. I don’t believe anybody

26

should deserve to die by the hands of another, that’s God’s choice.” (RT 656.)

27

Naseer Yousif, a taxicab driver, testified that he was in his taxicab waiting in line

28

behind Jalaludin Hamrah’s taxicab at the El Cajon trolley station around 3:30 a.m. on
15
16cv2287-BAS (JLB)

1

October 30, 3011. (RT 741-43.) Hamrah was first in line, a man named Johar was second,

2

the third man was asleep in his taxicab, Yousif was fourth, and a taxicab driver named

3

Habeel was there but not in line. (RT 742-43.) Yousif said several black men were up on

4

the trolley platform, and one of them, whose hair was in braids, came down and told Johar

5

that they did not have any money and asked, “Can you take us to Lemon Grove for the sake

6

of God, without money?” (RT 744-45.) Yousif said that person then returned to his friends

7

on the platform, and a different man from the group came down and asked Habeel if he

8

would take them to Lemon Grove, but Habeel told him he could not because he had to

9

leave on a call. (RT 745-46.) The five men from the platform eventually got into Hamrah’s

10

taxicab. (RT 746.) After Hamrah drove away, Habeel told Yousif that the men had given

11

Hamrah $20. (Id.)

12

Habeel Othman testified that he is a cabdriver and was at the El Cajon trolley station

13

about 3:00 a.m. on October 30, 2011. (RT 843.) Habeel said he was not in line, having

14

just stopped to talk, when a young black man offered him $20 for a ride, to which he replied

15

he could not because he was not in line and pointed to Jalaludin Hamrah’s taxicab, which

16

was first in line. (RT 845-47.) Habeel saw that man offer the other drivers $20 to take him

17

to Lemon Grove but they refused because it was a $27 fare, and he then saw Hamrah accept

18

$20 and saw five young black men get into Hamrah’s taxicab. (RT 847-48.)

19

Anthony Roy testified that he lived with Petitioner for two years and thought of him

20

as a brother. (RT 770.) On October 29, 2011, he met Petitioner, who goes by the names

21

Meech and Metrie, along with Roy’s cousin (Glenn) and an unknown male with braids in

22

his hair, at a trolley stop on their way to a party in El Cajon, where they met Patton, who

23

Roy said was also a friend. (RT 771-76, 798.) They drank alcohol and smoked marijuana

24

at the party, left without Patton but soon met up with him, went to a park where they again

25

smoked marijuana, and then walked to the El Cajon trolley station, but the trolley had

26

stopped running for the night. (RT 779-81, 782.) That night their group smoked about 15

27

“blunts,” cigar-sized marijuana cigarettes. (RT 779, 814.) At the trolley station, Petitioner

28

///
16
16cv2287-BAS (JLB)

1

walked down to the area where taxicabs were parked, and when he returned Patton told

2

Roy that Petitioner had paid for a cab. (RT 783.)

3

Roy said Petitioner rode in front of the taxicab with Glenn sitting behind him, the

4

unknown male was next to Glenn, and Roy was next to Patton, who was by the door behind

5

the driver. (RT 785.) When they arrived at the Lemon Grove trolley stop Patton jumped

6

out and started running, Roy started running as soon as he saw Patton running, and then

7

everybody started running. (RT 786-87.) As they were running Roy heard a loud bam like

8

a tire popping or a small firecracker. (RT 788, 841.) When they all finally stopped at

9

Roy’s house, which was near a Home Depot, Roy asked why they were running, because

10

he assumed they had been running to avoid paying the taxicab driver but had also been told

11

it had been paid for. (RT 788-89.) He said no one in the group said anything about what

12

had happened, and in fact they “didn’t talk about nothing,” even though they stayed on

13

Roy’s porch for twenty or thirty minutes. (RT 789, 792-93, 813, 820-21.) Roy said

14

Petitioner’s facial expression was: “Like plain, looked like nothing happened.” (RT 828.)

15

Roy and Glenn went into Roy’s house where they spent the night, Patton walked away by

16

himself, and Petitioner and the unknown teenager walked away together back toward the

17

trolley station. (RT 801-02, 822-23.)

18

Roy said he thought the only thing they did wrong that night was to run from the

19

taxicab without paying. (RT 790, 813.) The next day he saw on the news about a taxicab

20

driver who had flipped his taxicab after being shot but did not make a connection until he

21

was contacted by the police investigating the incident. (RT 791-92.) He denied ever

22

speaking to Petitioner, Glenn, Patton or the unknown male about the incident at any time.

23

(RT 793.) When confronted with records showing a series of calls between his telephone

24

and Petitioner’s telephone in the days after the incident, Roy said his sister may have used

25

his telephone to call Petitioner. (RT 810-12, 830-35.)

26

Daniel Pearce, a San Diego County Sheriff Homicide Detective, testified that he

27

performed data extraction from cellular telephones belonging to the victim, Petitioner,

28

Glenn and Patton, by connecting them to a Cellebrite software program. (RT 872-76.) The
17
16cv2287-BAS (JLB)

1

victim made a 911 call at 3:44 a.m. on October 30, but did not speak, and only the sound

2

of a car crash is heard. (RT 878-79, 1070-71.) Patton’s telephone had a contact number

3

for Petitioner listed as Meech, but no contact numbers for Glenn or Roy. (RT 877.)

4

Petitioner’s telephone had contact numbers for Patton, Roy and Glenn.

5

Petitioner’s telephone had a 20 second incoming call from Roy at 6:52 p.m. on October 30,

6

and a 36 second incoming call from Roy at 2:33 p.m. the next afternoon; it had a 34 second

7

outgoing call to Roy at 6:55 p.m. on October 30, and a 46 second outgoing call to Roy at

8

2:50 p.m. the next afternoon. (RT 881-83.) Glenn’s telephone had a contact for Petitioner

9

listed as Meech but no contact numbers for Patton or Roy. (RT 883-85.) Glenn’s telephone

10

received a one minute, 34 second call from Petitioner at 12:15 p.m. on October 31, and a

11

52 second call at 9:52 a.m. the next day. (RT 885.) Roy’s telephone placed a two minute,

12

55 second call to Glenn’s telephone on November 2 at 11:48 a.m., and a one minute, 15

13

second call at 1:42 p.m. the next afternoon. (RT 885-86.) Glenn’s telephone placed the

14

following calls to Roy’s telephone: on October 30 a 26 second call at 5:45 p.m.; on October

15

31 a one minute, 12 second call at 2:40 p.m. and a one minute, 12 second call at 5:56 p.m.;

16

on November 1 a three minute, 18 second call at 5:31 p.m. and a one minute, 51 second

17

call at 5:34 p.m.; and on November 2 a 33 second call at 8:40 a.m., a 31 second call at 9:08

18

a.m., a 31 second call at 9:29 a.m., a 36 second call at 9:34 a.m., a three minute, eight

19

second call at 11:42 a.m., a one minute, 19 second call at 11:54 a.m., a 55 second call at

20

2:37 p.m., and a 33 second call at 3:37 p.m. (RT 885-88.) On Patton’s telephone Detective

21

Pearce found the text messages exchanged between Petitioner’s telephone and Patton’s

22

telephone which had been shown to the jury, but did not find them on Petitioner’s

23

telephone, leading Detective Pearce to conclude Petitioner must have deleted them. (RT

24

888-89.)

(RT 880.)

25

Evidence collected at the crime scene included a $20 bill, but no shell casings. (RT

26

905-37.) A Criminalist with the San Diego County Sheriff’s Department Crime Laboratory

27

testified that she performed DNA analysis on 21 items, including a $20 bill, and compared

28

it to the DNA of Petitioner, the victim, Patton and Glenn. (RT 942-43.) Glenn’s DNA was
18
16cv2287-BAS (JLB)

1

found on the right rear interior door handle of the taxicab, but no other DNA matches were

2

found other than from the victim. (RT 945-47.)

3

An Investigator with the office of the San Diego County District Attorney testified

4

that his office provided financial assistance to Patton through the California Witness

5

Relocation Assistance Program after conducting a positive threat assessment. (RT 984-

6

87.) Beginning on May 21, 2012, Patton was given $450 a month for food and $618 a

7

month for rent, which rose to $650 as a result of a rent increase, which he was continuing

8

to receive at the time of trial, and which would ordinarily continue until three months after

9

the last court date, for a total of about $15,922 at the time of trial. (RT 987-90.)

10

Kimberly Patton, Devin Patton’s mother, testified that Petitioner was good friends

11

with Devin, and she knew Petitioner as Meech or Meechy. (RT 998.) On Monday, October

12

31, 2011, after a discussion with Devin, Kimberly contacted Detective Fiske, with whom

13

she had worked years earlier. (RT 999-1004.) She and Devin were interviewed and they

14

consented to the search of Devin’s room. (RT 1004.)

15

A search of Petitioner’s house on November 2, and Glenn’s house on November 3,

16

yielded no evidence. (RT 1010, 1015-16, 1062.) Henry Lebitsky, a Sergeant with the San

17

Diego County Sheriff’s Office, testified that he asked Devin Patton to make a pretext call

18

to Petitioner in order to test Patton’s credibility and perhaps to obtain a confession from

19

Petitioner, and also a pretext call to Glenn, both of which were recorded and partially

20

scripted. (RT 1050-53.) Sergeant Lebitsky described the video taken at the El Cajon

21

trolley station, which was played for the jury. (RT 1055-61.) It showed Petitioner, Glenn,

22

Patton, Roy and a person who was never identified approaching the trolley station; the

23

unidentified person breaking off from the group and approaching the line of taxicabs while

24

the other four proceed up to the platform; the unidentified person going up to the platform;

25

and then Petitioner walking down toward the line of taxicabs and speaking with the drivers.

26

(Id.) The People rested. (RT 1106.)

27

During the defense case, Leslie Hall, a San Diego County Deputy Sheriff, testified

28

that when she searched Devin Patton’s bedroom she was told to look for clothing worn on
19
16cv2287-BAS (JLB)

1

the night of the murder, not a gun. (RT 1109-12.) James Stam, a Criminalist, testified that

2

he would expect to see the absence of soot on a body which was shot with a .38 caliber

3

semiautomatic handgun from more than five inches away. (RT 1119-20.) He found no

4

soot and little to no gunshot residue on the victim’s clothing, from which he opined that

5

the shot was fired from more than three feet away. (RT 1121-31.) He also opined, based

6

on a reconstruction with a mannequin, that it was unlikely the victim was sitting in a normal

7

driving position facing the front when shot, and much more likely he was turned around as

8

if speaking to someone in the back seat with the shot coming from outside the rear door.

9

(RT 1140-58.) The defense rested and there was no rebuttal. (RT 1184.)

10

Defense counsel argued in closing that Petitioner did not form the required mental

11

state for murder due to his intoxication and the lack of evidence he expressed a plan or an

12

intent to kill, and there was a reasonable doubt as to who shot the taxicab driver because:

13

(a) no one saw it happen and the case is entirely circumstantial; (b) Glenn was intoxicated,

14

admitted the gun was his, initially denied that Petitioner admitted shooting the driver and

15

only implicated him after he was granted immunity which permitted him to be released

16

from custody if he testified against Petitioner, and both Glenn and the unknown teenager,

17

whom everyone seemed to be protecting, were in a position to shoot the driver according

18

to the defense reconstruction, and both looked in the video as if they might be concealing

19

a gun; (c) Patton had a financial interest in convicting Petitioner, lied about his own

20

marijuana use, and knew how to work the system because he had previously blamed

21

Petitioner and escaped liability when the police pulled them over in a stolen car, and

22

because his mother was a former police officer and a long-time friend of the investigating

23

officer who designed her son’s cooperation, including not searching his room for the gun;

24

(d) Roy was a credible witness who testified Petitioner did not make the admissions

25

immediately after the shooting as testified to by Patton and Glenn; and (e) Petitioner’s

26

statements in the text messages and pretext call were vague and were not admissions when

27

viewed in light of the presumption of innocence, particularly since the call was scripted by

28

///
20
16cv2287-BAS (JLB)

1

the police but he was not asked if he shot the driver, and reasonably could be interpreted

2

as expressing regret that they were all caught up in a bad situation. (RT 1300-32.)

3

During deliberations the jury asked for and was allowed to view the video from the

4

El Cajon trolley station, and asked for and was given a transcript of the pretext call Patton

5

made to Petitioner. (CT 342-44.) They deliberated two hours the first day, an entire second

6

day, and late into the morning of the third day before informing the court they were

7

deadlocked 5-7 on first degree murder. (CT 342-45; RT 1381-82.) The prosecutor

8

dismissed the first degree murder charge, and after deliberating another half hour the jury

9

returned a verdict of guilty on second degree murder and found the firearm use allegations

10

true. (CT 209-10, 345-46.) Petitioner was sentenced to 40 years to life. (RT 1426.)

11

IV.

PETITIONER’S CLAIMS

12

Petitioner claims in his pro se Petition, which is currently the operative pleading, as

13

well as his proposed First Amended Petition, that his Fifth, Sixth, Eighth and Fourteenth

14

Amendment rights to due process, a fair trial, a reliable determination of guilt,

15

confrontation and cross-examination of witnesses, and the effective assistance of counsel,

16

were violated by the cumulative and synergistic effect of the introduction of evidence (and

17

counsel’s ineffectiveness in failing to prevent that introduction) which was not properly

18

authenticated and for which a proper foundation had not been laid (claim one), including

19

the text messages exchanged by Petitioner and Patton after the murder, which also

20

constitute unreliable hearsay falling outside the adoptive admissions exception (claim two),

21

testimony from Detective Pearce that Petitioner must have deleted the text messages from

22

his telephone, and cellular telephone records insinuating that Roy had testified falsely when

23

he said he did not speak to Petitioner or Glenn about the incident (claim three), the pretext

24

call by Patton to Petitioner, which was also irrelevant hearsay as it did not contain

25

admissions by Petitioner (claim four), and the improper lay opinions on ultimate factual

26

and legal issues when Patton testified he thought the victim was innocent and what

27

Petitioner had done was a sin, and when Patton and Glenn testified they thought Petitioner

28

had murdered the victim (claim five). (ECF Nos. 1 at 6-22, and 28-2 at 15-22, 45-85.)
21
16cv2287-BAS (JLB)

1

V.

MOTION TO AMEND

2

The proposed amended petition is accompanied by a Motion to Amend the pro se

3

Petition. (ECF No. 28.) Petitioner correctly notes that the Motion to Amend, which was

4

filed on December 21, 2017, is timely under this Court’s October 27, 2017 Order setting a

5

December 22, 2017 deadline to file such a motion, and argues, without specificity, that

6

“there is plainly no prejudice” to Respondent from amendment. (Id. at 2-4.) The proposed

7

First Amended Petition states, incorrectly, that the ineffective assistance of counsel claims

8

which were presented to the state appellate court in the habeas petition were also presented

9

in the state supreme court petition for review. (Id. at 13.) It is clear that Petitioner raised

10

no ineffective assistance of counsel claims in the petition for review, but merely presented

11

the evidentiary claims raised on direct appeal and argued he should “be spared from the

12

forfeiture rule under the doctrine of ineffective assistance of counsel.” (Lodgment No. 8

13

at 20-21, 24, 26-27.)

14

Although it is clear Petitioner exhausted his state court remedies as to his evidentiary

15

claims by presenting them to the state appellate court on direct appeal and then to the state

16

supreme court in the petition for review, the proposed First Amended Petition fails to

17

adequately allege exhaustion of state court remedies as to the ineffective assistance of

18

counsel claims, as counsel for Petitioner erroneously contends they were exhausted by

19

presenting them to the state appellate court (see ECF No. 21 at 1), and erroneously contends

20

they were presented on direct appeal (see ECF No. 28-2 at 12-14). Respondent correctly

21

argues the ineffective assistance claims were never presented to the state supreme court,

22

but incorrectly contends they are the only claims presented in this action. (ECF No. 7 at 2;

23

ECF No. 7-1 at 6-7.) As discussed below, the ineffective assistance of counsel claims are

24

technically exhausted because it has been over three years since they could have been

25

timely presented to the state supreme court, and state court remedies no longer remain

26

available.

27

There are five factors to consider in determining whether amendment, which Federal

28

Rule of Civil Procedure 15(a) provides should be “freely” given “when justice so requires,”
22
16cv2287-BAS (JLB)

1

is appropriate, including: “bad faith, undue delay, prejudice to the opposing party, futility

2

of amendment, and whether the plaintiff has previously amended the complaint.” United

3

States v. Corninthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). Those factors and the

4

interests of justice favor amendment in this case. The proposed First Amended Petition

5

presents Petitioner’s claims in a manner more closely resembling how they were presented

6

to and adjudicated in the state courts than how they are presented in the original pro se

7

Petition, which has never been amended. There is no bad faith in seeking amendment,

8

which results from Petitioner retaining counsel. There is no undue delay because the

9

motion is timely. There is no futility, but in fact utility, in the more extensive briefing in

10

the amended petition. Finally, there is no prejudice to Respondent by amendment because

11

no new claims are raised.

12

The Court recommends granting the Motion to Amend, directing that the proposed

13

First Amended Petition become the operative pleading, and allowing the Answer to the pro

14

se Petition to remain in place as the Answer to the First Amended Petition.1

15

VI.

MERITS

16

For the following reasons, the Court finds habeas relief unavailable because: (a) the

17

state court adjudication of all claims, other than the ineffective assistance of counsel aspect

18

of claim one, is objectively reasonable within the meaning of 28 U.S.C. § 2254(d); (b) the

19
20
21
22
23
24
25
26
27
28

1

An alternate recommendation would be to strike the Answer as insufficient pursuant to
Fed.R.Civ.P. 12(f), grant the Motion to Amend as of right under Fed.R.Civ.P. 15(a)(1)(B),
and require Respondent to file a new Answer. Counsel for Petitioner could then be
provided an opportunity to correct the error in the proposed First Amended Petition
regarding exhaustion. The basis for striking the Answer is that Respondent, having
interpreted the Petition as raising only ineffective assistance of counsel claims, filed an
Answer the substance of which consists of one page arguing failure to exhaust and three
pages arguing, rather summarily, the lack of merit of Petitioner’s ineffective assistance of
counsel claims only. (ECF No. 7-1 at 7-10.) This course of action (striking Respondent’s
Answer) is not this Court’s first recommendation because, as detailed in this Report, it is
clear that Petitioner is not entitled to federal habeas relief on any of his claims. Thus,
requiring Petitioner to correct the First Amended Petition and requiring Respondent to file
an adequate Answer would result in unnecessary delay.
23
16cv2287-BAS (JLB)

1

alleged evidentiary errors are harmless; and (c) the ineffective assistance of counsel aspect

2

of claim one fails under a de novo review. Because claim one alleges cumulative error

3

based on the other claims, the Court will address it last. There are two aspects to each

4

claim, one challenging the admission of evidence, which has several subparts, and one

5

alleging ineffective assistance of counsel as to the manner in which trial counsel handled

6

the admission of that evidence.

7

A. Standard of Review

8

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

9

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

10

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

11

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

12

Court of the United States; or (2) resulted in a decision that was based on an unreasonable

13

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

14

28 U.S.C.A. § 2254(d) (West 2006).

15

A state court’s decision is “contrary to” clearly established Supreme Court precedent

16

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

17

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

18

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

19

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

20

court decision involves an “unreasonable application” of clearly established federal law,

21

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

22

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

23

is available under the unreasonable application clause “if, and only if, it is so obvious that

24

a clearly established rule applies to a given set of facts that there could be no ‘fairminded

25

disagreement’ on the question.” White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 1706-

26

07 (2014), quoting Harrington v. Richter, 562 U.S. 86, 103 (2011). In order to satisfy

27

§ 2254(d)(2), the factual findings upon which a state court’s adjudication of a claim rests

28

must be objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
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16cv2287-BAS (JLB)

1

Even if § 2254(d) is satisfied, a petitioner must show a federal constitutional

2

violation occurred in order to obtain relief. Fry v. Pliler, 551 U.S. 112, 119-22 (2007). A

3

petitioner must also show that any federal constitutional error is not harmless, unless it is

4

of the type included on the Supreme Court’s “short, purposely limited roster of structural

5

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

6

499 U.S. 279, 306 (1991) (recognizing “most constitutional errors can be harmless.”); but

7

see Holloway v. Arkansas, 435 U.S. 475, 489 (1978) (holding that constitutionally

8

ineffective assistance of counsel can never be treated as harmless error).

9

B.

10

Technical Exhaustion and Procedural Default of Ineffective Assistance of
Counsel Aspects of Claims One through Five

11

Each of the five claims presented in this action has an ineffective assistance of

12

counsel aspect. None of those claims were presented to the state supreme court in the

13

petition for review. Although Petitioner sought review of the appellate court opinion

14

affirming his conviction on direct appeal in case D064910, he did not seek review of the

15

appellate court habeas order in case D065927. (See Lodgment No. 8 at 1.) Although

16

Petitioner argued in the petition for review that he should be excused from operation of the

17

forfeiture rule as a result of constitutionally ineffective assistance of counsel (see id. at 20-

18

21, 24, 25-27), he presented his ineffective assistance of counsel claims only in his state

19

appellate court habeas petition (see Lodgment No. 6 at 6-11), and never filed a habeas

20

petition in the state supreme court. Counsel for Petitioner erroneously contends that

21

Petitioner raised the same claims in the petition for review as he did in his state appellate

22

court habeas petition (see ECF No. 28-2 at 13-14), and erroneously contends these claims

23

were exhausted when the state appellate court denied the habeas petition (ECF No. 21 at

24

1).

25

A state prisoner exhausts state court remedies by presenting the state supreme court

26

with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas

27

petition. Granberry v. Greer, 481 U.S. 129, 133-34 (1987). A claim is “fairly presented”

28

to a state’s highest court if it is presented in a manner which allows that court to have “the
25
16cv2287-BAS (JLB)

1

first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding.”

2

Picard v. Connor, 404 U.S. 270, 275-76 (1971).

3

Petitioner clearly exhausted his state court remedies as to the underlying evidentiary

4

claims by presenting them to the state appellate court on direct appeal and then to the state

5

supreme court in the petition for review of the appellate court’s opinion affirming his

6

conviction. However, the ineffective assistance of counsel claims were never presented to

7

the state supreme court. Sissac petitioned the California Supreme Court to review the

8

appellate court’s opinion on direct appeal, which found that, irrespective of any possible

9

forfeiture of claims two through four due to trial counsel’s failure to object, and despite the

10

forfeiture of claim five on that basis, the evidentiary errors in claims two through four were

11

harmless, the error in claim five did not prejudice Petitioner, and there was no cumulative

12

error. In the petition for review he argued: “So while [trial counsel’s] objections were

13

adequate to preserve the issue and further objections here would have been futile, assuming

14

arguendo a more specific objection was required, Sissac should be spared the effects of the

15

forfeiture rule under the doctrine of ineffective assistance of counsel.” (Lodgment No. 8

16

at 20.)

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

Although the California Supreme Court was asked to excuse any forfeiture of the claims

25

based on ineffective assistance of counsel, the petition for review does not contain

26

freestanding claims seeking to have the conviction reversed based on constitutionally

27

ineffective assistance of trial counsel. By arguing in the petition for review that any

28

forfeiture of the underlying evidentiary claims can be excused by ineffective assistance of
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1

trial counsel, Petitioner did not fairly present the California Supreme Court with an

2

opportunity to reach the merits of his claims that he received constitutionally ineffective

3

assistance of counsel. Thus, the Court finds that Petitioner did not present the ineffective

4

assistance of counsel claims to the state supreme court. Nevertheless, for the following

5

reasons, the Court finds that state court remedies are exhausted as to those claims

6

notwithstanding that failure because state court remedies no longer remain available.

7

When Petitioner initiated this action by handing his pro se Petition to prison officials

8

for mailing to the Court on August 31, 2016 (see ECF No. 1 at 26), and thereby

9

constructively filing it, nearly one and one-half years had elapsed after the state appellate

10

court denied habeas relief on March 3, 2015 (see Lodgment No. 7 at 1). Now that over

11

three years have passed since that denial, it is clear that the exhaustion requirement is

12

technically satisfied as to the claims that should have been but were not presented to the

13

state supreme court because there is now an absence of available state judicial remedies.

14

See Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) (“the district court correctly

15

concluded that [the] claims were nonetheless exhausted because ‘a return to state court for

16

exhaustion would be futile.’”); Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005)

17

(“A habeas petitioner who has defaulted his federal claims in state court meets the technical

18

requirements for exhaustion; there are no state remedies any longer ‘available’ to him.”),

19

quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991). Now that over three years have

20

passed since the state appellate court denied the habeas petition, a return to the state

21

supreme court to present the ineffective assistance of counsel claims would likely be met

22

with a state timeliness bar. See Walker v. Martin, 562 U.S. 307, 312-21 (2011) (holding

23

that California’s timeliness rule requiring that a petitioner must seek relief without

24

“substantial delay” as “measured from the time the petitioner or counsel knew, or should

25

reasonably have known, of the information offered in support of the claim and the legal

26

basis for the claim,” is clearly established and consistently applied); see also Harris v. Reed,

27

489 U.S. 255, 268 (O’Connor, J., concurring) (“[I]n determining whether a remedy for a

28

particular constitutional claim is ‘available,’ the federal courts are authorized, indeed
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1

required, to assess the likelihood that a state court will accord the habeas petitioner a

2

hearing on the merits of his claim.”)

3

Thus, the ineffective assistance of counsel claims are technically exhausted and

4

procedurally defaulted in this Court. See Coleman, 501 U.S. at 735 n.1 (1991) (holding

5

that a procedural default arises when “the court to which the petitioner would be required

6

to present his claims in order to meet the exhaustion requirement would now find the claims

7

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

8

state procedural rule which is independent of federal law, and which is clearly established

9

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

10

conclude that because the California untimeliness rule is not interwoven with federal law,

11

it is an independent state procedural ground.”); Walker, 562 U.S. at 312-21 (holding that

12

California’s timeliness rule is clearly established and consistently applied).

13

The Court may reach the merits of a procedurally defaulted claim if there is cause

14

for the failure to satisfy the timeliness rule and prejudice arising from the default, or a

15

fundamental miscarriage of justice arises from not reaching the merits of the claim.

16

Coleman, 501 U.S. at 750. The Court need not determine whether Petitioner could make

17

a showing sufficient to excuse the default because the ineffective assistance of counsel

18

claims are, as will be seen, insufficiently meritorious to provide for federal habeas relief,

19

and the Ninth Circuit has stated: “Procedural bar issues are not infrequently more complex

20

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

21

to proceed to the merits if the result will be the same.” Franklin v. Johnson, 290 F.3d 1223,

22

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

23

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

24

ordinarily should be.”)

25

For ineffective assistance of counsel to provide a basis for habeas relief, Petitioner

26

must show that counsel’s performance was deficient. Strickland v. Washington, 466 U.S.

27

668, 687 (1984). “This requires showing that counsel made errors so serious that counsel

28

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
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Id. Petitioner must also show that counsel’s deficient performance prejudiced the defense,

2

which requires showing that “counsel’s errors were so serious as to deprive [Petitioner] of

3

a fair trial, a trial whose result is reliable.” Id. To show prejudice, Petitioner need only

4

demonstrate a reasonable probability that the result of the proceeding would have been

5

different absent the error. Id. at 694. A reasonable probability is “a probability sufficient

6

to undermine confidence in the outcome.” Id. Petitioner must establish both deficient

7

performance and prejudice to establish ineffective assistance of counsel. Id. at 687.

8

“The standards created by Strickland and section 2254(d) are both ‘highly

9

deferential’ and when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S.

10

at 105. These standards are “difficult to meet” and “demand that state court decisions be

11

given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

12

Based upon the merits analysis set forth below as to each claim, the Court

13

recommends denying relief as to the ineffective assistance of counsel claims irrespective

14

of the failure to present them to the state supreme court.

15

C.

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Petitioner contends, as he did on direct appeal, that the text messages between

17

himself and Devin Patton were erroneously ruled admissible at a pretrial hearing as

18

adoptive admissions, that they were never properly authenticated and no foundation was

19

ever laid, and that defense counsel’s objection during trial that they were hearsay was

20

erroneously overruled, resulting in a violation of Petitioner’s federal constitutional rights

21

to due process, a fair trial, confrontation and cross-examination of witnesses, and a reliable

22

determination of guilt under the Fifth, Sixth, Eighth and Fourteenth Amendments. (ECF

23

No. 8-12 at 35-55.) The state appellate court denied the claim:

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Claim Two

Sissac contends the court prejudicially erred by admitting evidence of
text messages found on Patton’s cell phone that he and Patton exchanged with
each other after the shooting incident. In support of this contention, he asserts
that (1) the prosecution failed to provide an adequate foundation to
authenticate the text messages and, thus, failed to “satisfy the authentication
and reliability requirements of the business record or past recollection
recorded exceptions to the hearsay rule”; (2) “[e]ven if the prosecution laid an
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adequate foundation,” the “purported statements in the text messages” at issue
here “were not direct accusations that Sissac had shot Hamrah or had
committed any other specific crime” and, thus, the statements “were not
admissible under the ‘adoptive admission’ exception to the hearsay rule”; and
(3) the “probative value [of the statements] to the question of guilt or
innocence was minimal at best given their vague and ambiguous meaning,”
and, thus, the court should have excluded the evidence of the text messages
under Evidence Code section 352 because the probative value of the
statements in the text messages was “substantially outweighed by the risk of
undue prejudice and confusion of the issues in allowing the prosecution to rely
upon them as evidence of Sissac’s having effectively admitted that he shot
Hamrah.” Sissac’s contention and supporting assertions are unavailing
because, even if were we to assume the court erred in admitting the text
message evidence, any such error was harmless.
A. Background
1. Pretrial proceedings

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In its trial brief, the prosecution argued that Sissac’s out-of-court
statements to Patton were admissible as admissions of a party opponent. With
his own trial brief, Sissac brought a motion in limine seeking to exclude the
evidence of text messages between Patton and Sissac that Sheriff personnel
downloaded from Patton’s cell phone, arguing that the unauthenticated
messages lacked proper foundation and they were inadmissible hearsay
because they did not constitute admissions by a party opponent.
The prosecution opposed Sissac’s in limine motion, asserting that it
would provide a sufficient foundation at trial that would authenticate the text
messages and allow a jury to conclude that Sissac sent the messages:

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“Upon [his] arrest, [Sissac] was in possession of a cellular
telephone, the phone number for that phone is 619–799–3642.
Further, the People expect that Patton will testify as follows: (1)
That the number 619–799–3642 is the number he used to
communicate with [Sissac] via cell phone; (2) that number is
programmed into his phone with the name ‘Meech’ or ‘Meechie
Sissac’ . . . attached to it; (3) that he sent the text messages to that
number, prompting the responses at issue; (4) that the messages
were sent soon after the murder; and (5) . . . that he called [Sissac]
about six hours after the text message exchange and [Sissac]
answered the phone.”
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2
3
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5
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7
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At the hearing on the parties’ in limine motions, the court commented
that admission of the text messages between Patton and Sissac was subject to
a foundation being laid by the person who either sent or received the messages
in order to authenticate the messages. The court, however, noted that some of
the text messages between Sissac and Patton did not appear to have
evidentiary value. The prosecutor responded that the “string of texts” between
Sissac and Patton were relevant because it showed the chronology of events
and corroborated the testimony of witnesses that Sissac was with the group at
a party. The prosecution also argued that Sissac’s statements were admissible
as admissions of a party opponent. The court ruled that if a statement by
Sissac in a text message was an admission, “it’s admissible.”

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2. Trial evidence of text messages
During trial Patton testified that Sissac, whom he called “Meech,” was
one of his best friends, and Sissac’s contact information was in his (Patton’s)
cell phone under the name “Meech.” Patton testified that he was texting “back
and forth” with Sissac while he (Patton) was at the party on the night of the
murder. Patton also testified that he texted Sissac after the murder and “asked
him to do the right thing and turn himself in.” The following exchange
occurred between the prosecutor and Patton:
“[Prosecutor]: [W]hen you texted him, what did you text him if
you recall?
“[Patton]: I asked him to do the right thing. I asked him to man
up and I asked him to turn himself in because if he didn’t, things
were going to get really bad, things like this is what I was saying
to him, things like this don’t just pass over, this is a sin.

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“[Prosecutor]: Now, did you get any response from him at that
point?

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“[Patton]: No. [Sissac] didn’t text me back at that time.”
Defense counsel objected to this testimony, arguing the text messages
were inadmissible hearsay. The court overruled Sissac’s hearsay objection,
stating that Patton could testify about what he had said in the text messages.
Patton then testified that Sissac ultimately responded to his texts, but Patton
did not get the impression that Sissac was going to turn himself into the police.

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Patton also testified he later told his mother what had happened, and she called
the police.
Shortly thereafter, outside the presence of the jury, defense counsel
discussed People’s exhibit No. 117, which showed several text messages
between Sissac and Patton. Sissac’s counsel objected that the evidence was
hearsay even if Patton was on the witness stand. The trial court responded,
“It is hearsay in the classic sense that it’s an out of court statement, but
[Patton] can certainly testify as to what he said.”

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In the presence of the jury, the prosecutor showed Patton People’s
exhibit No. 116, which depicted a portion of the text messages he and Sissac
exchanged on the morning of the crime (Oct. 30, 2011). Patton read the text
messages. Patton testified that, in his first text message to Sissac “[he] said,
‘Meech, turn yourself in, Meech. This shit is not going to be on my heart.
This is crazy, Nigga. I’m so serious.’” The prosecutor then asked Patton, “So
you sent that [text message] that morning from your phone, correct?” Patton
answered, “Yes, sir.” The prosecutor then asked, “To [Sissac’s] phone?”
Patton replied, “Yes, sir.” The prosecutor then asked Patton what was Sissac’s
response, and Patton responded, “‘I’ma call you later.’”
The prosecutor then asked Patton, “[D]id you send [Sissac] another text
back a couple [of] minutes later?” Patton replied, “I did, sir.” The prosecutor
asked Patton what he said in that text, and Patton answered, “I said, ‘You hear
what I’m telling you? This is way back.’” The prosecutor asked what was
Sissac’s response, and Patton responded, “‘I know.’”
At that point a juror indicated he was unable to see the time of that text
indicated on the exhibit, and, at the court’s request, the prosecutor then listed
all the times of the texts. Defense counsel then stated, “Your Honor, I’m
going to object as to lack of foundation for the times.” In response, addressing
the prosecutor, the court stated, “Well, all right, then, ask the witness, ‘Are
those the times of those texts?’” The prosecutor complied and asked Patton,
“Are those the times of those texts?” Patton answered, “Yes, sir.” Following
up, the prosecutor asked, Patton, “When you think back, was it early morning,
a couple of hours after this incident?” Patton replied, “Yes, sir.”

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The prosecutor then showed Patton People’s exhibit No. 117, which
depicted a portion of the text messages exchanged between Patton and Sissac
later that evening. Patton confirmed that he sent a text to Sissac at 11:03 p.m.
that stated, “Nigga, this ain’t cool at all. I can’t sleep or nothing. Yo, I didn’t
even do shit. You need to be a man and own up, Meech.”
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16cv2287-BAS (JLB)

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Patton testified he sent another text to Sissac two minutes later that
stated, “You ain’t thinking about my life, my fam[ily], and this shit hurts like
fuck.” The prosecutor asked whether he got any response to that text, and
Patton answered, “No.”
The prosecutor then asked Patton whether he sent another text message
to Sissac at 11:13 p.m. that night, and Patton replied, “I did.” When asked
what he said to Sissac in the text, Patton replied, “‘Do the right thing, please,
yo.’” Patton testified that he got a response from Sissac at 12:00 a.m. that
stated, “You have to pray.” Patton also testified that he did not see that
response until 9:00 a.m. the next morning. The prosecutor asked Patton,
“How did you respond to that?” Patton answered, “I said, ‘No, you pray,
Nigga. That’s some coward ass shit. I got nothing else to say.’”
Later in the trial, Deputy Pearce testified that he downloaded the
contents of Patton’s phone, the phone number of which was 564–1296. One
of the contacts in Patton’s phone was Meech (Sissac) with a phone number of
619–799–3642. Deputy Pearce also testified that several phone calls between
Patton and Meech were listed in the incoming and outgoing call log of
Patton’s phone, and there were text messages to and from Meech. He further
testified that he downloaded the contents of Sissac’s phone that had a phone
number of 619–799–3642 and contained a contact for “D” which listed
Patton’s phone number.

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At the close of the prosecution’s case-in-chief, the court admitted
exhibit Nos. 116 and 117 into evidence without objection.

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B. Standard of Review
“(A)n appellate court applies the abuse of discretion standard of review
to any ruling by a trial court on the admissibility of evidence.” (People v.
Waidla (2000) 22 Cal.4th 690, 717.) We will not disturb the trial court’s
exercise of discretion except upon a showing that it “exercised its discretion
in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1,
9–10.)
“The ‘routine application of state evidentiary law does not implicate (a)
defendant’s constitutional rights.’” (People v. Hovarter (2008) 44 Cal.4th
983, 1010.) A trial court’s error under state law in the admission or exclusion
of evidence following an exercise of discretion is properly reviewed for
33
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prejudice under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
(People v. McNeal (2009) 46 Cal.4th 1183, 1203 (McNeal).) Under the
Watson harmless error test, the trial court’s judgment may be overturned only
if “it is reasonably probable that a result more favorable to the (defendant)
would have been reached in the absence of the error.” (Watson, at p. 836.)
C. Analysis
We need not and do not reach the merits of Sissac’s claim that the court
erroneously admitted evidence of text messages (discussed, ante) that he and
Patton exchanged with each other after the shooting incident because Sissac
has not shown and cannot demonstrate that any such error was prejudicial.
Assuming without deciding the court abused its discretion in admitting that
evidence, and applying the applicable Watson harmless error test (McNeal,
supra, 46 Cal.4th at p. 1203), we conclude—in light of the strong evidence of
Sissac’s guilt apart from the challenged text message evidence—that Sissac
has failed to meet his burden of establishing a reasonable probability he would
have achieved a more favorable result absent the admission of the text
message evidence.
As discussed more fully, ante, a video recording at the El Cajon trolley
station shortly before Sissac, Patton, Glenn, Roy, and a fifth male got into
Hamrah’s taxicab the morning Hamrah was shot showed Sissac speaking to
the taxicab drivers there. This evidence corroborated the testimony of
Othman, one of the cab drivers at that station, who testified that a “black
young man” {footnote: The record shows Sissac is an African-American who
was born in mid-1992 and was 19 years of age at the time of the shooting in
late October 2011} approached him with a $20 bill and begged him for a ride
at around 3:30 a.m.; that Othman took the money to Hamrah, who was at the
front of the cab line; and that the young Black male and four other Black males
got into Hamrah’s taxicab a few minutes later as shown in a video that was
played for Othman.
The prosecution presented evidence that Sissac managed to obtain a
$20 fare for the group to travel to Lemon Grove. {Footnote: Glenn testified
Sissac said he wanted to “[d]itch a cab,” which meant to get in the cab and not
pay because they had no money}. Glenn’s testimony established that he,
Sissac, Patton, Roy, and the other male got into Hamrah’s cab. Both Patton
and Glenn testified that Sissac got into the front seat while the other four sat
in the back seat.

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The prosecution also presented testimony—apart from the challenged
text message evidence—showing that Sissac made self-incriminating
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statements. For example, Patton testified that, after he heard the gunshot, he
heard someone say, “Meech [(Sissac)] shot the cab driver.” Patton then
testified that Glenn yelled at Sissac, “What the fuck did you do? Why the
fuck did you do that?” Patton testified that Sissac looked at Glenn with a
blank look on his face and said the cab driver had laughed or smiled at him.
Any reasonable jury could find that such a response is an implicit admission
demonstrating consciousness of guilt.
The trial record also shows that before the prosecutor presented to the
jury the contents of exhibits Nos. 116 and 117 depicting various text messages
found on Patton’s cell phone, Patton testified from his own recollection that
he texted Sissac later in the morning, after the shooting of Hamrah, and “asked
[Sissac] to do the right thing and turn himself in.”
Glenn’s testimony placed Sissac in the front passenger seat of
Hamrah’s taxicab prior to the shooting and established that Sissac admitted to
Glenn that he was the shooter. Specifically, Glenn testified that he, Sissac,
Patton, Roy, and the fifth male got into the taxicab. {Footnote: Although
Glenn did not identify Hamrah as the driver of the taxicab, an eyewitness–
Naseer Yousif, another taxicab driver–testified that he saw five Black
individuals get into Hamrah’s cab around 3:30 a.m. on October 30, 2011.}
Both Patton and Glenn testified that Sissac got into the front seat while the
other four sat in the back seat. Glenn testified that, after he heard the gunshot,
he asked Sissac, “What happened? What the fuck did you just do?” Glenn
further testified that he “jump[ed] in [Sissac’s] face” and told him, “You just
smoked the cab driver.” According to Glenn’s testimony, Sissac told him,
“Since I’m the one that did it, there’s no need to take everybody down with
me.” (Italics added.)
The trial record also shows that Sissac made self-incriminating
statements during Patton’s second November 1 pretext phone call to him,
which was recorded, transcribed, and played for the jury. Specifically, Patton
told Sissac, “To do some shit like that, like that’s not my Nigga right there.”
(Italics added.) Sissac responded, “Yeah, it wasn’t me. You know? You
gotta, you gotta, what you gotta see is that was the devil. . . .” (Italics added.)
Patton then asked Sissac, “[D]id you . . . [¶] . . . feel like the devil was in you?”
Sissac replied, “Yeah. It was, I just—just fuckin’ else that would do somethin’
like that. God wouldn’t, wouldn’t do nothing like that. He wouldn’t put that
in me. . . . [¶] . . . [¶] . . . That was the devil.” (Italics added.) Patton also told
Sissac, “[T]his isn’t [Sissac] that’s doin’ this. This is . . . somebody else inside
of this dude.” (Italics added.) Sissac responded, “Yeah. [¶ . . . [¶] . . . I mean
it’s sad to say this had to happen but it will turn me around, you know, so. . . .”
35
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1
2

(Italics added.) Although Sissac challenges the admissibility of this evidence,
for reasons we shall explain, post, the court did not err in admitting this
evidence.

3
4
5
6

Circumstantial forensic evidence also supported the jury’s finding that
Sissac fatally shot Hamrah. The prosecution presented evidence establishing
that the bullet recovered from Hamrah’s body was consistent with having been
fired from a .38–caliber weapon. Glenn testified he had given a .38–caliber
gun to Sissac the day before the shooting.

7
8
9
10
11
12

In sum, Sissac has failed to meet his burden of showing that any error
by the court in admitting evidence of the text messages between Patton and
Sissac was prejudicial.
(Lodgment No. 5, People v. Sissac, No. D064910, slip op. at 9-18) (square bracketed
changes in original).)
The United States Supreme Court has held that an inquiry into whether evidence was

13

“incorrectly admitted pursuant to California law . . . is no part of a federal court’s habeas

14

review of a state conviction.” Estelle v. McGuire, 502 U.S. 62, 67 (1991). “[I]t is not the

15
16
17
18
19
20
21
22
23
24
25
26
27
28

province of a federal habeas court to reexamine state-court determinations on state-law
questions.” Id. at 67-68. The Ninth Circuit, relying on McGuire, has noted that “[t]he
admission of evidence does not provide a basis for habeas relief unless it rendered the trial
fundamentally unfair in violation of due process.” Johnson v. Sublett, 63 F.3d 926, 930
(9th Cir. 1995); see also Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991)
(“While adherence to state evidentiary rules suggests that the trial was conducted in a
procedurally fair manner, it is certainly possible to have a fair trial even when state
standards are violated; conversely, state procedural and evidentiary rules may countenance
processes that do not comport with fundamental fairness. The issue for us, always, is
whether the state proceedings satisfied due process; the presence or absence of a state law
violation is largely beside the point.”) (internal citations omitted).
Nevertheless, because the United States Supreme Court has not yet found that the
admission of prejudicially irrelevant evidence violates due process, the state appellate court
opinion, which did not determine whether a federal due process violation occurred but
36
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1

merely found that any state law evidentiary error was harmless, cannot, with one proviso

2

addressed in footnote 2, be contrary to, or involve an unreasonable application of, clearly

3

established federal law. See Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009)

4

(observing that even though the petitioner received a fundamentally unfair trial as a result

5

of the introduction of prejudicially irrelevant evidence, a federal habeas court applying

6

AEDPA could not grant the writ on that basis because the Supreme Court “has not yet

7

made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes

8

a due process violation sufficient to warrant issuance of the writ.”)

9

Setting aside this fatal flaw in Petitioner’s position, Petitioner’s claim two would

10

also have to be denied because any error by the trial court was harmless. In assessing the

11

prejudicial impact of any federal constitutional error in a state-court criminal trial, a federal

12

court must apply the harmless error standard set forth in Brecht v. Abrahamson, 507 U.S.

13

619 (1993): whether the error “had a substantial and injurious effect or influence in

14

determining the jury’s verdict.” Brecht, 507 U.S. at 623. “Under this standard, an error is

15

harmless unless the ‘record review leaves the conscientious judge in grave doubt about the

16

likely effect of an error . . . (i.e.,) that, in the judge’s mind, the matter is so evenly balanced

17

that he feels himself in virtual equipoise as to the harmlessness of the error.’” Padilla v.

18

Terhune, 309 F.3d 614, 621-22 (9th Cir. 2002), quoting O’Neal v. McAninch, 513 U.S.

19

432, 435 (1995) and citing Kotteakos v. United States, 328 U.S. 750, 765 (1946) (“[I]f one

20

cannot say, with fair assurance, after pondering all that happened without stripping the

21

erroneous action from the whole, that the judgment was not substantially swayed by the

22

error, it is impossible to conclude that substantial rights were not affected.”)2

23
24
25
26
27
28

This is true even though the harmless error standard the California Court of Appeal
applied is not the appropriate standard for evaluating the harmlessness of constitutional
errors under United States Supreme Court law. The Court of Appeal applied the harmless
error standard established in People v. Watson, 46 Cal.2d 818, 836 (1956) (whether it was
“reasonably probable that a result more favorable to the (defendant) would have been
reached in the absence of the error”) instead of the “harmless beyond a reasonable doubt”
standard of Chapman v. California, 386 U.S. 18, 24 (1967) (holding that a federal
2

37
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1

For the following reasons, any federal due process error in the admission of the text

2

messages is harmless under Brecht. Patton testified that he heard a shot shortly after he

3

walked away from the taxicab, heard someone from their group, either Roy or the unknown

4

teenager, say that Petitioner had shot the driver, and then heard Petitioner respond to

5

Glenn’s question as to why he shot the driver by saying, with “a cold, blank look” on his

6

face, that the driver had “laughed at him or smiled at him.” (RT 442-44.) Glenn testified

7

that when he confronted Petitioner moments after the shooting, Petitioner said: “Since I’m

8

the one that did it, there’s no need to take everybody down with me.” (RT 653.) Glenn

9

also testified that moments after the shooting he saw Petitioner with a handgun of a caliber

10

that was consistent with the caliber of the ammunition that killed the driver, which Glenn

11

had given him the previous day. (RT 655-56, 965-66.) Glenn testified that two or three

12

days later Petitioner told Glenn he shot the driver because “the dude had laughed at him.”

13

(RT 654-55.) All of that testimony of Petitioner’s actual admissions overshadowed the

14

considerably weaker adoptive admissions in the text messages, which defense counsel was

15

able to argue were not admissions at all, and which the prosecutor argued were adoptive

16

admissions by virtue of Petitioner not denying he shot the driver.

17

Additional, strong evidence against Petitioner included the incriminating recorded

18

telephone calls with Petitioner in which, among other things, he claimed the devil had taken

19

hold of him and was responsible for his actions.

20

Petitioner supports his argument for the harmfulness of the admission of the text

21

messages by pointing out that Patton’s credibility was suspect because he knew how to

22
23
24
25
26
27
28

constitutional error can be considered harmless only if a court is “able to declare a belief
that it was harmless beyond a reasonable doubt.”) Regardless of which harmless error
standard the state court applied, however, this Court must use the Brecht standard to
determine if federal habeas relief is available. See Fry, 551 U.S. at 121-22 (“We hold that
in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in
a state-court criminal trial under the ‘substantial and injurious effect’ standard set forth in
Brecht, supra, whether or not the state appellate court recognized the error and reviewed it
for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set forth in
Chapman.”)
38
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1

play the system and had a financial interest in testifying, as the District Attorney was paying

2

him a monthly stipend for food and rent. The jury heard the evidence of this, as well as

3

the countervailing evidence that the money was authorized only after a positive threat

4

assessment, Patton moved away to protect his family from having to live with a snitch, and

5

he had been good friends with Petitioner but did what his conscience told him was right

6

even though it made him snitch on a friend he was as close to as family. Petitioner’s

7

contention that Glenn had an incentive to falsely identify him as the shooter because it was

8

Glenn who had supplied the gun, and because Glenn did not testify that Petitioner made

9

the admissions until after he was granted immunity with a virtual guarantee he would be

10

released from custody upon testifying, was also heard and considered by the jury.

11

Even taking into consideration the credibility challenges faced by the prosecution’s

12

witnesses, the evidence in the case was strong enough that the admission of the text

13

message evidence, even if erroneous, does not leave this Court with a “grave doubt” about

14

its likely effect on the jury’s verdict. Brecht, 507 U.S. at 623. Rather, the text messages

15

amounted to much weaker admissions of guilt than those contained in the testimony of

16

Patton and Glenn. In addition, Patton testified as to the contents of the texts, and they are

17

cumulative to his testimony. Further, as discussed above, there was strong additional

18

evidence of guilt admitted at trial.

19

The state court adjudication of this aspect of claim two alleging Petitioner’s federal

20

constitutional right to due process was violated because the text messages lacked an

21

adequate foundation, were unauthenticated, and constituted unreliable double hearsay, is

22

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

23

is not based on an unreasonable determination of the facts, and even if Petitioner could

24

make such a showing, the Court finds any error is harmless.

25

Petitioner next claims the admission of the text messages violated his rights under

26

the Confrontation Clause of the Sixth Amendment because: “The ultimate goal of the

27

Confrontation Clause, from which the hearsay rule originates, is to ensure reliability of the

28

evidence.” (ECF No. 28-2 at 51.) He contends the text messages are hearsay which the
39
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1

prosecutor never identified as falling into an exception, which were never authenticated,

2

for which no foundation was laid by an expert witness, and which contain statements too

3

vague to fit under the adoptive admissions exception. (Id. at 52-62.)

4

“The Sixth Amendment guarantees a criminal defendant the right ‘to be confronted

5

with the witnesses against him.’” United States v. Romo-Chavez, 681 F.3d 955, 961 (9th

6

Cir. 2012).

7

evidence. Davis v. Washington, 547 U.S. 813, 821 (2006). Testimonial statements are the

8

functional equivalent of court testimony, such as affidavits, depositions, confessions, or

9

“statements that were made under circumstances which would lead an objective witness

10

reasonably to believe that the statement would be available to use at a later trial.” Crawford

11

v. Washington, 541 U.S. 36, 51-52 (2004). Under that definition, the text messages are not

12

testimonial under Crawford. Even assuming they are, Patton testified at trial regarding the

13

content of the texts, and was subject to cross-examination. See Romo-Chavez, 681 F.3d at

14

961 (“All the Confrontation Clause requires is the ability to cross-examine the witness

15

about his faulty recollections.”), citing Crawford, 541 U.S. at 59 (“Finally, we reiterate

16

that, when the declarant appears for cross-examination at trial, the Confrontation Clause

17

places no constraints at all on the use of his prior testimonial statements.”)

However, the Confrontation Clause does not apply to non-testimonial

18

In addition, a Confrontation Clause violation is subject to harmless error review.

19

United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004). As discussed above, any error

20

is harmless because Petitioner has not shown that the text messages had a “substantial or

21

injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623.

22

The Court recommends denying relief as to this aspect of claim two.

23

Petitioner next contends that the introduction of the text messages deprived him of

24

a fair trial and a reliable determination of guilt under the Eighth Amendment. The Supreme

25

Court has stated that: “[T]he criminal trial has one well-defined purpose – to provide a fair

26

and reliable determination of guilt.” Smith v. Phillips, 455 U.S. 209, 225 (1982); see also

27

Herrera v. Collins, 506 U.S. 390, 434 (1993) (recognizing that “at least in capital cases, the

28

Eighth Amendment requires more than reliability in sentencing. It also mandates a reliable
40
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1

determination of guilt.”) As just discussed, and as the state court observed, the evidence

2

of the text messages were cumulative to Devin Patton’s testimony, and were overshadowed

3

by the evidence of Petitioner’s admissions to Patton and Glenn after the shooting, as well

4

as Glenn’s testimony that Petitioner was then in possession of a gun consistent with that

5

used to fire the fatal bullet. Petitioner has not established that the state court rejection of

6

this aspect of claim two alleging the deprivation of his right to a fair trial and a reliable

7

determination of guilt is contrary to, or involves an unreasonable application of, clearly

8

established federal law, or that it was based on an unreasonable determination of the facts.

9

Even if he could make such a showing, the Court would find any error harmless for the

10

reasons discussed above. See Brecht, 507 U.S. at 623.

11

Finally, with respect to the ineffective assistance of counsel aspect of claim two,

12

Petitioner states that although his trial counsel objected pre-trial to a lack of foundation as

13

to the times and dates of the texts, he did not re-raise these matters and failed to object at

14

trial: (1) to the prosecution’s failure to properly authenticate and lay a sufficient foundation

15

for the text messages; (2) that they constituted double hearsay which did not fall into a

16

hearsay exception on either level; and (3) that they were unduly prejudicial and confusing

17

to the jury even if otherwise admissible. (ECF No. 28-2 at 17-18, 67-70.) Petitioner

18

contends he was prejudiced by counsel’s errors because there is a reasonable probability

19

of a better outcome had the evidence been excluded. (Id. at 70.)

20

Respondent answers that this claim can be denied notwithstanding the failure to

21

present it to the state supreme court because the state appellate court’s determination on

22

direct appeal (that Petitioner was not prejudiced by counsel’s failure to object because in

23

light of the overwhelming evidence of guilt from the unchallenged evidence there is no

24

reasonable probability of a better result had the texts been excluded), is neither contrary to,

25

nor an unreasonable application of, clearly established federal law, and is not based on an

26

unreasonable determination of the facts. (ECF No. 7-1 at 8-9.)

27

This aspect of claim two was presented to the state appellate court in a habeas

28

petition. (Lodgment No. 6 at 6-7.) It was rejected on the basis that Petitioner did not show
41
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1

prejudice under Strickland because, “in light of the strong evidence of Sissac’s guilt apart

2

from the challenged text message evidence – Sissac has failed to meet his burden of

3

establishing a reasonable probability he would have achieved a more favorable result

4

absent the admission of the text message evidence.” (Lodgment No. 5, People v. Sissac,

5

No. D064910, slip op. at 15-16.)

6

As the appellate court correctly noted, and as was discussed above in the context of

7

harmlessness, the evidentiary value of the texts (adoptive admissions that Petitioner shot

8

the victim), paled in comparison to the more persuasive testimony of Patton and Glenn.

9

They both testified that Petitioner was in a position to shoot the driver (front passenger

10

seat) and that he admitted shooting the driver afterward. Glenn testified that Petitioner,

11

immediately after the shooting, and while in possession of a weapon with a caliber

12

consistent with the recovered bullet, announced that he was the only one responsible for

13

the shooting, and again admitted he was the shooter several days later. In addition, adoptive

14

admissions similar to those provided in the text messages were contained in the recorded

15

pretext call, and during deliberations the jury asked for and received a transcript of that call

16

but did not ask to view the text messages. Finally, Devin testified as to the content of the

17

texts, and their admission was cumulative to his testimony. It was objectively reasonable

18

for the state appellate court to find that, even if defense counsel was deficient in challenging

19

the admissibility of the evidence, there is no prejudice under Strickland because there does

20

not exist “a probability sufficient to undermine confidence in the outcome” as a result of

21

their admission. Strickland, 466 U.S. at 694; Richter, 562 U.S. at 105. The Court

22

recommends denying relief as to the ineffective assistance of counsel aspect of claim two

23

irrespective of Petitioner’s failure to present it to the state supreme court.

24

D.

25

Petitioner alleges in claim three that the prosecution gained an unfair advantage by

26

the admission of Detective Pearce’s testimony that Petitioner must have deleted the text

27

messages on his telephone, which the prosecutor argued showed a consciousness of guilt,

28

and by the evidence that the telephones belonging to Petitioner and Roy called each other

Claim Three

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1

in the days after the murder, which the prosecutor argued showed Roy lied when he said

2

he never discussed the incident with Petitioner. (ECF No. 28-1 at 19-20, 71-74.) He claims

3

that the evidence is foundationless, inadmissible, unreliable hearsay and its admission

4

violated his federal constitutional rights to due process, a fair trial, confrontation and cross-

5

examination of witnesses, and a reliable determination of guilt, and that his trial counsel’s

6

failure to object to its introduction amounted to ineffective assistance of counsel. (Id.)

7

Respondent answers only as to the ineffective assistance of counsel claim, arguing that the

8

state appellate court denial, on the basis Petitioner did not show prejudice as a result of

9

counsel’s failure to object in light of the unchallenged evidence of guilt, is neither contrary

10

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

11

based on an unreasonable determination of the facts. (ECF No. 7-1 at 8-9.)

12

Petitioner presented all aspects of this claim, other than the ineffective assistance of

13

counsel aspect, to the state supreme court in his petition for review. (Lodgment No. 8 at

14

17-21.) The Court will look through the silent denial by the California Supreme Court on

15

to the last reasoned state court opinion addressing these aspects of claim three, the appellate

16

court opinion on direct appeal. Ylst, 501 U.S. at 803-06.

17

Petitioner claimed on direct appeal that Detective Pearce’s opinion that Petitioner

18

deleted the text messages was based on evidence produced by Pearce in preparing for trial,

19

but it is possible an expert examination of Petitioner’s telephone could reveal an innocent

20

technical reason why the text messages were absent from his telephone. (ECF No. 8-12 at

21

60-63.) He also argued that the evidence that Roy called Petitioner in the days after the

22

shooting suffered from the same admissibility problems as the text messages, and

23

hampered his ability to challenge the credibility of Patton and Glenn with respect to their

24

testimony to Petitioner’s admissions immediately after the shooting because Roy testified

25

that no one said anything after the shooting. (Id. at 63-65.) The appellate court denied the

26

claim:

27
28

In a related and somewhat convoluted claim, Sissac asserts that “[t]he
prejudicially erroneous admission of the various foundationless, inherently
unreliable purported records of cell phone activity led to additional
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2
3
4
5
6
7
8
9
10
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12
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25
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27
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prejudicially erroneous errors; namely, the admission of the evidence that
[(1)] Sissac had supposedly ‘deleted’ the purported text messages between
him[self] and [Patton],” which the prosecution “cite[d] . . . as showing
consciousness of guilt”; and (2) “that Sissac and Roy had phone contacts after
the incident [citations] contrary to Roy’s testimony that they did not
communicate after the incident [citations].” In his reply brief, Sissac asserts
that “the concern is . . . that the evidence was introduced to prove [he]
‘deleted’ text messages to hide his involvement in the shooting, and that
Roy—whose credibility was crucial to the defense since his testimony refuted
the notion of Sissac’s guilt—was not a believable witness.” This, he
maintains, “is precisely how the prosecution argued this evidence.” Sissac
also asserts that “[t]he erroneous admission of these extrapolations and
conclusions drawn directly from the erroneously admitted records of cell
phone activity could only serve to exacerbate the violation of Sissac’s
fundamental constitutional rights to due process, a fair trial, to confront and
cross-examine adverse witnesses, and to a reliable determination of guilt.”
These assertions are unavailing.
A. Background
Deputy Sheriff Daniel Pearce, a member of the computer crimes task
force, performed cell phone data extraction using a tool called “Celebrite” on
several cell phones involved in this matter. Deputy Pearce testified that on
October 31, 2011, he downloaded the contents of Patton’s cell phone, which
had a phone number of 564-1296. Without a defense objection, he testified
that one of the contacts in Patton’s phone was Meech (Sissac) with a phone
number of 619-799-3642. Several phone calls between Patton and Meech
were listed in the incoming and outgoing call log of Patton’s phone. There
also were text messages to and from Meech.
Deputy Pearce also testified that on November 15, 2011, he
downloaded the contents of Sissac’s cell phone which had a phone number of
619–799–3642. Sissac’s phone contained contacts for “Little Ant” (Roy),
“D” (Patton), and “Jodi” (Glenn). He also testified there were several text
messages to and from Sissac on Patton’s phone, and these text messages were
not on Sissac’s phone. The prosecutor then asked Deputy Pearce, “Based on
that, what do you attribute that to?” Deputy Pearce replied: “There’s only two
reasons that text messages really wouldn’t be on the phone. One is you have
your phone turned off, you didn’t use it. In this case, we know it’s not true
because we have corresponding text messages on Mr. Patton’s phone. The
other reason would be that text messages were deleted off the phone.” (Italics
added.)
44
16cv2287-BAS (JLB)

1
2

During his closing argument, the prosecutor argued that Sissac “hid the
evidence when we’re talking about the text messages.”

3
4
5
6
7
8
9
10

B. Analysis
We reach the merits of Sissac’s claim of prejudicial error
notwithstanding the Attorney General’s assertion that Sissac “has forfeited his
claim that the phone records were erroneously admitted” because “[d]efense
counsel did not object to Deputy Pearce’s testimony regarding the data
extraction he conducted from the various cell phones.”
With regard to the merits of his claim, Sissac asserts that, apart from
the forfeiture issue raised by the Attorney General, “[t]he only real issue[]
here” is “whether the erroneous admission of this evidence was prejudicial.”

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

As we did with respect to Sissac’s preceding claim that the court
erroneously admitted evidence of text messages, we shall assume without
deciding that the court abused its discretion in admitting the additional
evidence he challenges here and apply the applicable Watson harmless error
test. (McNeal, supra, 46 Cal.4th at p. 1203.) We conclude—in light of the
strong evidence of Sissac’s guilt apart from both the challenged text message
evidence and the evidence challenged here—that Sissac has failed to meet his
burden of establishing a reasonable probability he would have achieved a
more favorable result absent the assumed evidentiary error. In claiming in his
opening brief that he suffered prejudice that “served to exacerbate the
violation of [his] fundamental constitutional rights,” Sissac largely disregards
the plethora of strong evidence of his guilt, discussed, ante, which we
incorporate by reference here.
In his reply brief, Sissac asserts that “[t]he testimony of [Patton] and
Glenn—the only witnesses who claimed to have seen or heard [him]
incriminate himself in the shooting—was rife with obvious bias and reliability
problems.” Sissac further asserts that, “[b]esides this testimony of dubious
weight and credibility, the only other potential evidence [of his guilt],” other
than Deputy Pearce’s testimony that he (Sissac) deleted the text messages he
and Patton exchanged after the shooting, was the evidence of Patton’s pretext
call to him. These assertions are unavailing because it is the exclusive
province of the jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a credibility determination depends (People v.
Manibusan (2013) 58 Cal.4th 40, 87), and—again, as we shall explain, post
—the court properly admitted strong evidence that Sissac made self45
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5
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7
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incriminating statements during Patton’s second November 1 pretext phone
call to him.
(Lodgment No. 5, People v. Sissac, No. D064910, slip op. at 19-22) (square bracketed
changes in original).)
For the same reasons discussed above in claim two, the state court adjudication of
Petitioner’s claim that his federal due process rights were violated by the admission of this
evidence cannot be contrary to or involve an unreasonable application of clearly
established federal law because the Supreme Court has not ruled that the admission of
overly prejudicial or irrelevant evidence violates due process. Holley, 568 F.3d at 1101.
In addition, even if Petitioner could satisfy the provisions of 28 U.S.C. § 2254(d), or they
did not apply, he can obtain federal habeas relief only if he shows the alleged error in the
introduction of the evidence had a “substantial or injurious effect or influence in
determining the jury’s verdict.” Brecht, 507 U.S. at 623, quoting Kotteakos, 328 U.S. at
765 (“[I]f one cannot say, with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment was not substantially
swayed by the error, it is impossible to conclude that substantial rights were not affected.”)
Detective Pearce testified that he found the text messages which Patton testified he
exchanged with Petitioner only on Patton’s telephone and not on Petitioner’s, leading him
to conclude Petitioner must have deleted them. (RT 888-89.) The prosecutor argued to
the jury in closing that: “He flees from the scene. He hid the evidence. He hid the evidence
when we’re talking about the text messages. He got rid of the gun. He hid the sweatshirt
that he had on. It wasn’t at his residence.” (RT 1261.) The prosecutor also commented
on: “The attempt by the defendant to hide the evidence. He discarded the sweatshirt, the
gun, deleted his text messages.” (RT 1368.) Although the prosecutor argued Petitioner
showed a consciousness of guilt by, among other things, deleting the texts, other evidence
showed an even stronger consciousness of guilt, such as his statements to Glenn and Patton
immediately after the shooting that he was solely responsible for the shooting, and his
statements to Patton during the pretext call that it was the devil inside him that made him

46
16cv2287-BAS (JLB)

1

shoot. That is in addition to his admission to Glenn immediately after the shooting and

2

again weeks later that he was the shooter, and his being in possession of a firearm of a

3

caliber consistent with the bullet used to kill the victim seconds after the victim was shot.

4

The Court finds that the state court adjudication of this aspect of claim three alleging a

5

federal due process violation from Detective Pearce’s testimony that Petitioner must have

6

deleted the texts, is objectively reasonable within the meaning of 28 U.S.C. § 2254(d), and

7

even if Petitioner could satisfy that standard, any error is harmless. Brecht, 507 U.S. at

8

623; Kotteakos, 328 U.S. at 765.

9

Petitioner also alleges his federal constitutional right to due process was violated by

10

the admission of evidence that the telephones belonging to Petitioner and Roy called each

11

other numerous times in the days after the murder, which the prosecutor used to argue Roy

12

lied when he denied discussing the incident with Petitioner. Patton testified that, as he ran

13

from the taxicab, Roy and the unknown male were right behind him, Roy was crying and

14

frantic, and when Petitioner and Glenn caught up they all discussed what had happened.

15

(RT 441-44.) Glenn testified that when all five of them met behind the Home Depot he

16

discussed the shooting with Petitioner, that Patton was hysterical at that point, and that Roy

17

“was crying. ‘I got kids. I can’t do this, whoopty-whoop. I can’t be a part of this.’” (RT

18

652-53.) Roy testified that all five men were together immediately after the shooting but

19

no one in the group said anything about what happened, and in fact “didn’t talk about

20

nothing,” even though Roy said they stayed together on the porch of his house behind the

21

Home Depot for twenty or thirty minutes after the shooting. (RT 789, 792-93, 813, 820-

22

21.) He denied ever speaking to Petitioner about the events that night. (RT 793.) When

23

confronted with the evidence that his telephone contacted Petitioner’s telephone in the next

24

couple of days, he denied speaking to Petitioner and said his sister may have used his

25

telephone to call Petitioner. (RT 810-12, 830-35.)

26

Petitioner has not established that challenging Roy’s testimony with the cell phone

27

evidence had a substantial and injurious effect or influence on the jury’s verdict. The jury

28

was allowed to view Roy’s testimony in the context of the evidence presented at trial
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regarding the stigma attached to testifying against friends and family, and the fact that Roy

2

is Petitioner’s cousin. If, as Petitioner contends, Roy was an otherwise credible witness,

3

the jury could have credited his explanation that his sister used his telephone to call

4

Petitioner. Even so, Roy’s testimony confirmed Petitioner was likely the shooter, as he

5

testified consistently with Patton and Glenn that he heard the gunshot while he ran from

6

the taxicab ahead of Petitioner. The Court is not in grave doubt that the admission of

7

evidence that Roy’s telephone called Petitioner’s telephone in the days after the murder

8

had a substantial and injurious effect or influence on the jury’s verdict. Thus, even if it

9

was admitted without a proper foundation or authentication, and assuming the error

10

amounted to a violation of federal due process, it is harmless. Brecht, 507 U.S. at 623;

11

Kotteakos, 328 U.S. at 765.

12

Petitioner next contends the failure to authenticate and lay a foundation for that

13

evidence interfered with his Sixth Amendment right to confront and cross-examine

14

Detective Pearce and Roy. The state court’s rejection of the Confrontation Clause aspect

15

of this claim could not be contrary to or involve an unreasonable application of clearly

16

established federal law because Roy and Detective Pearce both testified at trial and were

17

cross-examined. See Romo-Chavez, 681 F.3d at 961 (“All the Confrontation Clause

18

requires is the ability to cross-examine the witness about his faulty recollections.”), citing

19

Crawford, 541 U.S. at 59 (“Finally, we reiterate that, when the declarant appears for cross-

20

examination at trial, the Confrontation Clause places no constraints at all on the use of his

21

prior testimonial statements.”)

22

adjudication is based on an unreasonable determination of the facts. Thus, the state court

23

adjudication is objectively reasonable, and even if Petitioner could show otherwise, any

24

error is harmless for the reasons discussed above.

Neither has Petitioner shown that the state court

25

Petitioner’s contention that his Eighth Amendment rights to a fair trial and a reliable

26

determination of guilt were violated by Detective Pearce’s testimony and the evidence that

27

Roy’s telephone called Petitioner’s telephone is likewise without merit. Petitioner has not

28

established that the state court rejection of this aspect of claim three is contrary to, or
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1

involves an unreasonable application of, clearly established federal law, or that it was based

2

on an unreasonable determination of the facts. Even if he could make such a showing, any

3

error would be harmless for the reasons discussed above.

4

The Court next turns to the ineffective assistance of counsel aspect of claim three

5

which was presented to the state appellate court in a habeas petition. (Lodgment No. 6 at

6

7-8.) It was denied in an order which stated: “For reasons explained in our opinion in the

7

direct appeal, we reject Sissac’s claims.” (Lodgment No. 7, In re Sissac, No. D065927,

8

order at 1.)

9

The state court adjudication of the ineffective assistance of counsel aspect of claim

10

three is also objectively reasonable. As quoted above, the appellate court on direct appeal:

11

“conclude[d]–in light of the strong evidence of Sissac’s guilt apart from both the

12

challenged text message evidence and the evidence challenged here–that Sissac has failed

13

to meet his burden of establishing a reasonable probability he would have achieved a more

14

favorable result absent the assumed evidentiary error.” (Lodgment No. 5, People v. Sissac,

15

No. D064910, slip op. at 21.)

16

To the extent the jury drew an inference of consciousness of guilt from the absence

17

of the texts on Petitioner’s telephone, that evidence was cumulative to other, stronger

18

evidence of consciousness of guilt, including, for example, testimony by Glenn and Patton

19

that Petitioner agreed to turn himself in and take full responsibility for the shooting, and

20

the evidence that Glenn had given Petitioner a gun of a caliber consistent with the bullet

21

with which the victim was killed and Petitioner was holding that gun moments after the

22

shooting. There does not exist “a probability sufficient to undermine confidence in the

23

outcome” as a result of the admission of this evidence. Strickland, 466 U.S. at 694. The

24

state court adjudication of the ineffective assistance of counsel aspect of claim three is

25

therefore neither contrary to, nor does it involve an unreasonable application of, clearly

26

established federal law, and it is not based on an unreasonable determination of the facts

27

in light of the evidence presented in the state court proceedings.

28

///
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E.

2

Petitioner alleges in claim four that the admission of the pretext call from Patton

3

violated his federal constitutional rights to due process, a fair trial, a reliable determination

4

of guilt, and confrontation and cross-examination of witnesses, because his statements

5

during the call were vague and ambiguous as to any admission of guilt, and that he received

6

ineffective assistance of counsel by trial counsel’s concession it contained adoptive

7

admissions. (ECF No. 28-1 at 20-21, 75-81.) Respondent answers only as to the state

8

appellate court denial of the ineffective assistance of counsel aspect of this claim, arguing

9

that the denial of the claim, on the basis that Petitioner did not show prejudice as a result

10

of counsel’s failure to object because the unchallenged evidence overwhelmingly

11

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

12

established federal law, and is not based on an unreasonable determination of the facts in

13

light of the evidence presented in the state court proceedings. (ECF No. 7-1 at 8-9.)

Claim Four

14

Petitioner presented all aspects of this claim, other than the ineffective assistance of

15

counsel aspect, to the state supreme court in the petition for review after presenting the

16

claim to the state appellate court on direct appeal. (Lodgment No. 3 at 56-63.) The Court

17

will look through the silent denial by the state supreme court and apply the provisions of

18

28 U.S.C. § 2254(d) to the appellate court opinion on direct appeal with respect to the

19

evidentiary aspects of claim four. Ylst, 501 U.S. at 803-06.

20

Petitioner alleged on direct appeal that because the pretext call did not contain

21

adoptive admissions “it was fundamentally unfair to allow the prosecution to present this

22

inherently unreliable hearsay evidence as a proxy for the jury to draw such inferences and

23

thereby artificially bolster the prosecution’s theory of the case that Sissac was his own

24

worst witness against himself.” (ECF No. 8-12 at 64-70.) The appellate court stated:

25
26
27
28

Sissac next contends the court violated his fundamental constitutional
rights to due process, to a fair trial, to confront and cross-examine adverse
witnesses, and to a reliable determination of guilt by erroneously admitting
evidence of the pretext call that Patton made to him on November 1, 2011,
following the killing of Hamrah. This contention is unavailing.

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8
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A. Background
Prior to trial, in its trial brief, the prosecution argued that Sissac’s
statements to Patton in two pretext phone calls and a jail phone call were
admissible as admissions of a party opponent pursuant to section 1220.
During a pretrial hearing, the prosecution explained that Patton made two
pretext phone calls to Sissac, one at 5:45 p.m. on November 1, 2011, and
another at 10:42 p.m. that same night. The prosecution also sought admission
of a jail call on November 2, 2011, between Sissac and his mother. Defense
counsel argued the statements in the pretext call were “not true admissions,”
but conceded they were statements made by a party opponent.
The court indicated it would review the transcripts of the phone calls
before it determined whether they were admissible. The court later indicated
its tentative ruling was that the first pretext phone call and the jail phone call
were inadmissible, but the second pretext phone call “has some incriminating
language in it and would therefore be admissible.” The prosecutor requested
that the court listen to the actual recordings of the phone calls before making
its rulings. When the trial court asked defense counsel whether he opposed
admission of the second pretext phone call, defense counsel responded, “I’m
conceding that the [second pretext phone call] has admissions, Your Honor,
what could be deemed admissions.”
The next day, outside the presence of the jury, the prosecution played
the first pretext phone call and the jail phone call for the court. After argument
by both counsel, the trial court reiterated its earlier ruling and excluded the
first pretext phone call and the jail call, stating that those conversations “at
best, are vague, speculative, they’re ambiguous. There’s no specific adoptive
admission and even if there is, it’s, at most, confusing to the jury. Those
conversations are excluded.” The court also reaffirmed its earlier ruling
allowing the prosecution to present evidence of the second pretext phone call
that Patton made to Sissac.

23

1. Admission of Sissac's statements during the second pretext phone call

24

At trial, the recording of Patton’s second pretext phone call to Sissac,
which started at 10:42 p.m. November 1, 2011, was played for the jury.
Copies of the transcript of that phone call were handed out to the jurors.
During that phone call, Patton told Sissac, “[I]t’s . . . just fuckin’ a stressful
situation that I’m in right now,” and Sissac replied that it “ain’t your situation
to stress” and that “you just got to let it go.” Patton asked, “[W]hat does God
say to you, you know, like, what is this doin’ for you?” Sissac eventually

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28

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replied, “You know all sin is forgiven.” Patton indicated that he might need
to talk to Sissac’s pastor, and stated that “I need to fuckin’ get an appointment
with his ass” because “he got you all kinds of calm.” Responding that he had
talked to his pastor, Sissac offered to take Patton to see him.
Sissac also told Patton during the pretext call that “everything happens
for a reason. You know, this is just an eye opener. . . .” Shortly thereafter
Patton said, “I don’t want to look at you in a different light like that,” and “that
night, . . . I just didn’t see Meech.” {Footnote: At trial Patton testified he knew
Sissac as Meech.} Patton added, “To do some shit like that, like that’s not my
Nigga right there.” (Italics added.) Sissac responded, “Yeah, it wasn’t me.
You know? You gotta, you gotta, what you gotta see is that was the devil.
. . .” (Italics added.) Patton then asked Sissac, “[D]id you . . . feel like the
devil was in you?” Sissac replied, “Yeah. It was, I just—just fuckin’ else that
would do somethin’ like that. God wouldn’t, wouldn’t do nothing like that.
He wouldn’t put that in me. [¶] . . . [¶] . . . That was the devil.” (Italics added.)
Patton also told Sissac, “[T]his isn’t [Sissac] that’s doin’ this. This is . . .
somebody else inside of this dude.” (Italics added.) Sissac responded, “Yeah.
[¶ . . . [¶] . . . I mean it’s sad to say this had to happen but it will turn me
around, you know, so . . . .” (Italics added.)
Later during that recorded phone conversation, Patton asked Sissac
whether he got “any money out of it.” Sissac responded, “No, I didn’t.”
Patton told Sissac that the “devil makes you do crazy things,” and Sissac
replied, “He does, and that’s what you need to know.” Patton said, “I don’t
never want to hear no shit like that. I don’t know who the fuck you was that
night dog but don’t ever be that person again. You feel me? That’s not you
. . . .” (Italics added.) Sissac responded, “Yeah.” (Italics added.) The phone
call ended soon thereafter.
2. Jury instructions
The court instructed the jury regarding adoptive admissions under
CALCRlM No. 357:
“If you conclude that someone made a statement outside of court
that accused the defendant of the crime or tended to connect the
defendant with the commission of the crime and the defendant
did not deny it, you must decide whether each of the following is
true: [¶] 1. The statement was made to the defendant or made in
his presence; [¶] 2. The defendant heard and understood the
statement; [¶] 3. The defendant would, under all the
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circumstances, naturally have denied the statement if he thought
it was not true; [¶] AND [¶] 4. The defendant could have denied
it but did not. [¶] If you decide that all of these requirements have
been met, you may conclude that the defendant admitted the
statement was true. [¶] If you decide that any of these
requirements has not been met, you must not consider either the
statement or the defendant’s response for any purpose.”
The court also instructed under CALCRlM No. 358 regarding evidence
of a defendant’s statements:
“You have heard evidence that the defendant made oral or
written statements before the trial. You must decide whether the
defendant made any of these statements, in whole or in part. If
you decide that the defendant made such statements, consider the
statements, along with all the other evidence in reaching your
verdict. It is up to you to decide how much importance to give
to the statements. [¶] Consider with caution any statement made
by the defendant tending to show his guilt unless the statement
was written or otherwise recorded.”
B. Adoptive Admission Exception to the Hearsay Rule (§ 1221)
Section 1221 codifies the adoptive admission exception to the hearsay
rule and provides: “Evidence of a statement offered against a party is not
made inadmissible by the hearsay rule if the statement is one of which the
party, with knowledge of the content thereof, has by words or other conduct
manifested his adoption or his belief in its truth.”
The California Supreme Court has explained that, “[u]nder [section
1221], ‘[i]f a person is accused of having committed a crime, under
circumstances which fairly afford him an opportunity to hear, understand, and
to reply, and which do not lend themselves to an inference that he was relying
on the right of silence guaranteed by the Fifth Amendment to the United States
Constitution, and he fails to speak, or he makes an evasive or equivocal reply,
both the accusatory statement and the fact of silence or equivocation may be
offered as an implied or adoptive admission of guilt.’ [Citations.] ‘For the
adoptive admission exception to apply, . . . a direct accusation in so many
words is not essential.’ [Citation.] ‘When a person makes a statement in the
presence of a party to an action under circumstances that would normally call
for a response if the statement were untrue, the statement is admissible for the
limited purpose of showing the party’s reaction to it. [Citations.] His silence,
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1
2

evasion, or equivocation may be considered as a tacit admission of the
statements made in his presence.’” (People v. Riel (2000) 22 Cal.4th 1153,
1189.)

3
4
5
6

C. Analysis
We reach the merits of Sissac’s claim of prejudicial error
notwithstanding the Attorney General’s assertion that Sissac “has forfeited the
instant claim.”

7
8
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Sissac contends his statements to Patton during the recorded pretext
phone call were not adoptive admissions of guilt within the meaning of the
adoptive admission exception to the hearsay rule because “they did not
express any sort of adoptive admission of guilt and, to the extent one might
be able to glean such an inference from them, the vagueness and ambiguity of
the statements ultimately rendered them too confusing to be admitted for this
purpose.” In support of this contention, he asserts that the statements he and
Patton made during the call “vaguely refer to ‘this’ or ‘that’ in describing the
topic of [his] conversation[] [with Patton], leaving it simply unclear as to just
what (he and Patton) were discussing.”
Sissac’s claims that his and Patton’s references to “this” and “that” in
describing the topic of their conversation rendered his statements “too
confusing” to be admitted as adoptive admissions and that his statements to
Patton “did not express any sort of adoptive admission of guilt,” are
unavailing. The evidence shows that Hamrah was shot during night time in
the early morning hours of October 30, 2011, and Patton made his pretext call
to Sissac at 10:42 p.m. at the direction of the police two nights later on
November 1. During their phone conversation, Patton, in a statement
accusing Sissac (whom he knew as Meech) of wrongdoing that night, said,
“[T]hat night, I just didn’t see Meech,” and added, “To do some shit like that,
like that’s not, that’s not my Nigga right there.” Any rational jury could infer
from Patton’s accusatory statement, in light other properly admitted evidence
(discussed, ante ) showing that Sissac shot Hamrah, that Patton was accusing
Sissac of shooting Hamrah during the night of October 29–30, and that Sissac
would have denied the accusation if it were not true. A rational jury also could
infer that Sissac’s response to Patton’s accusation was an implied or adoptive
admission of guilt. Sissac responded to the accusation by telling Patton,
“Yeah, it wasn’t me. You know? You gotta, you gotta, what you gotta see is
that was the devil . . . .” A rational jury could infer from this response that
Sissac was expressing consciousness of guilt by impliedly admitting he
committed the act, but “the devil” made him do it. We conclude that the
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evidence of the statements made by Sissac and Patton during the pretext call
was relevant to the central factual issue of whether Sissac shot Hamrah, and
that the court properly found that evidence was admissible under the adoptive
admission exception to the hearsay rule codified in section 1221.
(Lodgment No. 5, People v. Sissac, No. D064910, slip op. at 22-28) (square bracketed
changes in original).)
The state court’s adjudication of the Confrontation Clause aspect of this claim is
neither contrary to, nor an unreasonable application of, clearly established federal law.
Petitioner has cited no authority for the proposition that his own statements on the pretext
call are testimonial within the meaning of the Sixth Amendment or otherwise implicate the
Confrontation Clause. See Crawford, 541 U.S. at 51-52 (indicating that testimonial
statements are the functional equivalent of court testimony, such as affidavits, depositions,
confessions, or “statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available to use at a
later trial.”); United States v. Crowe, 563 F.3d 969, 976 n.16 (9th Cir. 2009) (“[D]efendant
does not explain how her own out-of-court statements raise hearsay or Confrontation

16

Clause concerns, . . . and at trial, her counsel could – and did – cross-examine the [other

17

party to the conversation].”) Again, as with claims two and three, even if Petitioner can

18

demonstrate that the introduction of the pretext call violated his right to federal due process,

19

he can prevail here only if its introduction had a “substantial or injurious effect or influence

20

in determining the jury’s verdict.” Brecht, 507 U.S. at 623. Petitioner’s failure to deny

21
22
23
24
25

during the pretext call that he shot the taxicab driver was an adoptive admission the
evidentiary weight of which was far exceeded by the direct admissions he made to Patton
and Glenn. As the state court observed, that evidence, coupled with Glenn’s testimony that
seconds after the shooting Petitioner was in possession of a gun of a caliber consistent with
the bullet which killed the victim, overwhelmed any adoptive admission in the pretext call.

26

After considering “all that happened without stripping the erroneous action from the

27

whole,” the Court is not left with a grave doubt that the admission of the pretext call had a

28

substantial and injurious effect or influence on the jury’s verdict. Kotteakos, 328 U.S. at
55
16cv2287-BAS (JLB)

1

765; Brecht, 507 U.S. at 623. The Court recommends habeas relief be denied as to the due

2

process aspect of claim four.

3

Petitioner’s contention that his Eighth Amendment right to a reliable determination

4

of guilt was violated by the pretext call is also without merit. Petitioner has not established

5

that the state court adjudication is contrary to, or involves an unreasonable application of,

6

clearly established federal law, or is based on an unreasonable determination of the facts.

7

Even if he could make such a showing, any error would be harmless for the reasons

8

discussed above.

9

Finally, with respect to Petitioner’s contention that counsel was deficient in

10

conceding that the pretext call contained adoptive admissions (ECF No. 28-2 at 20), this

11

claim was presented to the state appellate court in a habeas petition. (Lodgment No. 6 at

12

8-9.) It was denied in an order which stated: “For reasons explained in our opinion in the

13

direct appeal, we reject Sissac’s claims.” (Lodgment No. 7, In re Sissac, No. D065927,

14

order at 1.)

15

At a pretrial hearing Petitioner’s trial counsel first argued that the statements in the

16

pretext call “are not true admissions.” (RT 46.) After the trial court ruled it contained

17

“some incriminating language” (RT 79), defense counsel stated: “I’m conceding [it] has

18

admissions, your honor, what could be deemed admissions.” (RT 82.) Defense counsel

19

argued to the jury that Petitioner’s statements in the pretext call were reasonable responses

20

to Patton’s vague attempts to get him to confess, which could reasonably be interpreted

21

through the lens of the presumption of innocence as not containing admissions at all, but

22

rather expressing a heartfelt regret for being present when the driver was killed, not for

23

pulling the trigger; and counsel pointed out that, although the call was scripted by the

24

police, Petitioner was never asked “the money question”: if or why he shot the taxicab

25

driver. (RT 1331-33.) The prosecutor began his rebuttal closing argument by playing the

26

recording of the pretext call and inviting the jury “to listen to what are adoptive admissions,

27

where anybody in their right mind, if somebody was saying that to them would jump up

28

and say ‘what are you talking about? I had nothing to do with this.’ But that’s not what was
56
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1

said. To characterize it differently is just wrong.” (RT 1351-52.) About midway through

2

their deliberations the jury asked for and was given a transcript of the pretext call. (CT

3

344.)

4

The state appellate court denied the ineffective assistance of counsel aspect of this

5

claim in an order which stated: “For reasons explained in our opinion in the direct appeal,

6

we reject Sissac’s claims.” (Lodgment No. 7, In re Sissac, No. D065927, order at 1.) As

7

quoted above, the appellate court on direct appeal concluded that Petitioner “was

8

expressing consciousness of guilt by impliedly admitting he committed the act, but ‘the

9

devil’ made him do it. We conclude that the evidence of the statements made by Sissac

10

and Patton during the pretext call was relevant to the central factual issue of whether Sissac

11

shot Hamrah, and that the court properly found that evidence was admissible under the

12

adoptive admission exception to the hearsay rule codified in section 1221.” (Lodgment

13

No. 5, People v. Sissac, No. D064910, slip op. at 28.)

14

It is unclear whether the state appellate court, in denying the ineffective assistance

15

of counsel aspect of this claim on the same basis it denied the underlying evidentiary claim

16

(i.e., because the call was admissible as containing adoptive admissions) was addressing

17

the performance or the prejudice prong of Strickland or both. To the extent the appellate

18

court addressed one prong without addressing the other, a de novo review is required in

19

this Court of the omitted prong. See Wiggins v. Smith, 539 U.S. 510, 534 (2003)

20

(reviewing de novo the question whether petitioner suffered Strickland prejudice where the

21

state court adjudication of the claim was predicated only on the Strickland deficient

22

performance prong). Even if it is unclear which prong the state court relied on, federal

23

habeas relief can nevertheless be denied based on a de novo review of the claim. See

24

Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (holding that irrespective of whether

25

AEDPA deference applies, a federal habeas court may conduct a de novo review to deny a

26

petition but not to grant one); Strickland, 466 U.S. at 687 (holding that a petitioner must

27

establish both deficient performance and prejudice to establish ineffective assistance of

28

counsel).
57
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Because the appellate court found the pretext call was admissible as containing

2

adoptive admissions, and because the trial judge made the same determination after defense

3

counsel argued they contained no admissions at all, Petitioner has not established deficient

4

performance by his trial counsel’s concession they “arguably” contained such admissions.

5

That is particularly so in light of counsel’s argument to the jury that the pretext call did not

6

contain admissions but showed an expression of empathy for everyone involved in the

7

situation. See Strickland, 466 U.S. at 687 (holding that deficient performance “requires

8

showing that counsel made errors so serious that counsel was not functioning as the

9

‘counsel’ guaranteed the defendant by the Sixth Amendment.”) Neither has Petitioner

10

shown he was prejudiced under Strickland. Petitioner points to the fact that the jury asked

11

for the transcript of the pretext call during deliberations despite having heard the recording

12

twice during trial. It appears at least as likely they did so in order to determine whether

13

Petitioner had formed the intent for murder rather than, as Petitioner contends, to judge the

14

credibility of Patton, Glenn and Roy. In any case, because any adoptive admissions in the

15

pretext call were cumulative to, and weaker than, evidence that Petitioner admitted he shot

16

the driver immediately after the shooting while holding a gun of a caliber consistent with

17

that of the bullet fired in the shooting, and again several days later, Petitioner has not shown

18

“a probability sufficient to undermine confidence in the outcome” as a result of his trial

19

counsel’s concession that the pretext call arguably contained adopted admissions.

20

Strickland, 466 U.S. at 694. The state court adjudication of the ineffective assistance of

21

counsel aspect of claim four is neither contrary to, nor an unreasonable application of,

22

clearly established federal law, and is not based on an unreasonable determination of the

23

facts. Furthermore, even if this claim were subject to de novo review, the Court’s

24

recommendation would be the same.

25

F.

26

Petitioner alleges in claim five that admission of the improper lay opinions of Patton

27

and Glenn regarding ultimate legal and factual issues violated his federal constitutional

28

rights to due process, a fair trial, a reliable determination of guilt, and confrontation and

Claim Five

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1

cross-examination of witnesses, and that counsel was ineffective for failing to object to the

2

introduction of that evidence. (ECF No. 28-1 at 21-23, 81-85.) Respondent argues that

3

the state appellate court denial of the ineffective assistance of counsel aspect of this claim,

4

on the basis that Petitioner did not show prejudice as a result of counsel’s failure to object

5

because the unchallenged evidence overwhelmingly established guilt, is neither contrary

6

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

7

an unreasonable determination of the facts. (ECF No. 7-1 at 9-10.)

8

Petitioner presented all aspects of this claim, other than the ineffective assistance of

9

counsel aspect, to the state supreme court in his petition for review. (Lodgment No. 8 at

10

25-27.) That petition was denied with an order which stated: “The petition for review is

11

denied.” (Lodgment No. 9.) The claim was presented to the state appellate court on direct

12

appeal, absent the ineffective assistance aspect. (Lodgment No. 3 at 63-66.) A footnote in

13

his appellate brief indicated Petitioner had filed a contemporaneous habeas petition arguing

14

he received ineffective assistance of counsel in this respect. (Id. at 2 n.2.) The appellate

15

court, despite denying the motion to consolidate the habeas petition with the direct appeal,

16

found that although Petitioner had forfeited the evidentiary claim by failing to object at

17

trial, he did not receive ineffective assistance of counsel in that respect. (Lodgment No.

18

5.)

19
20
21
22
23
24
25
26
27

The Court will look through the silent denial by the state supreme court to the
appellate court opinion on direct appeal, Ylst, 501 U.S. at 803-06, which stated:
Sissac also claims the court prejudicially abused its discretion and
violated his federal constitutional right to a jury trial by erroneously admitting
improper lay opinion testimony by both Patton and Glenn on “the central
factual and legal issues that the jury was to decide.” Specifically, he asserts
the court prejudicially erred (1) by allowing Patton to testify that the victim
(Hamrah) was “innocent” and that what Sissac had done was a “sin,” it was
“wrong,” and it was “murder”; and (2) by permitting Glenn to testify that
Sissac “murder[ed]” the victim. Sissac also contends his trial counsel
rendered prejudicial ineffective assistance of counsel by failing to object to
this testimony as improper opinions. Sissac’s contentions are unavailing.

28
59
16cv2287-BAS (JLB)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Sissac forfeited his claim of prejudicial evidentiary error by failing to
object at trial to the foregoing testimony on the ground it constituted
inadmissible lay opinion. [Evidence Code] Section 353 precludes a party
from complaining on appeal that evidence was inadmissible on a certain
ground unless he or she made a timely and specific objection on that ground
below. (§ 353, subd. (a).) {Footnote: Section 353, subdivision (a) provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason on the erroneous admission of evidence
unless: [¶] (a) There appears of record an objection to or a motion to exclude
or to strike the evidence that was timely made and so stated as to make clear
the specific ground of the objection or motion.”} Here, the record shows that
defense counsel did not object to any of the foregoing testimony on the ground
that it constituted inadmissible lay opinion.
We reject Sissac’s claim of ineffective assistance of counsel. To prevail
on a claim of ineffective assistance of counsel, a defendant must show (1) that
his counsel’s performance was below an objective standard of reasonableness
under prevailing professional norms, and, of particular importance here, (2)
that the deficient performance prejudiced the defendant. (Strickland v.
Washington (1984) 466 U.S. 668, 687–688; People v. Ledesma (1987) 43
Cal.3d 171, 216–217.) To show prejudice, the defendant must show a
reasonable probability he would have received a more favorable result had his
counsel’s performance not been deficient. (Strickland, at pp. 693–694;
Ledesma, at pp. 217–218.) We conclude that, in light of the strong evidence
of Sissac’s guilt (discussed, ante) that does not include the lay opinion
testimony challenged here, Sissac has failed to meet his burden of establishing
a reasonable probability he would have achieved a more favorable result but
for his counsel’s failure to object to Patton’s and Glenn’s lay opinion
testimony. We note that Sissac, in arguing he was prejudiced by his trial
counsel’s failure to properly object to this testimony, disregards the plethora
of strong evidence of his guilt, which we incorporate by reference here.

22
23
24
25
26
27
28

(Lodgment No. 5, People v. Sissac, No. D064910, slip op. at 28-30) (square bracketed
changes in original).)
The state appellate court’s finding of a lack of prejudice is an objectively reasonable
application of the Strickland prejudice prong. Glenn’s response that “I don’t believe in
murdering nobody” came in response to the question whether he felt responsible because
he had supplied Petitioner with the gun used to shoot the victim. (RT 656.) Patton’s

60
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1

response that there are “certain things I can’t live with, sir. Murder isn’t – murder is just

2

not one of them” came in response to the prosecutor asking why he had decided to come

3

forward. (RT 473.) When asked what he did when he woke up the morning after the

4

killing, Patton said he started texting Petitioner in order to try to get him to come forward

5

because: “What happened that night was crazy, I know, but the victim, he was – the cab

6

driver, he was innocent.” (RT 444-45.) Defense counsel immediately objected to that

7

answer on hearsay grounds but was overruled, and Patton was then asked “what did you

8

text him,” to which Patton replied: “I asked him to man up and I asked him to turn himself

9

in because if he didn’t, things were going to get really bad, things like this is what I was

10

saying to him, things like this don’t just pass over, this is a sin.” (Id.) Without having been

11

able to anticipate this testimony, trial counsel was left with the less-than-ideal option of

12

moving to strike afterward.

13

Petitioner’s trial counsel may well have had a strategic reason to avoid moving to

14

strike the opinions and thereby calling the jury’s attention to the quite reasonable basis

15

Patton and Glenn had for their opinions, that the killing was unprovoked. See Strickland,

16

466 U.S. at 689 (“There are countless ways to provide effective assistance in any given

17

case. Even the best criminal defense attorneys would not defend a particular client in the

18

same way.”) Either way, whether the testimony was heard by the jury and then stricken or

19

heard by the jury and left to lie did not reasonably change the probability of a more

20

favorable outcome. Id. at 694 (prejudice is shown by the existence of “a probability

21

sufficient to undermine confidence in the outcome.”)

22

Importantly, the opinions of Patton and Glenn were based on their observations that

23

the taxicab driver was friendly, the ride was pleasant and fun, and that Petitioner shot the

24

driver for no apparent reason. Thus, their testimony was based on their observations that

25

the driver did not provoke the shooting or do anything to deserve to be shot. The jury was

26

instructed:

27
28

Witnesses who were not testifying as experts gave their opinions during
the trial. You may, but are not required to accept those opinions as true or
accurate. You may give the opinions whatever weight you think appropriate.
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1
2
3
4

Consider the extent of the witnesses’ opportunity to perceive the matters on
which his or her opinion is based, the reasons the witness gave for any opinion
and the facts or information on which the witness relied on forming that
opinion. [¶] You must decide whether information on which the witness
relied was true and accurate. You may disregard all or any part of an opinion
that you find unbelievable, unreasonable or unsupported by the evidence.

5
6
7
8

(RT 1247) (emphasis added).
Thus, the jury would not have credited the opinions under that instruction unless
they also believed the testimony.

9

This Court is not persuaded, based on the strength of the evidence in this case as

10

discussed repeatedly above, that the characterizations by these witnesses of the victim’s

11

innocence (which was not in dispute) or the lack of rational motive for the shooting (which

12

was not in dispute) had a substantial and injurious effect or influence on the jury’s verdict.

13

In light of all of the evidence, and in light of the jury’s instruction to consider the

14

information upon which the lay opinions of Patton and Glenn were based, there does not

15

exist a reasonable probability of a more favorable outcome had counsel objected to the

16

offending testimony. Accordingly, the state court adjudication of this aspect of claim five,

17

on the basis that Petitioner was not prejudiced by counsel’s failure to object, is neither

18

contrary to, nor an unreasonable application of, federal law as clearly established by

19

Strickland, and is not based on an unreasonable determination of the facts.

20

With respect to the aspects of claim five alleging violations of Petitioner’s right to

21

due process, to a fair trial, to confront witnesses, and to a reliable determination of guilt,

22

the state appellate court found they had been forfeited by defense counsel’s failure to

23

object. Respondent has waived the affirmative defense of procedural default by failing to

24

raise it in the Answer. See Trest v. Cain, 522 U.S. 87, 89 (1997) (“[P]rocedural default is

25

normally a ‘defense’ that the State is ‘obligated to raise’ and ‘preserv(e)’ if it is not to ‘lose

26

the right to assert the defense thereafter.’”), quoting Gray v. Netherland, 518 U.S. 152, 166

27

(1996); Francis v. Rison, 894 F.2d 353, 355 (9th Cir. 1990) (holding that a federal habeas

28
62
16cv2287-BAS (JLB)

1

court is not required to raise procedural default sua sponte when the State has waived the

2

defense).

3

The Court has discretion to deny the procedurally defaulted aspect of claim five for

4

the same reasons set forth above regarding the technically exhausted and procedurally

5

defaulted ineffective assistance of counsel claims. As with claims two through four,

6

Petitioner can prevail only if the introduction of the opinion evidence had a “substantial or

7

injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623.

8

Assuming the admission of the testimony violated Petitioner’s federal rights to due process,

9

to a fair trial, to confront witnesses, and to a reliable determination of guilt, any such errors

10

are clearly harmless. The opinions of Glenn and Patton that Petitioner’s shooting of the

11

taxicab driver was a sin and amounted to murder were based on their observations that

12

Petitioner shot the driver for no apparent reason, and the jury was instructed they must take

13

that into account. “The Court presumes that jurors, conscious of the gravity of their task,

14

attend closely the particular language of the trial court’s instructions in a criminal case and

15

strive to understand, makes sense of, and follow the instructions given them.” Francis v.

16

Franklin, 471 U.S. 307, 324 n.9 (1985). Thus, the jury would not have credited the opinions

17

under that instruction unless they also believed the underlying testimony.

18

considering “all that happened without stripping the [admission of the opinion testimony]

19

from the whole,” the Court is not left with a grave doubt that the admission of the opinions

20

by Patton and Glenn had a substantial and injurious effect or influence on the jury’s verdict.

21

Kotteakos, 328 U.S. at 765; Brecht, 507 U.S. at 623. The Court recommends habeas relief

22

be denied as to these aspects of claim five.

After

23

G.

24

Finally, Petitioner alleges in claim one that the cumulative and synergistic effect of

25

the admission of the evidence challenged in all of his other claims violated his federal

26

constitutional rights to due process, a fair trial, a reliable determination of guilt, and to

27

confrontation and cross-examination of witnesses, and he received ineffective assistance

28

///

Claim One

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16cv2287-BAS (JLB)

1

of counsel as a result of his trial counsel’s handling of that evidence. (ECF No. 28-1 at 15-

2

17, 45-47.)

3

Respondent argues that the state appellate court denial of this claim, on the basis that

4

the “claims of evidentiary error are unavailing because any errors that occurred were

5

harmless, whether considered individually or collectively,” is neither contrary to, nor an

6

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

7

unreasonable determination of the facts. (ECF No. 7-1 at 10.)

8

Petitioner presented this claim, absent the ineffective assistance of counsel aspect,

9

to the state supreme court in his petition for review. (Lodgment No. 8 at 27.) That petition

10

was denied with an order which stated: “The petition for review is denied.” (Lodgment

11

No. 9.) The same claim was presented to the state appellate court on direct appeal, but

12

included an ineffective assistance of counsel aspect to the cumulative error claim.

13

(Lodgment No. 3 at 24-26.) The appellate court denied the claim in a written opinion.

14

(Lodgment No. 5.) The Court will look through the silent denial by the state supreme court

15

to the last reasoned state court opinion addressing the cumulative error aspect of claim one,

16

the appellate court opinion on direct appeal. Ylst, 501 U.S. at 803-06. That court stated:

17

Last, Sissac contends the cumulative effect of all of the foregoing
claimed evidentiary errors was prejudicial and warrants reversal of the
judgment. We reject this contention.

18
19

“[A] series of trial errors, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and prejudicial
error.” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) A defendant is
“entitled to a fair trial but not a perfect one.” (Ibid.)

20
21
22

25

Here, we have concluded that all of Sissac’s claims of evidentiary error
are unavailing because any errors that occurred were harmless, whether
considered individually or collectively. Accordingly, we reject his claim of
prejudicial cumulative error.

26

(Lodgment No. 5, People v. Sissac, No. D064910, slip op. at 30) (square bracketed change

27

in original).)

23
24

28

///
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16cv2287-BAS (JLB)

1

“The Supreme Court has clearly established that the combined effect of multiple trial

2

court errors violates due process where it renders the resulting trial fundamentally unfair.”

3

Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007), citing Chambers v. Mississippi, 410

4

U.S. 284, 298, 302-03 (1973). Where no single trial error in isolation is sufficiently

5

prejudicial to warrant habeas relief, “the cumulative effect of multiple errors may still

6

prejudice a defendant.” United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996).

7

Where “there are a number of errors at trial, ‘a balkanized, issue-by-issue harmless error

8

review’ is far less effective than analyzing the overall effect of all the errors in the context

9

of the evidence introduced at trial against the defendant.” Id., quoting United States v.

10

Wallace, 848 F.2d 1464, 1476 (9th Cir. 1988). “Where the government’s case is weak, a

11

defendant is more likely to be prejudiced by the effect of cumulative errors.” Frederick,

12

78 F.3d at 1381.

13

Although the case against Petitioner was circumstantial, the prosecution’s case was

14

not weak. Three of the four men with Petitioner at the time the victim was shot testified at

15

trial, all reluctantly testifying against someone they thought of as a brother. Glenn testified

16

that immediately after the murder he saw a gun in Petitioner’s hand of a caliber consistent

17

with the murder weapon, and Petitioner at that time took sole responsibility for the

18

shooting. Glenn and Patton both testified that Petitioner was in a position to shoot the

19

driver and admitted shooting the driver. Although Roy testified that no one in the group

20

spoke of the incident in the twenty or thirty minutes they were together immediately after

21

the shooting, he also testified Petitioner was in the front passenger seat when Roy ran out

22

of the car and then heard a loud bam.

23

The introduction of the text messages and pretext call did not introduce unfairness

24

into the proceedings because their evidentiary value was weaker than and cumulative to

25

the testimony of Patton and Glenn. Independent of the testimony of Glenn and Patton,

26

evidence was presented that Petitioner was seen giving the victim $20 to take the group to

27

the Lemon Grove trolley station after speaking to all the taxicab drivers present, and that

28

he rode in the front of the victim’s taxicab while everyone else squeezed into the back seat.
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16cv2287-BAS (JLB)

1

There was no unfairness in the introduction of the lay opinions of Patton and Glenn because

2

they were based on their observation that the victim did not provoke Petitioner, and on

3

Petitioner’s own admission that he shot the victim merely because the driver smiled or

4

laughed at him. The jury was instructed to credit those opinions only if they found the

5

basis for them - that Petitioner shot the driver without provocation - to be true. The Court

6

finds that, even to the extent any or all of these items of evidence were admitted

7

erroneously, they do not, individually or cumulatively, support a finding that Petitioner

8

received a fundamentally unfair trial. Accordingly, the state court adjudication of this

9

claim on that basis is neither contrary to, nor an unreasonable application of, clearly

10

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

11

Finally, Petitioner contends that the cumulative effect of his trial counsel’s handling

12

of the admission of the evidence amounted to ineffective assistance. (ECF No. 28-2 at 15-

13

17.) This aspect of claim one was presented to the state appellate court on habeas

14

(Lodgment No. 6 at 5-6), but not to that court on direct appeal (Lodgment No. 3 at 24-26),

15

and not to the state supreme court (Lodgment No. 8 at 27). It was denied by the state

16

appellate court in an order which stated: “For reasons explained in our opinion in the direct

17

appeal, we reject Sissac’s claims.” (Lodgment No. 7, In re Sissac, No. D065927, order at

18

1.) The state appellate court found on direct appeal that any errors in admitting the

19

challenged evidence were harmless. (Lodgment No. 5, People v. Sissac, No. D064910,

20

slip op. at 30.)

21

However, harmless error analysis is not appropriate in applying Strickland. See

22

Holloway, 435 U.S. at 489 (constitutionally ineffective assistance of counsel can never be

23

treated as harmless error). Thus, to the extent the state appellate court addressed this aspect

24

of claim one, which, as with the other ineffective assistance of counsel claims is technically

25

exhausted and procedurally defaulted, it applied a standard inconsistent with Strickland.

26

Yet, irrespective of whether Petitioner can overcome the procedural default, or whether

27

AEDPA applies to the claim, it is clear, for the following reasons, that he is not entitled to

28

federal habeas relief because it fails under a de novo review. See Berghuis, 560 U.S. at
66
16cv2287-BAS (JLB)

1

390 (holding that irrespective of whether AEDPA deference applies, a federal habeas court

2

may conduct a de novo review to deny a petition but not to grant one).

3

“It will generally be appropriate for a reviewing court to assess counsel’s overall

4

performance throughout the case in order to determine whether the ‘identified acts or

5

omissions’ overcome the presumption that a counsel rendered reasonable professional

6

assistance.” Kimmelman v. Morrison, 477 U.S. 365, 386 (1986), quoting Strickland, 466

7

U.S. at 689. A review of the actions by defense counsel in this case does not rebut that

8

presumption. Petitioner’s trial counsel successfully objected to the admission of three of

9

the four recorded telephone calls, and only conceded the pretext call from Patton to

10

Petitioner “arguably” contained admissions after the trial court ruled it was admissible, a

11

ruling upheld on appeal. Counsel could not have anticipated the opinions given by Patton

12

and Glenn that they thought Petitioner murdered an innocent victim because they came in

13

answer to questions unlikely to call for such answers, so defense counsel, at that point,

14

could only have moved to strike. (RT 445, 473, 656.) Counsel may have had a strategic

15

reason to avoid moving to strike those opinions and thereby calling to the jury’s attention

16

the reasons upon which those opinions were based - that Petitioner shot the driver for no

17

discernable reason. See Strickland, 466 U.S. at 689 (“There are countless ways to provide

18

effective assistance in any given case. Even the best criminal defense attorneys would not

19

defend a particular client in the same way.”) Even had counsel raised objections to the

20

admission of the text messages, the telephone communications between Petitioner and Roy,

21

or Detective Pearce’s testimony that the absence of the text messages on Petitioner’s

22

telephone led him to conclude Petitioner had deleted them, on the basis of a lack of

23

foundation or authentication, there has never been a showing, here or in the state court, that

24

the prosecutor could not have laid a proper foundation and authenticated that evidence if

25

required. Rather, such objections might have highlighted the evidence to the jury to

26

Petitioner’s disadvantage, for example, by requiring the prosecutor to call an expert witness

27

to testify in place of Detective Pearce that the text messages were recovered from Patton’s

28

telephone but not from Petitioner’s. Finally, defense counsel thoroughly addressed the
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16cv2287-BAS (JLB)

1

challenged evidence in closing argument, successfully arguing it did not support first

2

degree murder, and arguing it raised a reasonable doubt as to who shot the driver,

3

arguments which might not have been as effective if counsel had made futile challenges to

4

inevitably admissible evidence. Thus, the Court finds that Petitioner is not entitled to

5

habeas relief in this Court as to this aspect of claim one because, based on a de novo review,

6

he has shown neither deficient performance nor prejudice as a result of his trial counsel’s

7

handling of the evidentiary issues raised throughout this action. Kimmelman, 477 U.S. at

8

386; Strickland, 466 U.S. at 687-94.

9

VII. CONCLUSION

10

For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court

11

issue an Order: (1) approving and adopting this Report and Recommendation, (2) granting

12

Petitioner’s Motion to Amend [ECF No. 28] and directing that the proposed First Amended

13

Petition [ECF No. 28-2] become the operative pleading in this action, and (3) directing that

14

Judgment be entered denying the First Amended Petition.

15

IT IS ORDERED that no later than August 1, 2018, any party to this action may

16

file written objections with the Court and serve a copy on all parties. The document should

17

be captioned “Objections to Report and Recommendation.”

18

IT IS FURTHER ORDERED that any reply to the objections shall be filed with

19

the Court and served on all parties no later than August 10, 2018. The parties are advised

20

that failure to file objections with the specified time may waive the right to raise those

21

objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th

22

Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).

23

Dated: July 11, 2018

24
25
26
27
28
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16cv2287-BAS (JLB)