(HC) Reed v. Clay et al, No. 2:2007cv00595 - Document 26 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John L. Weinberg on 11/18/2009 recommending that the petition be denied and this action dismissed with prejudice re 1 Petition for Writ of Habeas Corpus filed by John Henry Reed. Objections to F&R due w/in 20 days. (Matson, R)
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(HC) Reed v. Clay et al Doc. 26 01 02 03 04 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 05 06 JOHN HENRY REED, 07 08 09 10 ) ) Petitioner, ) ) v. ) ) WARDEN CLAY, et al., ) ) Respondents. ) ____________________________________ ) CASE NO. 2:07-cv-00595-RAJ-JLW REPORT AND RECOMMENDATION 11 12 I. INTRODUCTION 13 Petitioner is a California prisoner who is currently incarcerated at the Gabilan 14 Conservation Camp #38 in Soledad, California. He seeks relief under 28 U.S.C. § 2254 from 15 his 2004 jury conviction in Sacramento County Superior Court for selling cocaine base. (See 16 Docket 1.) Respondent has filed an answer to the petition, together with relevant portions of 17 the state court record, and petitioner has filed a traverse in reply to the answer. (See Dkt. 18; 18 Dkt. 21.) The Court, having thoroughly reviewed the record and briefing of the parties, 19 recommends the Court deny the petition, and dismiss this action with prejudice. 20 II. 21 The probation officer’s report described petitioner’s commitment offense as follows: 22 FACTUAL AND PROCEDURAL HISTORY [O]n October 17, 2000 … a confidential informant (CI) made arrangements with a subject, later identified as the [petitioner], REPORT AND RECOMMENDATION - 1 Dockets.Justia.com to purchase an “8 ball” of cocaine base. Detectives observed the [petitioner] arrive at a pre-designated buy location. The drug transaction was later completed and the CI provided officers approximately 3.5 grams of Valtox positive cocaine base. The CI was shown a photograph of John Henry Reed, the [petitioner], and positively identified him as the person who sold him the cocaine base. The [petitioner] was subsequently arrested on October 25, 2000, for violating Section 11352(a) H&S, 11351.5 H&S, 245(c) P.C., 3056 P.C., and 182(a)(1) P.C. and booked into the Main Jail without incident…. 01 02 03 04 05 06 07 08 (Dkt. 19, Lodged Document 23 at 494.) The Sacramento County Superior Court held a preliminary examination on May 31 09 and June 1, 2001, to determine whether there was probable cause to believe petitioner was 10 guilty of committing a felony offense, sale of cocaine base. (See id. at 21-81.) Petitioner’s 11 challenges to various aspects of this preliminary hearing form the basis for his habeas 12 challenge. 13 During the hearing, the Deputy District Attorney called a single witness, Detective 14 Scott Maldonado, a law enforcement officer with nine years experience, who described the 15 narcotics investigation and “controlled buy” of cocaine which led to petitioner’s arrest. (See 16 id. at 25-75.) Specifically, Detective Maldonado testified that he and his partner, Detective 17 Chaplin, made contact with a confidential informant in the course of a narcotics investigation 18 around 5:45 in the afternoon of October 17, 2000. (See id. at 25.) The confidential informant 19 told the detectives that he could purchase cocaine from an adult black male he knew as “J.R.” 20 (See id. at 26.) After Detective Maldonado had strip-searched the confidential informant, the 21 informant used a telephone in the presence of the officers to arrange a purchase of an “eight22 ball” of rock cocaine from “J.R.” (See id. at 27.) Detective Maldonado then listened to the REPORT AND RECOMMENDATION - 2 01 narcotics transaction through a one-way radio transmitter, conducted another strip search of 02 the confidential informant as soon as the transaction had concluded, and booked the “eight03 ball” of cocaine purchased from “J.R.” into evidence. (See id. at 32-34.) Detective 04 Maldonado was also present when the informant subsequently identified a photograph of 05 petitioner as “J.R.,” the suspect who had sold him the cocaine during the “controlled buy.” 06 (See id. at 33-34.) 07 When the Deputy District Attorney asked Detective Maldonado to estimate the 08 number of occasions he “had contact with that same confidential informant in the past,” 09 Detective Maldonado responded, “Um, two.” (Id.) When the Deputy District Attorney asked 10 whether Detective Maldonado, “in [his] past encounters with the confidential informant … 11 [found] that the information that the confidential informant provided to you was reliable,” 12 Detective Maldonado answered, “Yes.” (Id.) When he was asked during cross-examination 13 “[w]hat led [him] to render the opinion on direct examination that … the confidential 14 informant had provided reliable information,” he responded that the “[i]nformation was 15 corroborated and arrests were made.” (Id. at 41.) 16 During the proceeding, Detective Maldonado occasionally used the two-page arrest 17 report prepared by Detective Chaplin to refresh his recollection regarding details of the 18 investigation. (See id. at 29-31.) The arrest report noted that Detective Chaplin and Detective 19 Maldonado “made contact with a confidential informant in the mid-town area of Sacramento” 20 on October 17, 2000, but did not discuss any contacts with the confidential informant taking 21 place prior to that date. (See Dkt. 16, LD 5, Ex. C at 1.) The report then described the 22 “controlled buy” carried out on October 17, 2000, as well as the confidential informant’s REPORT AND RECOMMENDATION - 3 01 positive identification of petitioner “as J.R. who sold cocaine base to C.I.” after viewing a 02 photograph of petitioner on October 24, 2000. (Id. at 2.) 03 The identity of the confidential informant was fully disclosed at trial, and he testified 04 as a witness for the prosecution. (See Dkt. 19, LD 24 at 304-30.) During the preliminary 05 hearing, however, Detective Maldonado did not disclose the informant’s identity. (See id., 06 LD 23 at 22-23 and 37-43.) Over defense counsel’s continuing objection that any evidence 07 obtained from the confidential informant was “unreliable” unless the informant’s identity was 08 disclosed, the superior court admitted Detective Maldonado’s testimony, and found that the 09 informant’s identity qualified as privileged “official information” in order to protect his or her 10 safety. (See id. at 23-26.) See also California Evidence Code § 1040 (protecting against 11 disclosure of “official information” where such disclosure “is against the public interest 12 because there is a necessity for preserving the confidentiality of the information that 13 outweighs the necessity for disclosure in the interest of justice….”). At the conclusion of the 14 hearing, the superior court found “sufficient cause to believe that the [petitioner] John Henry 15 Reed is the person guilty of … the felony offense that has been established in this matter. 16 He’ll be held to answer for further proceedings.” (See Dkt. 19, LD 23 at 76.) 17 An amended information dated January 14, 2002, charged petitioner with one count of 18 sale of a controlled substance, cocaine base, committed on or about October 17, 2000, in 19 violation of Health and Safety Code § 11352(a). (See Dkt. 16, LD 3 at 1; Dkt. 19, LD 23 at 20 106-08.) The information also alleged four prior convictions. (See Dkt. 19, LD 23 at 10621 07.) Petitioner’s first trial resulted in a mistrial on June 18, 2002, after the jury announced it 22 could not reach a verdict. (See Dkt. 16, LD 3 at 2.) During petitioner’s second jury trial, he REPORT AND RECOMMENDATION - 4 01 was convicted of one count of sale of cocaine base on August 20, 2004. (See id., LD 1 at 1.) 02 Petitioner also admitted all four of the prior conviction allegations set forth in the information, 03 which were used to enhance his sentence. (See id. at 2-3.) He originally received an 04 aggregate term of thirteen (13) years. (See id., LD 1 at 1.) 05 Petitioner, through counsel, appealed his judgment and sentence to the California 06 Court of Appeal, contending that one of his prior convictions should not have been used to 07 enhance his sentence. (See Dkt. 16, LD 4.) Respondent conceded that the Court should strike 08 one of petitioner’s sentence enhancements. (See id., LD 3 at 4.) Accordingly, the California 09 Court of Appeal modified petitioner’s sentence from thirteen (13) to ten (10) years. (See id., 10 LD 4.) The Court affirmed petitioner’s conviction and sentence in all other respects. (See id.) 11 On June 5, 2006, petitioner filed a petition for writ of habeas corpus with the 12 California Court of Appeal claiming ineffective assistance of appellate counsel, and asserting 13 that the trial court’s denial of his motion to dismiss the information for lack of probable cause 14 pursuant to California Penal Code § 995 violated his constitutional rights under the 15 Confrontation Clause and Due Process Clause. (See id., LD 5.) The California Court of 16 Appeal denied the petition without comment on June 8, 2006. (See id., LD 6.) Petitioner 17 promptly filed a petition for review of this decision with the California Supreme Court, but 18 that petition was also denied without comment on August 2, 2006. (See id., LD 7; id., LD 8.) 19 Petitioner filed the instant federal petition on March 28, 2007. (See Dkt. 1 at 1.) 20 Respondent concedes in his answer to the petition that petitioner has exhausted his alleged 21 claims for relief, and does not dispute that the petition was timely. (See Dkt. 18 at 4.) 22 REPORT AND RECOMMENDATION - 5 01 III. 02 Petitioner contends that the Sacramento County Superior Court erred by denying his FEDERAL CLAIMS FOR RELIEF 03 motion to dismiss the information for lack of probable cause. (See Dkt. 1 at 5-7.) 04 Specifically, he claims the superior court erroneously overruled petitioner’s hearsay 05 objections during the preliminary hearing, and admitted out-of-court statements made by the 06 confidential informant in violation of petitioner’s rights under the Confrontation Clause and 07 Due Process Clause. (See id. at 5-6.) He also asserts that his federal due process rights were 08 violated by the prosecution’s “subordination of perjur[e]d” testimony by Detective 09 Maldonado during the preliminary hearing, as well as the inclusion of false information in 10 Detective Chaplin’s arrest report. (See id. at 7.) As a result, petitioner contends that he is 11 entitled to habeas relief. (See id. at 5-7.) 12 IV. 13 The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this STANDARD OF REVIEW 14 petition because it was filed on March 28, 2007, after the enactment of AEDPA. See Lindh v. 15 Murphy, 521 U.S. 320, 326-27 (1997). Because petitioner is in custody of the California 16 Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the 17 exclusive vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th 18 Cir.), cert. denied, 543 U.S. 991 (2004) (providing that § 2254 is “the exclusive vehicle for a 19 habeas petition by a state prisoner in custody pursuant to a state court judgment….”). Under 20 AEDPA, a habeas petition may not be granted with respect to any claim adjudicated on the 21 merits in state court unless petitioner demonstrates that the highest state court decision 22 rejecting his petition was either “contrary to, or involved an unreasonable application of, REPORT AND RECOMMENDATION - 6 01 clearly established Federal law, as determined by the Supreme Court of the United States,” or 02 “was based on an unreasonable determination of the facts in light of the evidence presented in 03 the State court proceeding.” 28 U.S.C. § 2254(d)(1) and (2). 04 As a threshold matter, this Court must ascertain whether relevant federal law was 05 “clearly established” at the time of the state court’s decision. To make this determination, the 06 Court may only consider the holdings, as opposed to dicta, of the United States Supreme 07 Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit 08 precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 09 10 331 F.3d 1062, 1069 (9th Cir. 2003). The Court must then determine whether the state court’s decision was “contrary to, or 11 involved an unreasonable application of, clearly established Federal law.” See Lockyer v. 12 Andrade, 538 U.S. 63, 71 (2003). “Under the ‘contrary to’ clause, a federal habeas court may 13 grant the writ if the state court arrives at a conclusion opposite to that reached by [the 14 Supreme] Court on a question of law or if the state court decides a case differently than [the] 15 Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13. 16 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the 17 state court identifies the correct governing legal principle from [the] Court’s decisions but 18 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. At all 19 times, a federal habeas court must keep in mind that it “may not issue the writ simply because 20 [it] concludes in its independent judgment that the relevant state-court decision applied clearly 21 established federal law erroneously or incorrectly. Rather that application must also be 22 [objectively] unreasonable.” Id. at 411. REPORT AND RECOMMENDATION - 7 01 In each case, the petitioner has the burden of establishing that the state court decision 02 was contrary to, or involved an unreasonable application of, clearly established federal law. 03 See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine 04 whether the petitioner has met this burden, a federal habeas court looks to the last reasoned 05 state court decision because subsequent unexplained orders upholding that judgment are 06 presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 07 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). Where, as in this case, the 08 state courts have reviewed the claims and denied them without comment, the federal court 09 conducts an independent review of the record “to determine whether the state court clearly 10 erred in its application of controlling federal law.” Delgado v. Lewis, 223 F.3d 976, 982 (9th 11 Cir. 2000). 12 Finally, AEDPA requires federal courts to give considerable deference to state court 13 decisions, and state courts’ factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). 14 Federal courts are also bound by a state’s interpretation of its own laws. See Murtishaw v. 15 Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 16 (9th Cir. 1993)). 17 V. DISCUSSION 18 A. Confrontation Clause Claim Related to Hearsay Testimony 19 Petitioner claims that the information charging him with the commitment offense 20 should have been set aside by the superior court pursuant to his motion under California Penal 21 Code § 995, which provides that “an information shall be set aside by the court in which the 22 defendant is arraigned, upon his or her motion … [if] the defendant [was] committed without REPORT AND RECOMMENDATION - 8 01 reasonable or probable cause.” Cal. Penal Code § 995. (See Dkt. 1 at 5-7; Dkt. 19, LD 23 at 02 82-94.) Specifically, petitioner asserts that probable cause was not established during his 03 preliminary hearing because the superior court admitted, over petitioner’s hearsay objections, 04 unreliable hearsay statements made by the confidential informant, Jessie Bennett, as related 05 by Detective Maldonado. (See Dkt. 1 at 5-6.) Petitioner argues that his rights under the 06 federal Confrontation Clause were violated by the admission of this hearsay testimony during 07 the preliminary hearing. (See id. at 5-7; Dkt. 21 at 7-12.) 08 To the extent that petitioner is arguing the superior court violated California Penal 09 Code § 995 by failing to grant his motion to dismiss the information following the 10 preliminary hearing, he is asserting a state law claim. (See Dkt. 1 at 5-7.) State law claims 11 are not cognizable in a federal habeas proceeding. See Estelle v. McGuire, 502 U.S. 62, 67-68 12 (1991) (“Federal habeas corpus relief does not lie for errors of state law … it is not the 13 province of the federal habeas court to reexamine state-court determinations on state-law 14 questions.”). As discussed above, this Court is limited to determining whether the state court 15 decision denying petitioner’s request for habeas relief “clearly erred in its application of 16 controlling federal law.” Delgado, 223 F.3d at 982 (emphasis added). 17 With respect to petitioner’s contention that his rights under the federal Confrontation 18 Clause were violated during the preliminary hearing, the U.S. Supreme Court has consistently 19 held that “[t]he right to confrontation is basically a trial right.” Barber v. Page, 390 U.S. 719, 20 725 (1968)). Accord Kentucky v. Stincer, 482 U.S. 730, 737-39 (1987) (noting that the “right 21 to confrontation is a functional one for the purpose of promoting reliability in a criminal 22 trial….”); Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (“The opinions of this Court show REPORT AND RECOMMENDATION - 9 01 that the right to confrontation is a trial right, designed to prevent improper restrictions on the 02 types of questions that defense counsel may ask during cross-examination.”); California v. 03 Green, 399 U.S. 149, 156-57(1970) (“[I]t is this literal right to ‘confront’ the witness at the 04 time of trial that forms the core of the values furthered by the Confrontation Clause.”). The 05 federal confrontation right “includes both the opportunity to cross-examine and the occasion 06 for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much 07 less searching exploration into the merits of a case than a trial, simply because its function is 08 the more limited one of determining whether probable cause exists to hold the accused for 09 trial.” Barber, 390 U.S. at 725. 10 The U. S. Supreme Court squarely held in Gerstein v. Pugh that the “timely judicial 11 determination of probable cause” required by the Fourth Amendment does not also require 12 “the full panoply of adversary safeguards – counsel, confrontation, cross-examination, and 13 compulsory process.” 420 U.S. 103, 119 (1975). Rather, the “issue [of] whether there is 14 probable cause for detaining the arrested person pending further proceedings … can be 15 determined reliably without an adversary hearing.” Id. at 120. Specifically, “[t]he standard is 16 the same as that for arrest. That standard – probable cause to believe the suspect has 17 committed a crime – traditionally has been decided by a magistrate [judge] in a nonadversary 18 proceeding on hearsay and written testimony, and the Court has approved these informal 19 modes of proof.” Id. Thus, although the U.S. Supreme Court has acknowledged that 20 confrontation and cross-examination “may enhance the reliability of probable cause 21 determinations in some cases,” it has held that “[i]n most cases ... their value would be too 22 slight to justify holding, as a matter of constitutional principles, that these formalities and REPORT AND RECOMMENDATION - 10 01 safeguards designed for trial must also be employed in making … [a] determination of 02 probable cause.” Id. at 121-22. 03 Similarly, when the California Supreme Court considered whether the admission of 04 hearsay testimony during a defendant’s preliminary hearing violated the federal Confrontation 05 Clause, it noted that California law also “allow[s] an investigating officer to relate at the 06 preliminary hearing any relevant statements of victims or witnesses, if the testifying officer 07 has sufficient knowledge of the crime or the circumstances under which the out-of-court 08 statement was made so as to meaningfully assist the magistrate [judge] in assessing the 09 reliability of the statement.” 1 Whitman v. Superior Court, 54 Cal.3d 1063, 1075 (1991). In 10 fact, “the magistrate [judge may] base a finding of probable cause entirely on that testimony.” 11 Id. Specifically, the Whitman court explained that a recently enacted initiative, Proposition 12 115, amended the language of the California Constitution and California Penal Code to 13 declare hearsay evidence admissible at preliminary hearings to establish probable cause to 14 believe a defendant committed a felony offense. See id. at 1070; Cal. Const. art. I § 30(b); 15 Cal. Penal Code §§ 866(b) and 872(b). The Whitman court then concluded that preliminary 16 hearings in California “sufficiently resembl[e] the Fourth Amendment probable cause hearing 17 examined in Gerstein … to meet federal confrontation clause standards despite reliance on 18 hearsay evidence.” Id. at 1082 (citing Gerstein, 420 U.S. 103). 19 Accordingly, petitioner’s rights under the federal Confrontation Clause are 20 inapplicable during a preliminary hearing held to establish probable cause. See Gerstein, 420 21 1 Petitioner’s contention, in his traverse, that Detective Maldonado was not qualified to testify 22 during his preliminary hearing under the standards set forth by the California Supreme Court in Whitman is not cognizable in this federal habeas proceeding. (See Dkt. 21 at 15-16.) See also Estelle, 502 U.S. at 67-68. REPORT AND RECOMMENDATION - 11 01 U.S. at 119-24. His contention that the admission of hearsay statements during his 02 preliminary hearing violated his rights under the Confrontation Clause is therefore unavailing. 03 B. Due Process Clause Claim Related to Hearsay Testimony 04 Petitioner also argues that the admission of the confidential informant’s hearsay 05 statements during his preliminary hearing violated his federal due process rights. (See Dkt. 1 06 at 5-7; Dkt. 21 at 7-12.) Although petitioner acknowledges the absence of federal authority to 07 support his claim, he nevertheless asserts that the admission of hearsay testimony during his 08 preliminary hearing “clearly violates all principles of due process….” (Dkt. 21 at 8.) 09 Conclusory allegations, without more, cannot provide a basis for habeas relief, and 10 petitioner failed to cite any federal authority to support his federal due process claim. See 11 Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (stating that conclusory allegations are 12 not sufficient to support habeas relief); Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) 13 (holding that it is petitioner’s burden to show he is in custody in violation of the Constitution). 14 Accordingly, I recommend this Court find that petitioner’s federal due process rights were not 15 violated by the admission of hearsay testimony during petitioner’s preliminary hearing. 16 C. Due Process Clause Claim Related to Allegedly Perjured Testimony 17 Petitioner contends that his federal due process rights were violated by the 18 prosecution’s knowing use of perjured testimony during his preliminary hearing, as well as 19 the inclusion of false information in an arrest report, in order to obtain a conviction. 20 Specifically, petitioner alleges that Detectives Maldonado and Chaplin knew that their 21 “confidential informant,” Jessie Bennett, was unreliable, but nevertheless misrepresented him 22 during the preliminary hearing as a “reliable confidential informant” with whom the REPORT AND RECOMMENDATION - 12 01 detectives had prior dealings in other narcotics investigations. Because “[t]hese officers and 02 the Deputy District Attorney knew there [were never] any prior contacts with the allegedly 03 confidential informant to substantiate reliability as untruthfully stated in police reports and 04 perjured testimony at the preliminary examination,” petitioner claims their conduct was “so 05 outrageous [it] violated the fundamental fairness required by the due process clause….”2 06 (Dkt. 1 at 7; Dkt. 21 at 21.) 07 The U.S. Supreme Court has long held that a criminal conviction may violate a 08 defendant’s federal due process rights if it is obtained through testimony or evidence that the 09 prosecutor knows to be false, or later discovers to be false and allows to go uncorrected. See 10 Napue v. People of the State of Illinois, 360 U.S. 264, 269-70 (1959). Accord Alcorta v. 11 Texas, 355 U.S. 28, 31 (1957); Pyle v. Kansas, 317 U.S. 213, 215-16 (1942); Mooney v. 12 Holohan, 294 U.S. 103, 112-13 (1935); Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir. 13 2008) (“The Supreme Court has long held that a conviction obtained using knowingly 14 perjured testimony violates due process.”). A due process violation can result from the 15 prosecution’s presentation of false evidence or testimony during preliminary proceedings, as 16 well as during a criminal trial. See Hayes v. Brown, 399 F.3d 972, 979-80 (9th Cir. 2005) 17 (holding that the prosecution violated a defendant’s due process rights by knowingly making 18 false representations to the trial judge during the defendant’s preliminary examination, in 19 2 Petitioner cites U.S. v. Russell, 411 U.S. 423 (1973), in support of his contentions. (See Dkt. 21 at 27.) He argues that the Russell decision demonstrates that “instances of police misconduct as 20 outrageous as these in the present case require the criminal charges [against petitioner] be dismissed.” Id. Contrary to his assertions, however, Russell is inapplicable to petitioner’s due process claim. 21 Specifically, Russell involved the affirmative defense of entrapment. See Russell, 411 U.S. at 432 (holding that an undercover narcotics agent who provided an essential, but legal, ingredient to a 22 defendant being investigated for illicitly manufacturing a drug, did not violate the defendant’s due process rights by entrapping him). In contrast, petitioner’s due process claim involves alleged subornation of perjury his preliminary hearing. REPORT AND RECOMMENDATION - 13 01 addition to presenting false evidence to the jury during the subsequent trial). 02 Furthermore, Napue does not only prohibit subornation of perjury. See Hayes, 399 03 F.3d at 980-81 (rejecting the State’s claim that “it is constitutionally permissible for [the State 04 to] knowingly present false evidence … as long as the witness used to transmit the false 05 information is kept unaware of the truth” and therefore “did not commit perjury.”). Rather, 06 “Napue, by its terms, addresses the presentation of false evidence, not just subornation of 07 perjury.” Id. at 981 (citing Napue, 360 U.S. at 269). “There is nothing in Napue, its 08 predecessors, or its progeny, to suggest that the Constitution protects defendants only against 09 the knowing use of perjured testimony. Due process protects defendants against the knowing 10 use of any false evidence by the State, whether it be by document, testimony, or any other 11 form of admissible evidence.” Id. (citing Phillips v. Woodford, 267 F.3d 966, 984-85 (9th 12 Cir. 2001)). 13 Mere inconsistencies in the evidence, however, do not constitute the knowing use of 14 false testimony by the prosecution, and it is “within the province of the jury to resolve the 15 disputed testimony.” See United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002). 16 Thus, prosecutors will not be held accountable for discrepancies in testimony or evidence 17 where there is no evidence from which to infer prosecutorial misconduct. See United States v. 18 Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir. 1995). A petitioner must establish a factual basis for 19 attributing knowledge to the government that the testimony or evidence at issue was false. 20 See Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004), as amended Oct. 21, 2004) 21 (rejecting a due process claim where petitioner “sets out no factual basis for attributing any 22 misconduct, any knowing presentation of perjury, by the government….”). REPORT AND RECOMMENDATION - 14 01 Thus, in order to prevail on a federal due process claim for habeas relief, a petitioner 02 must demonstrate that (1) the testimony or evidence was actually false; (2) the prosecution 03 knew or should have known that the testimony or evidence was actually false; and (3) the 04 false testimony or evidence was material. See Hayes, 399 F.3d at 984 (quoting United States 05 v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)) (setting forth the requirements for a 06 petitioner to prevail under the Mooney-Napue line of cases). In assessing “materiality” under 07 Napue, a federal habeas court must determine whether there is “any reasonable likelihood that 08 the false testimony [or evidence] could have affected the judgment of the jury,” and if so, “the 09 conviction must be set aside.” Id. (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)). 10 Specifically, “[t]he question is not whether the defendant would more likely than not have 11 received a different verdict with the evidence, but whether in its absence he received a fair 12 trial, understood as a trial resulting in a verdict worthy of confidence.” Id. (noting that a 13 federal habeas court conducting an analysis under Mooney-Napue need not also “conduct a 14 separate harmless error analysis under Brecht v. Abrahamson, 507 U.S. 619 (1993), because 15 the required finding of materiality necessarily compels the conclusion that the error was not 16 harmless.”). See Kyles v. Whitley, 514 U.S. 419, 434 (1995). 17 In the instant case, petitioner is unable to satisfy the requirements of Mooney-Napue 18 with respect to either Detective Maldonado’s testimony during the preliminary hearing, or 19 Detective Chaplin’s arrest report. As a result, his federal due process claim is unavailing. 20 During direct examination at trial, Detective Maldonado acknowledged that he had 21 testified during the preliminary hearing that law enforcement officers made contact with the 22 confidential informant, Jessie Bennett, on two occasions prior to October 17, 2000. (See REPORT AND RECOMMENDATION - 15 01 Dkt. 19, LD 24 at 239-42.) He also admitted, however, that he had been mistaken about these 02 prior contacts, because Bennett actually “didn’t have any contact [with law enforcement 03 officers] before the 17th.” (Id. at 242.) During cross-examination, Detective Maldonado 04 explained that he made this mistake during the preliminary hearing because “there [were] 05 multiple C.I.’s involved in this investigation, and another C.I. that [Detective] Chaplain had 06 was used to do the search warrant for Jessie [Bennett],” which was executed on October 17. 07 (Id. at 250). Thus, Detective Maldonado had “mistakenly referred to the other C.I.,” who 08 actually had been contacted by law enforcement officers on several occasions prior to October 09 17, 2000. (Id. at 253.) 10 Furthermore, Detective Maldonado testified that he did not have an opportunity to 11 review the “roughly [300] to 500 page” case file before testifying at the preliminary hearing. 12 He was only in possession of the two-page arrest report drafted by Detective Chaplin, which 13 did not reference any contacts with the confidential informant taking place prior to October 14 17, 2000. (See id. at 240; Dkt. 16, LD 5, Ex. C at 1.) As a result, Detective Maldonado had 15 relied upon his memory to answer the question regarding prior contacts with the informant, 16 and he made a mistake. After explaining his error, he testified that his first contact with 17 Bennett actually took place on October 17, 2000, the date of the “controlled buy,” and he 18 described his interactions with Bennett in detail. (See Dkt. 19, LD 24 at 241 and 248.) 19 Detective Maldonado did not commit perjury during the preliminary hearing, because 20 his inaccurate testimony was the result of mistake rather than deliberate deception. See 21 People v. Howard, 17 Cal.App.4th 999, 1004 (1993) (noting that a witness who gave false 22 testimony is not guilty of perjury if it was “due to confusion, mistake, or faulty memory”); REPORT AND RECOMMENDATION - 16 01 Cal. Penal Code § 118 (setting forth the definition of perjury). Nevertheless, Detective 02 Maldonado admitted that his testimony during the preliminary hearing was “actually false.” 03 See Hayes, 399 F.3d at 980-81 (“Napue, by its terms, addresses the presentation of false 04 evidence, not just subornation of perjury.”) The first requirement under Mooney-Napue was 05 therefore satisfied. 06 Petitioner has failed, however, to demonstrate that the prosecution knew or should 07 have known that Detective Maldonado’s testimony during the preliminary hearing was 08 actually false. See id. at 984. Specifically, petitioner did not provide any factual basis for 09 attributing knowledge to the government. See Morales, 388 F.3d at 1179. Petitioner simply 10 made the conclusory assertion that “Deputy District Attorney Kevin Higgins willfully 11 procured a witness to commit perjury, as the Deputy District Attorney knew that the 12 testimony to be given was false, and this was subornation of perjury….” (Dkt. 1 at 7.) He 13 also argued, in his traverse, that “one cannot believe the Deputy District Attorney did not 14 know” the testimony was false “because it is so clear and blatant one cannot help but to 15 recognize the falsehood….” (Dkt. 21 at 28.) 16 Contrary to petitioner’s contentions, the record does not indicate that the Deputy 17 District Attorney either “knew” Detective Maldonado’s testimony during the preliminary 18 hearing was false, or allowed the false testimony to go “uncorrected.” Napue, 360 U.S. at 19 269. When the Deputy District Attorney realized that Detective Maldonado’s prior testimony 20 was inaccurate, he questioned Detective Maldonado about the discrepancy during direct 21 examination. (See Dkt. 19, LD 24 at 239-42.) Thus, there is no evidence from which to infer 22 prosecutorial misconduct. See Zuno-Arce, 44 F.3d at 1423. Where there is no evidence that REPORT AND RECOMMENDATION - 17 01 the prosecution knew, or should have known, that a witness’ testimony was false, “[a]t most, 02 two conflicting versions … [have been] presented to the jury. It [is] within the province of 03 the jury to resolve the disputed testimony.” See Geston, 299 F.3d at 1135. 04 Petitioner is also unable to satisfy the requirements of Mooney-Napue with respect to 05 Detective Chaplin’s arrest report, because he failed to show that any information contained in 06 the report was actually false. (See Dkt. 21 at 22-24.) Specifically, Detective Chaplin’s arrest 07 report did not reference any contacts with the confidential informant prior to October 17, 08 2000, and it did not refer to Bennett as a “reliable” confidential informant. (Dkt. 16, LD 5, 09 Ex. C at 1.) Although Detective Maldonado used Detective Chaplin’s arrest report to refresh 10 his recollection during the preliminary hearing regarding some details related to the 11 investigation, the report was not the cause of Detective Maldonado’s mistaken testimony. In 12 addition, Detective Chaplin testified at trial that he never considered Bennett a “reliable 13 confidential informant” because Bennett had not “provided information that’s been proven” 14 on prior occasions. (Dkt. 19, LD 24 at 159.) Rather, Bennett served as a “confidential 15 informant” on October 17, 2000, by providing information related to an ongoing narcotics 16 investigation, which the Sacramento Police Department then corroborated by carrying out a 17 “controlled buy” of narcotics from petitioner. (See id. at 158-59.) 18 Finally, even if Detective Chaplin’s arrest report did contain false information, 19 petitioner failed to satisfy the last two requirements under Mooney-Napue. He failed to 20 demonstrate that the prosecution knew or should have known that information in the arrest 21 report was actually false, and he failed to show a “reasonable likelihood that the false 22 [evidence] could have affected the judgment of the jury.” Hayes, 399 F.3d at 984. As a REPORT AND RECOMMENDATION - 18 01 result, petitioner’s federal due process claim lacks merit. 02 VI. CONCLUSION 03 As discussed above, petitioner’s rights under the federal Confrontation Clause and 04 Due Process Clause were not violated by the superior court’s admission of hearsay statements 05 made by a confidential informant, as related by Detective Maldonado, during his preliminary 06 hearing. His claim that his federal due process rights were violated by the prosecution’s 07 knowing use of perjured testimony during his preliminary hearing, as well as the inclusion of 08 false information in an arrest report, was also unavailing. As a result, the California Supreme 09 Court’s Order denying the instant habeas petition was therefore not contrary to, or an 10 unreasonable application of, clearly established federal law, or based on an unreasonable 11 determination of facts. I therefore recommend that the Court find that petitioner’s 12 constitutional rights were not violated, and that it deny his habeas petition, and dismiss this 13 action with prejudice. 14 This Report and Recommendation is submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days 16 after being served with this Report and Recommendation, any party may file written 17 objections with this Court and serve a copy on all parties. Such a document should be 18 captioned “Objections to Magistrate Judge’s Report and Recommendation.” Failure to file 19 objections within the specified time may waive the right to appeal the District Court’s Order. 20 // 21 // 22 // REPORT AND RECOMMENDATION - 19 01 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). A proposed order accompanies this 02 Report and Recommendation. 03 DATED this 18th day of November, 2009. 04 A 05 06 JOHN L. WEINBERG United States Magistrate Judge 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 REPORT AND RECOMMENDATION - 20
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