Chandler v. Sherman et al, No. 3:2014cv00103 - Document 20 (S.D. Cal. 2015)

Court Description: ORDER Granting 18 Report and Recommendation Denying Petition for Writ of Habeas Corpus. The Court overrules Petitioner's objections and adopts the Report and Recommendation in its entirety and denies the Petition for Writ for Habeas Corpus. The Court also denies a certificate of appealability. Signed by Judge Gonzalo P. Curiel on 6/3/15. (All non-registered users served via U.S. Mail Service)(dlg)

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Chandler v. Sherman et al Doc. 20 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 MATTHEW LLOYD CHANDLER, CASE NO. 14cv103-GPC(BGS) 10 11 12 ORDER ADOPTING REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT FOR HABEAS CORPUS Petitioner, vs. STU SHERMAN, Warden, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Respondent. On January 15, 2014, Petitioner Matthew Lloyd Chandler (“Petitioner”), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks judicial review of his conviction in San Diego County Superior Court Case No. SCD227785 for assault with a deadly weapon and burglary as well as weapons enhancements. (Dkt. No. 1.) Respondent filed an Answer on March 11, 2014 (Dkt. No. 8), and Petitioner filed his Traverse on June 23, 2014. (Dkt. No. 17.) On September 16, 2014, Magistrate Judge Bernard G. Skomal issued a Report and Recommendation (“Report”) that this Court deny the petition. (Dkt. No. 18.) On October 20, 2014, Petitioner filed objections (“Objections”) to the Magistrate Judge’s Report. (Dkt. No. 19.) After careful consideration of the pleadings and relevant exhibits submitted by the parties, this Court OVERRULES Petitioner’s Objections, ADOPTS the Magistrate Judge’s Report in its entirety, and DENIES the Petition for Writ of Habeas Corpus. 28 -1- [14cv103-GPC(BGS)] Dockets.Justia.com 1 2 PROCEDURAL BACKGROUND On October 28, 2010, Petitioner was charged with two counts of assault with a 3 deadly weapon by means of force likely to produce great bodily injury (counts one and 4 two), in violation of California Penal Code (“Penal Code”) section 245(a)(1); two 5 counts of burglary (counts three and five), in violation of Penal Code section 459; one 6 count of making a criminal threat (count four), in violation of Penal Code section 422; 7 and one count of grand theft of personal property (count six), in violation of Penal 8 Code section 487(a). (Dkt. No. 9, Lodgment No. 2, vol. 1, part 2 at 104-09.) As to 9 counts one and two, the amended information also alleged Petitioner had personally 10 used a deadly weapon, within the meaning of Penal Code section 1192.7(c)(23), and 11 as to counts three and four, the amended information alleged Petitioner had personally 12 used a deadly weapon, within the meaning of Penal Code section 12022(b)(1). (Id.) In 13 addition, the amended information alleged Petitioner had suffered thirteen prior felony 14 convictions which rendered him ineligible for probation, within the meaning of Penal 15 Code section 1203(e)(4), eight prior convictions for which he had served a prison 16 sentence, within the meaning of Penal Code sections 667.5(b) and 668, one serious 17 felony prior conviction, within the meaning of Penal Code sections 667(a)(1), 668 and 18 1192.7(c), and one prior “strike” conviction, within the meaning of Penal Code sections 19 667(b) through (i), 1170.12, and 668. (Id.) 20 Following a jury trial, a jury found Petitioner guilty of counts one, three, and 21 five, and not guilty of counts two, four, and six. (Id.) Petitioner admitted he had 22 suffered the prior convictions as alleged. (Dkt. No. 9, Lodgment No. 1, vol. 4 at 23 200-06.) He was sentenced to fourteen years and four months in state prison. (Dkt. No. 24 9, Lodgment No. 2, vol. 1, part 2 at 112.) 25 On July 7, 2011, counsel for Petitioner filed a direct appeal of his conviction in 26 the California Court of Appeal, Fourth Appellate District, Division One. (Dkt. No. 9, 27 Lodgment No. 3.) While that appeal was pending, on October 27, 2011, Petitioner filed 28 a Petition for Writ of Habeas Corpus in the San Diego Superior Court, which the court -2- [14cv103-GPC(BGS)] 1 denied on December 12, 2011 because it lacked jurisdiction due to the pending appeal. 2 (Dkt. No. 9, Lodgment No. 3.) On January 9, 2012, Petitioner then filed a document he 3 entitled “Supplemental Brief”, and on May 21, 2012 he filed a Petition for Writ of 4 Habeas Corpus in the state appellate court. (Dkt. No. 9, Lodgment Nos. 5, 6.) On June 5 5, 2012, the state appellate court consolidated the direct appeal and the habeas corpus 6 petition. (Dkt. No. 9, Lodgment Nos. 8-9.) On October 30, 2012, the Court of Appeal 7 ultimately affirmed Petitioner’s convictions and denied the petition for writ of habeas 8 corpus in an unpublished written opinion. (Dkt. No. 9, Lodgment No. 11.) Petitioner 9 then filed a Petition for Review in the California Supreme Court, which was summarily 10 denied on January 16, 2013. (Dkt. No. 9, Lodgment Nos. 12-13.) 11 On January 10, 2013, Petitioner filed another Petition for Writ of Habeas Corpus 12 in the San Diego Superior Court. (Dkt. No. 9, Lodgment No. 14.) On February 14, 13 2013, the Superior Court denied the petition in a written opinion. (Dkt. No. 9, 14 Lodgment No. 15.) In March 2013, Petitioner then filed a Petition for Writ of Habeas 15 Corpus in the California Court of Appeal. (Dkt. No. 9, Lodgment No. 16.) On March 16 28, 2013, the Court of Appeal denied the Petition for Writ of Habeas Corpus in a 17 written, unpublished opinion. (Dkt. No. 9, Lodgment No.17.) 18 On January 15, 2014, Petitioner filed a Petition for Writ of Habeas Corpus 19 pursuant to 28 U.S.C. § 2254 in this Court. (Dkt. No. 1.) Respondent filed an Answer 20 on March 11, 2014. (Dkt. No. 8.) Petitioner filed a Traverse on June 23, 2014. (Dkt. 21 No. 17.) On September 16, 2014, the Magistrate Judge issued a Report recommending 22 that this Court deny the petition. (Dkt. No. 18.) Petitioner filed Objections to the 23 Magistrate Judge’s Report on October 20, 2014. (Dkt. No. 19.) 24 25 FACTUAL BACKGROUND This Court gives deference to state court findings of fact and presumes them to 26 be correct. See 28 U.S.C. § 2254(e)(1). The following facts are taken from the 27 California Court of Appeal opinion decided on October 30, 2012. 28 A. The People’s Case 1. “Other crimes” evidence (Evid. Code § 1101(b)) -3- [14cv103-GPC(BGS)] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Over pretrial objection, the prosecution presented evidence under Evidence Code section 1101(b) (discussed more fully, post) that Chandler committed theft in early 2009 at a Vons store. 2. May 18, 2010 burglary and grand theft of personal property (counts 5 & 6) Earl Hochdanner testified that at around 9:00 p.m. on May 18, he was working as a shift supervisor at a CVS store. Hochdanner walked into the storage area in the back of the store through a swinging door on which there was a sign reading, "Employees Only Beyond This Point." Hochdanner saw Chandler standing in the open doorway of the restricted liquor cage, which is a large wooden cage wrapped in chicken wire with a locked wooden door where cigarettes, liquor, and electronics were stored. The liquor cage door had a hinge that made the door shut automatically. The door handle locked automatically and, although the door could be opened from the inside without a key, a key was needed to open the door from the outside. Hochdanner observed that the liquor cage light was on and the door was open. The liquor cage door had been locked earlier and the light had been turned off. When Chandler saw Hochdanner, Chandler first tried to close the liquor cage door, but then opened it back up again. Hochdanner testified that Chandler was wearing a large black backpack that "looked full." Hochdanner asked Chandler what he was doing in the liquor cage. Chandler replied that he was looking for the bathroom and that someone told him the bathroom was in the back. Hochdanner thought Chandler's statement was false because a store employee would have told Chandler the bathrooms were located in the pharmacy area. Hochdanner then asked Chandler what he had taken, and Chandler responded that he had not taken anything. When Hochdanner asked whether he could look in Chandler's backpack, Chandler said, "Fuck no." Hochdanner asked Chandler to leave the store and then walked him out of the store and watched him leave. Hochdanner testified he went back to the liquor cage to see if anything was missing and then told his manager he had caught someone in the liquor cage. Hochdanner's manager reminded him that an inventory had just been taken of the items in the liquor cage. Hochdanner checked the cigarettes and determined that 30 cartons of cigarettes, totaling about $1,500, were missing. Hochdanner inspected the liquor cage to try to determine how Chandler had opened the door and found that the chicken wire had been clipped next to the door frame about a foot and a half below the level of the door handle. The clipped wires looked like they had been pulled apart. Hochdanner put his arm through the hole in the chicken wire and was able to reach the door handle and open the door. Hochdanner indicated that the store was equipped with a video surveillance system, but the only camera in the rear area of the store behind the swinging doors was by the receiving door “about 100 or 200" feet away from the liquor cage and so nothing that happened inside the cage would have been video recorded. Hochdanner testified that “[w]e had video of the suspect walking in the store and walking -4- [14cv103-GPC(BGS)] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 out of the store with me.” A video clip showing Chandler in the store that night was played for the jury. 3. June 3, 2010: Assault with a deadly weapon (counts 1 & 2), burglary (count 3), and making a criminal threat (count 4) David Beeler testified that at around 4:50 p.m. on June 3, he was working as the assistant manager at the same CVS store. He went into the back storage room, opened the liquor cage with his key, turned on the light, and saw Chandler lying on his stomach inside the liquor cage. Beeler saw a few cartons of cigarettes and a beer on the floor next to a backpack, about a foot away from Chandler. As Beeler was standing in the doorway holding the door open, Chandler reached for the backpack and stood up. Chandler told Beeler, “I don't have anything,” and opened the backpack. Beeler recognized Chandler from a photograph of Chandler taken at the store entrance on the night of the prior incident. The store manager had shown the photograph to Beeler and told him to “keep an eye out.” As Beeler was standing in the liquor cage doorway, Chandler walked toward him to get out of the cage, saying, “You ain't got me. You don’t got anything on me. You can’t do anything.” Beeler put his hand out to stop Chandler from leaving and said, “Wait a minute. Wait, wait, wait. You’re the guy from last time.” Chandler then reached into the front right pocket of his pants, pulled out a standard box cutter knife, and swung it at Beeler’s neck. Beeler testified that the box cutter came within about three inches of his neck. Beeler fell back “in shock” out of the liquor cage doorway, and Chandler walked out of the liquor cage and out through storage room doors into the store. Beeler stated he followed behind Chandler and tried to call 911 from his cell phone but was flustered and misdialed a couple of times. As they passed the photo lab counter, Beeler, who was about 10 feet behind Chandler, yelled out to the photo clerk, Christina Liebelt, that Chandler tried to stab him and for her to call 911. Beeler testified he had a hard time speaking when he spoke to her, and she thought he was joking. Chandler, who became angry, stopped walking and said something like “I ain’t got nothing on you” and then continued walking with Beeler again following him. Beeler testified that as they exited the store through the front entrance, Chandler told him, “You ain’t nothing to me. I’ll kill you. No problem.” Chandler walked across a parking lot toward a bus stop with Beeler following him. Before they reached the bus stop, Chandler turned around, took the box cutter out of his pocket again, and told Beeler something to the effect that he had no problem killing Beeler, and Beeler was nothing to him. Beeler testified that Chandler threatened him with the box cutter he had used in the liquor cage, but this time it only came within about a foot and a half of Beeler’s neck. David Salo, a CVS cashier, testified he was working at the courtesy booth in the front of the store that day when he saw Beeler and Chandler walk past his register. According to Salo, Beeler and Chandler were “in a heated conversation” and a “confrontation of some type” appeared to be going on. Chandler was trying to get out of the -5- [14cv103-GPC(BGS)] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 store and was aggressively pushing Beeler. Salo testified that Beeler “was trying to delay [Chandler] until the police got there.” Chandler told Beeler in a threatening way, “Get out of my way,” and Beeler said, “No, you're not going.” Salo also heard Chandler make some threatening comment like “I'll hurt you.” Chandler was gripping something in his hand, which Salo thought was a box cutter. Salo followed Beeler and Chandler after they left the store, but he did not see Chandler brandish a weapon toward Beeler. Salo saw Beeler come back. Salo then got into his truck and followed Chandler. Salo stopped a police officer and gave information about the incident. At around 5:00 p.m. that day, after being flagged down by a CVS employee in the vicinity of the CVS store, San Diego Police Officer Kristopher Spencer found Chandler a couple of blocks away. After Chandler started to walk away, Officer Spencer and another officer drew their service weapons and ordered Chandler to stop and get down to the ground. Officer Spencer took Chandler into custody “as a detention” because he fit the description of the suspect. Chandler had a plain black backpack with shoulder straps, which Officer Spencer impounded. Officer Spencer searched the immediate area and in some small hedges about 15 feet from where Chandler dropped to the ground, the officers found a box cutter with an angled retractable blade and a pair of wire cutters, which were also impounded. B. The Defense Case Chandler did not testify. Christina Liebelt, the CVS employee who was working in the photo lab of the store on June 3, testified for the defense. She testified that during the incident on that date Beeler told her to call 911. Initially, she thought Beeler was kidding “because he has a dry sense of humor” and makes jokes. Beeler again asked her to call 911 and said something like “[h]e tried to kill me” or “[h]e tried to cut me.” This prompted Liebelt to call 911. Liebelt testified she recognized Chandler from a picture she had seen of him. She stated she did not hear Chandler, who was trying to leave the store, make any threats. San Diego Police Officer Daniel Vaquero testified that he investigated the June 3 incident and interviewed Beeler. Officer Vaquero testified he did not collect any video from the store because “there was no video of the assault in the back cage or in the middle of the store.” When asked whether a second alleged attack took place near Liebelt’s photo counter, Officer Vaquero replied, “I didn't say that it happened during [sic] the photo counter, sir.” At the defense counsel's request, Officer Vaquero refreshed his memory by reading the report he prepared and the indicated that Beeler had told him the second attack took place near the photo counter. On cross-examination, Officer Vaquero stated that Beeler was upset, red, and shaking when the officer talked to him, and he had to console Beeler by saying, “It's ok. You're okay. You're not hurt, and I know this is hard, but it’s good that you're reporting it.” -6- [14cv103-GPC(BGS)] 1 (Dkt. No. 9, Lodgment No. 11 at 4-10.) 2 DISCUSSION 3 I. Standard of Review of Magistrate Judge’s Report and Recommendation 4 The district court’s duties in connection with a Report of a magistrate judge are 5 set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district 6 judge must “make a de novo determination of those portions of the report . . . to which 7 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings 8 or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C). The district 9 court need not review de novo those portions of a Report to which neither party 10 objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States 11 v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). When no objections 12 are filed, the Court may assume the correctness of the Magistrate Judge’s findings of 13 fact and decide the motion on the applicable law. Campbell v. U.S. Dist. Court, 501 14 F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. 15 Cal. 2001). 16 II. Legal Standard 17 Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 18 it is a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA 19 standard of review set forth in 28 U.S.C. § 2254(d). This standard states that “[an] 20 application for a writ of habeas corpus on behalf of a person in custody pursuant to the 21 judgment of the State court shall not be granted with respect to any claim unless” the 22 claim “resulted in a decision that was contrary to, or involved an unreasonable 23 application of, clearly established Federal law, as determined by the Supreme Court of 24 the United States.” 28 U.S.C. § 2254(d). 25 III. Analysis 26 Petitioner raises five claims in his Petition. First, he argues the state court trial 27 judge improperly excluded evidence of Beeler’s employment records and the CVS 28 employee manual. Second, Petitioner claims the state trial judge improperly permitted -7- [14cv103-GPC(BGS)] 1 the prosecution to introduce evidence of “other crimes” he had committed. Third, 2 Petitioner contends the prosecutor committed misconduct. Fourth, Petitioner claims his 3 multiple appointed counsels were ineffective. Lastly, Petitioner argues that the 4 cumulative effect of all of the errors that occurred at his trial rendered it fundamentally 5 unfair. (Dkt. No. 1, Pet. at 6-38.) 6 A. 7 In his first claim, Petitioner contends the state court trial judge prejudicially Improper Exclusion of Evidence by the Trial Court 8 abused his discretion and deprived him of his constitutional right to present a defense 9 by excluding, under California Evidence Code section 352, evidence of (1) Beeler’s 10 employment records regarding his November 2010 termination from another CVS 11 store; and (2) CVS’s policy manual on how employees should handle shoplifters, which 12 Petitioner claims would have demonstrated that Beeler was the aggressor and that his 13 testimony was fabricated so that he could keep his job. (Dkt. No. 1, Pet. at 6-15.) 14 Respondent contends that the claim does not state a federal question, and, in the 15 alternative, that the state court’s resolution of this claim was neither contrary to, nor an 16 unreasonable application of clearly established Supreme Court law. (Dkt. No. 8 at 29.) 17 Petitioner raised this claim in the petition for review that he filed in the 18 California Supreme Court. (Dkt. No. 9, Lodgment No. 12 at 16-17.) The California 19 Supreme Court denied the petition without citation of authority. (Dkt. No. 9, Lodgment 20 No. 13.) Accordingly, this Court must “look through” to the opinion of the Court of 21 Appeal as the basis for its analysis. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 22 (1991). 23 The Court of Appeal ruled that the trial court did not abuse its discretion by 24 excluding evidence regarding the termination of Beeler’s employment at CVS, six 25 months after the June 3 incident evidence, based on a different incident, as irrelevant 26 under the relevance standard under California Evidence Code section 350 and 210. 27 (Dkt. No. 9, Lodgment No. 11 at 17.) The court explained that the incident was so 28 dissimilar in nature to the June 3 incident and that Petitioner failed to show that this -8- [14cv103-GPC(BGS)] 1 evidence had any tendency to prove or disprove that Beeler was the aggressor or was 2 angry during the June 3 incident. (Id. at 17-18.) As to the CVS policy manual, the 3 Court of Appeal stated that while it may have “had a modicum of relevancy on the 4 issue of Beeler’s credibility”, the error was not prejudicial and did not rise to the level 5 of constitutional error. (Dkt. No. 9, Lodgment No. 11 at 18-19.) Because the court 6 concluded that the alleged error did not rise to the level of constitutional error, it 7 applied the harmless error standard set forth in People v. Watson, 46 Cal. 2d 818, 836 8 (1956). (Id. at 22.) The Court of Appeal concluded the Petitioner failed to meet the 9 burden of showing it is reasonably probable he would have received a more favorable 10 result had the excluded evidence been admitted. (Id.) 11 In the Report, the Magistrate Judge concluded that Petitioner is not entitled to 12 relief because he alleged state law errors relating to the exclusion of information about 13 Beeler’s employment records and the CVS employee manual. See 28 U.S.C. § 14 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas relief is not 15 available for alleged violations of state law). The Magistrate Judge also concluded that 16 to the extent Petitioner alleges a constitutional violation, his claim fails. 17 Petitioner objects to the Magistrate Judge’s Report arguing that clearly 18 established federal law provides that the right to present evidence and witnesses is 19 essential to due process and guaranteed by the Compulsory Clause of the Sixth 20 Amendment. (Id.) Petitioner claims that the state court’s exclusion of defense evidence 21 rendered the proceedings so fundamentally unfair as to violate his right to due process. 22 (Dkt. No. 19 at 4.) Petitioner contends that Beeler’s firing was a major part of 23 Petitioner’s defense. (Id.) He also argues that the trial court’s error was prejudicial and 24 that the exclusion of the CVS manual had a substantial and injurious effect on the 25 jury’s verdict. (Id.) 26 Generally, state court evidentiary rulings are not cognizable on habeas review. 27 Estelle, 502 U.S. at 67. To the extent Petitioner alleges a state law error on an 28 evidentiary ruling, it is without merit. See id. -9- [14cv103-GPC(BGS)] 1 The United States Constitution guarantees criminal defendants “a meaningful 2 opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 3 (1986) (can be rooted in due process clause, compulsory process or confrontation 4 clause). However, there is no requirement that a “defendant must be allowed to put on 5 any evidence he chooses.” LaGrand v. Stewart, 133 F.3d 1253, 1266 (9th Cir. 1998). 6 Under the Constitution, well established rules of evidence permit trial judges to 7 exclude evidence if its probative value is outweighed by other factors. Moses v. Payne, 8 555 F.3d 742, 758 (9th Cir. 2008) (quoting Holmes v. South Carolina, 547 U.S. 319, 9 326 (2006)). A trial court is granted substantial latitude to define rules for the exclusion 10 of evidence and to apply those rules to criminal defendants. United States v. Scheffer, 11 523 U.S. 303, 308 (1998). State law rules excluding evidence from criminal trials do 12 not abridge a criminal defendant’s right to present a defense unless they are “arbitrary” 13 or “disproportionate to the purposes they were designed to serve” and “infringe[s] upon 14 a weighty interest of the accused.” Id. at 308; see Holmes, 547 U.S. at 326. The 15 exclusion of defense evidence is error only if it renders the state proceeding so 16 fundamentally unfair as to violate due process. Estelle, 502 U.S. at 67. 17 AEDPA established a “highly deferential standard for evaluating state-court 18 rulings.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (internal quotations omitted). 19 The Ninth Circuit has noted that the Supreme Court has not “squarely addressed” the 20 specific issue of a trial court’s discretionary determination to exclude evidence and the 21 right to present a complete defense. Brown v. Horell, 644 F.3d 969, 983 (2011) (no 22 “controlling legal standard” for evaluating discretionary decision to exclude evidence 23 at issue); Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009) (no Supreme Court 24 precedent exists concerning discretionary decisions to exclude evidence so exclusion 25 of expert witness testimony was not contrary to clearly established federal law). 26 Therefore, since the issue has never been addressed by the Supreme Court, there is no 27 clearly established Federal law for purposes of review under AEDPA and a petitioner 28 cannot show that the state court’s ruling was either contrary to or an unreasonable - 10 - [14cv103-GPC(BGS)] 1 application of clearly established Supreme Court precedent. See Brown, 644 F.3d at 2 983; Moses, 555 F.3d at 758, 760; see also Johnson v. Soto, No. 2:12cv2887 MCE 3 DAD P, 2015 WL 1565356, at *40 (E.D. Cal. Apr. 8, 2014); Duarte v. Soto, No. SACV 4 13-1231-R(JEM), 2015 WL 366125, at *12 (C.D. Cal. Jan. 23, 2015). Similarly, in this 5 case, Petitioner’s claim regarding the improper exclusion of evidence by the state trial 6 court cannot be said to be contrary to or an unreasonable application of clearly 7 established Supreme Court precedent. See Brown, 644 F.3d at 983; Moses, 555 F.3d 8 at 758. Therefore, Petitioner is not entitled to relief on this claim. 9 Alternatively, even if the Court considered the claim, it is without merit. The 10 Ninth Circuit has identified five factors that should be considered to evaluate whether 11 exclusion of defense evidence violates the constitution: “(1) the probative value of the 12 excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of 13 evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely 14 cumulative; and (5) whether it constitutes a major part of the attempted defense.” 15 Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir. 1990). The importance of the evidence 16 must then be balanced against the state interest in exclusion. Id. To outweigh the state’s 17 strong interest in administration of its trials, the circumstances of the exclusion must 18 be “unusually compelling.” Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983). The 19 court must give due weight to the substantial state interest in preserving orderly trials, 20 judicial efficiency, and excluding unreliable or prejudicial evidence. Id. 21 22 1. Beeler’s Termination The Court of Appeal concluded that the trial court acted within its broad 23 discretion when it excluded as irrelevant the evidence regarding Beeler’s termination, 24 five months after the incident, based on an incident at a different CVS store. (Dkt. No. 25 9, Lodgment 11 at 17-18.) The court stated that such evidence has no tendency to prove 26 whether Beeler was the aggressor or was angry during the June 3 incident. (Id. at 18.) 27 Moreover, the Court of Appeal concluded that the trial court demonstrated that 28 Petitioner had a meaningful opportunity to present a complete defense and that - 11 - [14cv103-GPC(BGS)] 1 Petitioner failed to meet his burden of showing it is reasonably probable that he would 2 have received a more favorable result had the excluded evidence been admitted. (Dkt. 3 No. 9, Lodgment 11 at 20-22.) The court reasoned that the exclusion of evidence at 4 issue “did not prevent Chandler from presenting other evidence challenging Beeler’s 5 credibility and supporting his defense that Beeler was not a credible prosecution 6 witness, and that Beeler was angry and the initial aggressor during the June 3 incident.” 7 (Id.) 8 At trial, defense counsel sought to admit evidence that Beeler was fired from 9 another CVS store around five months after the incident involving Petitioner on June 10 3. (Dkt. No. 9, Lodgment 2, vol. 1, part 1 at 31). He sought to show that Beeler was the 11 aggressor, violated CVS policy and was not credible. Beeler was fired from CVS after 12 a customer who complained about service asked for Beeler’s identification and he took 13 it off and threw it down on the counter in front of her, telling her that she was not 14 welcome in the store. (Dkt. No. 9, Lodgment 1, vol. 3 at 28.) Defense counsel asked 15 to conduct an Evidence Code section 402 hearing to determine if Beeler had touched 16 the customer during the altercation. Counsel argued such evidence would support 17 Petitioner’s claim that Beeler touched Petitioner and physically blocked him from 18 exiting the store. (Id. at 43.) The following day, defense counsel asked the trial court 19 for guidance on whether the circumstances of Beeler’s termination from CVS would 20 become relevant, depending on Beeler’s testimony. (Id. at 90.) The court reiterated its 21 position that the circumstances regarding Beeler’s CVS termination were irrelevant, but 22 also added that if Beeler were to testify in contradiction to the facts surrounding his 23 termination, the evidence might come in as impeachment. (Id. at 91-92.) 24 The first Tinsley factor, whether the excluded evidence was probative on the 25 central issue, does not weigh in favor of Petitioner. To prove that Petitioner committed 26 burglary, the prosecution had to show that he entered the CVS store with the intent of 27 committing theft. See Cal. Penal Code § 459; (Dkt No. 9, Lodgment No. 2, vol. 1, part 28 1 at 78.) To prove that Petitioner committed an assault with a deadly weapon, the - 12 - [14cv103-GPC(BGS)] 1 prosecution had to prove that he willfully committed an act with a deadly weapon other 2 than a firearm, which by its nature would directly and probably result in the application 3 of force to a person, and he had the present ability to apply force with a the deadly 4 weapon. (Dkt No. 9, Lodgment No. 2, vol. 1, part 1 at 82.) Thus, the central issue in 5 this case with regard to the burglary charge was intent. For the assault charges, the 6 central issue was Beeler’s credibility, since Petitioner asserted that Beeler was the 7 aggressor and that an assault occurred in the liquor cage. The fact that Beeler was fired 8 from CVS five months after his incident with Petitioner was not probative of either 9 Petitioner’s intent or Beeler’s credibility. Therefore, this first factor weighs against 10 Petitioner. See Tinsley, 895 F.2d at 530. Factors two and three, however, weigh in 11 favor of Petitioner, as evidence of Beeler’s termination by CVS was both reliable and 12 capable of evaluation by the jury. See id. 13 The fourth Tinsley factor, as to whether excluded evidence was the sole evidence 14 or merely cumulative, is not applicable since the firing of Beeler five months after the 15 incident with Petitioner had no relevance either to Petitioner’s intent to commit theft 16 or Beeler’s credibility. See id. Furthermore, Petitioner’s defense counsel thoroughly 17 cross examined Beeler about his actions toward Petitioner and even impeached Beeler 18 on several inconsistencies. (Dkt. No. 9, Lodgment No. 1, vol. 2 at 225-60, 266-69.) On 19 direct examination, defense counsel asked Liebelt, a CVS employee who was working 20 at the CVS photo booth on the day of the incident, to describe what she observed 21 during the incident between Petitioner and Beeler. (Id.) Liebelt testified that Beeler was 22 walking in front of Petitioner, with his hands up to block Petitioner from leaving the 23 store. (Dkt. No. 9, Lodgment 1, vol. 4 at 378.) David Salo, another CVS employee, also 24 testified that Beeler got around Petitioner so that he could block Petitioner from getting 25 out of the store. (Id. at 291.) Based on the evidence challenging Beeler’s credibility, the 26 jury acquitted Petitioner of counts two and four, the assault with a deadly weapon and 27 criminal threat charges. 28 Last, with regards to the fifth Tinsley factor, Beeler’s firing did not constitute a - 13 - [14cv103-GPC(BGS)] 1 major part of Petitioner’s defense. Petitioner sought to convince the jury that he had no 2 intentions of burglarizing the CVS store and that he did not threaten or assault Beeler 3 with the box cutter. Beeler’s termination from CVS five months later may have had 4 probative value in regards to Beeler’s temper, yet it did not shed significant light on 5 Petitioner’s defense. 6 For the forgoing reasons, the Tinsley factors weigh against the admission of 7 Beeler’s employment records and their exclusion did not violate Petitioner’s due 8 process rights. 9 10 2. The CVS Employee Manual Petitioner also sought to admit evidence that Beeler’s actions violated the CVS 11 employee manual when he followed Petitioner out of the store. Petitioner contends that 12 the CVS employee manual is relevant to his defense because it showed that Beeler lied 13 about the incident with Petitioner so that he could keep his job. 14 The CVS employee manual states that an employee must not “pursue or chase 15 a fleeing shoplifter” and pursuit “beyond the entrance/exit of a store will not be 16 tolerated, and may result in disciplinary action up to and including termination.” (Dkt. 17 No. 9, Lodgment 2 vol. 1 at 34.) Petitioner asserts that the CVS employee manual 18 would have impeached Beeler’s credibility as to what happened in the liquor cage and 19 whether Beeler lied about Petitioner assaulting or threatening him, and the state 20 appellate court noted that “the evidence of the CVS policy manual may have had a 21 modicum of relevancy on the issue of Beeler’s credibility.” (Dkt. No. 9, Lodgment 11 22 at 17.) However, the state appellate court also found that the trial court’s error did not 23 deprive Petitioner of his ability to present a defense. (Id.) The Court of Appeal 24 concluded that the trial court’s exclusion of evidence at issue did not prevent 25 Petitioner from presenting other evidence that, just as effectively, challenged Beeler’s 26 credibility and supported his defense that Beeler was not a credible prosecution witness 27 and that he was the initial aggressor during his June 3 incident with Petitioner. (Id. at 28 19.) - 14 - [14cv103-GPC(BGS)] 1 As to the first Tinsley factor, the CVS policy manual had no probative value on 2 the central issue of Petitioner’s intent to burglarize CVS. On the other hand, however, 3 the manual had some probative value on the central issue of Petitioner’s defense to the 4 other charges, such as Beeler’s credibility. Petitioner argued that Beeler had lied to 5 Officer Vaquero following the incident, when he told him that Petitioner attacked him 6 for a second time while inside of the store. (Lodgment No. 1, vol. 2 at 243.) During 7 cross examination of Beeler, defense counsel reminded him that following the incident 8 he told the responding police officer Petitioner had attacked him once while he was 9 inside the liquor cage, and a second time when he was near the photo counter inside of 10 the store. (Dkt. No. 9, Lodgment 1 vol. 3 at 35.) Beeler also had said that he did not go 11 past the CVS exit door, and specifically did not go to the parking lot. (Id. at 172.) 12 Contradicting himself, Beeler later testified at trial that the second attack took place in 13 the parking lot. (Dkt. No. 9, Lodgment 1 vol. 3, at 214-17.) Therefore, the first Tinsley 14 factor is satisfied. See Tinsley, 895 F.2d at 530. The second and third Tinsley factors 15 are also satisfied because this evidence was reliable and capable of being evaluated by 16 the jury. Id. 17 Applying the fourth Tinsley factor, however, the CVS employee manual was not 18 the sole evidence on the question of Beeler’s credibility. Defense counsel was given 19 sufficient opportunity to thoroughly cross examine Beeler about his initial statements 20 to the responding police officer and point out the inconsistencies in those statements 21 with Beeler’s testimony at trial. (Dkt. No. 9, Lodgment No. 1, vol. 3 at 223-60, 22 266-69.) Defense counsel also questioned the responding police officer, Vaquero, 23 about Beeler’s initial statements following the incident, and Vaquero testified that 24 Beeler had told him that the second attack took place inside of the CVS store near the 25 photo booth. (Dkt. No. 9, Lodgment No. 1, vol. 4 at 365.) Specifically, when asked if 26 Beeler had told him that the second attack took place near the photo counter inside of 27 the store, Vaquero responded in the affirmative. (Id.) When defense counsel asked 28 Vaquero if Beeler had told him “that he was afraid for his life and he stopped following - 15 - [14cv103-GPC(BGS)] 1 [Petitioner] as he exited the front door, as [Petitioner] exited the front door,” Vaquero 2 responded in the affirmative. (Id. at 371.) 3 Furthermore, although Beeler testified at trial that he did not touch Petitioner or 4 try to physically prevent him from exiting the store, Liebelt testified that Beeler put his 5 hands up in front of Petitioner to block him from leaving, as Petitioner walked towards 6 the store’s exit. (Dkt No. 9, Lodgment 1, vol. 4 at 378.) This contradicts Beeler’s 7 statement that Petitioner had threatened to kill him as they exited the store. (Dkt. No. 8 9, Lodgment No. 1, vol. 3 at 214.) David Salo, another CVS employee, also testified 9 that Beeler got around Petitioner so that he could block Petitioner from getting out of 10 the store. (Id. at 291.) At closing, defense counsel argued vigorously that Beeler was 11 lying about the incident with Petitioner, attempting to look like the victim when he was 12 in fact the aggressor. (Dkt. No. 9, Lodgment No. 1, vol. 4 at 471-82.) For these reasons, 13 the fourth Tinsley factor weighs against Petitioner. See Tinsley, 895 F.2d at 530. 14 Lastly, regarding the fifth Tinsley factor, although Beeler’s credibility 15 constituted a major part of Petitioner’s defense, the CVS employee manual was a minor 16 part of that defense. Id. The record of the trial court demonstrated that the 17 inconsistencies between Beeler’s initial statements to police and his testimony at trial, 18 along with Liebolt, Vaquero, and Salo’s testimonies, show that Petitioner was able to 19 discredit Beeler without needing to use the CVS employee manual. In fact, the CVS 20 manual would have only further impeached Beeler’s credibility. Therefore, on the 21 whole, because the CVS employee manual did not constitute a major part of Petitioner's 22 defense, the fifth Tinsley factor weighs against Petitioner. 23 While the Tinsley factors may weigh in favor of Petitioner, the Court must next 24 look at whether the exclusion of the CVS manual had a “substantial and injurious effect 25 or influence on the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 637 26 (1993). As discussed above, the defense was able to impeach Beeler’s credibility 27 which is reflected in the jury’s verdict where they acquitted Petitioner of assaulting 28 Beeler with a deadly weapon in the CVS parking lot and issuing a criminal threat to - 16 - [14cv103-GPC(BGS)] 1 Beeler. Any further evidence to impeach Beeler’s credibility would not have altered 2 the jury’s verdict. For the foregoing reasons, this Court concludes that the state court’s 3 denial of Petitioner’s first claim did not render Petitioner’s trial fundamentally unfair. 4 See Estelle, 502 U.S. at 67. 5 B. 6 In his second claim, Petitioner alleges the trial court improperly permitted the Admission of “Other Crimes” Evidence 7 prosecution to introduce evidence of another uncharged crime concerning a 2009 theft 8 incident at Vons. (Dkt. No. 1 at 16-25.) Petitioner argues that the “other crimes” 9 evidence was more prejudicial than probative and deprived him of his right to due 10 process and a fair trial. (Id.) Respondent contends that this claim does not state a 11 federal question and that the court of appeal found no error in the admission of the 12 evidence under California law. (Dkt. No. 8 at 37.) 13 The Court of Appeal upheld the trial judge’s decision, finding that the court did 14 not abuse its discretion under California Evidence Code sections 1101 and 352. (Dkt. 15 No. 9, Lodgment 11 at 30.) The court reasoned that Petitioner failed to meet his burden 16 of showing that the probative value of the evidence of the 2009 theft incident was 17 substantially outweighed by the probability that its admission would create danger of 18 undue prejudice. (Id.) The court noted that substantial evidence showed that the May 19 18 and June 3 incidents at CVS shared a number of distinctive similarities with the 20 2009 Vons theft such as Petitioner targeted commercial retail businesses, used a large 21 bag in a remote area of the store, and had intent to commit theft. (Id.) The CVS incident 22 also occurred near the 2009 Vons theft, within a year’s time period. (Id.) The court 23 concluded that these similarities were sufficient to support the trial court’s decision to 24 admit the other crimes evidence of the 2009 theft, and that the prior incidents proved 25 the specific intent elements of the burglary and grand theft offenses. (Id.) 26 In the Report, the Magistrate Judge concluded that Petitioner was not entitled to 27 federal habeas corpus relief for this claim because the challenged evidence did not 28 prejudice Petitioner’s trial to the degree of making it fundamentally unfair. (Dkt. No. - 17 - [14cv103-GPC(BGS)] 1 18 at 21.) The Magistrate Judge also concluded that since there is no clearly established 2 Supreme Court Law on whether evidence of other crimes is admissible or violates due 3 process, the state court’s ruling cannot be said to be contrary to or an unreasonable 4 application of clearly established Supreme Court law. (Id.) 5 Petitioner objects to the Report alleging that the jury did not follow the court’s 6 instructions concerning the other crimes evidence, and that the admission of the other 7 crimes violated his due process rights and rendered his trial fundamentally unfair. 8 (Dkt. No. 19 at 6-7.) Petitioner also claims that the previous uncharged crimes did not 9 resemble the charges in the present case, because he was charged with stealing different 10 items. (Id. at 6.) 11 Petitioner’s claim concerns the admission of evidence which is an issue of state 12 law and cannot be subject to relief in a federal habeas petition. See Estelle, 502 U.S. 13 at 67-68 (“[I]t is not the province of a federal habeas court to reexamine state court 14 determinations on state-law questions.”). 15 Moreover, Petitioner’s constitutional claim concerning the admission of other 16 crimes evidence cannot be subject to AEDPA because there is no clearly established 17 Supreme Court law on this issue. Where there is no clearly established Supreme Court 18 law, a state court’s denial of a claim cannot be said to be contrary or an unreasonable 19 application of clearly established Supreme Court law. Carey v. Musladin, 549 U.S. 70, 20 75, 76-77 (2006). The Ninth Circuit has acknowledged that the Supreme Court has not 21 addressed the issue of whether admission of irrelevant or overly prejudicial evidence 22 renders a trial fundamentally unfair. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th 23 Cir. 2009) (even though the trial court’s admission of evidence resulted in a trial that 24 was fundamentally unfair and would warrant issuance of the writ under Ninth Circuit 25 precedent, issuance of writ was not possible since Supreme Court had not made a clear 26 ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due 27 process violation sufficient to warrant issuance of the writ). Therefore, even if the 28 evidence was improperly admitted, the claim would not be grounds for relief. See id. - 18 - [14cv103-GPC(BGS)] 1 Moreover, the “Supreme Court has never expressly held that it violates due process to 2 admit other crimes evidence for the purpose of showing conduct in conformity 3 therewith, or that it violates due process to admit other crimes evidence for other 4 purposes without [a limiting instruction].” Garceau v. Woodford, 275 F.3d 769, 774 5 (9th Cir. 2001), rev’d on other grounds, 538 U.S. 202(2003); Alberni v. McDaniel, 458 6 F.3d 860, 863-64 (9th Cir. 2006). In fact, the Supreme Court expressly declined to 7 decide the issue of whether the admission of prior crimes evidence to show propensity 8 to commit a charged crime violates the Due Process clause. Estelle, 502 U.S. at 75 n. 9 5. “[W]hen the Supreme Court has expressly reserved consideration of an issue, as it 10 has here, the petitioner cannot rely on circuit authority to demonstrate that the right he 11 or she seeks to vindicate is clearly established.” Alberni, 458 F.3d at 864; Saleh v. 12 Fleming, 262 F. App’x 802, 804 (9th Cir. 2008) (no AEDPA relief because Supreme 13 Court has expressly reserved consideration of the issue); Munoz v. Gonzales, 596 F. 14 App’x 588, 589 (9th Cir. 2015); Carrillo v. McDonald, No. 1:12cv1203-JLT, 2015 WL 15 1746550, at *33-34 (E.D. Cal. Apr. 16, 2015). Accordingly, AEDPA relief is not 16 available on this claim. 17 C. 18 In his third claim, Petitioner contends the prosecutor at trial committed Prosecutorial Misconduct 19 misconduct by its “failure to disclose Brady evidence in possession of investigative 20 agencies” and “knowingly allowing exculpatory evidence to be destroyed in bad faith 21 and misrepresentation.” (Dkt. No. 1 at 26.) Specifically, Petitioner alleges the 22 prosecutor knew that the store surveillance video contained exculpatory evidence, 23 misrepresented the existence and contents of such video, and failed to preserve that 24 evidence. (Id. at 26-32.) Respondent argues that there is no authority for the 25 proposition that the prosecution must go out and obtain evidence on behalf of a 26 defendant, and that the Due Process Clause only requires law enforcement to preserve 27 exculpatory evidence that is already in their possession. (Dkt. No. 8 at 46.) Respondent 28 also argues that Petitioner has failed to show that the police acted in bad faith in - 19 - [14cv103-GPC(BGS)] 1 allegedly destroying the evidence that had exculpatory value. 2 In the Report, the Magistrate Judge concluded that Petitioner did not establish 3 that the video surveillance had any exculpatory value that was apparent before the 4 evidence was destroyed, nor did he establish that the failure to preserve the surveillance 5 tape was due to bad faith on the part of the police. (Dkt. No. 18 at 27.) Petitioner 6 objected to the Magistrate Judge’s Report, claiming as he did in his petition, that the 7 prosecutor failed to disclose exculpatory evidence in the possession of state 8 investigative agencies and knowingly allowed exculpatory evidence to be destroyed 9 in bad faith. (Dkt. No. 19 at 8.) 10 First, the Magistrate Judge noted that it is not clear that this claim is exhausted. 11 Petitioner did not raise this specific claim in the petition for review that he filed in the 12 California Supreme Court. In the petition for review, Petitioner merely states, 13 “[P]etitioner asserted 23 claims in his habeas corpus petition . . . [and] adopts the 14 statement presented in the Court of Appeal’s decision for purposes of this petition.” 15 (Dkt. No. 9, Lodgment 12 at 34.) Respondent did not argue that this claim is 16 unexhausted. 17 AEDPA provides that a writ of habeas corpus may be denied where the applicant 18 failed “to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 19 2254(b)(2). A federal court may deny an unexhausted claim on the merits where “it is 20 perfectly clear that the applicant does not raise even a colorable federal claim.” 21 Granberry v. Greer, 481 U.S. 129, 135 (1987); Cassett v. Stewart, 406 F. 3d 614, 624 22 (2005) (holding that the Ninth Circuit adopts the Granberry standard). Since 23 Petitioner’s claim of prosecutorial misconduct does not raise a colorable federal claim, 24 the Court addresses the merits of the claim. 25 When it is clear that the state court has not decided an issue, review by the 26 federal court is de novo. Rompilla v. Beard, 434 U.S. 374, 390 (2005); see also Lewis 27 v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004); Reynoso v. Giurbino, 462 F.3d 1099, 28 1109 (9th Cir. 2006) (“[w]hen it is clear, however, that the state court has not decided - 20 - [14cv103-GPC(BGS)] 1 an issue, we review that question de novo”). 2 Petitioner alleges that the prosecution failed to disclose Brady evidence in 3 possession of investigative agencies. Respondent denies it was in possession of the 4 video and denies that it failed to disclose Brady evidence. A prosecutor’s failure to 5 disclose favorable evidence to an accused “violates due process where the evidence is 6 material either to guilt or to punishment, irrespective of the good faith or bad faith of 7 the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). To establish that the 8 government’s failure to turn over evidence violates Brady, Petitioner must demonstrate 9 (1) the evidence was suppressed by the government either willfully or inadvertently; 10 (2) the evidence was favorable to the accused because it was either exculpatory or 11 impeaching; and (3) prejudice resulted from the failure to disclose. See Strickler v. 12 Greene, 527 U.S. 263, 280-81 (1999). In addition, Trombetta held that the 13 government’s bad faith destruction of, or failure to preserve, potentially exculpatory 14 evidence violates due process. California v. Trombetta, 467 U.S. 479, 489 (1984). In 15 addition, under Trombetta, the evidence must be of a nature that the defendant would 16 be unable to obtain comparable evidence by other reasonably available means. Id. 17 Petitioner has not shown that the prosecution suppressed or failed to disclose the 18 existence of the June 3rd CVS surveillance tape. While the prosecution made efforts 19 to obtain the video, they were informed that no tape existed as it was taped over. (Dkt. 20 No. 9, Lodgment No. 1, vol. 3 at 68-69.) On June 3rd, Police Officer Vaquero viewed 21 the video and reported that he did not see any video of the defendant entering or exiting 22 the store and that the video only shows the cash registers and the entryway. (Id. at 63.) 23 Since there was nothing of significant on the video, he wrote, “None” on the police 24 report. (Id. at 65.) While a factual dispute was raised as to whether the video shows 25 defendant entering and exiting, (id. at 64-65), the CVS surveillance tape did not contain 26 any exculpatory evidence since the surveillance tape did not capture the liquor case 27 area where the assault occurred and only captured the checkstands, the customer 28 service booth, the two entrances to the store and two views of the sales floor. - 21 - [14cv103-GPC(BGS)] 1 (Lodgment No. 1, vol. 2 at 159-60.) 2 As to the June 3 incident, Petitioner was convicted of assaulting Beeler with a 3 deadly weapon in the liquor cage area and burglarizing the CVS store, and both charges 4 alleged that Petitioner personally used a deadly weapon. (Dkt No. 9, Lodgment No. 2 5 at 9-11.) Petitioner was acquitted of the second assault on Beeler outside of the CVS 6 store and for making a criminal threat. (Id. at 214-19.) The video surveillance of the 7 May 18 incident at the same store shows the angles from the video surveillance 8 cameras inside of CVS were limited to the check stands, the two entrances to the store, 9 the customer service booth, and two views of the sales floor. (Dkt. No. 9, Lodgment 10 No. 1, vol. 3 at 145-46.) Thus, the record establishes that there was no video 11 surveillance of the liquor cage area where Petitioner’s assault on Beeler occurred. 12 Therefore, any available video surveillance could not have aided Petitioner’s defense 13 regarding the assault. With regards to the burglary charge, the Respondent was 14 required to prove that Petitioner entered the CVS store with an intent to commit theft, 15 yet Petitioner’s Objection fails to address how the surveillance video would have shed 16 light on his intent. (See Dkt. No. 19 at 8-14.) Thus, Petitioner has failed to demonstrate 17 that the prosecution withheld evidence that was exculpatory. 18 Next, Petitioner argues that the prosecution knowingly allowed exculpatory 19 evidence to be destroyed in bad faith. First, since the prosecution or the police never 20 had the video in their possession, then Trombetta is inapplicable. See Miller v. 21 Vasquez, 868 F.2d 1116, 1119 (9th Cir. 1989) (Trombetta did not impose a duty to 22 obtain evidence but to preserve evidence that is in possession of the police). 23 Furthermore, Petitioner has failed to meet the requirement of Trombetta, by showing 24 that he was unable to obtain comparable evidence by other reasonable means. See 25 Trombetta, 467 U.S. at 489. As the Court of Appeals noted, “defense counsel 26 repeatedly attacked Beeler’s credibility and his account of the incident . . . 27 [Petitioner’s] counsel pointedly argued to the jury that ‘Beeler is not credible.’” (Dkt. 28 No. 9, Lodgment No. 11 at 21.) Evidence shows that the video, if it existed, would not - 22 - [14cv103-GPC(BGS)] 1 have been able to assist Petitioner in his defense any more than that of the testimony 2 of prosecution and defense witnesses, Salo and Liebolt. Salo testified that he saw 3 something in Petitioner’s hand, which he thought was a box cutter, while Petitioner and 4 Beeler were walking towards the store exit. (Dkt. No. 9, Lodgment No. 1, vol. 3 at 5 283.) Another police officer, Kristopher Spencer, also testified that on June 3 he 6 searched the area immediate to where he found Petitioner, and found a “five- to 7 six-inch metal gray box cutter and a pair of wire cutters.” (Dkt. No. 9, Lodgment No. 8 1, vol. 4 at 33.) The box cutter was located about twenty feet from where Petitioner was 9 detained. (Dkt. No. 9, Lodgment No. 2, vol. 1 Part 2 at 37.) 10 For the forgoing reasons, Petitioner has not established that the video 11 surveillance tapes of the June 3 incident were material to his defense. Petitioner was 12 able to obtain comparable evidence, through eye witness testimony, to both impeach 13 Beeler’s testimony and show that Beeler was aggressive towards him. Petitioner has 14 failed to establish a Brady or Trombetta violation and is not entitled to relief as to this 15 claim. 16 D. 17 In his fourth claim, Petitioner contends his multiple appointed lawyers were Ineffective Assistance of Counsel 18 ineffective by failing to conduct a reasonable pre-trial investigation of obtaining the 19 June 3 CVS video surveillance tape, and that his trial counsel had a conflict of interest 20 because Petitioner’s previous attorneys worked with the Alternate Public Defenders 21 Office. (Dkt. No. 1 at 33-37.) Petitioner also claims that trial counsel failed to object 22 to the prosecutor presenting perjured testimony by Beeler. (Id.) Respondent argues that 23 the California Court of Appeal rejected this claim because it failed to set forth a prima 24 facie claim for relief. (Dkt. No. 8 at 51.) Respondent also contends that Petitioner 25 makes the unproven assumption that the store video surveillance for the June 3 incident 26 was in fact exculpatory. (Id. at 53.) 27 The Report concluded that Petitioner is not entitled to relief because he failed 28 to raise a colorable federal claim. (Dkt. 18 at 27.) The Report also concluded that - 23 - [14cv103-GPC(BGS)] 1 Petitioner failed to show he was prejudiced by his counsels’ failure to obtain the video 2 surveillance tape and failed to show that the trial court’s outcome would have been 3 different, but for the errors of his counsels. (Dkt No. 18 at 29.) The Magistrate Judge 4 also concluded that Petitioner’s conflict of interest claim was merely conclusory, as 5 Petitioner failed to state what investigation, apart from obtaining the video surveillance 6 tape, that his previous counsels should have performed, and how possible evidence of 7 that would assist him in his defense. (Dkt. No. 19 at 29.) 8 Petitioner objected to the Magistrate Judge’s report stating that his court 9 appointed counsel fell well below an objective standard of reasonableness because they 10 failed to secure the video surveillance tape, which denied Petitioner a fair trial. (Dkt. 11 No. 19 at 15.) 12 It is not clear to this Court that Petitioner’s ineffective assistance of counsel 13 claims are exhausted, as he did not explicitly raise them in a petition for review that he 14 filed in the California Supreme Court. (Dkt. No. 9, Lodgment 16 at 28.) However, 15 Respondent does not contend the claim is unexhausted. (See Dkt. No. 8 at 36-42.) 16 Regardless, the Court may deny the petition if it is “perfectly clear that the applicant 17 does not raise even a colorable federal claim.” Cassett, 406 F.3d at 624. 18 A petitioner claiming ineffective assistance of counsel must first show that 19 counsel’s representation fell below an objective standard of reasonableness. Strickland 20 v. Washington, 466 U.S. 668, 688 (1984). The proper measure of attorney performance 21 depends on the reasonableness under prevailing professional norms, considering all of 22 the circumstances. Id. The purpose of the effective assistance guarantee of the Sixth 23 Amendment is not to improve the quality of legal representation, but rather to “ensure 24 that criminal defendants receive a fair trial.” Id. at 689. A convicted defendant must 25 meet the two-pronged Strickland test, showing: (1) counsel’s performance was 26 deficient and made errors so serious that counsel was not functioning as “counsel” 27 guaranteed the defendant by the Sixth Amendment; and (2) the deficient performance 28 prejudiced the defense, and counsel’s errors were so serious as to deprive the defendant - 24 - [14cv103-GPC(BGS)] 1 of a fair trial, whose result is reliable. Id. at 687. The defendant must show that but for 2 the unprofessional errors of counsel, there is a reasonable probability that the result of 3 the proceeding would have been different. Id. at 694. If the defendant makes an 4 insufficient showing on one prong of the Strickland test, the Court need not further 5 address the second prong. Id. at 697. 6 7 1. Failure to Obtain the June 3 CVS Video Surveillance Tape In Petitioner’s objection, he recites the same arguments raised in his Petition. 8 (Dkt. No. 19 at 15-20; Dkt. No. 1 at 33-37.) Even if Petitioner’s counsel should have 9 obtained the CVS video surveillance tape, Petitioner has not shown that his counsel’s 10 failure to obtain the video surveillance tape from the June 3 incident was so serious that 11 he was deprived a fair trial. See Strickland, 466 U.S. at 687. The Magistrate Judge 12 correctly concluded that the record shows that CVS did not have video cameras 13 recording the liquor cage area where the incident took place, and the videos would not 14 have exonerated him of the June 3 burglary charge. 15 Furthermore, as previously mentioned, Petitioner was not prejudiced because he 16 was able to use the testimony of eyewitnesses Liebolt, Salo, and even Beeler, to prove 17 his point that Beeler was also the aggressor. Thus, there was nothing new from the 18 video surveillance tapes that would have aided Petitioner’s defense that eyewitness 19 testimony did not already mention. Petitioner’s trial counsel, Gaylord Stewart, provided 20 Petitioner a rigorous defense, by thoroughly cross examining Beeler and Salo, and 21 impeaching Beeler on his inconsistencies. Stewart also direct examined Liebolt, who 22 explained what she observed. As a result of these testimonies, Petitioner was acquitted 23 of assault with a deadly weapon and criminal threat charges. Regarding the weapons 24 enhancements, there was other evidence, such as Salo’s testimony and the testimony 25 of officer Spencer, who found a box cutter close to where Petitioner was arrested, 26 supporting the jury’s conclusion that Petitioner was armed with a box cutter during the 27 June 3 incident. (Dkt. No. 9, Lodgment No. 1, vol. 4 at 33.) Therefore, Petitioner has 28 not shown that there was a reasonable probability that the result would have been - 25 - [14cv103-GPC(BGS)] 1 different. 2 3 2. Conflict of Interest Petitioner also argues that his trial counsel, Stewart, had a conflict of interest that 4 compromised his defense because he worked with Petitioner’s previous appointed 5 attorneys. (Dkt. No. 1 at 36.) Petitioner claims that this conflict of interest has 6 compromised his defense in that his counsel failed to argue that Petitioner’s previous 7 attorneys did not properly conduct a pre-trial investigation. (Id.) 8 As the Magistrate properly noted, Petitioner’s claim is conclusory. He does not 9 provide any evidence to support his contention that there was a conflict of interest 10 between his counsel and previous appointed attorneys. It is well established that 11 conclusory allegations, unsupported by a statement of specific facts, do not warrant 12 habeas corpus relief. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). Therefore, 13 Petitioner is not entitled to relief as to this allegation. 14 15 3. Failure to Object to Prosecutorial Misconduct Third, Petitioner claims ineffective assistance of counsel by his counsel’s failure 16 to object to the prosecution’s use of the “perjured testimony” of Beeler. (Dkt. No. 1 at 17 33-37.) A prosecutor commits misconduct when (1) she presents evidence that was 18 “actually false” (2) she knew or should have known that the testimony was actually 19 false, and (3) the false testimony was material. United States v. Zuno-Arce, 339 F.3d 20 886, 889 (9th Cir. 2003) (citing Napue v. People of the State of Illinois, 360 U.S. 264, 21 269-71 (1959)). A prosecutor “can never guarantee that a witness will not commit 22 perjury. Her duty is to refrain from knowingly presenting perjured testimony.” United 23 States v. Aichele, 941 F.2d 761, 766 (9th Cir. 1991) (citing United States v. Endicott, 24 869 F.2d 452, 455 (9th Cir. 1989) (internal quotation marks and citations omitted)). 25 When there are two conflicting versions of an incident that are presented to the jury, 26 it is within the province of the jury to resolve the disputed testimony. United States v. 27 Awkward, 597 F.2d 667, 671 (9th Cir. 1979). 28 Here, the alleged perjured testimony of Beeler is a conflicting version of event - 26 - [14cv103-GPC(BGS)] 1 between Beeler’s memory of what happened, and the testimony of eyewitnesses, 2 Liebolt and Salo. The prosecutor did not present evidence that was “actually false” 3 because she was relying on Beeler’s testimony. Petitioner has not shown that the 4 prosecutor knew or should have known that the testimony was actually false. The 5 record shows that details in Beeler’s testimony changed, from the date of the incident 6 in his statement to Officer Vaquero, to the testimony he gave at the preliminary 7 hearing. (Dkt. No. 9, Lodgment 1, vol. 3 at 21-22.) However, although Beeler presented 8 conflicting versions of what happened between him and Petitioner, it was the jury’s 9 responsibility to resolve the disputed testimony. See Awkward, 597 F.2d at 671. 10 Petitioner’s argument that his trial counsel should have objected to the 11 prosecutor’s use of the perjured testimony of Beeler is without merit because the 12 record shows that trial counsel impeached Beeler’s credibility by pointing out Beeler’s 13 change in testimony. (Dkt. No. 9, Lodgment 1, vol. 3 at 21-22.) 14 Therefore, Petitioner has failed to show either that his trial counsel’s 15 performance was deficient or even if there was error, that the errors deprived him of a 16 fair trial. See Strickland, 466 U.S. at 687. The record shows that Petitioner’s counsel 17 presented a rigorous defense by impeaching Beeler’s testimony, and professionally and 18 competently defended Petitioner at trial. For these reasons, Petitioner is not entitled to 19 relief under this claim. 20 E. 21 In his fifth claim, Petitioner contends the cumulative effect of the errors Cumulative Error 22 committed at his trial denied him the right to a fair trial. (Dkt. No. 1 at 38.) Respondent 23 counters that because the California Court of Appeal found only one error but that it 24 was harmless nonetheless, there is nothing to accumulate. (Dkt. No. 8 at 54.) The Court 25 of Appeal agreed with Respondent, concluding that Petitioner failed to meet his burden 26 of showing any cumulative errors or prejudice sufficient to reverse any of his 27 convictions. (Dkt. No. 9, Lodgment 11 at 37.) The Magistrate Judge concluded that any 28 error did not rise to the level of a Constitutional violation of Petitioner’s rights. (Dkt - 27 - [14cv103-GPC(BGS)] 1 No. 18 at 32.) Petitioner objected to the Magistrate's Report, repeating the exact same 2 arguments in his petition. (Dkt. No. 19 at 21; Dkt. No. 1 at 38.) 3 The Supreme Court has clearly established that the effect of a combination of 4 multiple trial court errors violates due process “where it renders the resulting criminal 5 trial fundamentally unfair.” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing 6 Chambers v. Mississippi, 410 U.S. 284, 298 (1973)). The cumulative effect of multiple 7 errors can violate due process where no single error rises to the level of constitutional 8 violation. Parle, 505 F.3d at 927. Cumulative error warrants habeas relief only when 9 the errors have “so infected the trial with unfairness as to make the resulting conviction 10 a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Such 11 “infection” takes place when the combined effect of errors had a “substantial and 12 injurious effect or influence on the jury's verdict.” Brecht, 507 U.S. at 637. 13 Here, the Court of Appeal only assumed error on Petitioner’s claim concerning 14 the exclusion of the CVS manual but concluded that the error was harmless. Moreover, 15 this Court denied Petitioner’s relief on his unexhausted claims. Therefore, Petitioner 16 did not suffer the effect of multiple trial court errors, and thus, there are no errors to 17 aggregate. Although Petitioner argues that “the combined effect of errors prevented 18 [him] from challenging Beeler’s credibility in a case that hinged on the jury’s 19 assessment of credibility,” the record states otherwise. (Dkt. No 1 at 38; Dkt. No. 19 20 at 21.) As noted above, the record points to many instances where Petitioner’s defense 21 counsel impeached Beeler’s testimony, both through cross examination of Beeler and 22 Salo, and direct examination of Liebolt. In fact, as a result of these testimonies, 23 Beeler’s credibility was impeached and Petitioner was acquitted of assault with a 24 deadly weapon and criminal threat charges. (Dkt. No. 9, Lodgment 2, vol. 1 part 2 at 25 105-09.) Accordingly, Petitioner’s right to due process was not violated and he is not 26 entitled to relief for his cumulative error claim. 27 IV. Certificate of Appealability 28 Under AEDPA, a state prisoner seeking to appeal a district court’s denial of a - 28 - [14cv103-GPC(BGS)] 1 habeas petition must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). 2 The district court may issue a certificate of appealability if the petitioner has made a 3 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To 4 satisfy this standard, a petitioner must show that “reasonable jurists would find the 5 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 6 McDaniel, 529 U.S. 473, 484 (2000). In this case, Petitioner has not made a substantial 7 showing of the denial of a constitutional right. Accordingly, the Court DENIES a 8 certificate of appealability. 9 10 CONCLUSION Based on the above, the Court OVERRULES Petitioner’s objections and 11 ADOPTS the Report and Recommendation in its entirety and DENIES the Petition for 12 Writ for Habeas Corpus. The Court also DENIES a certificate of appealability. 13 IT IS SO ORDERED. 14 15 DATED: June 3, 2015 16 17 HON. GONZALO P. CURIEL United States District Judge 18 19 20 21 22 23 24 25 26 27 28 - 29 - [14cv103-GPC(BGS)]

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