(HC) Thompson v. Dickinson, No. 2:2011cv01318 - Document 35 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 5/28/14 recommending that the petition for writ of habeas corpus be denied. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 28 days.(Dillon, M)

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(HC) Thompson v. Dickinson Doc. 35 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP ARTHUR THOMPSON, 12 Petitioner, 13 14 No. 2:11-cv-1318 GEB AC v. FINDINGS AND RECOMMENDATIONS KATHLEEN DICKINSON, 15 Respondent. 16 Petitioner is a state prisoner serving an indeterminate life sentence, proceeding pro se with 17 18 an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The amended petition, 19 ECF No. 10, is 432 pages long (not including three volumes of exhibits and a 61-page Table of 20 Contents) and contains more than thirty overlapping claims challenging petitioner’s 2008 21 conviction for a 1971 murder.1 Respondent has answered, ECF No. 29, and petitioner filed a 22 traverse, ECF No. 34. 23 //// 24 //// 25 1 26 27 In addition to being excessively long, the petition is repetitive, convoluted, and exceptionally dense. The Table of Contents, ECF No. 10 at 7-68, reflects a byzantine pattern of repeated and overlapping allegations and legal theories, cross-references, and variations on claims. The court has expended significant time and effort in attempting to distill the essence of petitioner’s claims and identify the relevant portions of the state court record. 28 1 Dockets.Justia.com 1 BACKGROUND 2 Twenty-two year old Betty Cloer was murdered in 1971. The investigation hit a dead end, 3 and the case remained cold for over thirty years. In 2002, DNA from seminal fluids on the 4 victim’s clothing was compared to an offender database, and was matched to petitioner’s DNA. 5 Petitioner was subsequently tried and convicted of first degree murder. 6 The Trial 7 Prosecution case 8 On the evening of June 18, 1971, Betty Cloer went to a dance club in Sacramento with her 9 friends Karen Chappell2 and Robin Messner. Chappell was Cloer’s co-worker, and Messner and 10 Cloer lived in the same apartment complex in Sacramento. Cloer’s roommate Elizabeth Ford 11 stayed home alone that evening, and Messner’s younger sister babysat Cloer’s young son at 12 Messner’s apartment. Later that evening Messner left the club with her boyfriend. Chappell and 13 Cloer left the club around 1:00 a.m. on June 19 in Chappell’s car. 14 Chappell stopped at a Texaco gas station on Madison Avenue in order to use the restroom. 15 The restroom was at the back of the station near a vending machine. When Chappell pulled into 16 the station, she saw a vehicle at the back of the station and a young man squatting near the 17 vending machines. The man appeared to Chappell to be young, of medium height and build, with 18 dark hair. The vehicle was a white or off-white four-door with a hard top that appeared to 19 Chappell to be a 1963 Oldsmobile. 20 Chappell went into the restroom and Cloer remained in the car. When Chappell came out 21 of the restroom, she saw the man just getting into his car. The man pulled out of the gas station 22 and Chappell followed him. At one point, the cars pulled side-by-side and Cloer rolled down her 23 car window to speak to the man. Cloer told Chappell the guy was a “fox” and thought he was 24 going to follow them. 25 26 27 When the two women arrived at Cloer’s apartment complex, the man pulled up behind them. Cloer got out and told Chappell she was going back to speak with him. As Cloer walked 2 At the time of petitioner’s trial, Chappell used the name Hulse. 28 2 1 2 back toward the man’s car, Chappell drove away. Sometime between 1:00 and 2:00 a.m. Cloer went into her apartment, where Ford was 3 sleeping on a couch in the living room. Cloer told Ford she was going to Lake Tahoe and needed 4 a coat. Cloer left the front door open and Ford could see a man standing outside. He was 5 approximately 6’2” to 6’4” tall. Ford did not see his face. Cloer grabbed her coat and left with 6 the man. According to Ford, she was the only person in the apartment when the victim arrived to 7 get a coat. 8 9 10 Cloer then went to Messner’s apartment to tell Messner she was going to Lake Tahoe. Messner saw a tall man with dark hair with Cloer. Cloer left with the man. Stanley Ellis provided a somewhat different version of the evening’s events. Ellis was a 11 federal prison inmate when he learned from a 2005 newspaper report that the investigation had 12 been reopened, and contacted detectives. Ellis testified that he was living with his wife Margaret 13 and their children in the same apartment complex as Cloer and Messner at the time of Cloer’s 14 disappearance. He frequently gave Cloer rides to bars and other places. He thought but was not 15 certain that he had taken Cloer and the others to the dance club that evening, and recalled waiting 16 in Cloer’s apartment for her to call him to come and pick them up. Also present in the apartment, 17 according to Ellis, were Ellis’s wife and Cloer’s roommate. Ellis testified he was present when 18 Cloer and the man arrived. According to Ellis, the man stood outside while Cloer changed her 19 clothes. Ellis tried to engage the man in conversation and at one point even walked up to him to 20 try and shake his hand. Ellis testified that he felt uneasy about the guy and tried to talk Cloer out 21 of leaving with him. When Cloer and the man left, Ellis looked out a back window of the 22 apartment and saw them get into a dark blue Lincoln. Ellis identified petitioner from a photo 23 lineup as the man who was with Cloer. 24 25 Margaret Ellis corroborated the fact that she and Stanley saw Cloer leave the apartment building with a stranger that night. Margaret Ellis could not identify the man. 26 Cloer’s body was discovered at approximately 1:00 p.m. the following afternoon in an 27 isolated field approximately 15 to 20 miles west of Placerville. She was lying on her back and 28 was nude except for a bra. Cloer had sustained three gunshot wounds, one each to the head, chest 3 1 and arm. She had also suffered such crushing blows to the head that she was unrecognizable. 2 Items of her clothing were discovered strewn about the area. There were stains on Cloer’s panties 3 that were still moist. Officers found several .32 caliber shell casings, a .32 caliber bullet, and a 4 set of keys. A later examination revealed a milky fluid inside the victim’s vagina, but the fluid 5 contained no sperm. 6 The investigating officers later received a telephone call from a woman who said her 7 daughter, Elizabeth Ford, had a roommate who fit the description of the person found on June 19. 8 The officers met with Ford, Messner, and Chappell. The officers also visited the Texaco station 9 where Chappell said she had first seen the man suspected of the murder. The officers spoke with 10 the attendants and examined credit card slips for gasoline purchases the evening of the murder. 11 The officers made a list of the license plate numbers from the credit card slips. They later ran 12 those numbers against Department of Motor Vehicle records to determine the registered owners. 13 One of the credit card slips contained license plate number DUK323. However, the name on the 14 slip was not legible. That number was registered to Thelma and Richard Hart and was associated 15 with a 1965 Oldsmobile convertible. Although it was not known at the time, Thelma and Richard 16 Hart were petitioner’s mother and stepfather. 17 The officers involved in the case never investigated petitioner in connection with the 18 murder. Sometime later, petitioner was convicted of unrelated criminal offenses, including 19 solicitation to commit murder and being an accessory after the fact to murder, and a biological 20 sample was obtained from him for DNA analysis and entry into the state convicted offender 21 databank. 22 In July 2002, the Betty Cloer case was reopened and the bra and panties found at the 23 murder scene were taken to the California Department of Justice crime lab for DNA analysis. 24 Sperm cells were found on the panties, and the DNA from those cells was compared to the 25 convicted offender database. A match was found to petitioner. Further investigation ensued, 26 including obtaining a saliva sample from petitioner. The DNA from that sample also matched the 27 sample from the victim’s panties. 28 //// 4 1 Petitioner is six feet, four and one-half inches tall. At the time of the offense, he was 2 married to Diana Saylor. In 1971, petitioner and Saylor moved to a home on V Street in 3 Sacramento, which was approximately six and one-half miles from the victim’s apartment. 4 Petitioner and a partner, Mark Masterson, operated a used car sales and service company located 5 on Alhambra Boulevard, approximately five and one-half miles from the victim’s residence. In 6 2003, investigating officers located and questioned Saylor, who recalled losing some keys in 7 1971. When the officers showed her the keys that had been found at the murder scene, her eyes 8 got wide and she immediately grabbed the keys and started rubbing a stone attached to the 9 keychain. Saylor said the keychain looked familiar to her. At the trial, Saylor testified that the 10 key ring looked familiar and was similar to one she had in 1971, but she did not positively 11 identify it. 12 According to Saylor, she and petitioner had been driving the Oldsmobile convertible with 13 license plate number DUK323 in 1971. The car was a light colored, two-door convertible, with 14 the convertible top the same color as the car body. During that period, petitioner and Saylor also 15 owned and operated a Lincoln that was off-white in color. Saylor testified that petitioner owned 16 guns in 1971 and often carried one in the car with him. She did not remember petitioner having a 17 Texaco credit card. 18 The prosecution presented evidence regarding two prior incidents in which petitioner had 19 sexually assaulted young women, the first involving Sharon S. on December 2, 1970, and the 20 second involving Melinda M. on March 9, 1972. Sharon S. and Melinda M. were both, like 21 Cloer, young white females who appear to have been chosen by random encounter. Both Sharon 22 S. and Melinda M. alleged that they had agreed to go somewhere with petitioner and another man, 23 then were taken by car to a different location where they could be rendered helpless. Petitioner 24 physically assaulted both women, and threated to kill them. He put a gun to Melissa M.’s head. 25 Petitioner had sexual intercourse with both women. 26 Petitioner and Mark Masterson were tried for the Sharon S. assault in 1971. Testimony 27 from the preliminary hearing in that case, including the victim’s testimony, was read into the 28 record of the instant case. The jury also heard live witness testimony regarding the Sharon S. 5 1 case. Mark Masterson testified that he and petitioner had both raped Sharon S. and that petitioner 2 had persuaded another employee, John Mays, to falsely testify at the 1971 trial that both men had 3 been with him at the auto shop on the night of the rape. Petitioner and Masterson were both 4 acquitted in the Sharon S. case. 5 Petitioner had been charged in the Melinda M. matter and eventually entered a negotiated 6 plea to assault, with the sex offense charges being dropped. Melinda M. testified at petitioner’s 7 trial that he had raped her in 1972 after he and James Allen picked her up when she was 8 hitchhiking. 9 10 Defense case Petitioner testified and denied murdering Betty Cloer. Although he could not recall where 11 he had been on the evening of June 18, 1971, he testified that he had not been to the Texaco 12 station. Petitioner acknowledged he and his wife ended up with the 1965 Oldsmobile convertible 13 with license plate number DUK323, but claimed he rarely drove it. He testified he did not have 14 either a Texaco or a government credit card, the only types of credit cards accepted by the Texaco 15 station on Madison Avenue at the time. Petitioner claimed he did not own a .32 caliber handgun 16 in June 1971. 17 As to why his DNA may have been found on the victim’s panties, petitioner explained he 18 had been at a party sometime before July 4, 1971, at the home of Ron Williams, and was sitting 19 alone in the back yard when someone who looked like the victim came on to him and they had 20 sex in a tent. Petitioner explained he had come to the party with a friend, Kimo. Kimo left in 21 petitioner’s truck and petitioner was waiting for Kimo to return. When Kimo came back, 22 petitioner learned that Kimo had been in an accident and, because petitioner was distracted by this 23 incident, he never spoke to the woman again. 24 Regarding Stanley Ellis’s testimony, petitioner testified he and Ellis had been in jail 25 together in 1972 and again in 1976. Petitioner testified that in 1972 he was a jail trustee given the 26 job of hospital orderly. Part of that job required him to go around the jail with a guard while the 27 guard picked up mail from the inmates. Petitioner would use a pill cart and pass out aspirin, band 28 aids and other “minor” things. In doing so, he came in contact with Ellis. Petitioner testified that, 6 1 although he had seen Ellis on numerous occasions during the six to eight months petitioner had 2 the orderly job, Ellis had never accused petitioner of being involved in the Betty Cloer murder. 3 Petitioner denied the Sharon S. assault, and testified that he was with his wife and/or 4 working at the time of the alleged rape. He denied interfering with a witness or soliciting perjury. 5 He testified that Masterson had made comments to him during the preliminary hearing in the 6 Sharon S. case that indicated Masterson and Sharon S. had consensual sex and that she was 7 pregnant with Masterson’s child. Petitioner also denied sexually assaulting Melinda M. 8 9 Defense investigator Fran Trunzo testified that she and defense counsel had interviewed Ellis in federal prison on August 24, 2006. Ellis was unable to describe the man he claimed to 10 have seen with Cloer on the night of her murder, although he claimed that he could identify him. 11 Ellis was unemotional in discussing Cloer. Defense attorney Weiner did not threaten or 12 intimidate Ellis. 13 Prosecution rebuttal case 14 On rebuttal the prosecution presented the testimony of James “Kimo” Hempstead, who 15 said he had been involved in an accident in petitioner’s truck on September 21, 1971, while he 16 was driving a gunshot victim to the hospital. Hempstead did not remember going to a party with 17 petitioner at the home of Ron Williams, and did not recall knowing a Ron Williams. The 18 September 1971 incident was the only time he crashed any of petitioner’s vehicles. 19 20 William Roberts, who had worked in the Sacramento County jail during 1972, testified that trustee inmates never handed out medicine to other inmates. 21 Outcome 22 On April 8, 2008, the jury found petitioner guilty of first degree murder. On April 25, 23 2008, petitioner was sentenced to seven years to life in prison with the possibility of parole. 24 Post-conviction Proceedings 25 Petitioner timely appealed, and the California Court of Appeal for the Third Appellate 26 District affirmed the conviction in an unpublished opinion filed December 15, 2009. Lodged 27 Doc. 8. Petitioner’s timely petition for review was denied by the California Supreme Court on 28 March 25, 2010. Lodged Doc. 9. 7 1 Petitioner filed a petition for writ of habeas corpus in the El Dorado County Superior 2 Court on March 29, 2011. The petition was denied on the merits in a written order filed on April 3 19, 2011. Lodged Doc. 10. 4 On May 16, 2011, petitioner filed a petition for writ of habeas corpus in this court, 5 together with a motion for stay and abeyance. ECF Nos. 1, 2. On November 14, 2011, the 6 magistrate judge previously assigned to the case determined that the petition contained only one 7 exhausted claim. The unexhausted claims were dismissed without prejudice, the action was 8 stayed, and petitioner was directed to file an amended petition within 60 days of the date the 9 California Supreme Court denied his petition. ECF No. 8. 10 Petitioner had been pursuing his state remedies since requesting the stay of this action. 11 On June 23, 2011, petitioner filed a petition for writ of habeas corpus in the California Court of 12 Appeal for the Third Appellate District, which was denied without comment or citation on July 13 14, 2011. Lodged Doc. 11. Petitioner filed a habeas petition in the California Supreme Court on 14 September 13, 2011, which was denied without comment or citation on February 15, 2012. 15 Lodged Doc. 12. 16 On April 16, 2012, petitioner filed a First Amended Petition in this court. ECF No. 10. 17 The stay was lifted and respondent was directed to respond. ECF No. 11. Following several 18 extensions of time, the answer was filed on November 26, 2012. ECF No. 29. Petitioner’s 19 traverse was filed on February 22, 2013. 20 21 22 23 24 25 26 27 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), provides in relevant part as follows: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 28 8 1 2 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 3 The statute applies whenever the state court has denied a federal claim on its merits, 4 whether or not the state court explained its reasons. Harrington v. Richter, 131 S. Ct. 770, 785 5 (2011). State court rejection of a federal claim will be presumed to have been on the merits 6 absent any indication or state-law procedural principles to the contrary. Id. at 784-785 (citing 7 Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is 8 unclear whether a decision appearing to rest on federal grounds was decided on another basis)). 9 “The presumption may be overcome when there is reason to think some other explanation for the 10 11 state court's decision is more likely.” Id. at 785. The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal 12 principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 13 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established 14 Federal law,” but circuit law has persuasive value regarding what law is “clearly established” and 15 what constitutes “unreasonable application” of that law. Duchaime v. Ducharme, 200 F.3d 597, 16 600 (9th Cir. 2000); Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004). If there is no 17 Supreme Court precedent that controls a legal issue raised by a habeas petitioner in state court, 18 the state court's decision cannot be contrary to, or an unreasonable application of, clearly 19 established federal law. Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam). 20 A state court decision is “contrary to” clearly established federal law if the decision 21 “contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529 22 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state 23 court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to 24 the facts of the particular state prisoner’s case.” Id. at 407-08. It is not enough that the state court 25 was incorrect in the view of the federal habeas court; the state court decision must be objectively 26 unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). 27 28 Review under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). The question at this stage is whether the state court 9 1 reasonably applied clearly established federal law to the facts before it. Id. In other words, the 2 focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 1399. Where the 3 state court’s adjudication is set forth in a reasoned opinion, §2254(d)(1) review is confined to “the 4 state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d 724, 738 (9th 5 Cir. 2008) (en banc). A different rule applies where the state court rejects claims summarily, 6 without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court 7 denies a claim on the merits but without a reasoned opinion, the federal habeas court must 8 determine what arguments or theories may have supported the state court’s decision, and subject 9 those arguments or theories to § 2254(d) scrutiny. Richter, 131 S. Ct. at 786. 10 Under California law, a summary denial of a claim Aon the merits@ means that the 11 California Supreme Court assumed the truth of all factual allegations asserted in support of the 12 claim, and nonetheless concluded that those facts did not state a claim entitling the petitioner to 13 relief. People v. Duvall, 9 Cal. 4th 464, 474 (1995); People v. Romero, 8 Cal. 4th 728, 737 14 (1994). In other words, summary denial on the merits indicates a determination that the petitioner 15 has failed to state a prima facie case. Duvall, 9 Cal. 4th at 475; Pinholster, 131 S. Ct. at 1402 16 n.12 (citing In re Clark, 5 Cal. 4th 750, 770 (1993)). When a state court denies a claim for failing 17 to state a prima facie case, the absence of a prima facie case is the determination that must be 18 reviewed for reasonableness under ' 2254(d). Nunes, 350 F.3d at 1054-55. 19 Relief is also available under AEDPA where the state court predicated its adjudication of 20 a claim on an unreasonable factual determination. Miller-El v. Dretke, 545 U.S. 231, 240 (2005); 21 Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir.), cert. denied, 543 U.S. 1038 (2004). The 22 statute explicitly limits this inquiry to the evidence that was before the state court. 28 U.S.C. § 23 2254(d)(2). 24 To prevail in federal habeas proceedings, a petitioner must establish the applicability of 25 one of the ' 2254(d) exceptions and also must also affirmatively establish the constitutional 26 invalidity of his custody under pre-AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir. 27 2008) (en banc). There is no single prescribed order in which these two inquiries must be 28 conducted. Id. at 736-37. The AEDPA does not require the federal habeas court to adopt any one 10 1 methodology. Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 2 DISCUSSION 3 I. 4 Introduction Due to the excessive length and complexity of petitioner’s submissions, it is not possible 5 to engage in a point-by-point discussion of his arguments and theories. The undersigned has 6 reviewed the pleadings in their entirety and has independently reviewed the entire lodged state 7 court record, and addresses below the core of each claim for relief. Because the AEDPA bars 8 relief on each claim for the reasons explained below, petitioner’s many additional arguments and 9 theories on related matters need not be addressed. 10 II. Grounds One, Three, Five and Seven of the petition3 involve allegations that trial counsel, 11 12 Claims Related To Trial Counsel’s Alleged Conflict(s) Dain Weiner, did not provide the conflict-free counsel that the Sixth Amendment requires. 13 A. Petitioner’s Allegations 14 1. Overview Of The Claims 15 Petitioner identifies what he considers eight discrete “conflicts” that allegedly impaired 16 Weiner’s loyalty and thus violated petitioner’s rights under the Sixth Amendment. All involve 17 counsel’s pre-trial interview of witness Stanley Ellis, and the consequences of counsel’s alleged 18 misconduct during that interview. Petitioner claims that Wiener had a conflict of interest 19 because: (1) he presented a fraudulent photograph of the petitioner to Ellis; (2) he threatened Ellis 20 by showing him a newspaper article about petitioner and stating “This is what he [petitioner] does 21 to his enemies”; (3) he openly visited witness Ellis in prison, causing Ellis to be viewed as a 22 snitch; (4) he misrepresented himself as Ellis’s attorney to gain a prison visit; (5) he “induc[ed] a 23 federal criminal investigation of himself in his role as petitioner’s lawyer”; (6) he represented 24 petitioner in a trial where he was the chief witness; (7) he convinced petitioner to waive his right 25 to conflict-free counsel; and (8) he failed to oppose the prosecutor’s request to seal the records 26 3 27 There are no Grounds Two, Four, Six or Eight in the federal petition. In the state habeas petition, Grounds Two, Four, Six and Eight stated California law counterparts to Grounds One, Three, Five and Seven, respectively. See Lodged Docs. 10, 12. 28 11 1 from the in camera hearing regarding the conflicts of interest. See, e.g., ECF No. 10 at 21-22 2 (Table of Contents (“TOC”)). 3 Ground One focuses primarily on the “fraudulent photograph,” and also asserts more 4 broadly that Weiner’s pretrial contact with Ellis and the aftermath of that interview deprived 5 petitioner of his right to conflict-free counsel. Id. at 8-13 (TOC); ECF No. 10 at 86 through 10-1 6 at 26. Ground Three alleges that petitioner’s waiver of the conflict was defective and violated his 7 Sixth Amendment and due process rights. ECF No. 10 at 18-33 (TOC); ECF No. 10-2 at 4 8 through 10-3 at 27. Ground Five essentially restates the factual basis for Ground One, and 9 emphasizes that Weiner’s performance was adversely affected by the conflict. ECF No. 10 at 34- 10 35 (TOC); ECF No. 10-3 at 27-41. Ground Seven restates the factual basis for Ground Three and 11 alleges that the trial court violated petitioner’s rights by accepting the defective waiver. ECF No. 12 10 at 35-36 (TOC); ECF No. 10-3 at 41-43. 13 2. Factual and Procedural Background 14 a. Facts Related To The Alleged Conflict 15 Prior to trial, defense counsel Dain Weiner and investigator Fran Trunzo interviewed 16 Stanley Ellis in prison. 5 RT at 1161, 1181-83 (testimony of Stanley Ellis).4 The interview took 17 place after Ellis’s attorney had directly told Weiner not to speak to Ellis. RT Aug. at 124.5 18 During the visit, Ellis was shown a photograph of an individual other than petitioner but labeled 19 with petitioner’s name. RT Aug. at 140; 9 RT at 2383, 2401-02 (testimony of Fran Trunzo). 20 Ellis said that the man in the photo was not the man he had seen with Betty Cloer on the night of 21 her murder. 5 RT at 1183; 9 RT at 2407. Weiner also showed Ellis articles about petitioner. RT 22 Aug. at 125. Ellis felt intimidated because he was shown “this article about what Mr. Thompson 23 does to his enemies.” 5 RT 1186; see also 5 RT 1205-06. 24 At a pretrial hearing on August 10, 2007, the prosecutor told the trial judge that Ellis had 25 written to Detective Fitzgerald following the Weiner visit, expressing fear for his own safety and 26 27 4 5 “RT” refers to the Reporter’s Transcript on Appeal, Lodged Doc. 3, Volumes 1-11. “RT Aug.” refers to the Reporter’s Augmented Transcript on Appeal, Lodged Doc. 4. 28 12 1 requesting intervention on his behalf. RT Aug. at 119, 122. Ellis felt that his life was in danger 2 because Weiner’s visit made him look like an informer. 5 RT 1165-66, 1169, 1188, 1208. The 3 prosecutor raised the possibility that if Ellis were to be questioned at trial about the interview, his 4 statements to Weiner, use of the deceptive photograph, or Ellis’s subsequent requests for 5 protection or leniency, Weiner would end up having to be a witness. RT Aug. at 122-124. The 6 prosecutor also raised the possibility that Weiner’s conduct vis-à-vis Ellis could “cause some 7 negativity to be imputed to the defendant.” RT Aug. at 125. The prosecutor suggested that 8 Weiner’s conduct toward Ellis could be interpreted as witness intimidation. RT Aug. at 126. 9 At a further hearing on October 5, 2007, the judge asked the prosecutor whether she 10 intended to pursue criminal charges against Weiner for deceiving a witness. RT Aug. at 135 11 (“You going to file a 133 PC or not, that’s the bottom line? . . . Do you have any information as 12 to whether or not any other jurisdiction is going to file a PC 133?”)6 The prosecutor replied that 13 she was not forwarding the information to any other jurisdiction, but sought only to resolve the 14 impact the incident would have on petitioner’s trial. RT Aug. at 135-36. She stated that she had 15 attempted “to essentially remain neutral in this situation and just bring the information to the 16 court.” RT Aug. at 136. The court ruled tentatively that Weiner would continue to represent 17 petitioner, Ellis could testify, and that any testimony related to Ellis’s credibility would be 18 handled by Ms. Trunzo. The judge indicated that he would take no action regarding potential 19 charges against Weiner. RT Aug. at 136-37. 20 During further argument, the prosecutor emphasized the potential for Mr. Weiner’s 21 conduct to become an issue at trial.7 RT Aug. at 138-44. She characterized the Ellis visit and use 22 of the “fraudulent” photograph as “at best, inappropriate behavior. At worst, criminal behavior, 23 unethical behavior.” RT Aug. at 141. The prosecutor noted the potential for the case to be 24 derailed mid-trial if it became necessary for Weiner to testify. RT Aug. at 144. She also repeated 25 6 Cal. Penal Code § 133 (Deceiving a witness). “[U]ltimately the testimony of Mr. Doe [Ellis] is anticipated that he will state that he felt like it was a setup from the beginning. He did not want to be there talking with these people. And that he felt intimidated, and certain things were said by Mr. Weiner to him that caused him to feel a threat to his security. . .” RT Aug. at 139. 7 26 27 28 13 1 the concern that the jury’s knowledge of “shady behavior” by defense counsel would impair 2 petitioner’s right to a fair trial. RT Aug. at 141. She predicted that even with a waiver of 3 conflict, “[w]e can see the appeal coming.” RT Aug. at 142. 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 b. Facts Related To The Waiver Of Potential Conflict At the October 5, 2007 hearing the judge addressed petitioner as follows: . . . Mr. Thompson, it has been your repeated request that Mr. Weiner remain as your attorney of record. I am more than willing to substitute counsel because of this issue in this matter, but, you know, Ms. Kelliher makes a valid point. When the jury sees what they may perceive to be shenanigans or skullduggery on the part of your defense team, I would say not only possibly are they going to attribute that to you, if they determine that it was some sort of chicanery, they will attribute it to you. That’s the bottom line. But you have repeatedly indicated that you want Mr. Weiner and Ms. Trunzo to remain as your defense team in this matter so I’ll leave it to you. RT Aug. at 142. Petitioner responded, “As I told Mr. Weiner, I’ll wager his credibility against [Ellis’s] credibility any day of the week.” RT Aug. at 142. The following waiver colloquy ensued: THE COURT: All right. Mr. Thompson, you have an absolute right to conflict free counsel. All right. That is an absolute right that you have, but that can be waived. All right. And what I need to know from you, and I must understand, you know, you are making a knowing and intelligent waiver with sufficient awareness of the relevant circumstances and the likely consequences. That’s the language from the Supreme Court of the potential conflict or the conflict in this case. I need to know that you and Mr. Weiner have discussed the potential drawbacks of his representation. Now, you said earlier you would stack Mr. Weiner’s credibility against Mr. Doe’s credibility any day of the week. If he represents you as an attorney, he’s not going to have that opportunity. He’s not going to be taking the stand and testifying in front of the jury as your attorney presenting the case, you need to understand that. That if I leave him as your counsel of record, it will not be him on the stand versus Mr. Doe on the stand. Okay. You understand that? [PETITIONER]: Uh-huh. THE COURT: Is that a yes? [PETITIONER]: Yes, I do. THE COURT: All right. And that means that there may be issues that come up during the trial that would, I’ll say under ordinary 14 1 2 3 4 circumstances, require that Mr. Weiner be called as a witness in this matter. That will be prohibited because he is representing you. And that can have ramifications and this is just – for an example, if Mr. Doe says something on the stand that only Mr. Weiner can rebut through his testimony, he will not be able to do that because if I leave him as your counsel of record, he is going to be prohibited from taking the stand. He cannot be a witness and present the case. So you understand that there is that potential? 5 [PETITIONER]: I do. 6 12 THE COURT: All right. That means that that may have an adverse effect on the information that Mr. Doe imparts to the jury, trier of fact, the people that will be deciding your fate in this matter, and that can be a potential deleterious effect on you and your case. And you understand that? And what I mean by that is it can put Mr. Weiner at a disadvantage in arguing the case, and in his argument attacking Mr. Doe’s credibility in his final summation. And there are, you know, perhaps even until we hear Mr. Doe, there may be consequences that I can’t even foresee that would have a bad impact on your case. But because Mr. Weiner is your attorney and he is prohibited from testifying, you may not be able to counter those. You understand that? 13 [PETITIONER]: Yes. 14 16 THE COURT: All right. And, you know, like I say, you have that right to the conflict free representation, and I need to know that having discussed all of these matters – well, let me ask this question first; have you discussed these possible consequences with Mr. Weiner? 17 [PETITIONER]: Yes. 18 THE COURT: All right. Having discussed them with Mr. Weiner, having me talk about them on the record, and I have to make sure you clearly understand the ramifications of your waiver, and that, you know, you have to make – I have to make sure that, you know, you’re going into this with your eyes wide open and that this is your choice. And you have to know that I would be more than willing to appoint another attorney for you and it would be an experienced attorney. I have one in mind. I have one in mind when you came in here this morning, if I were to relieve Mr. Weiner, he has a lot of experience and, in fact, I believe he was involved with this case earlier on. Not to hide the ball, Mr. Clark was who I have in mind, Mr. Jim Clark to represent you. He’s got a lot of experience trying cases and in this community. And so I need to know you’re going into this with your eyes wide open, understanding all the possible bad effects this could have and I would appoint you another attorney, a very experienced attorney in his matter that is free of any conflicts and it’s still your desire that Mr. Weiner represent you? 7 8 9 10 11 15 19 20 21 22 23 24 25 26 27 [PETITIONER]: Yes. 28 15 1 THE COURT: Okay. Do you have any questions of me concerning this representation or how it may affect your case? 2 [PETITIONER]: I don’t. 3 4 RT Aug. at 145-47. 5 The judge clarified further, “When I say you may not be able to respond to testimony by 6 Mr. Doe, what I mean and what [the prosecutor] is indicating, it may go unrebutted. There may 7 not be anyone to say him nay, if you will.” RT Aug. at 148. Petitioner responded, “I understand 8 all the ramifications, your Honor, and I still waive the issue.” RT Aug. at 148-49. The judge 9 repeated in stronger terms the possibility that Ellis’s testimony might go to the jury completely 10 unrebutted if both Weiner and Trunzo were unable to testify because of potential criminal liability 11 and/or conflict. Petitioner repeated that he understood and waived any conflict. RT Aug. at 149- 12 50. 13 14 15 16 17 18 19 20 The prosecutor argued that Weiner should be removed despite the waiver. RT Aug. at 150-51. The court, however, accepted the waiver: THE COURT: [T]he Court would indicate that it has sufficient information to and evidence or argument before it to replace Mr. Weiner. And to be candid, that would be my choice in this matter to relieve this issue. But the Court must balance the potential here – and as far as, I mean, not the potential, but the interests here of Mr. Thompson in keeping his appointed counsel with whom he has developed a relationship, attorney-client relationship with, and the, I’ll say, potential of a conflict here. And as long as Mr. Thompson is fully apprised and goes into it with his eyes wide open, the Court does not see this as rising to the degree that would make it mandatory for the Court to replace the attorney based on what I know so far. 21 22 RT Aug. at 151-52. 23 B. The Clearly Established Federal Law 24 It is well established that the Sixth Amendment right to effective assistance of counsel 25 carries with it “a correlative right to representation that is free from conflicts of interest.” Wood 26 v. Georgia, 450 U.S. 261, 271 (1981). Accordingly, a trial court may not require over objection 27 that one lawyer simultaneously represent co-defendants with actually conflicting interests. 28 Holloway v. Arkansas, 435 U.S. 475 (1978). In such cases, prejudice is presumed and reversal is 16 1 required. Id. at 488-90. Where there is no objection to joint representation, a different rule 2 applies. In order to establish a Sixth Amendment violation, a defendant who raised no objection 3 at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s 4 performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). This is a lesser showing than 5 probable effect on the outcome of the trial. Id. at 349-350 (“a defendant who shows that a 6 conflict of interest actually affected the adequacy of his representation need not demonstrate 7 prejudice in order to obtain relief.”); Mickens v. Taylor, 535 U.S. 162,172-173 (2002). “Actual 8 conflict of interest” means a conflict that actually affects counsel’s performance, rather than a 9 “mere theoretical division of loyalties.” Mickens, 535 U.S. at 171. 10 Conflicts of counsel may be waived. Wood, 450 U.S. at 273-74. A trial court need not 11 accept a proffered waiver, however, and may insist that defendants be represented by unconflicted 12 counsel. Wheat v. United States, 486 U.S. 153, 162 (1988). Trial courts are permitted broad 13 latitude to decide whether or not to accept waivers of conflicts. Id. at 63. The validity of a 14 waiver of conflict is governed by the standard applicable to waivers of other fundamental rights. 15 Glasser v. United States, 315 U.S. 60, 70 (1942) (waivers of right to unconflicted counsel are 16 governed by Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). The question is whether, in light of 17 all the relevant facts and circumstances, the waiver was knowing, intelligent and voluntary: 18 19 20 21 22 A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. at 464. 23 C. The State Court’s Ruling 24 Because the California Supreme Court denied all claims without comment or citation, 25 Lodged Doc. 12, this court “looks through” the silent denial to the last reasoned state court 26 decision. See Ylst v. Nunnemaker, 501 U.S. 797 (1991). The El Dorado Superior Court denied 27 the conflicted counsel claims in a reasoned order, so that is the decision reviewed for 28 reasonableness under § 2254(d). See Bonner v. Carey, 425 F.3d 1145, 1148 n.13 (9th Cir. 2005). 17 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 The superior court ruled as follows: It has long been held that the initial burden for habeas relief is on petitioner. He must: “…plead adequate grounds for relief by petition , which should state fully and with particularity the facts on which relief is sought and include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of transcripts and affidavits or declarations. Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing. (People v. Duvall (1995) 9 Cal.4th 464, 474.) Also, in general, it has long been held that habeas writ may not serve as a substitute for an appeal. (People v. Lempia (1956) 144 Cal.App.2d 393, 398.) Likewise, habeas corpus is not an available remedy to review the rulings of the trial court with respect to the admission or exclusion of evidence, or to correct other errors of procedure occurring on the trial. (Ex parte Lindley (1947) 29 Cal.2d 709, 723.) Finally, the general rule is that habeas corpus cannot serve as a substitute for an appeal, and: “… in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction. (Citations).” (Ex parte Dixon (1953) 41 Cal.2d 756, 759.) Applying these principles, the court addresses each ground set forth in the petition. Ground One. The petitioner alleges that there was a conflict of interest between himself and trial counsel. This issue was addressed at the trial of this matter. The petitioner’s own documents show that it was. Further, this issue was not raised on appeal even after appellate counsel sought and received sealed documents on this issue during the course of the appeal. The petitioner simply dresses the same evidence and issues in a new package, but raises nothing new in this petition. . . . Ground Three. The petitioner alleges his waiver of conflict free counsel was unconstitutional. Petitioner’s own documents show that he was fully informed of the conflict and waived that conflict. His self-serving statements to the contrary do not support the petition. Likewise, this ground fails for the reason set forth above for Ground One. . . . Ground Five. The allegations in this ground are, essentially the same as Ground Three and Four, and fail for the same reasons. . . . Ground Seven. The petitioner alleges that the court should have exercised its inherent powers to remove counsel because of the conflict. This ground fails for the same reason as Grounds Three, Four, Five, and Six. In addition, as set forth in petitioner’s own documentation, the court balanced the petitioner’s right to the 18 1 counsel of his choice against the waived conflict and kept counsel in the case at petitioner’s own request. 2 3 4 5 Lodged Doc. 10 at 2-4. The superior court further ruled that “the petition fails to state a prima facie claim as to any basis for relief. . .” Id. at 6. 6 D. Procedural Default 7 Respondent argues that Ground One is procedurally barred because it was denied by the 8 superior court on the ground that it could have, but was not, raised on appeal as required by 9 Lempia and Lindley, supra. ECF No. 29 at 25-28. As a general rule, a federal habeas court “will 10 not review a question of federal law decided by a state court if the decision of that court rests on a 11 state law ground that is independent of the federal question and adequate to support the 12 judgment.” Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir.1996) 13 (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)); cert. denied, 520 U.S. 1204 (1997). 14 The fact that the state court alternatively ruled on the merits, see Lodged Doc. 10 at 6, does not 15 erase the effect of a procedural bar. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989). 16 A petitioner can overcome a procedural default by demonstrating cause and prejudice. 17 Coleman v. Thompson, 501 U.S. 722, 753 (1991). Here, petitioner presents multiple theories 18 why the procedural default doctrine does not apply, and extensive briefing on the issue. ECF No. 19 10 at 13-18 (TOC to Petition, outlining arguments); ECF No. 10-1 at 26 through 10-2 at 4 20 (Petition); ECF No. 34 at 34-38 (Traverse). Among other things, petitioner alleges that his 21 appellate counsel performed ineffectively, in violation of his constitutional rights, by failing to 22 raise on appeal those issues presented to the state courts for the first time in habeas. See ECF No. 23 34 at 36-37 (Traverse); ECF No. 10-4 at 60-73 (Petition, Ground Twenty (ineffective assistance 24 of appellate counsel)). 25 Ineffective assistance of counsel (“IAC”) can, if pleaded and proved, establish cause for a 26 default. Murray v. Carrier, 477 U.S. 478, 488 (1986); Edwards v. Carpenter, 529 U.S. 446, 451 27 (2000). The cause and prejudice inquiry applicable to Ground One overlaps with the merits of 28 petitioner’s appellate IAC claim at Ground Twenty. In both the default and merits contexts, 19 1 petitioner must establish prejudice from appellate counsel’s performance, which in turn requires 2 analysis of the strength of the claims that counsel failed to present on appeal. See Moorman v. 3 Ryan, 628 F.3d 1102, 1106-07 (9th Cir. 2010), cert. denied, 132 S.Ct. 346 (2011). 4 A procedural default may also be overcome with proof of actual innocence. Schlup v. 5 Delo, 513 U.S. 298 (1995); House v. Bell, 547 U.S. 518 (2006). Plaintiff here has asserted actual 6 innocence as a ground to overcome default, ECF No. 34 at 37, and has also presented a putative 7 freestanding claim of actual innocence as grounds for relief, ECF No. 10-3 at 43-45 (Ground 8 Nine). In this context as well, the analysis related to default overlaps with (if it is not identical to) 9 review of the merits of a separate claim that is not defaulted. 10 A federal court may bypass consideration of a procedural bar issue in the interests of 11 judicial economy, where the asserted default presents complicated questions and the other issues 12 are resolvable against the petitioner. Lambrix v. Singletary, 520 U.S. 518, 522−25 (1997); 13 Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002). Here, because the merits of the 14 defaulted issues and of petitioner’s actual innocence claim must be evaluated in any case, and 15 because petitioner’s discussion of default would be difficult and excessively time-consuming to 16 address, the undersigned exercises discretion to bypass the procedural default issue and proceed 17 to the merits. 18 E. Objective Unreasonableness Under 28 U.S.C. § 2254(d) 19 1. Grounds One And Five: Violation of Right To Conflict-Free Counsel 20 The superior court ruled that plaintiff had not established a prima facie case of the denial 21 of conflict-free counsel. Lodged Doc. 10 at 6. That conclusion did not involve an unreasonable 22 application of clearly established federal law. No U.S. Supreme Court case holds that it violates 23 the Sixth Amendment for a lawyer accused of misconduct vis-à-vis a witness to continue to 24 represent a criminal defendant at trial. Moreover, the Supreme Court specifically noted in 25 Mickens, supra, that the application of Cuyler v. Sullivan to circumstances other than the active 26 legal representation of defendants with conflicting legal interests is not clearly established. 27 Mickens, 535 U.S. at 174-75 (noting that lower courts’ broad application of Sullivan to other 28 types of attorney “conflict” is not clearly established or even supported by Sullivan itself). 20 1 Because Weiner did not represent both petitioner and Ellis, Sullivan and progeny do not govern 2 as a matter of clearly established law and therefore cannot have been unreasonably applied. See 3 Wright v. Van Patten, 552 U.S. at 125-26 (where no Supreme Court precedent controls the issue, 4 state courts’ decision cannot be contrary to, or an unreasonable application of, clearly established 5 federal law). 6 Even if the Sullivan standard did apply to the type of conflict at issue here, the claim 7 would fail because the record does not support a finding that Weiner’s performance was 8 adversely affected by his interest in protecting himself from accusations of misconduct. See 9 Sullivan, 446 U.S. at 349-50 (actual conflict of interests exists if adequacy of representation is 10 affected by divided loyalty); Mickens, 535 U.S. at 71 (same). Weiner vigorously cross-examined 11 Ellis and attacked his credibility. Weiner did not shy away from the facts of what happened 12 during the prison interview. Rather, he directly attacked Ellis’s version of those events. Weiner’s 13 cross-examination challenged Ellis’s claim to have been intimidated by Weiner, and implied that 14 Ellis had made up a story about being threatened in order to obtain a favorable transfer. 15 Throughout the lengthy cross-examination, contrary to petitioner’s representations, there is no 16 hint of pulled punches. See 5 RT 1202-92. Weiner also presented the testimony of Fran Trunzo 17 to rebut Ellis’s account of the interview. 9 RT 2375-2401. In light of these facts, it was not 18 objectively unreasonable for the superior court to find that petitioner had not presented a prima 19 facie case of conflicted counsel. No actual conflict can reasonably be found on this record.8 20 8 21 22 23 24 25 26 27 28 Contrary to petitioner’s rhetoric, Weiner did not become a witness at the trial and was not the subject of a federal criminal investigation. The trial judge had been understandably concerned about the prospect of criminal charges and the possibility that Weiner might have to testify, but neither circumstance came to pass. Petitioner also contends inaccurately that Weiner “admitted” threatening Ellis. There was no admission. Weiner’s closing argument regarding Ellis’s accusation drips with sarcasm even from the cold transcript page: “Now, Mr. Ellis, you recall, is the federal prison inmate who I went in and threatened and intimidated. . . . Special Investigative Services came to talk to him about this terrible, evil lawyer, wanting to know how I had gotten into the prison, how I had gotten in to interview him.” 11 RT 2777. Weiner continued: “[Ellis] described for you this interview that took place with the SIS agent. Luckily, we had a court order, ordering the federal prison system to produce any such report, and you know what? . . . There was no report, because it never happened, but it’s certainly a stellar example of Mr. Ellis’s ability to make up a story. . . He testified that as a result of the visit. . . [h]e was at risk of being killed or (continued…) 21 1 Petitioner contends that the trial court’s ruling regarding the photograph shown to Ellis 2 rested on unreasonable determinations of fact within the meaning of 28 U.S.C. §2254(d)(2). The 3 order denying habeas relief on this ground made no factual findings, but ruled that petitioner had 4 not established a prima facie case of a constitutional violation. To the extent that petitioner is 5 attacking the pre-trial ruling that permitted Weiner to continue as counsel, that ruling did not turn 6 on resolution of any disputed facts regarding Weiner ‘s conduct in relation to Ellis. The only 7 factual findings that supported the ruling were those related to the validity of petitioner’s waiver. 8 The court now turns to that issue. 9 10 2. Grounds Three And Seven: Waiver Of Potential Conflict The superior court ruled that petitioner had not stated a prima facie case for relief on 11 grounds that his waiver of conflict-free counsel was defective. That conclusion was not 12 objectively unreasonable. It is clearly established that a conflict can be waived, Wood v. Georgia, 13 450 U.S. at 273-74, and that a trial court enjoys broad discretion whether to permit waiver, Wheat 14 v. United States, 486 U.S. at 63. Exercises of discretion are entitled to great deference on habeas 15 review, because the range of reasonable state court judgments is particularly broad where the 16 standard to be applied is broad. See Renico v. Lett, 559 U.S. 766, 776 (2010). No Supreme 17 Court case holds that a waiver may not be accepted on facts analogous to those presented here. 18 The waiver colloquy at the pretrial hearing more than adequately satisfied the requirements of 19 Johnson v. Zerbst, 304 U.S. at 464. Petitioner repeatedly insisted that Weiner not be replaced, 20 and indicated that he understood the potential for Weiner’s self-interest to conflict with his 21 zealous representation of petitioner. The trial judge bent over backwards to protect petitioner’s 22 rights in this situation. No facts or circumstances of record suggest that petitioner was less than 23 competent, that he failed to understand the rights he was waiving, or that his relinquishment of 24 those rights was involuntary or improperly influenced. Accordingly, the state court’s denial of 25 26 27 hurt for being a prison snitch. And he was so concerned for his safety, he was so threatened and intimated, that he waited seven months to write a letter to the D.A.’s office asking if he could maybe be moved somewhere else. Seven months. He was that scared, that frightened, that intimidated.” 11 RT 2777-78. 28 22 1 the claim involved neither an unreasonable application of federal law nor an unreasonable 2 determination of fact. 3 III. 4 Actual Innocence A. Petitioner’s Allegations 5 In Ground Nine, petitioner alleges that he is actually innocent of Betty Cloer’s murder. In 6 support of this claim, he submits two affidavits from John Doe (aka John Prokop), who petitioner 7 describes as an eyewitness to Stanley Ellis’s murder of Betty Cloer. ECF No. 10 at 36 (TOC); 8 ECF No. 10-3 at 43-45. 9 In an undated and unsigned affidavit submitted as petitioner’s Exhibit A, John Doe 10 declares that he and Stan Ellis frequently committed burglaries together in the Sacramento area in 11 1971, when John Doe was a teenager. On the night of July 18, 1971, John Doe witnessed Ellis 12 arguing with Betty Cloer outside the apartment building where both Ellis and Cloer lived. Prior 13 to the argument with Ellis, Betty had been talking to a man in a dark blue car. After Betty went 14 inside to get her coat, her argument with Ellis continued in John Doe’s stolen van. John Doe 15 heard a gunshot coming from the van. Ellis then took the van keys from Doe and drove away, 16 after admitting that he had “accidentally” shot Betty. Weeks later, Doe found Betty’s purse in the 17 van. Petitioner’s Ex. A.9 18 In an affidavit dated September 8, 2011, John Prokop declares that he is the John Doe who 19 swore the previous affidavit. He adds the fact that in late June 1971, Ellis admitted killing Betty 20 Cloer and threatened to have Prokop killed if he said anything to the police. ECF No. 10-8 at 4-5. 21 22 Petitioner further alleges that state authorities have suppressed exculpatory evidence by failing to disclose evidence related to Prokop and Ellis after having been served with the 23 24 25 26 27 9 The ECF version of the petition and exhibits, which had to be scanned and filed as multiple attachments due to their size, has the appendices out of order and possibly incomplete. Because this court’s review is limited to the record that was before the state court, and the exhibits that were submitted to the California Supreme Court are part of the state court record that has been lodged in this case, any clerical error regarding petitioner’s exhibits is without consequence. Exhibit A is most readily accessible as attached to petitioner’s California Supreme Court petition, Lodged Doc. 12. 28 23 1 2 affidavits. ECF No. 10 at 36 (TOC); ECF No. 10-3 at 45-49. B. The Clearly Established Federal Law 3 4 1. Actual Innocence In Herrera v. Collins, 506 U.S. 390, 417 (1993), the U.S. Supreme Court assumed without 5 deciding that a truly persuasive showing of actual innocence would make the execution of a 6 capital defendant unconstitutional and would support federal habeas relief as to the death 7 sentence. The threshold showing for such an assumed right not to be executed while innocent 8 “would necessarily be extraordinarily high.” Id. The Supreme Court has also recognized an 9 actual innocence exception to procedural rules that would otherwise bar federal habeas review of 10 independent substantive claims. In order to qualify for this exception, a petitioner must produce 11 “new reliable evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness 12 accounts, or critical physical evidence – that was not presented at trial.” Schlup v. Delo, 513 U.S. 13 298, 324 (1995). Procedural default or untimeliness will only be excused where it is more likely 14 than not that no reasonable juror would have convicted petitioner in the light of the new evidence. 15 Id. at 329 (procedural default); McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (statute of 16 limitations). 17 18 2. Brady Violation A Brady violation has three components: “[t]he evidence at issue must be favorable to the 19 accused, either because it is exculpatory, or because it is impeaching; that evidence must have 20 been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” 21 Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (citing Brady v. Maryland, 373 U.S. 83 (1963)); 22 see also Banks v. Dretke, 540 U.S. 668, 691 (2004). In order to establish prejudice, petitioner 23 must demonstrate that “‘there is a reasonable probability’ that the result of the trial would have 24 been different if the suppressed documents had been disclosed to the defense.” Strickler, 527 25 U.S. at 289. “‘The question is not whether the [petitioner] would more likely than not have 26 received a different verdict with the evidence, but whether in its absence he received a fair trial, 27 understood as a trial resulting in a verdict worthy of confidence.’” Id. (quoting Kyles v. Whitley, 28 514 U.S. at 434). Once the materiality of the suppressed evidence is established, no further 24 1 2 3 harmless error analysis is required. Kyles, 514 U.S. at 435-36. C. The State Court’s Ruling Because the California Supreme Court denied the petition without comment, this court 4 looks through to the written decision of the superior court. See Bonner v. Carey, 425 F.3d at 5 1148 n.13. That court ruled as follows: 6 7 8 9 10 11 12 13 14 15 The petitioner alleges that he is “actually innocent” based on the declaration of “John Doe” and that his conviction should be reversed. First, the declaration is insufficient on its face. It purports to be the declaration of “John Doe.” The petition is so patently unreliable that it cannot overcome the petitioner’s heavy burden to overcome the presumed “…truth, accuracy, and fairness of the conviction and sentence.” (People v. Duvall, supra, at p. 474.) Further, the petitioner offers no explanation as to why the declaration is only just now come to light. This ground fails for these reasons. Lodged Doc. 10 at 4. D. Objective Unreasonableness Under 28 U.S.C. § 2254(d) The California courts’ denial of this claim cannot be disturbed under § 2254(d), because 16 the U.S. Supreme Court has never clearly established that a freestanding claim of actual 17 innocence exists. See Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 70 (2009) (it remains an 18 open question whether there exists a federal constitutional right to release upon a showing of 19 actual innocence); see also Wright v. Van Patten, 552 U.S. at 125-26 (where no Supreme Court 20 precedent controls the issue, state courts’ decision cannot be contrary to, or an unreasonable 21 application of, clearly established federal law). 22 Even if there were a clearly established right to habeas relief on a showing of actual 23 innocence, it would require the production of “new reliable evidence.” Schlup, 513 U.S. at 324. 24 The John Doe and John Prokop declarations are not “trustworthy eyewitness accounts” within the 25 meaning of Schlup. See id. Affidavits produced years after a trial are inherently suspect. 26 Herrera, 506 U.S. at 417-18. The John Doe affidavit is particularly unreliable because it is 27 undated, unsigned, and does not identify the affiant. The superior court’s rejection of this 28 affidavit on those grounds was perfectly reasonable. 25 1 The 2011 Prokop declaration, which adopts the earlier affidavit and explains that Prokop 2 had been threatened forty years prior by Ellis, fails to overcome the credibility problems 3 necessarily presented by a defense witness who emerges at the eleventh hour. See Herrera, 506 4 U.S. at 417-18. The undersigned notes that this declaration was not before the superior court. It 5 is unclear that it was properly presented to or considered by the California Supreme Court.10 6 Even if the California Supreme Court considered the 2011 declaration, its summary rejection of 7 the claim was not unreasonable because actual innocence analysis requires evaluation of 8 proffered declarations in light of the proof of petitioner’s guilt at trial. Herrera, 506 U.S. at 418. 9 Here, the evidence at trial pointed strongly to petitioner’s guilt. DNA matching 10 petitioner’s was found on the victim’s panties, and expert testimony established the negligible 11 possibility that it had come from anyone else;11 his explanation for its presence was not 12 credible;12 the car that he drove had been at the gas station where the victim met the man she 13 10 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The actual innocence claim submitted to the California Supreme Court relies exclusively on the initial John Doe affidavit. Lodged Doc. 12 at p. 197 (actual innocence allegations). The petition in this court alleges that the 2011 Prokop declaration was submitted to the state supreme court in Appendix 5. ECF No. 10-3 at 46. The California Supreme Court docket for petitioner’s habeas case reflects the submission of an Appendix 5, and accompanying motion, after the petition in that case had been filed. Lodged Doc. 12. The docket does not reflect any ruling on the motion. In California habeas practice, “[t]he court will determine the appropriate disposition of a petition for writ of habeas corpus based on the allegations of the petition as originally filed and any amended or supplemental petition for which leave to file has been granted.” In re Clark, 5 Cal. 4th 750, 781 n. 16 (1993) (emphasis added). Because the allegations of the state petition as originally filed were limited to the Doe declaration, and because the California Supreme Court did not grant leave to supplement or amend that petition, it appears that the 2011 Prokop declaration was not part of the record considered by the state court. 11 The state’s expert witness calculated the probability that a random, unrelated individual would possess petitioner’s DNA profile at one in 300 trillion for African-Americans, one in 220 trillion for Caucasians, and one in 270 trillion for Hispanics. 3 RT 696. Under California law, this powerfully incriminating statistical evidence is sufficient without more to support the verdict. See People v. Xiong, 215 Cal. App. 4th 1259 (2013). 12 Petitioner testified that he had consensual sex with a woman resembling Cloer at a party on an unspecified date some time before her murder. In order to accept this explanation, the jurors would have to believe that Cloer wore the same panties, unwashed, on a later date to go out to a club with friends – and that by a strange coincidence, the same stranger with whom petitioner had spontaneous sex at a party turned up at the same gas station as petitioner on the night she died. Moreover, petitioner’s testimony regarding the circumstances of the party was effectively rebutted. 28 26 1 disappeared with on the night of her murder; he matched eyewitness descriptions of that man; and 2 his then-wife appeared to recognize keys that were found at the murder scene. When all the 3 evidence, old and new, is considered together, House v. Bell, 547 U.S. 518, 538 (2006), it cannot 4 be said that no reasonable juror would find petitioner guilty. The Prokop testimony would add 5 another credibility contest to the mix, to be sure, but it would not compel a different result in light 6 of the evidentiary record as a whole. A reasonable juror might well conclude that if Stanley Ellis 7 had killed Betty Cloer as Prokop alleges, he would have preferred to remain unconnected to the 8 case and would not have come forward as a witness in 2005. Accordingly, the state court’s 9 rejection of this claim was not objectively unreasonable even if an actual innocence claim 10 presents a cognizable basis for relief. 11 The related Brady claim fails because petitioner identifies no material exculpatory 12 evidence that was suppressed. Without such a showing there is no prima facie case of a 13 constitutional violation. See Strickler v. Greene, 527 U.S. at 281-82 (explaining elements of 14 Brady claim); Jones v. Gomez, 66 F.3d 199, 204-05 & n.1 (9th Cir. 1995) (conclusory allegations 15 unsupported by statement of specific facts insufficient to support habeas relief), cert. denied, 517 16 U.S. 1143 (1996). Petitioner argues that state authorities were obliged to investigate and develop 17 exculpatory evidence in response to his post-conviction submission of the John Doe and Prokop 18 affidavits, but no clearly established federal law establishes a right to habeas relief on that basis. 19 Moreover, the affidavits are so facially unreliable that they give rise to no duty to investigate. 20 The state courts’ summary rejection of this claim was not objectively unreasonable. 21 22 23 IV. Prosecutorial Misconduct A. Petitioner’s Allegations In Ground Eleven, petitioner alleges that the trial prosecutor committed misconduct by (1) 24 failing to refer defense counsel’s conflicts of interest to a neutral prosecutor; (2) 25 misunderstanding and misstating the law; and (3) denigrating defense counsel in closing 26 argument. ECF No. 10 at 36-38 (TOC); ECF No. 10-3 at 49-57. The facts related to the alleged 27 conflict of interest have been set forth above. The allegation regarding mistakes of law involves 28 the prosecutor’s position at the pretrial hearing about Weiner’s conduct vis-à-vis Stanley Ellis and 27 1 the potential conflict of interest. Petitioner alleges that the prosecutor incorrectly led him to 2 believe that Weiner’s conduct was not serious enough to refer for prosecution and therefore not 3 serious enough to pose a conflict of interest. The alleged denigration of defense counsel refers to 4 the prosecutor’s closing argument regarding Ellis’s identification of petitioner, in which the 5 prosecutor pointed out that Ellis had not been tricked into a misidentification. The prosecutor 6 stated that “Stanley was right about . . . the fact that he was being messed with” by Weiner and 7 Trunzo. 10 RT 2804. 8 9 10 11 In Ground Thirty-One, petitioner alleges that the prosecutor wrongfully presented the false testimony of Stanley Ellis. ECF No. 10 at 55-56 (TOC); ECF No. 10-5 at 41-42. This claim relies on the same factual basis as petitioner’s actual innocence claim. Id. B. The Clearly Established Federal Law 12 A prosecutor’s improper statements violate the constitution only where they “so infect[] 13 the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. 14 Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 15 (1974) (internal quotation marks omitted)). It is not enough that the remarks were “undesirable or 16 even universally condemned.” Darden, 477 U.S. at 181. Fundamental fairness must be assessed 17 in context of the trial as a whole, including the weight of the evidence, the defense opportunity to 18 respond, and the instructions given to the jury. Id. at 181-82. 19 The knowing presentation of perjured testimony by the prosecution violates due process. 20 Napue v. Illinois, 360 U.S. 264, 269 (1959); Giglio v. United States, 405 U.S. 150, 153 (1972) 21 (“deliberate deception of a court and jurors by the presentation of known false evidence is 22 incompatible with [the] rudimentary demands of justice.”). 23 24 25 26 27 28 C. The State Court’s Ruling Ground Eleven was adjudicated by the superior court as follows: These grounds are simply an argument that there was prosecutorial misconduct. They do not state even a prima facie case for prosecutorial misconduct. They do not raise any new issues or facts and so they fail for those reasons as well as those set forth above. Lodged Doc. 10 at 4-5. 28 1 Ground Thirty-One (the Napue claim) was not presented to the superior court. Because 2 the California Supreme Court denied the claim without comment or citation, this court asks 3 whether there is any reasonable basis for the state court’s decision. Harrington v. Richter, 131 S. 4 Ct. at 786. 5 D. Objective Unreasonableness Under 28 U.S.C. § 2254(d) 6 The superior court’s adjudication of Claim Eleven did not involve an unreasonable 7 application of federal law. The prosecutor’s position regarding the possible conflict of interest 8 did not render the trial fundamentally unfair. The prosecutor did not purport to be advising 9 petitioner of his rights, and petitioner cannot reasonably have taken her failure to press criminal 10 charges against Weiner as a legal opinion that there was no conflict – especially in light of the 11 prosecutor’s argument that the trial court should not to accept petitioner’s waiver.13 The closing 12 argument to which petitioner objects was nothing more than permissible comment on the 13 evidence. Saying that Ellis was “messed with” by Weiner and Trunzo, in the context of 14 discussing Ellis’s credibility, is dramatically less inflammatory than calling a defendant an 15 “animal” as in Darden, supra. The Supreme Court in Darden found no due process violation 16 despite an improper comment because the evidence against the petitioner was substantial and the 17 jury was properly instructed that the arguments of counsel are not evidence. Darden, 477 U.S. at 18 181-83. The same is true here. Even if the challenged comment were improper, there would be 19 no due process violation. 20 Petitioner’s Napue claim fails because petitioner did not present the state court with 21 credible evidence that Ellis’s testimony was actually false. For the reasons previously explained, 22 the John Doe and Prokop affidavits lack plausible exculpatory value. At most, they create a 23 credibility dispute. Moreover, because the affidavits post-date the trial they do not support a 24 finding that the prosecutor knowingly presented false testimony. Without facts demonstrating 25 that the prosecutor knew Ellis’s testimony as false at the time he testified, there is no prima facie 26 case of a Napue violation. See Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010) (to prevail, 27 13 See RT Aug. at 150-51. 28 29 1 petitioner must show that (1) the testimony was actually false, (2) the prosecutor knew or should 2 have known the testimony was actually false, and (3) the testimony was material), cert. denied, 3 131 S.Ct. 2093 (2011). For these reasons, the state court did not unreasonably find facts or 4 unreasonably apply federal law in summarily dismissing this claim without further development. 5 6 7 V. Judicial Bias A. Petitioner’s Allegations In Ground Thirteen, petitioner alleges: (1) that the trial judge was a former Chief Assistant 8 District Attorney in El Dorado County who had previously supervised the detective who 9 conducted the DNA cold hit investigation into the Cloer murder; (2) that petitioner’s 10 constitutional rights were violated by having the trial judge rule on his state habeas petition; (3) 11 that the judge failed to advise the trial prosecutor to refer Weiner and Trunzo for prosecution; (4) 12 that the judge mishandled the waiver of conflict-free counsel because of his bias against 13 petitioner; and (5) that the judge failed to take necessary corrective action in light of the conflicts. 14 ECF No. 10 at 38-39 (TOC); ECF No. 10-3 at 57-71. 15 B. The Clearly Established Federal Law 16 It is clearly established that due process requires a fair trial in a fair tribunal. In re 17 Murchison, 349 U.S. 133, 136 (1955). It is equally well established that to prevail on a claim of 18 judicial bias a petitioner must plead and prove facts sufficient to “overcome a presumption of 19 honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47 20 (1975). There is no constitutional violation without a showing of facts that objectively 21 demonstrate a serious risk of actual bias. See Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 22 868, 883-84 (2009). 23 24 25 26 C. The State Court’s Ruling The superior court ruled that petitioner’s allegations “do not state even a prima facie case of judicial misconduct.” Lodged Doc. 10 at 5. D. Objective Unreasonableness Under 28 U.S.C. § 2254(d) 27 The record is devoid of facts that objectively demonstrate a serious risk of actual judicial 28 bias. See Caperton, 556 U.S. at 883-84. Petitioner has presented no facts indicating that the trial 30 1 judge was personally involved in the investigation of the Cloer murder. Even assuming that the 2 judge, in his previous capacity as a prosecutor, had worked with (or “supervised”) law 3 enforcement personnel who were involved in this case, there are no indications that he was 4 affected by those relationships in his handling of this case. There are no facts suggesting that the 5 judge was biased against petitioner on the basis of the trial in a way that affected adjudication of 6 the habeas petition. Finally, the judge’s handling of the potential conflict between petitioner and 7 Weiner does not reflect any bias against petitioner on the part of the judge. Because petitioner’s 8 judicial bias claim lacks support in the record, it was not unreasonably rejected. 9 VI. 10 Admission of Uncharged Misconduct A. Petitioner’s Allegations 11 Evidence of two prior rapes was admitted against petitioner under Cal. Evid. Code § 12 1101(b). As previously noted, petitioner and Mark Masterson had been tried for and acquitted of 13 the rape of Sharon S. At petitioner’s trial for Betty Cloer’s murder, Masterson testified that he 14 and petitioner had raped Sharon S. and that petitioner had persuaded a co-worker to provide false 15 alibi testimony. The prosecutor also presented the preliminary hearing testimony of several 16 witnesses from the Sharon S. case, including the victim.14 17 In Ground Fifteen, petitioner alleges that his rights to due process and to confront the 18 witnesses against him were violated by admission at trial of preliminary hearing testimony from 19 the Sharon S. preliminary hearing and all evidence of the two prior rapes. ECF No. 10 at 39 20 (TOC); ECF No. 10-3 at 71-75. This claim is duplicative of Ground Twenty-Four, which collects 21 all grounds for relief that petitioner exhausted on direct appeal. In Ground Twenty-Four 22 petitioner contends that (1) evidence of the two prior sex-offense cases was admitted in violation 23 24 25 26 27 14 Because the trial ended in acquittal, there was no appeal and no Reporter’s Transcript had ever been prepared. The court reporter had destroyed his notes. Accordingly, the preliminary hearing transcript was the only available record of testimony from this case. The transcript entered into evidence at petitioner’s trial for the Cloer murder was the transcript of the first preliminary hearing in the Sharon S. rape case. A motion to dismiss had been granted following that hearing and a second preliminary hearing was held, but the transcript of the second hearing was lost. See 1 RT 35-39. 28 31 1 of his due process rights; (2) admission of the Sharon S. preliminary hearing testimony violated 2 his confrontation rights; (3) admission of any and all evidence related to the Sharon S. case 3 violated his protection against double jeopardy; (4) CALCRIM No. 375, regarding consideration 4 of uncharged conduct, is unconstitutional. ECF No. 10 at 54 (TOC); ECF No. 10-5 at 36-39. 5 B. The Clearly Established Federal Law 6 Errors of state law do not present constitutional claims cognizable in habeas. Pulley v. 7 Harris, 465 U.S. 37, 41 (1984). The erroneous admission of evidence only violates due process if 8 the evidence is so irrelevant and prejudicial that it renders the trial as a whole fundamentally 9 unfair. Estelle v. McGuire, 502 U.S. 62 (1991). Erroneous jury instructions do not support 10 federal habeas relief unless the infirm instruction so infected the entire trial that the resulting 11 conviction violates due process. Id. at 72 (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). 12 See also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (“‘[I]t must be established not 13 merely that the instruction is undesirable, erroneous, or even ‘universally condemned,’ but that it 14 violated some [constitutional right]’”). The challenged instruction may not be judged in artificial 15 isolation, but must be considered in the context of the instructions as a whole and the trial record 16 overall. Estelle, 502 U.S. at 72. Moreover, relief is only available if there is a reasonable 17 likelihood that the jury has applied the challenged instruction in a way that violates the 18 Constitution. Id. at 72–73. 19 The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall 20 enjoy the right to . . . be confronted with the witnesses against him.” The Confrontation Clause 21 prohibits the admission of testimonial out-of-court statements by non-testifying individuals. 22 Crawford v. Washington, 541 U.S. 36 (2004). Not all hearsay implicates the core concerns of the 23 Confrontation Clause; the dispositive question is whether the statement is “testimonial.” 24 Crawford, 541 U.S. at 51. Confrontation Clause violations are subject to harmless error analysis 25 under Chapman v. California, 386 U.S. 18 (1967). Delaware v. Van Arsdall, 475 U.S. 673, 684 26 (1986). 27 28 The Double Jeopardy Clause of the Fifth Amendment, as applied to the states by the Fourteenth Amendment, prohibits retrial following acquittal. Benton v. Maryland, 395 U.S. 784 32 1 (1969); Tibbs v. Florida, 457 U.S. 31, 41 (1982). The Double Jeopardy Clause also incorporates 2 principles of collateral estoppel, and precludes the government from relitigating issues that were 3 decided by a prior acquittal. Ashe v. Swenson, 397 U.S. 463 (1970). The prohibition against 4 double jeopardy does not prohibit the introduction of evidence of acquitted conduct in a 5 subsequent trial on different charges, if the question whether the defendant committed the first 6 crime is governed by a lower standard of proof in the trial for the second crime. Dowling v. 7 United States, 493 U.S. 342, 348-49 (1990). 8 C. The State Court’s Ruling 9 These issues were raised on direct appeal. Because the California Supreme Court denied 10 discretionary review, the decision of the California Court of Appeal constitutes the last reasoned 11 decision on the merits. See Ylst, 501 U.S. 797; Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 12 2012). 13 The appellate court first ruled that the prior crimes evidence was admissible under 14 California law. Lodged Doc. 8 at 18-21. The court then held that “any error in admitting the 15 evidence was harmless in light of the overwhelming evidence against defendant.” Id. at 21. The 16 court’s detailed discussion of that evidence, and of the inherent incredibility of petitioner’s trial 17 testimony and defense theory, need not be quoted here in full. See id. at 22-25. The court noted 18 that petitioner’s federal due process argument was governed by the Chapman standard of 19 harmlessness beyond a reasonable doubt. Id. at 26 (citing Chapman v. California, 386 U.S. 18 20 (1967)). The court concluded that “any error in admitting the uncharged [or acquitted] offense 21 evidence was harmless beyond a reasonable doubt.” Id. at 27. 22 The appellate court next held that the Confrontation Clause was not violated by admission 23 of preliminary hearing testimony from the Sharon S. case. Sharon S. was deceased at the time of 24 petitioner’s trial and therefore unavailable. The court held that Crawford, supra, did not bar use 25 of her prior testimony because the witness was unavailable and petitioner had an adequate 26 opportunity to cross-examine her at the preliminary hearing. Although limits had been placed on 27 the scope of defense questioning at the preliminary hearing, which resulted in a second 28 preliminary hearing, those limits did not make the cross-examination of Sharon S. inadequate for 33 1 purposes of Crawford. Id. at 28-32. 2 The appellate court held that the admission of acquitted conduct evidence did not violate 3 the prohibition against double jeopardy, relying on Dowling v. United States, supra, 493 U.S. at 4 353-54. Id. at 33. 5 6 Finally, the appellate court rejected petitioner’s constitutional challenge to CALCRIM No. 375, relying on People v. Reliford, 29 Cal. 4th 1007 (2003). Id. at 37. 7 D. Objective Unreasonableness Under 28 U.S.C. § 2254(d) 8 9 The California Court of Appeal did not unreasonably apply clearly established federal law in rejecting petitioner’s due process challenge to the evidence of prior rapes. The court applied 10 the correct Chapman harmless error standard. The conclusion that any error was harmless beyond 11 a reasonable doubt is not objectively unreasonable. The volume and weight of evidence pointing 12 to petitioner’s guilt was overwhelming, including the DNA evidence;15 petitioner’s patently 13 incredible explanation for the presence of his DNA on Cloer’s panties;16 the presence of his car at 14 the gas station where Cloer met the man with whom she was last seen before her murder; and the 15 fact that petitioner’s ex-wife appeared to recognize the keys found at the murder scene. 16 Moreover, admission of the other crimes evidence did not render petitioner’s trial fundamentally 17 unfair. See Estelle, 502 U.S. at 72. Petitioner had ample opportunity to counter the rape 18 evidence, and the jury was properly instructed regarding the limited purposes for which it could 19 be considered. 20 The California Court of Appeal also reasonably concluded that admission of Sharon S.’s 21 preliminary hearing testimony did not violate petitioner’s confrontation rights. The U.S. Supreme 22 Court noted in Crawford itself that admission of the prior cross-examined testimony of an 23 24 25 26 27 15 See People v. Xiong, 215 Cal. App. 4th 1259 (2013) (DNA evidence sufficient to support murder verdict in “cold-hit” case). 16 Petitioner testified that he had consensual sex with a woman resembling Cloer at a party on an unspecified date before her murder. His testimony regarding the party was effectively rebutted. Moreover, no juror could reasonably believe that Cloer would have been wearing the same unwashed panties days later. Cloer’s roommate testified that she bathed daily and always wore clean clothes. Petitioner’s testimony was riddled with credibility problems. The state court’s evaluation of this evidence, Lodged Doc. 8 at 22-23 & 26-27, is well reasoned. 28 34 1 unavailable witness does not implicate the Confrontation Clause. Crawford, 541 U.S. at 59; see 2 also Mattox v. United States, 156 U.S. 237 (1895) (prior testimony of deceased witness not 3 inadmissible under Confrontation Clause); Barber v. Page, 390 U.S. 719, 725-26 (1968) 4 (recognizing exception to the confrontation requirement for the prior testimony of an unavailable 5 witness); California v. Green, 399 U.S. 149, 165 (1970) (preliminary hearing testimony 6 admissible because fully subject to cross-examination at preliminary hearing). 7 This court need not delve into the weeds of petitioner’s arguments that flaws in the first 8 Sharon S. preliminary hearing render his prior opportunity for cross-examination inadequate to 9 support the exception. Any confrontation error would be subject to harmless error analysis. Van 10 Arsdall, 475 U.S. at 684. Even if Sharon S.’s prior testimony was barred by the Confrontation 11 Clause, Mark Masterson’s live testimony would have fully supported a jury finding that petitioner 12 had raped Sharon S. Accordingly, any error was harmless. 13 The state court did not expressly address petitioner’s confrontation theory as it relates to 14 the preliminary hearing testimony of additional witnesses from the Sharon S. case. Because that 15 testimony can have had no conceivable impact on the jury, particularly in light of Masterson’s in- 16 court testimony admitting to the rape and directly inculpating petitioner, any error was harmless.17 17 See Van Arsdall, 475 U.S. at 684. Accordingly, the state courts’ unexplained rejection of the 18 claim cannot have been objectively unreasonable. 19 Petitioner’s double jeopardy theory is squarely foreclosed by Dowling, supra, 493 U.S. at 20 348-49. Dowling clearly establishes that the Double Jeopardy Clause does not prohibit the use of 21 acquitted conduct evidence for purposes other than direct criminal liability for that conduct, 22 where the question whether the defendant committed the first crime is governed by a lower 23 standard of proof. In light of Dowling, habeas relief is not available. In Charles v. Hickman, 228 24 F.3d 981 (9th Cir. 2000), the Ninth Circuit rejected a double jeopardy claim with citation to 25 Dowling where, as here, evidence of acquitted conduct was admitted to prove a prior bad act 26 27 17 The additional witnesses testified to circumstantial matters such as where and when they had seen petitioner on the night of the Sharon S. rape. 28 35 1 under Cal. Evid. Code § 1101(b). The state court’s reliance on Dowling was not unreasonable, as 2 Charles demonstrates. 3 Finally, the state appellate court’s rejection of petitioner’s challenge to CALCRIM 375 4 involved no unreasonable application of federal law.18 The state court relied on People v. 5 Reliford, 29 Cal. 4th 1007 (2003), which upheld a similar jury instruction specific to 6 consideration of prior sex offenses in sex offense cases.19 The Ninth Circuit has specifically held 7 that Reliford is consistent with clearly established federal law. Schultz v. Tilton, 659 F.3d 941, 8 945 (9th Cir. 2011), cert. denied, 132 S.Ct. 2436 (2012). Moreover, there is no reasonable 9 likelihood that the jury in petitioner’s case applied the challenged instruction in a way that 10 violates the Constitution. See Estelle, 502 U.S. at 72–73. The instructions as a whole clearly 11 explained the distinct burdens of proof that applied to the prior acts and to the murder charges, 12 and the permissible and impermissible uses of the prior acts evidence. See 10 RT 2663-65. 13 Petitioner’s jury was specifically instructed: 14 If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider, along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder. The People must still prove each element of the charge beyond a reasonable doubt. 15 16 17 18 18 19 20 21 22 23 24 25 26 27 The jury was instructed pursuant to CALCRIM No. 375 as follows: “The People presented evidence that the defendant committed other offenses that were not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.” 10 RT 2663-64. 19 Unlike the instruction challenged here, the instruction at issue in Reliford (CALJIC No. 2.50.01) expressly permitted an inference of propensity to commit the charged offense based on a finding by a preponderance of evidence that the defendant had committed a prior offense. Accordingly, that instruction is significantly more problematic than CALCRIM 375. Petitioner’s jury was not instructed that it could draw a propensity inference; it was affirmatively instructed not to do so. 10 RT 2664 (“Do not conclude from this evidence that the defendant . . . is disposed to commit crime.”). Petitioner’s jury was instructed that it could consider the prior conduct – if proved by a preponderance of the evidence – for the limited purpose of determining intent, motive, or plan. 10 RT 2664. Whether the evidence was properly admitted on any of those theories is a question of state law that this court may not disturb. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (federal habeas corpus relief does not lie for errors of state law). 28 36 1 10 RT 2664-65. This language cures any arguable burden shifting effect the instruction might 2 otherwise have. Schultz, 659 F.3d at 943-45. Accordingly, the state court’s rejection of this 3 claim may not be disturbed. 4 To the extent if any that petitioner’s Ground 15 presents any additional constitutional 5 objections to the prior rape evidence that were not addressed and decided on appeal, the summary 6 rejection of those objections by the state habeas courts was not unreasonable.20 The U.S Supreme 7 Court has never held that jury consideration of propensity evidence violates the constitution. See 8 Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) (not clearly established that admission of 9 propensity evidence violates due process), cert. denied, 549 U.S. 1287 (2007). Accordingly, a 10 state prisoner may not obtain habeas relief under the AEDPA on grounds that prejudicial prior 11 crimes evidence was admitted at trial. Id.; see also Mejia v. Garcia, 534 F.3d 1036 (9th Cir. 12 2008) (habeas relief unavailable where evidence of prior sexual assault admitted at trial), cert. 13 denied, 555 U.S. 1117 (2009); Larson v. Palamteer, 515 F.3d 1057, 1066 (9th Cir.) (habeas relief 14 unavailable where evidence of petitioner’s past criminal conduct admitted at trial), cert. denied, 15 555 U.S. 871 (2008). 16 17 For all the reasons explained above, 28 U.S.C. § 2254(d) bars relief on all claims related to the evidence of prior rapes. 18 VII. 19 Exclusion Of Third-Party Culpability Evidence A. Petitioner’s Allegations 20 In Grounds Sixteen and Twenty-Five, petitioner alleges that his right to present a defense 21 was violated by the exclusion of third-party culpability evidence. ECF No. 10 at 39 (TOC re: 22 Ground 16); ECF No. 10-3 at 75-76; (Ground 16) ECF No. 10 at 54-55 (TOC re: Ground 25); 23 ECF No. 10-5 at 39 (Ground 25). Specifically, he claims that the trial court refused to admit 24 evidence that (1) the “American River rapist” committed the murder; (2) Betty Cloer was an 25 20 26 27 The superior court inaccurately characterized Ground 15 as presenting a judicial misconduct claim, and denied it for failure to state a prima facie case. Lodged Doc. 10 at 5. No higher state court stated reasons for denial of habeas relief. Accordingly, this court asks whether there is any reasonable basis for the state court’s decision. Harrington v. Richter, 131 S. Ct. at 786. Under any standard of review, the claim fails for the reasons explained above. 28 37 1 informant in Oregon regarding drug dealing, and had feared a drug dealer would kill her; (3) “a 2 deranged person first suspected by the El Dorado Sheriff” committed the murder; (4) another 3 male whose “DNA faction was found on the victim’s panties” committed the murder; (5) Stanley 4 Ellis committed the murder. ECF No. 10-3 at 76. Petitioner does not identify where in the record 5 the defense proffered and the trial court excluded evidence to support any of these third-party 6 culpability theories. 7 B. The Clearly Established Federal Law 8 The Constitution guarantees to criminal defendants the right to present a defense. 9 Chambers v. Mississippi, 410 U.S. 284 (1973); Crane v. Kentucky, 476 U.S. 683, 690 (1986). 10 This includes the right to present reliable evidence that another person committed the charged 11 crime. Holmes v. South Carolina, 547 U.S. 319 (2006). State rules establishing standards for the 12 admissibility of third-party culpability evidence are constitutionally permissible as long as they 13 are rationally related to the legitimate purpose of excluding evidence that has only a weak logical 14 connection to the central issues at trial. Id. at 326-30. 15 C. The State Court’s Ruling 16 The superior court denied this claim on grounds that it did “not state even a prima facie 17 case of judicial misconduct.” Lodged Doc. 10 at 5. Although the court arguably misconstrued 18 the substance of the claim,21 the standard that governs an entirely unexplained denial of relief also 19 focuses on the absence of a prima facie case. See Pinholster, 131 S.Ct. at 1402 (California 20 summary denial indicates determination petitioner failed to state a prima facie case); Nunes, 350 21 F.3d at 1054-55 (absence of prima facie case is determination reviewed for reasonableness under 22 AEDPA). 23 D. Objective Unreasonableness Under 28 U.S.C. § 2254(d) 24 It was not unreasonable of the state courts to summarily reject this claim. Petitioner 25 identifies five third-party culpability theories, but fails to identify any specific evidence in support 26 27 21 On the other hand, the court may have used the phrase “judicial misconduct” loosely to mean violation of petitioner’s constitutional rights by the trial court. 28 38 1 of any of those theories that was proffered to and excluded by the trial court.22 Conclusory 2 allegations without supporting facts are insufficient to support habeas relief. James v. Borg, 24 3 F.3d 20, 26 (9th Cir.), cert. denied, 513 U.S. 935 (1994). Without factual allegations specifying 4 evidence of third-culpability that was wrongfully excluded from his trial, petitioner failed to 5 present a prima facie case of a constitutional violation. Accordingly, § 2254(d) precludes relief. 6 The undersigned has independently reviewed the trial record and finds that it fails to 7 support the conclusory allegations of the petition. First, Stanley Ellis testified and was cross- 8 examined about his knowledge of Cloer’s disappearance. The defense aggressively attacked 9 Ellis’s credibility, but did not seek to implicate him in the murder. The only evidence against 10 Ellis in the current record is the Prokop declaration. Prokop did not come forward at the time of 11 petitioner’s trial, and his testimony regarding Ellis’s involvement and alleged confession was 12 neither proffered to nor excluded by the trial court. 13 Regarding the DNA evidence, plaintiff alleges that third part culpability was “supported 14 by ample DNA evidence obtained through re-testing and presented at trial by Attorney Robert 15 Blasier.” ECF No. 10-3 at 76. Robert Blasier, an attorney well-known for his work regarding 16 DNA evidence, was brought in by the defense to cross-examine prosecution witness Angelynn 17 Shaw, the state’s forensic DNA analyst. 3 RT 554 et seq. Blasier challenged Ms. Shaw’s 18 methodology and attempted to discredit her conclusion that the DNA on the victims’ panties 19 came from petitioner. 3 RT 710-790. The defense did not present its own DNA expert or any 20 independent test results that affirmatively pointed to a perpetrator other than petitioner. The trial 21 court never excluded any such evidence. Blasier was not limited in his questioning of Ms. Shaw 22 23 24 25 26 27 22 Under California law, a criminal defendant has a right to present evidence of third party culpability if that evidence is capable of raising a reasonable doubt regarding his own guilt. See Spivey v. Rocha, 194 F.3d 971, 978 (9th Cir. 1999) (citing People v. Hall, 41 Cal. 3d 826, 833 (1986)). In order for evidence pointing to another suspect to be admissible, however, “there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” Hall, 41 Cal. 3d at 833. Motive or opportunity alone is not enough. Spivey, 194 F.3d at 978 (citing Hall, 41 Cal. 3d at 833). There is no constitutional violation in the application of these standards unless they are applied arbitrarily or in a manner disproportionate to the reliability purposes they are designed to serve. See Holmes, 547 U.S. at 326-27. 28 39 1 regarding the possibility that someone other than petitioner left DNA on the victim’s panties. 2 The record reflects the existence of a pretrial dispute regarding reports that Betty Cloer 3 had informed on others in Oregon and had feared reprisal. The prosecution moved in limine to 4 exclude any such testimony. 6 CT 1757-68.23 Briefing on the motion reflects that the 5 information was limited to hearsay reports from Cloer’s sister and roommate about Cloer’s 6 statements to them. 6 CT 1762 (prosecution version), 8 CT 2158 (defense version). Further 7 investigation, including contact with Oregon law enforcement officials, revealed no evidence that 8 Cloer had been an informant. 6 CT 1762-64. The trial court accordingly granted the prosecution 9 motion to exclude, without prejudice to revisiting the issue if specific evidence of third-party 10 culpability was presented. 8 CT 2195.24 The defense never offered additional evidence to 11 support the theory that Cloer had been murdered in retaliation for informant activity. Petitioner 12 identifies no such evidence. 43 13 Regarding the “American River rapist” and the unknown “deranged person” allegations, 14 pre-trial motions reflect defense concern about various investigative leads that had been explored 15 in 1971 and seemed to point to alternative suspects. See, e.g., 8 CT 2129-31 (defense motion to 16 dismiss based on pre-accusation delay) & 2153-56 (1971 investigation report discussing a person 17 of interest who resembled composite sketch of the “American River Rapist”). The record does 18 not reflect, however, that any third-party culpability evidence of this type was actually offered 19 and was ruled inadmissible at trial. 20 Because none of the third-party culpability theories suggested by petitioner was the 21 subject of a trial court ruling excluding evidence, the state courts did not act unreasonably in 22 rejecting this claim for failing to state a prima facie case. 23 //// 24 23 25 26 27 “CT” refers to the Clerk’s Transcript on Appeal. Because rumors that Cloer had been an informant do not constitute evidence linking a third person to the actual perpetration of the crime, the hearsay reports about Cloer’s informant activity were inadmissible under state law. See People v. Hall, 41 Cal. 3d at 833. For the same reason, it was not unreasonable for the state courts to conclude that exclusion of this evidence did not impair petitioner’s right to present a defense. 24 28 40 1 2 3 VIII. Ineffective Assistance Of Trial Counsel A. Petitioner’s Allegations In Ground Nineteen, petitioner alleges that trial counsel Dain Weiner provided ineffective 4 assistance of counsel by failing to object to the constitutional errors alleged elsewhere in the 5 petition. ECF No. 10 at 48-50 (TOC); ECF No. 10-4 at 41-59. 6 In petitioner’s cumulative error claim, Ground Twenty-One, petitioner contends inter alia 7 that Weiner rendered ineffective assistance by failing to request a jury instruction on the defense 8 theory of the case and by failing to conduct an adequate investigation before deciding whether to 9 present an alibi defense. ECF No. 10 at 50-53 (TOC); ECF No. 10-5 at 6-7. 10 In Ground Thirty-Four, petitioner alleges that Weiner rendered ineffective assistance by 11 failing to present the testimony of DNA expert Keith Peterson Inman. Petitioner alleges that 12 Inman would have testified that: (1) male DNA other than petitioner’s was found on the panties at 13 the crime scene; (2) “peaks in the DNA charts” reflect that the DOJ lab results implicating 14 petitioner were unreliable; (3) the DNA samples were contaminated, and therefore unreliable; (4) 15 the re-testing of the sample by the same criminalist was improper and created the possibility of 16 biased results. ECF No. 10 at 65-68 (TOC); ECF No. 10-5 at 82-84. 17 18 B. The Clearly Established Federal Law To establish a constitutional violation based on ineffective assistance of counsel, a 19 petitioner must show (1) that counsel’s representation fell below an objective standard of 20 reasonableness, and (2) that counsel’s deficient performance prejudiced the defense. Strickland v. 21 Washington, 466 U.S. 668, 692, 694 (1984). Objectively reasonable performance includes the 22 “duty to make reasonable investigations or to make a reasonable decision that makes particular 23 investigations unnecessary.” Id. at 691. Prejudice means that the error actually had an adverse 24 effect on the defense. There must be a reasonable probability that, but for counsel's errors, the 25 result of the proceeding would have been different. Id. at 693-94. The court need not address 26 both prongs of the Strickland test if the petitioner's showing is insufficient as to one prong. Id. at 27 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient 28 prejudice, which we expect will often be so, that course should be followed.” Id. 41 1 C. The State Court’s Ruling 2 The superior court summarily denied the umbrella claim that Weiner was ineffective in 3 failing to object to or prevent the other alleged constitutional violations. Lodged Doc. 10 at 5 4 (denying Ground 19 for failure to state a prima facie case and failing to raise any new facts or 5 issues). The California Supreme Court denied the petition containing petitioner’s additional 6 ineffective assistance claims without comment or citation. Lodged Doc. 12. Accordingly, the 7 absence of a prima facie Strickland case is the determination subject to review under AEDPA. 8 See Pinholster, 131 S.Ct. at 1402; Nunes, 350 F.3d at 1054-55. 9 D. Objective Unreasonableness Under 28 U.S.C. § 2254(d) 10 Because petitioner’s ineffective assistance claims all fail as a matter of law for lack of 11 prejudice, it was not unreasonable of the state courts to deny them summarily. Ground 19 fails 12 because it merely recasts in ineffective counsel terms other claims that are meritless for reasons 13 explained elsewhere in these Findings and Recommendations. Ground Twenty-One fails because 14 jury instructions on the “defense theory” cannot conceivably have made a difference in light of 15 the evidence against petitioner.25 The bare allegation that Weiner failed to investigate adequately 16 before rejecting an alibi defense cannot support a viable Strickland claim, because petitioner fails 17 to allege any facts specifying what evidence was available that would likely have changed the 18 result of the trial. See ECF No. 10-5 at 6-7. See Hendricks v. Calderon, 70 F.3d 1032, 1042 19 (1995) (“Absent an account of what beneficial evidence investigation into any of these issues 20 would have turned up, [petitioner] cannot meet the prejudice prong of the Strickland test.”). 21 In support of his DNA-related claim, petitioner attaches the curriculum vitae of Keith 22 Peterson Inman (Petitioner’s Ex. BB, Item 226), but he includes no documentation to support his 23 assertion that Inman would have provided exculpatory testimony at petitioner’s trial if called as a 24 25 25 26 27 Petitioner faults Weiner for not requesting a jury instruction “that [petitioner] had a type of alibi to explain the possible presence of DNA on the victim’s panties, in that his DNA might have been on the victim Ms. Cloer’s panties because he believed he might have had sex with her days prior to her death, and she did not clean her clothes.” ECF No. 10-5 at 6. 26 Petitioner’s exhibits are most readily accessible as part of Lodged Doc. 12, attached to the habeas petition submitted to the California Supreme Court. 28 42 1 witness. Petitioner’s allegations reflect no more than a wish that his lawyer had been able to 2 come up with an expert who could rebut the testimony of the state’s expert DNA witness. Indeed, 3 petitioner states that Weiner decided not to call Inman because his testimony would have added 4 nothing to the points made on cross-examination of the state’s expert. ECF No. 10-5 at 82-83.27 5 Petitioner states no facts suggesting that Inman would have provided testimony that could have 6 affected the verdict. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (“Speculation 7 about what [a witness] could have said is not enough to establish prejudice.”) 8 9 Because petitioner’s allegations do not establish a prima facie claim under Strickland, the state court’s denial of relief was both reasonable and correct. 10 IX. 11 Ineffective Assistance Of Appellate Counsel A. Petitioner’s Allegations 12 In Ground Twenty, petitioner alleges that his appellate counsel rendered ineffective 13 assistance by (1) failing to present on appeal the record-based claims of the petition; (2) failing to 14 raise on appeal trial counsel’s ineffectiveness; (3) failing to augment the record on appeal with 15 complete transcripts of jury voir dire; and (4) failing to interview jurors regarding their 16 deliberations. ECF No. 10 at 49-50 (TOC); ECF No. 10-4 at 60-73. 17 B. The Clearly Established Federal Law 18 A criminal defendant enjoys the right to effective assistance of counsel on appeal. Evitts 19 v. Lucey, 469 U.S. 387, 391 (1985). The Strickland framework applies to claims that this right 20 has been violated. Smith v. Robbins, 528 U.S. 259, 285 (2000). To demonstrate prejudice, 21 petitioner must show a reasonable probability that he would have prevailed on appeal absent 22 counsel’s errors. Id. at 285-86. 23 C. The State Court’s Ruling 24 The superior court ruled as follows: 25 [A]s to the allegations of the ineffective assistance of appellate counsel, petitioner apparently confuses tactics with ineffectiveness. 26 27 27 Blasier cross-examined the state’s DNA expert about the four topics that petitioner identifies as requiring testimony from Inman. See 3 RT 711-90 (cross-examination of Angelynn Shaw). 28 43 1 The petitioner’s has the burden of proving counsel’s conduct fell short of a reasonably competent attorney acting as a diligent advocate. (Strickland v. Washington (1984) 466 U.S. 668, 686.) He has not made even a prima facie showing of this. 2 3 D. Objective Unreasonableness Under 28 U.S.C. § 2254(d) 4 The state court’s ruling was reasonable. For the reasons explained elsewhere in these 5 6 Findings and Recommendations, none of the issues omitted from the appeal and raised in habeas 7 had the potential to result in a reversal of petitioner’s conviction. Petitioner identifies no 8 meritorious appellate issue regarding jury selection. Because jury deliberations are not matters of 9 record that can be raised on appeal, appellate counsel cannot have been derelict in failing to 10 investigate. Without a showing of any meritorious appellate issue that would have been 11 discovered and presented absent the alleged errors, there is no prima facie case of ineffectiveness 12 on appeal. See Smith v. Robbins, 528 U.S. at 285-86; see also Smith v. Murray, 477 U.S. 527, 13 536 (1986) (winnowing out weak arguments on appeal is hallmark of effective advocacy, not 14 indicator of ineffectiveness). 15 16 17 X. Admission Of Threat Evidence A. Petitioner’s Allegations In Ground Seventeen, petitioner alleges that due process was violated by admission of 18 evidence that witness Stanley Ellis had been threatened by defense counsel Weiner. ECF No. 10 19 at 40 (TOC); ECF No. 10-3 at 76-77. Petitioner focuses on Ellis’s testimony that Weiner showed 20 him a newspaper article about “what Thompson does to his enemies,” and that Ellis felt 21 threatened by information about him being available on the internet. 22 B. The Clearly Established Federal Law 23 The erroneous admission of evidence only violates due process if the evidence is so 24 irrelevant and prejudicial that it renders the trial as a whole fundamentally unfair. Estelle v. 25 McGuire, 502 U.S. 62. 26 27 28 C. The State Court's Ruling The superior court denied this claim, together with others, on grounds that it did “not state even a prima facie case of judicial misconduct.” Lodged Doc. 10 at 5. Whether the superior 44 1 court meant “no prima facie case of trial court error” or misconstrued the claim, the determination 2 subject to AEDPA remains the absence of a prima facie case. See Pinholster, 131 S.Ct. at 1402; 3 Nunes, 350 F.3d at 1054-55. 4 D. Objective Unreasonableness Under 28 U.S.C. § 2254(d) 5 The record does not support a finding of fundamental unfairness. Stanley Ellis testified 6 that Weiner visited him in prison and showed him “several articles that was taken off the internet 7 and a picture.” 5 RT 1182. On cross-examination, Ellis elaborated that Weiner “[s]howed me an 8 article and said this is an article on what Mr. Thompson does to his enemies.” 5 RT 1202. Ellis 9 did not know what was in the article; he did not read it because he did not have his glasses. Id. 10 No article about “what Mr. Thompson does to his enemies” was in evidence. Ellis also testified 11 that he felt endangered by the fact that information about his involvement in the case was 12 available on the internet. 5 RT 1175. There was no suggestion that information was posted on 13 online by the defense, however. 14 The defense vigorously attacked Ellis’s credibility, including the veracity of his account of 15 the Weiner interview. Weiner argued that Ellis interjected himself into the case in order to obtain 16 sentencing and housing benefits. The defense mocked Ellis’s claims to have been intimidated, 17 see 11 RT 2777-78 (defense closing argument), and used those claims against him. The trial 18 court did not in any way limit the defense in this regard. 19 Under these circumstances, the state court did not unreasonably apply federal law in 20 finding no prime facie case of fundamental unfairness. Under any standard, this claim would fail. 21 22 23 XI. Unconstitutional Sealing Of Records A. Petitioner's Allegations In Grounds Eighteen, Twenty-Two and Thirty, as well as in allegations sprinkled liberally 24 throughout the petition, petitioner claims his rights were violated by the sealing of various 25 records, transcripts and proceedings in the trial court. 26 In Ground Eighteen petitioner alleges inter alia that he was improperly forced to take the 27 stand, without an adequate opportunity to prepare, due to the pretrial lack of access to information 28 about the state’s case. He objects to the superior court’s sealing of various documents, and the 45 1 continued sealing of the documents and transcripts on appeal and throughout post-conviction 2 proceedings. ECF No. 10 at 40-48 (TOC); ECF No. 10-3 at 78 through 10-4 at 41. 3 4 5 In Ground Twenty-Two petitioner alleges that he was deprived of the right to be present at all critical stages of the proceedings. ECF No. 10 at 53 (TOC); ECF No. 10-5 at 14-16. In Ground Thirty, petitioner contends that his rights were violated in state post-conviction 6 proceedings by the facts that (1) so much of the record remained sealed and unavailable to him, 7 and (2) the habeas petition submitted to the superior court was adjudicated by the trial judge. 8 ECF No. 10 at 55 (TOC); ECF No. 10-5 at 40-41. 9 10 B. The Clearly Established Federal Law The right to an open public trial is a shared right of the accused and the public, the 11 common concern being the assurance of fairness. Press-Enterprise Co. v. Superior Court, 478 12 U.S. 1, 7 (1986). The defendant’s right to a public trial arises under the Sixth Amendment, and is 13 “no less protective of a public trial” than the First Amendment rights of the press and public. 14 Waller v. Georgia, 467 U.S. 39 (1984). The constitutional requirement of a public trial “is 15 satisfied by the opportunity of members of the public and the press to attend the trial and to report 16 what they have observed.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 610 (1978). 17 18 19 20 The Sixth Amendment guarantees the right of a criminal defendant to be present at all critical stages of the trial. Faretta v. California, 422 U.S. 806, 819 (1975). Errors of state law do not present constitutional claims cognizable in habeas. Pulley v. Harris, 465 U.S. 37, 41 (1984). 21 C. The State Court's Ruling 22 Ground Eighteen was denied by the superior court because (1) it did not state a prima 23 facie case of an unfair trial, and (2) it did not raise any new facts. Lodged Doc. 10 at 5. The 24 superior court denied Ground Twenty-Two because it raised no new issues or facts. Id. Ground 25 Thirty, like all other grounds, was denied by the California Supreme Court without comment or 26 citation. 27 28 D. Objective Unreasonableness Under 28 U.S.C. § 2254(d) Summary denial of these claims does not constitute an unreasonable application of clearly 46 1 established federal law, because no Supreme Court precedent prohibits the otherwise lawful 2 sealing of sensitive portions of a criminal trial record. Petitioner’s arguments under California 3 law – both as to the sealing of records and as to the trial judge’s consideration of the habeas 4 petition – are unavailing here. See Pulley v. Harris, 465 U.S. at 41. 5 The courtroom was never closed, so petitioner was not denied a public trial. Petitioner 6 identifies no critical stage of the proceeding for which he was not personally present, and the 7 court’s review of the transcript reveals no such proceeding. Petitioner’s claim that he was forced 8 to take the stand lacks factual and legal support. Moreover, and fatally to the claim, defense 9 counsel was not denied access to any of the sealed materials at or in relation to trial.28 On appeal, 10 appellate counsel’s motions for unsealing were granted and counsel was provided access to all 11 requested materials.29 No Supreme Court authority holds that a criminal defendant has a right to 12 personally review documents that qualify for sealing under state law. Accordingly, AEDPA bars 13 relief on these claims. 14 XII. 15 Pre-Accusation Delay A. Petitioner’s Allegations 16 In Ground Twenty-Three, petitioner claims that his due process rights were violated by 17 pre-accusation delay that impaired his ability to defend against the charges. ECF No. 10 at 53-54 18 (TOC); ECF No. 10-5 at 16-35. 19 Betty Cloer was murdered in 1971. DNA analysis matched the victim’s clothing to 20 petitioner’s DNA sample in July 2002. Petitioner was charged in October 2003. Petitioner 21 moved to dismiss for pre-accusation delay, and that motion was denied. 8 CT 2121, 2352. 22 Petitioner identifies five categories of exculpatory evidence that he alleges were lost because of 23 the delay: (1) missing biological samples; (2) missing reports; (3) deaths of witnesses; (4) lost 24 memories; and (5) alibi evidence. Petitioner focuses on his inability to prove, more than thirty 25 28 26 27 The initial pre-trial withholding of information such as Stanley Ellis’s identity and location was litigated and resulted in defense access. 29 People v. Phillip Arthur Thompson, Case No. C058768 (Cal. Ct. App., 3d Dist.) available at http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=3&doc_id=1367558&doc_no =C058768. 28 47 1 years later, that he had been in Florida when Betty Cloer was murdered, and on investigative 2 leads from 1971 that had gone cold before his trial and could no longer lead to the real killer. 3 B. The Clearly Established Federal Law 4 The Sixth Amendment speedy trial guarantee does not apply to pre-charging delay. 5 United States v. Marion, 404 U.S. 307, 320, 322 (1971). Such delay may in some circumstances 6 offend due process, however. Id. Proof of prejudice is a necessary but not sufficient element of a 7 due process claim. United States v. Lovasco, 431 U.S. 783, 790 (1977). The due process inquiry 8 considers both the reasons for the delay and the prejudice to the accused. Id., see also United 9 States v. Valenzuela-Bernal, 458 U.S. 858, 868-69 (1982). In this context, the U.S. Supreme 10 Court distinguishes between investigative delay and government delay that is undertaken to gain 11 tactical advantage. Lovasco, 431 U.S. at 795. “[T]o prosecute a defendant following 12 investigative delay does not deprive him of due process, even if his defense might have been 13 somewhat prejudiced by the lapse of time.” Id. at 796. 14 C. The State Court's Ruling 15 This issue was exhausted on direct appeal. Because the California Supreme Court denied 16 discretionary review, this court looks through to the reasoned decision of the California Court of 17 Appeal. See Ylst v. Nunnemaker, 501 U.S. 797; Ortiz v. Yates, 704 F.3d at 1034. 18 The Court of Appeal’s discussion of this issue is lengthy and need not be set forth here in 19 full. See Lodged Doc. 8 at 48-55. The appellate court relied on California authority holding that 20 a federal due process claim based on pre-accusation delay requires that the delay was undertaken 21 to gain a tactical advantage over the defendant. Id. at 51-52 (citing People v. Catlin, 26 Cal. 4th 22 81, 107 (2001)). It found no such purposeful delay. Id. at 52. The court also held, with citation 23 to People v. Nelson, 43 Cal. 4th 1242 (2008), that the prejudice to petitioner did not outweigh the 24 justification for the delay. Id. at 53-55. 25 26 D. Objective Unreasonableness Under 28 U.S.C. § 2254(d) The California Supreme Court decision on which the appellate court relied, People v. 27 Nelson, supra, held that the prosecution of a 1976 murder on the basis of 2002 DNA results did 28 not violate due process. The Nelson court based its decision on Marion, Lovasco, and progeny, 48 1 which it reasonably applied. There was no unreasonable application of those principles here. The 2 lengthy delay in this case was caused by the fact that DNA analysis was not available until 2002. 3 The appellate court weighed the reasons for the delay against the prejudice to petitioner, which it 4 found to be speculative. Lodged Doc. 8 at 53, 54. Nothing about that analysis involves an 5 unreasonable determination of the facts or an unreasonable application of clearly established due 6 process standards. While a delay of over thirty years in identifying a murder suspect creates 7 obvious challenges for both the prosecution and the defense, the problems of proof (and 8 correlative defense issues) are different in a DNA case than they are in a case that turns on 9 eyewitness identification.30 10 No U.S. Supreme Court precedent holds that due process is violated by delay where a 11 DNA “cold hit” solves a long-cold case. Indeed, the Supreme Court has never found that any 12 particular pre-charging delay violated due process, nor has it specified a precise due process 13 standard for delay claims. See Lovasco, 431 U.S. at 796-97. The application of a general 14 standard to specific facts is entitled to particularly broad deference under AEDPA. Yarborough 15 v. Alvarado, 541 U.S. 652, 664 (2004). For all these reasons, the state court’s decision may not 16 be disturbed. 17 XIII. 18 A. Petitioner’s Allegations 19 20 Insufficient Evidence To Support Conviction In Ground Twenty-Nine, petitioner claims that due process was violated by his conviction on insufficient evidence. ECF No. 10 at 55 (TOC); ECF No. 10-5 at 39-40. 21 B. The Clearly Established Federal Law 22 Due process requires that each essential element of a criminal offense be proven beyond a 23 reasonable doubt. United States v. Winship, 397 U.S. 358, 364 (1970). In reviewing the 24 sufficiency of evidence to support a conviction, the question is “whether, viewing the evidence in 25 the light most favorable to the prosecution, any rational trier of fact could have found the essential 26 30 27 Petitioner vigorously challenged the reliability of the DNA evidence in light of the passage of time and state of the biological evidence. The memory of percipient witnesses was also subject to thorough adversary testing. 28 49 1 elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 2 (1974). If the evidence supports conflicting inferences, the reviewing court must presume “that 3 the trier of fact resolved any such conflicts in favor of the prosecution,” and the court must “defer 4 to that resolution.” Id. at 326. 5 6 C. The State Court’s Ruling The California Supreme Court summarily denied the petition presenting this claim, and no 7 lower court addressed it in a reasoned opinion. Accordingly, this court asks whether there is any 8 reasonable basis for the state court’s decision. Richter, 131 S. Ct. at 786. 9 10 D. Objective Unreasonableness Under 28 U.S.C. § 2254(d) There is a reasonable basis for the state court’s rejection of this claim. The DNA 11 evidence, witness testimony that Cloer was last seen with a man matching petitioner’s 12 description, the presence of petitioner’s car at the gas station where she met that man, and his ex- 13 wife’s reaction upon seeing the keys found at the murder scene, collectively provide a more than 14 sufficient basis for the conviction. Indeed, California law provides that statistical evidence 15 regarding a DNA match can be sufficient without more to prove the identity of a murderer 16 beyond a reasonable doubt. People v. Xiong, 215 Cal. App. 4th 1259. Here there was more, 17 including Stanley Ellis’s positive identification of petitioner as the man who was with Cloer 18 shortly before her murder. The jury’s credibility determinations, including their apparent 19 acceptance of Ellis’s identification and necessary rejection of petitioner’s testimony, are entitled 20 to near-total deference. Jackson, 443 U.S. at 326. When all inferences from the evidence are 21 drawn in the prosecution’s favor, as required on sufficiency review, it cannot be said that no 22 rational trier of fact would have found petitioner guilty beyond a reasonable doubt. 23 24 25 XIV. Due Process Violation By Admission Of Irrelevant And Inflammatory Evidence A. Petitioner’s Allegations In Ground Thirty-Two, petitioner alleges first that his due process rights were violated by 26 testimony regarding his possession of guns unrelated to the Cloer murder. ECF No. 10 at 56-61 27 (TOC re: Ground 32-A); ECF No. 10-5 at 43-63 (Ground 32-A). Petitioner alleges second that 28 his due process rights were violated by the testimony of Mark Masterson, who is alleged to have 50 1 been an incompetent witness due to brain damage. ECF No. 10 at 61-63 (TOC re: Ground 32-B); 2 ECF No. 10-5 at 63-73 (Ground 32-B). Petitioner alleges third that his due process rights were 3 violated by admission of Ellis’s testimony that Weiner had told him “this is what Thompson does 4 to his enemies.” ECF No. 10 at 63-64 (TOC re: Ground 32-C); ECF No. 10-5 at 73-76 (Ground 5 32-C). Petitioner alleges fourth that his due process right were violated by miscellaneous other 6 evidentiary rulings, including those stated in other grounds for relief and also including the failure 7 to give a limiting instruction regarding Ellis’s testimony. ECF No. 10 at 64-65 (TOC re: Ground 8 32-D); ECF No. 10-5 at 76-79 (Ground 32-D). 9 10 In Ground Twenty-Four, petitioner alleges that hearsay evidence regarding the license plate violated due process. ECF No. 10-5 at 36, 38-39. 11 B. The Clearly Established Federal Law 12 The erroneous admission of evidence only violates due process if the evidence is so 13 irrelevant and prejudicial that it renders the trial as a whole fundamentally unfair. Estelle v. 14 McGuire, 502 U.S. 62. 15 C. The State Court Ruling 16 These claims were summarily denied by the California Supreme Court, and no lower court 17 addressed them in a reasoned opinion. Accordingly, this court asks whether there is any 18 reasonable basis for the state court’s decision. Richter, 131 S. Ct. at 786. 19 D. Objective Unreasonableness Under 28 U.S.C. § 2254(d) 20 It was not objectively unreasonable for the state courts to conclude that petitioner received 21 a fundamentally fair trial despite any arguable evidentiary error, or combination of errors. The 22 evidence of petitioner’s gun ownership was neither irrelevant nor inflammatory.31 Ellis’s 23 testimony about being threatened was relevant to his credibility and was subjected to 24 impeachment. Even if the jury believed it, that testimony is highly unlikely to have had any 25 prejudicial effect in light of the trial record as a whole. Similarly, admission of the license plate 26 31 27 Petitioner’s ex-wife testified that he had owned firearms in the past, including at the time of the Cloer murder. Rape victim Melinda M. testified that petitioner had put a gun to her head. Mark Masterson testified that he had seen a gun in petitioner’s car on the day they raped Sharon S. 28 51 1 evidence did not render the trial fundamentally unfair even if it was erroneous.32 None of the 2 many, minor evidentiary objections that petitioner expounds upon implicate the fundamental 3 fairness of his trial. 4 Regarding Mark Masterson, who testified that he and petitioner had raped Sharon S., 5 petitioner submits a declaration from his own mother claiming that she cared for Masterson 6 following the car accident that put him in a coma in 1968, and knows him to be brain-damaged 7 and unable to tell what is real from what is unreal. Pet. Ex. Y; see also ECF No. 10-5 at 69 8 (quoting Thelma Hart Decl.). Masterson’s head injury was known to counsel at the time of 9 petitioner’s trial, and Masterson was questioned about the injury’s long-term effects. 2 RT 489. 10 Defense counsel vigorously cross-examined Masterson, 4 RT 1025-90, and petitioner was 11 permitted to testify about incidents relevant to Masterson’s memory, 8 RT 2155-58. The jury was 12 able to directly evaluate Masterson’s memory and his veracity. The record as a whole does not 13 support the claim of fundamental unfairness, and the Thelma Hart declaration does not constitute 14 new evidence of witness incompetence that required factual development by the state habeas 15 court. 16 17 Because denial of these claims neither turns on unreasonable factual determinations nor involves unreasonable application of U.S. Supreme Court precedent, relief is unavailable. 18 XV. 19 Cumulative Error Ground Twenty-One appears to be primarily a cumulative error claim, although it also 20 generally reprises petitioner’s overarching theories for relief under AEDPA standards. See ECF 21 No. 10 at 50-53 (TOC); ECF No. 10-4 at 73 to 10-5 at 14. Because none of petitioner’s 22 individual substantive claims have merit, it was not unreasonable of the state court to reject his 23 24 25 26 27 32 The credit card slip containing license plate number DUK323 was not in evidence. A deputy sheriff was permitted to testify to his observation of the contents of that slip pursuant to Cal. Evid. Code § 1523(b), which allows oral testimony as to the contents of a writing where the proponent does not have control of the document and the writing is lost or destroyed. 2 RT 313. The gas station attendant testified about his practice of recording the license plate numbers of customer vehicles on the credit card slips, and the deputy testified that he had carefully recorded those numbers for the night of Cloer’s murder. 28 52 1 cumulative error claim. See Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011) (petitioner 2 not entitled to relief for cumulative error where trial imperfections do not infect trial with 3 unfairness in violation of due process). 4 5 XVI. Omitted Claims The federal petition does not include a Ground 2, 4, 6, 8, 10, 12, 14, 26, 27, 28, or 33. In 6 petitioner’s state court applications for habeas relief, the Grounds so enumerated sought relief 7 under California law. Those claims are not presented to this court. 8 9 CONCLUSION For all the reasons explained above, the state courts’ denial of petitioner’s claims was not 10 objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS 11 RECOMMENDED that the petition for writ of habeas corpus be denied. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-eight 14 days after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 17 shall be served and filed within fourteen days after service of the objections. The parties are 18 advised that failure to file objections within the specified time may waive the right to appeal the 19 District Courts order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: May 28, 2014 21 22 23 24 25 26 27 28 53

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