Opinion
CV 20-10821-GW(E)
10-03-2022
CORNELL ARTHUR ALLEN, Petitioner, v. JOSIE GASTELO, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On November 24, 2020, Petitioner, then proceeding pro se, filed a “Petition for Writ of Habeas Corpus By a Person in State Custody.” The Petition contained ten claims for relief. Petitioner appeared to concede that several of the claims or subclaims were unexhausted. Petitioner sought a stay of the Petition pursuant to Rhines v. Weber, 544 U.S. 269 (2005) (“Rhines”), and/or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), cert. denied, 548 U.S. 1042 (2003), overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007) (“Kelly”) (Petition, p. 3).
On January 25, 2021, Respondent filed a motion to dismiss the Petition on the ground that the Petition contained several unexhausted claims or subclaims. On February 22, 2021, an attorney (Petitioner's present counsel) filed a “Notice of Appearance.” On June 11, 2021, Petitioner, now represented by counsel, filed an opposition to the motion to dismiss, again seeking a stay pursuant to Rhines or Kelly. On July 22, 2021, Respondent filed an opposition to Petitioner's request for a stay.
On August 20, 2021, the Court issued an “Order Denying Rhines Stay; and Granting Kelly Stay.” In granting a Kelly stay, the Court deemed the Petition amended to delete the unexhausted claims.
On December 1, 2021, Petitioner filed a “Motion to Amend Petition to Add Newly Exhausted Claims,” (“Motion to Amend, etc.,”), to which Petitioner attached a copy of the California Supreme Court's order denying Petitioner's state court habeas petition. On December 22, 2021, Respondent filed a “Notice of Non-Opposition to Petitioner's Motion to Amend, etc.” On December 27, 2021, the Court granted the Motion to Amend. Thereby, the original Petition (newly amended to add back the previously deleted claims) became the First Amended Petition (“FAP”).
On April 25, 2022, Respondent filed an Answer. On August 12, 2022, Petitioner filed a Traverse.
BACKGROUND
A Ventura County Superior Court jury found Petitioner guilty of the murder of Stefan Johnson in violation of California Penal Code section 187(a), and found true the allegations that: (1) Petitioner personally and intentionally discharged a firearm which proximately caused Johnson's death within the meaning of California Penal Code section 12022.53(d); and (2) Petitioner personally used a firearm within the meaning of California Penal Code section 12022.5(a)(1) (Reporter's Transcript [“R.T.”] 2158; Clerk's Transcript [“C.T.”] 493, 495-96). The jury found Petitioner not guilty of first degree murder (R.T. 2158; C.T. 493, 495). The Court sentenced Petitioner to a term of fifteen years to life for the murder, plus an additional twenty-five years on the section 12022.53(d) enhancement (R.T. 2177-78; C.T. 537-39).
The California Court of Appeal remanded the case to permit the sentencing court to consider whether to exercise its discretion to strike or dismiss the enhancement (in light of the 2018 amendment to section 12022.53(d)), but otherwise affirmed (Respondent's Lodgment 2; see People v. Allen, 2019 WL 513574 (Cal.App. Feb. 11, 2019)). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgment 4).
Respondent filed two sets of lodgments in this case. The first set was filed on January 21, 2021, and the second set was filed on April 25, 2022 (see “Notice of Lodging,” ECF Dkt. No. 9; “Supplemental Notice of Lodging,” ECF Dkt. No. 40). Because Respondent did not number the lodgments in the second set sequentially to those in the first set, lodgment numbers in the second set overlap with lodgment numbers in the first set (but see “Order Requiring Answer to Petition, etc.” filed December 2, 2020, p. 1, requiring that lodgments be numbered sequentially). The Court will refer to the two sets as “Respondent's Lodgment” and “Respondent's Supp. Lodgment,” respectively.
Section 12022.53(d) provides, inter alia, that any person who personally and intentionally discharges a firearm and proximately causes great bodily injury or death to any person other than an accomplice shall be punished by an additional and consecutive term of imprisonment for twenty five years to life. Effective January 1, 2018, section 12022.53 was amended to allow the court to exercise discretion to strike or dismiss a firearm enhancement. See Cal. Penal Code § 12022.53(h).
On remand, the sentencing court amended the enhancement allegation to an allegation pursuant to California Penal Code section 12022.53(c) and resentenced Petitioner to a consecutive term of twenty years on that enhancement (Respondent's Lodgment 1, pp. 111-12).
On August 17, 2020, Petitioner filed a habeas corpus petition in the California Supreme Court (“First California Supreme Court Habeas Petition”), which that court summarily denied on November 18, 2020 (Respondent's Lodgments 5, 6, 7).
On September 22, 2021, following this Court's grant of a stay, Petitioner filed a second habeas corpus petition in the California Supreme Court (“Second California Supreme Court Habeas Petition”) (see “Notice of Filing of State Petition for Writ of Habeas Corpus” and attachment thereto, filed September 22, 2021). The California Supreme Court summarily denied this petition on November 17, 2021 (see “Motion to Amend Petition, etc.” and attachment thereto, filed December 1, 2021).
SUMMARY OF TRIAL EVIDENCE
The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v. Allen, 2019 WL 513574 (Cal.App. Feb. 11, 2019). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
Prosecution's Case
Ventura police went to an apartment on Hurst Avenue at 5:30 a.m. on June 6, 2013, in response to a 911 report of a shooting. They found Stefan Johnson face down on a couch in the living room, bloodstained, not breathing and without a pulse. No weapon was found.
The 911 call came from [Petitioner], who said, “Hey, I just shot an unwelcome person in my home.” The dispatcher asked, “You shot them?” [Petitioner] replied, “Yes. I told him to leave, he wouldn't leave. He had sex with my girl. He wouldn't leave.” After obtaining the address, the dispatcher asked, “Ok, is the person alive?” [Petitioner] answered, “Ahhh, I doubt it.” He identified himself as “Cornell Allen.”
A neighbor awakened by multiple gunshots saw [Petitioner] leave the apartment. Police were unable to follow [Petitioner] using a cell phone signal because he had turned off his device. They used a GPS tracking system to locate his car, parked in Camarillo. In the trunk police found a .45 caliber semiautomatic handgun registered to [Petitioner], with a laser light and an empty 10-round magazine. Testing showed that it was the gun used to shoot Johnson.
The apartment where the crime occurred belonged to Christina Roberts, who was not home at the time of the shooting. However, her daughter Mariah Figueroa and Josiah Guerrero were there, asleep in a back bedroom. Guerrero told police he thought that the victim was asleep on the couch when he was shot. Figueroa identified [Petitioner] as someone Roberts dated for five or six years. [Petitioner] had a studio in west Ventura but often stayed overnight at Roberts's apartment, where he contributed to the rent and other expenses.
In March 2013, [Petitioner] brought Stefan Johnson to Roberts's apartment, introducing him as his “brother.” Johnson began to frequent the apartment, sleeping on the couch about four nights per week. Guerrero observed that [Petitioner] and Johnson “seemed like they were brothers. There was much love between them.” They never argued, physically fought, or threatened each other. [Petitioner] said that Roberts and Johnson were the two most important people in his life. He did not feel that Johnson posed a threat to anyone's safety at the Hurst Avenue apartment.
Though [Petitioner] and Roberts had an intimate relationship, it was not exclusive. [Petitioner] had other girlfriends, and knew that Roberts worked as an escort and sold nude photographs of herself; he never objected and [he] engaged in “threesomes” with her. On a few occasions, [Petitioner], Johnson and Roberts had a threesome.
Johnson and Roberts began an emotional relationship a month before the shooting. Roberts's feelings for Johnson were not a secret; she knew that [Petitioner] “wasn't happy about it.” Her relationship with [Petitioner] deteriorated. On May 20, 2013, she texted [Petitioner], “I am scared of you!!!” and “Don't wanna be around u,” adding “Because your [sic] out of control.”
Roberts and Johnson began communicating secretly when [Petitioner] “started to act crazy,” texting each other sentiments of love in May 2013. She wrote that [Petitioner] was “such a turn off,” that he “scares me,” and “gets on my nerves.” She denigrated [Petitioner's] sexual prowess, texting Johnson on June 4 that [Petitioner] “couldn't fuc [sic] last night” and “I don't think I can survive this limp dick relationship.” Roberts testified that she did not intend for [Petitioner] to see the messages. [Petitioner] told her that when she talked in her sleep, she said she loved and wanted Johnson, not [Petitioner].
[Petitioner] wrote Roberts that he had “an issue” with her desire for Johnson adding, “I ain't about to stroll.” On June 1, [Petitioner] texted her, “You're the bestest ever never going to let you go wanna let you know I adore & appreciate you so much every day yearning for your touch. . . .” (Sic.) Despite [Petitioner's] adoration, Roberts told him he was no longer welcome in her home because his behavior was radical and abusive. She was upset that he beat his dog with a belt, striking several people in the process, then threw the pet from the living room to the dining room. He also threw an iPad.
The night of June 4, [Petitioner] woke Roberts by hitting her in the head with a hard object, which she believes was a gun. He was holding her phone and had viewed her messages to Johnson. He pulled her into the living room, where Johnson was on the couch. Roberts became scared when she saw that [Petitioner] had a gun in his waistband.
[Petitioner] told Johnson and Roberts he felt “that we didn't like him; we didn't want him in the relationship anymore. . . .” Roberts opined that [Petitioner] was “[n]ot himself,” and was angry because he saw her “limp dick” message about him. They assured [Petitioner] that they loved him. Johnson remained calm, quieted Roberts, and managed to soothe [Petitioner]. After [Petitioner] left, Roberts “felt like something bad was going to happen.” She texted her nephew that [Petitioner] was “crazy” and tried to scare her with a gun.
On June 5, [Petitioner] came to Roberts's apartment to collect his clothing. There was no commotion during [Petitioner's] visit - - no arguing, yelling, or hitting. Johnson asked [Petitioner] if he was okay and [Petitioner] replied, “I'm cool.” Roberts seemed scared afterward, and Guerrero recalled that she talked about changing the door locks. Guerrero knew that Roberts and Johnson liked each other; it “was out in the open” and [Petitioner] seemingly accepted it. Roberts testified that she and Johnson “were fearful of [[Petitioner], but not of our lives. No, it didn't seem like that severe to us. We still thought he was our friend.”
Guerrero and Figueroa knew that [Petitioner] owned a .45 caliber handgun, which he showed them. They saw him carry a gun case back and forth between his car and the apartment; Roberts saw him carry the gun case “all the time.” They never saw Johnson with a gun.
[Petitioner] was not at Roberts's apartment the night of June 5. When Guerrero went to bed, only he, Figueroa and Johnson were in the apartment. The front door was locked. Johnson was on the living room couch, watching television. At 3:00 a.m., Figueroa got a glass of water and saw Johnson on the couch, texting and watching television.
Guerrero and Figueroa were awakened by gunshots. Guerrero looked through a hole in the bedroom door and saw [Petitioner] in the living room, near the couch. He had a gun. He left the apartment hurriedly, got in his car and drove away. Police arrived moments later.
Guerrero saw Johnson lying face down, with his upper body on the couch. The television was off. Neither Figueroa nor Guerrero (who described himself as a light sleeper) heard yelling, arguing or fighting noises before or during the gunshots. There were no broken or overturned items and no weapon near Johnson, who looked dead. Figueroa was shocked and terrified when she saw Johnson's body because [Petitioner] was on the loose; she texted Roberts that [Petitioner] shot and killed Johnson.
The day of the shooting, police issued a press release stating that [Petitioner] was the suspect in a murder. One hour later, an attorney called to arrange [Petitioner's] surrender. When he was arrested, [Petitioner] had no injuries indicating he was in a fight that morning.
Johnson had 16 wounds from 10 bullets. The county pathologist described bullet holes that entered the front of Johnson's body, coming from his left side and exiting on the right. They were not fired from close range because there was no soot or gunpowder on his clothing and no stippling on his skin. Some exit wounds were “shored,” meaning they occurred when the skin was pressed against a resistant surface. Several life-threatening chest wounds had shored exit holes in Johnson's back, likely indicating that he was lying against the couch when he was shot. The chest wounds were clustered and would have caused Johnson to be “incapacitated to a severe degree.”
One bullet fired in a downward trajectory entered the bridge of Johnson's nose and exited his jaw, causing multiple facial fractures, then reentered at his shoulder. At some point, Johnson turned away from the shooter. One of the last shots fired entered his back and lacerated his aorta, resulting in death within seconds. Johnson had no scrapes or bruises that might indicate he had been in any kind of altercation.
Police found bullet holes and blood in one corner of the couch, and none on the apartment walls or windows. A glass coffee table near the couch was not broken and nothing was knocked over. A blood spatter expert testified that the victim was on the couch or within one foot of it when he was shot. The largest blood stain was on the seat bottom, then the backrest, with some stains on the armrest.
[Petitioner's] gun ejects cartridges five to six feet, diagonally, while being fired. At the crime scene, the majority were found behind the couch in a group, suggesting that the gun did not move around during the shooting. It is possible to fire 10 rounds in a matter of seconds. The weapon does not leave gunpowder residue on things that are more than three feet away; no gunpowder was found on the victim's shirt.
The Defense
[Petitioner] presented character witnesses who attested to his lack of erectile dysfunction, jealousy, aggression, or controlling or abusive behavior. He was affectionate with his dog and brotherly with Johnson. Over the years, the witnesses never saw [Petitioner] and Johnson fight, argue, or threaten each other.
[Petitioner] seemed in fine spirits the day before the shooting. He mentioned that he had just ended his long-time relationship with Roberts and moved out of her apartment because she was sleeping with Johnson. One witness opined that Roberts crossed a line by sleeping with [Petitioner's] “family,” meaning Johnson, and Johnson violated the “bro code” by sharing a woman with a friend.
[Petitioner] arrived at his mother's home at 5:50 a.m. on June 6, just after the shooting. He was uninjured. Family members arranged for him to meet a defense lawyer. His mother refused to speak to police about the circumstances of the shooting.
A forensic pathologist opined that though the victim was shot 10 times (making 16 wounds), it is possible he remained standing during the fusillade despite “brisk bleeding” because his spinal cord and brain were not hit and none of the wounds was immediately incapacitating. The expert conceded that shored wounds from shots fired through the victim's chest indicate he was sitting or lying on the couch, not standing; further, all bullet holes and bloodstains were confined to the couch. The bullet that traveled from Johnson's nose into his shoulder showed a dramatic downward trajectory, meaning that the shooter was firing down into him.
[Petitioner] testified that he is an occupational therapist. He owns a handgun to protect himself and his property. He and Roberts had an open relationship and dated other people. [Petitioner] denied feeling jealous of Roberts, who began working as an escort during their relationship. [Petitioner] introduced Roberts to Johnson, thinking it would be “great” if they all had sex together. [Petitioner] denied feeling jealousy or animosity that Johnson was able to perform sexually in a threesome while [Petitioner] was unable to perform and instead acted as cameraman. [Petitioner] denied beating his dog. He also denied being angry that Johnson and Roberts “wanted to engage in an actual relationship.”
[Petitioner] was a teenager when he met Johnson; over time, he came to consider and refer to Johnson as his brother. Despite their brotherly relationship, [Petitioner] recalled two instances between 2007 and 2009 when Johnson “jumped on me” because they had a disagreement. Each time, [Petitioner] was able to overpower or subdue Johnson, without suffering injury or needing a weapon.
After Johnson began spending time at the Hurst Avenue apartment in March 2013, [Petitioner] cited three instances in which Johnson “did some more of those sneak attacks. It wasn't like he was trying to fight.” If anything, [Petitioner] stated, “I thought we were just playing.” During this period, [Petitioner] accompanied Johnson to “a situation with one of his gang bang buddies up the street, and he had a sock full of rocks in his back pocket.” No physical altercation ensued, only “a heated exchange of words.” [Petitioner] brought Johnson to social functions with [Petitioner's] mother and sisters in 2013, without having any concerns for their safety.
As other examples of Johnson's violent character, [Petitioner] recounted that in April or May 2013, Johnson said “he was going to get a gun and rob” a rival gang member but first wanted to make sure that it would not create animosity between the gangs. [Petitioner] has known since the 1990's that Johnson belonged to the Westside Gangster Crips. Johnson told two police officers in 2009 and 2010 that he formerly belonged to that gang, but was no longer active.
In the 1990's, [Petitioner] saw Johnson grab a man by the lapels and cuss at him about an unpaid drug debt. [Petitioner] denied being concerned by Johnson's aggression with others. Johnson knew that [Petitioner] always carried a loaded gun to protect himself.
On the nights of June 3 and 4, 2013, [Petitioner] heard Roberts talking in her sleep, expressing love for Johnson. [Petitioner] felt like “I was being lied to” and “I was a big dummy” because the two people he most trusted had misrepresented that they only participated in a sexual threesome with [Petitioner], nothing more. He felt betrayed and deceived.
[Petitioner] read the text messages on Roberts's cell phone, to see what she was murmuring about in her sleep. The messages confirmed the emotional relationship between Roberts and Johnson. [Petitioner] denied feeling jealous or angry, just disappointed that he trusted two liars.
Among the messages were nude photos of Roberts. One buttocks photo she sent to Johnson read, “put it right here”; it was the same photo she had sent to [Petitioner], upon which he wrote, “I love my doll. Without you in my life, what am I living for? You and me for eternity. . . . She is the love of my life. She is all that matters.” [Petitioner] is not sure if he saw the photo and message to Johnson or her text in which she complained that [Petitioner] annoyed her and could not perform sexually.
[Petitioner] did not write Roberts a “Dear John” text or letter. Instead, he woke her early on June 5 by bumping her with his wrist. They went to the living room to conference with Johnson. [Petitioner] calmly informed the couple that he was moving out so they did not have to sneak around behind his back. [Petitioner] testified that he was holding his gun case during this conference, but did not brandish his gun.
He left the apartment, but returned later in the day to retrieve his clothing, without incident. He spoke by phone with Johnson, who was antagonistic and blamed [Petitioner] for introducing him to Roberts. [Petitioner] did not raise his voice during the conversation, even though Johnson said belittling things.
[Petitioner] awoke at 3 a.m. on June 6. He decided to go to Roberts's apartment and collect all of his things - - from dishes and towels to electronics and his mattress. He did not want Roberts and Johnson to benefit from all the amenities he provided.
When [Petitioner] entered the Hurst Avenue apartment at 4 a.m., he was carrying his gun case. He was not surprised to see Johnson, who was on the couch glaring at [Petitioner]. [Petitioner] felt concerned because Johnson “is sneaky.” [Petitioner] began to move belongings into his car.
Johnson “[c]ursed, threatened [and] harassed” [Petitioner], who suggested that Johnson go to a donut shop until [Petitioner] finished removing his belongings. Johnson threatened to crack [Petitioner's] head open and refused to leave, saying that although [Petitioner] had a gun, it was not the last one made; [Petitioner] interpreted this to mean that Johnson “was going to acquire a gun.” Neither man raised his voice, nor did they have a physical altercation. [Petitioner] did not call 911 to report the threats because he did not want Johnson to get in trouble or go to jail.
Instead of leaving the apartment when he heard Johnson's threats, [Petitioner] became more determined to stay and remove his belongings, in the face of Johnson's “negative energy.” [Petitioner] testified that he took his gun from its case and put it in his pocket “just to meet [Johnson's] aggression with equal and opposite . . . aggression. He was trying to say he was going to shoot me with a gun. I'm not going to let you just shoot me with a gun. I have my own gun.” Johnson continued to antagonize [Petitioner], despite seeing that [Petitioner] was armed, calling [Petitioner] a “nerd” and “dumb.” [Petitioner] did not stop making trips from the apartment to his car and back because “I had to get my things.”
[Petitioner] sat down and placed his loaded gun on the glass table between himself and Johnson, with the safety off. This involved “[n]o real thought process” for [Petitioner], who did not intend it as a threat because Johnson had already seen the gun in his pocket. The gun was right in front of [Petitioner], but not within Johnson's reach because “I wouldn't have put it that close to him,” [Petitioner] stated. Johnson frowned and ridiculed [Petitioner], saying [Petitioner] “wasn't going to do anything with the gun . . . and that I should shoot him if I wanted him to leave.”
Johnson lunged off the couch for [Petitioner's] gun. Their hands “actually met at the gun. My hand was fortunately on the bottom,” [Petitioner] said. [Petitioner] admitted that he had the gun and Johnson had nothing in his hands when [Petitioner] started shooting. Johnson did not fall after the first round, so [Petitioner] kept firing as Johnson “remained upright” and again tried to grab [Petitioner's] gun. [Petitioner] denied shooting down at Johnson, who was almost six feet tall; he stated that Johnson was not seated with his back against the couch at any point while being shot.
[Petitioner] pulled the trigger “ten times as fast as you can.” Johnson turned toward on the couch. Though [Petitioner] had not actually seen a gun, he thought Johnson might be reaching for one. [Petitioner] testified that the idea of just pointing the gun at Johnson, without firing it, “didn't cross my mind.”
[Petitioner] called 911 “[b]ecause my brother . . . just got shot.” He did not mention in the call that Johnson threatened him. [Petitioner] had bad experiences with police in the past. He decided to leave so that arriving officers would not hurt him. [Petitioner] drove to his mother's home in Camarillo and his family arranged for his surrender.
(Respondent's Lodgment 2, pp. 2-13; see People v. Allen 2019 WL 513574, at *1-6 (Cal.App. Feb. 11, 2019)).
PETITIONER'S CLAIMS
Neither the Petition nor the Traverse contain citations to the Reporter's Transcript or the Clerk's Transcript in support of Petitioner's factual allegations. This method of presentation fosters a lack of clarity and burdens the Court with the task of searching the transcripts and guessing which portion or portions of the transcripts Petitioner may believe to provide the factual bases for the claims. “It is not the province of a federal habeas court to conduct an independent review of Petitioner's state court proceedings to determine what federal claims Petitioner seeks to raise; the responsibility to assert a claim for relief unquestionably belongs to the petitioner.” Walker v. Giurbino, 2008 WL 4490064, at *7 (E.D. Cal. Oct. 3, 2008) (citations omitted); see also Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir. 1990) (“We do not believe that 28 U.S.C. § 2254 or the Section 2254 Rules require the federal courts to review the entire state court record of habeas corpus petitioners to ascertain whether facts exist which support relief.”); White v. Pollard, 2020 WL 1173508, at *8 (C.D. Cal. Jan. 29, 2020), adopted, 2020 WL 1166993 (C.D. Cal. Mar. 10, 2020) (“It is not the Court's obligation to comb the record in search of support for Petitioner's claim[s].”) (citation omitted).
Claim One: Petitioner's conviction is “inherently unreliable” and hence unconstitutional because the conviction assertedly was based on an autopsy report by a forensic expert, Dr. John Smith, “who has been discredited for fabricating evidence and was removed from this case for that reason”;
Claim Two: Petitioner's trial counsel allegedly rendered ineffective assistance, by assertedly failing to: (a) object to the forensic experts' alleged reliance on Dr. Smith's supposedly unreliable report; (b) cross-examine the prosecution's “substitute expert,” Dr. Nguyen, regarding Dr. Smith's alleged history of falsifying evidence; (c) present to the jury the circumstances and details regarding Dr. Smith's alleged removal from the case, including Dr. Smith's purported “past falsification of evidence”; and (d) argue the alleged discrepancies among the autopsy photographs, the Ventura County forensics lab and Dr. Smith's report concerning the number of alleged gunshot “defects” in the victim's shirt. Additionally, Petitioner argues that the cumulative errors of counsel alleged in Claims One and Two(a) - (d) assertedly compel reversal of the judgment;
Claim Three: The prosecutor allegedly committed misconduct, by assertedly: (a) presenting Dr. Smith's supposedly unreliable and false autopsy report; (b) altering and misstating to the jury the number of purported gunshot “defects” in the couch; (c) along with “law enforcement,” manipulating evidence to conform to a new prosecution theory of the case after forensic experts assertedly discredited Dr. Smith's original theory; and (d) arguing that Petitioner exhibited consciousness of guilt by hanging up during the 911 calls. Petitioner's trial counsel allegedly rendered ineffective assistance in failing to argue that “law enforcement” purportedly manipulated the evidence “for purposes of conforming [to] the prosecution's new theory of the case, formulated in view of the discrediting of the original theory originally espoused by Jon Smith by subsequent forensic experts”;
As set forth below, the Court includes its discussion of this misplaced claim of alleged ineffective assistance of counsel in its discussion of Petitioner's other claims of ineffective assistance.
Claim Four: The trial judge allegedly committed judicial misconduct by admitting testimony which assertedly relied on Dr. Smith's report;
Claim Five: Petitioner's trial counsel allegedly rendered ineffective assistance by assertedly failing to present evidence that: (a) the victim supposedly was in close proximity to Petitioner at the time of the shooting; and (b) the box upon which Petitioner assertedly was sitting immediately prior to the shooting allegedly had been “disrupted.” Petitioner's appellate counsel allegedly rendered ineffective assistance by assertedly failing to “preserve the claim and argument” set forth in Claim One;
Claim Six: The trial court allegedly erred by instructing the jury that self-defense did not apply unless Petitioner acted solely out of fear of imminent danger, rather than that self-defense would apply if Petitioner's alleged fear was a “substantial factor” causing the killing;
Claim Seven: The trial court allegedly violated the constitution by instructing the jury that the defense of self-defense was unavailable if the force Petitioner used was excessive in relation to the threat posed;
Claim Eight: The trial court allegedly violated the constitution by failing to instruct the jury that, if Petitioner harbored a good faith but unreasonable belief that the force he employed was not excessive, the crime was manslaughter, rather than murder;
Claim Nine: The trial court allegedly violated the constitution by instructing the jury that the defense of self-defense assertedly was unavailable if Petitioner provoked the initial confrontation with the victim; and
Claim Ten: The trial court allegedly violated the constitution by precluding the defense from introducing evidence that: (1) the victim assertedly had been in prison numerous times; (2) the victim allegedly was a drug dealer who supposedly had turned Petitioner's sister's house into a “drug den”; and (3) Petitioner allegedly feared that the victim was dangerous and posed a threat of imminent harm.
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
“Clearly established Federal law” refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is “contrary to” clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it “confronts a set of facts . . . materially indistinguishable” from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the “unreasonable application” prong of section 2254(d)(1), a federal court may grant habeas relief “based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision “involves an unreasonable application” of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
“In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous.” Wiggins v. Dr. Smith, 539 U.S. 510, 520 (2003) (citation omitted). “The state court's application must have been ‘objectively unreasonable.'” Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). “Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 101 (2011). This is “the only question that matters under § 2254(d)(1).” Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents.” Id. “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
In applying these standards, the Court looks to the last reasoned state court decision. See Brown v. Davenport, 142 S.Ct. 1510, 1528 (2022) (under AEDPA, federal habeas court must “assess the reasonableness of the last state-court adjudication on the merits of the petitioner's claim”) (citation and quotations omitted); Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision). Where no reasoned decision exists, as where the state court summarily denies a claim, “[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).
Furthermore, on federal habeas review, a federal court will not disturb a conviction for a non-structural error unless the error had a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (citation and internal quotations omitted). Under this standard, “[t]here must be more than a ‘reasonable possibility' that the error was harmful.” Crespin v. Ryan, 46 F.4th 803, 811 (9th Cir. 2022) (citations omitted).
Additionally, federal habeas corpus relief may be granted “only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
For the reasons discussed below, Petitioner is not entitled to federal habeas relief.
The Court has read, considered and rejected all of Petitioner's arguments. The Court discusses Petitioner's principal arguments herein. Within this discussion, the Court has reordered some of Petitioner's claims for greater clarity.
I. Claims Six, Seven and Eight Are Procedurally Defaulted.
The Court of Appeal rejected Petitioner's claims of instructional error contained in Claims Six, Seven and Eight on the ground that Petitioner's trial counsel failed to object to the alleged errors (Respondent's Lodgment 2, pp. 6-8; see People v. Allen, 2019 WL 513574, at *6-8 (Cal.App. Feb. 11, 2019)). Respondent contends that these claims are procedurally defaulted.
A federal court may be barred from reviewing the merits of a habeas petitioner's claim when the petitioner has violated a state law procedural rule. Coleman v. Thompson, 501 U.S. 722, 729 (1991). “For the procedural default rule to apply, however, the application of the state procedural rule must provide ‘an adequate and independent state law basis' on which the state court can deny relief.” Park v. California, 202 F.3d 1146, 1151 (9th Cir.), cert. denied, 531 U.S. 918 (2000) (citation omitted). If the court finds an adequate and independent state procedural ground, “federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice.” Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993); see Coleman v. Thompson, 501 U.S. at 750; Park v. California, 202 F.3d at 1150.
In Bennett v. Mueller, 322 F.3d 573, 581-83 (9th Cir.), cert. denied, 540 U.S. 938 (2003), the Ninth Circuit endorsed the following burden-shifting scheme for procedural default:
Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.Id. at 586.
Here, Respondent has met her burden to plead California's contemporaneous objection rule as an adequate and independent state law ground to deny habeas relief. Petitioner does not (and could not) deny the adequacy or independence of California's contemporaneous objection rule. See Fauber v. Davis, 43 F.4th 987, 1002 (9th Cir. 2022) (“We have repeatedly recognized California's contemporaneous objection rule as “an adequate and independent state law ground” that forecloses our review.”) (citations omitted); Fairbank v. Ayers, 650 F.3d 1243, 1256-57 (9th Cir. 2011), cert. denied, 565 U.S. 1276 (2012) (California's contemporaneous objection rule is an adequate and independent state procedural rule which can bar federal habeas review).
A federal habeas court may consider a procedurally defaulted claim if the petitioner demonstrates that: (1) cause exists for the default and actual prejudice resulted from the alleged violation of federal law; or (2) the failure to consider the petitioner's claim would result in a fundamental miscarriage of justice because “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” See Murray v. Carrier, 477 U.S. 478, 485, 496 (1986); Coleman v. Thompson, 501 U.S. at 750; Schneider v. McDaniel, 674 F.3d 1144, 1153 (9th Cir.), cert. denied, 568 U.S. 1001 (2012); Flowers v. Small, 2010 WL 430704, at *13 (C.D. Cal. Feb. 4, 2010) (“The failure to comply with a state's contemporaneous objection rule results in a procedural default which bars federal consideration of the issue, unless petitioner can demonstrate both ‘cause' for his failure to raise the objection at trial and ‘prejudice' accruing from the error.”) (citations omitted). “Cause” requires some objective factor external to the petitioner, i.e., something that cannot fairly be attributed to the petitioner which precluded the petitioner from properly raising the claims in state court. See McCleskey v. Zant, 499 U.S. 467, 493-94 (1991); see also Maples v. Thomas, 565 U.S. 266, 280-81 (2012); Coleman v. Thompson, 501 U.S. at 753. To show prejudice, the “habeas petitioner must show ‘not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Murray v. Carrier, 477 U.S. at 494. A petitioner bears the burden to show both cause and prejudice. See Davila v. Davis, 137 S.Ct. 2058, 2064 (2017); Bousley v. United States, 523 U.S. 614, 622 (1998); Murray v. Carrier, 477 U.S. at 485.
To make a credible claim of actual innocence, a petitioner must “support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner has not submitted any “new reliable evidence” to show any supposed actual innocence. Petitioner also has made no appreciable effort to show cause or prejudice. Rather, Petitioner simply argues that the trial court sua sponte should have instructed the jury properly (Traverse, pp. 21-22, 25). This argument manifestly fails to show “cause” sufficient to excuse a procedural default. Regardless of whether the trial court had an obligation under state law to give sua sponte instructions as Petitioner argues, the trial court's failure to do so did not “preclude[] the petitioner from properly raising the claims in state court.” See McCleskey v. Zant 499 U.S. at 493-94. Petitioner could have, but did not, raise these instructional issues contemporaneously with the trial court. Accordingly, Claims Six, Seven and Eight are procedurally defaulted. and federal habeas relief is unavailable on these claims. Moreover, as further explained below, Petitioner is not entitled to federal habeas relief on the merits of these claims.
II. Petitioner Is Not Entitled to Federal Habeas Relief on His Challenges to the Expert Witnesses' Alleged Reliance on Dr. Smith's Autopsy Report (Claim One).
A. Background
On June 7, 2013, Ventura County Chief Medical Examiner Dr. Jon Smith performed the autopsy on the victim (C.T. 600-01, 603). Dr. Smith authored the autopsy report, dated September 9, 2013, and testified at the preliminary hearing on November 20, 2013 (C.T. 104-17, 600-41).
A copy of the autopsy report is attached to the “Non-Statutory Motion to Dismiss the Information” filed on March 8, 2016 (see C.T. 104-18). Petitioner also attaches a copy to his Traverse, but this copy contains unclear and unattributed handwritten notations.
Dr. Smith testified, inter alia, that the victim received gunshot injuries to the bridge of the nose, cheek, jaw, neck, upper chest (multiple wounds), right shoulder, both upper arms, left forearm and hand, and three wounds to the back (C.T. 607-18). Dr. Smith said that the injuries from the gunshots included: (1) a laceration of the aorta, the largest blood vessel in the body; (2) lacerations of both lungs; (3) rib fractures on both sides of the body; (4) lacerations of the diaphragm; (5) fractures of the sternum; (6) lacerations of the liver; (7) multiple fractures of facial bones including the nasal bones, maxilla and mandible; and (8) fractures of the upper right arm bone (C.T. 621). Dr. Smith said that the trajectory of most of the wounds was left to right, and that there was blood around the heart and blood in both chest cavities (C.T. 607-17, 621).
A photo of the victim showed him with his knees on the floor in a facedown position on one side of the couch C.T. 622). Dr. Smith opined that the victim “most probably” would have been in that position when he received the gunshot wounds to the back, the last wounds sustained (R.T. 622-23, 639). However, Dr. Smith also testified that he could not determine the overall sequence of the wounds (C.T. 626).
Dr. Smith opined that the wounds to the back were “shored,” meaning that the wounds were sustained while the victim was against a surface or object more solid than the skin (C.T. 624). Dr. Smith testified that it was “definitely probable” that the wounds to the back were consistent with the victim lying on the couch with the right side of his back against the couch (C.T. 625).
Dr. Smith also testified that, based on the trajectories of the shots and the wounds, it appeared that the victim was moving while receiving the gunshot wounds (C.T. 627, 631). Dr. Smith said it was “possible but not probable” that the victim was in a standing position and falling when he received the wounds to the face and neck (C.T. 629). Dr. Smith agreed that it was possible that the victim was lying on the couch, received a number of gunshot wounds, got up, moved around and then ended up in the position in which he was found (C.T. 634).
On February 3, 2016, prior to the commencement of Petitioner's trial, the Ventura County District Attorney issued “A Report on the Ventura County Medical Examiner Examination” (“Ventura County District Attorney's Report”) (C.T. 130-83). This Report described an investigation into allegations that, among other things, Dr. Smith assertedly: (1) had authorized unqualified personnel to conduct autopsies without the physical presence of a licensed medical doctor; (2) certified that he had conducted such autopsies although he had not been physically present; (3) contracted with other agencies or companies to do postmortem procedures while employed as a full-time medical examiner for the County; and (4) received a cease and desist letter from the Louisiana State Board of Medical Examiners for assertedly practicing medicine without a license (see C.T. 134). Specifically, the Report described incidents in which a medical examiner investigator performed postmortem procedures in Dr. Smith's absence and without the supervision of a physician in December of 2013 and in April and May of 2015 (C.T. 146-52). The report also stated that, in December of 2014, Dr. Smith authored an autopsy report concerning an October 2014 autopsy in Louisiana, and that Louisiana authorities had sent Dr. Smith a cease and desist letter in connection with that incident because he was not licensed in that state (C.T. 155-156).
The authors of the Report evidently concluded, inter alia, that: (1) it would not be possible to prove that Dr. Smith had violated California law; (2) Dr. Smith could not be prosecuted in California for violations of Louisiana law; and (3) the evidence did not show that Dr. Smith had misrepresented his hours or was paid for time he did not work (C.T. 167-83). The authors concluded that it would be impossible to impose criminal liability for the practices described in the Report (C.T. 182). Significantly, the Report stated that the investigators had “found no questionable conduct in any autopsies involving criminal cases” (C.T. 142) (emphasis added).
On March 8, 2016, prior to the commencement of trial, Petitioner's counsel filed a “Non-Statutory Motion to Dismiss the Information,” arguing that Petitioner had been unable to cross-examine Dr. Smith at the preliminary hearing concerning the allegations in the later promulgated Ventura County District Attorney's Report (C.T. 97-184). Following a hearing, the court denied the motion, emphasizing the absence of any showing that Dr. Smith committed misconduct with respect to the autopsy of Johnson or had engaged in any misconduct prior to Petitioner's preliminary hearing (R.T. 22-34).
By the time of Petitioner's trial, Dr. Smith no longer was employed at the Ventura County Medical Examiner's Office (R.T. 345). Dr. Smith did not testify at trial.
It appears that Petitioner's counsel subpoenaed Dr. Smith for trial (see R.T. 13), but later chose not to call Dr. Smith as a witness.
At trial, the prosecution called Dr. Lawrence Nguyen, the Ventura County Assistant Chief Medical Examiner (R.T. 343-44). Dr. Nguyen testified that he had reviewed Dr. Smith's preliminary hearing testimony and autopsy report (R.T. 345, 1018). However, Dr. Nguyen said he had formed his own conclusions (R.T. 1020-21, 1030). The court instructed the jury that Dr. Smith's opinions were not being admitted for their truth (R.T. 1022). The defense expert, Dr. Terri Haddix, also testified that she had reviewed Dr. Smith's preliminary hearing testimony and the autopsy report (R.T. 1403-04, 1407-08). Both experts disagreed with some of Dr. Smith's conclusions (e.g., R.T. 1024, 1052-53, 1404, 1408).
Petitioner contends that the testimony of Doctors Nguyen and Haddix, assertedly based on Dr. Smith's report, supposedly rendered Petitioner's conviction “inherently unreliable” and allegedly violated Petitioner's federal and state due process rights “to be found guilty only on substantial evidence” (FAP, pp. 5-6). Petitioner argues that his conviction assertedly was based the report of Dr. Smith “who has been discredited for fabricating evidence and was removed from this case for that reason” (id., p. 5). Petitioner also contends Dr. Smith's report purportedly was unreliable due to “sloppy methodology” because: (1) the number of wounds described in the report supposedly was inconsistent with evidence that the gun held ten bullets; and (2) there assertedly were “discrepancies” among the report, photos and a lab report regarding the number of bullet holes in Johnson's shirt (id., pp. 6-7). The California Supreme Court rejected this claim summarily (see First California Supreme Court Petition; Respondent's Lodgment 7; Second California Supreme Court Petition; “Motion to Amend, etc.,” Exhibit). Therefore, this Court must “determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the United States Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 101 (2011).
B. Analysis
To the extent Petitioner claims that the introduction of testimony based on Dr. Smith's report violated state law, Petitioner is not entitled to federal habeas relief. Federal habeas corpus relief may be granted “only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Federal habeas relief is unavailable for mere violations of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas corpus court to reexamine state-court determinations on state-law questions”); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts”) (original emphasis).
To the extent Petitioner claims that the alleged unreliability of Dr. Smith's report violated Petitioner's federal constitutional rights, Petitioner's claim is somewhat unclear. Petitioner appears to allege that the experts' asserted use of Dr. Smith's report and/or preliminary hearing testimony in their trial testimony violated Petitioner's due process right to a fair trial because: (1) Dr. Smith's report and/or preliminary hearing testimony purportedly was unreliable; and (2) without the challenged expert testimony, the evidence supposedly was insufficient to support Petitioner's conviction (FAP, pp. 5-6). Petitioner further appears to assert violations of the Fifth, Sixth and Eighth Amendments based on the same allegations (FAP, p. 3). The Court interprets Claim One to allege that: (1) the experts' supposed reliance on Dr. Smith's autopsy report and/or preliminary hearing testimony assertedly rendered Petitioner's trial fundamentally unfair in violation of due process; and (2) the evidence allegedly was insufficient to support Petitioner's conviction, absent the challenged expert testimony.
Claim One also contains allegations of asserted prosecutorial misconduct which overlap with some of the claims alleged in Claim Three. The Court addresses those overlapping claims below in its discussion of Claim Three.
For several reasons, Petitioner is not entitled to federal habeas relief. First, there exists no clearly established Supreme Court law holding that a conviction violates due process when an expert witness purportedly relies on allegedly unreliable information. Indeed, the Supreme Court has stated that “the potential unreliability of a type of evidence does not alone render its introduction at the defendant's trial fundamentally unfair.” Perry v. New Hampshire, 565 U.S. 228, 245 (2012) (citations omitted). “The Constitution . . . protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.” Id. at 237. “[T]he jury, not the judge, traditionally determines the reliability of evidence.” Id. at 245.
Second, although Dr. Smith was investigated for allegations of misconduct, those allegations did not concern any purported falsification of autopsy proceedings, findings or reports related to criminal cases. Rather, the allegations concerned Dr. Smith's asserted misconduct in other matters, such as allegedly allowing unauthorized personnel to conduct certain autopsies, failing to supervise, practicing medicine without a license in another state and misrepresenting his work status. Furthermore, the alleged misconduct for which Dr. Smith was investigated occurred long after his autopsy of Johnson. Nothing in the record shows Dr. Smith committed similar misconduct, or any other type of misconduct, before or at the time of his autopsy of Johnson. The allegations of misconduct against Dr. Smith contained in the Ventura County District Attorney's Report thus were not significantly probative on the issue of the reliability of Dr. Smith's report or prior testimony in Petitioner's case.
Third, both Dr. Nguyen and Dr. Haddix clearly did reference Dr. Smith's report and the factual statements and findings therein. Thus, Petitioner's counsel was free at trial to question these experts concerning Dr. Smith's methodology and findings. The experts discussed their reasoning, and neither expert unreservedly adopted all of Dr. Smiths's findings or conclusions. Indeed, Petitioner's counsel elicited testimony concerning the experts' disagreement with Dr. Smith's conclusions. For example, under questioning by Petitioner's counsel, Dr. Nguyen said he did “not necessarily” agree with Dr. Smith's conclusion that one of the gunshot wounds showed shoring (R.T. 1051-53). The defense expert, Dr. Terri Haddix, said she agreed with Dr. Nguyen that a particular wound did not appear to show shoring (R.T. 1404-05). Additionally, both experts disagreed with Dr. Smith's reported conclusion concerning the side of the couch on which Johnson was located at the time of the shooting (R.T. 1022-23, 1408-09).
At the preliminary hearing, the prosecutor asked Dr. Smith whether, in light of the the trajectories of the gunshot wounds, Dr. Smith “[had] an opinion as to whether the victim could have sustained any of the gunshot wounds while lying down on the couch with his head on the pillow” (C.T. 621). Dr. Smith responded: “If he was lying on the couch with his head on the pillow, based on the orientation of the trajectories of predominantly left to right, he would have been laying on his back which exposed the left side of his face as well as the areas of the right chest to allow for a left-to-right trajectory” (C.T. 621-22). Dr. Smith also testified, on cross-examination, that it was “possible” Johnson was lying on the couch when the shooting began and then arose and moved about, ending up in the position in which he was found face down on the couch (C.T. 634).
For all of these reasons, Petitioner has not shown an entitlement to federal habeas relief on his claim that the trial experts' use of Dr. Smith's autopsy report and/or preliminary hearing testimony supposedly rendered Petitioner's trial fundamentally unfair.
To the extent Petitioner contends that the evidence was insufficient to support his conviction because the experts assertedly relied on Dr. Smith's report and/or preliminary hearing testimony, any such claim lacks merit. On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was “so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment.” Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was “so unsupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650, 655 (2012).
In reviewing the sufficiency of the evidence, the Court “must consider the evidence in the light most favorable to the prosecution.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010). The court “may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial.” United States v. Nevils, 598 F.3d at 1164 (citation omitted). “Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. (citations and internal quotations omitted); see also Coleman v. Johnson, 566 U.S. at 655 (“Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts”) (citation and internal quotations omitted); Cavazos v. Dr. Smith, 565 U.S. 1, 2 (2011) (“it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial”). The State need not rebut all reasonable interpretations of the evidence or “rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia].” United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted).
The Court “must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court “may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Id. (citations and internal quotations omitted; original emphasis). The Court must conduct an independent review of the record when a habeas petitioner challenges the sufficiency of the evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). The Court has conducted such an independent review.
In applying these principles, the Court “must consider all of the evidence admitted by the trial court, regardless of whether that evidence was admitted erroneously.” McDaniel v. Brown, 558 U.S. at 131 (citation omitted).
Here, any challenge to the sufficiency of the evidence plainly fails. A rational juror crediting the prosecution's evidence described above, including the challenged expert testimony, could have found Petitioner guilty of second degree murder beyond a reasonable doubt. Viewing the evidence most favorably to the prosecution: (1) Petitioner shot an unarmed Johnson in an apartment living room ten times with a .45 caliber semiautomatic handgun, including multiple shots to the face, the arms, the chest and the back, causing wounds to both lungs, the liver, the diaphragm, the ribs, the arms, the face (multiple fractures of the face and jaw bones) and, most grievously, the aorta (see R.T. 352-74); and (2) Petitioner made no mention in his 911 call of any allegations suggesting Petitioner might have acted in self-defense (saying rather that Johnson had “had sex with [Petitioner's] girl” and “wouldn't leave”) (R.T. 226; C.T. 396). Based on the evidence introduced at trial, a rational juror clearly could have found Petitioner guilty beyond a reasonable doubt. Petitioner seems to argue that, in determining evidentiary sufficiency, the Court must exclude the expert testimony from consideration (see FAP, pp. 5-6). As previously indicated, the law is otherwise. See McDaniel v. Brown, 558 U.S. at 131.
For the foregoing reasons, the California Supreme Court's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on Claim One.
III. Petitioner Is Not Entitled to Federal Habeas Relief on His Claims of Alleged Prosecutorial Misconduct (Claims Three(a)-(d) ).
A. Governing Legal Standards
Prosecutorial misconduct merits habeas relief only where the misconduct “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation and internal quotations omitted); Bonin v. Calderon, 59 F.3d 815, 843 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996) (“To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of [the petitioner's] right to a fair trial.”). “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982).
Petitioner raised his claims of alleged prosecutorial misconduct in his habeas corpus petitions to the California Supreme Court, both of which were denied summarily (First California Supreme Court Petition; Respondent's Lodgment 7; Second California Supreme Court Petition; “Motion to Amend, etc.,” filed December 2, 2021, Exhibit). Therefore, this Court must “determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. at 101.
Petitioner raised Claims Three (a) and (d) in his First California Supreme Court Petition and Claims Three(b) and (c) in his Second California Supreme Court petition.
B. Allegedly Presenting Dr. Smith's Purportedly “Unreliable” and “False” Autopsy Report (Claim Three(a))
The prosecution's knowing use of false evidence to obtain a conviction can violate due process. Napue v. Illinois, 360 U.S. 264, 269 (1959); see also United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir. 1989), cert. denied, 506 U.S. 958 (1992). “The due process requirement voids a conviction where the false evidence is ‘known to be such by representatives of the State.'” Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004), cert. denied, 546 U.S. 935 (2005) (quoting Napue v. Illinois, 360 U.S. at 269) (footnote omitted). “The essence of the due process violation is misconduct by the government, not merely perjury by a witness.” Morales v. Woodford, 388 F.3d at 1179 (footnote omitted). To show a due process violation, Petitioner must show that: “(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material.” Sanders v. Cullen, 873 F.3d 778, 794 (9th Cir. 2017), cert. denied, 139 S.Ct. 798 (2019) (citations and footnote omitted).
“A prosecutor can never guarantee that a witness will not commit perjury.” United States v. Aichele, 941 F.2d 761, 766 (9th Cir. 1991). “Her duty is to refrain from knowingly presenting perjured testimony and from knowingly failing to disclose that testimony used to convict a defendant was false.” Id. (citation and quotations omitted).
Petitioner contends that the prosecutor committed misconduct by allowing her expert, Dr. Nguyen, to testify using Dr. Smith's purportedly false report (FAP, pp. 14-15). Petitioner's contention that Dr. Smith's report supposedly was false are based on various allegations, including: (1) the allegations in the Ventura County District Attorney's Report concerning Dr. Smith's asserted misconduct in matters unassociated with Petitioner's case; (2) the prosecution and defense experts' alleged disagreement with Dr. Smith's conclusion that Johnson was lying down at the time of the shooting and, relatedly, Dr. Smith's conclusion regarding the “shoring” of the wounds; and (3) “other evidence discrediting Dr. Smith's methodology” (FAP, pp. 14-15).
Petitioner has entirely failed to show that the prosecutor knew Dr. Smith's report contained false statements or that any of the alleged falsehoods were material (particularly given the evidence that the trial experts reached their own, different conclusions and the trial court's instruction that Dr. Smith's opinions were not admitted for their truth). There is no evidence that the testimony of Dr. Nguyen, the prosecution's expert who testified at trial, was false. As previously discussed, the allegations against Dr. Smith contained in the Ventura County District Attorney's Report have no material bearing on the accuracy or reliability of Dr. Smith's autopsy report concerning Johnson. Furthermore, and in any event, conflicting expert opinions “do not show that [an expert's] testimony was false.” Harris v. Vasquez, 949 F.2d 1497, 1524 (9th Cir. 1990), cert. denied, 503 U.S. 910 (1992); see also Gimenez v. Ochoa, 821 F.3d 1136, 1142 (9th Cir.), cert. denied, 137 S.Ct. 503 (2016) (“To the extent that . . . new [expert] testimony contradicts the prosecution's expert testimony, it's simply a difference in opinion — not false testimony.”); Hoover v. Newland, 307 Fed. App'x 56, 58 (9th Cir. 2009) (“Finally, even assuming Dr. Buehler's testimony and opinions differed from the testimony and opinions offered by all of the other experts, this difference does not render his testimony ‘false.'”) (citations omitted); Riccardi v. Price, 2019 WL 6570576, at *30 (C.D. Cal. Sept. 17, 2019), adopted as modified, 2020 WL 507358 (C.D. Cal. Jan. 31, 2020) (difference of opinion between two experts did not show testimony of one expert was false); cf. Hodge v. Hurley, 426 F.3d 368, 383 (6th Cir. 2005) (“It was entirely improper for the prosecutor imply that any disagreement between the expert witnesses (who, as professionals, could very well have legitimate professional disagreements) meant that one of those witnesses must be perjuring him or herself.”).
For the foregoing reasons, the California Supreme Court's rejection of this subclaim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on this subclaim.
C. Allegedly Manipulating Evidence to Conform to a New Prosecution Theory (Claim Three(c)
This subclaim overlaps substantially with Claim Three(c), discussed below.
At the preliminary hearing, Ventura County police officer Morris Rivard testified that he found bullet holes in the back cushion and arm of the couch, and he made three circles on a photograph showing where he saw the referenced bullet holes (C.T. 563-66). Because counsel and the witness referred to photographic exhibits which are not contained in the present record, it is unclear whether Rivard testified he saw three bullet holes in the back cushion. However, Rivard said he extracted three expended bullets from the couch “following the trail of the bullet holes in the cushions” (C.T. 563).
At trial, Rivard testified that there were two bullet holes in the armrest, and two holes in the back seat of the couch (R.T. 288-289, 294, 327). He also testified there was a “deformation” in the couch cushion and he was unable to determine whether the deformation was a bullet hole (R.T. 289, 328). Again, because counsel and the witness referred to photographic exhibits which are not contained in the present record, it is unclear whether Rivard testified he saw three bullet holes in the couch back cushion.
In closing, the prosecutor said that Rivard had “observed three in that back lower quadrant holes [sic] and two in the armrest, and he eventually fished out two bullets from the armrest, two in that back cushion, one was X-rayed from the seat cushion and then one Christina Roberts found after the fact that was coming from that back cushion as well. . . . [¶] So the fact that these bullets are hitting all really low is additional proof that the victim is low on this couch while he is getting shot. . . .” (R.T. 2082-83).
Petitioner contends that the prosecutor, in conjunction with unidentified “law enforcement,” purportedly “manipulated evidence” to conform to a “new prosecution theory of the case” (FAP, pp. 15-16). According to Petitioner, Dr. Smith testified at the preliminary hearing that Johnson was lying on the couch at the time of the shooting (FAP, pp. 15-16). Petitioner asserts that, after Dr. Nguyen supposedly “discredited” Dr. Smith's alleged conclusion that Johnson was lying on the couch when shot, the prosecutor supposedly changed her “theory of the case” to a “theory” that Johnson was sitting up, not lying down (id.). Petitioner speculates that the prosecutor “needed extra bullet holes” in the couch to match the wounds in the victim's back, and that the prosecutor “appears to have manipulated the forensic evidence between the preliminary hearing and trial so as to afford credibility to her new theory of the case” (Traverse, pp. 16-18).
In Claim One, Petitioner contends that Dr. Nguyen allegedly contradicted Dr. Smith's asserted preliminary hearing testimony concerning the side of the couch on which Johnson was sitting when the shooting began, purportedly causing the prosecutor to change her theory of the case concerning Johnson's location on the couch (FAP, p. 8). However, Petitioner does not appear to contend, and there is no evidence, that the prosecutor and “law enforcement” supposedly “manipulated” any evidence with respect to the side of the couch on which Johnson was located. Indeed, as stated below, Petitioner testified that, prior to the shooting, Johnson was “sitting somewhere towards the middle or left part of the couch” when Petitioner was sitting across from Johnson (R.T. 1553).
This claim fails for several reasons. First, Petitioner offers nothing more than a conclusory, speculative allegation that the prosecutor and unidentified “law enforcement” supposedly “manipulated” the evidence. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (a “cursory and vague claim cannot support habeas relief”) (citation omitted); Jones v. Gomez, 66 F.3d 199, 204-205 (9th Cir. 1995), cert. denied, 517 U.S. 1143 (1996) (conclusory allegations do not warrant habeas relief); McCarty v. Kernan, 2021 WL 3630378, at *18 (E.D. Cal. Aug. 17, 2021), adopted, 2021 WL 4776667 (E.D. Cal. Oct. 13, 2021) (“”Habeas relief is not warranted where the claim is based on mere speculation.”).
Second, there is no clearly established Supreme Court law holding that a prosecutor commits constitutionally proscribed misconduct by allegedly changing the prosecutor's “theory” or interpretation of the evidence between the preliminary hearing and the trial. Petitioner does not contend, and the record does not show, that Petitioner lacked notice of the charges against him. See Cole v. Arkansas, 333 U.S. 196, 201 (1948). Petitioner has not cited, and the Court has not located, any clearly established Supreme Court law forbidding a prosecutor from changing her “theory” i.e., interpretation of the evidence. In Lopez v. Dr. Smith, 135 S.Ct. 1 (2014), the United States Supreme Court reviewed a Ninth Circuit decision holding that a prosecutor's change of theory (from a theory of direct liability to that of aiding and abetting) following the close of evidence deprived the petitioner of constitutionally mandated notice. The Supreme Court summarily reversed, ruling that there was no Supreme Court jurisprudence “clearly establish[ing] that a prosecutor's focus on one theory of liability at trial can render earlier notice of another theory of liability inadequate.” Id. at 4. The Lopez Court observed that the Supreme Court's prior cases stood “for nothing more than the general proposition that a defendant must have adequate notice of the charges against him.” Id. at 4. “This proposition is far too abstract to establish clearly the specific rule respondent needs.” Id.
In the absence of clearly established Supreme Court law, Petitioner cannot obtain habeas relief on this claim. See Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“Because our cases give no clear answer to the question presented, . . . it cannot be said that the state court unreasonably applied clearly established Federal law”) (citation, internal brackets and quotations omitted); Ford v. Madden, 2021 WL 1740834, at *6 (C.D. Cal. Feb. 12, 2021), adopted, 2021 WL 1740240 (C.D. Cal. Apr. 30, 2021) (rejecting habeas petitioner's claim that prosecutor introduced at trial a new theory of guilt not espoused at the preliminary hearing, citing Lopez v. Dr. Smith, supra).
Finally, Petitioner has not shown that the prosecution's decision to argue at trial that Johnson was sitting with his back against the couch when the shooting began (based on evidence including the blood evidence, the location of certain bullet holes in the couch and the expert testimony concerning shored exit wounds in Johnson's back) rendered Petitioner's trial fundamentally unfair. Petitioner appears to concede that a prosecutor does not commit misconduct by changing the theory of the case based on the evidence (Traverse, p. 18). Petitioner himself testified that Johnson was “sitting somewhere towards the middle or left part of the couch” at the time Petitioner sat across from Johnson on the “speaker box” (R.T. 1553). Petitioner testified that, just prior to the shooting, Petitioner was sitting on the “speaker box” (or “drum box”) across from Johnson, who was on the couch when Petitioner assertedly put his loaded gun on the coffee table (see R.T. 1503, 1551-62). Petitioner did not testify that, when Johnson supposedly “lunged” for the gun, Johnson did so from a supine position.
For the foregoing reasons, the California Supreme Court's rejection of this subclaim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on this subclaim.
D. Alleged Misconduct in Closing Argument (Claims Three(b), (d))
1. Applicable Law
“In fashioning closing arguments, prosecutors are allowed reasonably wide latitude and are free to argue reasonable inferences from the evidence.” United States v. McChristian, 47 F.3d 1499, 1507 (9th Cir. 1995) (citation omitted). “The arguments of counsel are generally accorded less weight by the jury than the court's instructions and must be judged in the context of the entire argument and the instructions.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996) (citing Boyde v. California, 494 U.S. 370, 384-85 (1990)); see also Waddington v. Sarausad, 555 U.S. 179, 195 (2009) (same). “Improper argument does not, per se, violate a defendant's constitutional rights.” Runningeagle v. Ryan, 686 F.3d 758, 781 (9th Cir. 2012), cert. denied, 569 U.S. 1026 (2013) (citations and internal quotations omitted).
2. Allegedly Misstating to the Jury the Number of Gunshot “Defects” in the Couch (Claim Three(b))
As indicated above, the prosecutor argued in closing that Detective Rivard had observed three bullet holes in the couch and two in the armrest (R.T. 2082-83). Petitioner's claim of constitutional error from the prosecutor's alleged misstatement of the number of “defects” in the couch lacks merit. First, the court instructed the jury that the arguments of counsel were not evidence (R.T. 2048-49; Supp. C.T. 6). The jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000); see also Hein v. Sullivan, 601 F.3d 897, 916 (9th Cir. 2010), cert. denied, 563 U.S. 935 (2011) (cautionary instructions mitigated effect of prosecutor's improper comments); United States v. Toro-Barboza, 673 F.3d 1136, 1153 (9th Cir.), cert. denied, 568 U.S. 1003, 1004 (2012) (prosecutor's false statement did not render trial fundamentally unfair, where court instructed jury that counsel's statements were not evidence).
Second, Petitioner has not shown how the alleged misstatement violated due process. Petitioner does not dispute that there were bullet holes in the back of the couch, regardless of their number. Both the prosecution expert and the defense expert agreed that wounds in Johnson's back showed “shoring,” signifying that Johnson's back was against the couch at the time Petitioner fired shots which exited the back and caused the “shoring.” Petitioner has not shown that any alleged prosecutorial misstatement concerning the precise number of gunshot holes in the back of the couch rendered Petitioner's trial fundamentally unfair or had any substantial and injurious effect or influence on the verdict. See Darden v. Wainwright, 477 U.S. 168, 181 (1986); Brecht v, Abrahamson, 507 U.S. 619, 637-38 (1993) (“Brecht”).
For the foregoing reasons, the California Supreme Court's rejection of this subclaim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on this subclaim.
3. Allegedly Arguing that Petitioner Exhibited Consciousness of Guilt By Hanging Up During the 911 Call(s) (Claim Three(d))
FBI agent Michael Easter, a member of the FBI cellular analysis survey team, testified concerning his analysis of Petitioner's cell phone calls (R.T. 500-03). Easter testified that there were two 911 calls from Petitioner's phone on June 6, 2013 (R.T. 508-10). The first call generated no “called number” and lasted only two seconds (R.T. 510-11). Easter said “the call either dropped or the user ended the call immediately” (R.T. 511). The second call was a completed call lasting 46 seconds (R.T. 511). An audio recording of the completed call was played for the jury (R.T. 226).
According to the transcript of the completed call, after the dispatcher asked Petitioner his name and Petitioner responded “Cornell Allen,” the dispatcher then asked “You're Alex?” (C.T. 396). Petitioner said “Allen” (C.T. 396). After the dispatcher responded, “What is it?” the call ended (C.T. 396).
Ventura Police Department Sergeant Richard Payne, the senior officer at the scene, testified that, after he arrived at the location pursuant to a dispatch, an attempt was made to call back the reporting party who had placed the 911 call, but there was no answer (R.T. 217-19, 227-28). Payne further testified that a 911 dispatcher is supposed to ask the caller questions such as “who is calling; where are you calling from; where did it happen; if there is [sic] weapons involved, where is the weapon; who is the victim; who else is involved; where can we reach you . . .” (R.T. 227).
Petitioner testified that the first 911 call did not go through and that the second call went through but the signal faded (R.T. 1619, 1622). Petitioner claimed he did not hang up or push “end” (R.T. 1618-19). Petitioner agreed that nothing prevented Petitioner from calling the 911 operator back (R.T. 1622). ///
The court gave a consciousness of guilt instruction (R.T. 2057-58; Supp. C.T. 24).
The prosecutor made the following statements in closing:
As soon as the operator starts asking for his address, his name, at that point it is done. Now, defendant denies hanging up, but when 9-1-1 tried calling him back on a perfectly working phone, he is not answering. So defendant, again, he's realized, shoot, what did I just say, he had sex with my girl, that didn't sound so good; I got to get out of here.(R.T. 2075).
He is not answering a call back from the 9-1-1. Sergeant Payne said they are trying to get in the apartment, but they don't want to bust down the door what they [sic] reported shooting. They are asking the dispatcher to call back. It is going to voicemail; the person isn't answering; the defendant isn't answering.(R.T. 2084).
High stress environment. [Petitioner] [c]laims he is confused and disoriented; that is why he told 9-1-1 he had sex with my girl. No. He told them that because that is why he killed him; that is the moment of truth that came out
of his mouth and realized, oh no, that didn't sound good, got to hang up.(R.T. 2091).
Petitioner contends that the prosecutor's argument “was incorrect and misleading because in fact the prosecution's technical expert, Michael Easter, testified that there was in fact a faulty connection, as claimed by petitioner” (FAP, p. 17). Petitioner thereby misrepresents the trial record.
Easter did not testify that either 911 call ended due to any “faulty connection.” Easter testified that there was a short, two-second call to 911 that was either dropped or ended by the caller, and then a longer, completed call. In any event, the prosecutor's argument constituted a reasonable inference from the evidence, including evidence that: (1) the second call ended with an unanswered question from the dispatcher; (2) a 911 dispatcher is supposed to ask the caller questions concerning the caller's identity and the method of reaching the caller; and (3) Petitioner did not answer a subsequent call (as he perhaps would have been expected to do if in fact the second call had ended involuntary). See United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (prosecutors are allowed to “argue reasonable inferences based on the evidence”); Gwin v. Martel, 2016 WL 8223274, at *40 (C.D. Cal. June 21, 2016), adopted, 2017 WL 517759 (C.D. Cal. Feb. 6, 2017) (prosecutor did not commit misconduct by arguing consciousness of guilt based on the evidence).
For the foregoing reasons, the California Supreme Court's rejection of this subclaim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on this subclaim.
IV. Petitioner Is Not Entitled to Federal Habeas Relief on His Claims of Ineffective Assistance of Trial Counsel (Claims Two(a)-(e); Claim Three(b); Claims Five(a), (b)).
A. Governing Legal Standards
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 697 (1984) (“Strickland”). A reasonable probability of a different result “is a probability sufficient to undermine confidence in the outcome.” Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy either prong of the Strickland test obviates the need to consider the other.”) (citation omitted).
Review of counsel's performance is “highly deferential” and there is a “strong presumption” that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct “on the facts of the particular case, viewed as of the time of counsel's conduct.” Strickland, 466 U.S. at 690. The court may “neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . .” Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”) (citations omitted). “Defense lawyers have limited time and resources, and so must choose from among countless strategic options.” Dunn v. Reeves, 141 S.Ct. 2405, 2410 (2021) (citation and quotations omitted). “Such decisions are particularly difficult because certain tactics carry the risk of harming the defense by undermining credibility with the jury or distracting from more important issues.” Id. (citation, quotations and brackets omitted).
Petitioner bears the burden to show that “counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. at 104 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy”) (citation and quotations omitted); see also Morris v. California, 966 F.2d 448, 456-57 (9th Cir.), cert. denied, 506 U.S. 831 (1992) (if the reviewing court can conceive of a reasonable explanation for counsel's challenged action or inaction, the court need not determine the actual explanation before denying relief).
“In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently.” Harrington v. Richter, 562 U.S. at 111 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is “‘reasonably likely'” that the result would have been different. Id. (quoting Strickland, 466 U.S. at 696). “The likelihood of a different result must be substantial, not just conceivable.” Id. at 112.
“When the claim at issue is one for ineffective assistance of counsel, moreover, AEDPA review is ‘doubly deferential,' [citation], because counsel is ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'” Woods v. Etherton, 578 U.S. 113, 117 (2016) (citations and internal quotations omitted). “In such circumstances, federal courts are to afford ‘both the state court and the defense attorney the benefit of the doubt.'” Id. (citation omitted). “[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Sexton v. Beaudreaux, 138 S.Ct. 2555, 2560 (2018) (citation and internal quotations omitted).
Petitioner raised his claims of ineffective assistance of counsel in his habeas corpus petitions to the California Supreme Court, both of which were denied summarily (First California Supreme Court Petition; Respondent's Lodgment 7; Second California Supreme Court Petition; “Notice of Filing of State Petition, etc.,” filed September 27, 2021, Exhibit; “Motion to Amend, etc.,” filed December 2, 2021, Exhibit). Accordingly, this Court “must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. at 101.
In his First California Supreme Court Petition, Petitioner raised Claims Two(a) and (b) and Claims Five(a) and (b) of the present Petition. In his Second California Supreme Court Petition, Petitioner raised Claims Two(c) and (d) and Claim Three(b). Petitioner raised his cumulative error claim in both petitions.
B. Failing to Object to Dr. Nguyen's Alleged Reliance on Dr. Smith's Report (Claim Two(a))
Petitioner faults counsel for failing to object to Dr. Nguyen's use of Dr. Smith's autopsy report (FAP, pp. 10-11). Petitioner contends that counsel should have objected on the ground that the report supposedly was unreliable (for the reasons Petitioner argues in Claim One). These reasons include the assertion that Dr. Smith committed wrongdoing with respect to other, later autopsies, reports and employment and that his report allegedly showed “sloppy methodology” regarding the number of bullet wounds in Johnson's body and shirt (FAP, pp. 10-11; Traverse, p. 16).
Petitioner's counsel objected to the introduction of Dr. Smith's autopsy report at trial, and the prosecutor said she would not seek to introduce the report itself (R.T. 44-45).
As discussed above the Ventura County District Attorney's Report concerned allegations against Dr. Smith that had nothing to do with any autopsies conducted at the time Dr. Smith conducted the autopsy of Johnson, much less to the autopsy of Johnson itself. The trial court indicated as much in denying Petitioner's motion to dismiss the Information, telling Petitioner's counsel: “If you can demonstrate to me that there was any misconduct with respect to this examination that Dr. Smith did of this victim, then that would be relevant I think to the preliminary hearing that took place, but as I understand it, we're talking about later misconduct with respect to other examinations of other decedents and I don't think that I can go that far as to say that the later occurring misconduct requires a new hearing here” (R.T. 30). The court also told Petitioner's counsel: “I think that the issue was really when the misconduct occurred, and absent a showing that there was similar misconduct before the date of our examination, I'm not prepared to grant the motion” (R.T. 34). Under the circumstances, Petitioner's counsel reasonably could have concluded that, if counsel had moved to exclude Dr. Nguyen's testimony based on Dr. Nguyen's use of Dr. Smith's report, the court would not have granted the motion. Similarly, counsel reasonably could have concluded that any effort to exclude Dr. Nguyen's testimony based on the “methodology” of Dr. Smith's report also would have been unsuccessful. The court reasonably could have been expected to rule that cross-examination, not exclusion, would be the proper means of attacking any reliance by Dr. Nguyen on Dr. Smith's methodology, particularly when the precise number of bullet holes was of so little ultimate import. Cf. Nash v. Prudential Ins. Co. of America, 39 Cal.App.3d 594, 599, 114 Cal.Rptr. 299 (1974) (“It is not uncommon for experts to disagree, and it remains the function of the jury to choose which medical testimony they believe.”). Strickland does not require counsel to raise an objection which counsel reasonably believes will be unsuccessful. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005), cert. denied, 546 U.S. 1137 (2006) (“trial counsel cannot have been ineffective for failing to raise a meritless objection”); see also Gonzalez v. Knowles, 515 F.3d 1006, 1017 (9th Cir. 2008); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997); see also Sexton v. Beaudreaux, 138 S.Ct. at 2559 (“A fairminded jurist could conclude that counsel's performance was not deficient because counsel reasonably could have determined that the motion to suppress would have failed.”).
Therefore, the California Supreme Court's rejection of this subclaim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03.
C. Failing to Cross-Examine Dr. Nguyen Regarding Dr. Smith's Alleged History of “Falsifying Evidence” (Claim Two(b))
Petitioner's claim that counsel ineffectively failed to cross-examine Dr. Nguyen regarding Dr. Smith's alleged history of “falsifying evidence” fails for the same reasons discussed above. Even assuming arguendo that counsel had reason to believe that Dr. Nguyen was aware of the contents of the Ventura County District Attorney's Report, counsel reasonably could have determined that: (1) the prosecutor would object to any attempt to cross-examine Dr. Nguyen on this topic; and (2) in light of the court's remarks at the hearing on the motion to dismiss (set forth above), the court would sustain the objection. Again, Strickland does not require counsel to pursue a futile course of conduct. See Juan H. v. Allen, 408 F.3d at 1273.
Therefore, the California Supreme Court's rejection of this subclaim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03.
D. Failing to Present to the Jury the Circumstances Regarding Dr. Smith's Alleged Removal from the Case (Claim Two(c))
Petitioner faults counsel for failing to attempt to present to the jury the circumstances regarding Dr. Smith's “removal from the case.” Petitioner does not describe those circumstances or explain how evidence concerning Dr. Smith's “removal from the case” assertedly would have aided Petitioner's defense. Conclusory allegations do not merit federal habeas relief. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011); Jones v. Gomez, 66 F.3d 199, 204-205 (9th Cir. 1995), cert. denied, 517 U.S. 1143 (1996).
To the extent Petitioner alleges that the allegations contained in the Ventura County District Attorney's Report assertedly caused Dr. Smith's termination from employment and/or “removal from the case,” the subclaim also fails. For the reasons discussed above, counsel reasonably could have determined that, in light of the court's remarks at the hearing on the motion to dismiss the Information, any effort on counsel's part to present such evidence would have been met with an objection from the prosecutor and a ruling from the court sustaining that objection. Again, counsel was not required to pursue a fruitless course of conduct. See Juan H. v. Allen, 408 F.3d at 1273.
Therefore, the California Supreme Court's rejection of this subclaim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03.
E. Failing to Argue Alleged Discrepancies Concerning the Number of Gunshot “Defects” in the Victim's Shirt (Claim Two(d))
Petitioner faults counsel for failing to “argue the discrepancies between and among the autopsy photos, the Ventura County forensics lab, and . . . Dr. Smith's report, regarding the number of defects in the victim's shirt” (FAP, pp. 12-13). Petitioner alleges that the autopsy photos showed 18 defects, the lab found 21 defects and Dr. Smith reported 22 defects (id., pp. 7-8). The record does not contain the referenced autopsy photos or the lab findings. Petitioner argues that counsel should have brought these alleged discrepancies to the jury's attention to show that the “factual basis of the prosecution's case” (supposedly Dr. Smith's report) assertedly was unreliable (id., p. 13).
Dr. Nguyen testified that “defects” meant “hole defects caused by bullets” (R.T. 348).
As indicated above, Dr. Smith's report was not introduced at trial, and both the prosecution trial expert and the defense trial expert testified that, while they read Dr. Smith's report, they reached their own conclusions. Regardless of whether the number of gunshot defects in Johnson's shirt was 18, 21 or 22, Petitioner evinces no disagreement with the evidence showing that Petitioner shot Johnson ten times, including three shots in the back; indeed at trial, Petitioner admitted he did so (R.T. 1914). Petitioner has not shown any reasonable probability that, but for counsel's alleged errors in this regard, the result of the proceeding would have been different. See Harrington v. Richter, 562 U.S. at 112; Strickland, 466 U.S. at 694.
Therefore, the California Supreme Court's rejection of this subclaim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03.
F. Alleged Cumulative Error from Asserted Ineffectiveness of Trial Counsel (Claim Two(e))
Because Petitioner has failed to establish any errors of constitutional magnitude with respect to Claims Two(a) through Two(e), there can be no accumulation of prejudice amounting to a denial of due process or otherwise satisfying the Strickland standard. See Lopez v. Allen, ___F.4th___, 2022 WL 4005791, at *10 (9th Cir. Sept. 2, 2022) (“”Because Petitioner has failed to establish multiple errors of constitutional magnitude, there can be no accumulation of prejudice amounting to a denial of due process or meeting the Strickland standard.”) (citations omitted); Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (“Because we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible.” (citation omitted)).
Therefore, the California Supreme Court's rejection of this subclaim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03.
G. Failing to Argue That the Prosecution and “Law Enforcement” Allegedly “Manipulated Evidence” to Conform to a Purportedly “New Prosecution Theory of the Case” (Claim Three(b))
Petitioner contends that “a strong argument [was] available that the prosecution and law enforcement manipulated evidence to conform to a new prosecution theory of the case which was required in light of the fact that the original theory, espoused by Jon Dr. Smith, had been discredited by subsequent forensic experts” (FAP, p. 16). Petitioner faults counsel for allegedly failing to make this argument (id., pp. 16-17).
Again, Petitioner alleges no facts supporting his unadorned contention that unidentified “law enforcement” and/or the prosecutor supposedly “manipulated” any evidence. Petitioner's conclusory allegations are insufficient to establish the predicate for a claim for habeas relief. See Greenway v. Schriro, 653 F.3d at 804; Jones v. Gomez, 66 F.3d at 204-205. Moreover, there is no reasonable probability that the suggested argument would have altered the result of Petitioner's trial.
H. Allegedly Failing to Present Evidence of the Victim's Asserted Close Proximity to Petitioner at the Time of the Shooting (Claim Five(a))
Petitioner contends that counsel ineffectively failed to present evidence “that the victim was in close proximity to petitioner at the time of the shooting” (FAP, p. 19). Petitioner describes this alleged evidence as: (1) a forensic scientist's report assertedly stating that Petitioner's shoes bore bloodstains; and (2) crime scene photographs allegedly showing that the blanket on the couch had been “pushed or bunched up in the direction of petitioner's position at the time of the shooting” (id.). Petitioner posits that blood on Petitioner's shoes would have shown that he was close to Johnson at the time of the shooting and that the photographs supposedly would have shown that Johnson allegedly “moved in petitioner's direction prior to the shooting.” (id.).
Petitioner's counsel reasonably could have decided that evidence concerning Petitioner's allegedly bloody shoes would not have aided Petitioner's defense materially. Petitioner testified that he sat across from and close enough to Johnson that the hands of the two men assertedly met when both purportedly attempted to take the gun (R.T. 1752). Petitioner testified that, after Johnson purportedly lunged forward toward the gun, Petitioner allegedly obtained the gun and then, knowing that Johnson was unarmed, shot Johnson ten times (R.T. 1559-67, 1605-06, 1751-52, 1763-69). Blood likely would have been deposited on Petitioner's shoes, either by spatter or as Petitioner left the room, regardless of whether Petitioner shot with malice or in self-defense. Thus, the mere fact of blood on the shoes was essentially immaterial to Petitioner's defense. Certainly, evidence of such blood would not have created a reasonable probability of a different trial outcome.
Petitioner's counsel also reasonably could have decided that photographs of a “bunched up blanket” on the couch would not have aided Petitioner's defense materially. The alleged photographs of the supposedly “bunched up” blanket attached to the Traverse (and to Petitioner's First California Supreme Court petition) are too dark to show any alleged blanket (or anything else) (see Respondent's Lodgment 6, Ex. 3; Traverse, Ex. 3). The trial evidence included photographs of the living room after the shooting, showing a pink blanket on the couch (R.T. 280-81, 287-88, 291-92, 295). Detective Rivard testified that he arrived at the scene between 6:20 a.m. and 6:30 a.m. and took photographs before moving or manipulating any objects (R.T. 283). Rivard said he saw blood on the blanket and “investigated” it for bullet damage but did not notice any such damage (R.T. 295). After reviewing photographs of the living room before and after the shooting, Petitioner testified that several items including the “blanket off the couch” had been moved (R.T. 1596). Counsel reasonably could have concluded that the jury would believe that the blanket was “bunched” during the police investigation, not by Johnson.
In any event, Petitioner did not testify that Johnson disturbed any blanket on the couch, and Petitioner has not explained how any such alleged activity supported Petitioner's defense. Petitioner testified that, after Petitioner began shooting, Johnson supposedly reached for a “strange lump” on the couch which Petitioner allegedly guessed (but did not know) was a firearm (although Petitioner said he had seen no gun) (R.T. 1551, 1564-65). Petitioner said that, after Petitioner fired the last shot, Johnson was on the couch with his feet on the floor, facing the lump (R.T. 1566-67). Assuming the “lump” was the “bunched” blanket to which Petitioner now refers, counsel reasonably could have concluded that showing the jury photographs of the blanket on which, or near where, Johnson eventually came to rest, face down, bloody and full of bullet wounds including three in his back, would not have helped Petitioner's defense. Further, introduction of such evidence would not have created any reasonable probability of a different trial outcome.
Therefore, the California Supreme Court's rejection of this subclaim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03.
I. Allegedly Failing to Present Evidence that the Box Upon Which Petitioner Assertedly Was Sitting Immediately Prior to the Shooting Purportedly Had Been “Disrupted” (Claim Five(b))
Petitioner contends that trial counsel ineffectively failed to present evidence that the “drum box” was moved after the shooting (FAP, p. 20). According to Petitioner, such evidence would have shown that Petitioner “experienced some sort of altercation, e.g., a struggle with Johnson for possession of a firearm, causing disruption of the position of the drum box,” thus supposedly supporting Petitioner's defense of self-defense (id.).
The record does not support this subclaim. At trial, Petitioner's counsel elicited Petitioner's testimony that, during the alleged confrontation with Johnson while Johnson was on the couch, Petitioner sat down across from Johnson on a “speaker box,” also called a “drum box” (R.T. 1503, 1551-52, 1554). Petitioner said he sat on the box twice, and that, on the second occasion, he placed his gun on the coffee table (R.T. 1555-67). Shown a photograph of the living room taken before paramedics arrived, Petitioner testified that the box as depicted in the photograph was “pretty close” to where it was located when Petitioner sat on it, although he said that when he sat on the box it was “somewhere closer to the table” (R.T. 1552-53). On cross-examination, and after reviewing prosecution and defense photographs of the living room, Petitioner claimed that it appeared that various things had been moved, including the drum box (R.T. 1533, 1596). Thus, there was trial evidence that the drum box supposedly had been moved after the shooting.
Furthermore, Petitioner's counsel reasonably could have decided not to present more evidence concerning the alleged movement of the drum box. Petitioner did not testify that there was any “altercation” between Petitioner and Johnson that morning prior to the shooting. Petitioner testified that, during his interaction with Johnson that morning, neither Petitioner nor Johnson were raising their voices or yelling (R.T. 1534, 1544). Petitioner insisted: “There was no physical altercation” (R.T. 1752). Evidence suggesting a movement of the drum box had the potential to contradict Petitioner's testimony. In any event, Petitioner has not shown a reasonable probability that, but for counsel's alleged error in this regard, the result of the proceeding would have been different. See Harrington v. Richter, 562 U.S. at 112; Strickland v. Washington, 466 U.S. at 694.
Therefore, the California Supreme Court's rejection of this subclaim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on this subclaim.
V. Petitioner Is Not Entitled to Federal Habeas Relief on His Claim of Ineffective Assistance of Appellate Counsel.
In Claim Five(c), Petitioner alleges that his appellate counsel rendered ineffective assistance by assertedly failing to “preserve the claim and argument” set forth in Claim One. Petitioner raised this claim in his First California Supreme Court Habeas Petition. Because the California Supreme Court denied this petition summarily, this Court must “determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. at 101 (2011).
The Strickland standards govern claims of ineffective assistance of appellate counsel as well as claims of ineffective assistance of trial counsel. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001), cert. denied, 535 U.S. 995 (2002). Appellate counsel has no constitutional obligation to raise all non-frivolous issues on appeal. See Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997); see also Moormann v. Ryan, 628 F.3d 1102, 1109 (9th Cir. 2010), cert. denied, 565 U.S. 921 (2011) (appellate counsel is not required to raise a meritless issue on appeal). “A hallmark of effective appellate counsel is the ability to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court.” See Pollard v. White, 119 F.3d at 1435.
Here, for the reasons discussed above, appellate counsel reasonably could have determined that it would be fruitless to argue on appeal that the purported unreliability of Dr. Smith's report supposedly required the reversal of Petitioner's conviction. Appellate counsel cannot be deemed ineffective for failing to make a futile argument. See Gonzalez v. Knowles, 515 F.3d 1006, 1017 (9th Cir. 2018); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997); see also Moormann v. Ryan, 628 F.3d at 1109 (where petitioner failed to show trial counsel's alleged ineffectiveness prejudiced petitioner, appellate counsel's failure to argue trial counsel's alleged ineffectiveness “was neither deficient representation nor prejudicial”); Featherstone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991) (where trial counsel's performance did not fall below the Strickland standard, “petitioner was not prejudiced by appellate counsel's decision not to raise issues that had no merit”) (footnote omitted). The asserted failure to raise Claim One on appeal was neither unreasonable nor prejudicial.
Therefore, the California Supreme Court's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03.
VI. Petitioner Is Not Entitled to Federal Habeas Relief on His Claim of Alleged Judicial Misconduct (Claim Four).
In Claim Four, Petitioner references his arguments in Claims One and Three(a) and alleges that the trial judge committed misconduct by allowing testimony regarding Dr. Smith's purportedly unreliable autopsy report (FAP, p. 18). Petitioner raised this claim in his Second California Supreme Court Habeas Petition, which that court denied summarily (Second California Supreme Court Petition; “Motion to Amend, etc.,” Exhibit). Therefore,, this Court must “determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. at 101.
Judicial misconduct warrants federal habeas relief only where “the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution.” Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995), cert. denied, 517 U.S. 1158 (1996) (citations omitted); Cummings v. Asuncion, 2019 WL 6312867, at *18 (C.D. Cal. Sept. 4, 2019), adopted, 2019 WL 6310262 (C.D. Cal. Nov. 21, 2019). “In the absence of any evidence of some extrajudicial source of bias or partiality, . . . neither adverse rulings nor impatient remarks are generally sufficient to overcome the presumption of judicial integrity. . . .” Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (citations omitted); see Liteky v. United States, 510 U.S. 540, 555 (1994) (“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion”) (citation omitted). “[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. at 555.
Here, Petitioner alleges only that the court purportedly committed evidentiary error; Petitioner alleges no facts supporting any viable claim of judicial bias. Thus, Petitioner has failed to overcome the presumption of judicial integrity. See Larson v. Palmateer, 515 F.3d at 1067.
To the extent Petitioner asserts that the court violated the constitution by failing sua sponte to exclude Dr. Nguyen's testimony concerning Dr. Smith's report, any such claim fails under the AEDPA standard of review. The United States Supreme Court “has not yet made a clear ruling that admission of irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Thus, in the absence of such “clearly established Federal law as determined by the United States Supreme Court,” the AEDPA standard of review dooms Petitioner's challenge to the admission of the experts' testimony involving Dr. Smith's report. See Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given the lack of holdings from this Court [on the issue presented], it cannot be said that the state court “unreasonabl[y] applied clearly established Federal law.”); Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had articulated no “controlling legal standard” on the issue).
For the foregoing reasons, the California Supreme Court's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on Claim Four of the First Amended Petition.
VII. Petitioner's Claims of Alleged Instructional Error Do Not Warrant Federal Habeas Relief (Claims Six, Seven, Eight and Nine).
In Claims Six through Nine, Petitioner raises various claims of alleged instructional error concerning the self-defense instructions. The California Court of Appeal rejected these claims on direct appeal (Respondent's Lodgment 2; see People v. Allen, 2019 WL 1873209 (Cal.App. April 26, 2019), and the California Supreme Court later denied Petitioner's petition for review summarily (Respondent's Lodgment 4). Therefore, the Court applies the AEDPA standard of review to the decision of the California Court of Appeal concerning Petitioner's claims of alleged instructional error. See Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018).
As discussed above, Claims Six, Seven and Eight are procedurally defaulted.
A. Standards Governing Claims of Alleged Instructional Error
“[I]nstructions that contain errors of state law may not form the basis for federal habeas relief.” Gilmore v. Taylor, 508 U.S. 333, 342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (“the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief”); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error “does not alone raise a ground cognizable in a federal habeas corpus proceeding”). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). An instruction can violate due process only if the instruction renders a trial fundamentally unfair. Karis v. Calderon, 283 F.3d 1117, 1132 (9th Cir. 2002), cert. denied, 539 U.S. 958 (2003). “The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977). On federal habeas review, the issue is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even universally condemned.” Id. (citation and quotations omitted); see also Jurado v. Davis, 12 F.4th 1084, 1099 (9th Cir. 2021), cert. denied, 142 S.Ct. 2653 (2022). “An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. at 155.
B. California Law of Self-Defense
In California, self-defense can be a complete defense to a murder charge, rendering the killing a justifiable homicide. People v. Randle, 35 Cal.4th 987, 996, 28 Cal.Rptr.3d 725, 111 P.3d 897 (2005), overruled on other grounds, People v. Chun, 45 Cal.4th 1172, 91 Cal.Rptr.3d 106, 203 P.3d 425 (2009); People v. Humphrey, 13 Cal.4th 1073, 1082, 56 Cal.Rptr.2d 142, 921 P.2d 1 (1996). For perfect self-defense, the perpetrator must actually and reasonably believe in the necessity of defending the perpetrator or others from “imminent danger of death or great bodily injury.” People v. Randle, 35 Cal.4th at 994. “[T]he defendant's belief must both subjectively exist and be objectively reasonable.” People v. Brady, 22 Cal.App. 5th 1008, 1014, 232 Cal.Rptr.3d 220 (2018) (citation omitted). Additionally, “the threat of bodily injury must be imminent” and the force used in response reasonable under the circumstances.” Id. (citation, quotations and brackets omitted).
Under the doctrine of imperfect self-defense, one who actually but unreasonably believes he or she must defend himself or herself from imminent danger or great bodily injury is guilty of manslaughter. People v. Randle, 35 Cal.4th at 994-95. Imperfect self-defense or defense of others negates the element of malice, thereby mitigating rather than justifying the homicide. Id. at 995; see People v. Manriquez, 37 Cal.4th 547, 581, 36 Cal.Rptr.3d 340, 123 P.3d 614 (2005), cert. denied, 547 U.S. 1179 (2006) (“imperfect self-defense is not an affirmative defense, but a description of one type of voluntary manslaughter”) (citation omitted).
For either perfect or imperfect self-defense, the fear must be of imminent harm. See People v. Humphrey, 13 Cal.4th at 1082. “Fear of future harm - no matter how great the fear and no matter how great the likelihood of the harm - will not suffice.” Id. “[T]he criminal law will not even partially excuse a potential victim's slaying of his attacker unless more than merely threats and history of past assaults is involved.” People v. Battle, 198 Cal.App.4th 50, 73, 129 Cal.Rptr.3d 828 (2011) (citation and internal quotations omitted).
C. Analysis
1. Claims Six and Seven
The trial court instructed the jury using CALCRIM 505, as follows:
The defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if:
1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury;
2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger;
and
3. The defendant used no more force than was reasonably necessary to defend against that danger.
Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief
must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified.
When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.
The defendant's belief that he was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.
If you find that Stefan Johnson threatened or harmed the defendant in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.
If you find that the defendant knew that Stefan Johnson had threatened or harmed others in the past, you may consider that information in deciding whether the
defendant's conduct and beliefs were reasonable.(R.T. 2061-62; Supplemental C.T. 29).
In Claim Six, Petitioner contends that the trial court erred by instructing the jury that self-defense did not apply unless Petitioner acted “only” out of fear of imminent danger, instead of telling the jury that self-defense supposedly would apply if Petitioner's alleged fear was a “but for” cause or a “substantial factor” causing the killing. The California Court of Appeal rejected this claim, ruling, inter alia, that the trial court's instructions were correct as a matter of California law (Respondent's Lodgment 2, pp. 16-17; see People v. Allen, 2019 WL 513574, at *7-8 (Cal.App. Feb. 11, 2019)). See People v. Trevino, 200 Cal.App.3d 874, 879, 246 Cal.Rptr. 357 (1988) (“an instruction which states that the party killing must act under the influence of such fears alone, is a correct statement of the law”) (citations omitted); see also People v. Nguyen, 61 Cal.4th 1015, 1045, 191 Cal.Rptr.3d 182, 354 P.3d 90 (2015), cert. denied, 578 U.S. 947 (2016) (applying People v. Trevino; “it was for the jury to decide whether defendant acted out of fear alone when he shot and killed [the victim]”); People v. Flannel, 25 Cal.3d 668, 674-675, 160 Cal.Rptr. 84, 603 P.2d 1 (1979) (“A bare fear is not enough; the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.”) (citation and quotations omitted).
In Claim Seven, Petitioner contends the trial court allegedly violated the constitution by instructing the jury that the defense of self-defense was unavailable if the force Petitioner used was excessive, thus assertedly permitting the jury to reject the defense even if Petitioner “actually harbored a fear of imminent harm, if petitioner's response was disproportionate to the threat posed” (FAP, p. 24). In rejecting this claim, the Court of Appeal observed that Petitioner was “mistaken, because ‘any right of self-defense is limited to the use of such force as is reasonable under the circumstances'” (Respondent's Lodgment 2, p. 18; see People v. Allen, 2019 WL 513574, at *8) (citations omitted). The Court of Appeal's decision was a correct statement of California law. See People v. Pinholster, 1 Cal.4th 865, 966, 4 Cal.Rptr.2d 765, 824 P.2d 571 (1992), cert. denied, 506 U.S. 921 (1992), disapproved on other grounds, People v. Williams, 49 Cal.4th 405, 111 Cal.Rptr.3d 589, 233 P.3d 1000 (2010), cert. denied, 562 U.S. 1273 (2011) (“any right of self-defense is limited to the use of such force as is reasonable under the circumstances”) (citation omitted); People v. Hardin, 85 Cal.App.4th 625, 629, 102 Cal.Rptr.2d 262 (2000) (“only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified”) (citation and quotations omitted).
Petitioner is not entitled to federal habeas relief on Claims Six or Seven. The Court of Appeal ruled the challenged instructions to be correct as a matter of California law. On federal habeas review, this Court cannot review the propriety of the Court of Appeal's construction of state law. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (“we have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”) (citation and internal quotations omitted); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (federal habeas court erred in failing to defer to state supreme court's authoritative holding that transferred intent doctrine applied to aggravated felony murder as a matter of state law; “[w]e have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”) (citations omitted); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“state courts are the ultimate expositors of state law”); Hubbart v. Knapp, 379 F.3d 773, 780 (9th Cir. 2004), cert. denied, 543 U.S. 1071 (2005) (“We may not second-guess the California appellate court's construction of its own state law. . . .”).
In the Traverse, Petitioner appears to suggest that the law of self-defense is itself federal constitutional law, citing McDonald v. Chicago, 561 U.S. 742 (2010) (Second Amendment applies to the states) (“McDonald”). Petitioner's suggestion is misguided. McDonald does not federalize the law of self-defense or clearly establish that any state's self-defense law violates the federal constitution. See, e.g., Mitchell v. Brown, 2022 WL 3593280, at *11 (W.D. Mich. Aug. 23, 2022) (“The Supreme Court has never held that the Second Amendment . . . creates a broader standard for self-defense [than] provided by state law”); Shine-Johnson v. Warden, 2021 WL 1172229, at *3 (S.D. Ohio March 29, 2021), adopted, 2021 WL 2800708 (S.D. Ohio July 6, 2021) (“Neither [McDonald nor District of Columbia v. Heller, 554 U.S. 570) (2008)] purported to elevate the defense of self-defense in a murder case to a constitutionally mandated defense which [a] State must recognize, much less to define what that defense must be”).
Accordingly, Petitioner has failed to prove any instructional error, much less an instructional error of constitutional dimension. See Spivey v. Rocha, 194 F.3d 971, 976-77 (9th Cir. 1999), cert. denied, 531 U.S. 995 (2000) (rejecting constitutional challenge to aiding and abetting jury instruction which was correct as a matter of state law); King v. Cate, 2011 WL 2728127, at *2 (N.D. Cal. July 12, 2011) (rejecting claim that use of CALJIC 505 violated due process by limiting the application of self-defense to reasonable uses of force, where Court of Appeal had ruled that the challenged instruction correctly stated California law); see also Johnson v. Sutton, 2022 WL 2134956, at *9 (E.D. Cal. June 14, 2022), adopted, 2022 WL 3579871 (E.D. Cal. Aug. 19, 2022) (“Where there is no instructional error under the governing state criminal law, there can be no due process violation.”) (citation omitted). Accordingly, Petitioner is not entitled to federal habeas relief on Claims Six or Seven.
2. Claim Eight
The trial court instructed the jury on imperfect self-defense using CALCRIM No. 571, as follows:
The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. The defendant acted in imperfect self-defense if, one, the defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; and two, the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; but three, at least one of those beliefs was unreasonable. Belief in future harm isn't sufficient no matter how great or how likely the harm is believed to be.
In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant.(R.T. 2064-65; Supp. C.T. 32-33).
Petitioner contends the court sua sponte should have added that, if Petitioner harbored a good faith but unreasonable belief that the force he employed was not excessive, the crime was manslaughter, rather than murder (FAP, pp. 24-25). The Court of Appeal rejected this claim, holding that the instructions as a whole “adequately covered the topic of excessive force” and that, in any event, the proposed addition was unsupported by the evidence (Respondent's Lodgment 2, pp., 18-19; see People v. Allen, 2019 WL 513574, at *8-9).
This claim fails for several reasons. First, the Court of Appeal ruled that, as a matter of state law, the instructions given were adequate to cover the topic of excessive force. As indicated above, this Court cannot review the propriety of the Court of Appeal's construction of state law. See Waddington v. Sarausad, 555 U.S. at 192 n.5; Bradshaw v. Richey, 546 U.S. at 76; Mullaney v. Wilbur, 421 U.S. at 691; Hubbart v. Knapp, 379 F.3d at 780. Because the Court of Appeal held that the challenged instruction was correct as a matter of state law, Petitioner has failed to prove any instructional error, much less an instructional error of constitutional dimension. See Spivey v. Rocha, 194 F.3d at 976-77; Johnson v. Sutton, 2022 WL 2134956, at *9; King v. Cate, 2011 WL 2728127, at *2.
In any event, even assuming arguendo that the court's allegedly inadequate imperfect self-defense instruction raises a federal law issue Petitioner still would not be entitled to federal habeas relief. “Under the law of this circuit, the failure of a state trial court to instruct on lesser included offenses in a non-capital case does not present a federal constitutional question.” Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) (citation omitted); see also Bortis v. Swarthout, 672 Fed. App'x 754 (9th Cir. 2017) (“Failure to instruct on imperfect self-defense was not of constitutional magnitude.”) (citation omitted); Alcantara v. Rackley, 554 Fed. App'x 674, 675 (9th Cir.), cert. denied, 574 U.S. 893 (2014) (“our precedent is clear: ‘Failure of a state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding.'”) (citation omitted); United States v. Rivera-Alonzo, 584 F.3d 829, 834 n.3 (9th Cir. 2009) (“In the context of a habeas corpus review of a state court conviction, we have stated that there is no clearly established federal constitutional right to lesser included instructions in non-capital cases.”) (dictum; citation omitted); Duong v. Sherman, 2022 WL 2905060, at *8 (C.D. Cal. July 22, 2022).
Any ruling by this Court to the contrary would violate the retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989). See Turner v. Marshall, 63 F.3d 807, 818 (9th Cir. 1995), overruled on other grounds, Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999); Ruiz v. T. Cisneros, 2022 WL 229355, at *11 (E.D. Cal. Jan. 26, 2022), adopted, 2022 WL 4134046 (E.D. Cal. Sept. 12, 2022); see Madero v. Lewis, 2015 WL 5120771, at *13 (C.D. Cal. July 29, 2015), adopted, 2015 WL 5104629 (C.D. Cal. Aug. 31, 2015) (“a ruling that the trial court's failure to instruct the jury regarding imperfect self-defense violated Petitioner's constitutional rights would constitute a new rule under Teague”) (citations omitted).
Furthermore, there is no “clearly established” Supreme Court decisional law on the subject. See Beck v. Alabama, 447 U.S. 625, 638 n.14 (1980) (expressly reserving the issue of the availability of habeas relief for failure to give a lesser included offense instruction in a noncapital case); Turner v. Marshall, 63 F.3d at 818-19 (“There is no settled rule of law on whether Beck applies to noncapital cases. . .”); see also Bortis v. Swarthout, 672 Fed. App'x at 754 (“There is no Supreme Court precedent establishing that a state trial court is required to instruct on lesser included offenses in noncapital cases.”).
The Ninth Circuit has stated that “a criminal defendant is entitled to adequate instructions on the defense theory of the case.” Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 1999) (citations omitted); see Bradley v. Duncan, 315 F.3d 1091, 1098 (9th Cir. 2002), cert. denied, 540 U.S. 963 (2003) (citing Conde v. Henry). Even assuming arguendo that this principle is based on clearly established Supreme Court law, this principle is inapplicable here, because the California Court of Appeal held that the trial court's imperfect self-defense instructions were adequate under state law to cover Petitioner's excessive force argument. This Court cannot review the correctness of the state court's interpretation of state law. See Waddington v. Sarausad, 555 U.S. at 192 n.5; Bradshaw v. Richey, 546 U.S. at 76; Mullaney v. Wilbur, 421 U.S. at 691; Hubbart v. Knapp, 379 F.3d at 780.
But see Gilmore v. Taylor, 508 U.S. 333, 343-44 (1993) (the right to present a “complete defense” under federal law does not extend to restrictions on a defendant's ability to present a defense, but only the “exclusion of evidence” and the “testimony of defense witnesses”).
For all of the foregoing reasons, Petitioner is not entitled to federal habeas relief on Claim Eight.
3. Claim Nine
The trial court instructed the jury using CALCRIM 3472, which states that “[a] person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force” (R.T. 2065; Supp. C.T. 34). Petitioner contends the instruction was erroneous because it supposedly allowed the jury to conclude that any provocation initiated by Petitioner would defeat a defense of self-defense “even if such ‘provocation' was not intended to provoke a violent response from the victim” (FAP, p. 26). According to Petitioner, under the challenged instruction, if Petitioner “initiated a rational discussion with the victim, but the victim escalated the encounter and responded with force placing [Petitioner] in fear of imminent harm, and [Petitioner] killed the victim in response, the defense of self-defense would not be available” (id.). Petitioner posits that the jury could have found that self-defense did not apply even if Petitioner had initiated nonconfrontational, nonviolent contact with Johnson (id., p. 27). The Court of Appeal rejected this claim, stating that CALCRIM 3472 was a correct statement of California law (Respondent's Lodgment 2, p. 20; see People v. Allen, 2019 WL 513574, at *9). The Court of Appeal added that the instruction “[a]t most . . . might require modification in the rare case in which a defendant intended to provoke only a nondeadly confrontation and the victim responds with deadly force,” but concluded that “[n]o such modification of the instruction was needed here” (Respondent's Lodgment 2, p. 20; see People v. Allen, 2019 WL 513574, at *9).
Petitioner evidently so posits even though the challenged instruction includes the language, “with the intent to create an excuse to use force.” Apparently, Petitioner is arguing the counterintuitive possibility of “provoking” “rational discussion” with the specific intent to create an excuse for violence.
As previously indicated, on federal habeas review, this Court cannot review the propriety of the Court of Appeal's construction of state law. See Waddington v. Sarausad, 555 U.S. at 192 n.5; Bradshaw v. Richey, 546 U.S. at 76. Accordingly, because the Court of Appeal held that the challenged instruction was correct as a matter of state law, Petitioner has failed to show any instructional error, much less any instructional error of constitutional dimension. See Spivey v. Rocha, 194 F.3d at 976-77; Johnson v. Sutton, 2022 WL 2134956, at *9; King v. Cate, 2011 WL 2728127, at *2.
In any event, Petitioner has not shown that the instruction rendered Petitioner's trial fundamentally unfair. Petitioner himself testified that he placed a loaded gun on the coffee table between Petitioner and Johnson, hardly a nonconfrontational, nonviolent act. Even assuming arguendo the truth of Petitioner's testimony that Johnson attempted to take hold of the gun, that attempt was unsuccessful. Yet, Petitioner then fired 10 gunshots from a .45 caliber weapon into an unarmed man, including three shots to the back. Under such circumstances, the use of CALJIC 3472 did not violate the constitution, and the failure to augment the instruction as suggested did not have a substantial and injurious effect or influence on the outcome of the trial. Accordingly, Petitioner is not entitled to federal habeas relief on Claim Nine.
VIII. Petitioner's Claim Relating to the Exclusion of Certain Evidence (Claim Ten)
Prior to trial, the prosecutor sought an order pursuant to California Evidence Code section 352 excluding evidence of Johnson's criminal history (including alleged drug-related convictions), alleged prior incarceration and alleged “bad character” (C.T. 294-96). The defense filed an opposition, arguing that Johnson's alleged drug-related convictions and gang membership were relevant to the self-defense issue (C.T. 310-12). At a pretrial hearing, the court observed that the issue was “the defendant's perspective when you are analyzing self-defense. . . .” (R.T. 65). The court ruled that evidence of Johnson's prior incarceration or parole status was too speculative, but deferred ruling on the admissibility of other bad character evidence (R.T. 77-78, 148-49).
Section 352 confers on a trial court the discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Later, the court allowed evidence that Johnson allegedly was a gang member and had been “recently violent,” to the extent Petitioner assertedly was shown to have been aware of this information (R.T. 1203-04). The court also permitted Petitioner to testify that Johnson had told Petitioner that Johnson was a gang member and that Johnson had described two prior gang-related incidents (R.T. 1199-1204). However, the court excluded evidence of Johnson's prior incarceration and drug dealing, absent a showing of relevance (R.T. 148-49, 1794-95, 1924). The court also denied a defense request to permit the testimony of Shanisha Colvin, who reportedly would have testified that, in 1998, Johnson was a gang member who had been in and out of jail, had a gun, hit Colvin and turned her home into “a drug den” (R.T. 1205-07). The court excluded the proposed testimony by Colvin as “remote in time” (R.T. 1207).
Petitioner argues that the trial court allegedly violated the constitution by precluding the defense from introducing evidence that: (1) Johnson assertedly had been in prison numerous times; and (2) Johnson allegedly was a drug dealer who supposedly had turned the house into a “drug den” (FAP, pp. 28-30). The Court of Appeal rejected this claim, ruling, inter alia, that: (1) under state law, drug convictions did not show a propensity for violence; (2) any conclusion that Johnson's alleged prior incarceration showed a propensity for violence was speculative; and (3) Colvin's proposed testimony was too remote in time and unconnected to any evidence that Petitioner was aware of the alleged events recounted by Colvin (Respondent's Lodgment 2, pp. 22-23; see People v. Allen, 2019 WL 513574, at *10). The Court of Appeal also ruled any error harmless (Respondent's Lodgment 2, p. 23; see People v. Allen, 2019 WL 513574, at *10).
Petitioner is not entitled to federal habeas relief on this claim. There exists no clearly established Supreme Court law holding that the exclusion of “bad character” evidence of a witness to support a defense of self-defense violates the constitution. Indeed, the United States Supreme Court has not decided whether the exclusion of “evidence of specific instances of a witness' conduct to impeach the witness' credibility” violates the constitution. See Nevada v. Jackson, 569 U.S. 505, 133 S.Ct. 1990, 1993-94 (2013) (recognizing absence of Supreme Court decision on the issue; observing that such evidence may “confuse the jury . . . and unfairly prolong the trial”). The Supreme Court also has not decided whether or when an evidentiary rule requiring a trial court to “balance factors and exercise its discretion” violates a defendant's due process right to present a defense. See Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009); see also Robertson v. Pichon, 849 F.3d 1173, 1189 (9th Cir. 2017), cert. denied, 2017 WL 3395721 (U.S. Oct. 2, 2017) (“We have previously held that a trial court's exercise of discretion to exclude evidence under a rule of evidence that requires balancing probative value against prejudice could not be an unreasonable application of clearly established Supreme Court precedent, because the Court has never addressed the question whether such a rule could violate a defendant's constitutional rights. See Moses v. Payne, 555 F.3d at 758-59. No Supreme Court decision has established such a rule since we reached this conclusion in Moses.”). In the absence of such “clearly established Federal law as determined by the United States Supreme Court,” Petitioner cannot obtain federal habeas relief on this claim. See Carey v. Musladin, 549 U.S. 70, 77 (2006); Moses v. Payne, 555 F.3d at 758-59.
Similarly, to the extent Petitioner alleges that the exclusion of the evidence of Johnson's prior incarceration and drug dealing violated Petitioner's constitutional right to present a defense, Petitioner has shown no entitlement to federal habeas relief. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.'” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)) (citations omitted); see also Moses v. Payne, 555 F.3d at 757 (citations omitted).
However, a defendant is not denied “a fair opportunity to defend himself whenever a state . . . rule excludes favorable evidence.” United States v. Sheffer, 523 U.S. 303, 316 (1998). “While the Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 U.S. 319, 320 (2006) (citations omitted); see also Moses v. Payne, 555 F.3d at 758. Thus, “the Constitution permits judges to exclude evidence that is repetitive . . ., only marginally relevant or poses an undue risk of harassment, prejudice or confusion of the issues.” Holmes v. South Carolina, 547 U.S. at 326-27 (citations, internal brackets and quotations omitted).
Here, the evidence in question was, at best, “only marginally relevant,” in light of the non-violent nature of the criminal convictions and the remoteness in time of the incidents. Therefore, the California Supreme Court's rejection of this subclaim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03.
Furthermore, any error was harmless under the Brecht standard. Other, more probative evidence suggested Johnson may have possessed a violent nature. An Oxnard police officer testified that, on August 19, 2009, after a contact with Johnson, the officer had filled out a “field identification card” identifying Johnson as a member of the “Westside Gangster Crips” gang (R.T. 1932-33, 1939). A Ventura County police detective testified that, following a contact with Johnson on February 10, 2010, the detective concluded that Johnson was an active member of the Westside Gangster Crips and that Johnson's gang moniker was “S-Loc” (R.T. 1950-52).
In closing, Petitioner's counsel repeatedly referred to Johnson as “S-Loc” (e.g., R.T. 2107, 2109, 2113-14, 2116-17, 2124, 2133, 2136-38).
Petitioner testified that Johnson previously had attacked and/or tried to hit Petitioner on three prior occasions (R.T. 1468-75). Petitioner testified that, during the period between March and June of 2013, Johnson committed more “sneak attacks” on Petitioner, including an incident in which Johnson allegedly grabbed a knife and put it to Petitioner's torso (R.T. 1472-74).
Petitioner testified that, during the period between March and June of 2013, Petitioner accompanied Johnson to an encounter with “one of his gang bang buddies” (R.T. 1475, 1653). Petitioner said Johnson had a sock containing rocks in his back pocket at the time (R.T. 1475-76, 1653). Petitioner testified that, during the same time period, Petitioner was in a car with Johnson when Johnson assertedly saw someone in another car whom Johnson said had “robbed his homie Tilo” and “stole a kilo from Tilo” (R.T. 1476-77). Petitioner said that Johnson wanted to get a gun and rob the man, but wanted to make sure that it “wasn't going to cause an issue because that guy was in a different gang” (R.T. 1476-77). Petitioner allegedly knew that Johnson had been a member of the Westside Gangster Crips since the ‘90s and might have obtained a gun from one of his “Westside Gangster Crips buddies” (R.T. 1477, 1590). In the ‘90s, Petitioner allegedly saw Johnson “rough up a smoker” (R.T. 1480). Petitioner allegedly did not know if the incident arose from a drug debt, but agreed that “drugs were mentioned” (R.T. 1481).
Despite this evidence suggesting Johnson may have had violent propensities, the jury rejected Petitioner's self-defense theory and found Petitioner guilty. The exclusion of other, less probative and more remote evidence concerning Johnson's alleged propensities did not have any “substantial and injurious effect or influence in determining the jury's verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). Accordingly, Petitioner is not entitled to federal habeas relief on Claim Ten.
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that judgment be entered denying and dismissing the Petition with prejudice.
Petitioner's request for an evidentiary hearing is denied. Federal habeas relief is unavailable regardless of the nature of any additional evidence Petitioner might present for the first time in federal court. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert. denied, 573 U.S. 919 (2014) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as section 2254(d)(1) claims). In any event, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to any of Petitioner's claims.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.