McNeely v. Sherman, No. 3:2018cv03250 - Document 46 (N.D. Cal. 2021)

Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND CERTIFICATE OF APPEALABILITY. Signed by Judge William Alsup on 4/13/2021. (amd2S, COURT STAFF) (Filed on 4/13/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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McNeely v. Sherman Doc. 46 Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 1 of 15 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 JOE MCNEELY, No. C 18-3250 WHA (PR) 6 Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND CERTIFICATE OF APPEALABILITY 7 v. 8 STU SHERMAN, Warden, 9 Respondent. / 11 INTRODUCTION For the Northern District of California United States District Court 10 12 Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus 13 pursuant to 28 U.S.C. § 2254, which he subsequently amended to include previously 14 unexhausted claims. Respondent was ordered to show cause why the amended petition (ECF 15 No. 14) should not be granted. Respondent filed an answer with a supporting memorandum and 16 exhibits, and petitioner filed a traverse. For the reasons discussed below, the amended petition 17 is DENIED. 18 STATEMENT 19 I. PROCEDURAL BACKGROUND 20 In 2015, a jury in Alameda County Superior Court found petitioner and his co-defendant 21 Donel Poston guilty of murder of Lionel Fluker, attempted murder of each other, and possession 22 of a firearm by a felon. The jury also found allegations were true that both defendants used a 23 firearm that caused great bodily injury or death when committing the murder and attempted 24 murder. The trial court sentenced petitioner and Poston to terms of 72 years to life in state 25 prison. On appeal, the California Court of Appeal affirmed the judgment, and the California 26 Supreme Court denied review. Petitioner filed an unsuccessful motion in the California Court 27 of Appeal to strike the firearms enhancement. Petitioner also filed unsuccessful habeas 28 petitions in all three levels of the California courts. Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 2 of 15 1 II. For the Northern District of California United States District Court 2 FACTUAL BACKGROUND On the night of April 5, 2013, petitioner encountered his eventual co-defendant Poston at 3 a gas station on Seminary Avenue in Oakland, California, where they were both filling up their 4 cars. They had met previously, and Poston walked over to petitioner’s car to buy some drugs. It 5 is unclear if the purchase was completed, but Poston turned and walked backed toward his own 6 car. The two men argued. Petitioner threw a drink on the ground, slapped Poston in the face, 7 and tried to trip him. Poston’s girlfriend, who was sitting in the passenger seat of Poston’s car, 8 ran inside the station’s mini-mart. Petitioner started to pull either his gun or a magazine from 9 inside his jacket, but Poston drew his gun and shot petitioner six times. Petitioner fell to the 10 ground, and Poston ran from the station. Petitioner got up on one knee, loaded his gun, chased 11 Poston, and fired eight shots at him. Poston dropped his gun, which had jammed, and crossed 12 Seminary Avenue where he waved his arms and tried to climb a fence to Mills College. 13 Petitioner’s bullets did not hit Poston, but one killed Lionel Fluker who was driving home on 14 Seminary Avenue. 15 The police arrested petitioner later that night at Highland Hospital and Poston 16 approximately two months later. At trial, they each claimed that they acted in self-defense. 17 According to Poston, after petitioner slapped and tried to trip him, Poston saw petitioner appear 18 to pull a gun from his inside his jacket, and Poston believed that petitioner was about to shoot 19 him. According to petitioner, he shot at Poston after Poston shot him. The evidence also 20 included surveillance video of the incident, ballistics evidence, recordings of jailhouse phone 21 calls, and Poston’s writings and “Youtube” videos. 22 23 24 ANALYSIS I. STANDARD OF REVIEW Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a 25 federal court may entertain a petition for writ of habeas corpus “in behalf of a person in custody 26 pursuant to the judgment of a State court only on the ground that he is in custody in violation of 27 the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petition may 28 not be granted with respect to any claim adjudicated on the merits in state court unless the state 2 Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 3 of 15 1 court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an 2 unreasonable application of, clearly established Federal law, as determined by the Supreme 3 Court of the United States; or (2) resulted in a decision that was based on an unreasonable 4 determination of the facts in light of the evidence presented in the State court proceeding.” 28 5 U.S.C. § 2254(d). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state For the Northern District of California United States District Court 6 7 court arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a 8 question of law or if the state court decides a case differently than [the] Court has on a set of 9 materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). 10 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the 11 state court identifies the correct governing legal principle from [the] Court’s decisions but 12 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal 13 habeas court may not issue the writ simply because that court concludes in its independent 14 judgment that the relevant state-court decision applied clearly established federal law 15 erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 16 U.S. at 411. A federal habeas court making the “unreasonable application” inquiry should ask 17 whether the state court’s application of clearly established federal law was “objectively 18 unreasonable.” Id. at 409. 19 When there is no reasoned opinion from the highest state court to consider the 20 petitioner’s claims, the federal habeas court looks to the last reasoned opinion from the state 21 courts. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). 22 II. ISSUES PRESENTED 23 A. 24 Petitioner claims that the trial court violated his right to due process by allowing him and JOINT TRIAL 25 Poston to be tried together. Petitioner argues that he and Poston had conflicting self-defense 26 arguments, which meant that the jury could not acquit him without convicting Poston and vice 27 versa. 28 Conflicting defenses of jointly tried co-defendants does not warrant federal habeas relief 3 Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 4 of 15 1 because “there is no clearly established federal law requiring severance of criminal trials in state 2 court even when the defendants assert mutually antagonistic defenses.” Runningeagle v. Ryan, 3 686 F.3d 758, 777 (9th Cir. 2012) (rejecting ineffective assistance of counsel claim premised on 4 counsel’s failure to join co-defendant’s motion to sever); see also Collins v. Runnels, 603 F.3d 5 1127, 1132-33 (9th Cir. 2010) (holding that Zafiro v. United States, 506 U.S. 534 (1993), and 6 United States v. Lane, 474 U.S. 438 (1986), which analyzed severance under the Federal Rules 7 of Criminal Procedure, did not clearly establish a constitutional standard upon which habeas 8 relief may be granted under AEDPA). For the Northern District of California United States District Court 9 Furthermore, as the California Court of Appeal reasonably explained, petitioner and 10 Poston did not in fact have mutually exclusive defenses. The jury could have logically found 11 that they both acted in self-defense. There was evidence that petitioner reached for his gun after 12 slapping and trying to trip Poston, which allowed Poston to reasonably believe he had to shoot 13 petitioner to defend himself against petitioner shooting him. And there was evidence supporting 14 petitioner’s contention that he was defending himself because petitioner shot at Poston after 15 Poston escalated the physical altercation to a gunfight. Petitioner also contended that he shot at 16 Poston because Poston still had his gun when he ran out of the station. Joining the two trials, 17 therefore, did not limit the jury to believing only one defendant’s self-defense theory. 18 Petitioner also argues that the joint trial was unfair because he and Poston were charged 19 with attempted murder of each other and because they sought to blame each other for the murder 20 of Fluker. Neither of these factors amounted to a violation of his constitutional rights. A 21 joinder, or denial of severance, of counts or codefendants, may prejudice a defendant sufficiently 22 to render his trial fundamentally unfair in violation of due process. Grisby v. Blodgett, 130 F.3d 23 365, 370 (9th Cir. 1997). To prevail, therefore, the petitioner must demonstrate that the state 24 court's joinder or denial of his severance motion resulted in prejudice great enough to render his 25 trial fundamentally unfair. Ibid. In addition, the impermissible joinder must have had a 26 substantial and injurious effect or influence in determining the jury's verdict. Sandoval v. 27 Calderon, 241 F.3d 765, 772 (9th Cir. 2000). No authority provides that due process requires 28 co-defendants’ interests to align. There is no prohibition on trying co-defendants who blame 4 Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 5 of 15 1 each other for the charged crime, or even — as in this case — who are charged with trying to kill 2 each other. Indeed, in evaluating the prejudice due to joinder, “the focus is on the cross- 3 admissibility of evidence, i.e. whether evidence of an offense would be admissible in a separate 4 trial on another offense and vice versa.” Walden v. Shinn, No. 08-99012, slip op. at 23 (9th Cir. 5 Mar. 12, 2021). Here, there was a great deal of cross-admissible because, as correctly summed 6 by by the California Court of Appeal, the defendants “were both charged with the murder of 7 Lionel Fluker, the remaining counts arose from the same incident and were based on the same set 8 of facts, and most of the evidence incriminating each defendant would have also been admissible 9 in a separate trial” (ECF No. 22, Ex. 11 at 19). The record does not establish that jointly trying petitioner and Poston violated 11 For the Northern District of California United States District Court 10 petitioner’s right to due process or granting federal habeas relief on this claim. 12 2. JURY INSTRUCTION ON SELF-DEFENSE 13 Petitioner claims that one of the jury instructions on self-defense — CALCRIM No. 3472 14 — misstated California law. The instruction stated: “A person does not have the right to self- 15 defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.” 16 Petitioner argues that this instruction conflicted with another instruction that was a correct 17 statement of the law: 18 20 [I]f the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting or communicate the desire to stop to the opponent or give the opponent a chance to stop fighting. 21 Petitioner relies on a California Court of Appeal decision, People v. Ramirez, 233 Cal. App. 4th 22 940 (2015), to support his argument that No. 3471 is correct under state law while No. 3472 is 23 not. 19 24 25 26 27 28 The California Court of Appeal rejected petitioner’s argument, distinguished Ramirez, and found that both jury instructions correctly stated California law: McNeely relies primarily on People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), in which a divided panel of the court concluded that under the facts of that case, CALCRIM No. 3472 misstated the law by effectively advising the jury “that one who provokes a fistfight forfeits the right of self-defense if the adversary resorts to deadly force.” (Id. at p. 947.) This was contrary to the rule that “[a] person who contrives to start a fistfight or provoke a nondeadly quarrel 5 Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 6 of 15 1 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 does not thereby ‘forfeit[] . . . his right to live.’” (Id. at p. 943.) Significantly, the prosecutor had repeatedly argued that under the instruction, it did not matter whether the defendant (who instigated a gang confrontation) had only contrived to start a fistfight. The court concluded the problem was not remedied by CALCRIM No. 3471, which provided (as it did in the case before us) that a defendant who starts a fight with nondeadly force has a right to self-defense if the opponent responds with deadly force. (Id. at pp. 949–950.) This was in large part because the prosecutor had argued the opposite to the jury—that “under CALCRIM No. 3472’s command, ‘it doesn’t matter’ whether under CALCRIM No. 3471 the original victim escalated a nondeadly conflict to deadly proportions.” (Id. at p. 950.) No comparable misstatements were made during the closing arguments in this case. The prosecutor never suggested McNeely had forfeited his right to selfdefense against Poston because he had struck the first blow with his fists, but instead focused on the evidence that McNeely had drawn his weapon immediately after hitting Poston, demonstrating an intent from the outset to use deadly force, and/or had fired the shots at Poston after Poston’s gun had apparently jammed and he was already running away. The court in Ramirez recognized that CALCRIM No. 3472 was a correct statement of the law in a case where the defendant contrived a deadly assault from the outset, as the prosecutor argued in this case. (Ramirez, supra, 233 Cal.App.4th at p. 947.) In light of the language in CALCRIM No. 3471 making clear that the rule that an initial aggressor could respond in kind to deadly force by the victim so long as the initial assault involved nondeadly force, and in light of the absence of prosecutorial misstatements about the law on this subject, we are unconvinced the jury would have construed CALCRIM No. 3472 in the manner found problematic by the Ramirez. 15 (ECF No. 22, Ex. 11 at 39-40.) 16 Petitioner’s claim does not warrant federal habeas relief for two reasons. First, he does 17 not assert that these instructions violated any federal constitutional provision or other federal 18 law; he only claims a violation of state law. The federal habeas writ is unavailable for violations 19 of state law or for alleged error in the interpretation or application of state law. Swarthout v. 20 Cooke, 562 U.S. 216, 219 (2011). Second, the California Court of Appeal’s interpretation of 21 California law binds the federal court on habeas review. See Hicks v. Feiock, 485 U.S. 624, 629 22 (1988). Even a determination of state law made by an intermediate appellate court must be 23 followed and may not be disregarded by a federal habeas court. Id. at 630 n.3. The California 24 Court of Appeal’s rejection of petitioner’s interpretation of state law and its holding that 25 CALCRIM No. 3472 correctly stated California law are interpretations of state law that bind the 26 federal court in habeas review. Accordingly, even if petitioner’s state law claim could be 27 reviewed, it would fail because of the state court’s controlling rejection of petitioner’s reading of 28 state law. 6 For the Northern District of California United States District Court Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 7 of 15 1 Petitioner may not obtain federal habeas relief based on this claim. 2 3. 3 Petitioner claims that trial counsel was ineffective in failing to object to the use of INEFFECTIVE ASSISTANCE OF COUNSEL 4 CALCRIM No. 3472 based on the argument, set forth above, that the instruction misstated 5 California law. However, for the reasons described above, the state courts’ ruling that the jury 6 instruction correctly stated California law is binding here. As a result, any objection to the jury 7 instruction on the grounds that it violated state law would have been meritless, and trial 8 counsel’s failure to make a meritless objection was neither deficient performance nor prejudicial 9 to the outcome of the trial. Cf. Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (failure to 10 make a meritless motion cannot support a finding that defendant received ineffective assistance 11 of counsel). Petitioner may not receive federal relief based upon this claim. 12 4. 13 Petitioner claims that the trial court violated his rights to confrontation and to due process EVIDENCE OF POSTON’S PRIOR CONVICTIONS 14 by excluding evidence of Poston’s prior arrests for sale of marijuana four, seventeen, and 15 eighteen years before the crimes charged here. Petitioner argues that Poston’s arrests showed 16 that Poston did not shoot petitioner in self-defense, but rather because Poston was a marijuana 17 dealer and he thought that petitioner was selling marijuana in his territory. Petitioner also argues 18 that Poston’s prior arrests were relevant for impeachment. 19 The trial court excluded the evidence, finding that Poston’s arrests were irrelevant 20 because there was no evidence that Poston knew that petitioner was selling marijuana. The 21 Court of Appeal upheld the trial court’s ruling on the grounds that Poston’s convictions were too 22 old to show that he was still selling marijuana, and petitioner’s purpose for the convictions — to 23 show that Poston wanted to protect his marijuana-selling territory — was too speculative. 24 Petitioner argues that there was in fact evidence to support his theory of Poston’s motive: the gas 25 station had a history of drug dealing, Poston approached petitioner to buy the drug “Molly,” 26 petitioner showed Poston marijuana baggies in his car, and after stepping away from petitioner’s 27 car, Poston said to petitioner, “You’re not from [this neighborhood].” 28 The Supreme Court has not considered whether a trial court's exercise of discretion to 7 Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 8 of 15 1 exclude evidence, under a constitutionally sound evidentiary rule, violated a defendant's right to 2 present evidence under the Sixth and Fourteenth Amendments. Moses v. Payne, 555 F.3d 742, 3 758-60 (9th Cir. 2009). The state court’s determination that the trial court did not abuse its 4 discretion to exclude Poston’s prior arrests as irrelevant — a fundamental and constitutional 5 evidentiary rule — was not “contrary to or an unreasonable application of clearly established 6 Supreme Court precedent” within the meaning of AEDPA because the Supreme Court has not 7 decided the issue. Cf. ibid. For the Northern District of California United States District Court 8 In any event, to obtain federal habeas relief on this claim, petitioner must show that any 9 due process or Confrontation Clause violation caused by excluding Poston’s arrest evidence was 10 not harmless. Dillard v. Roe, 244 F.3d 758, 767 n.7 (9th Cir. 2001) (even if an evidentiary error 11 is of constitutional dimension, the court must consider whether the error was harmless); 12 Hernandez v. Small, 282 F.3d 1132, 1144 (9th Cir. 2002) (same for Confrontation Clause 13 violations). On federal habeas review, error is harmless unless it “had substantial and injurious 14 effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 15 (1993)). Excluding the prior arrest evidence did not impair petitioner’s defense, which was 16 based on self-defense, because Poston’s motive for shooting petitioner does not dictate whether 17 petitioner acted in self-defense. In other words, petitioner’s own self-defense theory did not 18 depend on showing that Poston did not act in self-defense; they both could have acted in self- 19 defense, as explained above, or neither could have. The evidence was undisputed that petitioner 20 initiated the fight by hitting and trying to trip Poston, and that petitioner shot at Poston after 21 Poston shot petitioner multiple times. Petitioner’s self-defense theory is that he started a 22 fistfight, and that he shot Poston to defend himself only after Poston escalated the fistfight to a 23 gunfight. Whether Poston did so to protect territory or to defend himself did not alter the fact 24 that Poston shot petitioner, which was petitioner’s proffered reason for shooting at Poston in 25 self-defense. Poston’s motive — and criminal record — does not alter the evidence that made 26 petitioner’s self-defense theory weak: petitioner reached for his gun before Poston shot him, 27 instigated the confrontation, and shot at Poston while Poston was running away from the station. 28 The exclusion of evidence of Poston’s arrests did not have a substantial or injurious 8 For the Northern District of California United States District Court Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 9 of 15 1 effect on the verdict finding petitioner guilty of attempted murder of Poston and murder of 2 Fluker. Accordingly, petitioner may not receive habeas relief on this claim. 3 5. CUMULATIVE PREJUDICE 4 Petitioner claims that the cumulative effect of the foregoing asserted errors violated his 5 constitutional right to due process. In some cases, although no single trial error is sufficiently 6 prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a 7 defendant so much that his conviction must be overturned. United States v. Preston, 873 F.3d 8 829, 835 (9th Cir. 2017). However, where there is no single constitutional error existing, 9 nothing can accumulate to the level of a constitutional violation. Hayes v. Ayers, 632 F.3d 500, 10 524 (9th Cir. 2011). Similarly, there can be no cumulative error when there has not been more 11 than one error. United States v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012). As discussed, there 12 were no constitutional errors arising from the foregoing claims, and even if there had been an 13 error in excluding the arrest evidence, the error was harmless. Accordingly, there was nothing to 14 accumulate to the level of a constitutional violation. 15 6. 16 Petitioner claims that the prosecutor violated his constitutional rights by suppressing SUPPRESSION OF EXCULPATORY EVIDENCE 17 exculpatory evidence, namely videos from security cameras at the gas station. He also claims 18 that the prosecutor violated his right to due process by knowingly eliciting false testimony. On 19 habeas review in the state courts, the superior court rejected this claim for failure to make a 20 prima facie case for relief. The appellate and supreme courts summarily denied the claim. 21 A. VIDEO EVIDENCE 22 In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that "the suppression 23 by the prosecution of evidence favorable to an accused upon request violates due process where 24 the evidence is material either to guilt or to punishment, irrespective of the good faith or bad 25 faith of the prosecution." Id. at 87. The Supreme Court has since made clear that the duty to 26 disclose such evidence applies even when there has been no request by the accused, United 27 States v. Agurs, 427 U.S. 97, 107 (1976), and that the duty encompasses impeachment evidence 28 as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985). For a Brady 9 For the Northern District of California United States District Court Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 10 of 15 1 claim to succeed, petitioner must show: (1) that the evidence at issue is favorable to the accused, 2 either because it is exculpatory or impeaching; (2) that it was suppressed by the prosecution, 3 either willfully or inadvertently; and (3) that it was material (or, put differently, that prejudice 4 ensued). Banks v. Dretke, 540 U.S. 668, 691 (2004). 5 At the joint preliminary hearing of petitioner and Poston, Officer Perez-Angeles testified 6 that he asked the gas station owner to show him all the video from the gas station’s surveillance 7 cameras. At trial, he and Officer Vass testified that they watched all the videos and determined 8 which ones had footage of the incident, which they told the owner to keep and turn over to the 9 police. He agreed he do so, and later Officer Carpenter went to the gas station and picked up a 10 zip drive containing the video footage the officers had requested. Carpenter gave the zip drive to 11 Officer Perez-Angeles, who converted them to a CD which the prosecutor provided to the 12 defense and the trial court admitted into evidence at trial. Mills College, across Seminary 13 Boulevard from the gas station, also had a surveillance camera. The defense submitted into 14 evidence video footage from that camera showing a man waving from across Seminary 15 Boulevard and then a man running after him at approximately the same time as the shooting. 16 Petitioner complains that the gas station video footage was only from 5 of the 16 cameras 17 at the gas station, and did not include footage from a camera that was pointed at Seminary 18 Boulevard. Petitioner asserts that footage from that camera would show that Poston still had his 19 gun when petitioner shot at Poston as Poston ran away from the station and across the street, 20 which petitioner contends would have bolstered his self-defense theory. When defense counsel 21 questioned the officers about that camera at the preliminary hearing and at trial, however, the 22 officers testified that they did not know whether that camera was working or video from it was 23 among the video they reviewed. Officer Vass testified that if the officers had seen any video 24 from that camera depicting Poston or petitioner on the Seminary Boulevard, they would have 25 requested it from the gas station owner and turned it over to the defense. 26 Petitioner has not met his burden of showing that there was any favorable or material 27 video footage that he did not receive. Evidence is material if “there is a reasonable probability 28 that, had the evidence been disclosed to the defense, the result of the proceeding would have 10 For the Northern District of California United States District Court Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 11 of 15 1 been different.” Cone v. Bell, 556 U.S. 449, 469-70 (2009). “A reasonable probability does not 2 mean that the defendant ‘would more likely than not have received a different verdict with the 3 evidence,’ only that the likelihood of a different result is great enough to ‘undermine confidence 4 in the outcome of the trial.’” Smith v. Cain, 565 U.S. 73, 75 (2012) (quoting Kyles v. Whitley, 5 514 U.S. 419, 434 (1995). There is no evidence that any video footage other than what was 6 given to the defense and showed the incident at all, much less that it was favorable to the 7 defense. Although one of the gas station cameras faced Seminary Avenue, there is no evidence 8 that it captured any part of the incident. The footage from the Mills College camera that did face 9 Seminary Avenue showed a man waving his arms without a gun before being chased by another 10 man. This would suggest that Poston waved his arms and did not still have his gun when 11 petitioner chased him. Petitioner’s hope that the gas station camera captured something different 12 or helpful to him is not sufficient because the mere possibility that undisclosed information 13 might have been helpful to the defense or might have affected the outcome of the trial, does not 14 establish materiality under Brady. United States v. Olsen, 704 F.3d 1172, 1184 (9th Cir. 2013). 15 Petitioner’s speculation that additional surveillance video might have contained footage helpful 16 to him does not establish that he did not receive material information such that his rights under 17 Brady were violated. 18 In addition, there is no evidence that the police suppressed any video evidence of the 19 incident. A defendant cannot claim a Brady violation if he was "aware of the essential facts 20 enabling him to take advantage of any exculpatory evidence." United States v. Shaffer, 789 F.2d 21 682, 690 (9th Cir. 1986). A defendant who claims the government denied him exculpatory 22 evidence must show that he would be unable to obtain comparable evidence by other reasonably 23 available means. United States v. Drake, 543 F3d 1080, 1090 (9th Cir. 2008). Petitioner and 24 defense counsel were at the preliminary hearing when they learned from Officer Perez-Angeles 25 that there were additional surveillance cameras at the station, including one facing the street. 26 Defense counsel could have requested or subpoenaed the videos from the gas station, and there is 27 no evidence explaining why they did not or could not have done so. Therefore, the record does 28 not support finding that the prosecution suppressed evidence in violation of Brady. See United 11 Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 12 of 15 1 States v. Bond, 552 F.3d 1092, 1095-96 (9th Cir. 2009) (where government discloses all 2 information necessary for defense to discover alleged Brady material on its own, government is 3 not guilty of suppressing evidence). 4 5 For the Northern District of California False Testimony Petitioner claims that the prosecutor knowingly elicited false testimony from Officer 6 Perez-Angeles and from an eyewitness. When a prosecutor obtains a conviction by the use of 7 testimony which he knows or should know is perjured, it has been consistently held that such 8 conviction must be set aside if there is any reasonable likelihood that the testimony could have 9 affected the judgment of the jury. United States v. Agurs, 427 U.S. 97, 103-07 (1976). 10 United States District Court B. Petitioner claims that Perez-Angeles falsely testified at trial that he did not collect any 11 videos from the gas station. He and Officer Vass explained that after they reviewed the videos at 12 the station, they asked the owner to preserve and turn over certain ones. After the owner did so, 13 another police officer (Officer Lancaster) retrieved the requested videos from the owner on a 14 USB drive and gave it to Perez-Angeles. Petitioner claims that this testimony was false because 15 at the preliminary hearing, Perez-Angeles testified that he reviewed and selected the relevant 16 video footage. Perez-Angeles’s preliminary hearing testimony did not contradict the trial 17 testimony because in both he said he reviewed the videos, and in neither did he claim to have 18 collected them. Petitioner has not shown that Perez-Angeles’s trial testimony was false or that 19 the prosecutor knew it was false. 20 Petitioner also claims that a witness falsely testified at trial that he saw Poston run out of 21 the station, drop his gun, and show petitioner that his hands were empty before petitioner shot at 22 Poston. There is no evidence that this testimony was false. Petitioner’s argument is based on his 23 assertion that the missing video from other surveillance cameras would have contradicted the 24 witness’s account, but as discussed above there is no evidence that any missing videos captured 25 any part of the incident. As a result, there is no evidence that the witness testified falsely, much 26 less that the prosecutor knew it to be false. 27 28 Petitioner may not obtain habeas relief because of a Brady violation or the prosecutor’s knowing presentation of false testimony. 12 Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 13 of 15 1 7. 2 Petitioner claims that trial counsel was ineffective because he did not investigate 3 surveillance videos from the gas station’s other cameras, or whether Officer Perez-Angeles lied 4 in testifying that he had produced all the videos that depicted the incident.1 Petitioner also 5 claims that trial counsel was ineffective because he did not present the additional videos to the 6 jury.2 On habeas review in the state courts, the superior court rejected these claims for lack of 7 prejudice from counsel’s performance, and the appellate and supreme courts summarily denied 8 them. For the Northern District of California United States District Court 9 INEFFECTIVE ASSISTANCE OF COUNSEL In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner 10 must establish two things. First, he must establish that counsel's performance was deficient, i.e., 11 that it fell below an "objective standard of reasonableness" under prevailing professional norms. 12 Strickland v. Washington, 466 U.S. 668, 686-88. (1984). Second, he must establish that he was 13 prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, 14 but for counsel's unprofessional errors, the result of the proceeding would have been different." 15 Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the 16 outcome. Ibid. 17 First, petitioner has not established the underlying premise of his claim that trial counsel 18 did not in fact investigate surveillance video evidence other than what the prosecutor produced. 19 There is no statement by counsel in the record that he did not investigate additional surveillance 20 video. Indeed, the record suggests that defense counsel investigated the issue because he asked 21 Perez-Angeles at the preliminary hearing if he recalled seeing additional video footage from the 22 gas station’s camera facing Seminary Boulevard. Defense counsel also presented the 23 surveillance video footage from Mills College onto Seminary Avenue. This indicates that 24 counsel did investigate additional video evidence not produced by the prosecutor, and that he 25 presented such evidence to the jury. There is no indication in the record of what video footage 26 defense counsel did not investigate. 27 1 This is claim number seven in the amended petition (ECF No. 14 at 88-104). 28 2 This is claim number eight in the amended petition (ECF No. 14 at 105-120). 13 Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 14 of 15 For the Northern District of California United States District Court 1 Second, there is no indication in the record that any video footage other than the footage 2 produced by the prosecutor or submitted to the jury was helpful to petitioner or even depicted the 3 incident. Petitioner argues that Perez-Angeles’s trial and preliminary hearing testimony were 4 inconsistent on the issue of collecting the video evidence from the gas station; he asserts that this 5 inconsistency shows that Perez-Angeles lied about producing all of the footage depicting the 6 incident and that he was hiding additional footage; and petitioner concludes that the hidden 7 footage must have been exculpatory. As explained above, the first step in this argument is 8 wrong because Perez-Angeles’s testimony was not contradictory, and did not suggest that he lied 9 or concealed additional video footage. Petitioner also alleges that the prosecutor altered the 10 audio portion of a video from a bus that was nearby at the time of the incident; he does not 11 present, nor does the record indicate, that was the case. 12 Third, the case against petitioner was strong, and his claim of self-defense was weak. It 13 was not disputed that he killed Fluker, that he instigated the altercation with Poston, that 14 Poston’s gun stopped working, and that he shot Poston. There was additional evidence that he 15 was pulling his gun or a magazine to load the gun before Poston shot him, and there was video 16 evidence to support the witness’s account that he chased after Poston and shot at him after 17 Poston dropped his gun and ran away. 18 For these reasons, petitioner has not shown that trial counsel acted unreasonably in the 19 investigation of additional video evidence or perjury by Perez-Angeles or in failing to present 20 additional video evidence to the jury, or that there is a reasonable probability that further 21 investigation or presentation of additional videos to the jury would have led to a different 22 outcome at trial. Petitioner’s claims of ineffective assistance of trial counsel therefore fails. 23 Petitioner also claims that appellate counsel was ineffective in failing to raise these 24 claims of ineffective assistance of trial counsel on appeal. Appellate counsel will frequently 25 remain above an objective standard of competence and have caused his client no prejudice for 26 the same reason: because he declined to raise a weak issue. Miller v. Keeney, 882 F.2d 1428, 27 1434 (9th Cir. 1989). The weeding out of weaker issues is widely recognized as one of the 28 hallmarks of effective appellate advocacy. See id. at 1434. Petitioner has not shown that his 14 For the Northern District of California United States District Court Case 3:18-cv-03250-WHA Document 46 Filed 04/13/21 Page 15 of 15 1 claims of ineffective assistance of trial counsel had merit, and therefore appellate counsel was 2 not ineffective because he failed to raise them. 3 Petitioner will not be granted habeas relief on these claims. 4 8. 5 Petitioner filed a motion to amend his petition (ECF No. 37) to withdraw his claim 6 regarding his sentence enhancements because he concedes it was not exhausted. The motion was 7 granted. Therefore, this claim is not a basis for habeas relief. It is noted that both petitioner’s 8 motion and the Order granting the motion incorrectly identified the claim as claim number eight; 9 it is actually claim number nine (ECF No. 14 at 121-31). 10 CONCLUSION SENTENCE ENHANCEMENTS 11 For the foregoing reasons, the petition is DENIED. 12 A certificate of appealability will not issue because reasonable jurists would not “find the 13 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 14 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from the United 15 States Court of Appeals. 16 The clerk shall enter judgment in favor of respondent, and close the file. 17 IT IS SO ORDERED. 18 Dated: April 19 13 , 2021. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 15