Dunn v. Johnson et al, No. 3:2020cv00127 - Document 8 (S.D. Cal. 2020)
Court Description: ORDER Denying Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by Judge Gonzalo P. Curiel on 10/30/20.(All non-registered users served via U.S. Mail Service)(dlg)
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Dunn v. Johnson et al Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EMANUEL DUNN, JR. Case No. 3:20-cv-00127-GPC-JLB Petitioner, 12 13 v. 14 R. JOHNSON, Warden, et al., Respondents. 15 ORDER: (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS; and (2) DENYING CERTIFICATE OF APPEALABILITY 16 17 I. INTRODUCTION Petitioner Emanuel Dunn, Jr. is a state prisoner proceeding pro se with a Petition 18 19 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 20 challenges his conviction for second degree murder in San Diego Superior Court case no. 21 SCD264080. The Court has read and considered the Petition, [ECF No. 1], the Answer 22 and Memorandum of Points and Authorities in Support of the Answer [ECF No. 4, 4-1], 23 the lodgments and other documents filed in this case, and the legal arguments presented 24 by both parties. For the reasons discussed below, the Court DENIES the Petition and 25 DISMISSES the case with prejudice. The Court also DENIES a Certificate of 26 Appealability. 27 /// 28 /// . Dunn 1 3:20-cv-00127-GPC-JLB Dockets.Justia.com 1 2 II. FACTUAL BACKGROUND This Court gives deference to state court findings of fact and presumes them to be 3 correct; Petitioner may rebut the presumption of correctness, but only by clear and 4 convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parle v. Fraley, 5 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences 6 properly drawn from these facts, are entitled to statutory presumption of correctness). 7 The state appellate recounted the facts as follows: 8 9 10 11 Prosecution Evidence During the morning of June 14, 2015, a woman found Mark Preville lying in a Paradise Hills condominium complex carport, motionless and bleeding from his head and nose. Another individual had seen nothing unusual in the carport about a half hour earlier. Preville was not breathing. 12 13 14 15 spattered pages from a Ju stall near his body. Preville had a black glove on his right hand and a splint on his left hand. Paramedics pronounced him dead. Four days earlier, Preville had been hospitalized after he reported being struck in the head with a baseball bat, but doctors did not diagnose any injuries and he was released 16 17 18 found, a police officer arrested and cited Preville after he had an altercation with a security guard and threatened another transient, as well as an officer, at a downtown park. The officer then released Preville; he did not observe 19 20 21 22 23 24 25 blunt force injury to the head by homicide. He had skull fractures and multiple impact injuries to his face and mouth, as well as rib fractures, and minor abrasions to his arms and legs. He had nonfatal puncture wounds to his face and neck. He had a blood-alcohol concentration of .17 percent and blood concentration of .25 milligrams per liter of methamphetamine, and trace amounts of substances indicating marijuana use. Detectives believed that Preville was beaten and killed elsewhere and his body dumped in the carport afterwards. 26 27 mid-city area of San Diego at about 3:00 in the morning contacted Dunn and Cynthia Perez, who were inside a parked Cadillac registered to Dunn. The 28 2 3:20-cv-00127-GPC-JLB 1 2 offi homicide. 3 4 5 6 7 8 9 10 11 12 omitted.] This led police to loc repossessed on June 29, 2015. Repossession agents found bleach, air freshener, detergent, cologne, window cleaner and spray deodorant, among other items in the car. Pages from a June 16, 2015 Final Call newspaper were found in the vehicle. Criminalists found blood transfer stains and bleach stains in the Cadillac, predominantly its left rear passenger side, and evidence that someone had tried to clean the backseat and rear passenger doors. Two of the seat belts were soaked in blood. A criminalist concluded the vehicle bleeding or bloody, but did not sustain his injuries inside it. [footnote 3 omitted.] An expert determined that Dunn was a minor contributor to DNA 13 14 15 16 17 positioni phone and vehicle were generally in the same place; on the late evening of activated sites in the Bonita area, then in downtown San Diego. At about 18 19 20 stayed. The Shorewood Drive house is about a mile and a half from the Paradise Hills condominium complex. During the 10:00 hour that morning, 21 22 Defense Evidence 23 24 25 26 27 28 Dunn presented evidence of Previll individuals, including Rudy Wells, a former gang member known as assaulted him with a baseball bat and took his wallet containing $200. An officer observed that paramedics had already bandaged Preville, who had welts on his head. Preville told the officer he wanted to see Wells arrested and press charges. A defense expert psychiatrist testified that a person with 3 3:20-cv-00127-GPC-JLB 1 2 exhibit violent, unpredictable and irrational behavior, as well as disruption of brain functions that would impair his perception of reality. 3 Wells testified at trial that Preville, who referred to himself and was 4 5 6 7 8 9 10 11 12 13 14 Wells and photographed injuries on the knuckles of his hands. Wells testified he could not remember exactly how he sustained the injuries; it might have been in a fight with someone else or he had a bad seizure, and he baseball fans. A few months later, Wells told detectives that a drug dealer named Mohammed had bragged about killing Preville. On crossexamination, Wells denied hitting Preville, taking his wallet, or hurting him. He testified that he went to jail and detectives took his DNA, but charges were later dropped. A defense investigator testified she contacted Wells after being assigned to the case in March 2016, and he explained he got his injured knuckles in a fight at a restaurant. He also told her that Mohammed bragged 15 16 (Lodgment No. 6, ECF No. 5-21 at 2-6.) 17 III. PROCEDURAL BACKGROUND 18 On February 8 n 19 Information charging Emanuel Dunn, Jr. with one count of murder, a violation of 20 California Penal Code § 187(a). (Lodgment No. 1, ECF No. 5-1 at 12.) The Information 21 also alleged that Dunn had suffered a prior serious felony conviction, within the meaning 22 of California Penal Code §§ 667(a), 668 and 1192.7(c), and a 23 within the meaning of California Penal Code §§ 667(b)-(i), 1170.12 and 668. (Id. at 13.) 24 Following a jury trial, Dunn was convicted of second degree murder. (Lodgment No. 2 25 vol. 12, ECF No. 5-15 at 6-7.) Dunn waived jury trial on his prior convictions and, 26 following a court trial, was found to have suffered them as alleged. (Id. at 16-27.) He 27 was sentenced to thirty-five years-to-life in prison. (Lodgment No. 16, ECF No. 5-16 at 28 15-16.) , 4 3:20-cv-00127-GPC-JLB 1 Dunn appealed his conviction to the California Court of Appeal, which affirmed 2 his conviction in a written opinion. (Lodgment Nos. 3-6, ECF Nos. 5-18 5-21.) He then 3 filed a 4 Franks which the superior court construed as a petition for writ of habeas corpus. 5 (Lodgment No. 9, ECF No. 5-24 at 65-67.) The Superior Court denied the petition. (Id.) 6 Dunn then filed a request for DNA testing in the San Diego Superior Court, which was 7 denied. (Lodgment No. 10, ECF No. 5-25 at 2.) After this denial, Dunn filed a petition 8 for writ of habeas corpus in the California Court of appeal. (Lodgment No. 7, ECF No. 9 5-22.) The Court denied the petition in a written opinion. (Lodgment No. 8, ECF No. 5- 10 23.) Following that denial, Dunn filed another petition for writ of habeas corpus in the 11 San Diego Superior Court. (Lodgment No. 9, ECF No. 24.) The superior court denied 12 the petition in a written opinion. (Lodgment No. 10, ECF No. 25.) Dunn then filed a 13 petition for writ of habeas corpus in the California Supreme Court, which summarily 14 denied the petition. (Lodgment Nos. 11-12, ECF Nos. 5-26 5-27.) 15 Dunn filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 in this Court on 16 January 17, 2020. (ECF No. 1.) Respondent filed an Answer and Memorandum in 17 Support of the Answer on February 27, 2020. (ECF No. 4.) Dunn did not file a Traverse. 18 IV. ANALYSIS 19 20 Dunn raises two grounds for relief in his Petition. In ground one he contends his trial counsel was ineffective because she did not file a motion to suppress his phone data 21 22 at 7.) In ground two, he claims appellate counsel was ineffective for failing to raise the 23 search warrant issues and the ineffectiveness of trial counsel. (Id. at 9.) 24 Respondent contends the Petition is untimely. (Answer, ECF No. 4-1 at 4-6.) In 25 the alternative, Respondent argues 26 neither contrary to, nor an unreasonable application of, clearly established Supreme Court 27 law. (Id. at 6-9.) 28 /// was 5 3:20-cv-00127-GPC-JLB 1 A. Legal Standard 2 This Petition is governed by the provisions of the Antiterrorism and Effective 3 See Lindh v. Murphy, 521 U.S. 320 (1997). 4 Under AEDPA, a habeas petition will not be granted with respect to any claim 5 adjudicated on the merits by the state court unless that adjudication: (1) resulted in a 6 decision that was contrary to, or involved an unreasonable application of clearly 7 established federal law; or (2) resulted in a decision that was based on an unreasonable 8 determination of the facts in light of the evidence presented at the state court proceeding. 9 28 U.S.C. § 2254(d); Early v. Packer 10 habeas petition, a federal court is not called upon to decide whether it agrees with the 11 12 13 Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th 14 Cir. 2004). 15 16 court applied a rule different from the governing law set forth in Supreme Court cases, or 17 if it decided a case differently than the Supreme Court on a set of materially 18 indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant 19 20 the governing legal principle from Supreme Court decisions but unreasonably applied 21 those decisions to the facts of a particular case. Id 22 23 erroneous; to warrant habeas relief, the state co 24 See Lockyer v. Andrade, 538 U.S. 63, 75 25 26 unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). 27 28 6 3:20-cv-00127-GPC-JLB 1 2 See Ylst v. Nunnemaker, 501 U.S. 797, 805- 3 4 contrary to, or an unreasonable application 5 of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th 6 Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. 7 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Clearly established federal law, for 8 9 Andrade, 538 U.S. at 72. 10 B. Timeliness 11 Respondent contends the petition is untimely. (Answer, ECF No. 4-1 at 4-6.) 12 Under 28 U.S.C. § 2244(d), a petitioner has one year from the date his or her conviction 13 is final to file a petition for writ of habeas corpus in federal court pursuant to 28 U.S.C. 14 § 2254. See 28 U.S.C. § 2244(d). Because Dunn did not file a petition for review in the 15 California Supreme Court after the state appellate court affirmed his conviction, Dunn 16 conviction became final on November 25, 2017, forty days after the California Court of 17 Appeal issued its decision on October 17, 2017. Waldrip v. Hall, 548 F.3d 729, 735 (9th 18 Cir. 2008). Absent any tolling, the AEDPA statute of limitations began running the next 19 day and expired on November 26, 2018.1 Dunn did not file his habeas corpus petition in 20 this case until January 9, 2020. (ECF No. 1.) See Houston v. Lack, 487 U.S. 266, 276 21 22 the prisoner delivers it to prison authorities for forwarding to the clerk of court because 23 ); Anthony v. Cambra, 236 F.3d 568, 24 575 (9th Cir. 2000) (applying Houston to state court filings). The statute of limitations, 25 however, is subject to both statutory and equitable tolling. See 28 U.S.C. § 2244(d)(1); 26 27 1 28 November 25, 2018 was a Sunday and thus the following day, November 26, 2018, is the day the statute of limitations expired. See Fed.R.Civ.P. 6(a)(3). . 7 3:20-cv-00127-GPC-JLB 1 Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), 2 overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 3 530, 540 (9th Cir. 1998). 4 1. Statutory Tolling 5 6 rly filed application for State post-convictions or other collateral review . . . is pending shall not 7 8 § 2244(d)(2). Dunn filed his first habeas corpus petition in the state appellate court on 9 March 16, 2018; it was denied on March 22, 2018 as untimely and because Dunn should 10 have raised his claims on direct appeal, citing In re Clark, 5 Cal. 4th 750, 756 n. 5 (1993) 11 and In re Dixon, 41 Cal. 2d 756, 759 (1953). (Lodgment No. 7, ECF No. 5-22 at 39-41.) 12 Dunn is not entitled to any statutory tolling for this filing because the denial of the 13 14 See Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005). 15 in 16 San Diego Superior Court on May 11, 2018. (Lodgment No. 10, ECF No. 5-25 at 2.) 17 Although it is not clear on what date the court denied this request, this filing also did not 18 toll the statute of limitations because it 19 but rather a method for obtaining evidence to use in a future collateral attack. See 20 Sakellaridis v. Warden, 2012 WL 2374562 at *5 (C.D. Cal. June 22, 2012); see also 21 Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001). 22 On June 1, 2018, Dunn filed his next habeas corpus petition in the state appellate 23 court. (Lodgment No. 7, ECF No. 5-22.) The court denied the petition on June 8, 2018 24 as untimely and for other procedural reasons, (Lodgment No. 9, ECF No. 5-23), and thus 25 Dunn is not entitled to any statutory tolling for this filing. Pace, 544 U.S. at 413-14; 26 Bonner, 425 F.3d at 1149. 27 /// 28 8 3:20-cv-00127-GPC-JLB 1 Dunn then filed another habeas corpus petition in the San Diego Superior Court on 2 October 7, 2018. (Lodgment No. 9, ECF No. 5-24.)2 The superior court denied this 3 petition as untimely on January 3, 2019. (Lodgment No. 10, ECF No. 5-25.) Dunn is not 4 entitled to any statutory tolling for this 5 544 U.S. at 413-14; Bonner, 425 F.3d at 1149. In addition, he is not entitled to any 6 statutory tolling for his final state court filing because the statute of limitations expired on 7 November 26, 2018, eight months before he filed his final state court habeas corpus 8 petition in the California Supreme Court on July 31, 2019. (Lodgment No. 11, ECF No. 9 5-26.) 10 . Pace, 2. Equitable tolling 11 12 Holland v. Florida ed to 13 14 15 16 Lawrence v. Florida, 549 U.S. 327, 336-37 (2007), quoting Pace, 544 U.S. at 17 18 Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). 19 Dunn does not make any factual allegations which establish he has been pursuing 20 21 Lawrence, 549 U.S. at 336-37. Despite being aware of the substance of his claims since 22 his 2016 trial, Dunn did not bring his claims in state court until March of 2018, close to 23 24 25 26 27 28 2 A declaration in support of this petition is dated November 9, 2018, but the signature line has a date of October 7, 2018. The Court will use the October 7, 2018 date as the earliest possible filing date that can be attributed to this filing. See Houston, 487 U.S. at 276. 9 3:20-cv-00127-GPC-JLB 1 2 Dunn from bringing his claims in a timely manner. Accordingly, he is not entitled to any equitable tolling. 3 3. The Petition is Untimely 4 The statute of limitations for Dunn November 25, 5 2017. Dunn is not entitled to any statutory tolling, and the statute of limitations expired 6 on November 26, 2018. He did not file his petition in this case until January 9, 2020. 7 The petition is therefore untimely. The Court will nevertheless address the merits of 8 9 C. Ineffective Assistance of Trial Counsel 10 In his first claim, Dunn alleges that his trial counsel was ineffective because she 11 did not challenge the validity of the search warrants for phone data records and 12 car. (Pet., ECF No. 1 at 6-9, 15- 13 this claim was neither contrary to, nor an unreasonable application of, clearly established 14 Supreme Court law. (Answer, ECF No. 4-1 at 6-7.) 15 Dunn raised this claim in the habeas corpus petition he filed in the California 16 Supreme Court, which summarily denied the petition. (Lodgment No. 11, ECF No. 5- 17 26.) 18 addressing the claim as the basis for analysis. Ylst, 501 U.S. at 805-06. In this case, the 19 20 October 7, 2018 habeas corpus petition. (Lodgment No. 10, ECF No. 5-25.) The superior court 21 22 of counsel claim as untimely. (Id.) Thus, because the state court did this Court must conduct an 23 24 contrary to, or an unreasonable application of, clearly established Supreme Court law. 25 Delgado, 223 F.3d at 982; Himes, 336 F.3d at 853. 26 To establish ineffective assistance of counsel, a petitioner must first show his 27 28 Strickland v. Washington 10 3:20-cv-00127-GPC-JLB 1 errors so serious that co 2 3 Id. at 687. He must also show he was prejudiced Id 4 reasonable probability th 5 proceeding would have been different. A reasonable probability is a probability 6 7 Id.; see also Fretwell v. Lockhart, 506 U.S. 364, 372 (1993). Further, Strickland 8 Id 9 Id. at 10 686-87. The Court need not address both the deficiency prong and the prejudice prong if 11 the defendant fails to make a sufficient showing of either one. Id. at 697. 12 There are three search warrants at issue: warrant number 49922, which was issued 13 for phone data related to phone number (619) 552- 14 50203, which was issued for phone data related to phone number (619) 727-0884 (a 15 ; warrant number number 50014, 16 which was issued for a Cadillac associated with Dunn. (Pet., ECF No. 1 at 27-50.) 17 Officer Juan Cisneros authored the affidavits in support of all three search warrants. 18 (Pet., ECF No. 1 at 25-52; Lodgment No. 7, ECF No. 5-22 at 65-70.) Dunn claims trial 19 counsel was ineffective because she did not challenge the search warrants on grounds that 20 Cisneros included false information in the affidavits. He contends counsel should have 21 filed a motion pursuant to Franks v. Delaware, 438 U.S. 154 (1978) to suppress the 22 evidence gathered from the warrants. The Supreme Court has described the inquiry 23 under Franks as follows: 24 25 26 27 28 There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be 11 3:20-cv-00127-GPC-JLB 1 false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. [footnote 8 omitted]. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue. 2 3 4 5 6 7 8 9 10 Franks, 438 U.S. at 171-72. 11 Cisneros stated in his affidavits in support of the warrants that when he and 12 13 dumped, bloody 14 Pet., ECF No. 1 at 33, 46 15 16 discovered the body, testified t 17 it. (Id.; Lodgment No. 2 vol. 5, ECF No. 5-8 at 38-39, 46-47.) Specifically, she testified 18 the newspapers were 19 Lodgment No. 2 vol. 5, ECF No. 5-8 at 38-39, 46-47.) 20 21 but not touching As Officer trial testimony points out, however, in order to administer aid. 22 Id. at 23 78.) Given this, counsel could have reasonably concluded it would be difficult if not 24 impossible to establish 25 deliberately false or was made with reckless disregard for the truth rather than simply an 26 honest mistake, perhaps because he 27 the newspapers. Counsel is not required to bring frivolous motions and failing to do so 28 /// statement regarding the location of the newspaper was 12 3:20-cv-00127-GPC-JLB 1 does not constitute ineffective assistance. Turner v. Calderon, 281 F.3d 851, 872 (9th 2 Cir. 2002). 3 Moreover, even if counsel can be faulted for failing to bring a Franks motion, 4 5 because he has not shown the motion would have been successful. Strickland, 466 U.S. at 694. 6 7 location of the newspaper was deliberately false or made with reckless disregard for the 8 truth, Franks requires the state court to evaluate whether, absent the false information, 9 sufficient probable cause would still have existed to issue the warrant. Franks, 438 U.S. 10 at 171-72. Whether the bloody 11 was not material to the determination whether probable cause existed to issue the 12 warrants. The bloody newspaper was an obvious piece of evidence which was collected 13 and tested. I 14 provided the link 15 probable cause determination for the warrants, not the actual location of the newspaper at 16 the scene. (See Pet., ECF No. 1 at 25-52.) y newspaper which and which formed the basis for the 17 18 not objectively unreasonable. Strickland, 466 U.S. at 687-88. Once police identified 19 Dunn as a suspect from the newspaper fingerprint, they located the Cadillac registered in 20 his name. (Id. at 27-48.) The car had been repossessed and was sitting in a lot, ready to 21 be sold. (Id.) As appellate counsel noted, Dunn could not challenge the search of the car 22 because it had been repossessed and he no longer owned it. (Id. at 48.) [I]n order to 23 claim the protection of the Fourth Amendment, a defendant must demonstrate that he 24 personally has an expectation of privacy in the place searched, and that his expectation is 25 reasonable . . . 26 439 U.S. 128, 143-44 (1978); see United States v. Huffhines, 967 F.2d 314, 318 (9th Cir. 27 1992) (stating there is no reasonable expectation of privacy in a motel room after the 28 rental period has expired and the manager has repossessed the room). As previously Minnesota v. Carter, 525 U.S. 83, 88 (1998), citing Rakas v. Illinois, 13 3:20-cv-00127-GPC-JLB 1 noted, failing to bring a frivolous motion does not constitute ineffective assistance. 2 Turner, 281 F.3d at 872. And, because the motion would have been frivolous, Dunn has 3 not established he was pre 4 Cadillac. Strickland, 466 U.S. at 694. 5 Dunn has not established counsel was ineffective for failing to challenge the search 6 im was neither contrary to, 7 nor an unreasonable application of, clearly established Supreme Court law. Yarborough, 8 540 U.S. at 4. He is therefore not entitled to relief as to this claim. 9 D. Ineffective Assistance of Appellate Counsel 10 Dunn argues appellate counsel was ineffective when she failed to argue his trial 11 12 Pet., ECF No. 1 at 9, 21-24.) Like his ineffective assistance of trial counsel claim, Dunn 13 raised this claim in the habeas corpus petition he filed in the California Supreme Court, 14 which summarily denied the petition. (Lodgment No. 7, ECF No. 5-22.) Accordingly, 15 16 ddressing the claim as the basis for analysis, which is the 17 October 7, 2018 habeas corpus petition. Ylst, 501 U.S. at 805-06. The superior 18 19 untimely. (Lodgment No. 10, ECF No. 5-25. 20 rd to determine 21 22 established Supreme Court law. Delgado, 223 F.3d at 982; Himes, 336 F.3d at 853. 23 Ineffective assistance of appellate counsel claims are subject to Strickland 24 standard of review. Dunn must first show that his appellate counsel 25 objectively unreasonable, that is, that counsel unreasonably failed to discover 26 nonfrivolous issues and to file a merits brief raising them. Smith v. Robbins, 528 U.S. 27 28 was a reasonable probability that, but for his /// 14 3:20-cv-00127-GPC-JLB 1 counsel s unreasonable failure . . . , he would have prevailed on his appeal. Id. at 285- 2 86. As the Ninth Circuit has noted: 3 These two prongs partially overlap when evaluating the performance of appellate counsel. In many instances, appellate counsel will fail to raise an issue because she foresees little or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy . . . . Appellate counsel will therefore frequently remain above an objective standard of competence (prong one) and have caused her client no prejudice (prong two) for the same reason-because she declined to raise a weak issue. 4 5 6 7 8 9 Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001), quoting Miller v. Keeney, 882 10 F.2d 1428, 1434 (9th Cir. 1989); see also Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 11 2002) (quoting Gustave v. United States, 627 F.2d 901, 906 (9th Cir. 1980) and stating 12 that 13 of law 14 Appellate counsel ance was not ineffective. As discussed above, trial 15 counsel reasonably concluded that a Franks challenge to the warrants would not be 16 successful and Dunn has not shown he was prejudiced by the failure to bring a Franks 17 motion. Thus, 18 of success on that issue 19 likely to succeed on appeal, Dunn has not established he was prejudiced by appellate 20 little or no likelihood Bailey, 263 F.3d at 1028. And, because the issue was not Id. 21 contrary to, nor an unreasonable application of, clearly established Supreme Court law. 22 Yarborough, 540 U.S. at 4. Dunn is not entitled to relief as to claim two. 23 V. CONCLUSION 24 25 For the foregoing reasons, the Petition is DISMISSED as untimely and, in the alternative, DENIED on the merits. Rule 11 of the Rules Following 28 U.S.C. § 2254 26 27 28 COA will issue when the 15 3:20-cv-00127-GPC-JLB 1 Pham v. Terhune, 400 F.3d 740, 2 3 jurists would find the 4 Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 2002) (quoting Slack v. 5 McDaniel, 529 U.S. 473, 484 (2000)). Here, the Court concludes Dunn has not made the 6 required showing, and therefore a certificate of appealability is DENIED. 7 8 IT IS SO ORDERED. Dated: October 30, 2020 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 3:20-cv-00127-GPC-JLB
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