Weissman v. Clark, No. 3:2022cv04005 - Document 21 (N.D. Cal. 2023)

Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge William H. Orrick on 12/21/2023. (jmd, COURT STAFF) (Filed on 12/21/2023)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STEVEN IRVING WEISSMAN, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 22-cv-04005-WHO ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. Re: Dkt. No. 1 KEN CLARK, Defendant. 12 13 14 INTRODUCTION Petitioner Steven Weissman seeks federal habeas relief from his state conviction on five 15 separate counts for lewd acts on minors and aggravated sexual assault of a minor because the 16 prosecutor committed misconduct, trial counsel rendered ineffective assistance, the trial court 17 failed to give proper instruction, and the multiple errors were cumulatively prejudicial. After a 18 thorough review of the record, I conclude that each claim is meritless. For the reasons set forth 19 below, the petition for such relief is DENIED. 20 TRIAL BACKGROUND 21 In 2016, a Santa Cruz County Superior Court jury convicted Weissman of 14 counts 22 involving lewd acts on minors or aggravated sexual assault of a minor. Weissman Habeas Petition 23 (“Petition”) [Dkt. No. 1] at 2-3. The state appellate court summarized the facts underlying the 24 crimes as follows: A. Victim K.C. (Aggravated Sexual Assault (Count 7) and Lewd Act (Count 9)); 1997-1998) K.C. was born in 1988. Defendant was a yard duty supervisor at K.C.’s elementary school. K.C. became friends with defendant’s adopted son, Charlie 25 26 27 28 Weissman.1 K.C. was invited to go with Charlie and defendant to “see a movie that had just come out called The Borrowers.” Defendant sat between K.C. and Charlie during the movie, which K.C. thought “strange.” 1 2 The following week, defendant invited K.C. to defendant’s home to play with Charlie. At defendant’s home, defendant took K.C. to see defendant’s snakes in his garage. After they had looked at the snakes for a while, defendant said to K.C: “I want to see your weiner.” Defendant unbuttoned and unzipped K.C.’s pants and pulled them down. Defendant then pulled down his own pants and pulled his penis and testicles out of his underwear. He told K.C. to open his mouth, and defendant forced his penis into K.C.’s mouth. K.C. tried to pull away, but defendant overcame his resistance and told him to “suck it like a lollipop.” K.C. continued to resist, and he was able, after about 20 seconds, to push defendant away. Defendant told K.C. to pull up his pants, and he said “that I was being a bad boy and not to tell anybody . . . .” 3 4 5 6 7 8 9 K.C. felt “afraid and ashamed.” He thought if he told anyone he would be punished for having done something wrong. K.C. avoided defendant and Charlie after this incident. K.C. did not tell anyone about this incident until 2007 when he was 18 years old. The first time he told anyone anything about it was when he and his close friend, Daniel C., had taken LSD and K.C. had drunk some whiskey. The LSD did not cause K.C. to have hallucinations, but it “made me feel a little bit loose I guess.” K.C. cried and told Daniel that when he was “a little boy” a “neighbor” who “would watch him from time to time” “hurt him.” K.C. did not tell Daniel anything else about the incident. K.C. “had a great sense of relief” after this disclosure. 10 United States District Court Northern District of California 11 12 13 14 15 Not long after telling Daniel, K.C. told his then-girlfriend. A couple of years later, K.C. told his mother that defendant had molested him. K.C. also told two subsequent girlfriends and his father. K.C. was drunk when he told his mother and when he told his father. K.C. told another girlfriend in 2009, but he did not identify the perpetrator. 16 17 18 19 K.C. did not want to tell the police because he did not want to relive the experience or go into a courtroom. However, after K.C. heard that defendant had been arrested in 2013 for molesting another child, he felt that he needed to come forward. When K.C. first talked to the police, he did not mention the LSD because he was afraid he would get in trouble. 20 21 22 25 B. Victim R.A. (Lewd Act (Count 20); 2003-2006) R.A. was born in 1991. When he was eight or nine years old, R.A. became friends with Charlie. Defendant was a yard duty supervisor at the elementary school that R.A. and Charlie attended. Charlie invited R.A. to his home, and R.A. came over and played with Charlie. R.A. sometimes helped defendant with his snakes. 26 On one occasion, after R.A. told defendant that his back hurt and was stiff, 23 24 27 28 1 Charlie testified that he did not know K.C., had not been in any class with him, had never had K.C. over to his house, and had never gone to a movie with K.C. and defendant. 2 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defendant asked R.A. if he wanted defendant to “crack” R.A.’s back. R.A. said “okay,” so defendant had R.A. sit on his lap facing away from him. R.A.’s buttocks was pressed against defendant’s groin. Defendant grabbed R.A.’s arms and then his knees and rocked back and forth three times. R.A. thought this was “kind of weird” and “wiggled” away. It did not help his back. About a year later, when R.A. was 12 or 13 years old, R.A. spent the night at defendant’s home. In the night, R.A. wandered into the master bedroom where defendant was using his computer. R.A. asked defendant about the Tempurpedic bed, and defendant invited him to lie down on it. R.A. fell asleep on the bed for 10 or 15 minutes and awoke to find defendant lying “right behind” him and “spooning” him. Defendant’s body was in contact with R.A.’s body from defendant’s chest to defendant’s knees. R.A. could feel defendant’s erect penis poking him. When defendant realized R.A. was awake, he immediately got up. C. Victim S. (3 counts of Lewd Act (Counts 16, 17, and 18); 2005-2008) S. was born in 1997. Defendant was a yard duty supervisor at S.’s elementary school, and S. met defendant in 2005 when S. was eight years old and in third grade. Like some of the other boys defendant abused, S. lived with his mother, and his father was no longer involved in his life. S. saw defendant as a “father figure.” Defendant told S. that he had previously been married, which was not true. Defendant invited S. to his home to help him with his snakes. S. started coming over to defendant’s home three or four times a week. S. and defendant would greet each other with “[l]ong-lasting deep hugs.” One time, defendant gave S. “a quick kiss” on the lips after giving him a hug. S. did not see defendant hug other boys. S. sometimes sat in defendant’s lap. S. would “[h]ang out” and watch television at defendant’s home, and go places and “get food” with defendant. S. began spending the night at defendant’s home in 2005 after they had known each other for a couple of months. The first time S. spent the night at defendant’s home, defendant offered eight-year-old S. a sleeping pill. Although defendant offered sleeping pills many other times, S. only sometimes took them. S. and defendant always “would sleep in the same bed together” when S. spent the night. Sometimes defendant gave S. massages in the bed, during which he massaged S.’s back and legs, but not his buttocks. The massages happened two or three times a week for three years. Over time, S. noticed that defendant made “inappropriate jokes” about women’s bodies and “talk[ed] about sex,” “heterosexual talk.” Defendant also told S. 20 times that he wanted S. to get circumcised. He told S. that his penis would “stay small and it would never grow to full size” if he did not get circumcised. 26 27 When the two of them watched television, they would sit next to each other and “kind of snuggle.” Defendant frequently rubbed S.’s legs “[s]ensually,” 28 3 including his thighs.2 During a trip with two other boys, S. saw defendant pull down the sheets covering the other two boys and take photos of them as they slept. 1 2 In the fall of 2007, one of defendant’s fellow yard duty supervisors heard S. conversing with defendant. Defendant asked S. “ ‘Do you plan on spending the night at my house?’ ” S. responded: “ ‘Yes, if you don’t get drunk.’ ” She reported this conversation to the principal, who contacted child protective services (CPS). The principal terminated defendant without giving a reason, and defendant became very upset. He continued to come to the school to pick up S. 3 4 5 6 In 2008, S. found a “spy camera” hidden in a radio in the bathroom at defendant’s house. The camera was aimed at the toilet and the shower, which had a clear shower curtain. S. discovered that the camera was linked to defendant’s television. S. considered that “it was just the last straw, where I realized that he is a pedophile.” About two weeks later, he told his mother about the camera “and that I was pretty sure that he was a pedophile.” However, he did not provide her with any information about the interactions between him and defendant. S.’s mother confronted defendant, and defendant admitted that there was a camera in the bathroom. 7 8 9 10 United States District Court Northern District of California 11 12 S.’s relationship with defendant ended in 2008. After defendant was arrested, S. did not want to come forward, even after the police tried to contact him, because he felt “incredibly guilty” and did not want to talk about it. He testified at trial “under subpoena” and did not “really want to be here.” 13 14 15 D. Victim T.B. (Two counts of Lewd Act (Counts 12 and 13); 2013) T.B. was born in 2003. His mother physically abused him, beating him with shoes, belts, and other objects. When he was two or three years old, T.B.’s mother was giving him a bath and washed his penis with her hand in a way that made him “uncomfortable.” There was nothing “sexual” about the incident.3 He pushed her hand away and said “No.” T.B. developed “anger problems” arising from his mother’s physical abuse. 16 17 18 19 While he was living with his mother, T.B. was hearing voices and “seeing things that weren’t there.” He “would see like dead people on walls.” T.B. was half aware that the things he was seeing and hearing were not real. In 2010 or 2011, T.B. stopped living with his mother and went to live in a group home and then with his father and stepmother. He did not see or hear things that were not there while he was living with his father or thereafter. Unfortunately, his inability to control his anger made it impossible for him to continue living with his father. His father had to call the police and have him removed in late 2011. T.B. was placed in hospitals and mental hospitals for some time and prescribed medications to help stabilize him. T.B.’s medications included a “mood stabilizer,” another medication “to keep me 20 21 22 23 24 25 26 27 28 2 S. denied that his trial testimony was the first time that he had used the word “sensual.” On cross-examination, T. testified that he originally thought his mother’s touching of his penis was sexual but then realized that it was not. 4 3 calm,” a medication for “the voices I used to hear in my head,” and another “to help me go to sleep.” 1 2 On June 10, 2013, 10-year-old T.B. came from a mental hospital to stay at defendant’s house as a foster placement. T.B. was not having any problems with hearing voices or seeing things that were not real while he was at defendant’s home or when he was at the mental hospital before going to defendant’s home. T.B. slept in the guest room at defendant’s home, but he used the bathroom in the master bedroom because the other upstairs bathroom was devoted to defendant’s cats’ litter box. The master bathroom had no door, so defendant could see T.B. when he was using that bathroom. 3 4 5 6 7 When T.B. went to sleep in the guest bedroom, he would close the door and cover himself with the blankets.4 However, sometimes he would wake up and find the door open or the blankets removed. This happened three or four times. One night a few days after he arrived at defendant’s home, about 45 minutes after he went to bed, while he was only partway asleep, he heard the door open and felt someone sit down on the foot of his bed and pull down his blankets. T.B. stretched his legs, and his leg hit another person’s body. He then felt a person put a hand inside his underwear and start rubbing his penis. Although T.B. could not see the person’s face in the dark, the only other person in the house was defendant. The rubbing continued for three or four minutes. T.B. was afraid to open his eyes, but he eventually opened his eyes and moved around, which caused the person to get up, look around the room, and then leave. 8 9 10 United States District Court Northern District of California 11 12 13 14 15 A similar event happened on another night, but this time defendant looked around T.B.’s room before he sat down on T’s bed. Defendant seemed to be mumbling, and, when he sat on the bed, “it sounded like he was talking to someone,” though there was no one else in the room besides T.B. The touching of his penis was shorter the second time because T.B. moved around more quickly.5 16 17 18 Three days after T.B. arrived at defendant’s home, a seven-day notice for change of placement was given by either defendant or the agency that had placed T.B. in defendant’s home. T.B. was removed from defendant’s home on June 20, 2013, after being there for 10 days. T.B. was interviewed by CPS on August 20, 2013 and asked if defendant had touched him. T.B. said no because he was too scared and embarrassed to talk about it. T.B. also told his father that defendant had not touched him. 19 20 21 22 23 At some point, T.B. saw on the news that defendant had been arrested and charged with sexual molestation. He started having “flashbacks” and “dreams” about defendant molesting him. About six months later, T.B. told his social worker, a 24 25 26 27 28 T. testified that in June it was hot in Santa Cruz, but “the AC was on at night, and it got cold in the house.” 4 Although T.B. thought there were one to three additional times that defendant touched T.B.’s penis, he could not remember those events. 5 5 woman he trusted, that defendant had molested him. He later made a videotaped statement to an investigator in Modesto, and after that spoke to the prosecutor and his investigator about the molestations. 1 2 E. Victim A. (Two counts of Lewd Act (Counts 10 and 11); 2013) A. was born in 2004.6 A.’s mother enrolled A. in the Big Brothers Big Sisters program, and defendant was assigned to be A.’s Big Brother in May 2013. Defendant and nine-year-old A. met once a week, usually at defendant’s house. After a couple of months of these visits, defendant asked if A. could spend the night at his house on July 30, 2013. A.’s mother agreed, and A. spent that night at defendant’s house. 3 4 5 6 When A. was getting ready to go to sleep that night, defendant said he would give A. a massage. Defendant gave A. a massage on the middle of his back over his pajamas and the blankets. Afterwards, defendant got off the bed and tapped A.’s back and butt lightly. A few days later, A.’s mother learned that defendant had been “accused of doing something he wasn’t supposed to with kids.” A.’s mother asked A. if defendant had touched him when he spent the night, and A. confirmed that defendant had touched him. 7 8 9 10 United States District Court Northern District of California 11 F. Victim J.K. (Three counts of Lewd Act (Counts 1, 2, and 3); and one count of Lewd Act on a Child of 14 or 15 (Count 5) (2008-2013) J.K. was born in 1999. In 2008, when he was eight years old, he and his mother were “very poor,” and his mother “was working all . . . the time.” J.K. had never met his father. Defendant was living in the same neighborhood as J.K., and J.K. met defendant through another young boy named “Sam” who knew defendant. When J.K. was nine or 10 years old, defendant offered to take J.K. and Sam to the Boardwalk, and they went. Afterwards, defendant took J.K. to defendant’s house to see his snakes. 12 13 14 15 16 17 Within a month or so, defendant began paying J.K. to help him with his snakes. J.K. started spending a lot of time at defendant’s home, watching television and eating, and sleeping over, and defendant would also take J.K. to the movies and to “the pool.” J.K. did not like being at his own home because his mother “was always really angry and there wasn’t enough food.” J.K. saw defendant as “like a father figure.” 18 19 20 21 At some point early on in the relationship between J.K. and defendant, J.K.’s mother became suspicious that defendant was “a pedophile” after she received an anonymous telephone call, but she eventually decided that it was okay for J.K. to continue to spend time with defendant. J.K. understood “pedophile” to mean someone who was “sexual towards a child.” 22 23 24 Defendant customarily hugged J.K. when he arrived and when he left defendant’s home. There was nothing sexual about these hugs. Defendant also hugged his friends and relatives when they arrived and left. Defendant also had other physical contact with J.K. Three times, when they were watching television, J.K. sat 25 26 27 28 6 A.’s last initial is not in the record. 6 on defendant’s lap. Defendant at times would kiss J.K. on the forehead when he left the house. J.K. had a lot of back pain, and defendant often massaged J.K.’s upper back (a few times a month) when J.K. was in middle school. 1 2 After a while, defendant began to “pressure” J.K. to spend more time at defendant’s home and to spend the night more often. Defendant took J.K. and others on “trips to the desert,” and he bought J.K. an iPod and a computer. When J.K. was in eighth grade, defendant told him that he would buy him a new wetsuit if he would spend the night once a week. Defendant controlled J.K.’s cellphone account and once cut off J.K.’s cellphone because he was upset at J.K. Defendant told J.K. that he had $3 million, that he would pay for J.K.’s college, and that his will would leave J.K. $1.5 million. 3 4 5 6 7 8 J.K. usually slept in the master bedroom of defendant’s home, and defendant “was supposed to sleep downstairs.” Sometimes J.K. woke up and found defendant sleeping in the same bed with him. J.K. told him not to do that, but it continued. About 10 times a year, J.K. would find defendant in bed with him. A few times J.K. was awake at 3:00 a.m., and defendant gave him “a piece of a sleeping pill” and told him to take it. 9 10 United States District Court Northern District of California 11 12 In 2011, when J.K. was in sixth grade, he awoke in the middle of the night to find defendant “trying to get my penis out of my pajama . . . pants . . . .” Defendant did not actually touch J.K.’s penis.7 J.K. “yelled at him saying I’m leaving in the morning and that he’s a pedophile . . . .” However, he continued his relationship with defendant. J.K. tried to block this event out of his memory because he could not accept that he “had been spending the night at a pedophile’s house . . . .” 13 14 15 16 In 2012, J.K. turned on a television in defendant’s bedroom and saw a camera that was showing a toilet. Defendant saw him make this discovery and told him that he “didn’t see anything.” J.K. stopped coming to defendant’s home for a while, but he then resumed coming there. In late July 2013, J.K. told his doctor about defendant, and his doctor warned him to be “really careful” and be “looking out for red flags.”8 J.K. understood the red flags to be “[a]bout him being a pedophile.” 17 18 19 20 23 In early August 2013, the day before J.K.’s 14th birthday, defendant had some friends over to play poker. After the friends left, defendant was “acting really weird to me” and “kind of creepy.” Defendant was not a big drinker, but that night he had had several alcoholic drinks. Defendant told J.K. to go to bed, and J.K. did so. J.K. covered himself with a sheet and two blankets, but he stayed awake with his eyes closed to see “what happens.” 24 J.K. was still awake but with his eyes closed when, around 3:30 a.m., 21 22 25 26 7 27 8 28 The jury deadlocked on the count associated with this conduct. J.K.’s doctor testified at trial and confirmed that he had warned J.K. about expensive gifts from an older man. He had asked J.K. if he had been sexually touched, and J.K. had denied that he had been. 7 defendant came into the bedroom, turned on the lights, and then moved around the bedroom for a while. After doing so, he moved J.K.’s blanket down “to just above waist level,” and moved J.K.’s arm off of his chest. Right after doing so, defendant got into the bed next to J.K., pulled a sheet up over himself, and started masturbating about a foot away from J.K. J.K. heard the sounds of defendant masturbating, looked over at defendant, and saw defendant staring at him. J.K. jumped out of the bed, pulled down the sheet, and saw defendant’s partially erect penis protruding from his boxers. Defendant tried to cover himself with his hands. J.K. asked defendant what he was doing. Defendant denied doing anything, but he stood up and a used condom fell out of his hand. J.K. ran out of the house, went home, and immediately told his mother what had happened. J.K. told his mother “Steve is a pedophile.” 1 2 3 4 5 6 7 J.K. was interviewed by law enforcement later that day. Part of his motivation for reporting defendant’s conduct was that he knew that defendant was a “Big Brother” to A. J.K. told law enforcement that defendant was drunk the previous night, and he explained that he believed that “people who are pedophiles . . . repress it” and it “comes out more” when “they drink.” “[H]e was acting weird cause he was drunk.” Over the next couple of days, J.K. was interviewed twice more about his relationship with defendant.9 He told the police what he could remember, but he said “I keep remembering more.” He did not tell the police about the 2011 pajama incident and denied to them that there had been any touchings before August 2013. 8 9 10 United States District Court Northern District of California 11 12 13 J.K. testified at trial that he did not tell the police about the pajama incident or the camera incident because he “thought it would make me sound dumb, if I stayed around there after that.” He first disclosed those incidents a week before trial, on August 4, 2016. He told the prosecutor and his investigator that he had just remembered those incidents a month earlier. J.K. had considered filing a lawsuit against defendant “for emotional damages.” “I deserved some money. This ruined my life.” J.K. did not know K.C. or R.A., but he had met T.B. when T.B. was at defendant’s home. J.K. had also seen S. once at defendant’s house. 14 15 16 17 18 G. Other Prosecution Evidence Defendant’s computers were seized by the police on August 5, 2013. Condoms were found in defendant’s bathroom. A forensic search of defendant’s computers did not turn up any child pornography. The computers were also searched for any instance of the word pedophile or pedophilia. J.K. had a user account on one of the computers, which appeared to be a computer devoted to “gaming.” That computer had no mention of pedophile or pedophilia. 19 20 21 22 The other computer had only one user account, named “Steve.” On that computer, the forensic search turned up a Google search for “pedophiles” from March 8, 2013. Similar searches had occurred on that computer on March 10 and March 13, 2013 for “pedophile.” The forensic search also found four articles on that computer’s hard drive that contained the term “pedophile.” One of the articles appeared on the hard drive on May 31, 2013. Three other articles appeared on the hard drive on July 31, 2013, and they all concerned pedophilia. In the “unallocated 23 24 25 26 27 28 9 These interviews were recorded and played for the jury at trial. 8 space” on the computer, there were several additional references to pedophilia. The presence of these articles and other references showed only that someone had clicked on a link to that material. There was no indication of whether the computer was password protected. 1 2 3 Ellen Buckingham, a former neighbor of defendant, testified that her son had gotten to know defendant and had begun spending time at defendant’s home in the mid-1980s. Her son started spending the night at defendant’s home when her son was 10 years old. Once, when defendant’s parents were visiting, defendant asked Buckingham to masquerade as his girlfriend to “appease” his parents, who “were concerned he didn’t have a girlfriend.” She did so. Buckingham’s son spent the night at defendant’s home a number of times, but Buckingham eventually limited and then cut off contact between her son and defendant because she learned that her son and defendant were sleeping in the same bed. Defendant was angered by her restrictions, and she ultimately had to get a restraining order against him.10 4 5 6 7 8 9 Sibylle Peters was defendant’s friend and housecleaner. They remained friends for 18 years, and she continued to clean his house throughout that period. They never had a romantic relationship. Her son became friends with Charlie, and this led to her son spending the night at defendant’s home frequently beginning sometime around 1998. After defendant was arrested, he told Peters that he “was freaked out that he made a mistake.” He told her that he “was drinking, and J[.K.] was on the bed already, and he was jacking off.” Defendant was interviewed by the Sheriff’s Office on August 5, 2013. He was asked if he was in a relationship, and he said he was in a relationship with Peters, though it was “not really serious.” 10 United States District Court Northern District of California 11 12 13 14 15 The Defense Case A defense expert testified about the effects of LSD and alcohol. He opined that LSD “distorts” memory. When LSD is combined with alcohol, “[i]t makes memories even more questionable.” LSD can produce “false memories” while the user is under the influence of the drug. These are largely false memories of the time spent on LSD, including altered perceptions, though LSD could distort memories of the past at least while the user is on LSD. When a user does not experience visual distortions, that probably means that the dosage was low. A low dosage is less likely to distort memory. LSD users generally are aware afterward that their altered perceptions were not accurate. LSD does not affect the “retrieval of memor[ies]” from a time prior to the use of LSD. 16 17 18 19 20 21 22 Buckingham’s son, D.B., who was born in 1979, testified for the defense. D.B. testified that he “kind of latched onto [defendant] as a father figure” when D.B. was a boy and defendant was his neighbor. D.B. believed that his mother and defendant were dating. D.B. continued to “hang out” with defendant even after they were no longer neighbors. He spent the night at defendant’s home many times, and he sometimes slept in the same bed with defendant. D.B. saw other adults, both male and female, at defendant’s house regularly. Defendant never touched D.B. inappropriately. Richard Martinez, who was born in 1969, testified that he met 23 24 25 26 27 28 10 In 1993, 1996, and 1997, defendant violated the restraining order by harassing Buckingham. 9 1 2 3 4 5 6 defendant when he was 13 or 14 years old and defendant was in his 20s. Martinez frequently visited defendant’s home in the 1980s and 1990s. Defendant never touched him inappropriately. Martinez saw defendant less frequently after the early 1990s, and he last saw defendant in 2011. Several other boys who had spent the night at defendant’s home testified that he had never touched them inappropriately. Leslie Karst testified that she met defendant when they were in college at the University of California at Santa Cruz. She and defendant remained friends with each other thereafter and with numerous other college friends. Karst had visited defendant’s home on average about twice a month from 1990 until his arrest. She had never seen defendant touch a child inappropriately. 7 8 Petition. Ex. A (“State Opinion”) at 3-16. POST-TRIAL PROCEEDINGS 9 After the verdict was returned, Weissman moved for a new trial. The court held an 10 evidentiary hearing on several claims, including that the prosecutor had interviewed an excused 11 United States District Court Northern District of California juror during trial, that the prosecution failed to disclose benefits to T.B. after he testified, that 12 Weissman’s counsel failed to investigate an arrest of T.B., and that the prosecutor failed to 13 disclose a statement by R.A. and correct his known false testimony. Ultimately, the court 14 dismissed Count 8 (oral copulation for K.C.) on ex post facto grounds and denied the rest of the 15 motion. (25RT 6011-14). In 2018, Weissman was sentenced to 105 years, 8 months to life. 16 (27RT 6516-18, 5CT 1292-96). 17 Weissman filed a timely appeal. In 2021 the Sixth District Court of Appeal reversed the 18 19 conviction on nine counts (Counts 1, 2, 3, 10, 11, 16, 17, 18, and 20) based on the prosecutor’s failure to correct R.A.’s false testimony under Napue v. Illinois, 360 U.S. 264 (1959). The court 20 found the Napue error harmless on the remaining five counts, rejected other claims of 21 constitutional error, and remanded the case with directions to allow the District Attorney to elect 22 whether to retry Weissman on those counts or otherwise for the court to resentence him on Counts 23 5, 7, 9, 12, and 13. See Petition at 3. 24 Weissman filed a timely petition for review of the challenges to the remaining convictions, 25 which the California Supreme Court denied without comment. Id. Ex. B. On remand, the nine 26 charges were dismissed, and Weissman was resentenced to a total term of 30 years, 8 months to 27 life on the remaining counts. Id. Ex. C. This habeas petition followed. 28 10 STANDARD OF REVIEW 1 United States District Court Northern District of California 2 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), this court 3 may entertain a petition for writ of habeas corpus “in behalf of a person in custody pursuant to the 4 judgment of a State court only on the ground that he is in custody in violation of the Constitution 5 or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petition may not be granted 6 with respect to any claim that was adjudicated on the merits in state court unless the state court’s 7 adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an 8 unreasonable application of, clearly established Federal law, as determined by the Supreme Court 9 of the United States; or (2) resulted in a decision that was based on an unreasonable determination 10 of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 11 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 12 arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if 13 the state court decides a case differently than [the] Court has on a set of materially 14 indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). 15 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if 16 the state court identifies the correct governing legal principle from [the] Court’s decisions but 17 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal 18 habeas court may not issue the writ simply because that court concludes in its independent 19 judgment that the relevant state court decision applied clearly established federal law erroneously 20 or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A federal habeas 21 court making the “unreasonable application” inquiry should ask whether the state court’s 22 application of clearly established federal law was “objectively unreasonable.” Id. at 409. DISCUSSION 23 24 Weissman’s petition contains claims for prosecutorial misconduct, ineffective assistance of 25 counsel and judicial error for failure to give a required jury instruction. He also claims that these 26 flaws, together, create cumulative error. None of the claims, considered separately or together, 27 allows the petition to be granted. I address each claim in turn, reciting the relevant facts when I 28 address the claim. 11 I. 1 PROSECUTORIAL MISCONDUCT Weissman asserts that the prosecutor committed misconduct by (i) failing to correct R.A.’s 2 known false testimony; (ii) improperly debriefing an excused juror before his closing argument; 3 (iii) failing to disclose gifts to a witness in violation of Brady; and (iv) vouching for evidence and 4 violating the witness-advocate rule. Weissman also contends that he was deprived of effective 5 assistance of counsel regarding (iii) and (iv), above, because his counsel did not object to the 6 prosecutor’s alleged misconduct. 7 A. 8 Failure to Correct Known False Testimony 1. 9 Background R.A. changed his testimony on the witness stand. Before trial, R.A. had never mentioned 10 United States District Court Northern District of California 11 12 that Weissman’s penis was erect during the “spooning” incident. See State Appellate Court Opinion (“State Opinion”) [Dkt. No. 1-1] at 32. On direct examination, R.A. said nothing about an erection. Id. But on cross-examination, R.A. testified that he had felt Weissman’s penis during 13 the spooning incident and that he had told the prosecutor about it. That was false. But the 14 prosecutor stayed silent and did not correct the record. He later admitted that R.A. had not told 15 him or his investigator prior to trial that R.A. had felt an erection when Weissman spooned him. 16 Id. 17 Employing the standard set by the Supreme Court in Napue v. Illinois, the state court found 18 that the prosecutor’s failure to correct R.A.’s false testimony about R.A.’s memory of what he had 19 previously reported to the prosecution was prejudicial with respect to nine counts where an 20 21 inference of sexual intent was derived from R.A.’s false testimony because the jury’s verdict was not “surely unattributable” to R.A.’s false testimony. State Opinion at 32, 35; see also Napue v. 22 Illinois, 360 U.S. 264, 269 (1959). The court held that it was not prejudicial for the remaining five 23 counts where R.A.’s testimony was not material because evidence of sexual intent was overt. Id.11 24 25 26 27 28 The state court rejected the Attorney General’s argument that because Weissman “had the opportunity to cross-examine and test the witness’s credibility and in fact did so,” the prosecutor’s error was categorically harmless beyond a reasonable doubt. The court found that Weissman’s ability to “‘test the witness’s credibility’ was hamstrung by R.A.’s false testimony coupled with the prosecutor’s failure to correct R.A’s false testimony.” State Opinion at 30:10-13. It determined that “[h]ad the jury known about R.A.’s claim to have told the prosecutor about defendant’s erection prior to trial was false, it might have doubted the reliability of R.A.’s claim 12 11 United States District Court Northern District of California 1 The court rejected the Attorney General’s argument that the error was harmless beyond a 2 reasonable doubt concerning the first nine claims because those claims pivoted on whether sexual 3 intent could be inferred from the presence of an erection during the spooning incident. Id. at 36 4 (“[l]ike some of the other counts, the spooning count, in the absence of the erection testimony, 5 involved conduct that in and of itself did not necessarily demonstrate a sexual intent.”). It 6 explained that because Weissman’s defense to the spooning and other similar counts was that he 7 lacked the requisite sexual intent for charges of lewd acts involving a minor, and the erection 8 testimony provided very strong evidence that he did have the requisite sexual intent, the testimony 9 raised a reasonable inference that Weissman “harbored the same intent” when engaged in similar 10 conduct. Id. For these reasons, the state court was unable to find that the jury’s verdicts on the 11 spooning count and the other similar counts were “surely unattributable” to the prosecutor’s 12 failure to correct R.A.’s false testimony. Id. 13 Weissman’s claim now concerns the court’s decision on the remaining five counts. The 14 court upheld them because they “bore no similarity to the spooning count,” as “[t]he evidence of 15 defendant’s sexual intent for the acts upon which [the remaining] five counts were based was so 16 overt that the jury’s verdicts on these counts were surely unattributable to the prosecutor’s failure 17 to correct R.A.’s false testimony.” Id. at 36. For the two counts that alleged Weissman forced 18 K.C. to orally copulate him, the two counts involving touchings of T.B.’s penis, and the final 19 count concerning Weissman masturbating in bed with J.K., it found that “the Napue error was 20 harmless beyond a reasonable doubt because these counts were not similar to the R.A. [spooning] 21 count and proof of defendant’s sexual intent could not have depended in any way on an inference 22 from R.A.’s erection testimony.” Id. at 37. 23 24 2. Legal Standard A prosecutor violates her duty to disclose information when she uses testimony which she 25 knows or should know is perjured or false. See United States v. Agurs, 427 U.S. 97, 103-07 26 (1976). When a prosecutor obtains a conviction by the use of testimony that she knows or should 27 28 that he felt defendant’s erection, a claim made for the first time at trial, more than a decade after the spooning incident.” Id. at 13-15. 13 1 know is false or perjured, the conviction must be set aside if there is any reasonable likelihood that 2 the testimony could have affected the judgment of the jury. See Agurs, 427 U.S. 97, 103. In fact, 3 “[a] conviction obtained using knowingly perjured testimony violates due process, even if the 4 witness’s perjured testimony goes only to his credibility as a witness and not to the defendant’s 5 guilt.” United States v. Houston, 648 F.3d 806, 814 (9th Cir. 2011) (citing Mooney v. Holohan, 6 294 U.S. 103, 211 (1935)). The same result obtains when the prosecutor, although not soliciting false evidence, allows United States District Court Northern District of California 7 8 it to go uncorrected when it appears. Napue, 360 U.S. at 269; cf. United States v. Alli, 344 F.3d 9 1002, 1006-08 (9th Cir. 2003) (reversal not required under plain error standard where government 10 breached its duty to correct known misstatements of its witnesses regarding possible benefits in 11 exchange for testimony favorable to the government when defense counsel had the plea 12 agreements, used them in cross-examining the witnesses, and could have introduced them; the 13 witnesses’ false testimony was corrected; and the prosecutor never sought to capitalize on the false 14 testimony).12 To prevail on a claim based on Agurs/Napue, the petitioner “must show ‘that (1) the 15 testimony (or evidence) was actually false, (2) the prosecution knew or should have known that 16 the testimony was actually false, and (3) . . . the false testimony was material.’” Hayes v. Brown, 17 399 F.3d 972, 980, 984 (9th Cir. 2005) (en banc) (quoting United States v. Zuno-Arce, 339 F.3d 18 886, 889 (9th Cir. 2003)); see also Panah v. Chappell, 935 F.3d 657, 664 (9th Cir. 2019). “Material” means that there is a reasonable likelihood that the false evidence or testimony 19 20 could have affected the judgment of the jury. Morris v. Ylst, 447 F.3d 735, 743 (9th Cir. 2006). 21 Materiality under Napue requires a “lesser showing of harm . . . than under ordinary harmless 22 error review.” Dow v. Virga, 729 F.3d 1041, 1048 (9th Cir. 2013). But, after weighing the effect 23 of alleged Napue violations collectively, see Phillips v. Ornoski, 673 F.3d 1168, 1189 (9th Cir. 24 25 26 27 28 12 In cases in which the prosecutor has violated both Napue and Brady, a court must first consider the Napue violations collectively to determine whether there is a reasonable likelihood that the false testimony or evidence “could” have affected the judgment. Phillips v. Ornoski, 673 F.3d 1168, 1189-1190 (9th Cir. 2012) (quoting Sivak v. Hardison, 658 F.3d 898, 912 (9th Cir. 2011)). If the Napue errors are not enough to grant relief, the court must consider both the Napue and Brady errors and ask whether there is a reasonable probability that, but for the errors, the result of the proceeding “would” have been different. Id. 14 United States District Court Northern District of California 1 2012), there still needs to be a “reasonable likelihood that the false testimony could have affected 2 the judgment of the jury.” Hayes, 399 F.3d at 985 (quoting Belmontes v. Woodford, 350 F.3d 861, 3 881 (9th Cir. 2003)). Thus, a Napue claim fails if, absent the false testimony or evidence, the 4 petitioner still “received a fair trial, understood as a trial resulting in a verdict worthy of 5 confidence.” Hayes, 399 F.3d at 984 (quoting Hall v. Dir. of Corr., 343 F.3d 976, 984 (9th Cir. 6 2003) (per curiam)). The Agurs/Napue materiality test is the same standard as the Chapman v. 7 California harmless error standard. See Chapman v. California, 386 U.S. 18, 24 (1967) (holding 8 that the beneficiary of constitutional error must prove “beyond a reasonable doubt” that the “error 9 complained of did not contribute to the verdict obtained”); see also United States v. Bagley, 473 10 U.S. 667, 679 n.9 (1985) (explaining the standard of review applicable to the “knowing use of 11 perjured testimony” is “equivalent to the Chapman harmless error standard.”) 12 If the claim meets the materiality standard under Agurs/Napue, then no separate analysis of 13 harmlessness under Brecht v. Abrahamson, 507 U.S. 619 (1993), which asks whether the error 14 “‘had substantial and injurious effect or influence in determining the jury’s verdict,’” is required. 15 Hayes, 399 F.3d at 984 (holding that when the Supreme Court has declared a materiality standard 16 for a certain kind of constitutional error there is no need to conduct a separate harmless error 17 analysis, meaning that once a federal court has determined whether the state court reasonably 18 determined whether Napue error was material under the Agurs standard, there is no need for a 19 separate Brecht examination). 20 3. Analysis 21 The state court’s determination that the jury’s decision on the final five counts was not 22 attributable to R.A.’s testimony was not unreasonable under or contrary to clearly established 23 federal law. The prosecution presented a powerful case of Weissman’s guilt, with substantial 24 evidence showing that he had committed lewd acts against the victims whose accounts serve as the 25 basis for the remaining five counts. Each of the accusers whose testimony formed the basis for the 26 remaining five counts testified in front of the jury. Their testimony described actions that are 27 overtly sexual in nature. 28 K.C. testified that Weissman forced K.C. to orally copulate him, which served as the basis 15 1 for Counts 7 and 9. 2RT 334-337. T.B. testified that Weissman entered his bedroom and touched 2 T.B.’s penis at least two times, which served as the basis for counts 12 and 13.13 8RT 1839-40, 3 1840-1843, 1844-1845, 1847, 1850-1852, 1859-1862. And J.K. testified that on one occasion, 4 Weissman got into bed with him and began masturbating, which served as the basis for Count 5. 5 3RT 622, 624-632; 5RT 1035-1037. J.K. also testified that he found a camera in Weissman’s 6 bathroom that was pointed at the toilet area. 3RT 594; 5RT 1139. R.A.’s testimony was only one 7 part of the entire prosecution, and it was not a crucial component with respect to the remaining 8 five counts. Because the “verdict” on the remaining counts is still reasonably “worthy of confidence,” United States District Court Northern District of California 9 10 Phillips, 673 F.3d at 1189, the state appellate court was not unreasonable in finding that the Napue 11 error was “harmless beyond a reasonable doubt.” State Opinion at 37; see also Panah v. Chappell, 12 935 F.3d at 664 (quoting Hayes, 399 F.3d at 985) (finding that because the State had presented a 13 powerful case of the defendant’s guilt, and the flawed testimony was only one small part of that 14 case, the guilty verdict was still worthy of confidence). Weissman argues that the state court’s finding was an unreasonable interpretation of the 15 16 Chapman materiality test because the evidence of his guilt on the remaining five counts was 17 “equivocal and depended almost entirely, if not entirely, upon the accusers’ credibility.” Petition 18 at 29:14-15.14 He contends that the testimony of the other victims, K.C., T.B., and J.K., was 19 “wholly uncorroborated by any physical evidence, medical testimony, percipient witness or 20 admission,” and that each accuser had “monumental credibility problems.”15 Id. at 30:12-26. But 21 22 23 24 25 26 27 28 13 While Weissman contests the credibility of the other witnesses, the jury heard them testify and deemed them credible. Weissman also argues that the state court’s finding that the Napue error was harmless as to five counts was unreasonable because Napue errors trigger “virtually automatic” reversal. Weissman cites Hayes v. Brown to support this assertion. 399 F.3d at 984. But, as respondent notes, the Hayes court also stated that the mere fact of constitutional error does not “end [the court’s] analysis,” and that “Napue . . . [does not create] a per se rule of reversal.” Id. 14 15 Weissman cites that: (1) K.C. only recalled the alleged molestation one night in 2007 (ten years after the alleged incident), when he took 2 tabs of LSD and shared 1/3 of a bottle of whisky with his friend, Daniel C. or “Clay,” (2RT 342-348, 363-364), but, his friend (Daniel C. or Clay) recalled that K.C. said he was molested by a “neighbor” and the man’s name was “Bill” (13RT 3008-14, 3022-23); (2) Weissman’s name is not “Bill,” and he was not K.C.’s neighbor (2RT 36216 United States District Court Northern District of California 1 the jury was given the chance to hear these witnesses testify and assessed them to be credible. In 2 a child molestation case, there are often no witnesses other than the victim and the accused. And 3 the witnesses’ testimony was not wholly uncorroborated: J.K. told his mother that Weissman had 4 gotten into bed with him and started masturbating, see 3RT 641, 643-645; 5RT 1121-1123, 1137, 5 and Weissman himself admitted to his friend, Sybille Peters, that he was “jacking off” while J.K. 6 was in bed with him. 16RT 3838. 7 Weissman also argues that the state appellate court should have employed the materiality 8 test established by the Supreme Court in Brady v. Maryland, and that the false testimony at issue 9 would have met that materiality test. See Brady v. Maryland, 373 U.S. 83 (1963). This argument 10 is unpersuasive. The Brady test places a higher burden on the defendant than the Brecht test, so 11 Weissman argues that had the state court have understood him to have met the Brady test, the 12 Brecht test would have become redundant. Petition at 29:22-27; see also Kyles v. Whitley, 514 13 U.S. 419, 435-36 (1995) (holding that the Brady test which requires “reasonable probability” of a 14 “different result” is a higher bar for the defendant to meet than the Brecht test). The Supreme 15 Court has held that “[w]hen the ‘reliability of a given witness may well be determinative of guilt 16 or innocence,’ nondisclosure of evidence affecting credibility” falls within the rule established by 17 Brady v. Maryland. Giglio v. United States, 405 U.S. 150, 154 (1972). 18 Here, Weissman’s attempt to invoke the Brady standard fails because, as discussed above, 19 the state court reasonably determined that R.A.’s reliability or lack thereof was not determinative 20 of Weissman’s guilt or innocence on the remaining five claims.16 21 22 23 24 25 26 27 28 364); and (3) K.C. also admitted that when he reported the incident to the police after reading about Petitioner’s arrest, he failed to tell the police about the LSD, and only told the police about LSD after his friend had revealed it to the police. (2RT 362- 364). 16 In his traverse, Weissman conflates issues. He argues that since respondent cites no caselaw where Napue error was found to be harmless upon federal habeas review where the false statement was “important evidence” and/or “very strong evidence” that the petitioner had criminal intent (sexual or otherwise), respondent has failed to show that the state court’s finding was reasonable. Petitioner’s Traverse (“Traverse”) [Dkt. No. 10] at 10:9-14. I interpret this argument as merely bolstering the state court’s decision to reverse nine counts against Weissman where the false testimony did serve as important or strong evidence against him. In the five counts that remain, the state court found that the false statement was not very strong evidence of his criminal intent because other evidence—namely, testimony by other accusers that the jury found credible— established that intent. Weissman’s case is distinguished in that way from two cases he cites in 17 United States District Court Northern District of California 1 Next, Weissman contends that courts frequently find that a prosecutor’s emphasis of an 2 error in closing argument demonstrates prejudice under Brecht. Petition at 32:7-10. That rule is 3 not absolute enough to make the state court’s finding unreasonable. In one of the cases Weissman 4 relies upon, Aguilar v. Woodford, where the Ninth Circuit reviewed a federal court’s denial of 5 habeas in a homicide case, the prosecutor emphasized the unreliable scent identification of a 6 police dog whom the prosecutor knew to have been flagged for past misidentifications. See 7 Aguilar v. Woodford, 725 F.3d 970 (9th Cir. 2013). That was a Brady error. Eyewitness accounts 8 were hazy, none of the witnesses personally knew the defendant, and none was sure of their 9 identification, so the police dog’s scent-identification linking the defendant to the crime was 10 crucial to the prosecution’s case. Id. at 978, 984. Absent the dog scent testimony, there was “no 11 corroborating evidence for the shaky eyewitness identifications.” Id. at 984. 12 In Aguilar, the Ninth Circuit rejected the State’s argument that the scent-identification 13 evidence was not probative in part because the prosecutor relied upon it so heavily in the closing 14 argument. Id. at 985. But in this case, unlike in Aguilar, R.A.’s testimony was not crucial to the 15 prosecutor’s closing argument. R.A.’s testimony was just one story among many, similar stories 16 from several boys, all of whose credibility the jury was able to judge. 17 Weissman finally argues that the prosecutor’s closing argument, urging the jury (consistent 18 with the trial court’s instructions) that conviction on any count was part of the “repetition” or 19 “pattern” that could be used to prove guilt of other counts, was prejudicial considering the Napue 20 error that had polluted some counts, and that the state court was unreasonable in finding otherwise. 21 Petition at 32:15-33:13. He contends that because the prosecutor told the jury that conviction on 22 one count could be pattern evidence of guilt on other counts, he made it impossible for the jury to 23 not consider R.A.’s false testimony while considering Weissman’s guilt on all counts. 24 The facts of Weissman’s case differ significantly from those where erroneous arguments 25 26 27 28 support of this argument, United States v. Wallace, 848 F.3d 1464 (9th Cir. 1988) and United States v. Weatherspoon, 410 F.3d 1142 (9th Cir. 2005), two Ninth Circuit cases where the State’s case was notably weaker, Napue error was not at issue, and the court did not use the AEDPA deferential standard of review. 18 1 were found to be prejudicial because they were repeated to the jury throughout trial. For example, 2 Weissman relies on United States v. Combs, where the Ninth Circuit reviewed a conviction for 3 manufacturing methamphetamine on direct appeal. 379 F.3d 564 (9th Cir. 2004). Only two 4 pieces of evidence tied defendant to the crime in question: (1) the testimony of a cellmate, who 5 had been offered possible leniency in exchange for testifying against Combs, and (2) the testimony 6 of a federal agent. Id. at 573. There was no direct evidence of guilt, and the “circumstantial 7 evidence was not overwhelming.” Id. During cross-examination, the prosecutor improperly compelled the defendant to “impugn 8 United States District Court Northern District of California 9 the veracity” of the federal agent who testified against him, which “pitt[ed] [the defendant’s] 10 credibility against [the federal agent’s].” Id. at 573. The prosecutor “revived the error” by 11 “reemphasizing [the prejudicial testimony]” in closing argument, “immediately before the jury 12 entered deliberations.” Id. In so doing, “the prosecutor herself destroyed any chance that the jury 13 forgot about the error or viewed it as an unimportant, isolated incident.” Id. at 574. And the trial 14 judge “twice chastised Combs on the stand and instructed him to answer the prosecution’s 15 question about the truthfulness of [the agent’s] testimony,” which essentially amounted to the 16 court endorsing the prejudicial testimony. Id. at 574-75. The agent’s testimony was one of only 17 two pieces of evidence against the defendant, and it was corrupted by the prosecutor. This led the 18 Ninth Circuit to conclude that the error required reversal. In contrast, R.A.’s testimony about Weissman having an erection while spooning him was 19 20 not the focus of the prosecutor’s closing argument. The erroneous testimony did not play a large 21 role in the case against Weissman overall. And the error was not endorsed by the court. The 22 testimony of the victim witnesses was strong and credible proof to support the five counts.17 23 Weissman is not entitled to federal habeas relief for Napue error under the deferential AEDPA 24 25 26 27 28 17 Weissman also misconstrues an instruction the trial court gave regarding uncharged crimes to argue that the jury was instructed that it could use the finding of guilt as to one accuser (such as R.A.) to show that Weissman had a plan to molest children and harbored sexual intent. It was clear, however, that for the charged offenses, each was separate and had to be proven and considered independently. As the state court points out, the trial court’s instruction about which Weissman complained only applied to “evidence that the defendant committed other offenses that were not charged in this case.” 19RT 4543-4544. 19 1 standard because the state court’s decision was not unreasonable or contrary to federal law. 2 B. United States District Court Northern District of California 3 Improper Contact with Excused Juror 1. Background 4 After the close of evidence but before closing arguments, Juror No. 1 was excused for the 5 purpose of attending a medical school interview. State Opinion at 22. After she was excused, the 6 prosecutor asked for her phone number because “he wanted to talk to [her] about the case” and 7 would call her later to hear her “impressions of the trial.” Id. at 22-23. That evening, the 8 prosecutor called Juror No. 1 and they spoke for “[l]ess than an hour.” Id. The prosecutor asked 9 her about “each of the witnesses that testified at the trial” and whether she “thought each witness 10 was credible or not.” Id. Juror No. 1 “answered his questions and provided him with the 11 information he requested.” Id. at 23. 12 One of the witnesses the prosecutor asked about was Leslie Karst. During Karst’s 13 testimony, a different juror—not Juror No. 1—had sent a note that raised questions about whether 14 Karst’s wife had been in court earlier and perhaps communicated to Karst what prior witnesses 15 had said. 2CT 490; 23RT 5849-5851. The prosecutor had addressed this by cross-examining 16 Karst about the question from the note; Karst admitted that her wife was Weissman’s friend and 17 had been taking notes on the trial and bringing those notes home with her. Karst denied seeing the 18 notes or discussing them with her wife. 15RT 3587-3595. When Juror No. 1 spoke with the 19 prosecutor after being excused, she said that she was “a little suspicious” of Karst’s testimony 20 because “it seemed like she had some prior knowledge of what had gone on in the courtroom.” 21 State Opinion at 23. During closing argument, the prosecutor said that “one juror noted right away that Ms. 22 23 Karst . . . has her own bias, motives, and agendas coming in here.” He further stated, “[y]ou want 24 to talk about someone that had some honesty issues, that’s a lady that was a little hard to believe.” 25 Id. 26 Weissman’s counsel thought that the prosecutor’s statements were motivated by his 27 improper contact with Juror No. 1. That contact was the topic of an evidentiary hearing the trial 28 court held more than one year after the trial ended. Id. at 24. Both the prosecutor and Juror No. 1 20 United States District Court Northern District of California 1 testified. The prosecutor explained that the statements concerning Karst referred to the note that 2 came from the other juror during trial, not from his conversation with Juror No. 1. He testified 3 that Juror No. 1’s comments were “useful in the sense that she liked the case” and that she did not 4 have any problems with the witnesses. Id. The prosecutor did not reopen the case to introduce 5 additional evidence and testified that his closing argument was “mostly written” by the time he 6 spoke to her. 23RT 5625-5626. 7 Juror No. 1 testified that she spoke to the prosecutor for less than an hour about her 8 “general opinions” or “general thoughts” about the witnesses, including whether she thought they 9 were credible. See 24RT 5758-5760, 5779. She did not remember speaking about Karst during 10 the phone call but did testify that she thought Karst might have been “a little bit biased.” 24RT 11 5761-5762. After the evidentiary hearing, the trial court ruled that it was “undisputed” that the contact 12 13 with Juror No. 1 should not have occurred and was a violation of the Rules of Professional 14 Conduct. Petition Ex. A at 24-25 (citing Cal. Rules of Prof. Conduct 3.5(e), (1)). But the trial 15 judge determined that the conduct did not merit a new trial for two reasons. First, Juror No. 1 had 16 no contact with any sitting jurors after her contact with the prosecutor and had no discussions 17 about her concerns during the trial. Second, there was no evidence that the prosecutor changed 18 tactics or strategy based on the contact. The jury had been instructed that they should base their 19 decision only upon the evidence and the court’s instructions on the law, and the court assumed that 20 they followed those instructions. The state appellate court affirmed. It agreed that the prosecutor’s conduct was improper 21 22 but found that the State had rebutted the presumption of prejudice in the evidentiary hearing. State 23 Opinion at 25-27. It evaluated Weissman’s claims pursuant to the clearly established law for 24 evaluating a juror’s contact with an outside party—Mattox v. United States, 146 U.S. 140 (1892) 25 and Remmer v. United State, 347 U.S. 227 (1954)—acknowledging that the cases are not exactly 26 on point because they both concerned sitting jurors rather than excused jurors. 18 27 28 As a preliminary matter, respondent contends that “no clearly established Supreme Court law supports [claim two].” Answer at 40. That is arguable, and I do not reach it because I agree with 21 18 On appeal to the state court, Weissman argued that the prosecutor’s improper conduct was United States District Court Northern District of California 1 2 structural error that was per se reversible. The court rejected this argument, stating that 3 “[Weissman’s] reliance on Hobson v. Wilson (D.C. Dir. 1984) 737 F.2d 1 is puzzling[,]” because 4 in Hobson, a civil case, “an excused juror was contacted by one of the plaintiffs’ attorneys 5 between the close of evidence . . . provided the attorney with her opinions about the evidence . . . 6 [but] the Hobson court did not find the error to be structural or to merit per se reversal.” State 7 Opinion at 25-26. The court explained that Hobson relied on Mattox and Remmer, two cases that 8 both involved improper contact between a prosecutor and a sitting juror, not an excused juror, 9 during a trial, and neither of which concluded that the error was structural or merited reversal. Id. 10 And in both Mattox and Remmer, the Supreme Court applied a rebuttable presumption of 11 prejudice.19 12 2. Legal Standard “[P]rivate communications, possibly prejudicial, between jurors and third persons, or 13 14 witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least 15 unless their harmlessness is made to appear.” Mattox, 146 U.S. at 142. Mattox’s “presumption is 16 not conclusive, but the burden rests heavily on the Government to establish, after notice to and 17 hearing of the defendant, that such contact with the juror was harmless to the defendant.” 18 Remmer, 347 U.S. at 229. 19 20 21 22 23 24 25 26 27 28 respondent on other grounds. Courts in this circuit have cited Mattox and Remmer on this issue of improper contact between a juror and witness or interested party. See e.g. Caliendo v. Warden, 365 F.3d 691, 695 (9th Cir. 2004) (holding that “Mattox established a bright-line rule: Any unauthorized communication between a juror and a witness or interested party is presumptively prejudicial, but the government may overcome the presumption by making a strong contrary showing.”) And the Ninth Circuit held in Von Tobel v. Benedetti that the Mattox and Remmerderived test is clearly established federal law. 975 F.3d 849, 853 (9th Cir. 2020). While Mattox and Remmer do not specifically concern an excused juror, they also do not merely establish a “general proposition” which would be insufficient to clearly establish a specific question presented by the case. See Lopez v. Smith, 574 U.S. 1, 5-7 (2014) (per curiam) (where the Supreme Court repeated a warning it issued previously to lower courts against “framing [Supreme Court] precedents at such a high level of generality”). 19 Defendant also argued on appeal that the standard for reversal should turn on whether the contact was “trivial,” but the state appellate court found that the authority he cited established that the standard is whether the presumption of prejudice has been rebutted. 22 In Godoy v. Spearman, the Ninth Circuit clarified that the test derived from Mattox and 1 2 Remmer constitutes clearly established federal law for evaluating a juror’s contact with an outside 3 party. See Godoy v. Spearman, 861 F.3d 956, 968 (9th Cir. 2017); see also Von Tobel v. 4 Benedetti, 975 F.3d 849, 853 (9th Cir. 2020) (explaining that a test derived from Mattox and 5 Remmer constitutes clearly established federal law for evaluating a juror’s contact with an outside 6 party). The court in Godoy held that “[h]armlessness in this context means ‘that there is no 7 reasonable possibility that the communication . . . influenced the verdict.”). Godoy, 861 F.3d at 8 968. United States District Court Northern District of California 9 When faced with allegations of improper contact between a juror and an outside party, 10 courts apply a settled two-step framework. Id. at 967-68. At step one, the court asks, “whether 11 the contact was ‘possibly prejudicial,’ meaning it had a ‘tendency’ to be ‘injurious to the 12 defendant.’” Id. (quoting Mattox, 146 U.S. at 150). If so, “the contact is ‘deemed presumptively 13 prejudicial’ and the court proceeds to step two, where the ‘burden rests heavily upon the [state] to 14 establish’ the contact was, in fact, ‘harmless.’” Id. (quoting Remmer, 347 U.S. at 229). “If the 15 state does not show harmlessness, the court must grant the defendant a new trial.” Id. (citation 16 omitted). “When the presumption arises but the prejudicial effect of the contact is unclear from 17 the existing record, the trial court must hold a ‘hearing’ to ‘determine the circumstances [of the 18 contact], the impact thereof upon the juror, and whether or not it was prejudicial.’” Id. (quoting 19 Remmer, 347 U.S. at 229-30). 20 21 3. Analysis The state appellate court correctly determined that the prosecutor’s contact with the juror 22 was harmless. No case authority supported Weissman’s structural error argument and “nothing in 23 the record support[ed] his claim that the prosecutor’s improper conduct had any impact on his 24 right to an impartial jury.” State Opinion at 26. This was a reasonable finding under Mattox and 25 Remmer as understood by Godoy, for three reasons. 26 First, Juror No. 1 did not deliberate in Weissman’s conviction. It was undisputed that she 27 had not discussed the case with her fellow jurors either while she was a juror or after she was 28 excused but before there was a verdict. She had no contact with the trial jurors between her 23 1 excusal and the verdicts. State Opinion at 26-27; 24RT 5768, 5772-5773. Second, the sole opportunity that the prosecutor had to act on the information he received 2 3 from Juror No. 1 was in his closing arguments. The prosecutor did not change his arguments to 4 accommodate any new information he learned from her. State Opinion at 27. He testified at the 5 evidentiary hearing that she merely boosted his confidence in the case rather than provided him 6 with any information that he used to craft or change his closing arguments. Id. Finally, Karst, whose testimony is at issue in this claim, was a “very weak defense witness United States District Court Northern District of California 7 8 testifying about largely tangential issues.” Id. Her credibility was unimportant because of that, 9 and the state could rebut the presumption of prejudice even if the prosecutor’s closing argument 10 was influenced by Juror No. 1. All of this showed that the prosecutor’s contact with the excused 11 juror did not tend to injure Weissman. The trial court credited the prosecutor’s testimony that his closing argument was based on 12 13 another juror’s question rather than the excused juror’s comments. The state appellate court found 14 this testimony credible because it was “completely consistent with the record.” State Opinion at 15 25-27. 16 The other juror’s note raised concerns about whether Karst’s wife was in court, whether 17 Karst’s wife had heard other witnesses’ testimony, and whether Karst’s wife knew other people in 18 court. Id.; 2CT 490; 23RT 5849-51. Weissman points out that these concerns did not 19 “specifically address ‘bias’, ‘motive’, or ‘agenda’,” yet those were the three topics addressed in 20 the prosecutor’s closing argument. He argues that because the excused juror told the prosecutor 21 that she believed “[K]arst had her own bias or agenda,” the state appellate court unreasonably 22 found that the presumption of prejudice had been rebutted. Traverse at 22:18-25. But the juror 23 question that was submitted to the court during trial did concern issues that related to bias and 24 agenda. The state court was not unreasonable under the Mattox and Remmer standard or acting 25 contrary to clearly established federal law in determining that the prosecutor’s comments on Karst 26 in closing were derived from the juror note rather than from his conversation with Juror No.1. 27 28 The state appellate court determined that the state had rebutted the presumption of prejudice that arose when the prosecutor contacted Juror No. 1. Id. While there is no clear 24 1 standard for prejudice in this context, the Ninth Circuit has evaluated improper contact with a 2 sitting juror under a harmlessness standard, i.e. whether there was any “reasonable possibility that 3 the communication . . . influence[d] the verdict.” Godoy, 861 F.3d at 968. Under that standard, the 4 state appellate court’s conclusion that the prosecutor’s error could not have impacted the 5 petitioner’s right to an impartial jury was reasonable under and not contrary to clearly established 6 federal law. 20 Juror No. 1 did not deliberate or have any contact with sitting jurors, her 7 conversation with the prosecutor did not affect his closing argument in any significant way, and 8 Karst was a weak defense witness “testifying about tangential issues.” See State Opinion at 27. 9 The state court’s decision regarding prosecutorial misconduct related to improper contact with 10 Juror No. 1 is entitled to AEDPA deference; Weissman is not entitled to federal habeas relief. United States District Court Northern District of California 11 C. 12 Failure to Disclose T.B. Gifts 1. Background The prosecutor learned after trial that a witness advocate had given T.B. an old laptop and 13 14 a $50 gift card after T.B. finished testifying. State Opinion at 37-38. When and in what context 15 T.B. learned that he would be receiving a laptop is disputed. At the evidentiary hearing, the 16 prosecutor testified that he knew nothing about the laptop given to T.B. prior to T.B. testifying. 17 Id. Respondent contends that T.B. did not receive the laptop until after he testified. Weissman 18 claims that T.B.’s testimony at the evidentiary hearing suggests that he knew he was going to 19 receive the laptop the day that he testified. Petition at 59:18-62:18; Dkt. No. 9-5 at 5573. The $50 20 gift card was given to him after he finished testifying. State Opinion at 38. 21 Weissman argues that the prosecutor’s failure to disclose to the defense the gifts that T.B. 22 received violated the prosecution’s obligation under Brady v. Maryland, 373 U.S. 83, 87 (1963), 23 to disclose material favorable to the defense. Id. The state appellate court considered Weissman’s 24 25 26 27 28 20 Finally, Weissman claims that the prosecutor changed his closing argument after speaking to Juror No. 1 to focus on whether Weissman lacked “heterosexual” relationships or otherwise lied about being “heterosexual.” Petition at 39:10-22. It does not appear that the state appellate court addressed this issue. See generally State Opinion. I review it de novo. Weissman points to no evidence that would suggest that the prosecutor changed his closing argument to focus on whether Weissman misrepresented himself as a “heterosexual” based on the conversation he had with Juror No. 1. And the state court correctly ruled on that issue, as I discuss later. 25 1 Brady claim in terms of whether the undisclosed evidence would have affected the impact of the 2 other impeachment evidence. See State Opinion at 38-39. It employed a Brady standard as 3 interpreted by Kyles v. Whitley, where the Supreme Court held that “favorable evidence is 4 material, and constitutional error results from its suppression by the government, ‘if there is a 5 reasonable probability that, had the evidence been disclosed to the defense, the result of the 6 proceeding would have been different.’” Id. (citing Kyles, 514 U.S. at 433). And the California 7 Supreme Court has noted that evidence is not material if “it would have added little to the 8 cumulative impact of the other impeachment evidence.” People v. Dickey, 35 Cal. 4th 884, 909 9 (2005). United States District Court Northern District of California 10 The state appellate court ruled that “[Weissman] has failed to persuade us that evidence 11 that T.B. was given an old laptop and a $50 gift card after he finished testifying would have added 12 anything to the ‘cumulative impact of the other impeachment evidence.’” State Opinion at 39. It 13 explained that T.B. was already impeached with the following: evidence that he had initially 14 repeatedly denied that Weissman molested him; “considerable” evidence that he had a history of 15 mental health issues, including hallucinations; his admission that he had previously suggested that 16 his mother had sexually molested him when she had not; and his admission at trial that he had a 17 “history of lying.” Id. 18 In response to Weissman’s argument that the gift evidence would have provided a selfish 19 motive for T.B. to testify, the court was unpersuaded. Id. at 40. The court explained that because 20 T.B.’s testimony was consistent with statements that he made before he was offered or received 21 any gifts, the motivation Weissman alleged was not evidenced. Id. It stated, “[Weissman] does 22 not explain how gifts that had never been mentioned to T.B. previously and were given to T.B. on 23 the day of his trial testimony could have influenced his trial testimony, which was entirely 24 consistent with his prior statements detailing defendant’s molestation of him.” Id. For these 25 reasons, the court rejected Weissman’s contention that the prosecutor’s failure to disclose the gifts 26 to T.B. until after trial constituted a Brady violation. 27 28 2. Legal standard In Brady v. Maryland, the Supreme Court held that “the suppression by the prosecution of 26 United States District Court Northern District of California 1 evidence favorable to an accused upon request violates due process where the evidence is material 2 either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 3 U.S. 83, 87 (1963). Evidence is material if “there is a reasonable probability that, had the 4 evidence been disclosed to the defense, the result of the proceeding would have been different.” 5 Cone v. Bell, 556 U.S. 449, 469-70 (2009). The Court has since made clear that the duty to 6 disclose such evidence applies even when there has been no request by the accused, see United 7 States v. Agurs, 427 U.S. 97, 107 (1976), and that the duty encompasses impeachment evidence as 8 well as exculpatory evidence, see United States v. Bagley, 473 U.S. 667, 676 (1985). 9 “[T]here is never a real ‘Brady violation’ unless the nondisclosure was so serious that there 10 is a reasonable probability that the suppressed evidence would have produced a different [result].” 11 Strickler v. Greene, 527 U.S. 263, 281 (1999). “A reasonable probability does not mean that the 12 defendant ‘would more likely than not have received a different verdict with the evidence,’ only 13 that the likelihood of a different result is great enough to ‘undermine confidence in the outcome of 14 the trial.’” Smith v. Cain, 565 U.S. 73, 74 (2012) (quoting Kyles, 514 U.S. at 434). “[E]vidence 15 impeaching an eyewitness may not be material if the State’s other evidence is strong enough to 16 sustain confidence in the verdict.” Smith, 565 U.S. at 76-77 (finding impeachment evidence of 17 prosecution’s sole witness material); accord Agurs, 427 U.S. at 112-13 & n.21. 18 In sum, for a Brady claim to succeed, (1) the evidence at issue must be favorable to the 19 accused, either because it is exculpatory or impeaching; (2) that evidence must have been 20 suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice must have 21 ensued. Banks v. Dretke, 540 U.S. 668, 691 (2004); Strickler, 527 U.S. at 281-82; cf. Towery v. 22 Schriro, 641 F.3d 300, 309-10 (9th Cir. 2010) (no habeas relief on Brady claim under § 2254 23 where state court reasonably determined “beyond a reasonable doubt that the prosecutor’s 24 misconduct did not affect the verdict”). In determining whether the suppression of impeachment 25 evidence is sufficiently prejudicial to rise to the level of a Brady violation, the court analyzes the 26 totality of the undisclosed evidence “in the context of the entire record.” Agurs, 427 U.S. at 112; 27 see also Bagley, 473 U.S. at 682 (opinion of Blackmun, J.) The materiality inquiry subsumes any 28 harmless error analysis: if error is found, “it cannot subsequently be found harmless 27 1 under Brecht.” Kyles, 514 U.S. at 435. 2 3. While the tests the state appellate court employed do not exactly mirror the Supreme 3 United States District Court Northern District of California Analysis 4 Court’s language describing what would constitute a Brady violation, they were not an 5 unreasonable interpretation of or contrary to the rules governing materiality set forth by the 6 Supreme Court in Strickler v. Green and Kyles v. Whitley. See supra C(1). 7 Weissman’s argument rests partially on Benn v. Lambert, where the Ninth Circuit affirmed 8 a district court’s grant of habeas relief, holding that “the state cannot satisfy its Brady obligation to 9 disclose exculpatory and impeachment evidence ‘by making some evidence available and 10 asserting that the rest would be cumulative.’” Petition at 60:23-61:7; Benn v. Lambert, 283 F.3d 11 1040, 1058 (9th Cir. 2002). Instead, “the state is obligated to disclose ‘all material information 12 casting a shadow on a government witness’s credibility[,]’” including that the witness might have 13 had some reason “other than altruism” for testifying for the state. Benn, 283 F.3d 1040, 1058 14 (interpreting Agurs, 427 U.S. at 112, and Bagley, 473 U.S. at 682) (emphasis added). In Benn, a jail-house informant (the “informant-witness”) who shared a cell with the 15 16 defendant when the defendant was awaiting trial for homicide testified on behalf of the 17 prosecution. The prosecution’s case relied heavily on “various inculpatory statements” that 18 defendant had made to the informant-witness. Id. at 1045. The defense tried to undermine the 19 informant-witness’s credibility by establishing that he was receiving a slightly reduced sentence 20 for testifying. Id. at 1058. The defense also attempted to impeach him by eliciting testimony that 21 he was being paid for his testimony, and that the State was paying for his hotel room and food 22 during trial. Id. at 1047. What the defense did not know was that the prosecution failed to 23 disclose “multiple pieces of critical impeachment information that could have been used to 24 undermine the credibility of [the informant], a prosecution witness whose testimony was crucial to 25 the state’s claims[.]” Id. at 1054. This included: (1) repeated unlawful acts by the informant- 26 witness when he was acting as an informant;21 (2) that at one point during the defendant’s trial the 27 28 The state failed to disclose evidence of the jail-house informant’s “persistent misconduct while acting as an informant,” despite the trial judge’s explicit requests that they do so. Id. This 28 21 1 prosecutor arranged for the informant-witness to be released without charge for an unrelated 2 arrest; (3) that the prosecutor’s office declined to charge the informant-witness with burglary 3 during the Benn trial, and arranged to postpone the filing of a warrant against him; and (4) that the 4 informant-witness approached the police a week before the Benn trial claiming he had a videotape 5 showing that the defendant was involved in an unrelated, notorious unsolved murder case, that he 6 was given $150 to produce the tape, that he never did, and that the detectives concluded that the 7 informant-witness was lying about both the tape’s existence and the defendant’s involvement in 8 the other murders. Id. at 1057. United States District Court Northern District of California 9 Benn was convicted. On appeal, the state argued that the evidence that the prosecutor 10 concealed was cumulative and not material because the jury knew that the informant was getting a 11 reduced sentence, which constituted disclosure of benefits that would have independently allowed 12 the jury to decide whether the informant had a motive other than altruism for testifying for the 13 state. Id. The state also contended that the informant-witness was sufficiently impeached by 14 “questions about his history as a paid informant in drug cases, his prior convictions, the reduction 15 in his arson sentence, and the fact that the state was paying his motel and food bills.” Id. The 16 Ninth Circuit rejected those positions. It held that “the number and nature of the undisclosed 17 benefits was such that they would have impeached [the informant-witness] more effectively than 18 the evidence that he was immune from arrest during the trial.” Id. at 1058. The suppressed 19 evidence, the court found, would have “cast a shadow” on the informant-witness’s credibility, and 20 thus, their suppression was material. 21 The fundamental difference between Benn and this case is that in Benn, the multiple 22 failures to disclose were material. Here, the state court identified all the other impeachment 23 evidence that Weissman could—and did—use to contest T.B.’s accusations against Weissman. 24 See supra C.1. It was not unreasonable to determine that the undisclosed impeachment evidence 25 26 27 28 misconduct included: stealing drugs and money during drug busts and lying about it; that a detective had written a deactivation memo about the informant stating that he could no longer work as an informant because he could not be trusted to follow departmental rules; that he had obstruction of justice charges being filed against him; that he had smuggled guns into a prison where he was housed; and that he had perjured himself at trial. Id. 29 1 was far less damaging to T.B.’s credibility than the impeachment evidence that defense counsel 2 used at trial; its suppression did not constitute a Brady violation. The undisclosed benefits for T.B. are not of the same nature or scale as those concealed in United States District Court Northern District of California 3 4 Benn or other similar cases.22 See also e.g. Singh v. Prunty, 142 F.3d 1157 (9th Cir. 1998) 5 (petitioner entitled to federal habeas relief from murder conviction where an evidentiary hearing 6 revealed that the prosecution’s main witness had entered into an agreement to receive benefits in 7 the form of expunged criminal charges in exchange for his testimony against petitioner and that he 8 had probably lied about not using heroin prior to his trial testimony, yet the state appellate court 9 had unreasonably determined that the state’s nondisclosure of this agreement did not violate 10 petitioner’s constitutional rights even though only circumstantial evidence tied petitioner to 11 crime). And the state appellate court here found that Weissman had not explained how the gifts 12 could have affected T.B.’s trial testimony since it was consistent with T.B.’s prior statements 13 about Weissman’s molestation. State Opinion at 39-40. For this reason, the court rejected his 14 contention that the gift evidence provided T.B. with a selfish motive to testify. T.B.’s credibility 15 as a witness was for the jury to decide, and it decided he was credible. This was not an unreasonable application of clearly established federal law. The state 16 17 court’s decision is entitled to AEDPA deference, and the petition is denied on this claim. 18 D. 19 Prosecutorial Vouching 1. Background 20 Weissman’s prosecutorial vouching and corresponding ineffective assistance of counsel 21 claims are based on several comments made by the prosecutor in his rebuttal closing argument. 22 Weissman’s counsel had argued that the victims “changed their story” “after interviews with [the 23 prosecutor].” State Opinion at 29. He told the jury that “[y]ou’ll never know what happened 24 during those interviews . . . [the prosecutor] plants a word, with a suggestion.” Id. He implied 25 that the prosecutor was using improper questioning methods “when he is alone and there is no 26 tape.” Id. at 30. He declared that J.K.’s testimony about the camera and pajama incidents was 27 28 It is worth acknowledging that the prosecutor was unaware of the victim advocate’s provision of the gift card and refurbished laptop until after trial. 30 22 United States District Court Northern District of California 1 suspect because he first revealed these incidents to the prosecutor in an unrecorded interview. Id. 2 He contended that R.A.’s testimony about the erection was suspect because R.A. had “changed” 3 his “story” after a “private” interview with the prosecutor. Id. He asserted that the prosecutor, at 4 trial, “introduce[d] the term ‘sensual’,” to S. and led S. to “repeat[] it back one time.” Id. He 5 “accused the prosecutor of manipulating the witnesses’ memories during the unrecorded 6 conversations.” Answer at 52 (citing 19RT 4689 (J.K.); 19RT 4700 (Charlie); 20RT 4754, 4757 7 (T.B.); 20RT 4759-4761 (R.A.); 20RT 4762, 4765-4766 (S.); 20RT 4763-4771 (witnesses 8 generally)). And finally, he suggested that prosecutor was playing mind games with the jury, 9 making statements like “[the prosecutor] played the same technique on you,” and “[y]ou were 10 being trained,” in reference to the prosecutor’s questioning method. Answer at 53; 20RT 4767- 11 4769 (specifically, counsel stated that the prosecutor’s questioning method was “like . . . training 12 little white rats in a Skinner box. You push the little lever and get the pellet. Mr. Moore got the 13 information.”) Id. 14 The prosecutor responded to the attack: “And today, apparently, evil me with my devil horns is coming in here and playing with my lab rats—which I apologize if anyone got that impression. That wasn’t really what I was doing in the slightest.” . . . “The claims of influence on T[.B.], again, [defense counsel] is asking you to speculate about a witness that didn’t show, that you have no evidence about any conversation, and from that you are supposed to infer something. [¶] Here is all I do know: whatever influence that was claimed, T[.B.] denied. There was no changing or controlling of his mind. He didn’t become a lab rat that got manipulated . . . I wasn’t in his mind. No one was pressuring him.” State Opinion at 30. 15 16 17 18 19 20 21 22 23 24 25 Concerning S.’s testimony, the prosecutor argued: “I know he wants to blame me for the word ‘sensual touch.’ I am the one that, again, controlled his mind and controlled your mind, and I’m going to take over the universe with my evil powers.” Id. at 30-31. Weissman claims that the prosecutor’s statements constitute vouching because the prosecutor “[told] the jury about his own role in the unrecorded interviews, essentially testifying without cross-examination in his closing argument,” and told the jury that he had done nothing 26 wrong. Petition at 55. 27 The state appellate court evaluated this claim pursuant to People v. Linton, 56 Cal. 4th 28 31 1 1146, 1207 (2013). State Opinion at 30-31. The California Supreme Court in Linton held that 2 impermissible vouching occurs when prosecutors attempt bolster their case “‘by invoking their 3 personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in 4 support of it,’” and that it is misconduct for a prosecutor to suggest that evidence that is available 5 to the government, but that is not before the jury, corroborates the testimony of a witness. State 6 Opinion at 31-32. The court determined that Weissman’s “vouching” argument was based on a “strained and United States District Court Northern District of California 7 8 implausible reading of the prosecutor’s remarks,” and found no vouching “whatsoever.” Id. It 9 found that the most reasonable interpretation of the prosecutor’s comments is that he was referring 10 to his direct examination of witnesses at trial, not to anything that had occurred at an unrecorded, 11 pretrial interview that would imply that the prosecutor had some “extra-record knowledge” of 12 witnesses’ truthfulness. Id.; see also United States v. Necoechea, 986 F.2d 1273, 1278 (9th Cir. 13 1993), as amended on denial of reh’g (Apr. 15, 1993). 14 2. Legal standard 15 It is well settled that a prosecutor cannot act as both counsel and witness against a 16 defendant. United States v. Edwards, 154 F.3d 915, 918-924 (9th Cir. 1998); see also Kalina v. 17 Fletcher, 522 U.S. 118, 130 (1997). When such conduct occurs, it can be the basis for voiding a 18 conviction. Id. Improper vouching for the credibility of a witness occurs when the prosecutor 19 places the prestige of the government behind the witness or suggests that information not 20 presented to the jury supports the witness's testimony. United States v. Young, 470 U.S. 1, 7 n.3, 21 11-12 (1985); see also United States v. Parker, 241 F.3d 1114, 1119-20 (9th Cir. 2001). 22 “Prosecutors sometimes breach their duty to refrain from overzealous conduct by commenting on 23 the defendant’s guilt and offering unsolicited personal views on the evidence.” Young, 470 U.S. 24 7-8. To warrant habeas relief, prosecutorial vouching must so infect the trial with unfairness as to 25 make the resulting conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181 26 (1986). 27 28 A prosecutor’s comments must be evaluated in light of the defense argument that preceded it. Id. In order to make an appropriate assessment, “the reviewing court must not only weigh the 32 1 impact of the prosecutor’s remarks, but must also take into account defense counsel’s opening 2 salvo.” Young, 12-13. The Supreme Court has explained that if “the prosecutor’s remarks were 3 ‘invited,’ and did no more than respond substantially in order to ‘right the scale,’ such comments 4 would not warrant reversing a conviction.” Id. at 13. There is no bright-line rule about when vouching will result in reversal. Courts “consider a United States District Court Northern District of California 5 6 number of factors including: the form of vouching; how much the vouching implies that the 7 prosecutor has extra-record knowledge of or the capacity to monitor the witness's truthfulness; any 8 inference that the court is monitoring the witness’s veracity; the degree of personal opinion 9 asserted; the timing of the vouching; the extent to which the witness’s credibility was attacked; the 10 specificity and timing of a curative instruction; the importance of the witness’s testimony and the 11 vouching to the case overall.” Necoechea, 986 F.2d at 1278. 12 3. Analysis I agree with the state court’s analysis that what the prosecutor said did not constitute 13 14 vouching at all, and it was certainly not vouching to such a degree that it infected the trial with 15 unfairness. The prosecutor’s comments did not “invoke[e] [his] personal prestige, reputation, or 16 depth of experience, or the prestige or reputation of [his] office,” in support of his case. Instead, 17 they responded to the defense counsel’s accusations that he was manipulating witnesses and 18 jurors. The closest the prosecutor came to improperly vouching for his witnesses was the 19 statement, “I wasn’t in his mind. No one was pressuring him[,]” in reference to T.B. State 20 Opinion at 30. In light of the preceding defense argument, the prosecutor’s comments were 21 understandable; they did not infect the trial to such a degree as to make the conviction a denial of 22 due process. Weissman is not entitled to federal habeas relief under a prosecutorial vouching 23 theory.23 24 25 26 27 28 23 Because the state appellate court concluded that the prosecutor did not engage in improper vouching whatsoever, it did not address Weissman’s ineffective assistance of counsel argument. Trial counsel cannot be ineffective for failing to raise a meritless objection. Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005). Because the prosecutor did not engage in improper vouching as it is understood by the federal courts, Weissman’s defense counsel was not prejudicially deficient in failing to object. 33 II. 1 INEFFECTIVE ASSISTANCE OF COUNSEL A. Failure to Object to Improper Reference to Sexual Orientation 2 1. 3 Background At trial, Weissman’s defense counsel argued that there was nothing wrong with children 4 being in bed with their parents, and that in some poor families, everyone sleeps in the same bed. 5 20RT 4792. This was in defense of the evidence that Weissman would sometimes sleep in the 6 7 same bed as some of the accusers. Rebutting this argument, in closing, the prosecutor said: “Mr. Weissman is not a parent. These aren’t his children. There wasn’t just one bed in the house . . . 8 [a]nd I raise that because . . . there [is] obviously a difference when parents are sleeping with 9 their child, the mother and father are in a committed heterosexual relationship. There is a 10 child that is an offspring . . . but if you are talking about a 50-year-old stranger . . . who pulls in an 11 United States District Court Northern District of California eight-year-old-child . . . and now he is masturbating, well, that changes the circumstantial 12 evidence.” 20RT 4792. (emphasis supplied). 13 14 15 16 Weissman contends that the prosecutor repeatedly told the jury to convict him “because he had lied about being ‘heterosexual’ and his ‘heterosexuality’ . . . and because [his] conduct with children was ‘differen[t] because he was not in a ‘committed heterosexual relationship.’” Petition at 40; see also 20RT 4792. He claims that these arguments were “plainly improper and 17 misconduct because they were not based upon evidence at trial, but upon outdated stereotypes and 18 19 discriminatory arguments that associate gays and lesbians with pedophilia.” Id. Weissman asserts that these arguments constituted federal constitutional error in that they “diminish[ed] the 20 personhood of gays and lesbians in violations of the federal constitutional rights to due process, 21 equal protection, and a fair trial.” Id. He claims that his defense counsel was prejudicially 22 deficient in not objecting to these arguments, and that the state appellate court was unreasonable in 23 finding otherwise.24 24 25 26 27 28 In support of Weissman’s petition, the law firm Jenner & Block LLP, the National Center for Lesbian Rights, and Lambda Legal submitted an amicus brief arguing that I should evaluate the prosecution’s closing statements in light of the history of lesbian, gay, bisexual, transgender and queer (“LGBTQ”) people being “falsely stigmatized as sexual threats to children.” See Brief of Amici Curiae (“Amicus Brief”) [Dkt. No. 18-1]. The amici point to several California state court cases that show the evolution of this area of legal protection. Bound as I am by the confines of AEDPA in reviewing Weissman’s habeas petition, my duty is to consider whether the state 34 24 United States District Court Northern District of California 1 The state court rejected Weissman’s argument on appeal because it found that the 2 prosecutor did not target Weissman’s lack of “heterosexual relationships” or link his intent to his 3 “sexual orientation.” State Opinion at 43. It determined that the prosecutor had addressed 4 Weissman’s lack of any male or female adult sexual relationships, which was not impermissible. 5 Id. at 43-44. Because the court determined that the prosecutor had not acted improperly, it did not 6 decide whether the failure to object to the statements in question constituted ineffective assistance 7 of counsel.25 8 The court pointed out that when the prosecutor questioned witnesses, he asked if 9 Weissman had “an intimate partner relationship with a man or a woman” and asked if Weissman 10 had “any consistent adult company” or “an adult relationship” that was “male or female.” Id. at 43. 11 The prosecutor also asked Weissman’s adopted son, Charlie, whether Weissman had ever been in 12 “a dating relationship” with “any man” or “any woman” or had “any kind of adult romantic 13 relationship” during the 22 years that Charlie had known defendant. Id. at 44. The state court determined that the only time that the prosecutor mentioned “heterosexual” 14 15 relationships was when he argued that Weissman had “expressly represented” himself to the 16 parents of the children he was accused of victimizing as “a heterosexual male” and had similarly 17 represented himself to the police as a heterosexual by lying about Sybill Peters being his 18 girlfriend. State Opinion at 44-45. Among other things, the prosecutor said, “[o]f course there’s 19 lies about his heterosexuality . . .” and “[l]iterally from the word go with the police, he’s ready to 20 use the same lies of ‘I have a heterosexual background. I’m heterosexual. I like women. Your 21 belief that I like boys is unfounded.’” Id. at 44. Overall, the state appellate court was unconvinced by Weissman’s argument that the 22 23 prosecutor had acted improperly. It determined that when the prosecutor was addressing 24 25 appellate court ruled in a way that was unreasonable under or contrary to clearly established federal law as explained by the Supreme Court. Because it did not, I must defer to its decision. 26 25 27 28 Because the state court determined that the prosecutor’s arguments were not improper, it determined that defense counsel’s decision not to object was not deficient and did not reach the question of whether counsel’s failure to object was prejudicial. I examine that finding under the doubly deferential Strickland/AEDPA standard, as discussed later in this Order. If necessary, I would review the question of whether the failure to object was prejudicial de novo. 35 1 Weissman’s sexual orientation, he was only doing so in an effort to illustrate Weissman’s “false 2 representations” that he had been or currently was involved in adult heterosexual relationships. 3 United States District Court Northern District of California 4 2. Legal Standard a. Commentary on Sexual Orientation 5 The Supreme Court has not addressed whether reference to a defendant’s actual or 6 perceived sexual orientation during closing argument in a child molestation case can be prejudicial 7 to the defendant. The Ninth Circuit has held that evidence of homosexuality, particularly in cases 8 involving alleged child molestation, can be extremely prejudicial. United States v. Gillespie, 852 9 F.2d 475, 479 (9th Cir. 1988); see also Cohn v. Papke, 655 F.2d 191, 194 (9th Cir. 1981) 10 (introduction of evidence of homosexuality creates a “clear potential that the jury may have been 11 unfairly influenced by whatever biases and stereotypes they might hold with regard to 12 homosexuals”). When the testimony concerning homosexuality is not elicited as the by-product of 13 neutral cross-examination on legitimate issues, it is more likely to be prejudicial. See Gillespie, at 14 479. But prosecutorial misconduct cannot be established merely because “the prosecutors’ 15 remarks were undesirable or even universally condemned”— the prosecutor’s comments must 16 have “so infected the trial with unfairness as to make the resulting conviction a denial of due 17 process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). 18 19 b. Ineffective Assistance of Counsel A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth 20 Amendment right to counsel, which guarantees not just assistance, but effective assistance, of 21 counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any 22 claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning 23 of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. 24 In order to prevail, a petitioner must establish (1) that counsel’s performance was deficient, i.e., 25 that it fell below an “objective standard of reasonableness” under prevailing professional norms, 26 Strickland, 466 U.S. at 687-88, and (2) that he was prejudiced by counsel’s deficient performance, 27 i.e., that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result 28 of the proceeding would have been different.” Strickland, 466 U.S. at 694; Andrus, 140 S Ct. at 36 1 1881. A reasonable probability is a probability sufficient to undermine confidence in the outcome. 2 Id. Where a petitioner has failed to meet the Brecht standard of harmlessness, discussed earlier in 3 Section I.A.2, the Ninth Circuit has held that the petitioner necessarily “cannot meet the higher 4 Strickland standard of prejudice.” Kipp v. Davis, 971 F.3d 866, 878 (9th Cir. 2020) (citing Kyles, 5 514 U.S. at 435–36). United States District Court Northern District of California 6 AEDPA “erects a formidable barrier to federal habeas relief.” Burt v. Titlow, 571 U.S. 12, 7 13 (2013). The barrier is even more formidable when seeking relief on an ineffective assistance 8 claim. “In fact, even if there is reason to think that counsel’s conduct ‘was far from exemplary,’ a 9 court still may not grant relief if ‘[t]he record does not reveal’ that counsel took an approach that 10 no competent lawyer would have chosen.” Dunn v. Reeves, 141 S. Ct. 2405, 2410 (2021) (quoting 11 Titlow, 571 U.S. at 23-24.) 12 The standards created by Strickland and § 2254(d) are “highly deferential.” Strickland, 466 13 U.S. at 689. “This analysis is ‘doubly deferential’ when, as here, a state court has decided that 14 counsel performed adequately.” Reeves, 141 S. Ct. at 2410; accord Knowles v. Mirzayance, 556 15 U.S. 111, 123 (2009). “[I]n reviewing the work of their peers, federal judges must begin with the 16 ‘presumption that state courts know and follow the law.’” Reeves, 141 S. Ct. at 2411 (quoting 17 Woodford v. Visciotti, 537 U. S. 19, 24 (2002)). “[A] federal court may grant relief only if every 18 ‘fairminded juris[t]’ would agree that every reasonable lawyer would have made a different 19 decision.” Id. (quoting Richter, 562 U. S. at 101.) When § 2254(d) applies, “the question is not 20 whether counsel’s actions were reasonable. The question is whether there is any reasonable 21 argument that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. 22 3. Analysis 23 In light of those standards, the question is whether the prosecutor’s comments about 24 Weissman’s sexual orientation were such that every reasonable defense counsel would have 25 objected to his comments involving Weissman’s sexual orientation. Because the state appellate 26 court found that defense counsel was not deficient in failing to object to the statements in question, 27 its decision is owed double deference. 28 As an initial matter, the state appellate court found that the only times the prosecutor 37 1 referenced Weissman’s sexual orientation were in the context of pointing out inconsistencies 2 between how Weissman portrayed himself to children and their parents and what the truth was. 3 Supra D(2). But the court did not discuss the statement quoted in the first paragraph of the 4 Background section, which Weissman identifies as the “perhaps most egregious[]” instance of 5 improper reference to sexual orientation. Petition 45:24-28. Weissman argues that this comment 6 was particularly improper because it suggested that Weissman’s lack of a “‘committed 7 heterosexual relationship’” “made him different.” Petition 45:24-28. The context of the prosecutor’s argument shows that he was differentiating between a 8 United States District Court Northern District of California 9 non-family member adult male sleeping in the same bed as a young boy and a parent sleeping with 10 their child in the same bed. That is a fair contrast. It was not targeted at homosexuality or non- 11 heterosexual relationships, and it did not rise to such a level of impropriety that defense counsel’s 12 performance “fell below the objective standard of reasonableness” in not objecting to it. There is no clearly established federal law holding that prosecutors cannot comment on 13 14 how a defendant held themselves out to be a heterosexual in an effort to gain the trust of children 15 or children’s parents. The cases Weissman relies upon—United States v. Gillespie, 852 F.2d 475, 16 479 (9th Cir. 1988), and Cohn v. Papke, 655 F.2d 191, 194 (9th Cir. 1981)—concerned very 17 different circumstances and are distinguishable on both the facts and the law. Both cases involved 18 prosecutors introducing evidence of defendants’ homosexuality as proof that they could commit 19 the offenses of which they were accused.26 20 21 22 23 24 25 26 27 28 26 Weissman also draws many comparisons between this case and Zapata v. Vasquez, 788 F.3d 1106 (9th Cir. 2015), which held that a prosecutor’s use of inflammatory, biased words in closing argument was misconduct, and that defense counsel’s failure to object was prejudicial ineffective assistance of counsel. This case differs markedly from Zapata. There, the prosecutor invented racial slurs that he claimed the defendant had shouted at a homicide victim before he killed him, and repeatedly used those slurs in closing, asking the jury to “imagine” that those were the last words they heard before they were killed. The Ninth Circuit found ineffective assistance of counsel for failure to object to remarks that were “fabricated from whole cloth,” and “designed to inflame the passions of the jury.” Id. at 1115-16. The Supreme Court has held that “the Constitution prohibits racially biased prosecutorial arguments,” see McClesky v. Kemp, 481 U.S. 279, 309 n. 30 (1987), but has never held the same for prosecutorial arguments that are biased against non-heterosexuals. The Court has also found no prosecutorial misconduct despite extremely inflammatory statements by prosecutors in closing arguments comparing defendants to animals and stating that the prosecutor wished that the defendant were dead. See Darden v. Wainwright, 477 U.S. 168 (1986) (where the Court found no 38 1 Weissman leans on United States v. Gillespie for the principle that introduction of 2 evidence of a defendant’s homosexuality is federal constitutional error. Petition at 43. Weissman 3 appears to argue this is the same kind of error that occurred in his case and is the type against 4 which his defense counsel should have raised an objection. In Gillespie, the defendant was convicted of causing the transportation of a person—a United States District Court Northern District of California 5 6 three-year-old girl—in interstate and foreign commerce for illegal sexual purposes, and indirectly 7 importing an alien for immoral purposes. The trial court admitted various witnesses’ testimony 8 indicating that the defendant and another man had a homosexual relationship. There was no 9 connection between that fact and the underlying offenses. This error was compounded by the 10 admission of expert testimony on characteristics “common to child molesters,” as well as expert 11 testimony that lacked scientific reliability concerning play therapy with anatomically correct dolls. 12 The Ninth Circuit reversed. 13 On appeal, the government had argued that the prosecutor had presented evidence that the 14 two men slept in the same bed not to show that the defendant was more likely to sexually abuse a 15 child because he was a homosexual, but to show motive or intent. The Ninth Circuit determined 16 that admission of the evidence was not justified under Rule 404(b) because the evidence of 17 homosexuality neither proved nor disproved that the defendant molested the child, yet the 18 government repeatedly asked pointed questions over objections about the two men’s sleeping 19 arrangement.27 And since evidence of homosexuality can be very prejudicial, see Cohn v. Papke, 20 655 F.2d 191, 194 (9th Cir. 1981), and the verdict depended upon the jury’s assessment of the 21 defendant’s credibility and character, the prosecutor’s conduct was not harmless error. Gillespie, 22 852 F.2d at 479. 23 24 prosecutorial misconduct despite the prosecutor’s statement in closing argument expressing his desire to “see [the defendant] sitting here with no face, blown away by a shotgun”). 25 27 26 27 28 The Ninth Circuit rejected the government’s argument that admission of the evidence of homosexuality was harmless because the trial court gave a limiting instruction, stating that the case was “centered around the appellant’s denial of . . . eyewitness testimony,” and for that reason “[t]he verdict probably depended on the jury’s assessment of the credibility and character of the appellant and [the eyewitness].” Gillespie, 852 F.2d at 479. Under such circumstances, the court concluded, the trial court’s curative instruction to the jury was “not sufficient to obviate the prejudice[,]” making the admission of evidence of homosexuality not harmless error. Id. 39 United States District Court Northern District of California 1 Weissman also relies on Cohn v. Papke, 655 F.2d 191 (9th Cir. 1981). Cohn brought a 2 civil rights action against police officers who had arrested him on the charge that he had solicited 3 an officer to engage in a homosexual act. During trial, the police officers’ counsel asked Cohn, 4 “By the way, Mr. Cohn, are you bisexual?” He sought to elicit testimony concerning Cohn’s prior 5 sexual experiences and to submit psychiatric reports concerning those experiences and Cohn’s 6 sexual preferences. Id. at 192. The basis for this, according to that counsel, was to impeach 7 Cohn’s claim that he was not homosexual or bisexual and therefore not “physically capable” of 8 committing a homosexual act. Id. at 193. But at no point in the trial had Cohn claimed to be 9 heterosexual, nor had he claimed that he could not have solicited the sex act. The Ninth Circuit 10 found that the only reason for introducing the evidence was to show that it was within his 11 character as a homosexual to solicit sex acts from a male police officer, which made it improper 12 under Rule 404 of the Federal Rules of Evidence. And the evidence should have been excluded 13 under Rule 403 because its probative value was substantially outweighed by the danger of unfair 14 prejudice. There was “clear potential that the jury may have been unfairly influenced by whatever 15 biases and stereotypes they might hold with regard to homosexuals or bisexuals[.]” Id. at 194. 16 In this case, the state court reasonably determined from the record that it was Weissman 17 who introduced his sexuality in order to establish credibility with the parents of his victims. State 18 Opinion at 44-45. It was relevant for the prosecutor to point out that he had no known adult 19 romantic relationships, male or female. He was not raising an irrelevant claim of homosexuality, 20 as in Gillespie, or an arguably irrelevant and obviously prejudicial claim, as in Cohn. Evidence of 21 homosexuality is what the Ninth Circuit has found objectionable in closing argument and 22 elsewhere. See Gillespie, 853 F.2d 475, 479; Cohn, 655 F.2d 191, 194. In this case, the 23 prosecutor did not introduce evidence of homosexuality at all. And his statement about 24 heterosexuality in closing was a minor part of his argument in any event. Gillespie and Cohn do 25 not support Weissman’s claim. 26 Given the deference owed to the state court under AEDPA, and double deference owed 27 given its finding that defense counsel did not perform deficiently, Weissman is not entitled to 28 federal habeas relief on this claim. 40 B. 1 1. 2 3 Failure to Investigate Records of T.B.’s Arrest Facts On July 6, 2016, about three weeks before jury selection in Weissman’s trial, 13-year-old T.B. was arrested in Fresno County for stealing a purse from his foster mother’s niece. State 4 Opinion at 40. He admitted to taking the purse, was charged by Fresno County with felony grand 5 theft, and the charge was dismissed 19 days later per the request of the probation department. Id. 6 The prosecutor apparently learned at some point before trial about the Fresno County case from a 7 8 Santa Cruz County social worker, at which point he informed Weismann’s trial counsel about the “outstanding theft case” against T.B. Id. 9 During trial, Weissman’s trial counsel raised several concerns about T.B.’s ability to tell 10 the truth. On August 16, 2016, the trial court determined that a hearing outside the presence of the 11 United States District Court Northern District of California jury was necessary to determine whether T.B. should be allowed to testify. Dkt. No. 9-5, Ex. 2, 12 808-892. The primary reason for this hearing was so that the court could evaluate how T.B. was 13 14 15 16 17 going to describe certain events. The court was concerned with T.B.’s capacity to testify clearly in front of a trier of fact, particularly given T.B.’s history with hallucinations and antipsychotic medications. While discussing whether to hold the hearing, Weissman’s counsel also told the court that T.B. was “recently arrested and we don’t know what for and we have to look at whether or not there is evidence that would be admissible for impeachment purposes.” State Opinion at 40- 18 41; Dkt. No. 9-5, Ex. 2, 808-892. The court acknowledged this, among the other concerns 19 20 21 Weissman’s counsel and the court itself had raised, and ordered the hearing. Throughout the course of the hearing, T.B. was examined on various topics by Weissman’s lawyer but was not asked about the arrest.28 22 Although T.B. was impeached in several ways at trial, Weissman’s counsel did not ask 23 T.B. about the arrest. Id. In his new trial motion, Weissman asserted that his counsel had been 24 25 prejudicially deficient in failing to raise issues about T.B.’s arrest as impeachment. The trial court found that the jury’s rejection of the other strong challenges to T.B.’s credibility meant that the 26 27 28 The Section 402 hearing that the trial court held to investigate T.B.’s credibility was held outside the presence of a jury. 41 28 1 2 On appeal, the state court evaluated Weissman’s claims under the Strickland standard. See 3 State Opinion at 42-43. The court decided: The record in this case does not establish that it was an unreasonable strategic choice for defendant’s trial counsel to decide not to pursue further investigation of T.B.’s arrest for theft. Defendant’s trial counsel chose to concentrate his impeachment of T.B.’s testimony on T.B.’s history of lying and hallucinations. Evidence that 13-year old T.B. had stolen from his foster mother and her niece would not have added anything of significance to this impeachment. For the same reason, defendant cannot establish that his trial counsel’s choice was prejudicial. Our confidence in the outcome is not shaken by the absence of this impeachment evidence, which was minor in comparison to the other evidence used to impeach T.B. Answer Ex. 6 at 43. 4 5 6 7 8 9 10 11 United States District Court Northern District of California trial counsel’s decision not to present the theft evidence was reasonable. 12 13 2. Legal Standard See Section II.A.2.b, above. 3. Analysis Weissman argues that his counsel’s failure to investigate was not a sound tactical decision: 14 it is “well-settled that although courts defer to reasonable strategies of defense counsel, counsel 15 has the ‘duty to make reasonable investigations or to make a reasonable decision that makes 16 particular investigations unnecessary[,]’”. Petition at 64 (quoting Strickland, 466 U.S. at 691); see 17 also Weeden v. Johnson, 854 F.3d 1063, 1070 (9th Cir. 2017) (“Counsel cannot justify a failure to 18 investigate simply by invoking strategy.”) 19 Weissman overreads Strickland. It involved a claim of ineffective assistance of counsel 20 based on failure to investigate but it did not create a bright-line rule dictating how counsel should 21 approach investigations. The relevant inquiry is not what counsel could have done, but rather 22 whether the choices made by counsel were reasonable. As already noted, judicial scrutiny of 23 counsel's performance must be highly deferential, and a court must indulge a strong presumption 24 that counsel's conduct falls within the wide range of reasonable professional assistance. See 25 Strickland, 466 U.S. at 689. The analysis here is doubly deferential because the state court found 26 that defense counsel performed adequately. See Reeves, 141 S. Ct. at 2410; accord Knowles v. 27 Mirzayance, 556 U.S. 111, 123 (2009). 28 The state appellate court determined that the record did not show that it was an 42 1 unreasonable strategic choice for Weissman’s trial counsel to forego further investigation of T.B.’s 2 arrest for theft. State Opinion at 43. It would have taken defense counsel a significant amount of 3 time and resources to obtain more information about T.B.’s arrest through the juvenile court 4 system, see 5CT 1048, 1073, and counsel had access to many other sources of impeachment that 5 he could use during T.B.’s cross examination. State Opinion at 43. He chose to concentrate his 6 impeachment of T.B.’s testimony on the boy’s history of lying and hallucinations. Id. Particularly 7 given the nature of the charges, and the kind of impeachment that Weissman’s counsel sought, this 8 was a reasonable choice; “every fairminded juris[t]” would not agree that every reasonable lawyer 9 would have made a different decision, and Weissman points to nothing that suggests otherwise. 10 See Dunn v. Reeves, 141 S. Ct. at 2411. It was not unreasonable under or contrary to federal law for the state appellate court to United States District Court Northern District of California 11 12 conclude that Weissman’s trial counsel did not provide him with ineffective assistance when he 13 chose not to investigate T.B.’s theft charge further. It is owed deference under AEDPA. For that 14 reason, I will not reach the question of prejudice. Weissman is not entitled to federal habeas relief. 15 III. OMISSION OF MULTIPLE VICTIM ENHANCEMENT INSTRUCTION 16 1. Background Weissman claims, separately from his prosecutorial misconduct and ineffective assistance 17 18 of counsel claims, that the trial court’s failure to give any instruction defining the elements of 19 multiple victim enhancement was structural error, and that the state appellate court’s holding to 20 the contrary was clearly unreasonable. Petition at 66:7-9.29 The trial court did not instruct the jury with CALCRIM No. 3181 or give any other 21 22 instruction on the multiple victims circumstance allegation, yet the jury returned a verdict on the 23 multiple victims circumstance: “‘We, the jury in the above-entitled case, having found the 24 defendant guilty of felony offenses in violation of Penal Code section section [sic] 288 subdivision 25 (a), as described in Penal Code section 667.61 (c), find the special allegation that the defendant 26 committed an offense against more than one victim, to be TRUE pursuant to Penal Code Section 27 28 This claim only affects the enhancements to Weissman’s convictions, not the convictions themselves. 43 29 1 667.61 (b) (c) (e).’” Petition at 67:7-11, Ex. A at 52. CALCRIM No. 3181 states: If you find the defendant guilty of two or more sex offenses, as charged in Counts <insert counts charging sex offense[s] from Pen. Code, § 667.61(c)>, you must then decide whether the People have proved the additional allegation that those crimes were committed against more than one victim in this case. The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved. . . The court has a sua sponte duty to give this instruction on the sentencing factor when charged. 2 3 4 5 6 7 CALCRIM No. 3181 Sentencing Factors - Multiple Victims (Pen. Code, § 667.61 (e) (4)). United States District Court Northern District of California 8 The trial court found that its omission of this instruction was inadvertent. After Weissman 9 raised the issue in his motion for new trial, the trial court ruled that despite the omission, “[t]here 10 was no confusion as to the jury’s findings regarding multiple victims . . . [e]ven looking at this in 11 the worst light . . . it was harmless error.” 25RT 6010-6011. The state appellate court agreed. It 12 wrote: 13 14 15 16 17 18 19 Defendant contends that the court’s failure to instruct on the multiple victims circumstance was a “structural” error that requires reversal per se. Yet he identifies no basis for deeming this instructional error structural. The multiple victims circumstance was properly charged, and the jury returned a proper verdict on it. The verdict form itself required the jury to make precisely the findings that the instruction would have required it to make. We can see no basis for finding the error structural. The very simple instruction omitted by the trial court would not have required the jury to do anything more than the verdict form required it to do. The trial court’s error was harmless beyond a reasonable doubt. State Opinion at 53. 2. Legal Standard A jury instruction that omits an element of an offense is constitutional error subject to 20 “harmless error” analysis. See Neder v. United States, 527 U.S. 1, 8-11 (1999) (direct review); 21 Evanchyk v. Stewart, 340 F.3d 933, 940 (9th Cir. 2003) (§ 2254 case). Harmless error applies 22 whether the error is characterized as a misdescription of an element of an offense in a jury 23 instruction or as an omission of the element. See California v. Roy, 519 U.S. 2, 5 (1996) 24 (omission of “intent” element from aiding and abetting instruction subject to harmless error 25 analysis where jury could have found intent based on evidence it considered). 26 The omission of an instruction is less likely to be prejudicial than a misstatement of the 27 law. See Walker v. Endell, 850 F.2d at 475-76 (citing Henderson v. Kibbe, 431 U.S. 145 (1977)). 28 Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an 44 1 “‘especially heavy burden.’” Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting 2 Henderson, 431 U.S. at 155). The significance of the omission of such an instruction may be 3 evaluated by comparison with the instructions that were given. Murtishaw v. Woodford, 255 F.3d 4 926, 971 (9th Cir. 2001) (quoting Henderson, 431 U.S. at 156); see id. at 972 (due process 5 violation found in capital case where petitioner demonstrated that application of the wrong statute 6 at his sentencing infected the proceeding with the jury's potential confusion regarding its 7 discretion to impose a life or death sentence). 8 United States District Court Northern District of California 9 The omission will be found harmless unless it “‘had substantial and injurious effect or influence in determining the jury’s verdict.” Roy, 519 U.S. at 4 (quoting Brecht, 507 U.S. at 637); 10 see Roy v. Gomez, 108 F.3d 242, 242 (9th Cir. 1997) (on remand after California v. Roy). A 11 habeas petitioner is not entitled to relief unless that Brecht standard is met. Brecht, 507 U.S. at 12 637 ((quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In other words, state 13 prisoners seeking federal habeas relief may obtain plenary review of constitutional claims of trial 14 error, but are not entitled to habeas relief unless the error resulted in “actual prejudice.” Id.; see, 15 e.g. Coleman v. Calderon, 210 F.3d 1047, 1051 (9th Cir. 2000) (finding Brecht error where “at the 16 very least, we ‘cannot say with fair assurance . . . that the judgment was not substantially swayed 17 by the [instructional] error.’”). 18 Where the trial court simply fails to alert the jurors that they must consider an element of 19 the crime, the omission is harmless if review of the facts found by the jury establishes beyond a 20 reasonable doubt that the jury necessarily found the omitted element. See Uchimura v. United 21 States, 125 F.3d 1282, 1287 (9th Cir. 1997) (applying plain error analysis on direct review of a 22 federal criminal conviction); see, e.g., Neder, 527 U.S. at 15-20 (error harmless because “the 23 omitted element was uncontested and supported by overwhelming evidence”); see also Hedgpeth 24 v. Pulido, 555 U.S. 57, 61 (2008) (positively referencing Neder for the principle that harmless- 25 error analysis applies to instructional errors so long as the error does not categorically “‘vitiat[e] 26 all the jury’s findings.’”). 27 28 Ultimately, the proper question in assessing harm in a habeas case is: “‘Do I, the judge, think that the error substantially influenced the jury’s decision?’” O'Neal v. McAninch, 513 U.S. 45 1 432, 436 (1995). If the court is convinced that the error did not influence the jury, or had but very 2 slight effect, the verdict and the judgment should stand. Id. at 437. If, on the other hand, the court 3 is not fairly assured that there was no effect on the verdict, it must reverse. 4 5 The appellate court’s holding was not contrary to clearly established federal law governing 6 the omission of an element of an offense from jury instructions. Weissman claims that “the 7 complete failure to instruct on the elements of the multiple victim enhancement was structural 8 error,” but as the Supreme Court held in Neder and reaffirmed in Hedgpeth, most instructional 9 errors are not structural, so long as the error does not “vitiat[e] all of the jury’s findings.” 10 United States District Court Northern District of California 3. Analysis Hedgpeth, 555 U.S. at 61; see also Neder, 527 U.S. at 15-20. 11 The omission here did not vitiate the jury’s findings. The missing instruction would have 12 told the jury that the State must “prove the additional allegation that [the] crimes were committed 13 against more than one victim in this case” and it must prove that “beyond a reasonable doubt.” 14 The jury had already received an instruction from the trial court that “whenever [the trial court] 15 tell[s] you the People must prove something, I mean they must prove it beyond a reasonable 16 doubt.” 19RT 4528. The verdict form asked whether Weissman had committed crimes against 17 more than one victim. The jury found that Weissman had committed violations of the Penal Code 18 section to which the instruction would have applied, (§ 288(a)), against multiple victims. It came 19 to its conclusions using the trial judge’s prior instruction and its finding that Weissman had 20 committed violations against multiple victims. 21 In his petition, Weissman points to Apprendi v. New Jersey, 530 U.S. 466 (2000) and its 22 progeny to argue that the Sixth Amendment right to a jury finding on elements requires that any 23 fact that increases punishment must be found by a jury beyond a reasonable doubt, regardless of 24 whether that fact is part of the crime or whether it is an “enhancement.” See also Alleyne v. United 25 States, 570 U.S. 99, 109 (2013); Blakely v. Washington, 542 U.S. 296, 303-306 (2004). The state 26 court’s holding is not contrary to or an unreasonable interpretation of those cases because the state 27 appellate court reasonably held that the jury did find beyond a reasonable doubt that Weissman 28 had violated § 288(a) against multiple victims and did so by making the precise findings on the 46 1 verdict form that CALCRIM 3181 would have instructed them to do. 3CT 684. The state court 2 reasonably found that the other instructions given by the trial court were sufficiently clear that the 3 omission of the instruction was harmless error. 4 5 possibility for fair minded agreement. On the record, it was not unreasonable or contrary to 6 federal law for the state court to find the omission harmless error under Chapman. The error did 7 not have substantial and injurious effect on the jury’s verdict, meaning that the omission did not 8 exceed the harmless error standard set out by Brecht. And since federal habeas relief for omission 9 of an instruction is only available if the petitioner shows prejudice under Brecht, Weissman is not 10 11 United States District Court Northern District of California The state court’s decision was not so lacking in justification that it was beyond any 12 entitled to federal habeas relief. IV. PREJUDICIAL CUMULATIVE ERRORS Petitioner contends that the multiple constitutional errors were cumulatively prejudicial 13 and the state court’s contrary finding was unreasonable, because the errors at least cumulatively 14 had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 15 U.S. at 637. I disagree. 16 17 1. Background The state court rejected Weissman’s prejudicial cumulative error claim, stating only the 18 following: “Defendant claims that we should reverse due to cumulative prejudice. However, 19 except for the Napue error that requires reversal of nine counts, we have found no other significant 20 errors that caused any prejudice. Consequently, we reject his cumulative prejudice argument.” 21 State Opinion at 51. The question, pursuant to AEDPA’s rules governing federal habeas review, 22 is whether the state court reached a conclusion that was unreasonable or contrary to clearly 23 established Supreme Court law—here, Chambers v. Mississippi, 410 U.S. 284 (1973). 24 25 2. Legal standard The Supreme Court has clearly established that the combined effect of multiple trial court 26 errors violates due process where it renders the resulting criminal trial fundamentally unfair. 27 Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers, 410 U.S. at 298). The 28 cumulative effect of multiple errors can violate due process even where no single error rises to the 47 1 level of a constitutional violation or would independently warrant reversal. Chambers, 410 U.S. at 2 290. “Under traditional due process principles, cumulative error warrants habeas relief only 3 where the errors have so infected the trial with unfairness as to make the resulting conviction a 4 denial of due process.” Parle, 505 F.3d at 927 (internal quotation marks omitted). Such 5 “infection” occurs where the combined effect of the errors had a “substantial and injurious effect 6 or influence on the jury’s verdict.” Brecht, 507 U.S. at 637 (internal quotations omitted). United States District Court Northern District of California 7 Cumulative error is more likely to be found prejudicial when the government’s case is 8 weak. See U.S. v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996); see, e.g. United States v. 9 Preston, 873 F.3d 829, 846 (9th Cir. 2017) (noting the government’s case “hinged almost entirely 10 on [the victim’s] testimony with “little additional proof to corroborate his allegations”). There can 11 be no cumulative error when there has not been more than one constitutional error. United States 12 v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012). 13 When a state court decides that there was no prejudicial cumulative error, a federal habeas 14 court should review that decision “to determine whether the decision of the state court was an 15 objectively unreasonable application of Chambers v. Mississippi . . . Taylor v. Kentucky . . . or 16 other relevant Supreme Court precedent.” Parle v. Runnels, No. 05-16610, 177 Fed. Appx. 759 17 (9th Cir. 2006) (unpublished). 18 19 3. Analysis The state appellate court’s conclusion that no prejudicial cumulative error occurred is not 20 unreasonable under or contrary to clearly established federal law. Weissman’s case is very 21 different than cases where the Supreme Court and other courts in this circuit have found 22 prejudicial cumulative error. 23 Chambers v. Mississippi was the first cumulative-error decision by the Supreme Court. 24 The case arose after a police officer was shot and killed. Chambers, 410 U.S. at 285. When he 25 was shot, but before he died, the officer appeared to fire his weapon at Chambers, hitting him in 26 the head and neck. Id. at 287. The prosecutor accused Chambers of shooting the officer and 27 charged him with murder; Chambers pleaded not guilty, stating that he had not fired any shots. Id. 28 Later, a third party claimed that he had been the one to shoot the officer, not Chambers; he stated 48 1 as much in a signed, voluntary confession. Id. Then, in court, the third party repudiated his 2 confession. Chambers’ defense was that he had not shot the officer, the third party had. Id. at 3 287-88. But throughout the course of the trial, the state court prevented Chambers from advancing 4 that theory. It refused to allow him to cross-examine the third party and prevented him from 5 introducing witness testimony swearing that the third party had admitted to shooting the officer. It 6 told the jury to disregard other exculpatory witness testimony. Id. at 288-92. The Supreme Court held that Chambers’ right to due process of law was violated by the United States District Court Northern District of California 7 8 collective impact of not being able to cross-examine the third party and being prevented from 9 introducing exculpatory testimony. Id. at 294-95. It focused on the fundamental nature of the 10 right of the accused to present witnesses in his own defense. It was careful to emphasize that its 11 decision did not establish any new principles of constitutional law or signal a diminution in respect 12 for the States’ criminal trial procedures, but rather “quite simply . . . under the facts and 13 circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.” Id. at 14 303. 15 The child molestation cases where courts have found prejudicial cumulative error pursuant 16 to the standard set by the Supreme Court in Chambers typically involve far less corroborating 17 evidence, more prejudicial prosecutorial misconduct or trial court error, and much stronger 18 evidence of prejudice than in this case. For instance, in United States v. Preston, where defendant 19 was convicted on two counts of aggravated sexual abuse of a child, the evidence against the 20 defendant was notably weak and the trial errors were extreme. 873 F.3d 829 (9th Cir. 2017). 21 There, the defendant was an assistant baseball coach who arranged for a young boy, Rosenberg, 22 whom he knew from his neighborhood, to join his team. Id. at 833. Rosenberg would sometimes 23 stay overnight at the defendant’s house. Id. As an adult, Rosenberg told his mother and a 24 therapist, separately, that the defendant had molested him during those sleepovers, but provided no 25 details. Id. When an investigation was launched into the accusations, Rosenberg told FBI agents 26 details about the alleged molestation; defendant denied the allegations. Id. At trial, the only direct 27 evidence offered to the jury was Rosenberg’s testimony. The defendant did not testify. Id. The 28 jury found him guilty on two counts. 49 United States District Court Northern District of California 1 On a petition for federal habeas relief, the Ninth Circuit reversed because of the cumulative 2 effect of several significant trial errors. Three of the most significant were: (1) a therapist offered 3 her “professional opinion” that Rosenberg was not lying about the sexual abuse, bolstering his 4 credibility, and also opined on the credibility of sex abuse allegations against men in general; (2) 5 defendant’s ex-wife testified that she had witnessed defendant masturbating while looking at a 6 photograph of his eight-year-old stepson five years after he had allegedly abused Rosenberg; and 7 (3) the prosecutor commented in closing argument on the defendant’s failure to testify in violation 8 of clearly established Supreme Court law protecting a criminal defendant’s Fifth Amendment right 9 against self-incrimination. Id. at 837-39. Because the verdict in Preston hinged entirely on 10 whether the jury believed Rosenberg’s testimony, the court determined that the cumulative error 11 was prejudicial because three of the errors involved statements asserting or implying that 12 Rosenberg’s testimony was true, and the other errors involved statements asserting or implying 13 that the defendant’s denial was false. 14 In contrast, the case against Weissman did not hinge on the testimony of a single child. It 15 hinged on (i) the testimony of several children, all of whom provided similar accounts of the 16 nature of their relationships with Weissman, (ii) the corroborating evidence from those children 17 telling their parents about Weissman’s attacks, and (iii) Weissman’s own admission that he had 18 masturbated in bed with one of the accusers, verifying the boy’s testimony. The types of trial 19 error at issue were not as extreme as the types of error in Preston, or the types of error in 20 Chambers that led federal courts to grant habeas relief. In those cases, and other similar cases, the 21 cumulative errors infected the trial with unfairness to an extent that conviction amounted to a 22 denial of due process. See, e.g. Alcala v. Woodford, 343 F.3d 862 (9th Cir. 2003) (where federal 23 habeas relief was granted in a capital case because defense counsel was prejudicially deficient in 24 failing to call an alibi witness, exclusion of testimony violated petitioner’s right to a fair trial, and 25 admission of irrelevant evidence violated due process). The same is not true here. Weissman had 26 a chance to introduce exculpatory evidence, his accusers were thoroughly examined and even 27 impeached in front of the jury, prosecutorial errors were subject to evidentiary hearings, and the 28 trial court error was minor. 50 1 The state appellate court was not acting unreasonably under or contrary to clearly 2 established federal law when it determined no prejudicial cumulative error had occurred. Federal 3 habeas relief is denied. CONCLUSION 4 5 6 that were contrary to, or involved an unreasonable application of, clearly established federal law, 7 nor did it result in decisions that were based on an unreasonable determination of the facts in light 8 of the evidence presented in the state court proceeding. Accordingly, the petition is DENIED. 9 United States District Court Northern District of California The state appellate court’s adjudication of Weissman’s claims did not result in decisions A certificate of appealability will issue. Reasonable jurists could “find the district court’s 10 assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 11 484 (2000). Weissman may seek a certificate of appealability from the Ninth Circuit Court of 12 Appeals. 13 The Clerk shall enter judgment in favor of respondent and close the file. 14 IT IS SO ORDERED. 15 Dated: December 21, 2023 16 17 William H. Orrick United States District Judge 18 19 20 21 22 23 24 25 26 27 28 51

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