Rodrigues v. Calderon, No. 4:1996cv01831 - Document 397 (N.D. Cal. 2016)

Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 9/6/16. (napS, COURT STAFF) (Filed on 9/6/2016)
Download PDF
Rodrigues v. Calderon Doc. 397 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 JOSE ARNALDO RODRIGUES, 5 Petitioner, 6 7 W.L. MONTGOMERY, Warden, Respondent. ________________________________/ 10 United States District Court For the Northern District of California ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. 8 9 No. C 96-01831 CW On May 27, 1999, Petitioner Jose Arnaldo Rodrigues, a state 11 prisoner incarcerated at California State Prison in Corcoran, 12 California, filed a petition for a writ of habeas corpus asserting 13 forty-seven claims. 14 answer. 15 traverse, Petitioner also seeks discovery and an evidentiary 16 hearing on some of those claims. 17 and Petitioner has filed a response. 18 papers, the Court denies Petitioner’s discovery requests, denies 19 his request for an evidentiary hearing, and denies the petition. On January 11, 2002, Respondent filed an On April 7, 2014, Petitioner filed a traverse. 20 21 In his Respondent has filed a reply, Having considered all of the BACKGROUND I. Statement of facts 22 The following facts are taken from the December 1, 1994 23 opinion of the California Supreme Court on direct appeal from the 24 jury verdict. 25 26 27 28 People v. Rodrigues, 8 Cal. 4th 1060 (1994). 1. The Prosecution Case Epifanio Zavala testified that in May 1987, he was living with his older brother Juan Barragan in an apartment on the second floor of a two-story building at 1100 Sevier in Menlo Park. Zavala was then 19 years old and Barragan was 21. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Although Zavala and Barragan previously worked in restaurants, they did not have jobs the first week of May 1987. Barragan sold small amounts of cocaine and heroin to help make a living. Zavala sometimes helped out by giving drugs to customers. One of those customers was Cynthia Ontiveros, a heroin addict who had bought heroin from the brothers on several occasions. Ontiveros testified to the following. Although she lived in Hayward with her boyfriend, Richard Lopez, she was in love with Juan Garcia. At approximately noon on May 4, 1987, Ontiveros left Hayward to buy some heroin from Zavala at his apartment. Zavala sold her approximately one gram of heroin for $100. After telling Zavala she might come back, Ontiveros returned to Hayward. During the course of the day, Ontiveros injected about half of the heroin and sold the rest. At approximately 5 p.m. that evening, Ontiveros was selling heroin in front of the El Tanampa bar on B Street in Hayward. Garcia drove up in defendant’s car, with defendant in the passenger seat. Garcia asked Ontiveros how he could make some money. Ontiveros told him not to worry about it, that she would find a way. She told Garcia to meet her at the bar later in the evening. Garcia and defendant met Ontiveros at the bar after dark. Ontiveros told Garcia she had a connection from whom they could get drugs, and identified Zavala and Barragan because they were young and naive drug dealers who “weren’t rough.” Ontiveros had never seen the brothers with weapons and had never seen them use or threaten violence in their drug dealing. She thought Garcia and defendant could get drugs from them without a big fight. Ontiveros, Garcia and defendant then planned how to get the drugs from Zavala and Barragan. They agreed that Ontiveros would go to the apartment first because the brothers knew her and would open the door for her. Once the door was open, Garcia and defendant would rush in and scare the brothers into giving up their drugs. Garcia asked Ontiveros if Zavala and Barragan had any weapons, and she responded that she had never seen any and did not think they had any. Ontiveros apparently thought that the brothers might be beaten or roughed up a little bit, but did not expect any further violence. Ontiveros, Garcia and defendant agreed to use defendant’s car, a beige Lincoln, to drive to the brothers’ apartment. Sometime around 11 p.m., Ontiveros, Garcia and defendant arrived at the apartment. Garcia was dressed in black pants, black shoes and a black jacket. Defendant wore a beige longsleeved jacket. Garcia, who was driving, stopped the car on Sevier Street, some seven or eight houses down from the apartment. Ontiveros went to find out who was in the apartment. It was agreed that Ontiveros would let Garcia and defendant know if the brothers were alone. Ontiveros went upstairs to the apartment and knocked on the door. Zavala let her in. Once inside, Ontiveros saw Barragan asleep on the couch but did not see anyone else. Zavala told Ontiveros that he had not expected her to return, 2 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and that he had no more drugs. After some discussion, Zavala indicated he would give her some money for a “date” if she would stay. After agreeing to this, Ontiveros said she was going to tell her friend who was waiting for her in a car. Zavala walked downstairs with Ontiveros, then went to his own car and locked it while she kept walking. Zavala returned to the apartment and waited for Ontiveros. After Zavala went upstairs, Ontiveros walked to defendant’s car. She told Garcia and defendant that the brothers did not have any drugs, but that they did have money. When Garcia asked how much money, Ontiveros replied she did not know, but said they must probably have “a good amount” because Zavala had not yet bought more drugs. Ontiveros, Garcia and defendant agreed to proceed with the plan to rob the brothers, but to get money instead of drugs. Garcia moved defendant’s car to Madera, the next street over, and parked it approximately 20 to 30 feet from Pierce Road. Ontiveros walked to Madera and met Garcia and defendant there. She saw Garcia obtain an object that looked like a crowbar from the trunk of the car, and noticed defendant had a large knife. The three walked together back to the apartment building. As planned, Garcia and defendant went up the back stairs. Ontiveros walked up the front stairs, and knocked on the door. As Zavala let her in, she saw that Barragan was still sleeping on the couch. At that point, Garcia and defendant rushed into the apartment. Garcia hit Zavala with his tire iron and knocked him back onto Ontiveros. Ontiveros became scared and ran back to defendant’s car. She waited in the front seat for several minutes until Garcia and defendant returned. Zavala testified that once inside the apartment, Garcia struck at Zavala’s head repeatedly with a tire iron, forcing him back into the apartment through the living room. Zavala yelled at Barragan to wake up. As Barragan stood up, Zavala saw the second attacker, who was wielding a knife in his left hand, hold his brother up against a wall. Zavala, who at this time was being held to the ground and beaten by Garcia, saw the second attacker trying to stab his brother in the face or throat. After the attacker and Barragan fell to the floor during the struggle, the attacker reached over and stabbed Zavala in the left leg and right foot. During the course of the attack, Garcia said to Zavala: “Calmate cabron, [¿]donde la tienes?” According to Zavala, this translated in English to: “Calm down, damn it, where do you have it?” Zavala answered with a lie, saying “it” was in the closet. He was hoping to have a chance to help his brother if the attacker went to look in the closet. After Zavala responded, however, the man with the knife told Garcia in English to “finish him too.” Garcia stabbed Zavala in the back with the pointed end of the tire iron, penetrating to the bones. At that point, the telephone started ringing and the man with the knife said: “Well let’s get out of here the police might going to come [sic].” As the two assailants fled from the apartment, Zavala could see that the one with the knife had an injured arm. 3 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 After the assailants left, Zavala answered the phone, which had continued to ring. The caller was Maria Vargas, a friend and neighbor from an apartment downstairs. Zavala told Vargas his brother was dead and to call the police. Vargas testified that she immediately dialed 911 from a telephone located next to her bedroom window. As Vargas was reporting the murder, she saw two men come down the apartment stairway and pass by the window. Since a light had been shining on the stairway landing that night, Vargas saw the two men clearly enough to provide the following details. The first was a “dark man” who wore dark clothes, had blood on his left hand, and held his left arm down by his side with his right arm across his chest. After reaching the bottom of the stairs, the man stopped and looked through the window at Vargas and her daughter; he then hurried off toward Pierce Street. The second man was an Hispanic with light skin and straight hair. He was about four steps behind the first man as they came down the stairs. The second man also looked through the window at Vargas as he rushed by. Vanessa Sturns lived in an apartment building next to 1100 Sevier. She testified that shortly after midnight on the morning of May 5, 1987, she got into her car and was beginning to drive to a liquor store when she saw two men in dark clothes climb over a fence into the backyard of her apartment building and walk to Madera. Sturns noticed the men because she had never seen anyone jump that fence before. Because the area was “nicely lit,” she could tell that the two men were Hispanic, and that they were not “Black.” Sturns was approximately one and a half car lengths from the men as she observed them. As Sturns drove off, she saw a car parked on Madera, about five houses up the street. Ontiveros testified that when Garcia and defendant returned to the car, Garcia took the driver’s seat and defendant sat in the passenger side. Defendant had a deep cut on his left forearm. Garcia had blood on his face and hands, but he was not injured. Defendant told Ontiveros to clean the blood off Garcia. As they drove back to Hayward, defendant climbed into the backseat and lay down. He told Ontiveros to look straight and act normal. There was some discussion between Garcia and defendant about the knife, and as they approached a bridge, Ontiveros felt a rush of air as if the rear window had been rolled down. Although she did not see defendant throw the knife out, she did not see the knife in the car again. Ontiveros told defendant not to worry, she would not say anything about what had happened. The three stopped for about half an hour in Hayward while Garcia changed his shirt and defendant changed his pants. Defendant also took his jacket off to wrap his arm, which was bleeding badly. Garcia stayed at that location, and Ontiveros dropped defendant off at his sister’s house in Hayward. Ontiveros then drove to her place. The next day, pursuant to Garcia’s instructions, Ontiveros washed the blood out of the interior of the car. Later on, defendant’s brother, Raymond Rodriguez (hereafter Raymond), came by and retrieved the car. 4 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant’s sister Norma testified that at approximately 4:10 in the morning on May 5, 1987, defendant came to her house and told her he had been working on his car. He asked for a bandage and requested to be taken to Raymond’s house in Oakland. Raymond testified that defendant told him a transmission had fallen on his arm. He acknowledged, however, having testified at the preliminary hearing that although defendant told him to say that the transmission had fallen while the two of them were working on defendant’s car, the two had not actually worked together on the transmission for a week or two before defendant’s arm was injured. When Raymond drove the car back from Ontiveros’s place in Hayward, he had no trouble with the transmission. Raymond took defendant to Highland Hospital at 5:50 in the morning on May 5 to get his arm treated. Dr. William Billings from Highland Hospital testified that although defendant stated that a transmission fell on his left arm, no dirt or grease was found in the wound. Also, the wound appeared to have been caused by a sharp instrument, rather than a blunt one, and was sufficiently clean that the surgery team was able to sew the tissue together fairly precisely and match a tattoo that had been split apart. Hospital records reflected that defendant was left-handed. Officers arriving at the scene of the crime found Barragan lying dead on the floor with a massive pool of blood around his head and neck area. Barragan’s chest was split wide open, and part of his face was hanging off. The officers saw Zavala rolling around on the floor in pain. Zavala had been severely beaten and his face was completely covered with blood. He was also missing several teeth. Zavala lapsed in and out of consciousness, sometimes screaming or moaning about his pain. Zavala was taken to Stanford Hospital, where Detective James Simpson interviewed him at approximately 1:30 or 1:45 a.m. Zavala told him that two male Hispanic assailants and a female named Cyndia were involved. On or about May 17, 1987, Zavala picked Ontiveros out of a photo lineup. Detective Ronald Williams testified that on May 6, 1987, Zavala described the knife wielder as being an Hispanic male adult, 23 to 24 years of age, 5 feet, 9 to 10 inches tall, 160 pounds, straight dark brown hair to his collar, and a very dark complexion. When Williams subsequently showed Zavala a photograph taken of defendant at the time of his arrest on May 28, 1987, Zavala said that the man in the photo looked Black to him, and that the skin tone and hair length in the photo closely resembled the knife wielder as he appeared the night of the murder. A citation issued to defendant on May 2, 1987, gave his weight as 170 pounds, and height as 5 feet, 8 inches tall. On July 19, 1987, a search team found a survival-type knife alongside the freeway in the area where Ontiveros thought defendant had rolled down the rear car window as they drove from the crime scene. The knife had bloodstains both on its blade and hilt and on a capsule contained inside the 5 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 handle. The knife blade was just short of nine inches, with a maximum width of one and one-half inches. Ontiveros, upon being shown the knife, immediately identified it as the one carried by defendant. The forensic pathologist’s autopsy of Barragan disclosed 21 stab and incise wounds consistent with infliction by a large knife-type instrument. Six of the wounds were to the face and head, one of which was a large, irregular, jagged wound in the lip that went through to the anterior part of the neck. There was a six-inch-deep wound in the right leg above the knee. One four-inch-deep stab wound in the chest had cut the rib cartilage in half and sliced the right lung, while another one five inches deep had also damaged the right lung. There was also a large, gaping, complex, eight-inchdeep wound, possibly caused by several thrusts through the same skin hole, that cut the right jugular vein in half and perforated the right lung. The location of the wounds to the torso and upper body was consistent with overhand-type thrusts. Of the 21 wounds, 17 were located on the right side of the body, while 4 were on the left; this was consistent with face-to-face stabbing by a left-handed assailant. The cause of death was loss of blood with air embolism. Three bloody fingerprints, apparently made by the same finger, were found at the crime scene. They had an arch pattern found only in 5 percent of the population, and did not match the prints of the victims, the suspects or those persons whose presence at the scene was logged. A smeared set of comparison prints for James Williams, a tenant in a nearby unit, showed an arch pattern, but Williams could not be located to make a further comparison. An examination of defendant’s car disclosed one of Garcia’s fingerprints, but none of defendant’s. However, on the back of the front seat backrest, police found a partial shoe print that had the same class characteristics as a pair of shoes belonging to defendant. Those shoes indicated the presence of blood in two spots. Prosecution criminalist Elizabeth Skinner performed a blood-typing analysis, and determined that Zavala and Barragan both had type A blood, differing only in the EAP genetic marker system. Defendant and Garcia both had type O blood. In the TF (or transferrin) genetic marker system, defendant’s type was CD, a type shared by less than 3 percent of the population. Neither Garcia nor the two victims had CD transferrin. Although various bloodstains were found in defendant’s car and a few blood drops were discovered outside the apartment, many were of insufficient quantity to perform blood-typing analysis. However, type O blood, with the CD type in the TF system, was discovered on the floormat in defendant’s car. Blood on a paper tissue in the trunk of the car was found to be consistent with the blood of either Zavala or Barragan, but not with the blood of defendant or Garcia. Of three spots of blood found outside the brothers’ apartment on the pavement leading to Pierce Road, one may have been type A or a mix of type A and type O; the other two were insufficient to produce test results. 6 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Inside Zavala’s apartment, there were copious bloodstains on the living room carpet and walls. Blood was found on the front door, the couch, the television, the stereo, a telephone book, a mattress in the bedroom, and on the walls, sink and window in the bathroom. Skinner tested the blood samples and was able to determine that all of the blood surrounding Barragan was consistent with his type. Although Skinner could not say that blood belonging to defendant was found in the apartment, she opined, in response to hypotheticals, that if an attacker had been bleeding from a forearm wound, the attacker’s blood might not be found if the length of the attack was a matter of minutes and the wound was enclosed in the long sleeve of a jacket so that the clothing would absorb the blood. She also indicated that because Barragan had bled so profusely, small amounts of an attacker’s blood might go undetected. Skinner also tested the blood on the knife found by the freeway. Skinner testified that the hilt of the knife had human blood on it, but that a lot of the blood on the blade, being very dry and crusty, had flaked off by the time she examined it. As for the bloodstains found on the plastic capsule inside the knife handle, Skinner found a strong reaction for type O blood, and a weak reaction for type A blood, suggesting the possible presence of both types. 2. The Defense Case Defendant did not take the stand. His defense was that he was not present and had nothing to do with the crime. There was no physical evidence placing defendant at the scene, and the surviving victim could not positively identify him. Maria Vargas had initially described the first man to come down the stairs on the night of the murder as a “Black” man when speaking to the 911 dispatcher and the police. Vargas failed to identify defendant when shown a photo lineup on May 27, 1987, and identified him for the first time at the preliminary hearing. At that hearing, defendant was wearing an orange jumpsuit and was seated at the defense table behind a nameplate that said “defendant.” Nathan Howard, testifying for the defense, disclosed that he had known Juan Garcia since 1967, and in the past had even identified himself as Garcia's “partner.” Although he had met defendant a couple of times, he was unaware of any friendship between defendant and Garcia, and had never seen them socialize together. Howard also testified that he knew defendant's brother, Raymond, and that he had run into Raymond at Highland Hospital one morning in May 1987. Raymond told Howard that a transmission had fallen on defendant's arm. Defendant's sister, Norma, testified that when defendant arrived at her home at 4:10 a.m. on or about May 5, 1987, he was covered with dirt and grime, and had car grease on his face and hands. Although defendant asked for a bandage and 7 wanted to be taken to Raymond's house, Norma did not notice that he was injured, or that he needed to go to the hospital. Defendant said he had been working on his car. He was bald at the time, and looked normal but dirty. 1 2 3 4 Petitioner was convicted by a jury of one count of murder, 5 two counts of attempted robbery, one count of burglary, and the 6 special circumstances that he committed the murder while engaged 7 in the crime of robbery or attempted robbery and while engaged in 8 the crime of burglary. 9 same jury. United States District Court For the Northern District of California 10 II. Petitioner was sentenced to death by the Procedural background 11 Petitioner appealed his conviction and sentence to the 12 California Supreme Court, which, on December 1, 1994, upheld the 13 judgment in its entirety, finding “no prejudicial error at the 14 guilt or penalty phase of [Petitioner’s] trial.” 15 Cal. 4th at 1095. 16 petitions in the California Supreme Court. 17 of the habeas claims in Petitioner’s 1994 petition on the merits, 18 except claim seventeen, which was denied as moot. 19 denied claim four in part with regard to one allegation on the 20 independent ground that Petitioner failed to raise the issue on 21 direct appeal. 22 Petitioner’s 1998 petition on the merits, as well as some claims 23 as untimely, successive, or for failure to raise on appeal. 24 May 27, 1999, Petitioner filed the present petition. Rodrigues, 8 In 1994 and 1998, Petitioner filed habeas The court denied all The court also The court denied all of the habeas claims in On 25 On September 25, 2002, this Court stayed all proceedings on 26 Petitioner’s federal habeas petition pending litigation in state 27 court concerning his entitlement to relief under Atkins v. 28 Virginia, 536 U.S. 304 (2002), which prohibits execution of the 8 1 mentally retarded. 2 stipulation and order were filed in the Superior Court of San 3 Mateo County vacating Petitioner’s death sentence and sentencing 4 him to life imprisonment without the possibility of parole. 5 On February 8, 2010, pursuant to Atkins, a Given the state court action, on July 12, 2010 this Court 6 denied as moot claims six through eight, twenty-three, twenty-five 7 through forty, forty-two, forty-three, forty-five, and forty-six 8 of Petitioner’s petition, because they were related only to the 9 death penalty. United States District Court For the Northern District of California 10 Remaining for adjudication are the following claims: claim 11 one: Petitioner was tried while incompetent; claim two: the trial 12 court failed to hold a competency hearing; claim three: 13 ineffective assistance of counsel for failure to seek a competency 14 hearing; claim four: juror misconduct; claim five: bias in jury 15 selection; claim nine: ineffective assistance of trial counsel 16 during the guilt phase of trial; claim ten: ineffective assistance 17 of counsel due to trial counsel’s conflict of interest; claim 18 eleven: admission of videotape evidence; claim twelve: admission 19 of unreliable hearsay identification evidence; claim thirteen: 20 exclusion of impeachment evidence; claim fourteen: prosecution’s 21 failure to preserve evidence; claim fifteen: innocence of capital 22 murder; claim sixteen: prejudicial re-reading of testimony during 23 deliberations; claim seventeen: insufficient evidence; claim 24 eighteen: denial of the right to present a defense; claim 25 nineteen: errors in jury instructions; claim twenty: prosecution’s 26 failure to disclose impeachment evidence; claim twenty-one: 27 prosecution’s use of false testimony and failure to correct false 28 testimony; claim twenty-two: withholding of discovery; claim 9 1 twenty-four: witness tampering; claim forty-one: erroneous removal 2 of potential jurors for cause; claim forty-four: ineffective 3 assistance of appellate counsel; and claim forty-seven: cumulative 4 error. 5 In addition to his request for relief on the merits, 6 Petitioner requests discovery on claims four, five, nine, ten, and 7 twenty and an evidentiary hearing for claims one, three, four, 8 five, nine, ten, fourteen, twenty and twenty-one. 9 III. Procedural Default United States District Court For the Northern District of California 10 Under the independent and adequate state ground doctrine, 11 federal courts will not review questions of federal law decided by 12 a state court if the decision also rests on a state law ground 13 that is independent of the federal question and adequate to 14 support the judgment. 15 (1991), overruled on other grounds by Martinez v. Ryan, 132 S. Ct. 16 1309 (2012). 17 interests of comity and federalism. 18 procedural default is a specific application of the adequate and 19 independent state ground doctrine that bars a federal court from 20 granting habeas relief when a state court declined to address the 21 claim because the petitioner failed to meet a state procedural 22 requirement. 23 1997). 24 remains the “main event” rather than a “tryout on the road” for a 25 later federal habeas proceeding. 26 72, 90 (1977). 27 28 Coleman v. Thompson, 501 U.S. 722, 729-30 In the habeas context, this doctrine furthers the Id. at 730. The doctrine of Fields v. Calderon, 125 F.3d 757, 762 (9th Cir. This doctrine helps ensure that the state criminal trial Wainwright v. Sykes, 433 U.S. The procedural default analysis requires two steps. First, the court must consider whether the procedural rule invoked by the 10 1 last state court to render judgment in the case to bar a claim is 2 both “independent” and “adequate” to preclude federal review. 3 Second, if the bar invoked is independent and adequate, federal 4 review of the merits of the claim will be barred unless the 5 petitioner can show cause and prejudice or a fundamental 6 miscarriage of justice. 7 (2012); Coleman, 501 U.S. at 750; Vansickel v. White, 166 F.3d 8 953, 957-58 (9th Cir. 1999). 9 assistance of counsel will satisfy the cause test, Walker v. See Maples v. Thomas, 132 S. Ct. 912, 922 Constitutionally ineffective United States District Court For the Northern District of California 10 Martel, 709 F.3d 925, 938 (9th Cir. 2013), as will "some objective 11 factor external to the defense" that impedes counsel's efforts to 12 comply with the procedural rule, Murray v. Carrier, 477 U.S. 478, 13 488 (1986). 14 the burden of showing, not merely that the errors . . . created a 15 possibility of prejudice, but that they worked to his actual and 16 substantial disadvantage, infecting his entire trial with error of 17 constitutional dimensions." 18 170 (1982) (emphasis in original). 19 exception applies where "new evidence shows 'it is more likely 20 than not that no reasonable juror would have convicted [the 21 petitioner].'" 22 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). To demonstrate prejudice, a petitioner must "shoulder United States v. Frady, 456 U.S. 152, The miscarriage of justice McQuiggin v. Perkins, 133 S. Ct. 1924, 1933 (2013) 23 A. 24 Respondent contends that claims four, five, nine, ten, Untimeliness 25 twelve, thirteen, fifteen, nineteen, twenty, and twenty-one are 26 procedurally defaulted and therefore barred from federal review 27 because the California Supreme Court denied these claims as 28 untimely. Petitioner disagrees, stating that his petition was 11 1 filed prior to the issuance of In re Robbins, 18 Cal. 4th 770 2 (1998), and that California’s untimeliness rule was neither 3 adequate nor independent at that time. 4 1. 5 California’s Untimeliness Rule “California does not employ fixed statutory deadlines to 6 determine the timeliness of a state prisoner’s petition for habeas 7 corpus. 8 claims ‘as promptly as the circumstances allow.’” 9 Martin, 562 U.S. 307, 310 (2011) (quoting In re Clark, 5 Cal. 5th Instead, California directs petitioners to file known Walker v. United States District Court For the Northern District of California 10 750, 765 n.5 (1993)). 11 Regarding Cases Arising From Judgments of Death, Timeliness 12 Standards (Policies), a habeas corpus petition is presumed to be 13 filed without substantial delay if it is filed within 180 days 14 from the due date of the reply brief on direct appeal, or within 15 thirty-six months after the appointment of habeas counsel, 16 whichever is later.1 17 Under California’s Supreme Court Policies Petitioner’s appellate counsel was appointed on August 7, 18 1989 and maintained continuous representation throughout his first 19 state petition for writ of habeas corpus. 20 was no separate appointment of habeas corpus counsel. 21 brief in Petitioner's appeal was due and filed on August 17, 1993. 22 His first state petition for habeas corpus was filed on November 23 10, 1994, 450 days after the submission of the reply brief in his 24 appeal and more than four years following the appointment of 25 26 27 28 1 Ex. 162 at 4. There The reply When the Policies were first propounded in 1990, petitioners were afforded a presumption of timeliness for sixty days following the due date for the reply brief on direct appeal. This presumption period was extended to ninety days on January 22, 1998, and then to 180 days on July 17, 2002. 12 1 appellate counsel. 2 March 6, 1998, an additional two and a half years later. 3 the claims that Respondent asserts are barred by the adequate and 4 independent untimeliness bar are from Petitioner’s second state 5 petition for writ of habeas corpus. 6 first state petition for writ of habeas corpus, when the untimely 7 claims should have been raised, was not presumptively timely. 8 9 2. His second state habeas petition was filed on All of Under the Policies, even the Adequacy of the Untimeliness Bar For a state procedural rule to be “adequate,” it must be United States District Court For the Northern District of California 10 clear, well-established at the time of the purported default, and 11 consistently applied. 12 (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996). 13 judging the bar's adequacy is the date the first state habeas 14 petition was filed. 15 (Hayes), 103 F.3d 72, 75 (9th Cir. 1996). 16 November 10, 1994. 17 Calderon v. United States Dist. Court The critical date for See Calderon v. United States Dist. Court Here, that date is The state bears the ultimate burden of proving the adequacy 18 of a state procedural rule. 19 585-86 (9th Cir. 2003). 20 plead the existence of an adequate and independent procedural 21 ground as a defense, the burden to place that defense at issue 22 shifts to the petitioner, who “may satisfy this burden by 23 asserting specific factual allegations that demonstrate the 24 inadequacy of the state procedure, including citation to authority 25 demonstrating inconsistent application of the rule.” 26 The petitioner's burden at this stage is "modest." Dennis v. 27 Brown, 361 F. Supp. 2d 1124, 1129 (N.D. Cal. 2005). Once a 28 petitioner has placed the adequacy of a particular bar into Bennett v. Mueller, 322 F.3d 573, However, once the state has adequately 13 Id. at 586. 1 question, the ultimate burden is the state’s. 2 at 586. 3 Bennett, 322 F.3d As the Court explains below, the state has met its burden 4 under Bennett of pleading an adequate state bar. 5 Court and Ninth Circuit case law, the adequacy of California's 6 untimeliness bar was firmly established in 1993. 7 at 763-64; see also Martin, 562 U.S. at 316-321 (holding that 8 discretion and exceptions do not render California's untimeliness 9 bar inadequate). United States District Court For the Northern District of California 10 Under Supreme Fields, 125 F.3d In an attempt to remedy adequacy concerns with the 11 untimeliness bar, the California Supreme Court decided Clark, 5 12 Cal. 4th 750, which clarified the law surrounding the procedural 13 bar of untimely filing and its exceptions. 14 ‘reestablish California’s procedural rules governing state habeas 15 petitions and clearly define and limit the applicable 16 exceptions.’” 17 Cir. 2000) (quoting Fields, 125 F.3d at 763-64). 18 guidance in Clark, however, some federal courts continued to find 19 the untimeliness bar inadequate. 20 Clark was "intended to Park v. California, 202 F.3d 1146, 1151-52 (9th Despite the In Bennett, the Ninth Circuit noted the dilemma facing courts 21 trying to assess the post-Clark adequacy of the untimeliness bar. 22 “Before Clark, the California untimeliness standards were applied 23 inconsistently to some fact patterns.” 24 the court was unconvinced that Clark remedied the inconsistent 25 application: just because “the California Supreme Court set out 26 [with Clark] to create a rule that would be consistently applied, 27 . . . it does not follow that the rule in historical fact has been 28 so applied.” Id. 322 F.3d at 583. However, It recognized that district courts "had the 14 1 opportunity to analyze the consistency of application of the Clark 2 rule, reaching opposing results," and remanded for resolution of 3 the adequacy question. 4 Knowles, the Ninth Circuit held that the government did not 5 satisfy its burden of proof because it offered "no evidence that 6 California operated under clear standards for determining what 7 constituted 'substantial delay' in 2001." 8 (9th Cir. 2009), abrogated by Martin, 562 U.S. 307. 9 Id. at 583-84. Later, in Townsend v. 562 F.3d 1200, 1208 In Martin, the United States Supreme Court granted certiorari United States District Court For the Northern District of California 10 to determine the adequacy of California’s untimeliness bar. 11 U.S. at 315. 12 the bar to be inadequate, which had relied on Townsend, the 13 Supreme Court stated that a "discretionary rule ought not be 14 disregarded automatically upon a showing of seeming 15 inconsistencies. 16 specific considerations and to avoid the harsh results that 17 sometimes attend consistent application of an unyielding rule.” 18 Id. at 320. 19 untimeliness bar is inadequate, finding "no inadequacy in 20 California's timeliness rule generally." 21 562 In reversing the Ninth Circuit’s decision holding Discretion enables a court to home in on case- Martin thus vitiated the argument that the Id. at 321. Petitioner makes several arguments attempting to distinguish 22 the Supreme Court's conclusion that the rule in Clark is adequate. 23 First, he argues that Martin does not apply to his case because 24 his first habeas petition was filed in 1994, several years prior 25 to the issuance of Robbins. 26 (explaining that in Robbins the California Supreme Court adopted a 27 prospective approach declining to consider federal law when 28 deciding whether claims are procedurally defaulted). See Park, 202 F.3d at 1152-53 15 However, as 1 discussed below, Robbins addressed the untimeliness bar's 2 independence, not its adequacy. 3 Second, he argues that Martin did not overturn Ninth Circuit 4 case law holding that, prior to the issuance of Robbins, the rule 5 was not adequate. 6 Third, he argues that Martin does not apply here because it 7 did not address adequacy in capital cases. 8 California Supreme Court established the rule's adequacy, even in 9 capital cases, in 1993 with Clark. However, the In King v. LaMarque, 464 F.3d United States District Court For the Northern District of California 10 963, 966 (9th Cir. 2006), the Ninth Circuit made clear that Clark 11 itself contemplated capital cases. 12 The court stated: California’s timeliness rule applies to both capital and noncapital cases. In capital cases, California’s [Policies] create a presumption of timeliness if a petition “is filed within 90 days of the final due date for the filing of an appellant’s reply brief.” Clark, 21 Cal. Rptr. 2d 509. The Policies also create more explicit standards for deciding whether there has been substantial delay when the petitioner has filed after the ninety-day presumption period. Id. at 751–53. Clark clarified the application of these Policies within capital cases and provided four specific exceptions for granting review even when a petition’s “substantial delay” is unjustified. Id. at 758–59. 13 14 15 16 17 18 19 Id. 20 Clark established an adequate procedural bar in 1993, the Ninth 21 Circuit made clear that Clark applied to capital cases. 22 Thus, even before the Supreme Court concluded in Martin that Petitioner has not made a showing sufficient to rebut the 23 adequacy of the untimeliness bar, as required by Bennett. 24 Accordingly, the Court concludes that Respondent has met his 25 burden of pleading an adequate state bar and that Petitioner has 26 failed to satisfy his burden. 27 // 28 // 16 1 3. 2 Independence of the Untimeliness Bar The procedural bar must also be independent when applied to 3 result in a default. 4 decided Robbins, declaring that it would no longer consider 5 federal law when denying a habeas claim as procedurally barred for 6 untimeliness. 7 Ninth Circuit explained that a post-Robbins denial based on 8 California's untimeliness bar is an independent procedural ground. 9 322 F.3d at 581-83. United States District Court For the Northern District of California 10 In 1998, the California Supreme Court 18 Cal. 4th at 811-12. In Bennett v. Mueller, the The question of whether the application of a procedural rule 11 was independent of federal law is assessed at the time the state 12 court rejects a claim as procedurally defaulted, because the issue 13 is whether that state court decision was based solely on state 14 law. 15 that its new approach is prospective, and would not have applied 16 when the California Supreme Court denied Park’s habeas petition”); 17 Dennis, 361 F. Supp. 2d at 1127 ("To determine whether a state- 18 court decision is independent of federal law, a federal court must 19 examine the decision itself in which the state court invoked the 20 procedural bar, as distinguished from other state-court decisions 21 issued at or prior to the time that the purported procedural 22 defaults occurred."). 23 three years following the issuance of Robbins. 24 Respondent has plead the existence of an independent procedural 25 bar. 26 See, e.g., Park, 202 F.3d at 1153 (“Robbins is clear . . . The decision at issue here was in 2001, Accordingly, Because Petitioner has failed to satisfy his burden under 27 Bennett, claims four, five, nine, ten, twelve, thirteen, fifteen, 28 nineteen, twenty, and twenty-one are procedurally defaulted 17 1 because they are barred by the adequate and independent 2 untimeliness bar unless Petitioner can show cause and prejudice or 3 a fundamental miscarriage of justice. 4 of whether Petitioner is entitled to exceptions to default 5 involves an examination of the merits of Petitioner’s claims, the 6 Court will address the exceptions in the context of the merits of 7 each claim, after the discussion of Respondent's other procedural 8 default arguments. 9 Cir. 1982) (stating that, if deciding merits of claims proves to Because the determination See Batchelor v. Cupp, 693 F.2d 859, 864 (9th United States District Court For the Northern District of California 10 be more efficient than adjudicating exceptions to procedural 11 default, a court may exercise discretion to take this course of 12 action). 13 B. 14 Respondent asserts that claims eleven, twelve, thirteen, Contemporaneous Objection Rule 15 sixteen, and nineteen are defaulted in whole or in part based on 16 the independent and adequate state ground of the contemporaneous 17 objection bar. 18 regarding any of these claims and instead refers back to the 19 answer. 20 asserting an affirmative defense of procedural default based on 21 the contemporaneous objection bar. 22 from the California Supreme Court decision denying Petitioner’s 23 appeal that note some instances when Petitioner failed to object 24 in whole or in part at trial. 25 court found it "unnecessary to decide the issue[] of waiver” and 26 instead denied the claim on the merits. 27 1123. Respondent does not make any specific arguments The answer, however, also makes no specific argument It does contain quotations For example, for claim sixteen, the 28 18 Rodrigues, 8 Cal. 4th at 1 As noted above, to preserve and present an affirmative 2 defense based on procedural default, Respondent must plead “the 3 existence of an adequate and independent state procedural ground.” 4 King, 464 F.3d at 967. 5 requires Respondent to “state in short and plain terms [his] 6 defenses to each claim.” 7 decision is insufficient on its own to assert an affirmative 8 defense. 9 affirmatively and identify it with sufficient particularity that Federal Rule of Civil Procedure 8(b)(1)(A) A recitation of the state court’s Respondent is required to state the defense United States District Court For the Northern District of California 10 the court can discern the portions of the claim to which 11 Respondent objects. 12 failed to do so and, therefore, has failed to satisfy his burden 13 under Bennett. 14 sixteen, and nineteen are not defaulted in whole or in part based 15 on the contemporaneous objection bar, although, as discussed 16 above, claims twelve, thirteen, and nineteen are defaulted based 17 on the untimeliness bar. Fed. R. Civ. P. 8(c)(1), (d). Respondent has Accordingly, claims eleven, twelve, thirteen, 18 C. 19 Respondent alleges that claims four, five, nine, ten, Successive Claims 20 fifteen, twenty, and twenty-one are defaulted due to the adequate 21 and independent bar against successive claims and petitions. 22 California Supreme Court bars “newly presented grounds for relief 23 which were known to the petitioner at the time of a prior 24 collateral attack on the judgment,” as well as claims that are 25 presented in a piecemeal or delayed fashion. 26 768. 27 28 The Clark, 5 Cal. 4th at As noted above, Petitioner filed two petitions for writ of habeas corpus in the California Supreme Court. 19 The first was 1 filed on November 10, 1994, and the second on March 6, 1998. 2 its order denying the second petition, the California Supreme 3 Court denied as successive the claims that are numbered four, 4 five, nine, ten, fifteen, twenty, and twenty-one in the present 5 petition. 6 In Nonetheless, Respondent has failed to plead the existence of 7 an adequate and independent successive claims state bar. 8 Respondent relies on the reasoning in Martin to support the claim 9 that this bar is adequate to preclude review. He also relies on United States District Court For the Northern District of California 10 district court decisions that use Martin to support the adequacy 11 of this particular bar. 12 However, the Ninth Circuit recently held that Martin dealt 13 specifically with the untimeliness bar and was limited in its 14 reach because it applied only to truly discretionary rules. 15 v. Jacquez, 788 F.3d 1124, 1129-31 (9th Cir. 2015), rev'd on other 16 grounds by Johnson v. Lee, 136 S. Ct. 1802 (2016). 17 Lee and the Circuit’s prior case law refusing to find the bar 18 adequate, Respondent fails to meet his burden. 19 therefore, are not procedurally defaulted on this ground, though 20 they are precluded from federal review by the timeliness bar. Lee In light of These claims, 21 D. 22 Respondent asserts that claims four, five, nine, twelve, Reasserted Claims 23 thirteen, fifteen, nineteen, twenty and twenty-one are 24 procedurally defaulted because the California Supreme Court 25 rejected them based on two bars that prohibit reevaluating claims 26 after they have been presented previously to the court for 27 consideration. 28 20 1 First, the California Supreme Court denied the claims that 2 are now numbered twelve, thirteen, nineteen, twenty and twenty- 3 one, “to the extent [they] allege claims other than ineffective 4 assistance of counsel that were raised and rejected on appeal,” as 5 barred by In re Waltreus, 62 Cal. 2d 218, 225 (1965). 6 provides that “‘any issue that was actually raised and rejected on 7 appeal cannot be renewed in a petition for writ of habeas 8 corpus.’” 9 (quoting In re Harris, 5 Cal. 4th 813, 829 (1993)) (emphasis in Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996) 10 United States District Court For the Northern District of California Waltreus original). 11 Bean, 96 F.3d at 1131. 12 not precluded from federal review based on Waltreus. A Waltreus citation does not bar federal review. See Therefore, the above-referenced claims are See id. 13 Second, the California Supreme Court rejected what are now 14 claims four, five, nine, fifteen, twenty and twenty-one, to the 15 extent they “duplicate claims raised and rejected in Petitioner’s 16 first petition for writ of habeas corpus,” as barred by In re 17 Miller, 17 Cal. 2d 734 (1941). 18 presentation of claims already presented in an earlier adjudicated 19 petition where there has been “no change in the facts or the law 20 substantially affecting the rights of the petitioner.” 21 Cal. 4th at 769–70; Miller, 17 Cal. 2d at 735. 22 this bar merely prohibits the repetitious presentation of claims 23 already reviewed by the state court, it does not preclude federal 24 review. 25 (“Since a later state decision based upon ineligibility for 26 further state review neither rests upon procedural default nor 27 lifts a pre-existing procedural default, its effect upon the 28 availability of federal habeas is nil[.]”). Miller bars the repetitious Clark, 5 Again, because See Ylst v. Nunnemaker, 501 U.S. 797, 804 n.3 (1991) 21 Accordingly, claims 1 four, five, nine, twelve, thirteen, fifteen, nineteen, twenty, and 2 twenty-one are not procedurally barred by the California Supreme 3 Court’s refusal to revisit them because they had been presented in 4 earlier filings. 5 the independent and adequate state timeliness bar, as noted above. They are, however, barred from federal review by 6 E. 7 Petitioner alleges that his constitutional rights were Failure to Raise Claim Five on Direct Appeal violated by the processes used to select and impanel the jury. 9 Respondent asserts that the claim is procedurally defaulted in 10 United States District Court For the Northern District of California 8 that the California Supreme Court denied this claim because it 11 “could have been, but w[as] not, raised on appeal,” citing In re 12 Dixon, 41 Cal. 2d 756, 759 (1953). 13 the existence of this independent and adequate state bar. 14 Respondent has failed to plead Adequacy of the Dixon bar is determined at the time the 15 direct appeal was filed. 16 Court recently addressed California's Dixon bar in the context of 17 a petitioner's June 1999 petition. 18 of that date, the Dixon bar was "firmly established" because "the 19 California Supreme Court eliminated any arguable ambiguity 20 surrounding this bar by reaffirming Dixon in two cases decided 21 before" June 1999. 22 two cases, Harris, was decided on July 19, 1993 and modified on 23 September 30, 1993. 24 the California Supreme Court on February 22, 1993, before the 25 California Supreme Court firmly established the Dixon bar. 26 Respondent has failed to meet his burden of showing that the Dixon 27 bar is adequate to preclude federal review of this claim. Fields, 125 F.3d at 760-61. The Supreme The Court explained that, as Lee, 136 S. Ct. at 1805. The earlier of the Here, Petitioner filed his opening brief in 28 22 Thus, The 1 claim is, however, procedurally defaulted on the grounds that it 2 was untimely. 3 IV. 4 Merits of Petitioner’s Claims A federal court may entertain a habeas petition from a state 5 prisoner “only on the ground that he is in custody in violation of 6 the Constitution or laws or treaties of the United States.” 7 U.S.C. § 2254(a). 8 Penalty Act (AEDPA) of 1996, a district court may not grant habeas 9 relief unless the state court’s adjudication of the claim: 28 Under the Antiterrorism and Effective Death United States District Court For the Northern District of California 10 “(1) resulted in a decision that was contrary to, or involved an 11 unreasonable application of, clearly established Federal law, as 12 determined by the Supreme Court of the United States; or 13 (2) resulted in a decision that was based on an unreasonable 14 determination of the facts in light of the evidence presented in 15 the State court proceeding.” 16 Taylor, 529 U.S. 362, 412 (2000). 17 28 U.S.C. § 2254(d); Williams v. Section 2254(d) applies when the claim was “adjudicated on 18 the merits” in state court. 19 reasoned decisions. 20 state court and the state court has denied relief, it may be 21 presumed that the state court adjudicated the claim on the merits 22 in the absence of any indication or state-law procedural 23 principles to the contrary.” 24 99 (2011) (analyzing a one-sentence order denying a habeas 25 petition under § 2254(d)); Johnson v. Williams, 133 S. Ct. 1088, 26 1096 (2013) (order that discusses state law claim but not federal 27 claim rebuttably presumed to be rejection on the merits and 28 therefore subject to § 2254(d)). It covers both unexplained and “When a federal claim has been presented to a Harrington v. Richter, 562 U.S. 86, "The presumption may be overcome 23 1 when there is reason to think some other explanation for the state 2 court’s decision is more likely." 3 The state court decision to which § 2254(d) applies is the “last 4 reasoned decision” of the state court. 5 Barker v. Fleming, 423 F.3d 1085, 1091-92 & n.3 (9th Cir. 2005); 6 Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003) (describing 7 the Ninth Circuit's "practice of 'looking through' ambiguous or 8 un-explained state court decisions" following Ylst). 9 Harrington, 562 U.S. at 99-100. See Ylst, 501 U.S. at 804; A state court decision is “contrary to” Supreme Court United States District Court For the Northern District of California 10 authority, that is, falls under the first clause of § 2254(d)(1), 11 only if “the state court arrives at a conclusion opposite to that 12 reached by [the Supreme] Court on a question of law or if the 13 state court decides a case differently than [the Supreme] Court 14 has on a set of materially indistinguishable facts.” 15 529 U.S. at 412-13. 16 application of” Supreme Court authority under the second clause of 17 § 2254(d)(1) if it correctly identifies the governing legal 18 principle from the Supreme Court’s decisions but “unreasonably 19 applies that principle to the facts of the prisoner’s case.” 20 at 413. 21 Williams, A state court decision is an “unreasonable Id. The federal court on habeas review may not issue the writ 22 “simply because that court concludes in its independent judgment 23 that the relevant state-court decision applied clearly established 24 federal law erroneously or incorrectly.” 25 application must be “objectively unreasonable” to support granting 26 the writ. 27 “where there is no possibility fairminded jurists could disagree Id. at 409. Id. at 411. Rather, the Under AEDPA, the writ may be granted only 28 24 1 that the state court’s decision conflicts with this Court’s 2 precedents.” Harrington, 562 U.S. at 102. 3 In reviewing the reasonableness of a state court’s decision 4 to which § 2254(d)(1) applies, a district court may rely only on 5 the record that was before the state court. 6 Pinholster, 131 S. Ct. 1388, 1398 (2011) (holding that new 7 evidence presented at a federal court evidentiary hearing cannot 8 be considered in assessing whether state court’s decision “was 9 contrary to, or involved an unreasonable application of, clearly United States District Court For the Northern District of California 10 11 See Cullen v. established Federal law” under § 2254(d)(1)). If constitutional error is found, habeas relief is warranted 12 only if the error had a “substantial and injurious effect or 13 influence in determining the jury’s verdict.” 14 532 U.S. 782, 795 (2001). 15 habeas court may grant the writ if it concludes that the state 16 court’s adjudication of the claim “resulted in a decision that was 17 based on an unreasonable determination of the facts in light of 18 the evidence presented in the State court proceeding.” 19 § 2254(d)(2). 20 categories. 21 the state court’s findings and attempt to show that those findings 22 were not supported by substantial evidence in the state court 23 record . . . Second, a petitioner may challenge the fact-finding 24 process itself on the ground that it was deficient in some 25 material way.” 26 Cir. 2012) (citing Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th 27 Cir. 2004)). 28 when the state court fails to consider and weigh highly probative, Penry v. Johnson, Under 28 U.S.C. § 2254(d)(2), a federal 28 U.S.C. Challenges under § 2254(d)(2) fall into two general “First, a petitioner may challenge the substance of Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th An unreasonable determination of the facts occurs 25 1 relevant evidence, central to the petitioner’s claim, that was 2 properly presented and made part of the state-court record. 3 relevant question under § 2254(d)(2) is whether an appellate 4 panel, applying the normal standards of appellate review, could 5 reasonably conclude that the state court findings are supported by 6 the record. 7 2004). 8 9 The Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir. A state court need not conduct an evidentiary hearing to resolve every disputed factual question in order for the state’s United States District Court For the Northern District of California 10 fact-finding procedures to be considered reasonable. 11 F.3d at 1147. 12 hold an evidentiary hearing -- so that the state court’s finding 13 would be entitled to deference under § 2254(d)(2)) -- to the 14 federal court’s duty to hold an evidentiary hearing, i.e., an 15 evidentiary hearing is not necessary if the record refutes the 16 petitioner’s factual allegations or otherwise precludes habeas 17 relief. 18 reasonably concluded that the evidence already adduced was 19 sufficient to resolve the factual question, it need not have held 20 an evidentiary hearing, and its factual findings must be given 21 deference. 22 2013). 23 court would be unreasonable in holding that an evidentiary hearing 24 was not necessary in light of the state court record.” 25 (citing Hibbler, 693 F.3d at 1148) (emphasis in original). 26 Hibbler, 693 The Hibbler court likened the state court’s duty to See id. at 1147-48. If the state court could have See Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. The ultimate question “is whether [a state] appellate Id. However, even if a federal court finds that the state court 27 was unreasonable in resolving a factual dispute without an 28 evidentiary hearing, under 28 U.S.C. § 2254(e)(2), a district 26 court may not hold an evidentiary hearing on a claim for which the 2 petitioner failed to develop a factual basis in state court unless 3 the petitioner shows that: (A) the claim relies either on (i) a 4 new rule of constitutional law that the Supreme Court has made 5 retroactive to cases on collateral review, or (ii) a factual 6 predicate that could not have been previously discovered through 7 the exercise of due diligence; and (B) the facts underlying the 8 claim would be sufficient to establish by clear and convincing 9 evidence that, but for constitutional error, no reasonable fact 10 United States District Court For the Northern District of California 1 finder would have found the applicant guilty of the underlying 11 offense. 12 determining whether a petitioner failed to develop the factual 13 basis in state court “‘depends upon whether [the petitioner] made 14 a reasonable attempt, in light of the information available at the 15 time, to investigate and pursue claims in state court[.]’ 16 failure to investigate or develop a claim given knowledge of the 17 information upon which the claim is based, is not the exercise of 18 diligence.” 19 Cir. 2005) (quoting Williams, 529 U.S. at 435) (brackets in 20 original). 21 28 U.S.C. § 2254(e)(2). Diligence for purposes of The Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Further, “an evidentiary hearing is pointless once the 22 district court has determined that § 2254(d) precludes habeas 23 relief.” 24 (citing Pinholster, 131 S. Ct. at 1411 n.20 (“Because Pinholster 25 has failed to demonstrate that the adjudication of his claim based 26 on the state-court record resulted in a decision ‘contrary to’ or 27 ‘involv[ing] an unreasonable application’ of federal law, a writ Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013) 28 27 1 of habeas corpus ‘shall not be granted’ and our analysis is at an 2 end”) (quoting 28 U.S.C. § 2254(d))). 3 "A habeas petitioner, unlike the usual civil litigant in 4 federal court, is not entitled to discovery as a matter of 5 ordinary course." 6 To the extent a petitioner’s claims are governed by § 2254(d)(1), 7 he is not entitled to discovery because “the review of such claims 8 ‘is limited to the record that was before the state court that 9 adjudicated the claim on the merits.’” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Runningeagle v. Ryan, 686 United States District Court For the Northern District of California 10 F.3d 758, 773 (9th Cir. 2012) (quoting Pinholster, 131 S. Ct. at 11 1398). 12 discovery, the federal habeas court must first identify the 13 essential elements of the underlying claim. 14 at 904-05 (holding that, difficulties of proof aside, petitioner’s 15 allegation of judicial bias, if proved, would violate due process 16 clause). 17 shown “good cause” for appropriate discovery to prove his claim. 18 See id. 19 Before deciding whether a petitioner is entitled to See Bracy, 520 U.S. The court must then determine whether the petitioner has Good cause for discovery is shown “where specific allegations 20 before the court show reason to believe that the petitioner may, 21 if the facts are fully developed, be able to demonstrate that he 22 is . . . entitled to relief . . . .” 23 Terhune, 400 F.3d 740, 743 (9th Cir. 2005). 24 sitting in habeas," however, "are not an alternative forum for 25 trying facts and issues which a prisoner made insufficient effort 26 to pursue in state proceedings.” 27 28 Id. at 908-09; Pham v. "Federal courts Williams, 529 U.S. at 437. Petitioner seeks discovery and an evidentiary hearing on some claims. In its July 12, 2010 order, the Court required Petitioner 28 1 to identify, in his traverse, “the disputed issues of material 2 fact and his evidence on those issues.” 3 Docket No. 304 at 2. 4 “Respondent’s Answer to the Amended Petition . . . does not 5 indicate which facts asserted by Mr. Rodrigues are deemed true, 6 and which are denied, other than a general denial,” he “cannot in 7 this Traverse identify the factual disputes, paragraph by 8 paragraph, and deny those factual assertions presented in the 9 Answer with which he disagrees.” July 12, 2010 Order, In response, Petitioner stated that, because Traverse, Docket No. 348 at 1-2. United States District Court For the Northern District of California 10 Instead, Petitioner claims that it "appears from the Answer that 11 Respondent admits all the factual allegations in the Amended 12 Petition. 13 without a hearing.” 14 arguing that in his Answer he stated: “Except to the extent 15 expressly admitted herein, respondent denies each and every 16 material fact and legal characterization set forth in the 17 petition.” 18 discussion of each issue below, the Court analyzes whether any 19 material facts appear to be disputed and, if so, considers whether 20 Petitioner would be entitled to relief if the facts he alleges 21 were true. 22 material facts. 23 offered for Petitioner’s discovery requests regarding the specific 24 claims. 25 A. 26 Petitioner argues that he was tried while mentally In that circumstance, the court may grant relief Id. at 2. Respondent disputes this claim, Respondent’s Opp., Docket No. 354 at 17. In its In sum, the Court does not find any such disputed The Court also considers the justifications Claim one: tried while incompetent 27 incompetent. 28 evidentiary hearing, with regard to this claim. He does not seek discovery, but he does seek an 29 1 A criminal defendant is competent to stand trial if he has 2 "sufficient present ability to consult with his lawyer with a 3 reasonable degree of rational understanding" and has "a rational 4 as well as factual understanding of the proceedings against him." 5 Godinez v. Moran, 509 U.S. 389, 396 (1993); see also Deere v. 6 Cullen, 718 F.3d 1124, 1144 (9th Cir. 2013); Douglas v. Woodford, 7 316 F.3d 1079, 1094 (9th Cir. 2003). 8 mental illness substantially affects a decision, but whether a 9 mental disease, disorder or defect substantially affects the The question “is not whether United States District Court For the Northern District of California 10 prisoner’s capacity to appreciate his options and make a rational 11 choice among them.” 12 890 (9th Cir. 2004) (emphasis in original). 13 finding of competency to stand trial is presumed correct if fairly 14 supported by the record. 15 evidentiary hearing in state court is required for the presumption 16 to apply. 17 (1981)). 18 evidence to rebut the presumption. 19 20 Dennis ex rel. Butko v. Budge, 378 F.3d 880, A state court’s Deere, 718 F.3d at 1145. No formal Id. (citing Sumner v. Mata, 449 U.S. 539, 545-47 Petitioner must come forward with clear and convincing 1. Deere, 718 F.3d at 1145. Evidentiary hearing Petitioner seeks an evidentiary hearing with regard to this 21 claim “[t]o the extent any facts are disputed.” 22 see 28 U.S.C. § 2254(e)(2). 23 several family members, acquaintances and medical professionals to 24 support his contentions that he was mentally impaired for most of 25 his life and was legally incompetent during the 1987 and 1988 26 pretrial and trial proceedings at issue. 27 first presented to the state court in his 1994 state habeas 28 petition, six years after his trial and conviction. Traverse at 24; His claim relies on declarations of 30 These declarations were Petitioner 1 argues that the California Supreme Court, when confronted with 2 these facts, unreasonably denied the claim; the Supreme Court did 3 not accept the facts as true and, if Respondent disputed any of 4 those facts, it was unreasonable for that court to deny the claim 5 without the benefit of an evidentiary hearing. 6 On direct appeal, the California Supreme Court had rejected 7 Petitioner’s claim that the trial court should have ordered a 8 competency hearing, because the trial “record d[id] not 9 demonstrate a substantial doubt as to [Petitioner’s] competency.” United States District Court For the Northern District of California 10 Rodrigues, 8 Cal. 4th at 1112. 11 finding to support his argument that Petitioner's claim of actual 12 incompetency, later raised on habeas, should be rejected. 13 However, on appeal, the California Supreme Court did not address 14 whether Petitioner was actually incompetent at the time of his 15 trial; it only addressed whether the trial court was unreasonable 16 for not holding a competency hearing based on the evidence 17 presented before trial. 18 Respondent relies solely on this All of the evidence Petitioner brings to bear with regard to 19 this claim was presented to the California Supreme Court, no 20 contrary evidence was presented to that court, and there are no 21 issues of disputed facts identified by either Petitioner or 22 Respondent. 23 merit. 24 merits, even if all of Petitioner’s facts are accepted as true, 25 there is no need for an evidentiary hearing. 26 at 1075. 27 hearing on this claim is DENIED. 28 // Furthermore, as discussed below, the claim is without Because the Court finds that this claim fails on its See Sully, 725 F.3d Accordingly, Petitioner’s request for an evidentiary 31 1 2 2. Merits Seven of the declarations Petitioner relies on are from 3 doctors and social workers who detail the abuse he suffered as a 4 child, his intellectual challenges in school, his history of 5 debilitating headaches, and his drug abuse. 6 relies on twenty-two declarations from childhood friends, 7 girlfriends and family members that detail his childhood abuse, 8 his headaches, and his drug use. 9 In addition, he Of these declarations, only those of Dr. R.K. McKinzey, Ex. United States District Court For the Northern District of California 10 164, App. 10; Dr. Alfred W. Fricke, Ex. 165, App. 44; and Dr. 11 James R. Missett, Ex. 165, App. 42, state an expert opinion as to 12 Petitioner’s competence at the time of his trial based on their 13 contemporaneous examinations of and discussions with him. 14 remaining declarations (1) do not directly address Petitioner’s 15 competence at the time of his trial; (2) do not provide an opinion 16 as to Petitioner’s competence at the time of his trial and are 17 based on examinations done several years after his trial; or 18 (3) give a non-expert opinion on Petitioner’s functioning at the 19 time of his trial. 20 of dubious probative value and therefore, disfavored.” 21 Woodford, 339 F.3d 1084, 1086 (9th Cir. 2003). 22 focuses its analysis on the opinions of the three mental health 23 experts who examined Petitioner around the time of his trial in 24 1987 and 1988. The “Belated opinions of mental health experts are Deere v. Thus, the Court 25 On June 22, 1987, prior to being evaluated by a mental health 26 expert, Petitioner appeared in municipal court for his preliminary 27 hearing. 28 during which Petitioner’s counsel told the judge that Petitioner The municipal court judge held an in camera hearing 32 1 refused to waive time for the preliminary hearing even though 2 counsel needed more time to prepare for the hearing. 3 speaking with the municipal court judge, Petitioner agreed to 4 waive time. After 5 Sometime in September 1987, one of Petitioner’s attorneys 6 contacted Dr. Fricke, a licensed psychologist, to examine him. 7 Dr. Fricke interviewed Petitioner. 8 Fricke stated that Petitioner “seemed of limited intelligence” and 9 that based on his review of Petitioner’s medical and corrections In his 1994 declaration, Dr. United States District Court For the Northern District of California 10 records that were available to him around the time of Petitioner’s 11 trial and based on his interview of Petitioner, he believed that 12 Petitioner “had some neurological dysfunction.” 13 Fricke Dec. at 1. 14 Petitioner had a full scale IQ of 71. 15 conceded that his role in Petitioner’s case was “relatively minor” 16 and that he did not perform a competency examination or any 17 neuropsychological testing. 18 Ex. 165, App. 44, He also opined that, based on his testing, However, Dr. Fricke Id. On September 11, 1987, the superior court held an in camera 19 hearing. 20 refused to consent to counsel obtaining his medical records. 21 that hearing, Petitioner’s counsel informed the judge that he had 22 consulted with Drs. Missett and McKinzey, who opined that they 23 needed the medical records as they were important for a 24 psychiatric defense. 25 Petitioner had refused to waive time for his trial and At Dr. Missett was retained by Petitioner’s trial counsel in 26 1987. 27 reports and some of Petitioner’s medical and family history He interviewed Petitioner twice in 1987 and reviewed police 28 33 1 records. 2 regard to Petitioner’s competency. 3 Dr. Missett never testified as to his opinion with However, in his 1994 declaration, Dr. Missett stated that 4 based on his 1987 interview he believed Petitioner to be 5 “intellectually limited.” 6 “Based upon the little information which I possessed at the time 7 and my observations of [Petitioner] during our interview, I 8 determined that [Petitioner] may have been suffering from organic 9 brain damage and epilepsy.” Ex. 165, App. 42, Missett Dec. at 2. Id. Dr. Missett conceded that he United States District Court For the Northern District of California 10 informed Petitioner’s trial counsel that “until more testing was 11 done and more history was obtained, it was impossible to be 12 certain whether or not [Petitioner] was competent to stand trial.” 13 Id. at 3. 14 of Petitioner’s trial in 1987 of the information he later learned 15 in 1994, he was “certain that with the new information" he would 16 have found that Petitioner "was incompetent to stand trial and so 17 informed” trial counsel. 18 Nonetheless, he declared that had he known at the time Id. at 7. Dr. Missett’s declaration is unpersuasive. Even though his 19 two interviews with Petitioner led him to conclude in 1987 that 20 Petitioner was “intellectually limited,” he did not then opine 21 that Petitioner was unable to consult and cooperate with his 22 lawyer or that he was unable understand the charges against him or 23 the trial proceedings. 24 counsel should have raised an incompetency plea is a legal 25 conclusion, not a medical opinion.2 Dr. Missett's current opinion that defense 26 27 28 2 Whether defense counsel was ineffective based on failure to request an incompetency hearing is addressed in claim three. 34 1 Petitioner's trial counsel also retained Dr. McKinzey to render an opinion on Petitioner’s competency to stand trial in 3 1987. 4 his discussions with trial counsel and a review of Petitioner’s 5 police records, he “suspected severe physical abuse in childhood” 6 and requested more documentation. 7 at 2. 8 in camera hearing in Superior Court, he told the judge that 9 Petitioner “was a high risk for neurological impairment which 10 United States District Court For the Northern District of California 2 would make it difficult for him to cooperate with his defense 11 counsel.” 12 Petitioner. 13 subsequently interviewed Petitioner, but it is not clear when that 14 interview occurred. 15 that he believed in 1987 that Petitioner “was able to understand 16 the charges only marginally"; “had no idea of the roles of court 17 personnel"; had impaired “ability to distinguish between defense 18 and prosecution experts and investigators”; and “would be unable 19 to effectively challenge witnesses, assist his counsel in 20 challenging them, or point out or counteract inaccuracies in 21 witnesses’ statements.” 22 In his 1994 declaration, Dr. McKinzey stated that, based on Ex. 164, App. 10, McKinzey Dec. He went on to state that, on September 11, 1987, during the Id. However, at that time, he had not yet interviewed In his 1994 declaration, he states that he In his 1994 declaration, Dr. McKinzey stated McKinzey Dec. at 4-5. However, Petitioner’s behavior and apparent understanding of 23 the proceedings as captured in the record of the 1987 pre-trial 24 hearings, and his eventual cooperation with his counsel, casts 25 doubt on Dr. McKinzey’s conclusion. 26 While defense counsel’s opinion of a defendant’s competency 27 is not enough to settle the question of competency, see Hernandez 28 v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991), the Ninth Circuit has 35 1 identified defense counsel’s opinion of a defendant’s competency 2 to be “especially relevant.” 3 608 (9th Cir. 2002) (citing Medina v. California, 505 U.S. 437, 4 450 (1992) (“defense counsel will often have the best-informed 5 view of the defendant’s ability to participate in his defense”) 6 and Hernandez, 930 F.2d at 718 (the fact that defense counsel 7 considered defendant competent to stand trial was significant 8 evidence that defendant was competent)). 9 counsel’s initial competency-related concerns were based on Williams v. Woodford, 384 F.3d 567, Petitioner’s trial United States District Court For the Northern District of California 10 Petitioner’s refusal to waive time and his failure to communicate 11 rationally about that issue. 12 not competent to proceed to the preliminary hearing. 13 preliminary hearing judge was not swayed by that argument, and 14 continued the proceeding to give Petitioner more time to gain a 15 thorough understanding of what he was being asked to do and why. 16 In a later proceeding, defense counsel stated that Petitioner was 17 cooperating. 18 whether Petitioner’s competency was still an issue that needed to 19 be addressed, to which counsel answered no. 20 not indicate at any other time that counsel raised any concerns 21 about Petitioner’s competency. 22 Counsel believed that Petitioner was The The preliminary hearing judge then asked counsel The transcript does Furthermore, the transcript shows that the superior court 23 judge was able to communicate rationally with Petitioner. 24 judge specifically stated that he believed Petitioner understood 25 everything that was being said to him. 26 Trial Hearing Transcript, Ex. 13 at 25:7-8. 27 stated that he wanted to waive time because his lawyers had not 28 36 The September 11, 1987 PrePetitioner eventually 1 had enough time to investigate properly. 2 Trial Hearing Transcript, Ex. 14 at 4:25-26. September 15, 1987 Pre- 3 On balance, the Court concludes that the California Supreme 4 Court’s decision that Petitioner was not incompetent at the time 5 of his trial was not a result “contrary to, or involv[ing] an 6 unreasonable application of, clearly established Federal law,” and 7 was not “based on an unreasonable determination of the facts in 8 light of the evidence presented” to it. 9 Even accepting all of Petitioner’s facts as true, he has not 28 U.S.C. § 2254(d). United States District Court For the Northern District of California 10 presented “clear and convincing” evidence to rebut the presumption 11 that he was competent to stand trial. 12 claim for relief on the ground that Petitioner was tried while 13 incompetent is DENIED. 14 Accordingly, the petition’s However, because the Court finds that Petitioner has 15 demonstrated that other reasonable jurists might find this Court’s 16 assessment of the constitutional claim “debatable or wrong,” Slack 17 v. McDaniel, 529 U.S. 473, 484 (2000), Petitioner is granted a 18 certificate of appealability (COA) pursuant to 28 U.S.C. § 2253(c) 19 as to this claim. 20 Cir. 1999) (holding that appellate review is limited to the issues 21 for which COAs are granted). 22 23 24 B. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Claim two: trial court failed to hold a competency hearing Petitioner argues that the trial court was unreasonable for 25 failing to hold a competency hearing before his trial in light of 26 substantial evidence that gave rise to a reasonable doubt about 27 Petitioner’s mental competency. 28 evidentiary hearing with regard to this claim. He does not seek discovery or an 37 1 Due process requires a trial court to conduct a competency 2 hearing sua sponte if the court has a good faith doubt concerning 3 the defendant’s competence. 4 (1966). 5 if “‘a reasonable judge, situated as was the trial court judge 6 whose failure to conduct an evidentiary hearing is being reviewed, 7 should have experienced doubt with respect to competency to stand 8 trial.’” 9 (quoting deKaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976) Pate v. Robinson, 383 U.S. 375, 385 A good faith doubt about a defendant’s competence arises Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010) United States District Court For the Northern District of California 10 (en banc)). 11 conduct a competence hearing, sua sponte if necessary, whenever 12 there is substantial evidence of mental incompetence . . . 13 Substantial evidence for these purposes is evidence that raises a 14 reasonable doubt on the issue.” 15 1132, 1163 (1992). 16 whether a hearing is necessary, including "evidence of a 17 defendant’s irrational behavior, his demeanor at trial, and any 18 prior medical opinion on competence to stand trial," but "even one 19 of these factors standing alone may, in some circumstances, be 20 sufficient." 21 In California, the “trial court is required to People v. Howard, 1 Cal. 4th Several factors are relevant to determining Drope v. Missouri, 420 U.S. 162, 180 (1975). On direct appeal, the California Supreme Court discussed in 22 detail the trial court’s determination that it did not need to 23 hold a competency hearing. 24 The high court concluded that the evidence did not raise a 25 "substantial doubt" about Petitioner’s competency, which would 26 have triggered an obligation to hold a competency hearing. 27 1112. 28 was based largely on his trial counsel’s concerns about See Rodrigues, 8 Cal. 4th at 1107-12. Id. at It reasoned that any doubt as to Petitioner’s competency 38 1 Petitioner’s unwillingness to waive time, sign medical release 2 forms and speak with the defense’s doctors, but that “defense 3 counsel did not further pursue the competency issue once defendant 4 became cooperative.” 5 doctors’ findings as presented to the trial judge before 6 Petitioner’s trial as tentative, inconclusive and without 7 particularity. 8 counsel’s opinion that Petitioner might have been incompetent was 9 not enough, by itself, to trigger an obligation to hold a Id. It also characterized the defense’s Id. at 1110. Finally, it reasoned that defense United States District Court For the Northern District of California 10 competency hearing sua sponte. 11 Supreme Court concluded that it could not “say as a matter of law 12 that the evidence raised a substantial doubt as to [Petitioner’s] 13 mental competence. 14 duty to order a competency hearing.” 15 Id. at 1112. Thus, the California Accordingly, the lower courts were under no Id. Even if a defendant is in fact incompetent, a trial court 16 does not err in failing to hold a competency hearing if the record 17 evidence does not call for it. 18 852, 860-61 (9th Cir. 2011). 19 to those in Stanley. 20 not unreasonable for the trial court to conclude there was not 21 enough evidence before it to raise a doubt about the defendant’s 22 competence such that it should have held a hearing sua sponte. 23 one hand, the defendant made some questionable choices in strategy 24 and acted oddly but, on the other hand, defense counsel 25 specifically informed the trial court several times that they had 26 no doubt about the defendant’s competency to assist them. 27 addition, the defendant was coherent in his testimony and 28 colloquies with the court, the trial judge who interacted with him See Stanley v. Cullen, 633 F.3d The facts in this case are analogous There, the Ninth Circuit found that it was 39 On In during the guilt phase of his trial indicated his demeanor in 2 courtroom did not raise a doubt about his competency, and the 3 trial court had very little clinical or psychiatric evidence 4 regarding the defendant’s mental health history. 5 not unreasonable for the California Supreme Court to conclude that 6 the trial judge in Petitioner’s case did not err in failing to 7 hold a competency hearing sua sponte. 8 conclusion, the California Supreme Court considered the 9 transcripts of the pre-trial hearings, including Dr. McKinzey’s 10 United States District Court For the Northern District of California 1 preliminary conclusion that he believed that Petitioner may have 11 had a neurological impairment. 12 counsel’s decision not to pursue the competency issue once 13 Petitioner became cooperative. 14 Likewise, it was In coming to this It also considered defense As discussed above, the California Supreme Court denied this 15 claim on the merits. 16 trial court was not obliged to hold a competency hearing sua 17 sponte. 18 decision was “contrary to, or involved an unreasonable application 19 of, clearly established Federal law” or that it “resulted in a 20 decision that was based on an unreasonable determination of the 21 facts in light of the evidence presented” to it. 22 § 2254(d). 23 ground that the trial court was required, but failed, to hold a 24 competency hearing at the time of Petitioner’s trial is DENIED. 25 26 C. The record supports its conclusion that the Thus, Petitioner has not shown that the state court’s 28 U.S.C. Accordingly, the petition’s claim for relief on the Claim three: trial counsel was ineffective for failing to seek a competency hearing 27 Petitioner argues that trial counsel was deficient for 28 failing to investigate and present evidence that he was mentally 40 1 incompetent and for failing to request a competency hearing. 2 does not seek discovery, but he does seek an evidentiary hearing 3 with regard to this claim. 4 He In order to prevail on a Sixth Amendment claim of 5 ineffectiveness of trial counsel, Petitioner must establish two 6 things. 7 deficient, i.e., that it fell below an “objective standard of 8 reasonableness” under prevailing professional norms. 9 v. Washington, 466 U.S. 668, 687-88 (1984). First, he must show that counsel’s performance was Strickland Second, he must United States District Court For the Northern District of California 10 establish that he was prejudiced by counsel’s deficient 11 performance, i.e., that “there is a reasonable probability that, 12 but for counsel’s unprofessional errors, the result of the 13 proceeding would have been different.” 14 probability is a "probability sufficient to undermine confidence 15 in the outcome." 16 Id. at 694. A reasonable Id. "Judicial scrutiny of counsel's performance must be highly 17 deferential," and "a court must indulge a strong presumption that 18 counsel’s conduct falls within the wide range of reasonable 19 professional assistance." 20 not indulge ‘post hoc rationalization’ for counsel’s 21 decisionmaking that contradicts the available evidence of 22 counsel’s actions, . . . neither may they insist counsel confirm 23 every aspect of the strategic basis for his or her actions. 24 is a ‘strong presumption’ that counsel’s attention to certain 25 issues to the exclusion of others reflects trial tactics rather 26 than ‘sheer neglect.’” 27 omitted). 28 evidentiary proof that trial counsel’s performance was deficient. See id. at 689. “Although courts may There Harrington, 562 U.S. at 109 (citations Petitioner has the burden of showing through 41 1 See Toomey v. Bunnell, 898 F.2d 741, 743 (9th Cir. 1990); see also 2 Rios v. Rocha, 299 F.3d 796, 813 n.23 (9th Cir. 2002) (rejecting 3 two ineffective assistance of counsel claims based on petitioner’s 4 failure to produce evidence of prejudice). 5 a federal court considering a habeas ineffective assistance claim 6 to address the prejudice prong of the Strickland test if the 7 petitioner cannot establish incompetence under the first prong. 8 See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998). It is unnecessary for Generally, unless a petitioner alleges an ineffective 10 United States District Court For the Northern District of California 9 assistance of counsel claim of such magnitude that prejudice is 11 presumed under United States v. Cronic, 466 U.S. 648, 659 n.26 12 (1984), he must point to specific errors of counsel. Id.; Young 13 v. Runnels, 435 F.3d 1038, 1042-43 (9th Cir. 2006). A difference 14 of opinion as to trial tactics does not constitute denial of 15 effective assistance. 16 375 (9th Cir. 1981). 17 ineffective assistance simply because in retrospect better tactics 18 are known to have been available. 19 1228, 1241 (9th Cir. 1984). 20 defense counsel to pursue every nonfrivolous claim or defense, 21 regardless of its merit, viability or realistic chance of success. 22 Knowles v. Mirzayance, 556 U.S. 111, 125, 127 (2009). 23 See United States v. Mayo, 646 F.2d 369, Further, tactical decisions are not See Bashor v. Risley, 730 F.2d The Supreme Court has never required A petitioner must also show that trial counsel’s errors "were 24 so serious as to deprive the defendant of a fair trial, a trial 25 whose result is reliable." 26 need not determine whether counsel’s performance was deficient 27 before examining the prejudice suffered by Petitioner as the Strickland, 466 U.S. at 687. 28 42 A court 1 result of the alleged deficiencies. 2 Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995). See id. at 697; Williams v. 3 Furthermore, under AEDPA, the state court’s determination of 4 an ineffective assistance of counsel claim is afforded additional 5 deference: 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 The pivotal question is whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whether defense counsel’s performance fell below Strickland’s standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), “an unreasonable application of federal law is different from an incorrect application of federal law.” . . . A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself. 14 15 Harrington, 562 U.S. at 101 (emphasis in original). 1. 16 17 Evidentiary hearing Petitioner seeks an evidentiary hearing where trial counsel 18 can be questioned as to his reasons for failing to request a 19 competency hearing. 20 discussed below, this claim fails on its merits. 21 Petitioner’s facts are accepted as true, there is no need for an 22 evidentiary hearing. 23 Petitioner’s request for an evidentiary hearing on this claim is 24 DENIED. 25 26 2. See 28 U.S.C. § 2254(e)(2). However, as Thus, even if See Sully, 725 F.3d at 1075. Accordingly, Merits Petitioner claims that counsel “failed to press for 27 suspension of criminal proceedings and institution of competence 28 proceedings, despite their knowledge that Petitioner lacked a 43 1 rational understanding of the proceedings and an ability to assist 2 counsel rationally.” 3 Petitioner relies on the same evidence he submitted to support 4 claims one and two. 5 failure to move for a competency hearing when "there are 6 sufficient indicia of incompetence to give objectively reasonable 7 counsel reason to doubt the defendant's competency, and there is a 8 reasonable probability that the defendant would have been found 9 incompetent to stand trial had the issue been raised and fully Amended Petition (hereafter Am. Pet.) at 26. Ineffective assistance of counsel exists for United States District Court For the Northern District of California 10 considered." 11 266 F.3d 257, 283 (3d Cir. 2001). 12 Stanley, 633 F.3d at 862 (quoting Jermyn v. Horn, As discussed above with respect to claim one, even if the 13 Court were to accept all of Petitioner’s facts as true, he has not 14 presented clear and convincing evidence of his incompetence to 15 stand trial. 16 deficiently in failing to request a hearing, Petitioner was not 17 prejudiced by that decision. 18 that if trial counsel had requested a competency hearing, and one 19 had been held, “the result of the proceeding would have been 20 different.” Thus, even if his trial counsel performed There is no “reasonable probability” Strickland, 466 U.S. at 694. 21 Accordingly, the record supports the state court’s conclusion 22 that Petitioner’s trial counsel was not ineffective for failure to 23 request a competency hearing. 24 state court’s decision was “contrary to, or involved an 25 unreasonable application of, clearly established Federal law” or 26 that it “resulted in a decision that was based on an unreasonable 27 determination of the facts in light of the evidence presented” to 28 it. 28 U.S.C. § 2254(d). Petitioner has not shown that the Accordingly, the petition’s claim for 44 1 relief on the ground that trial counsel was ineffective for 2 failing to request a competency hearing is DENIED. 3 However, the Court GRANTS a COA on this claim. 4 D. 5 Petitioner alleges two instances of juror misconduct, both of Claim four: juror misconduct 6 which he claims are evidence of juror bias. 7 one juror was untruthful in her responses to the juror 8 questionnaire and that her omission evidenced bias towards those 9 involved in drug violence. First, he argues that Second, he claims that another juror United States District Court For the Northern District of California 10 slept during the guilt phase of the trial and refused to 11 deliberate, and may have made up her mind before the end of the 12 guilt phase, depriving him of his constitutional right to a trial 13 by twelve impartial jurors. 14 an evidentiary hearing for this claim. 15 Petitioner seeks both discovery and “The Sixth Amendment guarantees criminal defendants a verdict 16 by impartial, indifferent jurors. 17 single juror” would violate a defendant’s right to a fair trial. 18 Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998). 19 The bias or prejudice of even a These claims are procedurally barred as untimely.3 Even if 20 they were not procedurally barred, they are without merit, as 21 discussed below. 22 bar applies; Petitioner has not demonstrated prejudice, see Frady, For this reason, no exception to the procedural 23 24 25 26 27 28 3 Although the California Supreme Court initially denied this claim on the merits, Petitioner's second habeas petition's untimeliness renders this claim procedurally barred. See Harris v. Reed, 489 U.S. 255, 263 (1989) (stating that a procedural bar comes from "the last state court rendering a judgment in the case"). 45 1 456 U.S. at 170, and his new evidence does not demonstrate 2 miscarriage of justice, see McQuiggin, 133 S. Ct. at 1933. 3 1. 4 Facts regarding Juror Langston On her voir dire questionnaire, Juror Langston answered no to 5 several questions with regard to her and her family’s experiences 6 with crime. 7 she or anyone close to her had ever been a victim of a crime, that 8 anyone in her family had ever been accused of a crime, and that 9 she knew anyone who abused drugs or had a drinking problem. See Ex. 166, App. 69. Specifically, she denied that When United States District Court For the Northern District of California 10 asked about “Brother’s and sister’s occupation,” she omitted that 11 she had brothers. 12 “the most important causes of crimes,” and that “the crime problem 13 has increased in recent years” because of “drugs.” 14 She also stated that she believed “drugs” were In a 1998 declaration, however, Juror Langston admitted that, 15 as of the time of Petitioner’s trial, she was “familiar with how 16 people acted under the influence of drugs because a number of 17 [her] brothers were drug users.” 18 that she was “close” to her brothers because she “helped raise 19 them.” 20 admitted that one of her brothers “who was involved with drugs was 21 killed on a street corner in [her] community” in 1977, id., a 22 street corner near where this murder was committed. 23 in close communication with that brother a week before and two 24 days before his death. 25 drugs or money. 26 victim of a burglary in 1964. 27 misstatements constitute evidence of bias. 28 // Id. Ex. 186 at Ex. 78. Two of her brothers had been in prison. She stated She also She had been She believed his death had to do with Lastly, she revealed that she had been the direct Petitioner argues that her 46 1 2. Discovery regarding Juror Langston 2 Petitioner asks for a “(1) subpoena of the prosecutorial 3 files for information on Juror Langston and her brothers; and 4 (2) subpoenas of the Menlo Park Police Department, Palo Alto and 5 East Palo Alto Police Departments, and the Santa Clara Sheriff, of 6 information on Langston’s three brothers.” 7 also asks to depose Juror Langston about the reason she answered 8 the questionnaire dishonestly and “the closeness of the 9 relationship to her brothers.” United States District Court For the Northern District of California 10 Traverse at 55. He Id. This Court has already denied Petitioner's first two 11 requests. 12 subpoenas of this information; rather he vaguely declared that the 13 information gleaned from the records would be “relevant” to his 14 claims. 15 from this defect. 16 Juror Langston’s brothers were involved in drug crimes and had 17 spent time in prison, Petitioner’s claim would still fail. 18 Petitioner does not state what additional essential information is 19 in the records he seeks. 20 requests with respect to this claim are DENIED. 21 Petitioner had failed to provide good cause for His current requests for subpoenas continue to suffer As discussed below, even accepting as true that Accordingly, Petitioner’s subpoena Petitioner’s request for a deposition of Juror Langston is 22 also denied.4 23 discovery in state court; if he did not, his failure demonstrates 24 a lack of due diligence. 25 Juror Langston the reasons for her omissions at the time he Petitioner does not state that he pursued this He also does not state that he asked 26 27 28 4 Apparently it is also moot; counsel has informed the Court that Juror Langston has passed away. 47 1 obtained her declaration as to the incorrect answers. 2 not, he does not state why he did not do so. 3 not state what she said in response. 4 was twenty-seven years ago, and he has known that Juror Langston’s 5 answers were incorrect for the past seventeen years. 6 explain why he has not obtained this information. 7 not established that he was diligent in pursuing the factual 8 predicate for this claim. 9 depose Juror Langston is DENIED. United States District Court For the Northern District of California 10 11 3. If he did If he did, he does Lastly, Petitioner’s trial He does not Petitioner has Accordingly, Petitioner’s request to See Williams, 529 U.S. at 437. Evidentiary hearing regarding Juror Langston Petitioner's request for an evidentiary hearing is moot 12 because Juror Langston is dead. 13 establish that he sought a hearing in state court. 14 2254(e)(2). 15 hearing on this claim is DENIED. 16 17 4. Furthermore, Petitioner does not See 28 U.S.C. Accordingly, Petitioner’s request for an evidentiary Merits regarding Juror Langston Petitioner argues that Juror Langston’s dishonesty during 18 voir dire “precluded [him] from exploring her potential bias 19 stemming from these experiences and from developing a potential 20 challenge for cause.” 21 22 23 24 25 26 27 28 Am. Pet. at 30. The Ninth Circuit explained the importance of voir dire as follows: One important mechanism for ensuring impartiality is voir dire, which enables the parties to probe potential jurors prejudice. For voir dire to function, jurors must answer questions truthfully. Nevertheless, we must be tolerant, jurors may forget incidents long buried in their minds, misunderstand a question or bend the truth a bit to avoid embarrassment. The Supreme Court has held that an honest mistaken answer to a voir dire question rarely amounts to constitutional violation; even an intentionally dishonest answer is not fatal, so long as the falsehood does not bespeak a lack of impartiality. 48 for as yet a 1 Dyer, 151 F.3d at 973. 2 The Ninth Circuit recognizes three forms of juror bias: 3 actual bias, implied bias and "McDonough-style bias." 4 States v. Olsen, 704 F.3d 1172, 1189 (9th Cir. 2013) (citing 5 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554-56 6 (1984)). 7 bias claim because the Supreme Court has never explicitly adopted 8 or rejected the doctrine of implied bias. 9 F.3d 1233, 1248-49 (9th Cir. 2016).5 United States District Court For the Northern District of California 10 United A habeas petitioner cannot obtain relief on an implied Hedlund v. Ryan, 815 Actual bias "stems from a pre-set disposition not to decide 11 an issue impartially." 12 McDonough-style bias, "a party must first demonstrate that a juror 13 failed to answer honestly a material question on voir dire, and 14 then further show that a correct response would have provided a 15 valid basis for a challenge for cause." 16 556. 17 those reasons that affect a juror's impartiality can truly be said 18 to affect the fairness of a trial." 19 Lamarque, 357 F.3d 943, 949 (9th Cir. 2004) (using this standard 20 under AEDPA). Olsen, 704 F.3d at 1189. To prove McDonough, 464 U.S. at "The motives for concealing information may vary, but only Id.; see also Sanders v. 21 22 23 24 25 26 27 28 5 The Ninth Circuit's conclusion in Hedlund appears difficult to reconcile with its pre-AEDPA en banc opinion on implied bias, Dyer. 151 F.3d at 985 n.24 ("Courts disagree . . . about when the doctrine applies, not whether it exists."). See Conaway v. Polk, 453 F.3d 567, 586-88 (4th Cir. 2006) (concluding in post-AEDPA opinion that the "doctrine of implied bias remains," while heavily quoting Dyer); Brooks v. Dretke, 444 F.3d 328, 329-32 & n.5 (5th Cir. 2006) (concluding that implied bias is clearly established federal law under AEDPA, citing Dyer). 49 1 Respondent concedes that Juror Langston’s 1988 voir dire 2 questionnaire and her 1998 declaration were contradictory. 3 argues, however, that because both were executed under penalty of 4 perjury, “[f]aced with the conflicting evidence, the California 5 Supreme Court reasonably could conclude that the juror 6 questionnaire, filled out before the trial and verdict, and before 7 any doubts about the verdict, aided by defense investigators, may 8 have set in, was the more credible.” 9 He Answer at 35. This Court finds Respondent's argument implausible and United States District Court For the Northern District of California 10 assumes that Juror Langston did not fabricate the stories about 11 her brother after the trial. 12 about her brothers. 13 and Juror Langston’s brothers, to whom she admitted she was close, 14 were drug abusers and had spent time in prison for drug-related 15 crimes. 16 drugs or money, and the scene of this crime was very close to 17 where her brother was killed. 18 circumstances of her brothers’ criminal histories and the facts 19 surrounding one brother’s death, but also the fact that she even 20 had brothers. 21 Nor is it plausible that she forgot This case involved drug dealing and murder, She believed that one of her brothers was murdered over She omitted not only the However, Petitioner still fails to meet his burden to 22 establish that Juror Langston was actually biased or biased under 23 McDonough. 24 pursue the facts that might prove his claim. 25 developed facts demonstrating that Juror Langston was pre-disposed 26 not to decide his case impartially or that her motives for 27 concealing information about her brothers affected her As discussed above, Petitioner did not diligently 28 50 Petitioner has not 1 impartiality. 2 Juror Langston was actually biased is DENIED. 3 The petition’s claim for relief on the ground that However, the Court GRANTS a COA on this claim. 4 5. 5 Facts regarding Juror Bourdelais Petitioner claims that Juror Bourdelais’s “actions of 6 sleeping through the guilt phase of the trial and refusing to 7 deliberate deprived [him] of his constitutional right to a trial 8 by twelve impartial jurors.” 9 Am. Pet. at 34. During the penalty phase of the trial, but before penalty United States District Court For the Northern District of California 10 deliberations had begun, Juror Leddy asked to speak to the judge 11 with regard to Juror Bourdelais. 12 overheard Juror Bourdelais complain that she did not want to 13 listen to more witnesses during the penalty phase because she had 14 already made up her mind. 15 hearing at which Juror Bourdelais admitted that, after the guilty 16 verdict and prior to the penalty phase deliberations, she had 17 already made up her mind about the penalty. 18 23. 19 during the guilt phase of the trial, and seemed inattentive. 20 questioned by the trial judge, Juror Bourdelais stated that she 21 “heard everything that’s gone on.” 22 Juror Bourdelais’s admission that she had prematurely made up her 23 mind as to Petitioner’s penalty, the trial judge excused her from 24 the penalty phase deliberations. Juror Leddy stated that he Ex. 133 at RT 13372. The court held a Ex. 134 at RT 13415- The judge noted that it appeared that Juror Bourdelais slept Ex. 134 at RT 13416. When Based on Ex. 134 at RT 13422-23. 25 At the same hearing, Petitioner’s lawyers suggested that 26 perhaps Juror Bourdelais had also made up her mind before the 27 guilt phase deliberations. 28 from the jury during the guilt phase deliberations stating that an This suggestion was based on a note 51 1 unnamed juror had already made up his or her mind and refused to 2 deliberate. 3 trial judge investigated the note at the time it was given to him. 4 Nevertheless, at the hearing regarding Juror Bourdelais, the trial 5 judge explicitly refused to inquire further about that note. Ex. 134 at RT 13418-19. It does not appear that the 6 Petitioner concedes that Juror Bourdelais was properly 7 excused from the penalty phase deliberations when the trial court 8 found that she had violated her oath to stay impartial during the 9 penalty phase. However, he argues, her sleeping during the guilt United States District Court For the Northern District of California 10 phase, as well as his speculation that she was the juror who 11 refused to participate in the guilt phase deliberations, may be 12 evidence that she was biased during the guilt phase as well. 13 14 6. Discovery regarding Juror Bourdelais Petitioner seeks to depose Juror Bourdelais and Juror Leddy 15 to determine whether Juror Bourdelais made comments regarding her 16 bias and, if so, when. 17 established good cause for his request, nor has he established 18 that he was unable to obtain this evidence despite due diligence. 19 Accordingly, his request to depose Jurors Bourdelais and Leddy is 20 DENIED. 21 22 As discussed below, Petitioner has not See Williams, 529 U.S. at 437. 7. Evidentiary hearing regarding Juror Bourdelais As discussed below, the claim fails on its merits. 23 Accordingly, there is no need for an evidentiary hearing. 24 Petitioner’s request for an evidentiary hearing on this claim is 25 DENIED. 26 27 28 Thus, See Sully, 725 F.3d at 1075; 28 U.S.C. § 2254(e)(2). 8. Merits regarding Juror Bourdelais Juror Bourdelais's sleeping does not merit granting habeas relief. “Inattentiveness can be a form of juror misconduct and 52 1 may constitute cause to discharge a juror. 2 inattentiveness is not, per se, a violation of a criminal 3 defendant’s right to due process, a fair trial, or an impartial 4 jury.” 5 (citing Tanner v. United States, 483 U.S. 107, 126-27 (1987)). 6 The Ninth Circuit has explained that “the presence of all awake 7 jurors throughout an entire trial is not an absolute prerequisite 8 to a criminal trial’s ability to ‘reliably serve its function as a 9 vehicle for determination of guilt or innocence.’” However Morales v. Sisto, 2012 WL 3791395, at *22 (N.D. Cal.) United States United States District Court For the Northern District of California 10 v. Olano, 62 F.3d 1180, 1189 (9th Cir. 1995) (citing United States 11 v. Springfield, 829 F.2d 860, 864 (9th Cir. 1987)). 12 “the presence of a sleeping juror during trial does not, per se, 13 deprive a defendant of a fair trial.” 14 Similarly, Id. Similarly, Petitioner's assertion that Juror Bourdelais was 15 the juror who refused to deliberate during the guilt phase is 16 unsupported. 17 juror bias will generally conduct a hearing involving all 18 interested parties to explore the issue of juror bias and provide 19 the defendant an opportunity to prove actual bias. 20 F.3d at 1246; see also Smith v. Phillips, 455 U.S. 209, 215 (1982) 21 (“This Court has long held that the remedy for allegations of 22 juror partiality is a hearing [by the trial court] in which the 23 defendant has the opportunity to prove actual bias”). 24 the fact-finding process is objective and reasonably explores the 25 issues presented, the state trial judge’s findings based on that 26 investigation are entitled to a presumption of correctness. 27 Hedlund, 815 F.3d at 1246-48 (state supreme court’s decision that 28 trial court did not abuse its discretion in refusing to dismiss a A trial court confronted with a colorable claim of 53 Hedlund, 815 So long as See 1 juror who discovered she was distantly related to victim was not 2 contrary to, nor an unreasonable application of, clearly 3 established Supreme Court precedent, where trial court held 4 hearing and was reasonably satisfied that no actual bias was 5 present). 6 Here, Juror Bourdelais's responses during the hearing do not 7 indicate that she had also made up her mind prior to the beginning 8 of the guilt phase deliberations; she spoke about how she needed 9 to hear everything because the other jurors’ ideas may make her United States District Court For the Northern District of California 10 11 change her own ideas. See Ex. 134 at RT 13417-18. Thus, Petitioner has not shown that the state court’s 12 decision was “contrary to, or involved an unreasonable application 13 of, clearly established Federal law” or that it “resulted in a 14 decision that was based on an unreasonable determination of the 15 facts in light of the evidence presented” to it. 16 § 2254(d). 17 ground that Juror Bourdelais committed misconduct by 18 inattentiveness or was biased during the guilt phase is DENIED. 28 U.S.C. Accordingly, the petition’s claim for relief on the 19 E. 20 Petitioner asserts three claims of bias in the jury Claim five: bias in jury selection 21 selection: (1) that his jury was drawn from an unfair cross- 22 section of the community, violating his Sixth Amendment right to a 23 fair and impartial jury; (2) that the systematic exclusion of 24 Hispanics from the jury pool violated his Fifth Amendment right to 25 equal protection; and (3) that the prosecutor discriminated in his 26 use of peremptory challenges, in violation of Batson v. Kentucky, 27 476 U.S. 79 (1986). 28 hearing on this claim. Petitioner seeks discovery and an evidentiary 54 1 These claims are procedurally barred as untimely. Even if 2 they were not procedurally barred, they are without merit, as 3 discussed below. 4 bar applies; Petitioner has not demonstrated prejudice, see Frady, 5 456 U.S. at 170, and his new evidence does not demonstrate 6 miscarriage of justice, see McQuiggin, 133 S. Ct. at 1933. 7 1. 8 9 For this reason, no exception to the procedural Systematic underrepresentation of Hispanics at all stages of jury selection A criminal defendant has a constitutional right stemming from United States District Court For the Northern District of California 10 the Sixth Amendment to a fair and impartial jury pool composed of 11 a cross-section of the community. 12 U.S. 474, 480 (1990); Taylor v. Louisiana, 419 U.S. 522, 538 13 (1975). 14 jurisdiction. 15 943 (9th Cir. 2005), overruled on other grounds by United States 16 v. Hernandez-Estrada, 749 F.3d 1154, 1164 (9th Cir. 2014) (en 17 banc). 18 wheel,” meaning “the list of prospective jurors who have been 19 randomly pulled from the juror source list, have been mailed juror 20 questionnaires, have returned those questionnaires, and have been 21 deemed qualified based on their response to those questionnaires.” 22 Hernandez-Estrada, 749 F.3d at 1161. 23 from the venire, the group of potential jurors called into the 24 courtroom to be questioned for voir dire for the trial. 25 cross-section requirement applies to the jury pool and the venire 26 and is not applicable to the jury that is seated for a defendant’s 27 trial. 28 Nevius v. Sumner, 852 F.2d 463, 466 (9th Cir. 1988). See Holland v. Illinois, 493 The community is the jury-eligible population in the See United States v. Rodriguez–Lara, 421 F.3d 932, The “jury pool” refers to those in the “qualified jury The jury pool is different The fair See Lockhart v. McCree, 476 U.S. 162, 173-74 (1986); 55 1 In Duren v. Missouri, the Supreme Court held that to 2 establish a prima facie violation of the fair-cross-section 3 requirement, a defendant must show “(1) that the group alleged to 4 be excluded is a ‘distinctive’ group in the community; (2) that 5 the representation of this group in venires from which juries are 6 selected is not fair and reasonable in relation to the number of 7 such persons in the community; and (3) that this 8 underrepresentation is due to systematic exclusion of the group in 9 the jury-selection process.” 439 U.S. 357, 364 (1979). The first United States District Court For the Northern District of California 10 showing is easily made in most cases, while the second and third 11 are more likely to generate controversy. 12 U.S. 314, 319 (2010). 13 Berghuis v. Smith, 559 The Supreme Court has explained that, as to the second 14 showing, “neither Duren nor any other decision of [the Supreme] 15 Court specifies the method or test courts must use to measure the 16 representation of distinctive groups in jury pools.” 17 The Ninth Circuit has regularly employed the absolute disparity 18 test, which measures “the difference between the percentage of the 19 distinctive group in the community and the percentage of that 20 group in the jury pool." 21 Although no bright-line rule exists as to what level of absolute 22 disparity violates the Constitution, the Ninth Circuit has Id. at 329. Rodriguez-Lara, 421 F.3d at 943.6 23 24 25 26 27 28 6 Rodriguez-Lara required the absolute disparity test. However, in Hernandez-Estrada, the Ninth Circuit, sitting en banc, overruled that requirement, explaining that "the appropriate test or tests to employ will largely depend on the particular circumstances of each case." 749 F.3d at 1164. The court held that "courts may use one or more of a variety of statistical methods to respond to the evidence presented." Id. 56 1 declined to find underrepresentation of a distinctive group where 2 the absolute disparity was 7.7 percent or lower. 3 Estrada, 749 F.3d at 1164; see also United States v. Suttiswad, 4 696 F.2d 645, 649 (9th Cir. 1982); Thomas v. Borg, 159 F.3d 1147, 5 1151 (9th Cir. 1998) (collecting cases). 6 percent bar is not Supreme Court law, it is inapplicable on 7 habeas. 8 Hernandez- Further, because the 7.7 As to the third prong regarding "systematic exclusion," there is no clearly established Supreme Court precedent supporting that 10 United States District Court For the Northern District of California 9 a petitioner "can make out a prima facie case merely by pointing 11 to a host of factors that, individually or in combination, might 12 contribute to a group's underrepresentation." 13 at 332 (emphasis in original). 14 is not unreasonable for a state court to conclude that Duren 15 requires a petitioner to show that the underrepresentation was due 16 to systematic exclusion." 17 18 a. Berghuis, 559 U.S. Further, the Court explained, it Id. at 333. Discovery Petitioner seeks discovery on this allegation. He requests 19 access to the records for the entire qualified jury pool for San 20 Mateo County at the time of his trial. 21 established good cause for his request because, as discussed 22 below, even if the facts were fully developed, he would not be 23 entitled to relief. 24 was unable to obtain this evidence despite due diligence. 25 his discovery request is DENIED. 26 b. 27 28 Petitioner has not Furthermore, he has not established that he Thus, Evidentiary hearing As discussed below, this claim fails on its merits. Accordingly, there is no need for an evidentiary hearing. 57 Thus, 1 Petitioner’s request for an evidentiary hearing on this claim is 2 DENIED. See Sully, 725 F.3d at 1075; 28 U.S.C. § 2254(e)(2). 3 4 c. Merits In his Traverse, Petitioner relies on the absolute disparity 5 test to contend that Hispanics were systematically 6 underrepresented in the jury pool for San Mateo County at the time 7 of his trial. 8 Hispanics were 15.4 percent of the population, but he estimates 9 that Hispanics comprised only eight percent of the jury pool. He alleges that, according to the 1990 Census, United States District Court For the Northern District of California 10 Thus, Petitioner claims that a conservative estimate of the 11 absolute disparity for the Hispanic population at the time of his 12 trial was 7.4 percent. 13 employs no strict percentage test. 14 apply here, this disparity does not pass muster given that, even 15 when it required the use of the absolute disparity test, the Ninth 16 Circuit declined to find underrepresentation of the distinctive 17 group when the absolute disparity was 7.7 percent or lower. As explained above, the Supreme Court Even if Ninth Circuit law did 18 Furthermore, while Petitioner claims that the 7.4 percent 19 absolute disparity estimate is likely conservative, it is also 20 possible that the figure overestimates the disparity. 21 did not obtain access to the names and racial and ethnic 22 identities of the entire jury pool from the time of his trial, 23 Petitioner extrapolates data from the juror questionnaires 24 (Exhibits 174-183) for the prospective jurors in his trial to 25 derive his 7.4 percent estimate of the proportion of Hispanics in 26 the entire jury pool. 27 commissioner originally called 362 jurors from the jury pool to 28 comprise the venire for Petitioner’s trial. Because he Petitioner alleges that the jury 58 He claims that fifty- 1 nine of those jurors had Spanish surnames but he speculates that 2 only thirty of those jurors were “actually” Hispanic due to the 3 large number of Filipinos in San Mateo County at the time who had 4 Spanish surnames. 5 only eight percent of the venire for his trial and concludes that 6 they comprised eight percent of the entire jury pool.7 7 Petitioner fails to account for the likelihood that there were 8 Hispanic jurors in the jury pool who did not have Spanish 9 surnames. United States District Court For the Northern District of California 10 Thus, he speculates that Hispanics comprised However, Even if Petitioner could satisfy the second prong of the 11 Duren test, that the representation of Hispanics in the jury pool 12 was not fair in relation to the number of Hispanics in San Mateo 13 County at the time of his trial, he provides no evidence (other 14 than references to a California Superior Court transcript in 15 another trial) that any underrepresentation of Hispanics was due 16 to “systematic exclusion of the group in the jury-selection 17 process.” 18 U.S. at 364). 19 transportation hardship excuses, county “quota” systems, failure 20 to follow up with prospective jurors who did not return the 21 questionnaire and the over-representation of non-returns in cities 22 with high Hispanic populations contributed to the systematic Hernandez-Estrada, 749 F.3d at 1165 (citing Duren, 439 Petitioner speculates that the granting of 23 24 25 26 27 28 7 Petitioner also alleges that, after hardship disqualifications, 184 jurors were in his venire and answered questionnaires specific to his trial. Of the 184, Petitioner alleges that thirty-three had Spanish surnames, but that sixteen of those jurors self-identified as non-Hispanic. Petitioner does not state how many of the jurors without Spanish surnames identified as Hispanic. 59 1 exclusion of Hispanics. 2 these practices or any precedential legal authority that any of 3 these practices constitute sufficient evidence of systematic 4 exclusion. 5 Petitioner has not cited any evidence of See Berghuis, 559 U.S. at 332. Accordingly, the record supports the state court’s denial of 6 Petitioner's claim that Hispanics were systematically excluded 7 from the jury pool. 8 court’s decision was “contrary to, or involved an unreasonable 9 application of, clearly established Federal law” or that it Thus, Petitioner has not shown that the state United States District Court For the Northern District of California 10 “resulted in a decision that was based on an unreasonable 11 determination of the facts in light of the evidence presented” to 12 it. 13 ground that the jury pool did not represent a fair cross-section 14 of the community is DENIED. 28 U.S.C. § 2254(d). 15 2. 16 The petition’s claim for relief on the Violation of equal protection Petitioner also claims an equal protection violation due to 17 the continued use of the same discriminatory jury selection 18 mechanism he hypothesized to support his fair cross-section claim. 19 20 21 22 23 24 To establish a prima facie case of such a claim, Petitioner must (1) establish that the group, of which the [petitioner] is a member, is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied; (2) prove the degree of underrepresentation by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time; and (3) discriminatory intent. 25 Hernandez-Estrada, 749 F.3d at 1166 (quoting United States v. 26 Esquivel, 88 F.3d 722, 725 (9th Cir. 1996)) (internal quotation 27 marks omitted); see also Castaneda v. Partida, 430 U.S. 482, 494 28 (1977). The "essential question of underrepresentation is the 60 1 same in both equal protection and fair cross-section challenges." 2 Hernandez-Estrada, 749 F.3d at 1166-67. 3 Hispanics are “a recognizable, distinct class, singled out 4 for different treatment under the laws, as written or as applied.” 5 Hernandez-Estrada, 749 F.3d at 1166; see also Hernandez v. Texas, 6 347 U.S. 475 (1954) (concluding that "persons of Mexican descent" 7 constitute such a class). 8 Supreme Court has not decided what degree of absolute disparity is 9 constitutional. However, as discussed above, the See Wheelock v. Kernan, 2012 WL 359750, at *27 United States District Court For the Northern District of California 10 (N.D. Cal.), aff'd, 571 Fed. App'x. 559 (9th Cir. 2014) (applying 11 this reasoning on habeas to fair cross-section claim and equal 12 protection claim). 13 of underrepresentation. 14 Further, Petitioner has not proven the degree Thus, his equal protection claim fails. Furthermore, Petitioner must show discriminatory intent. See 15 Castaneda, 430 U.S. at 494; Hernandez-Estrada, 749 F.3d at 1166; 16 Thomas, 159 F.3d at 1150. 17 “substantial underrepresentation has occurred,” one can infer 18 discriminatory intent. 19 allege facts to support his allegation of discriminatory intent. 20 See Esquivel, 88 F.3d at 728 (rejecting the argument that “any 21 substantial disparity over a period of time between a group’s 22 percentage on the jury and its percentage in the eligible 23 population is prima facie evidence of discrimination, regardless 24 of the source of jurors” (emphasis omitted)). 25 Further, because there is no clearly established Supreme Court law 26 on how to evaluate discriminatory intent, it was not contrary to, 27 or an unreasonable application of, this body of law not to infer 28 discriminatory intent. Petitioner claims that, because Traverse at 62. 61 He is incorrect. He must He does not do so. 1 Thus, Petitioner has not shown that the state court’s 2 decision was “contrary to, or involved an unreasonable application 3 of, clearly established Federal law” or that it “resulted in a 4 decision that was based on an unreasonable determination of the 5 facts in light of the evidence presented” to it. 6 § 2254(d). 7 ground that the jury selection method violated Petitioner’s right 8 to equal protection is DENIED. 9 United States District Court For the Northern District of California 10 28 U.S.C. Accordingly, the petition’s claim for relief on the 3. Discriminatory peremptory challenges Petitioner alleges that the prosecutor used his peremptory 11 challenges systematically to exclude African-American and Hispanic 12 jurors in violation of Batson, 476 U.S. 79. 13 may not raise a Batson claim here because he failed to object at 14 trial to the prosecution’s use of peremptory challenges. 15 Haney v. Adams, 641 F.3d 1168, 1169, 1173 (9th Cir. 2011). 16 However, Petitioner See In Haney, a petitioner alleged that the prosecutor used 17 peremptory challenges to remove all African-American potential 18 jurors. 19 On state habeas review, the state court rejected Haney’s Batson 20 claim for relief for that reason. 21 district court also denied Haney’s Batson claim, in part because 22 the claim was not raised at trial. 23 district court’s decision. 24 never allowed a Batson challenge to be raised on appeal or on 25 collateral attack, if no objection was made during jury 26 selection.” 27 court’s decision could not be “contrary to” clearly established 28 federal law. Haney’s trial counsel had not objected to the challenges. Id. at 1171. On federal habeas review, the The Ninth Circuit upheld the It ruled that “the Supreme Court has Thus, it reasoned that the state Id. 62 1 Furthermore, the Ninth Circuit stated that Batson itself 2 “presupposes a timely objection.” 3 Court articulated a three-step process for evaluating potentially 4 discriminatory use of peremptory challenges. 5 must make out a prima facie case that the prosecutor exercised 6 peremptory challenges on the basis of race “by showing that the 7 totality of the relevant facts gives rise to an inference of 8 discriminatory purpose.” 9 the requisite showing has been made, the burden shifts to the Id. In Batson, the Supreme First, the defendant Batson, 476 U.S. at 93-94. Second, if United States District Court For the Northern District of California 10 prosecutor to articulate a race-neutral explanation for striking 11 the jurors in question. 12 1190, 1195 (9th Cir. 2000). 13 determine whether the defendant has carried his burden of proving 14 purposeful discrimination. 15 at 1195. 16 prosecutor’s proffered reasons and credibility under ‘the totality 17 of the relevant facts,’ using all the available tools including 18 its own observations and the assistance of counsel.” 19 Hall, 391 F.3d 1039, 1047 (9th Cir. 2004) (quoting Lewis v. Lewis, 20 321 F.3d 824, 831 (9th Cir. 2003)). 21 requirements, the Ninth Circuit reasoned that the determination of 22 whether a peremptory strike was discriminatory depends heavily on 23 the trial judge’s own observations. 24 "be difficult, if not impossible, to evaluate for the first time 25 in post-conviction proceedings when no record is preserved,” which 26 would require the prosecution to reconstruct, years later, the 27 reasons for the strikes. 28 Haney, the state court’s decision was not “‘an unreasonable Id. at 97; Wade v. Terhune, 202 F.3d Finally, the trial court must Batson, 476 U.S. at 98; Wade, 202 F.3d To fulfill its duty, the “court must evaluate the In light of these These determinations would Haney, 641 F.3d at 1172. 63 Mitleider v. Thus, in 1 application’ of the law clearly established in Batson” because 2 Batson presupposes an objection made at trial. 3 true here. Id. The same is 4 Petitioner has not shown that the state court’s decision was 5 “contrary to, or involved an unreasonable application of, clearly 6 established Federal law” or that it “resulted in a decision that 7 was based on an unreasonable determination of the facts in light 8 of the evidence presented” to it. 9 Accordingly, the petition’s claim for relief on the ground of United States District Court For the Northern District of California 10 28 U.S.C. § 2254(d). unconstitutional Batson violations is DENIED. 11 F. Claim nine: ineffective assistance of trial counsel during guilt phase 12 13 Petitioner raises eleven instances of ineffective assistance 14 of trial counsel during the guilt phase of his trial. 15 both discovery and an evidentiary hearing on this claim. 16 raises other ineffective assistance of counsel subclaims that 17 relate to other claims, which do not overlap with his claim nine 18 arguments. 19 in which it was raised. 20 He requests He also The Court addresses each argument within the context As noted above, to prevail on a Sixth Amendment claim of 21 ineffectiveness of trial counsel, Petitioner must establish that 22 counsel’s performance was deficient and that he was prejudiced by 23 it. 24 See Strickland, 466 U.S. at 687-88. This claim is procedurally barred as untimely. Even if it 25 were not procedurally barred, it is without merit, as discussed 26 below. 27 applies; Petitioner has not demonstrated prejudice, see Frady, 456 For this reason, no exception to the procedural bar 28 64 1 U.S. at 170, and his new evidence does not demonstrate miscarriage 2 of justice, see McQuiggin, 133 S. Ct. at 1933. 3 4 1. Discovery Petitioner asks to depose trial counsel as to the reasons for 5 several decisions made in the case. 6 Petitioner has not established good cause for his request, nor has 7 he established that he was unable to obtain this evidence despite 8 due diligence. 9 request to depose his trial counsel is DENIED. United States District Court For the Northern District of California 10 11 2. As discussed below, See Williams, 529 U.S. at 437. Accordingly, his Evidentiary hearing As discussed below, this claim fails on its merits. 12 Accordingly, there is no need for an evidentiary hearing. 13 Petitioner’s request for an evidentiary hearing on this claim is 14 DENIED. 15 Thus, See Sully, 725 F.3d at 1075; 28 U.S.C. § 2254(e)(2). 3. Merits 16 a. 17 Trial counsel failed to investigate and present overwhelming evidence that Petitioner was incompetent to stand trial 18 The substance of this claim is the same as that presented in 19 claim three. 20 accepting all of Petitioner’s facts as true, he has not presented 21 clear and convincing evidence of his incompetence to stand trial. 22 Thus, even if his trial counsel’s performance was deficient in 23 failing to request a hearing, Petitioner was not prejudiced by 24 that decision. 25 relief for this allegation of ineffective assistance of trial 26 counsel is DENIED. 27 As discussed with respect to that claim, even Accordingly, the petition’s request for habeas However, the Court GRANTS a COA on this claim. 28 65 b. 1 2 Trial counsel failed to litigate the state’s destruction of evidence and seek appropriate sanctions The substance of this claim is the same as that presented in 3 claim fourteen. As discussed below with respect to that claim, 4 even accepting all of Petitioner’s facts as true, his claim of 5 failure to preserve evidence of Mr. Zavala’s cash and his own car 6 is without merit. Thus, even if trial counsel’s performance was 7 deficient in failing to litigate this issue, Petitioner was not 8 prejudiced by that decision. Accordingly, the petition’s request 9 for habeas relief for this allegation of ineffective assistance of 10 United States District Court For the Northern District of California trial counsel is DENIED. 11 c. 12 13 Trial counsel failed to investigate Petitioner’s mental state at the time of the crime 14 Petitioner relies on the same allegations and evidence of 15 mental impairment to argue both that he had an impaired mental 16 state at the time of the crime and that he was incompetent to 17 stand trial. 18 Petitioner has not established that he was legally insane at 19 the time of the crime, which requires a finding by preponderance 20 of the evidence that the defendant “was unable either to 21 understand the nature and quality of the criminal act, or to 22 distinguish right from wrong when the act was committed.” 23 People v. Elmore, 59 Cal. 4th 121, 140 (2014) (citing Cal. Penal 24 Code § 25(b)). 25 deficient in failing to investigate this issue and present an 26 insanity defense, Petitioner was not prejudiced by that decision 27 because he would not have been able to carry his burden of proof. See Thus, even if trial counsel’s performance was 28 66 1 Accordingly, the petition’s request for habeas relief for this 2 allegation of ineffective assistance of trial counsel is DENIED. 3 d. 4 5 6 Trial counsel failed to request appropriate jury instructions on the relevance of drug and alcohol intoxication to the mental state element of the offenses Petitioner asserts that trial counsel was prejudicially 7 ineffective when he failed to request jury instructions on the 8 relevance of Petitioner’s drug and alcohol use on his mental 9 culpability, despite ample evidence in the record on which to base United States District Court For the Northern District of California 10 such a request. 11 jury instructions, the Ninth Circuit distinguishes those failures 12 "based on 'a misunderstanding of the law'" from strategic 13 decisions "'to for[]go one defense in favor of another.'" 14 v. Herzog, 798 F.3d 840, 852 (9th Cir. 2015) (quoting United 15 States v. Span, 75 F.3d 1383, 1387 (9th Cir. 1996)). In applying Strickland to failures to request Crace 16 Here, there was no basis to request such an instruction. 17 Petitioner did not testify in his own defense, so there is no 18 direct evidence from him as to his drug use that day. 19 Ontiveros testified that she and co-perpetrator Mr. Garcia 20 injected heroin together, but made no mention of having shared it 21 with Petitioner. 22 regarding his notations in Petitioner’s medical records prior to 23 surgery the following morning, he indicated that at no time while 24 Petitioner was at Highland Hospital did he appear to be under the 25 influence of any substance. 26 counsel's decision was likely strategic because he chose to pursue 27 a wrongful identification defense over a mental state defense. Ex. 93 at RT 9843. When Dr. Jamieson testified Ex. 104 at RT 10980. 28 67 Ms. Further, 1 Accordingly, Petitioner has failed to meet his burden of 2 showing that the state court’s decision that counsel did not 3 render ineffective assistance was “contrary to, or involved an 4 unreasonable application of, clearly established Federal law” or 5 that it “resulted in a decision that was based on an unreasonable 6 determination of the facts in light of the evidence presented” to 7 it. 8 relief for this allegation of ineffective assistance of trial 9 counsel is DENIED. 28 U.S.C. § 2254(d). United States District Court For the Northern District of California 10 e. 11 The petition’s request for habeas Trial counsel failed to present evidence that would undermine Mr. Zavala’s testimony The substance of this claim is the same as that presented in 12 claims fourteen and twenty. As discussed below with respect to 13 those claims, even accepting all of Petitioner’s facts as true, 14 his claims of failure to present evidence of Mr. Zavala’s alleged 15 bias and of his missing cash are without merit. Thus, even if 16 trial counsel’s performance was deficient in failing to litigate 17 these issues, Petitioner was not prejudiced by that decision. 18 Accordingly, the petition’s request for habeas relief for this 19 allegation of ineffective assistance of trial counsel is DENIED. 20 f. 21 Trial counsel failed to impeach adequately Ms. Vargas’s identification 22 23 24 25 26 27 28 Petitioner argues that trial counsel rendered ineffective assistance by failing to introduce into evidence numerous reports in counsel’s possession that contained inconsistent statements regarding Ms. Vargas’s ability to see the perpetrators and the race of one of the individuals, whom she later identified as Petitioner. These reports were submitted as Exhibits 166 and 168, 68 1 Appendices 68, 71, 89, 90, 91, 92, and 111. 2 Supreme Court denied the claim on the merits. 3 This claim is without merit. The California Appendix 90 is the bulletin 4 issued by the Santa Clara County Police Department and Appendix 91 5 is the police dispatch record for that evening. 6 documents include reports by police officers who questioned Ms. 7 Vargas, about which Petitioner’s counsel cross-examined her, and 8 her own direct statement, again the subject of counsel’s cross- 9 examination. United States District Court For the Northern District of California 10 11 The other The information contained in each document is repetitive and cumulative. Appendix 111, the statement of Detective Ronald Williams, was 12 prepared after the night of the events. 13 and Ms. Vargas were cross-examined regarding that statement. Both Detective Williams 14 Petitioner has not shown that the state court’s decision was 15 “contrary to, or involved an unreasonable application of, clearly 16 established Federal law” or that it “resulted in a decision that 17 was based on an unreasonable determination of the facts in light 18 of the evidence presented” to it. 19 Accordingly, the petition’s request for habeas relief for this 20 allegation of ineffective assistance of trial counsel is DENIED. 21 22 g. 28 U.S.C. § 2254(d). Trial counsel failed to investigate and present evidence to impeach Ms. Ontiveros’s testimony 23 24 Much of the substance of this claim relies on the same 25 evidence as that presented to support claim fifteen and the 26 arguments raised in claim twenty. 27 to those claims, Petitioner has failed to show that the evidence 28 is credible or admissible. 69 As discussed below with respect 1 Moreover, Petitioner has failed to show that he has suffered 2 prejudice as a result of counsel’s failure to procure and present 3 the evidence he includes with his habeas petition. 4 examination, Petitioner’s trial attorney got Ms. Ontiveros to 5 admit to fifteen instances of lying to the police during the 6 course of the investigation. 7 was prepared to question her about more lies to the police, but 8 the trial court sustained an objection to continued questioning 9 because the point had been made. United States District Court For the Northern District of California 10 On cross- Ex. 92-93 at RT 9780-874. Counsel Ex. 93 at RT 9876-77. Petitioner’s trial counsel also challenged Ms. Ontiveros’s 11 assertion that she had decided to tell the truth to the police 12 because of her religious dedication. 13 she admitted that she stopped going to church when she turned 14 eighteen and that she did not attend services while using drugs. 15 Ex. 93 at RT 9835-36. 16 came to question her regarding the murder, they came with twenty 17 SWAT team officers and surrounded the facility where she was 18 staying as a part of probation. 19 had a lengthy conversation with her and then arrested her for 20 murder. 21 truth after being transported to jail. 22 month after she told the police her version of events, she entered 23 into a plea bargain dismissing all claims except conspiracy to 24 commit robbery, to which she entered a nolo contendere plea, and 25 received a four-year sentence that she served in a Mother-Infant 26 program and county jail. During cross-examination, She also admitted that, when the police Ex. 92 at RT 9788. Ex. 92 at RT 9786. The police She contacted the police to tell the Ex. 93 at RT 9888. One Ex. 92 at RT 9789-90. 27 Ms. Ontiveros acknowledged that, in her initial statement, 28 she swore to God on her children that she was telling the truth 70 1 because she was trying to protect herself, Ex. 93 at RT 9878, yet 2 she continuously lied to police. 3 removed from the Mother-Infant program to which she had been 4 sentenced initially and that her child was placed in Ms. 5 Ontiveros’s mother’s care. She admitted that she was Ex. 92 at RT 9791. 6 Additionally, she admitted that she was in love with co- 7 perpetrator Mr. Garcia at the time of the crime and remained so as 8 of the time of Petitioner’s trial. 9 9829. United States District Court For the Northern District of California 10 11 Ex. 92 at RT 9719; Ex. 93 at She explained her lies to the police as an attempt to protect Mr. Garcia. Ex. 93 at RT 9874. During trial, she discussed her extensive heroin and 12 injectable cocaine use, her exchange of sex for drugs and money, 13 and her “ripping off” her own heroin customers. 14 9736, 9812; Ex. 93 at RT 9823. 15 should have been explored with this witness was covered by trial 16 counsel’s cross-examination. 17 introduce in the habeas proceeding would be cumulative or 18 extraneous. 19 Ex. 92 at RT Much of what Petitioner argues Some of what Petitioner seeks to Petitioner argues that counsel failed to discover and present 20 additional evidence pertaining to Ms. Ontiveros, namely (1) Ms. 21 Ontiveros regularly robbed drug dealers at knife point, and 22 (2) when she was arrested for robbery prior to being arrested for 23 the instant crimes, she was admitted to jail with a black-handled 24 knife, the same kind of knife used in the murder for which 25 Petitioner was convicted. 26 not substantiate his claim regarding Ms. Ontiveros’s regular 27 practice of robbing drug dealers with Mr. Garcia. 28 admitted planning the robbery and discussing it with Mr. Garcia The affidavit Petitioner submits does 71 Ms. Ontiveros 1 and Petitioner. 2 robbery, the jury could conclude this was not her first such 3 offense. 4 Ontiveros said it would be and had his blood on it. 5 has not provided any evidence to show that Ms. Ontiveros’s knife 6 was similar enough to the murder weapon that, had it been 7 introduced, there would have been “a reasonable probability that 8 . . . the result of the proceeding would have been different.” 9 Strickland, 466 U.S. at 694. United States District Court For the Northern District of California 10 Between that and her admitted convictions for As for the knife, Petitioner’s knife was found where Ms. Petitioner Accordingly, the petition’s request for habeas relief for 11 this allegation of ineffective assistance of trial counsel is 12 DENIED. h. 13 14 15 Trial counsel failed to investigate crucial evidence to allow him to cross examine Ms. Ontiveros effectively Petitioner argues that counsel failed to investigate 16 information with regard to Ms. Ontiveros’s background and role in 17 the crime. 18 to impeach Ms. Ontiveros’s testimony. 19 He claims that this information could have been used The information Petitioner claims counsel did not investigate 20 is the same information he claims in claim twenty that the 21 prosecution failed to disclose. 22 to that claim, even accepting all of Petitioner’s facts as true, 23 his claim that trial counsel failed to present evidence to impeach 24 Ms. Ontiveros is without merit. 25 performance was deficient in failing to discover and present this 26 evidence, Petitioner was not prejudiced by that decision. 27 Accordingly, the petition’s request for habeas relief for this 28 allegation of ineffective assistance of trial counsel is DENIED. As discussed below with respect Thus, even if trial counsel’s 72 1 i. 2 3 Trial counsel failed to investigate and present evidence that Mr. Garcia both planned the crime and killed Mr. Barragan In support of claim fifteen below, Petitioner’s actual 4 innocence claim, Petitioner submitted a declaration from co- 5 perpetrator Mr. Garcia. 6 the declaration is not credible. 7 credited, it still places Petitioner at the scene and “involved” 8 in the events. 9 he had been called to testify at Petitioner’s trial Mr. Garcia As discussed with respect to that claim, Even if the declaration could be Moreover, the declaration does not state that if United States District Court For the Northern District of California 10 would have testified to the events as stated in his declaration. 11 Such a scenario seems unlikely, as Mr. Garcia was also charged 12 with murder and anything he said in defense of Petitioner at 13 Petitioner’s trial could have been introduced against him at his 14 own trial. 15 The only testimony that Petitioner murdered Mr. Barragan came 16 from the decedent’s brother, Mr. Zavala. 17 forward any additional witnesses who could testify knowingly that 18 co-perpetrator Mr. Garcia committed the murder. 19 Petitioner has not put Petitioner has failed to show either deficient performance or 20 prejudice and, therefore, has failed to show that the state 21 court’s denial of this claim was unreasonable. 22 § 2254(d). 23 for this allegation of ineffective assistance of trial counsel is 24 DENIED. 25 26 27 28 See 28 U.S.C. Accordingly, the petition’s request for habeas relief j. Trial counsel failed to investigate and present evidence to impeach Ms. Sturns’ testimony Ms. Sturns testified that, around the time of the crime, she saw two Hispanic men in dark clothes coming out of the backyard of 73 1 her apartment building, which was located next to the victims’ 2 apartment building. 3 to present evidence of Ms. Sturns’ criminal history, which could 4 have been used to impeach her testimony. 5 Petitioner alleges that trial counsel failed This claim is weak: even if the jury had been made aware of 6 Ms. Sturns’ criminal history, there is no strong inference that 7 the jury would have found her testimony to be less truthful. 8 Thus, even if trial counsel’s performance was deficient in failing 9 to use Ms. Sturns’ criminal history to attempt to impeach her United States District Court For the Northern District of California 10 testimony, Petitioner was not prejudiced by that decision. 11 Accordingly, the petition’s request for habeas relief for this 12 allegation of ineffective assistance of trial counsel is DENIED. 13 k. 14 15 Trial counsel failed to contest meaningfully the prosecution’s forensic presentation The substance of this claim is the same as that presented in 16 claim twenty-one. 17 even accepting all of Petitioner’s facts as true, his claim that 18 his counsel failed to present effectively evidence to contest the 19 criminalist’s findings is without merit. 20 counsel’s performance was deficient in failing litigate this 21 issue, Petitioner was not prejudiced by that decision. 22 Accordingly, the petition’s request for habeas relief for this 23 allegation of ineffective assistance of trial counsel is DENIED. 24 25 l. As discussed below with respect to that claim, Thus, even if trial Trial counsel failed to present evidence of Petitioner’s brother’s mental disabilities Petitioner’s brother Raymond testified on behalf of the 26 prosecution that Petitioner explained his arm wound after the 27 crime as an accident when a car transmission fell on his arm. 28 74 1 Petitioner alleges that trial counsel failed to present evidence 2 of Raymond’s mental deficiencies and criminal history to impeach 3 his testimony as unreliable. 4 This claim is weak. Even if the jury had been made aware of Raymond’s intellectual limitations and criminal history, there is 6 no strong inference that the jury would have found his testimony 7 to be less truthful. 8 was deficient in failing to use Raymond’s intellectual 9 deficiencies and criminal history to attempt to impeach his 10 United States District Court For the Northern District of California 5 testimony, Petitioner was not prejudiced by that decision. 11 Accordingly, the petition’s request for habeas relief for this 12 allegation of ineffective assistance of trial counsel is DENIED. 13 4. Thus, even if trial counsel’s performance Conclusion 14 In sum, the record supports the conclusion that trial 15 counsel’s performance, even if deficient in any respect, did not 16 prejudice Petitioner. 17 that his trial counsel was ineffective under Strickland for these 18 alleged errors, he cannot establish that the state court was 19 unreasonable in its application of Strickland. 20 allegations cannot support the petition’s claim of ineffective 21 assistance of trial counsel. 22 state court’s decision was “contrary to, or involved an 23 unreasonable application of, clearly established Federal law” or 24 that it “was based on an unreasonable determination of the facts 25 in light of the evidence presented” to it. 26 The petition’s claim for relief on the ground of ineffective 27 assistance of trial counsel is DENIED. Given that Petitioner fails to establish Thus, these Petitioner has not shown that the 28 75 28 U.S.C. § 2254(d). 1 G. 2 Potential witness Laverne Johnson was represented in a 3 capital murder trial by counsel from the same law firm that 4 employed the attorney who represented Petitioner at his trial. 5 Petitioner argues that his trial attorney failed to call Mr. 6 Johnson to impeach Ms. Ontiveros, and that this amounted to 7 deficient representation due to the conflict of interest. 8 Petitioner requests discovery and an evidentiary hearing on this 9 claim. Claim ten: trial counsel’s conflict of interest This claim is procedurally barred as untimely. Even if it United States District Court For the Northern District of California 10 were not procedurally barred, it is without merit, as discussed 11 below. 12 applies; Petitioner has not demonstrated prejudice, see Frady, 456 13 U.S. at 170, and his new evidence does not demonstrate miscarriage 14 of justice, see McQuiggin, 133 S. Ct. at 1933. 15 For this reason, no exception to the procedural bar Under the Sixth Amendment, a criminal defendant is entitled 16 to conflict-free representation. 17 1195 (9th Cir. 1994) (citing Wood v. Georgia, 450 U.S. 261, 271 18 (1981)). 19 advocating on behalf of his or her client without fear or favor, 20 counsel is not playing the role necessary to ensure that the trial 21 is fair. 22 Garcia v. Bunnell, 33 F.3d 1193, If a conflict of interest prevents counsel from See Strickland, 466 U.S. at 685-86. The Sixth Amendment right to conflict-free counsel is 23 violated only if the conflict “adversely affected” trial counsel’s 24 performance. 25 2006) (explaining what petitioner “must show” in the habeas 26 context). 27 interest mean[s] precisely a conflict that affected counsel’s 28 performance -- as opposed to a mere theoretical division of Alberni v. McDaniel, 458 F.3d 860, 872 (9th Cir. As the Supreme Court explained, “an actual conflict of 76 1 loyalties.” 2 and internal quotation marks omitted). 3 4 Mickens v. Taylor, 535 U.S. 162, 171 (2002) (emphasis 1. Discovery As explained below, Petitioner alleges that Ms. Ontiveros 5 discussed potentially impeaching evidence in letters to Mr. 6 Johnson while they were both in jail. 7 of all the letters exchanged between Mr. Johnson and Ms. 8 Ontiveros. 9 proffers nothing but his own speculation that the letters exist He has not shown good cause for such discovery. 10 United States District Court For the Northern District of California Petitioner seeks discovery with the content he describes. 11 He DENIED. 12 13 2. Thus, his discovery request is Evidentiary hearing As discussed below, the claim fails on its merits. 14 Accordingly, there is no need for an evidentiary hearing. 15 Petitioner’s request for an evidentiary hearing on this claim is 16 DENIED. 17 18 Thus, See Sully, 725 F.3d at 1075; 28 U.S.C. § 2254(e)(2). 3. Merits Mr. Johnson was housed in the San Mateo County Jail sometime 19 in late 1987, around the same time Ms. Ontiveros was housed there. 20 Petitioner claims that Mr. Johnson and Ms. Ontiveros developed a 21 relationship while in jail, through letters. 22 those letters, “Ontiveros admitted setting up the robbery to 23 Johnson and placed blame for the homicide on Juan Garcia, 24 petitioner’s alleged co-perpetrator. 25 petitioner’s role.” 26 these letters, she expressed her fear of Mr. Garcia and disclosed 27 that she had been in a sexual relationship with an Alameda County 28 Deputy Sheriff. Am. Pet. at 133. He argues that, in She made no reference to He also claims that, in Petitioner provides only a part of a letter from 77 1 Ms. Ontiveros to Mr. Johnson, but in it she writes nothing about 2 Petitioner’s case or her own case, nor does she refer to Mr. 3 Garcia or the Deputy Sheriff. 4 believe that Mr. Johnson, even if called to testify, would have 5 testified as Petitioner speculates. 6 Accordingly, there is no reason to Petitioner claims his counsel could not call Mr. Johnson as a 7 witness in his case "because he could not advance petitioner’s 8 interest to Johnson’s detriment. 9 would have had adverse penal consequences to Johnson.” Calling Johnson as a witness Id. at United States District Court For the Northern District of California 10 134. 11 have faced Mr. Johnson for having a relationship in violation of 12 the jail’s rules. 13 actual conflict affected counsel’s decision-making. 14 points out, Mr. Johnson was sentenced to death a month before 15 Petitioner’s trial began. 16 not to call Mr. Johnson because the prosecution could have easily 17 impeached him, rendering his testimony, at best, insignificant. 18 Furthermore, had the relationship been discovered, the penalty to 19 Mr. Johnson would have been de minimis given his death sentence. 20 Petitioner appears to be referring to the penalty that might However, Petitioner fails to establish that any As Respondent Counsel could have reasonably decided Accordingly, the record supports the state court’s conclusion 21 that trial counsel was not ineffective due to a conflict of 22 interest. 23 decision was “contrary to, or involved an unreasonable application 24 of, clearly established Federal law” or that it “resulted in a 25 decision that was based on an unreasonable determination of the 26 facts in light of the evidence presented” to it. Thus, Petitioner has not shown that the state court’s 27 28 78 28 U.S.C. 1 § 2254(d). 2 ground of ineffective assistance of trial counsel due to a 3 conflict of interest is DENIED. Accordingly, the petition’s claim for relief on the 4 H. 5 Petitioner argues that his constitutional rights were 6 violated by the admission of a videotape containing a series of 7 “‘reenactments,’ which bore not a single fact or circumstance in 8 common with the events of the night of the crime.” 9 135. Claim eleven: admission of videotaped re-enactment Am. Pet. at Petitioner asserts that the tape was introduced for the United States District Court For the Northern District of California 10 purpose of bolstering an eyewitness identification by Maria 11 Vargas, as well as to duplicate the events she testified to 12 witnessing. 13 videotape being filmed during the day, when visibility would be 14 significantly different from that at the actual time of the crime; 15 (2) the fact that it shows a white man running down the stairs in 16 a white shirt, as opposed to a dark-skinned man in dark clothing; 17 and (3) the fact that scenes show Ms. Vargas standing either 18 outside or in an open doorway, although the door was closed during 19 the incident and her view of the perpetrators fleeing was through 20 her window. 21 evidentiary hearing on this claim. 22 Petitioner takes particular issue with: (1) the Petitioner does not request discovery or an The California Supreme Court rejected Petitioner's claim that 23 "the videotape's inaccuracies created a misleading impression of 24 the events witnessed by Vargas." 25 The court explained: 26 27 28 Rodrigues, 8 Cal. 4th at 1115. The videotape had been offered as demonstrative evidence to show the jurors the relative locations of the victims’ apartment, Vargas’s apartment, the rear stairway and the driveway of the apartment building. In particular, the 79 1 videotape had been intended in part to show Vargas’s vantage point as she witnessed the assailants flee the scene. 2 Id. at 1114. 3 established that one of the men she saw escaping, whom she later 4 identified as Petitioner, was a dark-skinned man in dark clothing, 5 that the viewing took place late at night, in the dark, and that 6 she viewed the escaping men through the window. 7 The court assumed that the jurors understood and accounted for the 8 discrepancies between the video and Ms. Vargas’s testimony. 9 at 1115. United States District Court For the Northern District of California 10 By contrast, Ms. Vargas’s subsequent testimony Id. at 1114-15. Id. On habeas review, a federal court considers only whether a 11 conviction violated constitutional norms; where evidence was 12 erroneously admitted, a federal court will grant relief only if 13 that admission violated fundamental due process and the right to a 14 fair trial. 15 Colley v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986). 16 Court “has not yet made a clear ruling that admission of 17 irrelevant or overtly prejudicial evidence constitutes a due 18 process violation sufficient to warrant issuance of the writ.” 19 Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) 20 (explaining that, by contrast, the Supreme Court has made clear 21 that a court should grant habeas relief when constitutional 22 evidentiary errors have rendered the trial fundamentally unfair). 23 Admitted evidence does not violate due process if there is a 24 rational, permissible inference the jury could draw from it. 25 Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). 26 Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); The Supreme Here, the evidence was introduced to show the layout of Ms. 27 Vargas’s apartment. 28 showing the lighting conditions at the time she witnessed the men It was not admitted for the purpose of 80 1 fleeing the apartment building, nor was it admitted for the 2 purpose of showing skin color or clothing color for the men 3 leaving the building the night of the murder. 4 Supreme Court noted, the distinctions between the events depicted 5 in the videotape and Ms. Vargas’s testimony as to what occurred 6 that night, including her vantage point to see it, were obvious. 7 Accordingly, the jury could reasonably infer from the videotape 8 the proper purpose of showing the layout of the apartment 9 building. United States District Court For the Northern District of California 10 As the California Petitioner also argues that admission of the videotape 11 violated his rights because it was admitted in violation of the 12 California Evidence Code. 13 claim because a federal habeas court does not review questions of 14 state evidence law. This is not a cognizable federal habeas Henry, 197 F.3d at 1031. 15 Petitioner has not shown that the state court’s decision was 16 “contrary to, or involved an unreasonable application of, clearly 17 established Federal law” or that it “resulted in a decision that 18 was based on an unreasonable determination of the facts in light 19 of the evidence presented” to it. 20 Accordingly, the petition’s claim for relief on the ground that 21 admission of the videotape violated Petitioner’s constitutional 22 rights is DENIED. 23 I. 24 25 28 U.S.C. § 2254(d). Claim twelve: prosecution’s use of unreliable hearsay identification evidence This claim is procedurally barred as untimely. Even if it 26 were not procedurally barred, it is without merit, as discussed 27 below. 28 applies; Petitioner has not demonstrated prejudice, see Frady, 456 For this reason, no exception to the procedural bar 81 1 U.S. at 170, and his new evidence does not demonstrate miscarriage 2 of justice, see McQuiggin, 133 S. Ct. at 1933. 3 Petitioner argues that the admission of hearsay testimony from police detective Ronald Williams violated Petitioner’s 5 constitutional rights to “confrontation and cross-examination, the 6 effective assistance of counsel, present a defense, due process, a 7 fair trial, and a reliable, accurate, non-arbitrary determination 8 in a capital case.” 9 challenges statements by Detective Williams about Ms. Vargas's 10 United States District Court For the Northern District of California 4 identifications of Mr. Garcia as one of the individuals she saw 11 leaving the scene. 12 testimony that neither Ms. Vargas nor Mr. Zavala identified Nathan 13 Howard or Richard Lopez, although they were shown photos of these 14 allegedly alternative suspects. 15 discovery or an evidentiary hearing on this claim. 16 Supreme Court denied the claim on state law grounds. 17 found no violation of the Confrontation Clause because Ms. Vargas 18 had not been discharged at the time of Detective Williams’s 19 testimony and she was recalled for rebuttal following his 20 testimony. 21 argued on direct appeal that the admission of the prior 22 identifications of Mr. Garcia denied him due process, a fair jury 23 trial and a reliable guilt determination. 24 court noted that Petitioner waived these claims, denied them on 25 the merits and concluded that any error was harmless. Am. Pet. at 141. Specifically, Petitioner He also complains of Detective Williams's Petitioner does not request Rodrigues, 8 Cal. 4th at 1117-19. The California It also Petitioner also Id. at 1119 n.22. The Id. 26 Additionally, Petitioner argues that counsel was ineffective 27 for failing to preserve the issue on appeal and failing to cross- 28 82 1 examine Ms. Vargas on her prior identifications. 2 other constitutional violations, as discussed below. 3 1. He also alleges Confrontation Clause violation 4 The Confrontation Clause of the Sixth Amendment provides that 5 in criminal cases the accused has the right to “be confronted with 6 the witnesses against him.” 7 goal of the Confrontation Clause is to ensure reliability of 8 evidence, but it is a procedural rather than a substantive 9 guarantee. U.S. Const. amend. VI. The ultimate Crawford v. Washington, 541 U.S. 36, 61 (2004). “It United States District Court For the Northern District of California 10 commands, not that evidence be reliable, but that reliability be 11 assessed in a particular manner: by testing in the crucible of 12 cross-examination.” 13 Id. The Confrontation Clause applies to all “testimonial” 14 statements. 15 solemn declaration or affirmation made for the purpose of 16 establishing or proving some fact.” 17 marks, brackets and citation omitted). 18 applies not only to in-court testimony but also to out-of-court 19 statements introduced at trial, regardless of the admissibility of 20 the statements under state laws of evidence. 21 See id. at 50-51. “Testimony . . . is typically a Id. at 51 (internal quotation The Confrontation Clause Id. at 50-51. Out-of-court statements constitute hearsay when offered in 22 evidence to prove the truth of the matter asserted. 23 United States, 417 U.S. 211, 219 (1974). 24 does not bar the admission of testimonial hearsay when the 25 declarant appears for cross-examination at trial. 26 U.S. at 59 n.9 (citing California v. Green, 399 U.S. 149, 162 27 (1970)). 28 83 Anderson v. The Confrontation Clause Crawford, 541 a. 1 2 3 Statements Regarding Ms. Vargas’s Identifications of Co-Perpetrator Mr. Garcia and Failure to Identify Other Suspects Ms. Vargas testified about both a photo line-up and a 4 physical line-up. 5 photo line-up, Ms. Vargas stated that one of the photographs 6 looked like one of the suspects, but she told the police that she 7 did not think the photograph was of one of the suspects. 8 she impliedly testified that she did not select any other photos. 9 She testified that she did not tell the police everything because United States District Court For the Northern District of California 10 11 she was afraid. See Ex. 91 at RT 9630-31. When discussing the Thus, Ex. 91 at RT 9631. Later, Detective Williams confirmed that Ms. Vargas did not 12 identify Nathan Howard or Richard Lopez in the photo line-up. 13 101 at RT 10695. 14 Garcia had the "same round face" and that the "hair is the same" 15 as the man she recognized, but she also said "I don't think it's 16 any one of them." 17 Ms. Vargas identified Mr. Garcia at his preliminary hearing in 18 court. 19 Ex. He testified that she said that the photo of Mr. Id. Later, Detective Williams testified that Id. at RT 10696. Ms. Vargas was recalled to the stand by the prosecution to 20 rebut testimony given by Detective Williams when he was called as 21 a witness in the defense’s case. 22 Petitioner’s defense attorney cross-examined her regarding 23 pictures of Petitioner that she may have been shown before making 24 in-court identifications. 25 testimony, Ms. Vargas stated that she wanted to leave because her 26 kids were alone. 27 said: "for now you are." See Ex. 106 at RT 11221-29. Id. at RT 11123-27. Following this When asked if she could be excused, the court Id. at RT 11229. 28 84 Because Ms. Vargas was 1 still available to testify, and was recalled following Detective 2 Williams’s testimony, there is no Confrontation Clause violation. 3 b. 4 5 Victim Zavala’s Failure to Identify Other Suspects Mr. Zavala testified on cross-examination that he recalled 6 being shown photographs, but that he was unable to identify anyone 7 from them. 8 that he did not select the photos of any other subjects. 9 Detective Williams's testimony to the same effect was cumulative. Ex. 84 at RT 9021. Thus, he too impliedly testified United States District Court For the Northern District of California 10 Like Ms. Vargas, at the conclusion of his testimony, Mr. Zavala 11 was released temporarily, but was not excused and was subject to 12 recall. 13 to testify and the testimony of Detective Williams to the effect 14 that Mr. Zavala had failed to identify any other suspects did not 15 violate the Confrontation Clause. 16 17 Ex. 85 at RT 9055. 2. Therefore, Mr. Zavala was available Ineffective assistance of counsel on this issue As noted above, to succeed on an ineffective assistance of 18 counsel claim, Petitioner must show that (1) counsel’s performance 19 was deficient, and (2) Petitioner was prejudiced by counsel’s 20 deficient performance. 21 Petitioner’s defense attorney objected repeatedly during Detective 22 Williams’s testimony about the prior identifications of Mr. Garcia 23 made by Ms. Vargas during proceedings in Mr. Garcia's case. 24 101 at RT 10697-98. 25 no witness--including Ms. Vargas--ever identified photographs of 26 Richard Lopez or Nathan Howard. Strickland, 466 U.S. at 687-88. Ex. Counsel also objected to the testimony that Ex. 101 at RT 10698. 27 Petitioner argues that, to the extent counsel failed to 28 preserve the issue on appeal and failed to cross-examine Ms. 85 1 Vargas on her prior identifications, counsel rendered deficient 2 performance. 3 was recalled to the stand, trial counsel did cross-examine her 4 about her prior identifications. 5 Vargas stated that she did not identify anyone in the photographs 6 shown to her prior to the preliminary hearing or in a live line-up 7 and confirmed that she had been shown photographs at the 8 preliminary hearing. 9 failure to preserve the issue on appeal was not prejudicial, as The record reflects, however, that when Ms. Vargas Ex. 106 at RT 11225-27. Ex. 106 at RT 11227. Ms. Further, counsel's United States District Court For the Northern District of California 10 the California Supreme Court addressed the merits of his fair 11 trial and due process arguments. 12 n.22. 13 Rodrigues, 8 Cal. 4th at 1119 Petitioner has not identified any other potential errors 14 counsel made with respect to this testimony. 15 at 659 n.26; Young, 435 F.3d at 1042-43. 16 ineffective assistance of counsel claim with respect to the 17 hearsay identification evidence is DENIED. 18 3. 19 20 See Cronic, 466 U.S. Thus, Petitioner's Other constitutional violations related to this issue Petitioner alleges that the admission of Detective Williams’s 21 testimony violated his rights to due process and a fair trial. 22 Additionally, Petitioner argues that, in its decision denying this 23 claim, the state court used the wrong standard for its harmless 24 error analysis. 25 admission of the evidence violated any of his constitutional 26 rights. 27 28 Petitioner, however, has failed to show that the A federal habeas court does not review “questions of state evidence law.” Spivey v. Rocha, 194 F.3d 971, 977 (9th Cir. 86 1 1999). 2 evidence by the state court violated his due process rights 3 rendering the trial “fundamentally unfair.” 4 1101. 5 “very few rulings regarding the admission of evidence as a 6 violation of due process”; specifically, it has never “made a 7 clear ruling that admission of irrelevant or overtly prejudicial 8 evidence constitutes a due process violation sufficient to warrant 9 the issuance of the writ.” Habeas relief is inappropriate unless the admission of Holley, 568 F.3d at As noted above for claim eleven, the Supreme Court has made Id.; see Estelle v. McGuire, 502 U.S. United States District Court For the Northern District of California 10 62, 70 (1991) (declining to answer whether admitting irrelevant 11 evidence is a violation of due process where it found that the 12 admitted evidence was relevant). 13 Here, Detective Williams's challenged testimony was 14 cumulative of Ms. Vargas’s and Mr. Zavala’s testimony. 15 explained above, Ms. Vargas testified that she did not identify 16 anyone in the photographs she was shown prior to the preliminary 17 hearing or in a live line-up; this meant that she did not identify 18 Richard Lopez or Nathan Howard. 19 11227. 20 being shown photographs, but that he was unable to identify anyone 21 from them. 22 Zavala impliedly testified at Petitioner's trial that they had not 23 identified Richard Lopez or Nathan Howard; they could have been 24 cross-examined on the point by the defense. 25 court’s determination--that Detective Williams’s testimony that no 26 one identified Richard Lopez or Nathan Howard as a potential 27 suspect reflected the state of the record--was not an unreasonable As Ex. 91 at RT 9624; Ex. 106 at RT Mr. Zavala testified on cross-examination that he recalled Ex. 84 at RT 9021. Thus, both Ms. Vargas and Mr. 28 87 Therefore, the state 1 application of federal law or an unreasonable interpretation of 2 the facts. 3 See Harrington, 562 U.S. at 100. Thus, Petitioner has not shown that the state court’s 4 decision was “contrary to, or involved an unreasonable application 5 of, clearly established Federal law” or that it “resulted in a 6 decision that was based on an unreasonable determination of the 7 facts in light of the evidence presented” to it. 8 § 2254(d). 9 United States District Court For the Northern District of California 10 J. 28 U.S.C. Accordingly, this claim is DENIED. Claim thirteen: exclusion of impeachment evidence This claim is procedurally barred as untimely. Even if it 11 were not procedurally barred, it is without merit, as discussed 12 below. 13 applies; Petitioner has not demonstrated prejudice, see Frady, 456 14 U.S. at 170, and his new evidence does not demonstrate miscarriage 15 of justice, see McQuiggin, 133 S. Ct. at 1933. 16 For this reason, no exception to the procedural bar Petitioner argues that the trial court’s exclusion of 17 evidence that Mr. Zavala had a strained relationship with his 18 brother violated Petitioner’s constitutional rights because the 19 “evidence of closeness suggested that Zavala struggled to focus on 20 Barragan’s attacker, despite his injuries, so that the jury should 21 believe his tentative identification and that the identification 22 was motivated by a desire to convict only the actual attacker.” 23 Traverse at 107. 24 emphasis on their closeness in closing argument amounted to 25 constitutional error because the prosecutor knew it was 26 contradicted by evidence he had successfully excluded, and that 27 trial counsel was ineffective for failing to object to this Petitioner also argues that the prosecutor's 28 88 1 argument. 2 an evidentiary hearing on this claim. 3 Id. at 110. Petitioner does not request discovery or The California Supreme Court denied this exclusion of 4 evidence claim based on state law. 5 25. 6 waiver because trial counsel failed to object. 7 found there was no prosecutorial misconduct; counsel, therefore, 8 was not ineffective in failing to object. 9 the reasons stated below, the state court’s denial of this claim United States District Court For the Northern District of California 10 The court denied the prosecutorial misconduct claim based on was not unreasonable. 11 12 Rodrigues, 8 Cal. 4th at 1124- 1. The court also Id. at 1125-26. For See Harrington, 562 U.S. at 100. Exclusion of Evidence “While the Constitution . . . prohibits the exclusion of 13 defense evidence under rules that serve no legitimate purpose or 14 that are disproportionate to the ends that they are asserted to 15 promote,” Holmes v. South Carolina, 547 U.S. 319, 326 (2006), the 16 Supreme Court has not directly considered whether a trial court’s 17 exercise of discretion to exclude evidence under a 18 constitutionally sound evidentiary rule violates a defendant’s 19 constitutional right to present evidence. 20 clearly established federal law directly on point, the state 21 court’s denial of Petitioner’s claim was not contrary to or an 22 unreasonable application of clearly established Supreme Court 23 precedent. 24 25 2. Because there is no Prosecutorial Misconduct Petitioner argues that the prosecutor committed misconduct by 26 improperly using the elicited testimony about Mr. Zavala’s 27 closeness with his brother during his closing argument to bolster 28 Mr. Zavala’s uncertain identification. 89 The prosecutor argued 1 that, in light of his loss, Mr. Zavala had every reason to make an 2 accurate identification. 3 The California Supreme Court denied this claim as waived 4 because Petitioner’s counsel failed to object to the prosecutor’s 5 statements during trial. 6 ineffective assistance of counsel claim, the court necessarily 7 considered the merits of Petitioner’s argument and decided it 8 against him, holding that there was no evidence to indicate that 9 Mr. Zavala would have any reason to make an improper However, when analyzing the related United States District Court For the Northern District of California 10 identification of Petitioner. 11 Accordingly, even if there was error, the court determined that 12 such error could not have prejudiced Petitioner. Rodrigues, 8 Cal. 4th at 1125-26. 13 A defendant’s due process rights are violated when a 14 prosecutor’s misconduct renders a trial “fundamentally unfair.” 15 Darden v. Wainwright, 477 U.S. 168, 181 (1986); Phillips, 455 U.S. 16 at 219 (“the touchstone of due process analysis in cases of 17 alleged prosecutorial misconduct is the fairness of the trial, not 18 the culpability of the prosecutor”); see also Deck v. Jenkins, 768 19 F.3d 1015, 1023 (9th Cir. 2014) (recognizing that Darden is the 20 clearly established federal law regarding a prosecutor’s improper 21 comments for AEDPA review purposes). 22 issue is whether the prosecutor’s remarks were improper; if so, 23 the next question is whether such conduct infected the trial with 24 unfairness. 25 On habeas, a prosecutorial misconduct claim is decided “on the 26 merits, examining the entire proceedings to determine whether the 27 prosecutor’s remarks so infected the trial with unfairness as to 28 make the resulting conviction a denial of due process.” Under Darden, the first Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005). 90 Johnson 1 v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995); see Trillo v. Biter, 2 769 F.3d 995, 1001 (9th Cir. 2014) (“Our aim is not to punish 3 society for the misdeeds of the prosecutor; rather, our goal is to 4 ensure that the petitioner received a fair trial.”). 5 Petitioner cannot show that the prosecutor’s comments during 6 closing argument, viewed within the context of the trial, so 7 “infected the trial with unfairness as to make the resulting 8 conviction a denial of due process.” 9 The most probative and relevant issues regarding Mr. Zavala’s Johnson, 63 F.3d at 929. United States District Court For the Northern District of California 10 identification were his ability to see clearly what was happening, 11 despite the angle of his view and the blood in his eyes; his 12 inconsistent statements; and the possibility his identification 13 had been influenced by his conversations with Ms. Vargas and the 14 police, all of which were raised extensively in cross-examination. 15 The relative closeness of Mr. Zavala and Mr. Barragan does not 16 negate the other positive identifications of Petitioner by Ms. 17 Vargas and his accomplice Ms. Ontiveros; the finding of his knife 18 where Ms. Ontiveros indicated Petitioner discarded it, with blood 19 on it consistent with Petitioner’s blood type, which would show 20 that his injury came from his own knife; Petitioner’s injury 21 consistent with that sustained by Mr. Barragan’s attacker as 22 described by Mr. Zavala; Petitioner’s attempt to secure a false 23 alibi from his brother as to the injury he sustained; Petitioner’s 24 lie to doctors as to the source of his injury; and the 25 identification of blood in the trunk of Petitioner’s car 26 consistent with Mr. Barragan’s blood type. 27 be said that any comments by the prosecutor that alluded to the 28 close relationship between the brothers in an improper way to 91 Accordingly, it cannot 1 bolster Mr. Zavala’s identification of Petitioner rendered 2 Petitioner’s trial fundamentally unfair. 3 4 3. Ineffective Assistance of Counsel Petitioner argues that trial counsel was ineffective for 5 failing to object to the prosecutor’s misconduct. 6 connection with other claims, Petitioner must show both that 7 counsel rendered deficient performance in failing to object and 8 that this deficient performance prejudiced him. 9 466 U.S. at 700. As noted in See Strickland, Petitioner has not made such a showing. As United States District Court For the Northern District of California 10 noted above, the import of any evidence regarding the nature of 11 the relationship between the brothers was marginal at best in 12 terms of Petitioner’s conviction. 13 prosecutorial misconduct, which Petitioner has not shown, the 14 evidence and the prosecutor’s ensuing argument based on it did not 15 render the outcome of Petitioner’s trial unreliable. 16 Petitioner cannot show prejudice for the failure to object and 17 this part of his claim fails. Assuming there was Therefore, 18 For the foregoing reasons, Petitioner has not shown that the 19 California Supreme Court’s denial of this claim was unreasonable. 20 Accordingly, this claim is DENIED. 21 K. 22 Petitioner argues that the prosecution failed to preserve Claim fourteen: failure to preserve evidence 23 (1) currency allegedly taken from Mr. Zavala and 24 (2) Petitioner’s car, for his defense’s forensic inspection. 25 contends that the state court was unreasonable in failing to hold 26 an evidentiary hearing to determine if the police or the 27 prosecution destroyed the evidence in bad faith. 28 requests an evidentiary hearing on this claim, but not discovery. 92 He Petitioner 1 This claim is potentially unexhausted; Respondent argues that 2 this claim contains new allegations that were never presented to 3 the state court. 4 it without addressing exhaustion. 5 exhausted, it is denied as without merit, as discussed below. 6 evidentiary hearing is warranted. 7 However, as Respondent notes, the Court can deny Thus, even if it is not No The government has a duty to preserve material evidence, i.e., evidence whose exculpatory value was apparent before it was 9 destroyed and that is of such a nature that the defendant cannot 10 United States District Court For the Northern District of California 8 obtain comparable evidence by other reasonably available means. 11 See California v. Trombetta, 467 U.S. 479, 489 (1984); Grisby v. 12 Blodgett, 130 F.3d 365, 371 (9th Cir. 1997). 13 has held that “unless a criminal defendant can show bad faith on 14 the part of the police, failure to preserve potentially useful 15 evidence does not constitute a denial of due process.” 16 Youngblood, 488 U.S. 51, 57 (1988) (describing such evidence as 17 “evidentiary material of which no more can be said than that it 18 could have been subjected to tests, the results of which might 19 have exonerated the defendant”). 20 The Supreme Court Arizona v. Petitioner argues that the police or the prosecution 21 destroyed or confiscated $1,000 or $2,000 that Mr. Zavala had on 22 his person at the time of the attack. 23 interview with Mr. Zavala conducted by a defense investigator 24 several months after the crime. 25 interview, Mr. Zavala stated that, after the attack, he went to 26 the hospital with $200 in his back pocket, and approximately 27 $1,000 or $2,000 in his front pocket. 28 the investigator that, after he was discharged from the hospital, As evidence, he supplies an Ex. 168, App. 113. 93 Id. at 21. In that Mr. Zavala told 1 he had only the $200 in his back pocket. 2 contends that the police either took the money or destroyed it. 3 He argues that the “existence of large amounts of money in the 4 apartment or on Zavala’s person at the time of the attack was 5 relevant to undercut the prosecutor’s theory that Zavala and 6 Barragan were small-time inexperienced drug dealers preyed upon by 7 their attackers.” 8 the money would raise an “inference that the brothers were active 9 drug dealers” and provide “reasonable doubt as to petitioner’s Am. Pet. at 149. Id. at 26. Petitioner He argues that evidence of United States District Court For the Northern District of California 10 guilt by demonstrating that the brothers’ livelihood made it 11 likely that others had a motive and opportunity to attack them.” 12 Id. at 149-50. 13 Petitioner does not present any evidence to support the claim 14 that the money actually existed, except for the investigator’s 15 interview. 16 of the money, even if it did exist. 17 evidence that the police or the prosecution took or destroyed any 18 money. 19 he did not have the money when he was transported to the hospital 20 because one of the perpetrators took the money when they robbed 21 him. 22 it” referring to “the guys, the attackers.” 23 26-27. 24 that any money was destroyed or taken by the police, or that the 25 prosecution was aware of any money that was not recorded as 26 evidence by the police. 27 not potentially exculpatory; there is an equal inference that 28 Petitioner robbed Mr. Zavala because he was a wealthy drug dealer. He provides no evidence that the prosecution was aware In addition, there is no If Mr. Zavala ever had the money, it is more likely that Indeed, in the interview, Mr. Zavala opined that “they took Ex. 168, App. 113 at Thus, Petitioner states no facts to support the accusation Furthermore, the presence of the cash is 94 1 Furthermore, even if Petitioner stated facts to support his 2 claim that the police or the prosecution took or destroyed the 3 money, he fails to assert that he was unable to obtain comparable 4 evidence by any other reasonably available means. 5 allege that there was no comparable evidence of Mr. Zavala’s 6 extensive involvement in the drug trade. 7 government destruction of the money cannot, on its own, support a 8 due process violation. 9 process was violated when the government destroyed potentially United States District Court For the Northern District of California 10 11 He does not Thus, the claimed Accordingly, the petition’s claim that due exculpatory evidence of Mr. Zavala’s cash is DENIED. Petitioner also argues that the police destroyed his car in 12 bad faith. 13 in the car, after spraying it with Luminol. 14 “Luminol, even combined with other chemical agents, frequently 15 yields inaccurate results in that luminol often misreads other 16 fluids such as coca-cola, as blood.” 17 result of the destruction of the car, Petitioner argues, his own 18 investigator did not have the ability to test for the absence of 19 blood. 20 would have rebutted Ms. Ontiveros’ description of Petitioner’s 21 participation in the crime. 22 He claims that the state’s criminalist reported blood He argues that Am. Pet. at 150. As a He claims that evidence of the absence of blood in the car However, as Respondent points out, Petitioner’s investigator 23 examined the car in July 1987, before the alleged destruction in 24 September 1987. 25 state’s criminalist about Luminol’s false positives. 26 Petitioner has not shown that he was unable to obtain comparable 27 evidence by any other reasonably available means. 28 are no facts from which to infer that the car was destroyed in bad Also, Petitioner’s counsel cross-examined the 95 Thus, Moreover, there 1 faith. 2 destroyed potentially exculpatory evidence by destroying 3 Petitioner’s car is DENIED. 4 Accordingly, the petition’s claim that the government Thus, the record supports the state court’s conclusion that 5 the prosecution did not fail to preserve material evidence. 6 Petitioner has not shown that the state court’s decision was 7 “contrary to, or involved an unreasonable application of, clearly 8 established Federal law” or that it “resulted in a decision that 9 was based on an unreasonable determination of the facts in light United States District Court For the Northern District of California 10 of the evidence presented” to it. 11 petition’s claim for relief on the ground that the government 12 destroyed potentially exculpatory evidence is DENIED. 28 U.S.C. § 2254(d). The 13 L. 14 Petitioner alleges that new evidence, in the form of seven 15 affidavits, shows that he lacked the requisite intent to commit 16 any of the crimes for which he was convicted. 17 request discovery or an evidentiary hearing on this claim. 18 claim is procedurally barred as untimely. 19 procedurally barred, it is without merit, as discussed below. 20 this reason, no exception to the procedural bar applies; 21 Petitioner has not demonstrated prejudice, see Frady, 456 U.S. at 22 170, and his new evidence does not demonstrate miscarriage of 23 justice, see McQuiggin, 133 S. Ct. at 1933. 24 Claim fifteen: innocence of capital murder Petitioner does not This Even if it were not This claim fails on its merits for two reasons. For Petitioner 25 has failed to make the requisite showing of innocence. 26 entirely clear what standard would be used for a freestanding 27 innocence claim, but the Supreme Court has stated that “the 28 threshold showing for such an assumed right would necessarily be 96 It is not 1 extraordinarily high.” 2 (1993). 3 Herrera v. Collins, 506 U.S. 390, 417 In Herrera, the petitioner’s newly discovered evidence was in 4 the form of affidavits, which the Court discredited for several 5 reasons applicable here. 6 context, motions based solely upon affidavits are disfavored 7 because the affiants’ statements are obtained without the benefit 8 of cross-examination and an opportunity to make credibility 9 determinations.” Id. Initially, it noted: “In the new trial The Court noted that the affidavits United States District Court For the Northern District of California 10 contained hearsay and that they were provided eight years after 11 the petitioner's trial, and concluded that they were not 12 persuasive in light of the evidence produced at trial. 13 417-18. Id. at 14 Similar reasons dictate concluding that Petitioner's 15 affidavits fail to satisfy an “extraordinarily high” standard. 16 With the exception of the affidavit from co-perpetrator Juan 17 Garcia (Ex. 164, App. 19), none of the affiants was present at the 18 victims’ apartment the night of the murder. 19 been in Petitioner’s presence within the few days leading up to 20 the crimes. 21 Petitioner’s presence the day before the murder and had used drugs 22 with him. 23 she had seen Petitioner a “couple days before” and he appeared 24 “jittery.” 25 Nor had most of them Luis Villasana declared that he had been in Ex. 164, App. 12 at 1. Shirley LaVenture declared that Ex. 164, App. 25. Mr. Garcia’s affidavit, the only one that could provide an 26 account for the hours leading up to the incident and a description 27 of the event itself, is not credible. 28 to explain how Mr. Barragan was stabbed twenty-one times and how 97 His version of events fails 1 Mr. Zavala was beaten and stabbed with a tire iron. 2 Garcia’s version of events fails to comport with the evidence 3 adduced at trial, it does not support an actual innocence claim. 4 The remaining affidavits that would support an actual Because Mr. 5 innocence argument rest on hearsay, describing what Ms. Ontiveros 6 allegedly said regarding the sequence of events. 7 Petitioner has failed to make an “extraordinarily high” showing of 8 his innocence, this claim is DENIED. 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M. Because Claim sixteen: prejudicial rereading of testimony during deliberations Petitioner contends that the trial court erred in allowing prejudicial and incomplete testimony to be re-read to the jury during the guilt phase deliberations. The jury requested a re- reading of Ms. Vargas’s “direct and cross concerning what photo line-ups were shown to her prior to preliminary examination, [and] what identifications were made.” Ex. 114 at RT 11804. The trial court’s re-reading included Ms. Vargas’s testimony that she did not identify Petitioner in the photo lineup prior to his preliminary hearing because she was afraid. Petitioner requested that the court omit Ms. Vargas’s statement regarding her fear, or include re-cross examination testimony related to her statement that she was afraid. The trial court refused his requests. Petitioner does not request discovery or an evidentiary hearing on this claim. The California Supreme Court denied this claim. It held that Ms. Vargas’s testimony regarding her fear was directly relevant to her failure to identify Petitioner at the photo lineup. It reasoned that “[t]o have omitted this testimony as part of the 98 1 reading would have grossly distorted the record.” 2 Cal. 4th at 1123. 3 not err when it refused to read portions of Ms. Vargas’s testimony 4 on re-cross examination because it concerned her identification of 5 Petitioner at his preliminary hearing and her failure to identify 6 Mr. Garcia during his live lineup. 7 this other testimony was not responsive to the jury’s request for 8 ‘what photo lineups were shown to her prior to the preliminary 9 hearing and what identifications were made.’” United States District Court For the Northern District of California 10 Rodrigues, 8 Furthermore, it held that the trial court did "Unlike the fear evidence, Id. Finally, it held that even if the trial court erred, the re- 11 reading was not prejudicial. 12 presented in conjunction with a re-reading of testimony by two 13 other witnesses. 14 counsel’s cross-examination to the effect that if Ms. Vargas was 15 truly afraid of Petitioner, “she could have said what she said at 16 Garcia’s live lineup.” 17 Petitioner alleges that the re-reading of Ms. Vargas’s testimony 18 implied that she was threatened by Petitioner, there is “no 19 suggestion in the record, either from Vargas’s own testimony or 20 from the conduct of trial, including the prosecutor’s arguments, 21 that the jury had been told or otherwise left with the impression 22 that Vargas’s fear might have been attributable to a threat.” 23 at 1124. 24 First, the reading was brief and Second, the re-reading included defense Id. The court also noted that, while Id. Petitioner's argument that the trial court erred in reading 25 back selected portions of Ms. Vargas’s testimony in response to 26 the jury’s request is based on Ninth Circuit cases arising out of 27 federal criminal appeals. 28 issued a ruling on this issue. The United States Supreme Court has not Therefore, Petitioner cannot show 99 1 that the California Supreme Court’s denial of his claim “was 2 contrary to, or involved an unreasonable application of, clearly 3 established Federal law, as determined by the Supreme Court of the 4 United States.” 5 relief on the ground that the trial court erred in allowing a 6 prejudicial re-reading of testimony is DENIED. 28 U.S.C. § 2254(d)(1). The petition’s claim for 7 N. 8 This claim is potentially unexhausted; Respondent argues that 9 it contains new allegations that were never presented to the state Claim seventeen: insufficient evidence United States District Court For the Northern District of California 10 court. 11 without addressing exhaustion. 12 it is denied as meritless, as discussed below. 13 However, as Respondent notes, the Court can deny the claim Thus, even if it is not exhausted, Petitioner contends that there was insufficient evidence to 14 support his convictions for burglary, attempted robbery, felony 15 murder and the felony-based special circumstance8 because the only 16 evidence that supported his intent to enter the victims’ apartment 17 for theft purposes was the uncorroborated accomplice testimony of 18 Ms. Ontiveros. 19 testimony. 20 show that Petitioner entered the victims’ apartment with the 21 intent to steal, none of these convictions can be sustained. 22 Petitioner does not request discovery or an evidentiary hearing on 23 this claim. California requires corroboration of accomplice Petitioner argues that, without additional evidence to 24 25 26 27 28 8 While Petitioner’s death sentence has been vacated, the special circumstances of which he was convicted remain relevant because they require that the only other sentence for which he is eligible is life without the possibility of parole. Cal. Pen. Code § 190.2. 100 1 The California Supreme Court denied the claim, concluding 2 that the convictions satisfied the requirements of state law and 3 that Mr. Zavala’s testimony provided ample corroboration for Ms. 4 Ontiveros’s testimony. Rodrigues, 8 Cal. 4th at 1128-30. 5 A state prisoner who alleges that the evidence in support of 6 his state conviction cannot be fairly characterized as sufficient 7 to have led a rational trier of fact to find guilt beyond a 8 reasonable doubt states a constitutional claim that, if proven, 9 entitles him to federal habeas relief. See Jackson v. Virginia, United States District Court For the Northern District of California 10 443 U.S. 307, 321, 324 (1979). 11 that “Jackson claims face a high bar in federal habeas proceedings 12 because they are subject to two layers of judicial deference.” 13 Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam) 14 (holding that the Third Circuit “unduly impinged on the jury’s 15 role as factfinder” and failed to apply the deferential standard 16 of Jackson when it engaged in “fine-grained factual parsing” to 17 find that the evidence was insufficient to support petitioner’s 18 conviction). 19 The Supreme Court has emphasized A federal court reviewing a state court conviction 20 collaterally does not determine whether it is satisfied that the 21 evidence established guilt beyond a reasonable doubt. 22 Borg, 982 F.2d 335, 338 (9th Cir. 1993); see also Coleman, 132 S. 23 Ct. at 2065 (“the only question under Jackson is whether [the 24 jury’s finding of guilt] was so insupportable as to fall below the 25 threshold of bare rationality”). 26 only whether, ‘after viewing the evidence in the light most 27 favorable to the prosecution, any rational trier of fact could 28 have found the essential elements of the crime beyond a reasonable Payne v. The federal court “determines 101 1 doubt.’” 2 319) (emphasis in original). 3 have found proof of guilt beyond a reasonable doubt, then habeas 4 relief is granted. 5 338. 6 Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at If no rational trier of fact could Jackson, 443 U.S. at 324; Payne, 982 F.2d at Under Jackson’s standard of review, a jury’s credibility determinations are entitled to near-total deference. 8 Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (concluding that a 9 credibility contest between a victim alleging sexual molestation 10 United States District Court For the Northern District of California 7 and a defendant vehemently denying allegations of wrongdoing was 11 not a basis for revisiting the jury’s obvious credibility 12 determination). 13 Bruce v. In sum, sufficiency of the evidence claims on federal habeas 14 review are subject to a “twice-deferential standard.” 15 132 S. Ct. at 2152. 16 trier of fact could have found the essential elements of the crime 17 beyond a reasonable doubt. 18 decision denying a sufficiency challenge may not be overturned on 19 federal habeas unless the decision was “objectively unreasonable.” 20 Id. (quoting Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per 21 curiam)). 22 Matthews, First, relief must be denied if any rational See id. Second, a state court California defines robbery as “the felonious taking of 23 personal property in the possession of another, from his person or 24 immediate presence . . . .” 25 conviction for attempted robbery, evidence must be produced to 26 show that a defendant (1) harbored a specific intent to commit 27 robbery, and (2) committed a “direct but ineffectual” act toward 28 the commission of the crime. Cal. Penal Code § 211. To sustain a People v. Dillon, 34 Cal. 3d 441, 102 1 452-53 (1983). 2 defendant entered a building with the intent to commit larceny or 3 any felony. 4 prove a felony-murder special circumstance like murder in the 5 commission of a robbery, ‘the prosecution must show that the 6 defendant had an independent purpose for the commission of the 7 felony, that is, the commission of the felony was not merely 8 incidental to an intended murder.’ . . . It is only when the 9 underlying felony is merely incidental to the murder that the A burglary conviction requires a showing that the People v. Davis, 18 Cal. 4th 712, 715 (1998). United States District Court For the Northern District of California 10 felony-murder special circumstance does not apply.” 11 “To Bolden, 29 Cal. 4th 515, 554 (2002) (citations omitted). 12 People v. The testimony of accomplice Ms. Ontiveros and of victim Mr. 13 Zavala demonstrates Petitioner's intent to commit robbery. 14 Zavala testified that upon entering his apartment, co-perpetrator 15 Mr. Garcia asked, “¿Donde la tienes?” (Where do you have it?). 16 Petitioner argues that this statement cannot corroborate the 17 accomplice testimony because it came from co-perpetrator Mr. 18 Garcia. 19 one who testified that the statement was made upon Mr. Garcia and 20 Petitioner’s entering his apartment. 21 itself, conveys an intent to enter the apartment for the purpose 22 of procuring some item from the victims. 23 further supported by the fact that neither Petitioner nor Mr. 24 Garcia knew the victims and they had no other motive to commit 25 murder. 26 Mr. While Mr. Garcia made the statement, Mr. Zavala was the The statement, in and of This inference is Petitioner makes much of the fact that Mr. Zavala testified 27 that, after he told Mr. Garcia that what the two men were 28 searching for was in the closet, Petitioner did not go straight to 103 1 the closet. 2 Mr. Garcia to kill Mr. Zavala. 3 Petitioner would have gone to search the closet at that point 4 because the phone rang and Mr. Zavala testified that Petitioner 5 ordered Mr. Garcia to leave in case the police were on their way. 6 The jury was free to reach its own conclusion. 7 juries broad discretion in deciding what inferences to draw from 8 the evidence presented at trial requiring only that jurors draw 9 reasonable inferences from basic facts to ultimate facts.” United States District Court For the Northern District of California 10 11 Instead, Mr. Zavala testified, Petitioner directed It is impossible to know whether “Jackson leaves Coleman, 132 S. Ct. at 2064 (internal quotation marks omitted). Based on the evidence, it is possible that a rational trier 12 of fact could find Petitioner guilty of burglary, attempted 13 robbery, felony murder, and the felony murder special 14 circumstance. 15 was sufficient evidence to support Petitioner’s conviction was not 16 an unreasonable application of Jackson to the facts of this case. 17 Accordingly, Petitioner has not shown that the state court’s 18 decision was “contrary to, or involved an unreasonable application 19 of, clearly established Federal law” or that it “resulted in a 20 decision that was based on an unreasonable determination of the 21 facts in light of the evidence presented” to it. 22 § 2254(d). The California Supreme Court’s decision that there 28 U.S.C. This claim is, therefore, DENIED. 23 O. 24 Petitioner argues that he was denied his right to present a Claim eighteen: denial of right to present defense 25 defense when the trial court excluded evidence concerning his and 26 his co-perpetrators' intent to commit the crimes for which they 27 were convicted. 28 whether the attempted robbery or the burglary occurred and whether He claims that this evidence was relevant to 104 1 special circumstances existed. 2 counsel questioned Mr. Zavala on cross-examination concerning 3 statements he made to the defense’s investigator before trial. 4 Defense counsel asked Mr. Zavala: “And did you tell Mr. Baughman 5 that you thought it looked like the attackers had come to the 6 apartment to kill your brother?” 7 prosecution objected to the question, saying that it called for 8 speculation as to the intent of the attackers. 9 sustained the objection. United States District Court For the Northern District of California 10 11 In particular, at trial, defense Ex. 85 at RT 9047. The The trial court Petitioner does not seek discovery or an evidentiary hearing on this claim. Petitioner argues that the question was not meant to elicit 12 speculation, but rather Mr. Zavala’s opinion of the intent of the 13 attackers, as he perceived it the evening of the attack. 14 argues that the error was prejudicial because the evidence “would 15 have raised reasonable doubts in the juror’s [sic] minds that he 16 possessed such requisite mental states” as relevant to the special 17 circumstances regarding the felony-murder charge, as well as the 18 attempted robbery and burglary charges. 19 He also Am. Pet. at 161. On appeal, the California Supreme Court denied this claim on 20 its merits. 21 sustaining the prosecutor’s objection to the line of questioning, 22 the perceived error was harmless, given the testimony of Ms. 23 Ontiveros, who claimed that she, Mr. Garcia, and Petitioner 24 planned the robbery together. 25 The court reasoned that, had Mr. Zavala testified that he believed 26 the attackers came to kill his brother, that testimony “would not 27 have been necessarily inconsistent with Ontiveros’s testimony and 28 Zavala’s other testimony indicating that the two attackers It held that, even if the trial court erred in See Rodrigues, 8 Cal. 4th at 1127. 105 1 coordinated their efforts to gain access to the apartment, subdue 2 the brothers, and obtain whatever ‘it’ was.” 3 of the other evidence the jury heard concerning intent, it was 4 “unlikely that the jury would have believed the motive was other 5 than robbery.” 6 Id. Thus, given all Id. As the Supreme Court explained, "the standard for determining 7 whether habeas relief must be granted is whether the . . . 8 ‘had substantial and injurious effect or influence in determining 9 the jury’s verdict.’” error Brecht v. Abrahamson, 507 U.S. 619, 623 United States District Court For the Northern District of California 10 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 11 (1946)). 12 The Court finds reasonable the California Supreme Court’s 13 holding that even if the trial court erred in preventing Mr. 14 Zavala from stating his opinion of Petitioner’s intent, the error 15 was harmless. 16 given the weight of the other evidence that established that 17 Petitioner and his accomplices intended to rob Mr. Zavala and his 18 brother, including the testimony of an accomplice, Mr. Zavala’s 19 opinion as to the attackers’ intent was unlikely to influence the 20 jury to find that the motive was anything other than robbery. 21 As discussed above with regard to claim seventeen, Accordingly, the record supports the state court’s conclusion 22 that, even if the trial court erred in excluding Mr. Zavala’s 23 opinion concerning the attackers’ intent, that error was harmless. 24 Petitioner has not shown that the state court’s decision was 25 “contrary to, or involved an unreasonable application of, clearly 26 established Federal law” or that it “resulted in a decision that 27 was based on an unreasonable determination of the facts in light 28 of the evidence presented” to it. 28 U.S.C. § 2254(d). 106 The 1 petition’s claim for relief on the ground that the trial court 2 erred in excluding Mr. Zavala’s opinion testimony is DENIED. 3 P. 4 Petitioner raises six challenges to various jury instructions Claim nineteen: errors in jury instructions 5 given during the guilt and penalty phases of his trial, a 6 cumulative error challenge, and an ineffective assistance of trial 7 counsel challenge based on counsel’s failure to object properly to 8 the instructions or to the evidence underlying them. 9 does not request discovery or an evidentiary hearing on this Petitioner United States District Court For the Northern District of California 10 claim. 11 were not procedurally barred, it is without merit, as discussed 12 below. 13 applies; Petitioner has not demonstrated prejudice, see Frady, 456 14 U.S. at 170, and his new evidence does not demonstrate miscarriage 15 of justice, see McQuiggin, 133 S. Ct. at 1933. 16 This claim is procedurally barred as untimely. Even if it For this reason, no exception to the procedural bar To obtain federal collateral relief for errors in the jury 17 charge, a petitioner must show that the “ailing instruction by 18 itself so infected the entire trial that the resulting conviction 19 violates due process.” 20 Naughten, 414 U.S. 141, 147 (1973); see also Donnelly v. 21 DeChristoforo, 416 U.S. 637, 643 (1974) (stating that “[i]t must 22 be established not merely that the instruction is undesirable, 23 erroneous or even 'universally condemned,' but that it violated 24 some [constitutional right]” (brackets in original)). 25 instruction “‘may not be judged in artificial isolation,’ but must 26 be considered in the context of the instructions as a whole and 27 the trial record.” See Estelle, 502 U.S. at 72; Cupp v. The See Estelle, 502 U.S. at 72 (quoting Cupp, 414 28 107 1 U.S. at 417). 2 “actual prejudice.” 3 Habeas relief is available only upon a showing of 1. The trial court’s instructions on the legal principles of accomplice corroboration did not adequately guide the jurors 4 5 Brecht, 507 U.S. at 637. Petitioner argues that the trial court’s failure to include 6 his requested addition to the court’s accomplice instructions 7 violated his constitutional rights. 8 the jury with CALJIC No. 3.11, the standard accomplice testimony 9 instruction. The trial court instructed Rodrigues, 8 Cal. 4th at 1131. However, it refused United States District Court For the Northern District of California 10 to give Petitioner’s addition: “As used in this instruction, 11 ‘testimony’ includes statements made out of court as well as 12 statements made in court by an accomplice.” 13 counsel requested the addition to clarify that Ms. Ontiveros’s 14 statements to the police also needed corroboration. 15 California Supreme Court held that while the trial court should 16 have given the requested addition to its accomplice instruction, 17 “the refusal to do so was not prejudicial error.” 18 Cal. 4th at 1131. 19 Id. Petitioner’s The Rodrigues, 8 As discussed in claim seventeen above, Ms. Ontiveros’s 20 statements were corroborated. 21 show that he suffered any prejudice from the error. 22 Accordingly, Petitioner fails to Petitioner also challenges the trial court’s failure to give 23 CALJIC No. 3.13, which advises that the required corroboration may 24 not come from a fellow accomplice. 25 the corroborating “¿Donde la tienes?” came from co-perpetrator Mr. 26 Garcia and, therefore, cannot constitute corroboration. 27 counsel agreed during trial that this particular jury instruction 28 did not apply. Id. at 1132. Again, Petitioner argues that Defense As explained above for claim 108 1 seventeen, victim Mr. Zavala’s testimony sufficiently corroborated 2 Ms. Ontiveros’s testimony. 3 failing to issue the instruction. 4 Thus, the trial court did not err in In addition, the California Supreme Court’s conclusion that co-perpetrator Mr. Garcia’s statement implicates none of the 6 concerns addressed in California Penal Code section 1111, the 7 section that requires accomplice testimony corroboration, is 8 binding. 9 that a state court's interpretation of state law binds a federal 10 United States District Court For the Northern District of California 5 court sitting in habeas corpus); Hicks v. Feiock, 485 U.S. 624, 11 629 (1988) ("We are not at liberty to depart from the state 12 appellate court's resolution of these issues of state law."). 13 petition’s request for habeas relief for this allegation of 14 constitutionally impermissible jury instruction error is DENIED. 15 16 17 See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (holding 2. The The trial court erred in instructing on the law of conspiracy because there was no legally sufficient evidence that Petitioner was involved in a conspiracy 18 Petitioner argues: “Because there was no evidence as to the 19 existence of a conspiracy except the uncorroborated testimony of 20 an accomplice and the extrajudicial statements of the co- 21 defendant, the jury instructions on the principle of conspiracy 22 should not have been given.” 23 denied this claim on two grounds. 24 affirmatively consented to the instruction, which constitutes a 25 waiver of review on appeal. 26 Second, in California, “evidence of conspiracy may be admitted 27 even if the defendant is not charged with the crime of conspiracy” 28 and “once there is proof of the existence of the conspiracy there Am. Pet. at 164. The state court First, defense counsel Rodrigues, 8 Cal. 4th at 1134. 109 1 is no error in instructing the jury on the law of conspiracy.” 2 Id. 3 a finding of evidence of a conspiracy. 4 The California Supreme Court found that the record supported Id. The Court has already addressed Petitioner's challenge to the 5 accomplice corroboration requirement above in claim nineteen, 6 subclaim (1) and in claim seventeen. 7 challenging the California Supreme Court’s denial of his claim 8 based on California law, the state court decision is binding. 9 Bradshaw, 546 U.S. at 76; Hicks, 485 U.S. at 629. To the extent Petitioner is See The petition’s United States District Court For the Northern District of California 10 request for habeas relief for this allegation of constitutionally 11 impermissible jury instruction error is DENIED. 12 3. 13 14 The trial court erred in failing to instruct properly on the legal principles of accomplice testimony corroboration This allegation is addressed by the analysis of claim 15 nineteen, subclaims (1) and (2) and in claim seventeen. 16 petition’s request for habeas relief for this allegation of 17 constitutionally impermissible jury instruction error is DENIED. 18 19 20 21 4. The The trial court’s charge to the jury invited the jury to draw adverse inferences against Petitioner that were not supported by the evidence or constituted an irrational presumption Petitioner challenges five of the trial court’s jury 22 instructions that allowed drawing adverse inferences against him 23 based on his behavior: (1) CALJIC 2.71.7, pre-offense statements; 24 (2) CALJIC 2.71.5, adoptive admissions; (3) CALJIC No. 2.03, 25 consciousness of guilt--falsehoods; (4) CALJIC No. 2.04, efforts 26 by defendant to fabricate evidence; and (5) CALJIC No. 2.06, 27 efforts to suppress evidence. He argues that the instructions 28 110 1 lacked evidentiary support and providing them to the jury violated 2 his constitutional rights. 3 The California Supreme Court determined that there was 4 sufficient support in the record to warrant issuing each of these 5 instructions. 6 record supports the state court’s determination. 7 to show that “‘fairminded jurists could disagree’ on the 8 correctness of the state court’s decision.” 9 at 101. Rodrigues, 8 Cal. 4th at 1136-41. A review of the Petitioner fails Harrington, 562 U.S. Therefore, the petition’s request for habeas relief for United States District Court For the Northern District of California 10 this allegation of constitutionally impermissible jury instruction 11 error is DENIED. 12 5. 14 The court erred by omitting instructions on the requisite concurrence of actus reus and mens rea for first degree murder and on the requisite degree of proof by circumstantial evidence of mens rea or specific intent for each charged crime 15 Petitioner makes two specific challenges with respect to this 13 16 set of allegations. 17 violated his constitutional rights when it failed sua sponte to 18 instruct the jury with CALJIC No. 2.02 on circumstantial evidence 19 to prove mens rea. 20 trial court's failure to instruct the jury with CALJIC No. 2.02 21 was not prejudicial error because it delivered a more inclusive 22 instruction, CALJIC No. 2.01. 23 A state court’s interpretation of state law is binding on a 24 federal habeas court. 25 U.S. at 629. 26 First, he argues that the trial court The California Supreme Court held that the Rodrigues, 8 Cal. 4th at 1141-42. See Bradshaw, 546 U.S. at 76; Hicks, 485 Second, Petitioner argues that the trial court violated his 27 constitutional rights when it failed to modify CALJIC No. 3.31 sua 28 sponte to guide “the jury on the requisite joint operation of act 111 1 and the required premeditation and deliberation needed for first- 2 degree murder.” 3 stated that Petitioner was required to make the request for a 4 modification during trial. 5 state precedent, that CALJIC 8.20, which was given immediately 6 following CALJIC No. 3.31, “adequately expressed the need for 7 joint operation of act and intent on that theory.” 8 Cal. 4th at 1143. 9 of state law is binding. United States District Court For the Northern District of California 10 11 Traverse at 138. The California Supreme Court The state court also held, relying on Rodrigues, 8 As noted above, a state court’s interpretation See Bradshaw, 546 U.S. at 76; Hicks, 485 U.S. at 629. The petition’s request for habeas relief for this allegation 12 of constitutionally impermissible jury instruction error is 13 DENIED. 14 6. 15 16 The jury was inadequately informed and misguided with respect to the elements of the special circumstances Petitioner makes two challenges regarding this set of 17 instructions: (1) CALJIC No. 8.83.1 was an insufficient 18 instruction for the mental states required for the special 19 circumstances conviction because it refers to a singular “mental 20 state” as opposed to plural “mental states”, and (2) the trial 21 court should have sua sponte instructed the jury with CALJIC No. 22 3.31 to clear up any confusion regarding the mental states 23 required. 24 argued that the trial court sua sponte should have instructed the 25 jury with CALJIC No. 8.83 to make clear the required mental 26 states. Traverse at 139. On direct appeal, Petitioner also Rodrigues, 8 Cal. 4th at 1143. 27 The California Supreme Court denied all three of these 28 allegations, again based on failure to request, and held that the 112 1 trial court "instructed on the mental state required for each of 2 the special circumstances (CALJIC No. 8.81.17) immediately before 3 reading the circumstantial evidence instruction. 4 instructions as a whole, no reasonable juror would have understood 5 the challenged instruction not to apply to each of the requisite 6 mental states. 7 1143-44. There was no error.” Considering the Rodrigues, 8 Cal. 4th at 8 The California Supreme Court went on to say: 9 Assuming the court’s omission [of CALJIC No. 3.31 as to special circumstances] constituted error (see Use Note to CALJIC No. 8.83.1; Use Note to CALJIC No. 2.02), the instructions, when considered as a whole, properly guided the jury’s consideration of the evidence. [Citation omitted.] The jury was instructed that CALJIC No. 3.31 applied with respect to the underlying crimes of burglary and attempted robbery. It was also instructed pursuant to CALJIC No. 8.81.17. (See fn. 48, ante.) A reasonable juror receiving these instructions would have understood that concurrence of act and specific intent was required for the special circumstance allegations, and could not have believed otherwise. [Citation omitted.] The perceived error was harmless under any standard. (Ibid.) . . . . United States District Court For the Northern District of California 10 11 12 13 14 15 16 [T]he court’s version of CALJIC No. 8.83.1 instructed on the sufficiency of circumstantial evidence to prove the required “mental state” for the special circumstance allegations. (See fn. 48, ante.) A reasonable juror would have understood this instruction to apply to the circumstantial evidence concerning defendant’s purpose in committing the murder. No error appears. 17 18 19 20 21 Rodrigues, 8 Cal. 4th at 1144-45. 22 Petitioner has failed to show that “‘fairminded jurists could 23 disagree’ on the correctness of the state court’s decision.” 24 Harrington, 562 U.S. at 101. 25 As with the above subclaims, The petition’s request for habeas relief for this allegation 26 of constitutionally impermissible jury instruction error is 27 DENIED. 28 // 113 1 7. Cumulative instructional error 2 Petitioner has failed to show any single prejudicial 3 instructional error and, therefore, any cumulative prejudicial 4 instructional error. 5 this allegation is DENIED. 6 8. 7 The petition’s request for habeas relief for Trial counsel was ineffective for failing to object to erroneous instructions 8 Because Petitioner has failed to show any prejudicial 9 instructional error, he cannot demonstrate deficient performance United States District Court For the Northern District of California 10 of counsel or prejudice. 11 for this allegation is DENIED. 12 Q. 13 14 The petition’s request for habeas relief Claim twenty: prosecution failure to disclose impeachment evidence Petitioner argues that the prosecution withheld from him 15 impeachment information concerning the bias of Ms. Ontiveros and 16 Mr. Zavala. 17 hearing on this claim. 18 untimely. 19 merit, as discussed below. 20 procedural bar applies; Petitioner has not demonstrated prejudice, 21 see Frady, 456 U.S. at 170, and his new evidence does not 22 demonstrate miscarriage of justice, see McQuiggin, 133 S. Ct. at 23 1933. 24 Petitioner requests both discovery and an evidentiary This claim is procedurally barred as Even if it were not procedurally barred, it is without For this reason, no exception to the In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court 25 held that “the suppression by the prosecution of evidence 26 favorable to an accused upon request violates due process where 27 the evidence is material either to guilt or to punishment, 28 irrespective of the good faith or bad faith of the prosecution.” 114 Id. at 87. 2 to disclose such evidence applies even when there has been no 3 request by the accused. 4 (1976). 5 well as exculpatory evidence. 6 667, 676 (1985). 7 show: (1) that the evidence at issue is favorable to the accused, 8 because it is either exculpatory or impeaching; (2) that it was 9 suppressed by the prosecution, either willfully or inadvertently; 10 United States District Court For the Northern District of California 1 and (3) that it was material (or, put differently, that prejudice 11 ensued). 12 v. Greene, 527 U.S. 263, 281-82 (1999). 13 The Supreme Court has since made clear that the duty United States v. Agurs, 427 U.S. 97, 107 Further, the duty encompasses impeachment evidence as United States v. Bagley, 473 U.S. To succeed on a Brady claim, Petitioner must See Banks v. Dretke, 540 U.S. 668, 691 (2004); Strickler “Brady information includes ‘material . . . that bears on the 14 credibility of a significant witness in the case.’” 15 v. Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir. 1993) (quoting 16 United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988)). 17 “Evidence relevant to the impeachment of a witness adverse to the 18 defendant may be favorable and material when the reliability of 19 the witness may be determinative of the defendant’s guilt or 20 innocence.” 21 2009) (internal quotation marks omitted). 22 has held, “impeachment evidence is especially likely to be 23 material when it impugns the testimony of a witness who is 24 critical to the prosecution’s case.” 25 F.3d 900, 913-14 (9th Cir. 2009) (brackets omitted) (finding a 26 Brady violation based on the prosecution’s failure to disclose 27 evidence of a key witness’s criminal history of dishonest and 28 fraudulent conduct); accord Smith v. Cain, 132 S. Ct. 627, 630-31 United States United States v. Collins, 551 F.3d 914, 924 (9th Cir. 115 As the Ninth Circuit United States v. Price, 566 1 (2012) (finding impeachment evidence about prosecution’s sole 2 witness to be material). 3 4 1. Discovery Petitioner argues that the prosecution withheld evidence of 5 both police surveillance of the victims’ apartment and monetary 6 and immigration assistance exchanged for Mr. Zavala's testimony. 7 Petitioner seeks discovery as to when the prosecution knew of the 8 police reports of the alleged surveillance and the benefits Mr. 9 Zavala obtained. As discussed below, Petitioner does not present United States District Court For the Northern District of California 10 any evidence that police reports of surveillance of Mr. Zavala’s 11 apartment actually exist and there are no disputed facts as to the 12 monetary and immigration benefits given to Mr. Zavala. 13 Furthermore, he has not shown good cause for such discovery. 14 Thus, his discovery request is DENIED. 15 16 2. Evidentiary hearing As discussed below, this claim fails on its merits. 17 Accordingly, there is no need for an evidentiary hearing. 18 Petitioner’s request for an evidentiary hearing on this claim is 19 DENIED. 20 See Sully, 725 F.3d at 1075; 28 U.S.C. § 2254(e)(2). 3. 21 22 Merits a. Ms. Ontiveros Petitioner argues that the prosecution failed to disclose 23 that Ms. Ontiveros was receiving benefits “in addition to those 24 flowing from the terms and conditions” of her plea bargain. 25 Pet. at 174. 26 including placement in less restrictive prison programs despite 27 her criminal history and continued behavioral infractions, biased 28 her testimony against him. Am. Petitioner claims that these additional benefits, He contends that the prosecutor 116 1 allowed Ms. Ontiveros “to testify falsely that no other benefits, 2 aside from those mentioned during her testimony, were bestowed 3 upon her as a result of her status as a prosecution witness” and 4 that the prosecutor “affirmatively represented to the Court that 5 his office did not intercede on Ontiveros’ behalf.” 6 claims that “the prosecutor failed to disclose Ontiveros’s history 7 of sexual liaisons with law enforcement; her correspondence with 8 prisoners admitting her ejection from the program, her sexual 9 relationship with an officer, and the role of Garcia in the crime; United States District Court For the Northern District of California 10 11 and, her criminal past with Garcia.” Id. He also Id. at 175. Petitioner’s allegations are insufficient to support this 12 claim. 13 questioned Ms. Ontiveros about most of the issues Petitioner 14 alleges were not disclosed, including her drug use, her plea deal, 15 and her custodial placement in less restrictive programs. 16 92 at RT 9789-91; Ex. 93 at RT 9890-97. 17 connection with claim fifteen, Petitioner has failed to provide 18 reliable evidence showing that Ms. Ontiveros actually engaged in 19 illicit relationships with police, or that such evidence would 20 have been admissible at trial. 21 22 The trial record shows that Petitioner’s counsel As discussed above in Accordingly, the petition’s claim for relief on the ground that the prosecution withheld this impeachment evidence is DENIED. 23 24 See Ex. b. Mr. Zavala Petitioner claims that, after his trial, he learned that a 25 prosecution interpreter had interviewed Mr. Zavala before he 26 testified. 27 attack and awoke to find his brother dead. Petitioner provides a 28 declaration of the investigator who interviewed the interpreter. Mr. Zavala told her that he had blacked out during the 117 1 Ex. 186 at Ex. 65. 2 and exculpatory on the questions of who killed Andres Barragan –- 3 the ‘knife guy’ or the ‘tire iron guy’ —- whether Zavala’s in- 4 court identification of petitioner as one of the attackers was 5 credible, and whether his description of events should be 6 believed.” 7 Petitioner claims, “Such evidence was material Am. Pet. at 175. Petitioner was the "knife guy." However, while Mr. Zavala said that a photograph of 8 Petitioner taken after Petitioner’s arrest resembled the man with 9 the knife who attacked the victim, Mr. Zavala’s identification of United States District Court For the Northern District of California 10 Petitioner at trial was equivocal. 11 counsel thoroughly cross-examined Mr. Zavala about his ability to 12 see his brother’s attacker in light of Mr. Zavala’s vantage point, 13 the amount of blood in his eyes, and the fact he was being 14 attacked himself. 15 during the attack would not further impeach his testimony that it 16 was Petitioner who committed the attack. 17 petition’s claim for relief on the ground that the prosecution 18 suppressed impeachment evidence of Mr. Zavala’s black-out during 19 the attack is DENIED. 20 Additionally, Petitioner’s Therefore, any evidence that he blacked out Accordingly, the Petitioner also claims that Mr. Zavala received over $10,000 21 in benefits from the prosecution in exchange for his testimony. 22 He argues that these benefits were “sufficient to create a bias 23 which would have motivated [Mr. Zavala] to support any theory 24 which the state put forward.” 25 counters that the bulk of the benefits paid to Mr. Zavala were 26 paid after Petitioner’s trial, and that prosecutor could not have 27 disclosed allegedly excessive payments that had not yet been made. Am. Pet. at 175. 28 118 Respondent 1 This argument is well-taken. Furthermore, Petitioner does 2 not state how this evidence would have impeached Mr. Zavala’s 3 testimony. 4 Zavala was motivated to support the prosecution’s theory, but he 5 does not allege in what way Mr. Zavala’s testimony was false or 6 incorrect. 7 material, or that the prosecution’s failure to disclose it was 8 prejudicial. 9 He states vaguely that due to these benefits, Mr. Thus, Petitioner does not show that this evidence was Accordingly, the petition’s claim for relief on the ground United States District Court For the Northern District of California 10 that the prosecution suppressed impeachment evidence of monetary 11 benefits bestowed on Mr. Zavala is DENIED. 12 Next, Petitioner claims that the San Mateo County District 13 Attorney’s office interceded on Mr. Zavala’s behalf to gain his 14 legal entry into the United States around the time of Petitioner’s 15 trial. 16 undocumented and, after the attack, returned to Mexico. 17 Petitioner claims that Mr. Zavala and his family were granted 18 legal entry into the United States and allowed to remain. 19 However, the declarations submitted by Petitioner do not provide 20 any evidence of such intercession. 21 routine requests for immigration parole to allow Mr. Zavala to 22 enter the United States for the purpose of testifying. 23 166, App. 84. 24 He claims that, at the time of the attack, Mr. Zavala was Indeed, they reflect only See Ex. Furthermore, Petitioner does not state how this evidence 25 would have impeached Mr. Zavala’s testimony, or to what effect. 26 Thus, Petitioner does not show that this evidence was material, or 27 that the prosecution’s failure to disclose it was prejudicial. 28 Accordingly, the petition’s claim for relief on the ground that 119 1 the prosecution suppressed impeachment evidence of immigration 2 assistance provided to Mr. Zavala is DENIED. 3 Finally, Petitioner argues that the prosecution failed to 4 disclose reports of ongoing police surveillance of Mr. Zavala’s 5 apartment. 6 surveillance happened, or that any reports of it exist, much less 7 that the prosecution withheld those reports or that they impeached 8 any evidence. 9 that the prosecution suppressed impeachment evidence based on United States District Court For the Northern District of California 10 11 Yet he does not present any evidence that such Thus, the petition’s claim for relief on the ground police surveillance is DENIED. Accordingly, the record supports the state court’s conclusion 12 that the prosecution did not withhold impeachment information. 13 Petitioner has not shown that the state court’s decision was 14 “contrary to, or involved an unreasonable application of, clearly 15 established Federal law” or that it “resulted in a decision that 16 was based on an unreasonable determination of the facts in light 17 of the evidence presented” to it. 18 petition’s claim for relief on the ground that the prosecution 19 withheld impeachment evidence is DENIED. 28 U.S.C. § 2254(d). The 20 R. 21 Petitioner alleges two instances where the prosecution used Claim twenty-one: prosecution’s use of false testimony 22 false and misleading testimony. 23 “prosecutor used Ontiveros to strongly imply that Mr. Rodrigues 24 was in on and participated in the planning of the robbery,” 25 Traverse at 144, even though the prosecutor knew that Petitioner 26 was not a participant in the planning. 27 the prosecutor knowingly “elicited and presented false and 28 misleading testimony from his forensic experts during trial.” First, he alleges that the 120 Second, he alleges that Am. 1 Pet. at 197. 2 with the claim, but he does request an evidentiary hearing. 3 discussed above, these claims are procedurally barred. 4 exception applies because Petitioner has not demonstrated 5 prejudice, see Frady, 456 U.S. at 170, and because his new 6 evidence does not demonstrate miscarriage of justice, see 7 McQuiggin, 133 S. Ct. at 1933. 8 unexhausted; Respondent argues that it contains new allegations 9 that were never presented to the state court. Petitioner does not request discovery associated As No This claim is also potentially Even if these United States District Court For the Northern District of California 10 allegations were not procedurally barred or unexhausted, they are 11 without merit, as discussed below. 12 The Supreme Court has held that "a conviction obtained by the 13 knowing use of perjured testimony is fundamentally unfair, and 14 must be set aside if there is any reasonable likelihood that the 15 false testimony could have affected the judgment of the jury.” 16 Agurs, 427 U.S. at 103. 17 presentation of false evidence. 18 nn.8-9 (explaining that a “‘deliberate deception of court and jury 19 by the presentation of testimony known to be perjured’ is 20 inconsistent with ‘the rudimentary demands of justice,’” and a 21 resulting conviction must be set aside “if there is any reasonable 22 likelihood that the false testimony could have affected the jury’s 23 verdict”) (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)); 24 Spivey, 194 F.3d at 979 (explaining on habeas that a conviction 25 based on false evidence warrants a new trial if there is a 26 reasonable probability that without the evidence the result would 27 have been different); Napue v. Illinois, 360 U.S. 264, 269 (1959). 28 // So must a conviction obtained by the See Bagley, 473 U.S. at 678-80 121 1 2 1. Evidentiary hearing As discussed below, this claim fails on its merits. 3 Accordingly, there is no need for an evidentiary hearing. 4 Petitioner’s request for an evidentiary hearing on this claim is 5 DENIED. See Sully, 725 F.3d at 1075; 28 U.S.C. § 2254(e)(2). 6 7 Thus, 2. Merits Petitioner alleges that Ms. Ontiveros’s testimony at his 8 trial differed from her testimony at Mr. Garcia’s trial regarding 9 the extent to which Petitioner was an active participant in United States District Court For the Northern District of California 10 planning the robbery. 11 records of Mr. Garcia’s trial to show how the prosecutor 12 emphasized facts differently at the two trials. 13 not allege that Ms. Ontiveros’s testimony at his trial was false, 14 but rather that she strongly implied that he participated in 15 planning the robbery when he had “nothing to do with the 16 planning.” 17 after the conclusion of Petitioner’s trial. 18 not allege that the prosecution knew Ms. Ontiveros was going to 19 alter her testimony at the second trial. 20 evidence that the prosecutor was aware at the time of Petitioner’s 21 trial that Ms. Ontiveros would change her testimony in the future. 22 Petitioner's evidence consists of the trial Traverse at 144. Petitioner does Furthermore, Mr. Garcia’s trial came Petitioner also does Therefore, there is no In addition, evidence that Petitioner participated little in 23 the planning of the crime, when considered with the other evidence 24 against him, likely would not have swayed the jury against 25 convicting him. 26 Petitioner also alleges that the prosecutor elicited false 27 and misleading testimony from his forensic experts. 28 criminalist testified at Petitioner’s trial that a drop of blood 122 The 1 found outside the victims’ apartment could have been a mixture of 2 type A (the victims’ blood type) and type O (Petitioner’s and Mr. 3 Garcia’s blood type). 4 testified that the blood was most likely type A alone. 5 does not explain how either of these statements was false. 6 criminalist may have truthfully testified that the drop of blood 7 could have been a mixture, but that a mixture was not as likely as 8 a drop of type A blood from a single individual. 9 even if Petitioner’s allegations were sufficient to show that the At Mr. Garcia’s trial, the same criminalist Petitioner The Furthermore, United States District Court For the Northern District of California 10 challenged evidence was false, he does not show “a reasonable 11 probability that without the evidence the result would have been 12 different.” 13 Cir. 1989). 14 United States v. Endicott, 869 F.2d 452, 455 (9th Accordingly, the record supports the state court’s conclusion 15 that the prosecution did not knowingly present perjured testimony 16 or false evidence. 17 court’s decision was “contrary to, or involved an unreasonable 18 application of, clearly established Federal law” or that it 19 “resulted in a decision that was based on an unreasonable 20 determination of the facts in light of the evidence presented” to 21 it. 22 ground that the prosecution knowingly presented perjured testimony 23 or false evidence is DENIED. Petitioner has not shown that the state 28 U.S.C. § 2254(d). The petition’s claim for relief on the 24 S. 25 Petitioner argues that the prosecutor withheld a number of Claim twenty-two: withholding of discovery 26 items from discovery or prejudicially delayed delivery of certain 27 pieces of discovery until after defense counsel had made strategic 28 decisions that might have been different had counsel known of the 123 1 evidence the prosecutor had. 2 discovery or an evidentiary hearing on this claim. 3 Petitioner does not request Many of the instances of delayed discovery that Petitioner 4 cites relate to the penalty phase of his trial. 5 Petitioner is no longer subject to a capital sentence, those 6 allegations are moot. 7 they relate to the guilt phase of his trial. 8 9 Because A few allegations are still viable because The standard for disclosure of impeachment or exculpatory evidence is explained above in claim twenty. In sum, for a Brady United States District Court For the Northern District of California 10 claim to succeed, a petitioner must show: (1) that the evidence at 11 issue is favorable to the accused, either because it is 12 exculpatory or impeaching; (2) that it was suppressed by the 13 prosecution, either willfully or inadvertently; and (3) that it 14 was material (or, put differently, that prejudice ensued). 15 540 U.S. at 691; Strickler, 527 U.S. at 281-82. 16 Banks, With respect to the guilt phase of his trial, Petitioner 17 challenges the prosecution’s failure to provide at all or in a 18 timely manner: (1) a comparison of the hairs removed from the 19 deceased victim's hand to those found on the knife that was the 20 alleged murder weapon; (2) an examination of physical evidence 21 taken from Petitioner’s car; (3) an analysis of eleven valid but 22 unidentified fingerprints taken from Petitioner’s car; and (4) a 23 report from the national database on the bloody fingerprints 24 lifted from the victims’ door, which Petitioner acknowledges was 25 never completed. 26 the prosecution’s failure to disclose the addresses and criminal 27 history of the 120 witnesses on its witness list in a timely 28 manner. Am. Pet. at 209-10. Petitioner also challenges Petitioner specifically argues that had his counsel been 124 1 able to procure the presence of James Williams at trial, his 2 counsel would have been able to establish that the unidentified 3 bloody prints on the door did not belong to Mr. Williams and 4 would, therefore, have supported Petitioner’s defense that an 5 unknown third party committed the murder. 6 claim was presented to the state court for the first time in 7 Petitioner’s initial state petition for writ of habeas corpus. 8 The California Supreme Court denied the claim on the merits 9 without further explanation. United States District Court For the Northern District of California 10 Id. at 214-15. This Ex. 172. Prior to trial, the court held a number of hearings on 11 discovery motions filed by Petitioner’s counsel. 12 23 at RT 313, 323-27; Ex. 25 at RT 902-24; Ex. 31 at RT 2784-818; 13 Ex. 52 at RT 5338-80; Ex. 63 at RT 6910-36; Exs. 72 and 73 at RT 14 8048-213; and Ex. 74 at RT 8259-72. 15 trial court heard all of Petitioner’s counsel’s concerns regarding 16 delayed or denied discovery up to that point. 17 ultimately determined that “there was not either overt or either 18 negligent attempt to conceal information. 19 information is available.” 20 See, e.g., Ex. During these hearings, the The trial court In fact, all of the Ex. 74 at RT 8273. It appears from Petitioner’s briefing, the trial record, and 21 Petitioner’s first state habeas petition that the four items 22 Petitioner argues the prosecution should have surrendered do not 23 exist. 24 25 i. Hair Found on Victim’s Hand and on the Knife Petitioner acknowledges that the hair sample testing he 26 believes should have been conducted, specifically comparing the 27 unidentified hair samples on the victim’s hand to the unidentified 28 hair samples on the murder weapon, was never conducted. 125 Am. Pet. 1 at 209. 2 victim, his brother, Ms. Ontiveros, Mr. Garcia, and Petitioner. 3 Id. 4 the two unidentified sets of samples should be compared against 5 each other. 6 indicating the absence of such testing had been disclosed to 7 counsel sooner, counsel could have conducted such testing on their 8 own and that the results would have been exculpatory. 9 Petitioner notes the samples were compared with the Because those tests yielded negative results, he argues that Id. Petitioner appears to argue that if the notes Id. Petitioner’s expectation about the results of any such United States District Court For the Northern District of California 10 testing is speculative. 11 required to do more than ‘merely speculate’” about what such 12 testing would reveal. 13 (9th Cir. 2012). 14 prosecution failed to turn over exculpatory evidence and has, 15 accordingly, failed to make the requisite showing to prevail under 16 Brady on this claim. To state a Brady claim, Petitioner “is Runningeagle v. Ryan, 686 F.3d 758, 769 Thus, Petitioner has not shown that the 17 Moreover, Petitioner has not shown that he has been 18 prejudiced by the prosecutor’s failure to turn over notes in a 19 timely manner indicating that such testing had not been done. 20 Petitioner “does not need to prove that a different result would 21 have occurred in his case. 22 court unreasonably decided that there was not 'a reasonable 23 probability of a different result.’” 24 F.3d 970, 983 (9th Cir. 2013) (citation omitted). 25 probability” may not be based on mere speculation without adequate 26 support. 27 28 He needs to show only that the state Aguilar v. Woodford, 725 A “reasonable See Wood v. Bartholomew, 516 U.S. 1, 6-8 (1995). The failure to provide timely testing reports on the hair analysis was challenged at the “omnibus” discovery hearings 126 1 occurring on June 13 and 14, 1987. 2 213; Ex. 74 at RT 8259-72. 3 prosecution’s failure to submit the hair samples for analysis in a 4 timely fashion. 5 there had been a delay in getting a court order to require 6 Petitioner to submit to a hair analysis and that hair analysis was 7 labor intensive and time consuming. 8 noted, the trial judge found no attempt to withhold. 9 prosecution had withheld the hair testing analyses and notes, the See Exs. 72 and 73 at RT 8048- Petitioner’s counsel challenged the Ex. 74 at RT 8261. The prosecution argued that Ex. 74 at RT 8263-66. As Even if the United States District Court For the Northern District of California 10 record indicates that defense counsel also had received hair 11 samples, from which they could have conducted their own testing. 12 Ex. 74 at RT 8265. 13 prejudiced by the prosecutor’s failure to submit the hair analysis 14 in a more timely fashion. 15 ii. 16 Petitioner’s defense, therefore, was not Physical Evidence Taken from Petitioner’s Car Petitioner challenges the prosecutor’s failure to take 17 photographs of the Luminol tests conducted on his car and the 18 prosecutor’s failure to notify him of the destruction of the car. 19 Petitioner’s argument about potential false positives identified 20 by Luminol, and any potential prejudice, was addressed in the 21 discussion of claim fourteen above. 22 photographs of the Luminol test results should have been taken, 23 does not support a finding of a Brady violation. 24 His argument, that As for the opportunity to conduct his own evaluation of the 25 car, Petitioner’s investigator examined the car in July 1987, 26 months before the alleged destruction of the car in September 27 1987. 28 about Luminol’s false positives. Petitioner’s counsel cross-examined the state’s criminalist He has not shown that the 127 1 prosecution withheld any evidence that could not have been 2 discovered by the defense’s investigation. 3 not shown prejudice from the destruction of the car. 4 iii. Two Sets of Unidentified Fingerprints Accordingly, he has 5 Petitioner challenges the prosecution’s failure to run 6 through a national database eleven valid fingerprints taken from 7 his car. 8 prosecution’s failure to run through the same database bloody 9 fingerprints found on a door in the victims' apartment. Am. Pet. at 210. Similarly, he challenges the Id. United States District Court For the Northern District of California 10 Petitioner’s belief that the results of these tests would provide 11 exculpatory evidence is speculative. 12 Again, also, he has failed to show prejudice. While 13 Petitioner argues that the murder was actually part of a drug deal 14 with unknown parties gone awry, he has produced no evidence to 15 support such a defense. 16 unidentified fingerprints in his own car could indicate another 17 attacker. 18 Petitioner has not explained how As for the bloody fingerprints on the victims’ door frame, 19 Petitioner did have the opportunity to question the prosecution’s 20 criminalist, Stanley Baker, about the possibility that at least 21 one of the bloody fingerprints could have been from James 22 Williams, a man identified by the police as having been in the 23 area of the victims’ apartment the day of the murder. 24 testified that one bloody print had characteristics that were 25 similar to Mr. Williams’s fingerprints and such characteristics 26 were shared by only five percent of the population. 27 9304. 28 fingerprint as belonging to Mr. Williams. Mr. Baker Ex. 88 at RT Mr. Baker, however, could not positively identify the 128 Ex. 88 at RT 9304. 1 From this, Petitioner argues that the fingerprints in question 2 were not Mr. Williams’s as asserted by the prosecution, but 3 belonged to an unknown assailant. 4 show that the fingerprints did not belong to Mr. Williams, he 5 would not be able to show that the California Supreme Court's 6 decision was unreasonable. 7 Even if Petitioner were able to Petitioner also argues that a list of witness addresses and 8 convictions was not timely provided, but the only guilt phase 9 potential witness about whom he sought information was Mr. United States District Court For the Northern District of California 10 Williams. 11 able to interview Mr. Williams and procure a new fingerprint 12 sample if they had been provided his address in a timely fashion, 13 the exculpatory value of the information Mr. Williams could 14 provide is speculative. 15 indicates that even if defense counsel had been provided with the 16 address police had on file, they may not have been able to locate 17 Mr. Williams. 18 fingerprint sample from Mr. Williams; however, Mr. Williams was no 19 longer in the area and police could not locate him. 20 9305. While Petitioner argues that counsel would have been Moreover, the testimony in the case Mr. Baker testified that he had requested another Id. at RT 21 Petitioner has not shown that the evidence he says was 22 withheld was exculpatory or had impeachment value; that the state 23 withheld it, either intentionally or negligently; or that he was 24 prejudiced by not having it. 25 that the state court’s decision was “contrary to, or involved an 26 unreasonable application of, clearly established Federal law” or 27 that it “resulted in a decision that was based on an unreasonable 28 determination of the facts in light of the evidence presented” to Therefore, he has failed to show 129 1 it. 2 relief on the ground that the state withheld discovery is DENIED. 28 U.S.C. § 2254(d). Accordingly, the petition’s claim for 3 T. 4 Petitioner argues that the prosecutor improperly interfered Claim twenty-four: witness interference 5 or tampered with the testimony of five witnesses: Rejon Mitchell, 6 Hilario Rodriguez, Ricky Calles, Officer Leo Rodriguez, and 7 criminalist Elizabeth Skinner. 8 these witnesses testified at the penalty phase of Petitioner’s 9 trial for the purposes of presenting aggravating factors that With the exception of Ms. Skinner, United States District Court For the Northern District of California 10 would subject Petitioner to the death penalty. 11 is no longer subject to a capital sentence, the claims as to these 12 witnesses are moot. 13 Because Petitioner Petitioner explains the following sequence of events. Ms. 14 Skinner testified at the guilt phase that none of the blood found 15 at the scene could have belonged to Petitioner. 16 prosecution announced that she wanted to introduce a changed 17 opinion. At a hearing, Ms. Skinner testified about two changes of 18 opinion. A sample of blood on the doorway to the victims’ 19 apartment did in fact test consistent with Petitioner’s blood 20 transferrin factor type of CD; it was not a C result as she had 21 initially reported. 22 actually type 2 in a GC test, not a type 2-1 as she had initially 23 reported. 24 Petitioner's blood type, but the change of opinion was reported in 25 the local press during the guilt phase of the trial. 26 224. 27 hearing on this claim. Later, the Also, co-perpetrator Mr. Garcia's blood was The trial court excluded her new opinion about Am. Pet. at Petitioner does not request discovery or an evidentiary 28 130 1 Regarding Petitioner's blood, Respondent emphasizes that Ms. 2 Skinner did not testify at trial as to her changed opinion. 3 Additionally, Respondent asserts that Ms. Skinner’s changed 4 opinion about Mr. Garcia’s blood type in the GC test was not 5 prejudicial to Petitioner. 6 California Supreme Court’s denial of this claim was unreasonable. 7 Because the challenged testimony was excluded from trial, Ex. 96 8 at RT 10203-04, Petitioner cannot show that he was prejudiced in 9 any way by it. Petitioner has failed to show that the United States District Court For the Northern District of California 10 Petitioner notes that media reports covered Ms. Skinner’s new 11 opinion that blood at the crime scene was consistent with his, but 12 fails to make any assertion or showing that the jury actually saw 13 this coverage. 14 newspaper accounts, listen to radio programs or view television 15 programs regarding the case during the trial. 16 Jurors are presumed to follow their instructions. 17 Marsh, 481 U.S. 200, 211 (1987). 18 The jurors were instructed not to read any Ex. 78 at RT 8492. Richardson v. Accordingly, the record supports the state court’s conclusion 19 that the prosecution did not commit misconduct related to witness 20 interference. 21 decision was “contrary to, or involved an unreasonable application 22 of, clearly established Federal law” or that it “resulted in a 23 decision that was based on an unreasonable determination of the 24 facts in light of the evidence presented” to it. 25 § 2254(d). 26 that the prosecution interfered with witnesses is DENIED. 27 // 28 // Petitioner has not shown that the state court’s 28 U.S.C. Thus, the petition’s claim for relief on the ground 131 1 U. 2 In this claim, Petitioner challenges the trial court's Claim forty-one: erroneous removal of jurors for cause 3 removal of potential jurors Melissa Cassiday and Grace Levario for 4 cause. 5 whether they could impose the death penalty were not sufficiently 6 problematic to warrant their removal. 7 discovery or an evidentiary hearing on this claim. 8 9 He argues that their responses to questions regarding Petitioner does not request The California Supreme Court denied this claim stating: “The voir dire of prospective jurors Levario and Cassiday amply United States District Court For the Northern District of California 10 supported the trial court’s decision to exclude them.” 11 8 Cal. 4th at 1147. 12 Rodrigues, In light of the facts that these jurors were excused based on 13 their opinions regarding the death penalty and Petitioner is no 14 longer subject to a capital sentence, this claim is moot. 15 it were not, Petitioner has failed to show that the exclusion of 16 these two jurors prejudiced him and had a substantial and 17 injurious effect on the jury’s verdict, because the death sentence 18 was vacated. 19 Even if See Brecht, 507 U.S. at 629. Moreover, there is no merit to this claim. Petitioner relies 20 on Wainwright v. Witt to support his argument that potential 21 Jurors Levario and Cassiday should not have been excused based on 22 their expressed views regarding capital punishment. 23 (1985). 24 juror whom the trial court excused: 25 26 27 28 469 U.S. 412 In that case, the following exchange took place with a [Q. Prosecutor:] Now, let me ask you a question, ma'am. Do you have any religious beliefs or personal beliefs against the death penalty? [A. Colby:] I am afraid personally but not— [Q]: Speak up, please. [A]: I am afraid of being a little personal, but definitely not religious. 132 1 2 3 4 5 6 [Q]: Now, would that interfere with you sitting as a juror in this case? [A]: I am afraid it would. [Q]: You are afraid it would? [A]: Yes, Sir. [Q]: Would it interfere with judging the guilt or innocence of the Defendant in this case? [A]: I think so. [Q]: You think it would. [A]: I think it would. [Q]: Your honor, I would move for cause at this point. THE COURT: All right. Step down. 7 Id. at 415-16. 8 exchange to be a sufficient basis on which to exclude the juror. 9 Id. at 435. The United States Supreme Court found this The Supreme Court also noted that such a claim is a United States District Court For the Northern District of California 10 factual one and, when raised in the context of a petition for writ 11 of habeas corpus, is entitled to deference. 12 this case was decided, Congress enacted AEDPA, which substantially 13 circumscribed the standard of review for factual determinations. 14 Under AEDPA, state court findings of fact “are presumed correct” 15 unless rebutted by clear and convincing evidence. 16 Cockrell, 537 U.S. 322, 340 (2003); see also Gonzalez v. Pliler, 17 341 F.3d 897, 903 (9th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1)). 18 Petitioner has failed to make such a showing. 19 Id. at 426-30. Since Miller-El v. Exchanges took place during the voir dire of potential jurors 20 Levario and Cassiday similar to, though more extensive than, the 21 one in Witt, where the Court upheld dismissing the potential 22 juror. 23 Supreme Court decision denying this claim was unreasonable. 24 25 Accordingly, Petitioner cannot show that the California 1. Potential Juror Levario When initially questioned, Ms. Levario stated, “I would never 26 vote, you know, for [the death penalty] or against it. 27 have to, like I said, hear the case.” 28 Petitioner relies on this to argue that Ms. Levario showed that 133 I would Ex. 35 at RT 3350. 1 she could be impartial and follow the trial court’s instruction. 2 However, she immediately thereafter said, “I don’t really feel 3 like I could answer that right now because I don’t really know how 4 I’m going to feel after I -- I think maybe I could, but I don’t, 5 I’m not positive at this time, you know, how I’m going to feel.” 6 Id. 7 The trial court then asked, “Do you think that you would be 8 in a position where under no circumstances could you ever impose 9 the death penalty?” United States District Court For the Northern District of California 10 Id. 11 Id. at RT 3351. She replied, “I think so.” further. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Her answers got stronger as the prosecutor questioned her [Q]: Do you feel that if you were selected as a juror in this case and were asked to go into the jury room with your fellow jurors to decide whether or not to impose the death penalty . . . on a person that your inner feelings would be such that you’d find yourself in a position where you’d have to say, “I just don’t think I can do it”? [A]: I believe so, that I would be that type of person. . . . . [Q]: And at this point, do you feel that if you were put in that position that your -- your feelings about life and death are such that you possibly would not be able to cast a vote for the death penalty? [A]: Like I said, I have mixed emotions about it, but I believe I will have a problem deciding, yes. [Q]: Okay. If I might just ask a couple of further questions. The problems that you feel in that regard, are they because of your conscientious feelings about life and death? [A]: I think so and I also think that -- I don’t know, I just feel like God is the only one that can, you know, really make that judgment on a person, but – [Q]: There are some people who hold that belief very dearly and it’s not necessarily a wrong belief. [A]: Right. [Q]: Unfortunately in this case we’re attempting to find 12 people who are not, I don’t want to say burdened because it sounds like it’s wrong, burdened with feelings such as that such that in the final analysis they say, “Gee, though I believe in the law, when it comes to me actually imposing it I don’t think I can. Do you feel you’re one of these persons? [A]: I think so. 134 1 2 Id. at RT 3353-55. Defense counsel attempted to rehabilitate her and asked her 3 questions about her ability to adhere to the judge’s instructions. 4 She indicated that she could be impartial, though she remained 5 equivocal about it. 6 evidence, it would really have to be the real bad against the good 7 to even -- but I -- like I said, I have mixed emotions. 8 know whether I can say the death penalty right there and then.” 9 Id. at RT 3357. She said, “I would really need a lot of I don’t United States District Court For the Northern District of California 10 The trial court then questioned her again based on a 11 perceived contradiction in her answers about whether she could 12 impose the death penalty. 13 14 15 16 17 18 19 20 21 22 23 The following exchange took place: [Q]: Now, if you imagine that after you’ve heard the evidence of aggravation and mitigation, that is, the bad as opposed to the good, and you find that the bad outweighs the good and that the bad is substantial when compared to the good, and you are faced with the possible choice between the two penalties, if you thought that the evidence in the case justified it, that is, justified the death penalty, could you vote to put someone to death? [A]: I don’t think so, no. . . . . [Q]: Just to rephrase. Are you telling us that in, under no circumstances in any case even though you felt that the penalty of death was justified that could you vote for death? [A]: I don’t think so. I -- I just can’t understand really the death and the life imprisonment, it, to me, it’s just an, almost just as bad life imprisonment. Id. at RT 3358-59. Potential juror Levario was subjected to much more thorough 24 questioning than the potential juror at issue in Witt and was much 25 clearer about her inability to vote to impose the death penalty 26 even if she believed it was warranted under the circumstances of 27 the case. 28 court that under no circumstance even though she would believe The trial court here stated that “it’s clear to the 135 1 that the facts would justify it in fact could she impose it.” 2 at RT 3360. 3 evidence that would rebut the presumption that this finding was 4 correct. 5 2. 6 Id. Petitioner has failed to offer clear and convincing Potential Juror Cassiday When potential Juror Cassiday was questioned initially, she 7 noted that she would have a problem “feeling no prejudice for the 8 defendant” because he looked identical to her ex-brother-in-law, 9 who was an alcoholic and hit her sister. Ex. 38 at RT 3624. She United States District Court For the Northern District of California 10 was not dismissed for this reason because she did say that she 11 would “rise above it”; however, she felt it significant enough to 12 note on her questionnaire and discuss openly with the court. 13 at RT 3626. 14 Id. She was excused because of her inability to vote to impose 15 the death penalty. 16 significant likelihood that she would not be able to cast such a 17 vote: 18 19 20 21 22 23 24 25 26 27 28 Her exchanges with the court indicated a [Q]: Okay. The real question is if you’re faced with that situation in which you’ve made that independent decision you’ve come across it fairly and honestly and you’ve come to the conclusion, “Yes, this is a case that warrants the death penalty,” is there going to be any feelings or any belief that’s going to prevent you or substantially impair you in casting that vote for the death penalty? [A]: It’s possible. [Q]: That leaves us right -[A]: It just hit me, you know, then you said, the way you -yes, it’s possible. [Q]: This is probably the toughest thing you’re going to do in a long time. We need to ask you to take that possible and turn it into your best prediction of whether you’re going to be able to do that or not because unfortunately once you’re selected there are no tomorrows. [A]: I know. [Q]: And we have to know. [A]: If I -- okay. I have to weigh the two, go between yes and no, right? [Q]: I don’t know of any other way to give an answer. 136 [A]: Right. I -- I don’t know if I could do it, no. Probably -- I don’t know, I really don’t, honestly. . . . . [Q]: Okay. Do you feel at this point that looking into the future you were placed into a position where you intellectually and rationally understood that the death penalty was the appropriate verdict that you would still be substantially impaired in your ability to go ahead and follow the law and cast that vote just because of your personal hesitation or moral views? [A]: Moral views, I guess, yeah. Sleeping at night, yes, I think so. 1 2 3 4 5 6 7 Id. at RT 3644-45. 8 much more in-depth than the one upheld by the Supreme Court in 9 Witt. Like that with Ms. Levario, this exchange is United States District Court For the Northern District of California 10 Defense counsel did not attempt to rehabilitate Ms. Cassiday, 11 nor did he indicate a disagreement with the prosecutor’s motion to 12 excuse her under Witt, as he did with Ms. Levario. 13 3646. 14 prospective juror after observing, her evaluating her questions, I 15 mean her responses to the questions, her demeanor, the court is 16 convinced that she would be impaired, therefore, she’ll be 17 disqualified.” 18 and convincing evidence to rebut the presumption that this factual 19 finding was incorrect. 20 Id. at RT The trial court concluded that “after listening to the Id. Again, Petitioner has failed to offer clear Even if this claim were not moot, Petitioner has failed to 21 show that the California Supreme Court’s denial of it was 22 unreasonable or that the disqualification of these two potential 23 jurors prejudiced him. 24 state court’s decision was “contrary to, or involved an 25 unreasonable application of, clearly established Federal law” or 26 that it “resulted in a decision that was based on an unreasonable 27 determination of the facts in light of the evidence presented” to 28 it. Thus, Petitioner has not shown that the 28 U.S.C. § 2254(d). Accordingly, this claim is DENIED. 137 1 V. 2 3 Claim forty-four: ineffective assistance of appellate counsel Petitioner asserts six grounds for habeas relief due to 4 ineffective assistance of appellate counsel. 5 discovery or an evidentiary hearing on this claim. 6 He does not request The Due Process Clause of the Fourteenth Amendment guarantees 7 a criminal defendant the effective assistance of counsel on his 8 first appeal as of right. 9 (1985). Evitts v. Lucey, 469 U.S. 387, 391-405 Claims of ineffective assistance of appellate counsel are United States District Court For the Northern District of California 10 reviewed according to the standard set out in Strickland, 466 U.S. 11 at 668. 12 v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010); Miller v. Keeney, 13 882 F.2d 1428, 1433 (9th Cir. 1989). 14 See Smith v. Robbins, 528 U.S. 259, 285 (2000); Moormann First, the petitioner must show that counsel’s performance 15 was objectively unreasonable, which in the appellate context 16 requires the petitioner to demonstrate that counsel acted 17 unreasonably in failing to discover and brief a non-frivolous 18 issue. 19 Second, the petitioner must show prejudice, which in this context 20 means that the petitioner must demonstrate a reasonable 21 probability that, but for appellate counsel’s failure to raise the 22 issue, the petitioner would have prevailed in his appeal. 23 Smith, 528 U.S. at 285-86; Moormann, 628 F.3d at 1106. 24 See Smith, 528 U.S. at 285; Moormann, 628 F.3d at 1106. See Appellate counsel does not have a constitutional duty to 25 raise every non-frivolous issue requested by the defendant. 26 Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart, 27 129 F.3d 1027, 1045 (9th Cir. 1997); Miller, 882 F.2d at 1434 28 n.10. See Weeding out weaker issues is widely recognized as one of 138 1 the hallmarks of effective appellate advocacy. 2 F.2d at 1434. 3 above an objective standard of competence and cause their clients 4 no prejudice for the same reason: because they declined to raise a 5 weak issue. 6 See Miller, 882 Therefore, appellate counsel will frequently act Id. Furthermore, as discussed above, under AEDPA the Court must 7 afford the state court’s determination of an ineffective 8 assistance of counsel claim additional deference. 9 not merely if counsel was ineffective under Strickland, but The question is United States District Court For the Northern District of California 10 whether the state court’s decision was unreasonable. 11 Harrington, 562 U.S. at 101. 12 13 1. See Failure to advance all meritorious legal bases Petitioner alleges that appellate counsel failed to “advance 14 all meritorious legal bases for issues presented on petitioner’s 15 behalf on direct appeal.” 16 incorporates claims six, twelve, thirteen, nineteen, twenty, 17 thirty, thirty-two, thirty-six, thirty-nine, forty and forty-three 18 in this allegation.9 19 counsel raised each of these issues during their representation” 20 of him. 21 provide the legal bases articulated [in this petition] in support 22 of those claims.” 23 24 Am. Pet. at 295. Petitioner Petitioner concedes: “State appellate However, Petitioner alleges, appellate counsel “failed to Id. As discussed above, “appellate counsel does not have a constitutional duty to raise every nonfrivolous issue.” Miller, 25 26 27 28 9 Many of these claims were already denied as moot because they were related to the imposition of Petitioner's death sentence, namely claims six, thirty, thirty-two, thirty-six, thirty-nine, forty and forty-three. 139 1 882 F.2d at 1434 n.10. 2 were raised. 3 ineffective assistance of appellate counsel claim on deficient 4 briefing of “all meritorious legal bases,” Petitioner fails to 5 show that appellate counsel acted unreasonably in failing to 6 advance every meritorious legal basis for the claims in his state 7 appeal. 8 meritorious; thus appellate counsel was not deficient in failing 9 to assert all non-frivolous issues or bases for them. Here, Petitioner admits that these issues While Petitioner argues that he rests his As discussed above, none of Petitioner’s claims is United States District Court For the Northern District of California 10 Furthermore, Petitioner fails to demonstrate prejudice. 11 Apart from conclusory statements that “had appellate counsel 12 raised these issues on direct appeal” -– and Petitioner admits 13 that appellate counsel did raise them –- “the state court would 14 have granted relief.” 15 Petitioner concedes that the California Supreme Court addressed 16 each of his issues and found that they lacked merit. 17 Petitioner could establish that some briefing errors occurred, he 18 does not establish that he was prejudiced by the alleged errors. 19 Likewise, given that Petitioner fails to establish that his Am. Pet. at 295. To the contrary, Even if 20 appellate counsel was deficient under Strickland for these alleged 21 errors, he cannot establish that the state court was unreasonable 22 in its application of Strickland. 23 cannot support the petition’s claim for relief on the ground of 24 ineffective assistance of appellate counsel. 25 // 26 // 27 // 28 // Accordingly, these allegations 140 1 2. 2 Failure to raise meritorious issues, causing procedural default 3 Petitioner claims appellate counsel was ineffective for 4 failing to raise certain issues on appeal, leading to those claims 5 being procedurally defaulted for purposes of state habeas review. 6 Petitioner argues that, due to the failure of appellate 7 counsel to raise them, claims nine, ten, twenty and twenty-one 8 were not “properly presented” on direct appeal.10 9 ten are ineffective assistance of trial counsel claims. Claims nine and Claim United States District Court For the Northern District of California 10 twenty argues that the prosecution withheld material evidence. 11 Claim twenty-one argues that the prosecution used false and/or 12 perjured testimony in its case against him. 13 these claims was procedurally defaulted based on failure to raise 14 it on direct appeal. 15 these claims to be procedurally defaulted because they were 16 untimely when presented to the state court. 17 However, none of Rather, as stated above, this Court found Under Martinez, 132 S. Ct. 1309, an exception to this 18 procedural default rule may permit relief where appellate counsel 19 failed to raise on appeal claims of ineffective assistance of 20 trial counsel. 21 defaulted claim of ineffective assistance of trial counsel where a 22 petitioner could not have raised the claim on direct review and 23 was afforded no counsel or only ineffective counsel on state 24 collateral review. 25 expanded the Martinez exception in Trevino v. Thaler, applying it Cause may exist for excusing a procedurally Id. at 1315. The Supreme Court reaffirmed and 26 10 27 28 Petitioner also included claims seven and eight in this allegation. Those claims addressed Petitioner’s death sentence and, thus, are moot. 141 1 to a petitioner in any state whose “procedural framework, by 2 reason of its design and operation, makes it highly unlikely in a 3 typical case that a defendant will have a meaningful opportunity 4 to raise the claim of ineffective assistance of trial counsel on 5 direct appeal.” 6 exception arguably applies to California under the rationale of 7 Trevino because California law provides that “except in those rare 8 instances where there is no conceivable tactical purpose for 9 counsel’s actions, claims of ineffective assistance of counsel 133 S. Ct. 1911, 1918-21 (2013). The Martinez United States District Court For the Northern District of California 10 should be raised on habeas corpus, not on direct appeal.” 11 v. Lopez, 42 Cal. 4th 960, 972 (2008). 12 People The Martinez exception does not apply because it applies to 13 default based on failure to raise an issue on appeal, rather than 14 untimely presentation to the state court. 15 exception applied, Petitioner would be able to overcome the 16 procedural default of only claims nine and ten because they allege 17 ineffective assistance of trial counsel. 18 if claims nine and ten were not procedurally defaulted, they are 19 without merit. 20 to raise meritless claims. 21 Even if the Martinez As discussed above, even Appellate counsel was not ineffective for failing Accordingly, even if appellate counsel caused the procedural 22 default, Petitioner has not shown that appellate counsel was in 23 error or that caused any error was prejudicial. 24 these allegations cannot support the petition’s claim for relief 25 on the ground of ineffective assistance of appellate counsel. 26 // 27 // 28 // 142 Accordingly, 1 3. 2 3 Failure to raise trial counsel’s failure to impeach Petitioner next argues that appellate counsel unreasonably 4 failed to raise an ineffective assistance of trial counsel claim 5 for failure to impeach four prosecution witnesses at trial. 6 this claim, he incorporates the allegations included in claim 7 nine. 8 histories, the jury would have “realized that each of these 9 witnesses was highly impeachable, based on their criminal records United States District Court For the Northern District of California 10 11 In He argues that, given the witnesses’ extensive criminal alone.” Am. Pet. at 295. As discussed above, to determine whether appellate counsel’s 12 failure to raise a claim of ineffective assistance of trial 13 counsel on this ground was objectively unreasonable and 14 prejudicial, this Court must first assess the merits of the 15 underlying claim that trial counsel provided constitutionally 16 deficient performance. 17 counsel’s performance was not objectively unreasonable or did not 18 prejudice Petitioner, then appellate counsel did not act 19 unreasonably in failing to raise a meritless claim of ineffective 20 assistance of trial counsel, and Petitioner was not prejudiced by 21 appellate counsel’s omission. 22 Moormann, 628 F.3d at 1106-07. If trial Id. As discussed above, claim nine lacks merit. Petitioner fails 23 to establish that an ineffective assistance of trial counsel claim 24 on this ground was meritorious. 25 even if the jury had been made aware of these witnesses’ criminal 26 histories, there is no strong inference that the jury would have 27 found their testimony to be untruthful. 28 weeding out of weaker issues is widely recognized as one of the On its face, the claim is weak: 143 As stated above, the 1 hallmarks of effective appellate advocacy. 2 at 1434. 3 counsel was unreasonable not to raise this issue, nor that he was 4 prejudiced by this alleged deficiency. 5 See Miller, 882 F.2d Thus, Petitioner does not establish that appellate Likewise, given that Petitioner fails to establish that his 6 appellate counsel was deficient under Strickland for these alleged 7 errors, he cannot establish that the state court was unreasonable 8 in its application of Strickland. 9 cannot support the petition’s claim of ineffective assistance of United States District Court For the Northern District of California 10 Accordingly, these allegations appellate counsel. 11 4. Failure to request judicial notice 12 Petitioner argues that appellate counsel was deficient for 13 failing to request that the state court take judicial notice of 14 the entire reporter’s and clerk’s transcripts in People v. Juan 15 Garcia, San Mateo County Superior Court No. C-20836, the trial of 16 his co-perpetrator. 17 Petitioner fails to establish prejudice. Even if appellate 18 counsel had requested that the state court take judicial notice of 19 the transcripts, Petitioner has not established that the state 20 court would have granted his request. 21 establish that anything in the transcripts would have led to a 22 more favorable outcome, such that his conviction would have been 23 reversed. 24 unreasonable for failing to make this request. 25 Furthermore, he does not Hence, he fails to show that appellate counsel was Given that Petitioner fails to establish that his appellate 26 counsel was deficient under Strickland for this alleged error, he 27 cannot establish that the state court was unreasonable in its 28 application of Strickland. Accordingly, this allegation cannot 144 1 support the petition’s claim of ineffective assistance of 2 appellate counsel. 3 5. 4 5 Failure to augment the record with jury questionnaires Petitioner argues that appellate counsel failed to augment 6 the record with the juror questionnaires and failed to raise the 7 issue of unconstitutional jury composition as presented in claim 8 five. 9 refers. It is not clear to what juror questionnaires Petitioner Exhibits 174 through 183 include questionnaires of all United States District Court For the Northern District of California 10 potential jurors who filled out questionnaires specific to his 11 trial. 12 Thus, these questionnaires are part of the record. In claim five, Petitioner argues among other things that he 13 was denied a fair and impartial jury pool composed of a cross 14 section of the community. 15 is without merit. 16 counsel was deficient for failure to augment the record, or that 17 he was prejudiced by any such failure. 18 allegation cannot support the petition’s claim of ineffective 19 assistance of appellate counsel. 20 6. 21 22 As discussed above, however, this claim Thus, Petitioner cannot show that appellate Accordingly, this Failure to raise trial court’s error in denying the motion for a separate penalty phase jury Petitioner argues that appellate counsel unreasonably failed 23 to assign as error on appeal “the trial court’s improper denial of 24 petitioner’s motion for a separate penalty phase jury, or to 25 question the jury after the guilt phase, and the constitutionally 26 inadequate and misleading nature of the voir dire at petitioner’s 27 trial.” 28 ruling deprived [him] of his statutory right to two juries under Am. Pet. at 296-297. He claims that the “trial court’s 145 1 California Penal Code section 190.4(c).” 2 is moot except to the extent it attacks the voir dire at his 3 trial. Id. at 296. This claim 4 California Penal Code section 190.4, subdivision (c) provides 5 that the same jury shall consider the guilt and the penalty phases 6 of a capital trial absent good cause for discharging the guilt 7 phase jury. 8 is a “‘long-standing legislative preference for a single jury to 9 determine both guilt and penalty.’” The California Supreme Court has stated that “there People v. Catlin, 26 Cal. 4th United States District Court For the Northern District of California 10 81, 114 (2001) (citing People v. Lucas, 12 Cal. 4th 415, 483 11 (1995)). 12 defense counsel ‘to voir dire in one way for the guilt phase and a 13 different way for the penalty phase,’ . . . ‘does not constitute 14 "good cause" for deviating from the clear legislative mandate.’” 15 Id. (citing same). 16 The court explained further that “the ‘mere desire’ of Petitioner argues that his defense counsel was “forced to 17 elect between engaging in the necessary voir dire with the 18 attendant contamination of jurors as to the guilt phase evidence, 19 or foregoing that voir dire to prevent prejudice to petitioner’s 20 guilt phase defense that he was not present.” 21 However, this is precisely the type of argument that the 22 California Supreme Court has stated is not “good cause” for having 23 a separate jury. 24 this situation “constitutes a common problem arising out of 25 inconsistent defense strategies at the guilt and penalty phases of 26 trial, yet such inconsistencies do not, without more, constitute 27 good cause for empanelling separate guilt and penalty phase 28 juries”). Am. Pet. at 44. See Catlin, 26 Cal. 4th at 115 (explaining that 146 1 Accordingly, Petitioner cannot show that appellate counsel 2 was deficient for failure to raise this issue on direct appeal, or 3 that he was prejudiced by that decision. 4 cannot support the petition’s claim of ineffective assistance of 5 appellate counsel. 6 7. 7 8 Thus, this allegation Failure to raise trial court’s error in denying Petitioner’s right to confrontation Petitioner argues that appellate counsel unreasonably failed to assign as error on appeal “trial court rulings which deprived 10 United States District Court For the Northern District of California 9 petitioner of his right to confrontation and cross examination, 11 compulsory process, and the right to effective assistance of 12 counsel and to which trial counsel objected.” 13 Petitioner contends: 14 Am. Pet. at 297. These include the trial court’s rulings preventing trial counsel from cross-examining Cynthia Ontiveros with respect to specific occasions on which she lied to law enforcement; from eliciting testimony from Zavala about the arguments he had with his brother concerning drugs; from questioning Zavala about the drug business; and, from cross-examining Zavala on the nature and quantity of drugs used by Zavala and Barragan that day. 15 16 17 18 19 Id. 20 for failing to properly raise these matters with the trial court, 21 appellate counsel was required to raise this facet of the claim as 22 well.” 23 He also claims, "To the extent trial counsel was ineffective Id. Petitioner offers only a conclusory statement that, had 24 appellate counsel raised these issues, the California Supreme 25 Court would have granted relief. 26 support a claim of ineffective assistance of appellate counsel. 27 Petitioner fails to state any basis for appellate counsel raising This statement is inadequate to 28 147 1 these issues, or how he was prejudiced by appellate counsel’s 2 failure to do so. 3 Given that Petitioner fails to establish that his appellate 4 counsel was deficient under Strickland for these alleged errors, 5 he cannot establish that the state court was unreasonable in its 6 application of Strickland. 7 support the petition’s claim of ineffective assistance of 8 appellate counsel. 9 Accordingly, this allegation cannot The record supports the state court’s conclusion that United States District Court For the Northern District of California 10 appellate counsel was not ineffective for the above decisions. 11 Thus, Petitioner has not shown that the state court’s decision was 12 “contrary to, or involved an unreasonable application of, clearly 13 established Federal law” or that it “resulted in a decision that 14 was based on an unreasonable determination of the facts in light 15 of the evidence presented” to it. 16 petition’s claim for relief on the ground that appellate counsel 17 was ineffective is DENIED. 28 U.S.C. § 2254(d). The 18 W. 19 Petitioner argues that, given all the alleged constitutional 20 violations discussed above, the cumulative effect deprived him of 21 a fair trial and rendered his convictions unreliable. 22 Claim forty-seven: cumulative error As discussed, all of Petitioner’s claims fail. Accordingly, 23 the petition’s claim for relief on the ground of cumulative error 24 is DENIED. 25 CONCLUSION 26 For the reasons stated above, the petition for a writ of 27 habeas corpus is DENIED. 28 DENIED, and Petitioner’s motion for an evidentiary hearing Petitioner’s discovery requests are 148 1 is DENIED. 2 as to claim one, claim three and claim nine relating to 3 Petitioner's competency, as well as claim four relating to Juror 4 Langston. The Clerk of the Court shall enter judgment and close 5 the file. The parties shall bear their own costs. 6 Petitioner is GRANTED a certificate of appealability IT IS SO ORDERED. 7 8 9 Dated: September 6, 2016 CLAUDIA WILKEN United States District Judge United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 149