Swain v. Neotti et al, No. 3:2011cv01086 - Document 55 (S.D. Cal. 2013)

Court Description: ORDER Denying Petition for Writ of Habeas Corpus with Prejudice and Adopting Magistrate Judge's Report and Recommendation. The Court denies Petitioner's request for a certificate of appealability. Signed by Judge Marilyn L. Huff on 12/19/2013. (All non-registered users served via U.S. Mail Service)(knb)

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Swain v. Neotti et al Doc. 55 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 THEODORE SWAIN, 13 vs. 14 15 Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION JEFFREY BEARD, Secretary1, 16 17 CASE NO. 11-CV-1086-H (PCL) Respondent. On May 17, 2011, Petitioner Theodore Swain (“Petitioner”), a state prisoner 18 19 20 21 22 23 24 proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On October 24, 2012, Respondent filed a response. (Doc. No. 21.) On September 6, 2013, the magistrate judge issued a report and recommendation to deny the petition for writ of habeas corpus. (Doc. No. 45.) For the following reasons, the Court denies the petition for writ of habeas corpus and adopts the magistrate judge’s report and recommendation. 25 26 27 1 Matthew Cate is no longer the Secretary of the California Department of Corrections and Rehabilitation; Jeffrey Beard has recently been appointed Secretary of that agency. The Court therefore substitutes “Jeffrey Beard” as Respondent in place of “Matthew Cate.” See Fed. R. Civ. P. 25(d)(1). 28 -1- 11cv1086 Dockets.Justia.com Background 1 2 On March 4, 2008, a jury in the California Superior Court of San Diego County 3 convicted the Petitioner of a number of charges related to his involvement in a 4 securities fraud scheme. (Lodgment No. 1, vol.3 at 105.) The jury found Petitioner 5 guilty of fifteen counts of selling securities by misrepresentation or omission of a 6 material fact (Cal. Corp. Code §§25401, 25540(b)), six counts of engaging in 7 fraudulent securities schemes (Cal. Corp. Code §§ 25541, 25540 (a)), and eight counts 8 of grand theft (Cal. Penal Code § 487(a)). The jury also found that three of the thefts 9 were committed against elders (Cal. Penal Code § 368(d)) and that Petitioner engaged 10 in a pattern of related felony conduct involving the taking of more than $100,000, 11 $500,000 and $2,500,000 against the elders, respectively. (Cal. Penal Code §§ 12 186.11(a)(2)) and 12022.6(a)(4)). (Lodgment No. 1, vol. 1 at 164-195; see also id. vol. 13 2 at 442-45.) Petitioner unsuccessfully appealed his conviction to the California Court 14 of Appeal and to the California Supreme Court. (Lodgment Nos. 3, 6, 7, 8.) Petitioner 15 then filed petitions for writ of habeas corpus in the San Diego Superior Court, which 16 denied his petition, and in the California Court of Appeal, which denied his petition. 17 (Lodgment No. 9, 13.) 18 On May 17, 2011, Petitioner filed this federal petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. (Doc. No. 1) On September 6, 2013, the magistrate 20 judge filed a report and recommendation to deny the petition for writ of habeas corpus. 21 (Doc. No. 45.) Discussion 22 23 I. Legal Standard of Review 24 A district court “may accept, reject, or modify, in whole or in part, the findings 25 or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party objects 26 to any portion of the report, the district court “shall make a de novo determination of 27 28 -2- 11cv1086 1 those portions of the report . . . to which objection is made.” Id. 2 A federal court may review a petition for writ of habeas corpus by a person in 3 custody pursuant to a state court judgment “only on the ground that he is in custody in 4 violation of the Constitution or laws or treaties of the United States.” Id. § 2254(a); 5 accord Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). Habeas corpus is an 6 “extraordinary remedy” available only to those “persons whom society has grievously 7 wronged and for whom belated liberation is little enough compensation.” Juan H. v. 8 Allen, 408 F.3d 1262, 1270 (9th Cir. 2005) (quoting Brecht v. Abrahamson, 507 U.S. 9 619, 633-34 (1993)). Because Petitioner filed this petition after April 24, 1996, the 10 Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs the 11 petition. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Chein v. Shumsky, 373 F.3d 12 978, 983 (9th Cir. 2004) (en banc). “By its terms § 2254(d) bars relitigation of any 13 claim ‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 14 2254(d)(1) and (d)(2).” Harrington v. Richter, 131 S. Ct. 770, 784 (2011). Indeed, 15 “[w]hen a federal claim has been presented to a state court and the state court has 16 denied relief, it may be presumed that the state court adjudicated the claim on the 17 merits in the absence of any indication or state-law procedural principles to the 18 contrary.” Id. Federal habeas relief is available, but only if the result of a federal claim 19 the state court adjudicated on the merits is “contrary to,” or “an unreasonable 20 application” of United States Supreme Court precedent, or if the adjudication is “an 21 unreasonable determination” based on the facts and evidence. 28 U.S.C. §§ 2254(d)(1) 22 and 2254(d)(2). 23 A federal court may grant habeas relief under the “contrary to” clause of § 24 2254(d)(1) if a state court either “applies a rule that contradicts the governing law set 25 forth in [the United States Supreme Court’s] cases” or “confronts a set of facts that are 26 materially indistinguishable from a decision of [the] Court and nevertheless arrives at 27 28 -3- 11cv1086 1 a result different from [the Court’s] precedent.” Early v. Packer, 537 U.S. 3, 8 (2002); 2 see also Williams, 529 U.S. at 405-06 (distinguishing the “contrary to” and the 3 “unreasonable application” standards). “[R]eview under 28 U.S.C. § 2254(d)(1) is 4 limited to the record that was before the state court that adjudicated the claim on the 5 merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). 6 A federal court may grant habeas relief under the “unreasonable application” 7 clause of § 2254(d)(1) if the state court “identifies the correct governing legal rule from 8 [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular 9 state prisoner’s case.” Williams, 529 U.S. at 407. A federal court may also grant 10 habeas relief “if the state court either unreasonably extends a legal principle from 11 [Supreme Court] precedent to a new context where it should not apply or unreasonably 12 refuses to extend that principle to a new context where it should apply.” Id. The state 13 court’s “unreasonable application” of binding precedent must be objectively 14 unreasonable to the extent that the state court decision is more than merely incorrect 15 or erroneous. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (citation omitted); see 16 Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). 17 Additionally, even if a state court decision is contrary to United States Supreme 18 Court precedent or rests on an unreasonable determination of facts in light of the 19 evidence, the petitioner must show that such error caused substantial or injurious 20 prejudice. Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht, 507 U.S. at 21 637-38); see Fry v. Pliler, 551 U.S. 112, 121-22 (2007); Bains v. Cambra, 204 F.3d 22 964, 977 (9th Cir. 2000). AEDPA creates a highly deferential standard toward state 23 court rulings. Woodford v. Viscotti, 537 U.S. 19, 24 (2002); see Womack v. Del Papa, 24 497 F.3d 998, 1001 (9th Cir. 2007). 25 // 26 // 27 28 -4- 11cv1086 1 II. Analysis 2 In his federal petition for writ of habeas corpus, Petitioner raises seven grounds 3 for relief.2 In claim one, Petitioner argues the trial court erred in failing to give a 4 unanimity instruction with regard to the securities fraud, theft and securities scheme 5 charges, and that his defense counsel was ineffective in failing to request such 6 instructions. In claim two, Petitioner contends he received multiple sentences for the 7 same acts, in violation of his constitutional rights. In claim three, Petitioner asserts the 8 trial court improperly instructed the jury on the elements of the charged securities 9 offenses, in violation of his due process rights. In claim four Petitioner argues he 10 received ineffective assistance of counsel, in violation of his Sixth Amendment rights. 11 In claim five, Petitioner claims he received ineffective assistance of appellate counsel, 12 in violation of his Sixth Amendment rights. In claim six, Petitioner argues “outrageous 13 government conduct” rendered his trial fundamentally unfair. In claim seven, 14 Petitioner contends that he is “actually innocent.” (See Doc. No. 1 at 6-12.) 15 1. Unanimity Instruction 16 In claim one, Petitioner argues the trial court erred in failing to give the jury a 17 unanimity instruction on the charges involving securities violations under California 18 Corporations Code section 25401 (counts 2, 3, 5, 6, 8, 9, 11, 13, 14, 16, 17, 18, 20, 22, 19 and 27), charges involving grand theft under California Penal Code section 487 (counts 20 4, 7, and 12), and charges of fraudulent securities schemes (counts 28-33). (See Doc. 21 1 at 6.) Petitioner raised these claims in the California Court of Appeal, and the 22 California Court of Appeal denied these claims. (Lodgment Nos. 3, 6.) The California 23 Supreme Court denied these claims without comment or citation when Petitioner raised 24 them again in his petition for review. (Lodgment Nos. 7, 8.) This Court looks through 25 26 27 2 Petitioner numbered his claims different in his form petition, his supporting documents, and memorandum of points and authorities. The Court will refer to Petitioner’s grounds for relief as labeled in his initial form petition. (See Doc. No. 1 at 6-12.) 28 -5- 11cv1086 1 the state supreme court’s denial to the decision of the appellate court. See Ylst v. 2 Nunnemaker, 501 U.S. 797, 801-06 (1991). 3 In general, a challenge to jury instructions does not state a federal constitutional 4 claim. Engle v. Isaac, 456 U.S. 107 (1982); Gutierrez v. Griggs, 695 F.2d 1195, 1197 5 (9th Cir. 1983). In order to warrant federal habeas relief, “it must be established not 6 merely that the instruction is undesirable, erroneous or even ‘universally condemned,’ 7 but that it violated some right which was guaranteed to the defendant by the Fourteenth 8 Amendment.” Cupp v. Naughten, 414 U.S. 141, 146 (1973); see also Henderson v. 9 Kibbe, 431 U.S. 145, 154 (1977). To prevail on such a claim, petitioner must 10 demonstrate that an erroneous instruction “‘by itself so infected the entire trial that the 11 resulting conviction violates due process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991) 12 (quoting Cupp, 414 U.S. at 147). A petitioner has a particularly heavy burden to prove 13 a due process violation on the basis of a failure to give an instruction, as an “omission, 14 or an incomplete instruction, is less likely to be prejudicial than a misstatement of the 15 law.” Henderson, 431 U.S. at 155. Moreover, even assuming that omission of a 16 particular instruction was constitutionally erroneous, federal habeas relief is not 17 available unless the error had a substantial and injurious influence in determining the 18 jury’s verdict. Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008) (per curiam) (citing 19 Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). 20 Petitioner’s claims of instructional error fail. First, a state criminal defendant 21 does not have a federal constitutional right to a unanimous verdict in a non-capital trial. 22 See Apodaca v. Oregon, 406 U.S. 404, 410-14 (1972); Johnson v. Louisiana, 406 U.S. 23 356, 359 (1972) (noting that “this Court has never held jury unanimity to be a requisite 24 of due process of law”). The Supreme Court has also held that the Constitution does 25 not require unanimous agreement on the theory underlying a charge. See Schad v. 26 Arizona, 501 U.S. 624, 631-32 (1991). Second, Petitioner has not shown a violation 27 28 -6- 11cv1086 1 of due process because the jury was properly instructed, pursuant to California law, that 2 it must unanimously find that Petitioner made a material misrepresentation or omission, 3 but not a specific one. See People v. Butler, 212 Cal. App. 4th 404, 426 (2012) 4 (holding that “jurors were not required to agree on the particular misrepresentations or 5 omissions they relied on for the convictions because that finding merely relates to the 6 manner of committing the crime”). 7 2. Multiple Punishment 8 In claim two, Petitioner contends the trial court imposed unconstitutional 9 multiple punishments for several counts of securities violations. (See Doc. No. 1 at 7.) 10 Respondent argues that in state court, Petitioner relied exclusively on the multiple11 punishment bar of California Penal Code section 654 as the basis for his claim and as 12 a result, the claim is not cognizable on federal habeas review. (Doc. No. 21-1 at 14.) 13 First, although Petitioner states his sentence was “unconstitutional,” his claim 14 is essentially a challenge to the trial court’s application of California Penal Code § 654. 15 See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (stating that a petitioner 16 “may not transform a state-law issue into a federal one merely by asserting a violation 17 of due process.”). Such a claim is not cognizable on federal habeas review. See Watts 18 v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989). This Court will not review a state 19 supreme court’s interpretation of its own law unless that interpretation “is clearly 20 untenable and amounts to a subterfuge to avoid federal review of a deprivation by the 21 state of rights guaranteed by the Constitution.” Knapp v. Cardwell, 667 F.2d 1253, 22 1260 (9th Cir. 1982). Petitioner has made no such showing here. The Court therefore 23 concludes Petitioner is not entitled to relief as to claim two. 24 3. Instruction on the Elements of the Offense 25 In claim three, Petitioner argues the jury was improperly instructed on the 26 elements of the offenses under California Corporation Code sections 25401, 25540, and 27 25541. (See Doc. No. 1 at 8.) Petitioner also argues that his conviction under 28 California Penal Code sections 487 and 386, for grand theft and elder abuse, -7- 11cv1086 1 respectively, cannot stand if the other convictions fall. (See id.) 2 To the extent Petitioner argues the instructions were erroneous as a matter of 3 state law, his claim is not cognizable on federal habeas review. See Estelle v. McGuire, 4 502 U.S. 62, 71-72 (1991). To merit relief, clearly established law requires a petitioner 5 to show that the instructional error so infected the entire trial that the resulting 6 conviction violated due process. Id. at 72; Henderson v. Kibbe, 431 U.S. 145, 154 7 (1977); Cupp v. Naughten, 414 U.S. 141, 147 (1973). Instructional error warrants 8 habeas relief only if it created a reasonable likelihood that the jury “applied the 9 instruction in a way that relieved the State of its burden of proving every element of the 10 crime beyond a reasonable doubt.” Waddington v. Sarausad, 555 U.S. 179, 190-91 11 (2009). 12 Petitioner argues the court erred in failing to instruct the jury that it must find 13 that he “knew the misrepresentation or omission was ‘material,’” and that there was a 14 connection between the misrepresentation or omission and the purchase of the security. 15 (See Doc. No. 1-1 at 45). Contrary to Petitioner’s assertion, the jury was instructed that 16 it must either find that Petitioner “knew of the falsity or misleading nature of the 17 statement or the materiality of the omission,” or that he was criminally negligent in 18 failing to investigate or discover the falsity or omission. (Lodgment No. 1, vol. 1 at 19 148.) Additionally, there is no requirement in the statute that the purchase be 20 connected to the material representation or omission. Thus, Petitioner has not met his 21 burden of demonstrating that the instruction was erroneous, much less that it “so 22 infected the entire trial that the resulting conviction violates due process.” See Estelle 23 v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 24 (1973)). Therefore, the Court finds Petitioner is not entitled to relief as to claim three. 25 4. Ineffective Assistance of Trial Counsel 26 Petitioner also alleges ineffective assistance of his trial counsel, Albert Tamayo, 27 in violation of his Sixth Amendment rights. (Doc. No. 1-1 at 52.) Petitioner argues 28 Tamayo should have objected to the trial court’s failure to give unanimity instructions -8- 11cv1086 1 for securities fraud, theft, and operating securities schemes, or Tamayo should have 2 requested such instructions. (See Doc. No. 1-1 at 52-79) Petitioner also contends 3 Tamayo was ineffective because he was unprepared for trial. (See Doc. No. 1-1 at 52.) 4 Petitioner claims Tamayo failed to call several witnesses who would have testified that 5 he ran a legitimate business and that his criminal history and prior bankruptcies were 6 irrelevant and therefore not “material” to a reasonable investor. (See Doc. No.1-1 at 7 52-79.) Finally, Petitioner claims Tamayo failed to present evidence that reasonable 8 people invest monies without regard for the background of the principal party. (See 9 id.) 10 To prevail on a claim of ineffective assistance of trial counsel in federal court, 11 Petitioner must first establish that his trial counsel’s performance fell below an 12 objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 13 (1984). “This requires a showing that counsel made errors so serious that counsel was 14 not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 15 Id. at 687. Judicial scrutiny of counsel’s performance must be “highly deferential.” Id. 16 at 689. Second, Petitioner must show counsel’s deficient performance prejudiced the 17 defense. Under Strickland, there must be a “reasonable probability that, but for 18 counsel’s unprofessional errors, the result of the proceeding would have been 19 different.” Id. at 694. A reasonable probability is a probability “sufficient to 20 undermine confidence in the outcome.” Id.; see also Fretwell v. Lockhart, 506 U.S. 21 364, 372 (1993). 22 A “doubly” deferential judicial review is appropriate in analyzing ineffective 23 assistance of counsel claims under section 2254. See Harrington v. Richter, 131 S.Ct. 24 770, 788 (2011); Premo v. Moore, 131 S.Ct. 733, 740 (2011). The general rule of 25 Strickland gives the state courts greater leeway in reasonably applying that rule, which 26 in turn “translates to a narrower range of decisions that are objectively reasonable 27 under AEDPA.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing 28 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). On federal habeas review, “the -9- 11cv1086 1 question is not whether counsel’s actions were reasonable, [but] whether there is any 2 reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, 3 131 S.Ct. at 788. The Court need not address the performance prong if the claim can 4 be resolved on the ground of lack of sufficient prejudice. Strickland, 466 U.S. at 697. 5 a. Failure to Request Unanimity Instructions 6 Petitioner argues Tamayo was ineffective in failing to request unanimity 7 instructions. Failure to take a futile action does not constitute deficient performance. 8 See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). The Court has concluded that 9 Petitioner was not entitled to unanimity instructions under California law. Therefore, 10 any request for such instructions would have been futile, and Tamayo’s decision not 11 to request them was not an act of deficient performance. See Rupe v. Wood, 93 F.3d 12 1434, 1445 (9th Cir. 1996);see also James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). 13 Likewise, there is no reasonable probability that a more favorable result would have 14 occurred for Petitioner because the unanimity instructions were not available under 15 state law. See Strickland, 466 U.S. at 694-95. Accordingly, the state court’s denial of 16 this claim was neither contrary to, nor an unreasonable application of, clearly 17 established law. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000). 18 b. Failure to Prepare for Trial 19 Petitioner argues that Tamayo was not prepared for trial. Petitioner claims 20 Tamayo failed to adequately research the law, review the facts, and investigate the case 21 before trial. (Doc. No. 1 at 9; Doc. No. 1-1 at 52-55.) He further claims Tamayo was 22 ineffective in failing to call several witnesses to testify on his behalf. 23 On June 22, 2007, the Public Defender’s Office assigned Tamayo to Petitioner’s 24 case. (Lodgment No. 1, vol. 3 at 482). On October 10, 2007, the trial court denied 25 Tamayo’s motion to continue the trial date. At multiple points prior to and during the 26 trial, Tamayo stated that he was not adequately prepared and asked for continuances, 27 which the trial court denied. (Id. at 484; see also Lodgment No. 2, vol. 1 at 52-54.) 28 This Court need not decide whether Tamayo’s performance fell “outside the wide - 10 - 11cv1086 1 range of professionally competent assistance.” See Strickland, 466 U.S. at 690. Even 2 assuming Petitioner can satisfy the “doubly” deferential standard imposed under 3 AEDPA with regard to deficient performance, he is not entitled to relief because he has 4 not established prejudice. See Richter, 131 S.Ct. at 788. The undisputed evidence 5 against Petitioner was overwhelming. Petitioner admitted that he had prior felony 6 convictions for grand theft and a prior bankruptcy. (Lodgment No. 2, vol. 11 at 84, 7 87.) He admitted he failed to disclose these facts to investors. (Id. vol. 11 at 93-94; 8 vol. 12 at 47.) Nearly every victim testified that they would not have invested with 9 Petitioner had these facts been disclosed to them. (Id. at vol. 2 at 169-70; vol. 3 at 19910 200, 221, 258, 311; vol. 4 at 370, 399-400, 429-30, 448-49, 509-10, 528-29; vol. 5 at 11 738-39; vol. 6 at 784-85, 806-07, 828-29, 857; vol. 7 at 992-93; vol. 8 at 1242, 1374, 12 1431-33.) An expert in investment fraud, who was the former Enforcement Director 13 of the Department of Corporations, testified on rebuttal that bankruptcies and past 14 convictions should be disclosed in the prospectuses. (Id. vol. 12 at 199-202.) 15 These were not the only misrepresentations Petitioner made to investors. 16 Victims also testified they would not have invested with Petitioner had they known that 17 interest was being paid solely by obtaining money from other investors. (See id. vol. 18 3 at 223, 311-12; vol. 4 at 373, 400-01, 431, 447-48, 511, 529; vol. 6 at 785, 807, 829, 19 858; vol. 8 at 1242, 1373, 1434.) There was also testimony that Petitioner 20 misrepresented to investors that First Fidelity’s mortgage certificates were secured by 21 first trust deeds when, in fact, there were no trust deeds. (Id., vol. 3 at 216, 272, 272; 22 vol. 4 at 380; vol. 5 at 733; vol. 9 at 1476; vol. 10 at 1613.) There was evidence that 23 Petitioner misrepresented his experience in securities and the length of time First 24 Fidelity had been in business. (See id. vol. 4 at 16, 41-42; vol. 6 at 100, 223-26.) 25 There was evidence, particularly related to his prior convictions, that Petitioner acted 26 with a common plan or scheme to commit fraud. (See id. vol. 8 at 151, 206; vol. 9 at 27 14, 26; see also Lodgment No. 1, vol. 2 at 19-53.) 28 Having conducted a thorough independent review of the record, the Court - 11 - 11cv1086 1 concludes that the state court’s denial of Petitioner’s ineffective assistance of counsel 2 claim was neither contrary to, nor an unreasonable application of, clearly established 3 law. See Himes, 336 F.3d at 853. Petitioner is not entitled to relief as to claim four. 4 5. Ineffective Assistance of Appellate Counsel 5 Petitioner next argues that he received ineffective assistance of appellate counsel 6 in violation of his Sixth Amendment rights. (Doc. No. 1-1 at 81.) He states appellate 7 counsel should have raised claims of ineffective assistance of trial counsel, improper 8 jury instructions on the elements of the offenses, and outrageous government 9 misconduct on appeal. (Id.) 10 "The proper standard for evaluating [a] claim that appellate counsel was 11 ineffective . . . is that enunciated in Strickland.” Smith v. Robbins, 528 U.S. 259, 285 12 (2000) (citing Smith v. Murray, 477 U.S. 527, 535-36 (1986)). A petitioner must first 13 show that his appellate counsel’s performance fell below an objective standard of 14 reasonableness. Strickland, 466 U.S. at 688. Specifically, Petitioner must show that 15 appellate counsel “unreasonably failed to discover nonfrivolous issues and to file a 16 merits brief raising them.” Smith, 528 U.S. at 285. Petitioner must then show he was 17 prejudiced by counsel’s errors. Strickland, 466 U.S. at 694. To establish prejudice, 18 Petitioner must demonstrate that he would have prevailed on appeal absent counsel’s 19 errors. Smith, 528 U.S. at 285. 20 This Court already concluded that Petitioner did not establish prejudice as to his 21 ineffective assistance of trial counsel claim. It follows that any claim for ineffective 22 assistance of appellate counsel based on a meritless and unsuccessful claim of 23 ineffective assistance of trial counsel must also fail. See Rupe v. Wood, 93 F.3d 1434, 24 1445 (9th Cir. 1996). Appellate counsel’s failure to raise it cannot constitute 25 ineffective assistance. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). 26 6. Outrageous Government Misconduct 27 In claim six, Petitioner argues his due process rights were violated as result of 28 “outrageous government misconduct.” (Doc. No. 1 at 11.) Petitioner argues the - 12 - 11cv1086 1 Superior Court, the Attorney General’s Office, the Public Defender’s Office, and 2 California law enforcement conspired to deny him funds for expert witnesses, and that 3 they “used misstatements and omissions to convict Petitioner while knowingly 4 providing Petitioner totally in-adequate representation.” (Doc. No. 1-2 at 2.) 5 Petitioner claims a conspiracy to deny Petitioner due process, equal protection, and 6 effective assistance of counsel. (Doc. No. 1-2 at 2.) He further claims the Attorney 7 General hid exculpatory evidence, illegally seized assets, and failed to protect those 8 assets. (Id. at 3.) 9 Although there is no clearly established standard for a due process claim based 10 on outrageous government conduct, the Supreme Court has suggested in dicta that 11 outrageous government conduct may give rise to a due process defense. United States 12 v. Russell, 411 U.S. 423, 431-32 (1973). Because there is no clearly established 13 precedent for a due process claim based on outrageous government conduct, the 14 California courts’ denial of the claim is not contrary to, nor an unreasonable application 15 of, clearly established law. See Carey v. Musladin, 549 U.S. 70, 74 (2006); see also 16 Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) (“If no Supreme Court precedent 17 creates clearly established federal law relating to the legal issue the habeas petitioner 18 raised in state court, the state court’s decision cannot be contrary to or an unreasonable 19 application of clearly established federal law.”). 20 Petitioner’s judicial misconduct claim does not warrant relief. “[T]he floor 21 established by the Due Process Clause clearly requires a ‘fair trial in a fair tribunal,’ 22 before a judge with no actual bias against the defendant or interest in the outcome of 23 his particular case.” Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (internal citation 24 omitted) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)). The trial judge must 25 “‘avoid even the appearance of advocacy or partiality.’” Duckett v. Godinez, 67 F.3d 26 734, 739 (9th Cir. 1995) (internal quotation marks and citation omitted). A claim of 27 judicial misconduct by a state judge in the context of federal habeas review does not 28 simply require that the federal court determine whether the state judge committed - 13 - 11cv1086 1 judicial misconduct; rather, the question is whether the state judge’s behavior “rendered 2 the trial so fundamentally unfair as to violate federal due process under the United 3 States Constitution.” Id. at 740. A state judge’s conduct must be significantly adverse 4 to a defendant before it violates constitutional requirements of due process and 5 warrants federal intervention. Id. 6 Petitioner appears to argue that the trial judge’s denial of Tamayo’s motion for 7 a continuance was based on bias and therefore violated his due process rights. (See 8 Doc. No. 1-2 at 4-5.) In general, “[t]rial judges necessarily require a great deal of 9 latitude in scheduling trials.” Morris v. Slappy, 461 U.S. 1, 11-12, 103 (1983). In that 10 regard, “broad discretion must be granted trial courts on matters of continuances; only 11 an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a 12 justifiable request for delay’ violates the right to the assistance of counsel.” Id. 13 (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). Additionally, even if the judge 14 improperly denied the continuance, habeas relief is not available unless there is a 15 showing of actual prejudice to Petitioner's defense resulting from the refusal to grant 16 a continuance. See Gallego v. McDaniel, 124 F.3d 1065, 1072 (9th Cir. 1997); see also 17 United States v. Kloehn, 620 F.3d 1122, 1130 (9th Cir. 2010) (“An arbitrary denial of 18 a continuance is subject to the harmless error test.”) Petitioner also claims he was 19 denied adequate and equal resources to those the state expended in prosecuting him, 20 in violation of due process and equal protection. (See Doc. No. 1-2 at 11-13.) But 21 neither due process nor equal protection requires that the state equalize the resources 22 of the indigent and the wealthy defendant. See Ross v. Moffitt, 417 U.S. 600, 616 23 (1974). 24 Having conducted a thorough independent review of the record, the Court finds 25 that the state court’s denial of Petitioner’s outrageous government misconduct claim 26 was neither contrary to, nor an unreasonable application of, clearly established federal 27 law. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); see also 28 U.S.C. § 28 2254(d). The Court finds that Petitioner is not entitled to relief as to ground six. - 14 - 11cv1086 1 7. Actual Innocence 2 Finally, Petitioner argues he is actually innocent of committing the charged 3 crimes. (Doc. No. 1 at 12.) Whether a freestanding innocence claim is cognizable 4 under federal law is an “open question.” District Attorney’s Office for Third Judicial 5 Dist. v. Osborne, 557 U.S. 52, 71 (2009). Even assuming such a claim is cognizable 6 on federal habeas, the burden of proof for such a claim is “extraordinarily high.” 7 Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997). Even assuming Petitioner’s 8 claim is cognizable on federal habeas review, Petitioner is not entitled to relief because 9 he offers no “reliable new evidence” to support his claim. His evidence consists 10 primarily of his own self-serving declarations. Petitioner has not met the 11 extraordinarily high standard to show that he is “probably innocent.” Carriger, 132 12 F.3d at 476. Accordingly, the state court’s denial of this claim was neither contrary to, 13 nor an unreasonable application of, clearly established law. See Himes, 336 F.3d at 14 853; 28 U.S.C. §2254(d). Thus, the Court concludes that Petitioner is not entitled to 15 relief as to this claim. Conclusion 16 17 Accordingly, the Court denies the petition with prejudice, and the Court denies 18 Petitioner’s request for a certificate of appealability. 19 IT IS SO ORDERED. 20 Dated: December 19, 2013 ________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 21 22 23 24 25 26 27 28 - 15 - 11cv1086

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