Barnett v. Montgomery

Filing 31

ORDER (1) Adopting 29 Report and Recommendation;l (2) Overruling Petitioner's objections; (3) Denying Petitioner's Petition for Writ of Habeas Corpus; and (4) Declining to issue a certificate of appealability.. Signed by Judge Anthony J. Battaglia on 12/08/2017. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BRIAN KEITH BARNETT,

Case No.: 17-cv-00209-AJB-BLM
Petitioner,

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ORDER:

v.
W.L. MONTGOMERY, Warden,

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(1) ADOPTING REPORT AND
RECOMMENDATION;

Respondent.

(2) OVERRULING PETITIONER’S
OBJECTIONS;

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(3) DENYING PETITIONER’S
PETITION FOR WRIT OF HABEAS
CORPUS; AND

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(4) DECLINING TO ISSUE A
CERTIFICATE OF
APPEALABILITY

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(Doc. Nos. 1, 29, 30)

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On February 1, 2017, Petitioner Brian Keith Barnett (“Petitioner”), a state prisoner
proceeding pro se, filed his petition for writ of habeas corpus. (Doc. No. 1.) On August 29,
2017, Magistrate Judge Barbara Lynn Major filed a Report and Recommendation (“R&R”)
denying Petitioner’s request for judicial notice and recommending that the district court

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deny Petitioner’s petition. (Doc. No. 29.) Petitioner filed an objection to the R&R on

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September 22, 2017. (Doc. No. 30.) For the reasons set forth more fully below, the Court

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ADOPTS the R&R in full, (Doc. No. 29), OVERRULES Petitioner’s objections, (Doc.

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No. 30), and DENIES Petitioner’s petition for writ of habeas corpus, (Doc. No. 1).

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I.

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The following facts are taken from the California Court of Appeal’s April 29, 2016,
opinion in People v. Barnett, Appeal No. D065324:

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On the night of June 21, 2013, [Petitioner] and Frederick
Morao had a loud argument at a residential hotel in San Diego.
The two men were friends and [Petitioner] was temporarily
staying with Morao. Morao had purchased methamphetamine
from [Petitioner], and both had consumed “a lot” of “crystal
meth” that day. The men argued about money [Petitioner]
claimed Morao owed him for the methamphetamine.
Earlier in the day, Morao had witnessed [Petitioner] hit
Devon Clements (a friend of Morao’s), with sufficient force to
knock him down. During the argument, Morao told [Petitioner]
“I ain’t Devon. You ain’t going to hit me like Devon.” One of
the two men said something like “We’ll handle this,” or “[l]et’s
hit the corner” and Morao walked away from the hotel.
[Petitioner] followed behind. Morao carried the bottom part of a
pool cue (approximately two feet long and two inches in
diameter) concealed inside his sweater. He had it with him
because he knew [Petitioner] carried weapons, including a
serrated knife with a four-to-five inch blade. When [Petitioner]
got close to Morao, Morao turned around, thinking [Petitioner]
was going to “swing, hit me some kind” and “swung too,”
swinging the pool cue at [Petitioner]. [Petitioner] was able to
disarm Morao of the pool cue before being struck. Morao then
began throwing punches at [Petitioner], many of which landed.
Clements followed slowly behind the men and saw
[Petitioner] holding a cylindrical object about a foot and a half
long during the fight. Clements initially stated he did not see
[Petitioner] use the object on Morao, but later testified it did not

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BACKGROUND1

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The R&R also employs the same factual background provided by the California Court
of Appeal’s opinion.
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make contact with Morao. Clements originally described the
object as looking like a rolling pin and testified it was wider than
the pool cue. Morao felt blows to his chest and stomach during
the fight. The brief fight stopped when Morao felt like he “got
enough hits in,” and Morao and [Petitioner] separated.
[Petitioner] walked away limping and yelling something. Morao
joined Clements and said something like “I got him.” The two
men gave each other “daps,” a celebratory gesture. Morao and
Clements then walked back toward the hotel and Morao realized
he was bleeding heavily. After Morao reached the lobby, the
hotel security guard called an ambulance. Morao lost
consciousness after the paramedics arrived and the next thing he
remembered is waking up after surgery. Morao remained in the
hospital for a week.
Morao had multiple stab wounds, at least one to the left
side of his stomach and one on his back. A doctor told Morao
there were 14 stab wounds. Clements also recalled hearing from
a police officer that Morao was stabbed 14 to 16 times and might
not make it. In addition, the investigating officer, Detective
Tews, recalled hearing from police officers at the scene that
Morao was stabbed 14 times, but was unable to personally verify
the number.
Detective Tews interviewed Morao. Morao initially told
Detective Tews he had been jumped by two Hispanic men.
Morao had prior felony convictions including theft, possession
of methamphetamine for sale, petty theft with a prior, and
robbery. He used his “felon mentality” when first speaking with
the police. After learning about surveillance video of the
incident, Morao told Detective Tews the truth about what
happened, explaining he made up the initial story because he did
not want to be a rat.
Detective Tews also interviewed [Petitioner]. [Petitioner]
denied stabbing Morao. [Petitioner] told Detective Tews Morao
tried to hit him with a pool cue, he took the cue away, Morao ran
and was then attacked from behind by a “Hispanic dude.”
[Petitioner] admitted he always carried a knife and he had a
black, foot-long, serrated knife with him at the time of the
incident, but denied using the knife on Morao.
On June 21, 2013, Morao was either 5’3” or 5’7 and
weighed around 205 or 210 pounds. [Petitioner] is significantly
taller than Morao. Morao felt threatened by the size disparity due
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to [Petitioner’s] advantage of height and “reach.” Morao was
very soft spoken and nervous during [Petitioner’s] crossexamination. Morao does not like weapons, does not know
anything about knives, and does not need a knife. However,
[Petitioner] had promised to get Morao a knife.
Section 1118 Motion for Acquittal
At the close of the prosecution’s case, [Petitioner] moved
for acquittal under section 1118. He argued there was insufficient
evidence to show he used a knife. He further argued evidence
showed Morao had a concealed pool cue, which he attempted to
strike [Petitioner] with, [Petitioner] took the cue away from him
and Morao swung and hit [Petitioner] 20 times. [Petitioner]
asserted he “had an absolute right to defend himself” under those
circumstances. The trial court denied the motion, noting although
evidence established Morao (the smaller individual) initially had
a pool cue, any force Morao used after being disarmed “did not
justify the deadly force that [Petitioner] used when he stabbed
him in the gut.” The court therefore ruled there was sufficient
evidence for a reasonable jury to find [Petitioner] guilty.
Defense Evidence
[Petitioner] represented himself. [Petitioner] first called
Dr. Murphy, a forensic psychologist, who testified about the fight
or flight syndrome and similar responses of people using crystal
methamphetamine. [Petitioner] also called San Diego Police
Officer Carlos Munoz (Officer Munoz), who had written a report
of the incident stating Morao was stabbed 14 times. Hospital staff
had informed Officer Munoz of the 14 stab wounds, but the
specific source was not identified in his report and he could not
recall who it was. Officer Munoz did not take pictures of any of
the stab wounds.
[Petitioner] took the stand. He described his relationship
with Morao as one in which Morao depended upon him to “help
him out” by supplying crystal methamphetamine and testified he
would come from various locations in Southern California, at his
own expense, to supply Morao. The fight with Morao occurred
because Morao was angry that [Petitioner’s] friends would not
give him a cheap price on illegal drugs. When Morao said “Let’s
go handle it,” [Petitioner] anticipated a fistfight and believed he
“ain’t got no problem,” as he was “fixing to whip this little
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chump’s ass, you know, for crossing me up, plain and simple.”
[Petitioner] was not worried about fighting the younger Morao,
a “guy in his prime,” because “[m]ost youngsters these days, they
don’t even know how to sling the fist. They can’t even fight. You
know, I [was] brought up using my hands to defend myself.”
[Petitioner] was attacked by Morao and “just defended
[him]self.” After [Petitioner] took the pool stick away from
Morao, Morao ran and [Petitioner] did not pursue him. At the
time, [Petitioner] saw Clements was following behind, and
thought he was going to try to help Morao, but was not worried
about being “double team[ed]” by the men. [Petitioner] had a gun
in one of his back pockets during the incident, but had no
intention of using it. [Petitioner’s] “big ol’ knife” was in his other
back pocket. [Petitioner] was “hit in the nose” by Morao, and
there was some bleeding.
[Petitioner] testified he used only his fists on Morao and
did not stab him. Instead, Morao was stabbed by a Hispanic male
after [Petitioner] disarmed him and Morao ran off into the street.
After [Petitioner] took Morao’s weapon away, Morao “turned
around and he got stabbed.”

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(Doc. No. 9-22 at 2–7.)2

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After trial, the jury found Petitioner guilty of assault with a deadly weapon. (Id. at

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2.) On January 29, 2014, the trial court sentenced Petitioner to seventeen years in state

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prison. (Doc. No. 9-12.)

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On December 5, 2014, Petitioner appealed his conviction, arguing that the trial court

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committed reversible error by (1) denying his motion for acquittal under section 1118.1

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because there was insufficient evidence to find Petitioner did not act in self-defense, and

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(2) prejudicially instructing the jury regarding self-defense after an attacker is disabled or

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danger ceases. (Doc. No. 9-19.) On April 29, 2016, the California Court of Appeal affirmed

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Petitioner’s conviction. (Doc. No. 9-22.) On June 3, 2016, Petitioner filed a petition for

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review in the California Supreme Court reasserting the same claims raised in his appeal.

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Page numbers refer to the CM/ECF page number and not the number on the original
document.
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(Doc. No. 9-23.) On July 27, 2016, the Supreme Court of California denied the petition for

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review without any discussion. (Doc. No. 9-24.)

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On January 29, 2014, Petitioner filed a petition for Writ of Habeas Corpus in the

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California Court of Appeal arguing that (1) his Faretta rights to due process and equal

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protection were violated when the county jail made decisional and statutory law available

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via a “kiosk” separate from the desktop with a word processor and denied him access to

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confidential legal phone calls and black ink pens, and (2) the thumb drive and media disc

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provided by the prosecution did not function, he could not contact the court clerk to

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calendar a hearing or obtain sufficient copies of documents for service, and the prosecutor

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had denied receiving his motions. (Doc. No. 9-25.) On January 31, 2014, the California

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Court of Appeal denied the Petition as untimely, explaining that Petitioner “should have

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brought his complaints to the attention of the trial court before—not after—he proceeded

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to trial and was convicted[.]” (Doc. No. 9-26.)

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On May 3, 2016, Petitioner filed a second Petition for Writ of Habeas Corpus in the

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California Court of Appeal, arguing that (1) the prosecutor knowingly and intentionally

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withheld exculpatory evidence, or alternatively, destroyed it before trial and (2) the

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prosecutor knowingly elicited and permitted the introduction of false testimony. (Doc. No.

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9-27.) On May 17, 2016, the California Court of Appeal denied the petition, noting that

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Petitioner demonstrated neither the materiality of the alleged undisclosed information nor

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that the police or prosecution were acting in bad faith. (Doc. No. 9-28.)

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On August 25, 2014, Petitioner filed a Petition for Writ of Habeas Corpus in the

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California Supreme Court, arguing that (1) the prosecutor knowingly and intentionally

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withheld exculpatory evidence of a digital recording of the initial interview with witness

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Devon Michael Clements and (2) the California Court of Appeal failed to hold an

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evidentiary hearing on the prosecution’s alleged withholding of evidence. (Doc. No. 9-31.)

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On November 9, 2016, the California Supreme Court denied the petition without

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discussion. (Doc. No. 9-32.)

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II.

PROCEDURAL BACKGROUND

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On February 1, 2017, Petitioner filed the present matter, his Petition for Writ of

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Habeas Corpus asserting five grounds for relief: (1) the prosecution knowingly and

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intentionally withheld the digital recording of statements of witness Devon Michael

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Clements in violation of his due process discovery rights; (2) the appellate court failed to

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order an evidentiary hearing on the prosecution allegedly withholding evidence; (3)

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arbitrary and capricious jail policies obstructed and interfered with Petitioner’s exercise of

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his Faretta Rights; (4) the jail obstructed Petitioner’s ability to produce his moving papers

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and did not provide him copies for lawful service via U.S. Mail; and (5) the trial court erred

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by denying Petitioner’s motion for a judgment of acquittal based on insufficient evidence.

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(See generally Doc. No. 1.) Subsequently, Petitioner was granted in forma pauperis status.

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(Doc. No. 3.)

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On April 4, 2017, Respondent filed his response and on May 10, 2017, Petitioner

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filed his traverse. (Doc. Nos. 8, 12.) On July 17, 2017, Petitioner filed a request for judicial

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notice. (Doc. No. 28.) Thereafter, on August 29, 2017, Magistrate Judge Major filed an

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R&R denying Petitioner’s request for judicial notice and recommending that his petition

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be denied. (Doc. No. 29.) Petitioner then filed his objection to the R&R by the deadline set

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by the Court. (Doc. No. 30.)

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III.

LEGAL STANDARDS

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A.

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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judge’s duties in connection with a magistrate judge’s report and recommendation. The

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district judge must “make a de novo determination of those portions of the report . . . to

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

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findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C);

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see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the

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absence of timely objection(s), the court “need only satisfy itself that there is no clear error

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on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b),

Review of the Report and Recommendation

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Advisory Committee Notes (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114,

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1121 (9th Cir. 2003).

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B.

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A petitioner in state custody pursuant to the judgment of a state court may challenge

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his detention only on the grounds that his custody is in violation of the United States

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Constitution or the laws of the United States. 28 U.S.C. § 2254(a); accord Williams v.

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Taylor, 529 U.S. 362, 375 n.7 (2000). The Anti-Terrorism and Effective Death Penalty Act

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(“AEDPA”), applies to § 2254 habeas corpus petitions filed after 1996. See Lindh v.

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Murphy, 521 U.S. 320, 322 (1997). Federal habeas relief is available only if the result

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reached by the state court on the merits is “contrary to” or “an unreasonable application”

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of Supreme Court precedent, or if the adjudication is “an unreasonable determination”

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based on the facts and evidence. 28 U.S.C. § 2254(d)(1)-(d)(2).

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IV.

Standard of Review Under 28 U.S.C. § 2254

DISCUSSION

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The law is well established that a district judge “shall make a de novo determination

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of those portions of the report or specified proposed findings or recommendations to which

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objection is made.” 28 U.S.C. § 636(b)(1). Presently, Petitioner proffers three objections

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to Magistrate Judge Major’s R&R: (1) that it incorrectly concluded that the State Appellate

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Court adjudicated ground one of Petitioner’s application; (2) that Magistrate Judge Major

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misconstrued Petitioner’s claim that the Appellate court did not review an audio recording;

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and (3) Magistrate Judge Major incorrectly concluded that the prosecution provided one

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audio recording of witness Devon Clements. (See generally Doc. No. 30.) The Court notes

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that Petitioner does not object to the R&R in regards to ground two through five of his

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petition, nor does he discuss the denial of his request for judicial notice. (See generally id.)

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Instead, Petitioner focuses solely on ground one—the prosecution allegedly knowingly and

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intentionally withholding exculpatory evidence. (Id.)

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A.

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The crux of Petitioner’s objection is that he was not at any time prior to or during

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his state trial provided any opportunity to review any recording of witness Devon Michael

Alleged Withholding of the Audio Recording

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Clements’ (“Clements”) statements to San Diego Police detective Tews. (Doc. No. 30 at

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2.) This occurred despite the duty of the prosecution to disclose evidence to Petitioner

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during his trial and despite the Superior Court’s order to the Prosecution to provide the

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audio recording to him. (Doc. No. 40 at 4–5, 7.)

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Under 28 U.S.C. § 2254(d) as amended by AEDPA:

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(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim—(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.

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28 U.S.C. § 2254(d).
“The prosecution’s affirmative duty to disclose evidence favorable to a defendant
can trace its origins to early 20th-century strictures against misrepresentation and is of
course most prominently associated with this Court’s decision in Brady v. Maryland, 373
U.S. 83, 83, S.Ct. 1194, 10 L.Ed.2d 215 (1963).” Kyles v. Whitley, 514 U.S. 419, 432
(1995). Brady held “that the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87.
“[A] showing of materiality does not require demonstration by a preponderance that
disclosure of the suppressed evidence would have resulted ultimately in the defendant’s
acquittal[.]” Kyles, 514 U.S. at 434. Instead the touchstone of materiality is a “reasonable
probability” of a different result. Id. However, “[t]he question is not whether the defendant
would more likely than not have received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of

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confidence.” Id.

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In sum, for petitioner to prevail on his Brady claim he must show that (1) the

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evidence was favorable to the accused either because it was exculpatory or impeaching;

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(2) the evidence was suppressed by the State; and (3) the suppression resulted in prejudice.

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Strickler v. Greene, 527 U.S. 263, 281–82 (1999).

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Unfortunately for Petitioner, the crucial flaw with the objections he proffers is that

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Petitioner still fails to demonstrate the materiality of the Clements audio recording. See

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United States v. Bagley, 473 U.S. 667, 682 (1985) (holding that evidence is material “if

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there is a reasonable probability that, had the evidence been disclosed to the defense, the

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result of the proceeding would have been different. A ‘reasonable probability’ is a

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probability sufficient to undermine the confidence in the outcome.”). Instead, Petitioner

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focuses his objections on detailing how the appellate court did not review the audio

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recording, that the prosecutor allegedly failed to disclose the evidence, that Magistrate

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Judge Major was incorrect when she stated that Petitioner stated that he received a copy of

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the recorded interview, and that the materiality of the recording is not the issue. (See

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generally Doc. No. 30.)

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The Court notes that it has carefully taken under consideration the various issues

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Petitioner has with the alleged Clements recording and does not downplay his qualms and

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concerns. However, Petitioner’s ten page objection and its claim of prosecutorial

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misconduct cannot be distinct from a material determination. As Magistrate Judge Major

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discussed in great detail, when a prosecutor is accused of suppressing exculpatory evidence

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in violation of due process, the petitioner must show (1) the prosecution suppressed

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evidence; (2) the evidence was favorable to the accused; and (3) the evidence was material

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to the issue of guilt or punishment. Brady, 373 U.S. at 87. Thus, other than claiming that

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the Clements recording “could have influenced the determination of the case,” (Doc. No.

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30 at 5), and that he “intended to use the recording for impeachment purposes,” (id. at 7),

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Petitioner does not demonstrate how the alleged recording was favorable to his case. See

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Benn v. Lambert, 283 F.3d 1040, 1053 (2002) (“Evidence is deemed prejudicial, or
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material, only if it undermines confidence in the outcome of the trial.”); see also Strickler,

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527 U.S. at 281 (holding that “there is never a real ‘Brady violation’ unless the

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nondisclosure was so serious that there is a reasonable probability that the suppressed

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evidence would have produced a different verdict.”).

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In coming to this conclusion, for Petitioner’s benefit, the Court highlights that

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Petitioner was provided with notes from the interview with Clements and both the

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interviewing officer and witness testified at trial. (Doc. No. 9-28 at 1–2.) Moreover, the

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Court agrees with the appellate court that Petitioner’s claim that the Clements recording

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may have included additional or contradictory information is “entirely speculative.” (Id. at

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2.)

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Second, as detailed clearly in the R&R, Clements’ trial testimony was consistent

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with the information that he provided during his June 21, 2013 interview, thus the

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information was not impeaching. (Doc. No. 29 at 13–15.) Finding no need to repeat the

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R&R’s findings, the Court briefly summarizes that detective Tew’s Investigator’s Report

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from June 21, 2013, describes that Clements was awoken by Morao who was angry, that

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he followed Morao and Petitioner, Morao and Petitioner then began to fight by a tuxedo

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shop, he never saw a knife, and that after the fight Morao noticed that he was bleeding.

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(Doc. No. 16 at 19.) In comparison, during trial, Clements testified that Morao came by his

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room in an angry state, that he observed Petitioner and Morao argue as they walked down

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the street, that he saw Petitioner strike Morao with something, and that after the fight Morao

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realized he was bleeding. (Doc. No. 9-7 at 30–38, 48–49, 76–77, 82, 100–01, 104–06, 108,

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138–39.) Consequently, comparing the two, the Court finds that Clements’ testimony at

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trial and Detective Tews’ June 21, 2013 Investigator’s Report are consistent.

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On a final note, the Court finds that Petitioner has failed to demonstrate that a

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recording actually existed. Both the prosecutor and detective Tews stated on the record that

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there is no recording of the June 21, 2013 interview of Clements and Petitioner does not

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provide any further evidence of such a recording in his objection. (Doc. No. 9-8 at 41–42;

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Doc. No. 9-3 at 28–29, Doc. No. 9-5 at 28–30.)
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Based on the foregoing, despite Petitioner’s various arguments, most of which are

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irrelevant to the matter at hand, Petitioner has not established the materiality of the

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Clements recording and thus his Brady violation fails. Accordingly, the Court

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OVERRULES Petitioner’s objections.

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V.

CONCLUSION

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As explained in more detail above, the Court hereby (1) ADOPTS Magistrate Judge

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Major’s R&R; (2) OVERRULES Petitioner’s objections; (3) DENIES the Petition on the

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merits; and (4) DECLINES to issue a certificate of appealability.3

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Dated: December 8, 2017

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When a district court enters a final order adverse to the applicant in a habeas proceeding,
it must either issue or deny a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). A
certificate of appealability is required to appeal a final order in a habeas proceeding. See
id. A certificate of appealability is appropriate only where the petitioner makes “a
substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2); Miller-El v.
Cockrell, 537 U.S. 322, 326 (2003). Under this standard, the petitioner must demonstrate
that “reasonable jurists could debate whether . . . the petition should have been resolved in
a different manner or that the issues presented were ‘adequate to deserve encouragement
to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 475 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983)).
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