Opinion
CV 21-3021-CAS (E)
02-11-2022
JEFFERY FLOYD BEADLE, Petitioner, v. KATHLEEN ALLISON, Warden, Respondent.
REPORT AND RECOMMENDATION
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Christina A. Snyder, 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 April 5, 2021, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody." On October 5, 2021, Respondent filed an Answer. On December 20, 2021, Petitioner filed a "Denial and Exception to the Return, etc." and various exhibits, collectively comprising Petitioner's Reply.
BACKGROUND
A jury found Petitioner guilty of: (1) one count of unlawful sexual intercourse with Asriah T., a non-spouse minor, within the meaning of California Penal Code section 261.5(c), with infliction of great bodily injury within the meaning of California Penal Code section 12022.7(a) (Count One); (2) one count of human trafficking of a minor, Asriah T., for a commercial sex act in violation of California Penal Code section 236.1(c) (Count Two); (3) one count of pimping a minor sixteen years of age or older in violation of California Penal Code section 266h(b)(1) (Count Three); (4) one count of pandering by encouraging Asriah T., a minor over the age of sixteen, to be a prostitute in violation of California Penal Code section 266i(b)(1) (Count Four); and (5) seven counts of dissuading a witness, Asriah T., from testifying in violation of California Penal Code section 136.1(a)(1) (Counts Five through Eleven) (Reporter's Transcript ["R.T."] 564-70; Clerk's Transcript ["C.T."] 235-51). Petitioner admitted that he had suffered a prior felony conviction alleged as a strike within the meaning of California's Three Strikes Law (R.T. 410; C.T. 170, 177). The court sentenced Petitioner to a total term of forty-seven years and four months (R.T. 582-85; C.T. 262-69) .
A person who "causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section . . . 266h [pimping] [or] 266i [pandering], is guilty of human trafficking." Cal. Penal Code § 236.1(c).
"Any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, . . . when the prostitute is a minor, is guilty of pimping a minor. ..." Cal. Penal Code § 266h(b).
A person is guilty of pandering of a minor if that person: "Procures another person [a minor] for the purpose of prostitution"; or (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person [a minor] to become a prostitute. ..." Cal. Penal Code § 266i(a), (b).
The Three Strikes Law consists of two nearly identical statutory schemes. The earlier provision, enacted by the Legislature, was passed as an urgency measure, and is codified as California Penal Code §§ 667(b) (i) (eff. Mar. 7, 1994). The later provision, an initiative statute, is embodied in California Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People v. Superior Court (Romero), 13 Cal.4th 497, 504-05, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996). The Sixth Amended Information charged Petitioner under both versions (C.T. 177; see R.T. 418 (amending Fifth Amended Information by interlineation to constitute the Sixth Amended Information).
Petitioner appealed, alleging that: (1) the evidence assertedly was insufficient to support Petitioner's convictions on the dissuading counts; (2) the trial court committed instructional error with respect to the dissuading counts; (3) the sentences on four of the dissuading counts allegedly were erroneous; and (4) remand allegedly was required for resentencing under Senate Bill 1393 (see Respondent's Lodgments 4, 6). The California Court of Appeal affirmed (Respondent's Lodgment 7; see People v. Beadle, 2019 WL 6206371 (Cal.App. Nov. 21, 2019)). On February 19, 2020, the California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgments 8, 9).
Senate Bill 1393, effective January 1, 2019, amended California Penal Code sections 667(a) and 1385(b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. See People v. Garcia, 28 Cal.App. 5th 961, 971, 239 Cal.Rptr.3d 558 (2018) (citation omitted).
In the interim, on January 16, 2020, Petitioner filed a habeas corpus petition in the California Court of Appeal (case number B303678), contending that Petitioner had not received a "non-violent parole eligibility date" under Proposition 57, Cal. Const, art. I, section 32(a)(1) (Respondent's Lodgment 10). On January 21, 2020, the Court of Appeal denied the petition without prejudice (Respondent's Lodgment 11).
On May 13, 2020, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, alleging the claims asserted in the present federal Petition (Respondent's Lodgment 12). On June 23, 2020, the Superior Court denied the petition, holding that: (1) Petitioner had failed to allege facts establishing a prima facie claim for relief; (2) the petition argued claims which had been raised and rejected on appeal; (3) with respect to the claims of alleged ineffective assistance of trial counsel, Petitioner had failed to show a reasonable probability that a more favorable outcome would have resulted but for counsel's alleged ineffectiveness; and (4) with respect to the alleged ineffective assistance of appellate counsel, Petitioner had failed to show counsel's alleged ineffectiveness or any resulting prejudice (Respondent's Lodgment 13).
On May 27, 2020, Petitioner filed a second habeas corpus petition in the California Court of Appeal (case number B306117), raising a parole eligibility claim (Respondent's Lodgments 14). On June 1, 2020, the Court of Appeal summarily denied the petition (Respondent's Lodgment 15). On August 26, 2020, Petitioner filed a third habeas corpus petition in the Court of Appeal (case number B307211), raising the claims asserted in the present federal Petition, which that court denied summarily on September 4, 2020 (Respondent's Lodgment 16; Petition, p. 4).
Respondent's exhibit purporting to be the Court of Appeal's denial order in case number B307211 is actually a copy of that court's order in case number B306117 (see Respondent's Lodgment 17). However, the Petition identifies the date of the Court of Appeal's decision in case number B307211 as September 4, 2020.
On October 9, 2020, Petitioner filed a habeas corpus petition in the California Supreme Court (case number S264959), alleging the claims asserted in the present federal Petition (Respondent's Lodgment 18). On March 10, 2021, the California Supreme Court denied the petition summarily (Respondent's Lodgment 19).
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. Beadle, 2019 WL 6206371 (Cal.App. Nov. 21, 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.l (9th Cir. 2009) (taking factual summary from state court decision).
Counts 1-4
[Petitioner] met A.T. ¶ 2014, shortly before she turned 16 years old. A few months later, they began living together in a motor home. [Petitioner] initially thought A.T. was 18, but when he discovered her true age he "didn't care."
A.T. told [Petitioner] she had previously been a prostitute. [Petitioner] asked her to start working as a prostitute again and she agreed so they "could have money." [Petitioner] decided when she worked and how many "dates" or "tricks" she saw. A.T. considered [Petitioner] to be both her boyfriend and her pimp and eventually had two children with him.
On October 21, 2015, A.T. arranged to meet a "date" at a shopping center. Unbeknownst to her, the "date" was an undercover police officer. When she was arrested she provided a false name to the police, said she was 18 or 19 years old, and claimed that [Petitioner] was her uncle. When she was interviewed at the police station, she admitted that she and [Petitioner] had been living together for approximately eight months, that she told him she was only 16, and that he had asked her to start working as a prostitute again. She also said [Petitioner] solicited for her by posting online advertisements without her knowledge and then told her they needed money for food.
Dissuading a Victim or Witness from Testifying
(Counts 5-7)
[Petitioner] was arrested and charged with human trafficking and pimping and pandering, but he was later released and the charges were dismissed because A.T.'s whereabouts were unknown until July 2016. In November 2016, the police found [Petitioner] in New Mexico and arrested him again.
Count 8: On January 27, 2017, [Petitioner] called A.T. from jail and told her that the police were "wolves" and she was "the little precious lamb," that the police knew where she was living and were "eventually going to get her," and that she should "move out of that location."
Count 5: On February 16, [Petitioner] called A.T., and [Petitioner reprimanded A.T. for speaking to the police and said, "I already tried to make myself clear . . . that . . . the lamb needed to get the fuck gone because . . . all they need is her to be in that courtroom and they're going to do everything they fucking can to catch her." [Petitioner] also told A.T., "[Y]ou're fucking stupid as a motherfucker" and ended the call by telling her, "Live your life, bitch."
Count 9: Approximately two hours later, [Petitioner] called A.T. again and said, "If you loved me, you would listen to what the fuck I told you from the get-go. . . ." A.T. told [Petitioner] she would not be going to court and was "not even going to be around here." [Petitioner] replied, "I don't know, but you better do something." [Petitioner] ended the call by telling A.T., "You better be glad I ain't there. I'd choke the shit out of you and slap the shit out of you and fuck the dog shit out [of] you right now, you know it?"
Count 6: On February 20, [Petitioner] called A.T. to discuss her anticipated appearance in court the following day for the preliminary hearing, which the defense was seeking to continue. [Petitioner] told A.T. to tell the judge "I want to speak to you" and "let him know" that law enforcement "told you that . . . you'll get set free and go home to your grandma and all that shit if you lie and tell them . . . what they wanted you to say." [Petitioner] also
said, "[Y]ou want to make sure that you get . . . your point across to . . . the judge and the judge only. You know what I'm saying?"
Count 7: On February 21, [Petitioner's] motion to continue the preliminary hearing was granted. Later that day, [Petitioner] called A.T. and said, "When in the fuck are you going to listen to what I tell you? I sat there and told you exactly everything that was going to take place in the courtroom. And everything that I told you was going to happen in the courtroom, it fuckin' happened and you ignored everything I fuckin' told you. What the fuck is wrong with you?" [Petitioner] also told A.T., "The DA . . . made it out like everything's gonna be all good. Oh we got her now, she's right in the courtroom. She'll be here on preliminary hearing. . . . And you're just going along with it, allowing them to . . . think that everything's fuckin' good when everything ain't fucking good. . . . Thanks a fuckin' lot, dude." [Petitioner] ended the call by saying, "[T]hanks a fuckin' lot. Fuckin' piece of shit. Fuck you bitch."
Count 10: Later that same day, [Petitioner] called A.T. again and told her to "call and talk to an attorney ... to get you dismissed off the case." [Petitioner] also told A.T. "[y]ou need to get us married" because "if we're married they can't use your testimony against me."
Count 11: In March, [Petitioner] called A.T. and told her, “[I]t would have been a hell of a lot easier if you just never would have showed up to court, but it is what it is. It's already a done deal now, so now we just got to deal with it. Just until you get that marriage license. Once you get that marriage license, everything [is] going to be good."(Respondent's Lodgment 7, pp. 2-5; see People v. Beadle, 2019 WL 6206371, at *1-3).
[The Court of Appeal referred to Asriah by her initials.]
The Petition incorporates the arguments contained in Petitioner's California Supreme Court habeas petition, attached to the federal Petition as Exhibit B. Although Petitioner's claims contain headings, several claims contain sub-claims appearing to be unrelated to the headings. The Court has reorganized Petitioner's claims in the interests of clarity.
Petitioner appears to contend:
1. The trial judge improperly involved herself in plea negotiations (Petition, p. 5; Ex. B, pp. 15, 17);
2. The trial judge showed bias by assertedly: (1) manipulating the attorneys to agree to allow an "Evidential Hearing" to be conducted off the record; (2) asking the prosecutor to give the judge all of the evidence the prosecutor had; and (3) helping the prosecutor prepare the prosecution case "by telling [the prosecutor] what she needed to use and not use" (Petition, Ex. B, p. 18);
3. The prosecution's use of Asriah's allegedly perjured testimony assertedly violated the constitution (Petition, p. 5; Ex. B, pp. 16, 20-24);
4. The admission of Asriah's allegedly coerced statements to police assertedly violated the constitution (Petition, Ex. B, pp. 16, 20-22);
5. The admission of purported hearsay testimony concerning alleged statements of the "decoy" police officer supposedly violated due process and the Confrontation Clause (Pet., p. 6; Ex. B, pp. 16, 24-25);
The October 21, 2015 incident involved the use of an undercover officer, termed by Petitioner the "decoy" officer.
6. Petitioner's trial counsel allegedly rendered ineffective assistance in numerous ways, including by assertedly:
a. Failing to object to the judge's alleged involvement in plea negotiations and to the judge's alleged bias (Petition, Ex. B, pp. 17, 18);
b. Causing Petitioner to reject plea offers (Petition, Ex. B, pp. 15, 19);
c. Failing vigorously to challenge Asriah's allegedly perjured testimony (Petition, Ex. B, p. 22);
d. Failing to impeach Asriah concerning her "false accusation" that another person purportedly was her pimp (Petition, Ex. B, pp. 21-23);
e. Failing to make a "Pitchess" motion seeking information concerning the "decoy" officer (Petition, Ex. B, pp. 24-25);
f. Failing to move to suppress the "decoy" testimony and/or to move to dismiss based on the "decoy" testimony (Petition, Ex. B, p. 25);
g. Failing to call the "decoy" officer as a witness (Petition, Ex. B, p. 25);
h. Representing in opening statement that Petitioner had not known that Asriah was an underage prostitute (Petition, Ex. B, p. 26);
i. Failing to investigate, to understand the case, to formulate a defense plan and to subject the prosecution's case to meaningful adversarial testing, including:
(i). Failing to investigate Asriah's alleged unwillingness to consent to her child's DNA test;
(ii). Failing to cause an investigator to speak with Petitioner's brother at the smog business assertedly run by Petitioner and his brother;
(iii). Failing to attempt to examine the "crime scene," motor home and "suv" (apparently Petitioner's truck) (Petition, Ex. B, p. 28; and
(iv). Failing to call social worker witnesses who allegedly could have "blown the DA's whole case" (Petition, Ex. B, pp. 11-12, 26); and
See Pitchess v. Superior Court, 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 (1974).
j. In closing argument:
(i). Conceding that Petitioner had no viable defense;
(ii). Suggesting that Asriah's preliminary hearing testimony was not credible and instead stating that Asriah's first interview assertedly was the most truthful; and
(iii). Admitting that Asriah was underage and that Petitioner was her pimp(Petition, p. 6; Ex. B, pp. 16, 26-28); and ///
7. Petitioner's appellate counsel allegedly rendered ineffective assistance, by assertedly:
a. Failing to raise on appeal the trial court's allegedly improper involvement in plea proceedings and trial counsel's alleged ineffectiveness in connection therewith;
b. Failing to raise on appeal trial counsel's alleged failure to impeach Asriah with her prior "false accusation";
c. Presenting weak issues on appeal instead of filing a Wende brief; and d. Failing to obtain a complete trial record. (Petition, p. 5; Ex. B, pp. 16, 19-20, 23-24, 30-31).
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. 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 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); see Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). For purposes of applying the AEDPA standard of review, the Superior Court's denial of a claim for failure to state a prima facie claim for relief constitutes a denial of that claim on the merits. See Kipp v. Davis, 971 F.3d 866, 878 (9th Cir. 2020), cert, denied, 142 S.Ct. 148 (2021) ("Because the state court adjudicated his ineffective assistance of counsel . . . claim 'on the merits for failure to state a prima facie case,' we review under AEDPA deference."); Staten v. Davis, 962 F.3d 487, 493-94 (9th Cir. 2020), cert, denied, 141 S.Ct. 1502 (2021) (interpreting state court order denying petition for failure to state a prima facie case for relief as a decision on merits); Ramsey v. Yearwood, 231 Fed.Appx. 623, 624-25 (9th Cir.), cert, denied, 552 U.S. 918 (2007) (w[T]he California Superior Court's finding that Ramsey's habeas petition failed to state a prima facie claim is the last reasoned decision on the merits.") (quotations omitted). 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).
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).
The Court has read, considered and rejected on the merits all of Petitioner's many claims and arguments, including Petitioner's conclusory, undeveloped and unexhausted claims raised for the first time in the Reply. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert, denied, 546 U.S. 1172 (2006) (federal habeas court may deny on the merits unexhausted claims that are not "colorable"). The Court discusses Petitioner's principal claims and arguments herein.
I. Petitioner's Claims that the Trial Court Improperly Participated in Plea Negotiations and Allegedly Increased Petitioner's Sentence for Exercising His Right to a Jury Trial Do Not Merit Federal Habeas Relief.
A. Background
On October 23, 2015, the prosecution filed a case against Petitioner alleging human trafficking, pimping and pandering (People v. Beadle, Los Angeles Superior Court case number NA102901), but that case was later dismissed when Asriah could not be located (see R.T. 5, 329; C.T. 355). When Asriah reappeared, the prosecution filed a second case, case number NA105727 (R.T. 5). The prosecutor made a nine-year offer on the charge of sex with a minor because the prosecutor assertedly did not then know what Asriah's "level of cooperation" might be (R.T. 5). Petitioner rejected the offer (see R.T. 2, 5; C.T. 298).
The Court takes judicial notice of the docket of the prior case, People v. Beadle, Los Angeles Superior Court case number NA102901, available on the California courts' website at https://www.courts.ca.gov. See Porter v. Ollison, 620 F.3d 952, 954-55 n.l (9th Cir. 2010) (federal court may take judicial notice of court records). The docket shows that Petitioner was charged with human trafficking, pimping and pandering (Counts One, Two and Three respectively) and that the case was opened on October 23, 2015 and terminated on March 18, 2016.
Thereafter, the prosecution filed a third case against Petitioner (case number NA106623) (see C.T. 352-60). This third case involved charges of dissuading a witness (id.).
There were two preliminary hearings: (1) a hearing held on March 17 and 20, 2017 in case number NA105727; and (2) a hearing held on August 4, 2017 in case number NA106623 (see C.T. 20-98, 295-349). On August 25, 2017, the court consolidated these two cases (C.T. 381).
Prior to the August 4, 2017 preliminary hearing in case number NA106623, the prosecution had made an offer of seventeen years and four months on the second and third cases (C.T. 298-99). This offer would have required Petitioner to plead guilty to the charges of sex with a minor and human trafficking (id.). Petitioner had rejected this offer. The prosecutor had said that, after the August 4, 2017 preliminary hearing, there would be no further offers, to which Petitioner had responded, "Sounds good" (C.T. 299). There were no further offers.
Prior to the commencement of trial, the attorneys briefly described the previous plea offers (R.T. 2). The trial judge then told Petitioner, inter alia, that the charges were "pretty serious," and that, when jurors hear these types of charges, "it's pretty sobering" (R.T. 3). The judge said she did not know anything about the case, but that Petitioner should not "take any deals" if Petitioner "didn't do" any of the alleged crimes (R.T. 3). The judge also told Petitioner that, if Petitioner "did any of them" or if there was evidence of Petitioner's involvement, Petitioner "might want to consider whether [to] get the best deal possible," stating that, after a trial, the attorneys could "suggest things" to the judge but that sentence was ultimately the judge's "call" and "usually it's not as good as what you can work out before trial" (R.T. 3). The judge said she had known individuals who had rejected "offers like the 9 years" and had received sentences of 25 years, adding that such people were "pretty darn depressed" when they thought about the rejected offers (R.T. 4). The judge said she was not telling Petitioner what to do, that there was "no offer on the table," but that Petitioner could talk to his attorney about a counteroffer (R.T. 4). The prosecutor said that a 9-year deal was not possible (R.T. 5-6). The judge indicated that, because of Petitioner's "prior record" and "most of these charges" the sentence likely would be "higher than 17," although the judge said she was not then giving an indicated sentence (R.T. 6). The judge said she was not giving an indicated sentence because no one was asking her to do so and because she did not "know enough about it" (id.). She said that, if Petitioner could not work out a deal, she would give Petitioner "the best and fairest trial that I can give for you" (R.T. 4). Petitioner said he understood (R.T. 5).
B. Analysis
Petitioner contends that the trial judge improperly involved herself in plea negotiations, in alleged violation of due process and Petitioner's right to counsel (Petition, Ex. B, pp. 15-20). The Superior Court rejected this claim for failure to allege facts showing a prima facie claim for relief (Respondent's Lodgment 13).
Although the Superior Court's order recites four reasons for denying that petition, the failure to allege facts showing a prima facie case for relief is the only reason applicable to Petitioner's first ground for relief (see Respondent's Lodgment 13).
Petitioner is not entitled to federal habeas relief on this claim. Rule 11(c)(1) of the Federal Rules of Criminal Procedure prohibits federal judges from participating in plea negotiations. However, the United States Supreme Court has held that Rule 11(c)(1) was adopted as a prophylactic measure, "not one impelled by the Due Process Clause or any other constitutional requirement." United States v. Davila, 569 U.S. 597, 610-11 (2013) (citation omitted). "[T]here is no clearly established federal law, as determined by the Supreme Court of the United States, prohibiting a state court's participation in plea negotiations." Bivens v. Poole, 302 Fed.Appx. 598, 599 (9th Cir. 2008); see also Wright v. Dir. of Corr. (CA), 2013 WL 6388380, at *8 (CD. Cal. Dec. 6, 2013) ("there is no authority that a judge's participation in plea bargaining violates the federal Constitution"). Therefore, under the AEDPA standard of review, Petitioner is not entitled to habeas relief on his claim that the judge participated improperly in plea negotiations.
Petitioner's claim that the trial court increased Petitioner's sentence because Petitioner exercised his right to a jury trial fares no better. "An accused may not be subjected to more severe punishment for exercising his constitutional right to stand trial." United States v. Carter, 804 F.2d 508, 513 (9th Cir. 1986) (citations omitted). However, "[w]hen a defendant voluntarily chooses to reject or withdraw from a plea bargain, he retains no right to the rejected sentence." United States v. Vasquez-Landaver, 527 F.3d 798, 805 (9th Cir. 2008) (citation and quotations omitted). "Having rejected the offer of a lesser sentence, [a defendant] assumes the risk of receiving a harsher sentence." United States v. Carter, 804 F.2d at 513. "If defendants could demand the same sentence after standing trial that was offered in exchange for a guilty plea, all incentives to plead guilty would disappear." Id. "The reality of plea bargaining is that once the defendant elects to go to trial, all bets are off." Id. at 513-14 (citation, quotations and brackets omitted). "Mere imposition of a heavier sentence, without more, does not invalidate it." Id. at 513. "When the court is involved in plea bargaining and a harsher sentence follows the breakdown in negotiations, the record must show that no improper weight was given [to] the failure to plead guilty." Id. at 514 (citation, quotations and footnote omitted).
At the time of the court's alleged involvement in the plea bargaining process in the present case, there were no plea negotiations in progress. At that time, there was no extant offer from the prosecution and there was no counteroffer from the defense. Thus, the trial judge was never really involved in any ongoing negotiations. At sentencing, the court did not indicate in any way that Petitioner's decision to go to trial influenced the court's sentence (see R.T. 579-86). The court followed the prosecution's sentencing recommendations with the exception that the court decided to impose a concurrent sentence on one of the dissuading counts rather than the consecutive sentence the prosecution recommended (R.T. 579). In sum, Petitioner has failed to demonstrate that the judge imposed a higher sentence because Petitioner chose to go to trial.
For the foregoing reasons, the state courts' 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 this claim.
II. Petitioner's Claims of Judicial Bias Do Not Merit Federal Habeas Relief.
The Due Process Clause requires a "fair trial in a fair tribunal" before a judge who has no actual bias against the defendant. Bracy v. Gramley, 520 U.S. 899, 904-05 (1997); Smith v. Mahoney, 611 F.3d 978, 997 (9th Cir.), cert, denied, 562 U.S. 965 (2010). Where bias is claimed based on instances of judicial misconduct, habeas relief is available only where the misconduct rendered the trial so fundamentally unfair as to violate due process. See Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995), cert, denied, 517 U.S. 1158 (1996). To succeed on a judicial bias claim, Petitioner must "overcome a presumption of honesty and integrity in those serving as adjudicators." Withrow v. Larkin, 421 U.S. 35, 47 (1975); Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir.), cert, denied, 555 U.S. 871 (2008) .
Embedded in Petitioner's claim that the trial court improperly involved itself in alleged plea negotiations are allegations that the judge evidenced bias, by assertedly: (1) manipulating the attorneys to agree to allow an "Evidential Hearing" to be conducted off the record; (2) asking the prosecutor to give the judge all of the evidence the prosecutor had; and (3) helping the prosecutor prepare the prosecution case "by telling her what she needed to use and not use" (see Petition, Ex. B, p. 18). The Petition does not identify the "Evidential Hearing" (the proceeding in which the judge supposedly asked for the prosecutor's evidence). The Petition does not describe the evidence allegedly requested (or the evidence, if any, produced in response to the alleged request). The Petitioner does not identify the proceeding in which the court allegedly helped the prosecutor or the specific nature of that asserted help. Petitioner's conclusory allegations cannot warrant federal habeas relief. 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); Toussain v. Sandor, 2013 WL 2423126, at *14 (CD. Cal. May 31, 2013) (conclusory allegations of judicial bias did not warrant federal habeas relief); see also Blackledqe v. Allison, 431 U.S. 63, 75 n.7 (1977) (summary disposition of habeas petition appropriate where allegations are vague or conclusory; "the petition is expected to state facts that point to a real possibility of constitutional error") (citation, internal quotations and brackets omitted).
In attempted support of this claim, Petitioner attaches to the Petition certain documents, including: (1) alleged letters from Petitioner to state court judges, including the trial judge, the California Commission on Judicial Performance and the California Court of Appeal, containing Petitioner's complaints against two judges; and (2) alleged letters to Petitioner from the trial judge, the assistant presiding judge and the California Commission on Judicial Performance in response to Petitioner's complaints (see Petition, Ex. C). These documents include assertions that a previous judge was "rude," "screamed" and erred in his rulings, as well as assertions that the trial judge failed to redress the previous judge's claimed misconduct. Assuming, arguendo, that Petitioner intends now to pursue claims based on the allegations in these documents, Petitioner is not entitled to federal habeas relief, for at least two reasons.
First, Petitioner did not include these documents in any of his state court petitions (see Respondent's Lodgments 12, 14, 16, 18). In conducting review under 28 U.S.C. section 2254(d), a federal court cannot consider evidence a petitioner failed to present to the state court whose decision is under review. See Cullen v. Pinholster, 563 U.S. 180, 185 (2011) ("Pinholster") ("[E]vidence introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court," even where the state court denied the petition summarily) (footnote omitted); Benson v. Chappell, 958 F.3d 801, 824 (9th Cir. 2020), cert, dism'd, 141 S.Ct. 2779 (2021) (under Pinholster, "new evidence may not be used to determine whether the California Supreme Court's decision was an unreasonable determination of the facts before it").
Second, w[i]n 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, even if those remarks are 'critical or disapproving of, or even hostile to, counsel, the parties, or their cases.'" Larson v. Palmateer, 515 F.3d at 1067 (citations omitted; quoting Liteky v. United States, 510 U.S. 540, 555 (1994)); see also Brown v. Foss, 2021 WL 4095186, at *36 (CD. Cal. July 8, 2021), adopted, 2021 WL 4078729 (CD. Cal. Sept. 8, 2021) (» [p] etitioner's unhappiness with [judge's] rulings and comments is not a basis for a judicial bias claim.") (citation omitted). Petitioner has failed to prove that either judge harbored any bias against Petitioner, let alone bias so profound that the judge was unable to preside over Petitioner's case in a fair and impartial manner. See Rhoades v. Henry, 598 F.3d 511, 519 (9th Cir. 2010) (denying a judicial bias claim when the petitioner "point[ed] to no evidence that the judge was unable to preside over his case in a fair and impartial manner"). Petitioner has failed to prove judicial misconduct rendering Petitioner's trial "so fundamentally unfair as to violate federal due process. ..." See Duckett v. Godinez, 67 F.3d at 740.
For the foregoing reasons, the state courts' 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 this claim.
III. Petitioner's Claim that the Prosecutor Committed Misconduct by Presenting Asriah's Assertedly Perjured Testimony Does Not Merit Federal Habeas Relief.
A. Background
1. Asriah's October 21, 2015 Statements to Police
In 2015, a Craigslist post attracted the attention of Long Beach Police Sergeant Eric Hooker, then a vice field investigator (R.T. 255-58). Hooker began communicating by text with the person identified in the post and set up a "date" in a recreational vehicle located at an address on Carson Boulevard (R.T. 259, 262-64, 266-67). On October 21, 2015, Hooker and an undercover team arrived at the location and eventually went to another location near a shopping center in Lakewood (R.T. 268-70). Following the undercover operation, police detained Petitioner and Asriah (R.T. 270-71).
Detectives Arcala and De la Torre interviewed Asriah at the police station (R.T. 301, 323-24; S.C.T. 62-82). During the interview, portions of which were played for the jury, Asriah said the following:
Asriah met Petitioner on a chat line approximately eight months prior to the October 21, 2015 incident (Supplemental Clerk's Transcript ["S.C.T."] 64-65). Initially, she told Petitioner that she was eighteen, although she actually had just turned sixteen (S.C.T. 64-66). A few nights later, she told Petitioner that she was sixteen (S.C.T. 66). Petitioner said it was "cool," that he was "not going to be mad or anything" and that they would have to "watch out" (S.C.T. 66). A couple of weeks later, Asriah told Petitioner that she had been a prostitute (C.T. 67). Two or three months later, she moved in with Petitioner in his truck (S.C.T. 65, 67). Later, the two purchased a motor home with shared funds, but Petitioner put the motor home in his name (S.C.T. 67).
A couple of weeks to a month after Asriah moved in with Petitioner, Petitioner said that Asriah was going to have to "figure out something" because Petitioner needed money (S.C.T. 68). Petitioner added that Asriah "could always go ho it" (S.C.T. 68). When Asriah refused, Petitioner said he would "post" her on Craigslist (S.C.T. 68). Asriah still refused, but Petitioner "went behind [her] back" and "did it anyways" (S.C.T. 68). When the post received a number of responses, Petitioner told Asriah that they were broke and needed the money, saying, "So unless you want to go starving, then that's on you" (S.C.T. 69). The two then
discussed the pricing of Asriah's sexual services (S.C.T. 69-70).
When Asriah would engage in sex with a "customer," Petitioner would text her at the expiration of the time for the date (S.C.T. 72-73). Asriah always told her "tricks" that Petitioner was her bodyguard (S.C.T. 81). Her "tricks" usually gave the money to Asriah, who usually would pass the money through the bathroom window of the motor home to Petitioner (S.C.T. 81). Initially, Asriah tried to keep the money, but Petitioner would take the money away (S.C.T. 69-72). However, when Asriah started making more money, the two split the money evenly (S.C.T. 79-80). Petitioner said Asriah did not work for him; he said she worked for both of them (S.C.T. 79). Sometimes, when Asriah told Petitioner she did not want to work, Petitioner would respond, "Well, how are we gonna eat?" (S.C.T. 78-79).
Petitioner told Asriah to call him "Daddy" (S.C.T. 76-77). According to Asriah, in the prostitution lifestyle "Daddy" means "pimp" (S.C.T. 77-78). Once, Petitioner beat Asriah when she said she did not want to engage in prostitution (S.C.T. 79). When Asriah said "no," Petitioner responded, "I thought we understood that Daddy doesn't get told that word" (S.C.T. 79) .
Asriah had two or three clients a day and worked approximately two days a week (S.C.T. 74). Sometimes she
would post the Craigslist ads and sometimes she would "make [Petitioner] post them" (S.C.T. 74). Petitioner took photographs of Asriah, including nude photographs, which Petitioner sent to potential clients (S.C.T. 75-76). Sometimes, Petitioner used Asriah's phone to respond to potential clients or to send photographs to them (S.C.T. 74-76) .
2. The Events of July 11, 2016
Detective Gerardo Perez testified that, on July 11, 2016, Perez and his partner went to a smog shop in Long Beach and encountered Asriah and her newborn child (R.T. 308-09). Petitioner, Asriah and the baby were in a "small suv," a Chevy Blazer (R.T. 310-12). The officers released Petitioner and transported Asriah to the hospital (R.T. 312-13). At that time, Asriah had a bruise or contusion on her face (R.T. 313).
In an interview with Detective Perez and his partner on July 11, 2016, Asriah said that Petitioner had gotten her pregnant and that he was her boyfriend as well as her pimp (S.C.T. 59) . Asriah said that, when she was sixteen years old, she posted ads on Craigslist for clients who wanted sex (S.C.T. 59-60).
The described portion of this interview was played for the jury (R.T. 316-17).
3. Petitioner's Jail Phone Calls to Asriah Prior to and After the March, 2017 Preliminary Hearing
As described in the Court of Appeal's summary of the evidence set forth above, in January and February of 2017, Petitioner made a number of recorded phone calls to Asriah concerning her anticipated testimony. During those calls, Petitioner suggested that Asriah: not attend the preliminary hearing; tell the judge the purported "true" version of events; and marry Petitioner to avoid having to testify.After the preliminary hearing, Petitioner made another phone call to Asriah, again attempting to persuade Asriah to marry Petitioner to avoid having to testify.
During the preliminary hearing, the court admonished Petitioner to stop communicating with Asriah while she was testifying (C.T. 37).
4. Asriah's March, 2017 Preliminary Hearing Testimony
At the March 2017 preliminary hearing, Asriah testified as follows:
Asriah did not want to testify (C.T. 28). She acknowledged that she had failed to come to court to testify with respect to a previously filed case alleging humasn trafficking (C.T. 28). Asriah recalled that, when she first appeared in the present case, the judge had told her that, if she failed to show up in court as ordered, a body attachment would issue and she would be arrested (C.T. 67).
Asriah loved Petitioner and called herself "Mrs. Beadle" (C.T. 61). Asriah bore a son on June 30, 2016, when she was seventeen (C.T. 27). Petitioner was the father (C.T. 30) . She did not give birth in a hospital (R.T. 27). Initially, she said she did not remember where she bore her child, although she did say the child was not born in a car wash in Long Beach (C.T. 27-29). Later, she said she gave birth alone in her brother's car (C.T. 29). At the time of the preliminary hearing, Asriah was pregnant with her second child, whose father most likely was Petitioner (C.T. 65) .
Asriah said Petitioner was thirty-nine years old and she met him when she was seventeen (C.T. 31). Asriah remembered "nothing" about her relationship with Petitioner (C.T. 32). She confirmed that, on October 21 2015, she was arrested for prostitution (C.T. 32). However, she claimed she did not know, or did not recall, whether Petitioner was detained or arrested on that date (C.T. 32-33).
Asriah said the statements she made in the October 21, 2015 police interview were "all lies" except for her
statement that she met Petitioner (C.T. 34, 65). Asriah initially denied that the voice on the tape of the October 21, 2015 interview speaking about working as a prostitute while living with Petitioner was her voice, but then admitted the voice was hers (C.T. 45-46) . Asriah initially said she did not recognize photographs of herself on her phone, but then said the photos depicted her or someone who resembled her (C.T. 48-50). She said she did not remember being at the smog shop on July 11, 2016 but said she "could have been" (C.T. 51-52). She said her statements to an officer on that day could have been truthful or could have been lies (C.T. 52-53).
Asriah claimed she did not recall being in an SUV together with her son or telling an officer that Petitioner was her boyfriend and pimp (R.T. 53). Asriah said that she had engaged in prostitution before she met Petitioner, that she had volunteered to engage in prostitution, even though Petitioner supposedly told her not to do it, and that she put the ads on Craigslist without Petitioner's knowledge (C.T. 57-59). Asriah also claimed that Petitioner never hit her (C.T. 64).
Asriah said that, at the time of the police interview, the police told her that, if she "told them what they wanted to hear," she would be released and get her property back, but those things did not happen (C.T. 59-60). Asriah knew what the detectives "wanted to hear" because she had been
arrested before and knew how vice detectives work (C.T. 60).
A DNA expert testified that analysis of the DNA of Asriah's child showed an overwhelming mathematical probability that Petitioner was the father (C.T. 43) (B[I]t was 1.27 trillion times more likely to obtain these profiles if [Petitioner] is the biological father of this child . . . when compared to a random man").
At trial, Asriah testified that Petitioner was the father of her second child (R.T. 119-20).
5. Asriah's Trial Testimony
At trial, Asriah gave the following testimony:
Asriah met Petitioner on a chat line when she was fifteen and she moved in with him a couple of months later (R.T. 89-90). At first, Asriah told Petitioner she was eighteen, but a day or two after she moved in, she told him she was sixteen (R.T. 90-91). Petitioner responded that it was "okay, and he didn't care" (R.T. 91). Asriah also told Petitioner she previously had worked as a prostitute (R.T. 92). However, at the time she moved in with Petitioner, she was not working as a prostitute (R.T. 92-93). Petitioner and Asriah had sex together when Asriah was sixteen (R.T. 208) .
Petitioner eventually told Asriah that they did not have enough money, and he told her that she used to engage in prostitution in the past, so "why couldn't [she] do it for him" (R.T. 93). Asriah did not want to engage in prostitution, but agreed to do it so that she and Petitioner could have money (R.T. 93-94). At that time, Petitioner and Asriah were living in a motor home (R.T. 94-95).
Asriah and Petitioner both posted ads on Craigslist, and both communicated with potential "dates" or "tricks," sometimes sending nude photographs of Asriah (R.T. 96, 98-99, 146-47). Asriah engaged in prostitution "dates" in the motor home (R.T. 95, 98). During the dates, Petitioner would drive around in his truck until Asriah texted him that she was finished (R.T. 102-03). Asriah worked two to three days per week, and Petitioner determined how many dates Asriah had in a day, depending on how much money they had (R.T. 97). Asriah would tell the dates that Petitioner was her "bodyguard" (R.T. 121-22). Petitioner tried to get Asriah to engage in oral copulation with dates, but she refused to do so (R.T. 101). On Asriah's phone, Petitioner was identified as "Daddy," a word signifying pimp (R.T. 125-26) .
Petitioner and Asriah "kind of" both determined the price, although Petitioner "went along" with the price Asriah previously had charged (R.T. 100). Sometimes Asriah would hold the money until she was finished and then give it to Petitioner, and sometimes she would open the back window of the motor home and pass the money to Petitioner (R.T. 103-04). The money paid for things the couple needed, such as food, gas, "weed" and phone service (R.T. 104-05, 111-12). Petitioner gave Asriah money for such things as clothing and nail appointments (R.T. 104) . Asriah said
that, sometimes, she did not want to work, but Petitioner told her she had to work because they needed the money (R.T. 120) .
After Asriah moved in with Petitioner, Petitioner sometimes "got physical" with Asriah and hit her (R.T. 117-18, 130, 169). Petitioner would slap her and pull her hair (R.T. 169). On one occasion Petitioner pulled Asriah's hair and kicked her in the stomach (R.T. 118). Another time, Petitioner choked her until she could not breathe (R.T. 168). Petitioner also made threats that, if Asriah ever told on Petitioner, he knew where her grandmother stayed and it would not be hard to make Asriah disappear (R.T. 118-19). In July of 2016, Petitioner punched Asriah in the eye (R.T. 116-17) .
From early 2015 until they were arrested, Petitioner and Asriah had sex almost every day (R.T. 13 9-40). Asriah miscarried three or four times (R.T. 106, 110). Asriah bore Petitioner's son in a car wash bathroom on June 20, 2016 (R.T. 80, 82). At that time, Asriah was not yet eighteen (R.T. 82). The umbilical cord was wrapped around the baby's neck and Petitioner pulled it off (R.T. 82-83) . Asriah did not take the baby to the hospital because she was scared and "on the run" (R.T. 83).
On October 21, 2016, Asriah and Petitioner were living in the motor home (R.T. 85). Asriah posted a Craigslist ad
and arranged for a date to meet her in the motor home, which was parked in a Lakewood shopping center (R.T. 142, 147-48).
The date arrived and asked to whom he should give the money (R.T. 148). Asriah said she had a bodyguard (R.T. 148). The two walked over to Petitioner, who was in his truck, and the date gave Petitioner the money (R.T. 148).
Asriah and the date returned to the motor home, but the date did not enter it (R.T. 148). Asriah heard the police coming, ran inside the motor home and locked it (R.T. 148-49) .
The police detained Asriah and Petitioner (R.T. 83-84, 149). Asriah told the police her name was Kristi Brown, that she was "18 or 19" years old and that Petitioner was her uncle (R.T. 149, 151) .
In July of 2016, Asriah gave oral consent to Detective Arcala and the prosecutor for a swab of her mouth and a swab of her son's mouth (R.T. 152-54).
Asriah said that a number of statements she had made at the preliminary hearing were untrue (e.g., R.T. 208-12) . She said she had lied at the preliminary hearing because she was still with Petitioner at that time (R.T. 248) . Asriah also said that the statements in her October 21, 2015 and July 11, 2016 interviews were true (R.T. 251-53).
According to Asriah's testimony, Petitioner posted the first Craigslist ad (R.T. 134-35).
B. Analysis
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." Hovey v. Ayers, 458 F.3d 892, 916 (9th Cir. 2006) (citation and internal quotations omitted).
Petitioner appears to base this claim on inconsistencies among Asriah's trial testimony, her March, 2017 preliminary hearing testimony and her prior statements to police (see Petition, Ex. B., pp. 20-22). However, "the fact that a witness may have made an earlier inconsistent statement, or that other witnesses have conflicting recollections of events, does not establish that the testimony offered at trial was false." United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997); see also United States v. Bingham, 653 F.3d 983, 995 (9th Cir. 2011), cert, denied, 565 U.S. 1221, 1223 (2012) (court "cannot presume that the prosecutor knew that the prior inconsistent statement was true but elicited perjured testimony anyway") (citation, internal quotations and brackets omitted). The question whether witnesses lied or erred in their perceptions or judgments is properly left to the trier of fact. See United States v. Zuno-Arce, 44 F.3d 1420, 1422-23 (9th Cir.), cert, denied, 516 U.S. 945 (1995), overruled in part on other grounds, Valerio v. Crawford, 306 F.3d 742, 764 (9th Cir.2002), cert, denied, 538 U.S. 994 (2003); see also United States v. Scheffer, 523 U.S. 303, 313 (1998) ("A fundamental premise of our criminal trial system is that 'the jury is the lie detector.'") (original emphasis; quoting United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973), cert, denied, 416 U.S. 959 (1974)). Petitioner has not shown that the prosecutor presented perjured testimony by eliciting Asriah's trial testimony. Asriah's trial testimony was largely consistent with her statements to police. Furthermore, the prosecutor elicited Asriah's testimony explaining why Asriah's trial testimony differed from her preliminary hearing testimony. The evidence of Petitioner's phone calls to Asriah, through which Petitioner attempted to influence Asriah's preliminary testimony, provided additional explanation for the differences between the preliminary hearing testimony and Asriah's other testimony and statements.
Accordingly, the state courts' 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 this claim.
IV. Petitioner's Challenge to the Admission of Asriah's Allegedly Coerced Statements to Police Does Not Merit Federal Habeas Relief.
Petitioner contends the admission of Asriah's statements to police violated the constitution because detectives assertedly threatened Asriah several times "with jail if she didn't show up for court and testify" (Petition, Ex. B, p. 22). Under the applicable AEDPA standard of review, Petitioner is not entitled to federal habeas relief on this claim.
Petitioner also contends Asriah's statements were involuntary because she was "easily manipulated and highly emotional" (Petition, Ex. B, p. 22). Such 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).
The United States Supreme Court has held that a defendant's coerced confession cannot be used at trial. See Jackson v. Denno, 378 U.S. 368, 385-86 (1964). However, "[n]o Supreme Court case addresses the issue of whether coerced witness testimony can be used against a defendant at trial." Trammell v. Ducart, 2015 WL 4496338, at *10 (E.D. Cal. July 23, 2015) (federal habeas relief for coerced witness statement unavailable under AEDPA standard of review); see also Samuel v. Frank, 525 F.3d 566, 569 (7th Cir. 2008) (United States Supreme Court "has not decided whether the admission of a coerced third-party statement is unconstitutional"); accord Mitchell v. Pfeiffer, 2020 WL 4272031, at *6 (E.D. Cal. July 24, 2020), adopted, 2021 WL 2418226 (E.D. Cal. June 14, 2021); Cervantes v. Montgomery, 2018 WL 3339674, at *13 (CD. Cal. Apr. 18, 2018), adopted, 2018 WL 3344726 (CD. Cal. June 29, 2018).
In a case filed prior to AEDPA's effective date, the Ninth Circuit suggested that the use of a witness' coerced testimony can violate due process. See Williams v. Woodford, 384 F.3d 567, 593 (9th Cir. 2004), cert, denied, 546 U.S. 934 (2005) . However, "circuit precedent does not constitute 'clearly established Federal law as determined by the Supreme Court'" within the meaning of section 2254(d). Glebe v. Frost, 574 U.S. 21, 24 (2014) (citations and quotations omitted); see also Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (circuit precedent "may not be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme Court] has not announced") (citations omitted). In the absence of controlling Supreme Court law, Petitioner cannot obtain federal habeas relief. 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."); see also Valine v. Muniz, 2017 WL 2984142, at *6 (E.D. Cal. July 13, 2017) (Ninth Circuit precedent supporting claim of alleged witness coercion insufficient to warrant federal habeas relief in the absence of clearly established Supreme Court law supporting such a claim).
Morever, Petitioner's claim fails even under Ninth Circuit law. In assessing the voluntariness of a witness' statement, the court must decide "whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." Williams v. Woodford, 384 F.3d at 595 (quoting United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (internal quotations omitted)). However, w[t]here is no violation of due process when a witness who previously was illegally interrogated is 'subject to cross-examination at trial through which the jury could assess the witness's credibility.'" Nasrichampang v. Woodford, 288 Fed.Appx. 367, 368 (9th Cir. 2008) (quoting Williams v. Woodford, 384 F.3d at 596). Here, Petitioner's counsel cross-examined Asriah at trial concerning her prior statements, even eliciting her testimony that on multiple occasions police had told her that, if she did not come to court, she could be arrested (see R.T. 193) .
Furthermore, truthfully informing an individual that he or she could be arrested for failing to appear in court in response to a court order does not constitute unconstitutional coercion. See Norman v. Ducharme, 871 F.2d 1483, 1488 (9th Cir. 1989), cert, denied, 494 U.S. 1061 (1990) (police "threat" that what happened to petitioner would depend on petitioner's side of the story did "not appear to rise to the level of police misconduct in view of the fact that any defendant's fate depends in part on what he tells the police"); see also United States v. Graham, 480 Fed.Appx. 453, 456 (9th Cir. 2012) ("any threats to arrest Graham and put him in jail were not false or baseless, and therefore were not impermissibly coercive") (citation omitted). Indeed, prior to jury selection, the trial court informed Asriah that, if she did not come to court as ordered, the court would issue an arrest warrant and "send the cops looking for you and drag you in" (R.T. 13). Petitioner does not allege, nor could he, that the court's admonishment rendered Asriah's testimony involuntary.
For all of these reasons, the state courts' 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 this claim.
V. Petitioner's Challenge to the Alleged Admission of Testimony Concerning Purported Statements of the "Decoy" Police Officer Does Not Merit Federal Habeas Relief.
As indicated above, the October 21, 2015 incident involved an undercover officer, whom Petitioner terms the "decoy" officer. In a conference outside the hearing of the jury, Petitioner's counsel said the "decoy" officer had been "fired" (R.T. 182-83). The prosecutor indicated she would not call the "decoy" officer (R.T. 183). The prosecutor said that she had redacted mention of the "decoy" from the jailhouse phone calls, that she had instructed Asriah not to "mention it," and that the officer witnesses knew not to mention the "decoy" officer (R.T. 183). The "decoy" officer did not testify at trial. Nevertheless, Petitioner contends that the admission of evidence of "anything testified to as to what the Decoy did or said" purportedly violated the constitution, citing Crawford v. Washington, 541 U.S. 36, 59 (2004) ("Crawford") (Petition, Ex. B, pp. 24-25).
The Confrontation Clause prohibits the admission of an out-of-court testimonial statement at a criminal trial, unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 59. Confrontation Clause errors are subject to harmless error analysis. See Coy v. Iowa, 487 U.S. 1012, 1021-22 (1988); Woods v. Sinclair, 764 F.3d 1109, 1125 (9th Cir. 2014), cert, denied, 575 U.S. 1021 (2015); Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir. 2011), cert, denied, 567 U.S. 952 (2012) (Crawford error). Under the standard for harmless error review applicable to federal habeas cases set forth in Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) ("Brecht"), a federal court may not grant federal habeas relief for a Confrontation Clause error unless the error had a "substantial and injurious effect or influence" on the verdict. See Ocampo v. Vail, 649 F.3d at 1114-15 (applying Brecht standard to Crawford error).
Petitioner contends that any trial testimony concerning "what the Decoy did or said" was testimonial hearsay, the introduction of which allegedly violated Crawford (Petition, Ex. B, p. 24). However, percipient witness testimony concerning the witness' observations regarding another individual's behavior generally is not hearsay. See United States v. Brock, 667 F.2d 1311, 1316 n.2 (9th Cir. 1982), cert. denied, 460 U.S. 1022 (1983) (testimony based on observations of defendant's attempts to evade surveillance concerned "merely nonassertive conduct, which is not hearsay") (citation omitted); United States v. Paiz, 2007 WL 2143015, at *5 (N.D. Cal. July 24, 2007) (witness' "observations of [defendant's] behavior and affect are not hearsay, but direct observations of the appearance and actions of another person"); Fed.R.Evid. 801(a), (c) (for purposes of hearsay rule "statement" includes nonverbal conduct, "if the person intended it as an assertion").
Petitioner does not identify the purported hearsay statements of the "decoy" officer or allege how any such purported statements prejudiced Petitioner within the meaning of Brecht. As indicated above, conclusory allegations cannot support a claim for federal habeas relief. See Greenway v. Schriro, 653 F.3d at 804; Jones v. Gomez, 66 F.3d at 204-205; Turner v. Montgomery, 2015 WL 2249995, at *12 (CD. Cal. Jan. 9, 2015), adopted, 2015 WL 13916222 (CD. Cal. May 13, 2015) (conclusory allegations insufficient to show Crawford violation). Accordingly, Petitioner is not entitled to federal habeas relief on this claim.
In the Reply, Petitioner appears to argue that the prosecutor had a duty to call the "decoy" officer as a witness (Reply, pp. 12-13). Contrary to Petitioner's apparent argument, "[t]he constitutional right of [a defendant] to be confronted by the witnesses in the trial of a criminal case imposes no obligation on the government to call any specific persons as witnesses." Aycock v. United States, 62 F.2d 612, 613 (9th Cir. 1932), cert, denied, 289 U.S. 734 (1933); see also Eberhart v. United States, 262 F.2d 421, 422 (9th Cir. 1958) ("[T]he failure of the Government to produce an informer or other person as witness does not violate the defendant's rights, (citations). The Government has no duty to place on the witness stand every person with some knowledge of the circumstances, (citation)."); accord. United States v. Richardson, 672 Fed.Appx. 368, 370 (5th Cir. 2016) ("the Government is not required to call every witness competent to testify and that includes law enforcement officers") (citation omitted); United States v. Harper, 460 F.2d 705, 706 (5th Cir. 1972) ("it seems clear that a prosecutor has no duty to call all the witnesses he has subpoenaed, and may exercise his own judgment concerning the witnesses to be called and the testimony to be presented") (citations omitted); United States v. Wolfson, 322 F.Supp. 798, 822 (D. Del. 1971), af|Jd, 454 F.2d 60 (3d Cir.), cert, denied, 406 U.S. 924 (1972) ("It has long been held that the government is not required to call every witness who might be able to give some evidence about the crime.") (citations omitted).
Petitioner also appears to argue, confusingly, that the failure to admit evidence of Asriah's purported "false accusation" against another individual supposedly violated the Confrontation Clause (see Petition, Ex. B, pp. 21-24). Petitioner appears to be referring to Asriah's trial testimony that she had been arrested for prostitution in September of 2017 and that she had been working alone that day, without a pimp (see R.T. 247). Prior to that testimony, Petitioner's counsel had told the court that counsel believed Asriah had a new boyfriend who was her pimp (R.T. 170). Although Petitioner's Confrontation Clause claim in this regard is decidedly unclear, it is evident that the matter about which Petitioner complains did not involve the admission of any out-of-court testimonial statement in violation of Crawford. See Hovey v. Avers, 458 F.3d 892, 903 (9th Cir. 2006) ("The confrontation right attaches when an individual testifies against a defendant in an adversary proceeding before the trier of fact, [citation], not merely when an individual's testimony is potentially adverse to a defendant."). This claim lacks merit.
The Court discusses below Petitioner's related claim that counsel ineffectively failed to present evidence of Asriah's purported "false accusation" against another individual.
For the foregoing reasons, the state courts' rejection of Petitioner's Confrontation Clause 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 this claim.
VI. Petitioner's Claims of Ineffective Assistance of Trial Counsel Do Not Merit Federal Habeas Relief.
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 Yarborouqh 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). 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).
Here, the Superior Court denied Petitioner's claims of ineffective assistance of trial counsel on the ground that Petitioner had failed to show a reasonable probability that a more favorable outcome would have occurred but for counsel's alleged ineffectiveness (Respondent's Lodgment 13). The Superior Court did not discuss the first prong of the Strickland analysis, i.e., whether counsel's performance was deficient. Accordingly, the Court conducts a de novo review of Strickland's performance prong and applies the AEDPA standard of review to the prejudice prong. See Kipp v. Davis, 971 F.3d 866, 949 (9th Cir. 2020), cert, denied, 142 S.Ct. 148 (2021) ("Where a state court has adjudicated a claim on the merits with a written decision denying relief based on one element of the claim and, therefore, does not reach the others, the federal court gives section 2254(d) deference to the element on which the state court ruled and reviews de novo the elements on which the state court did not rule.") (citation omitted); see also Rompilla v. Beard, 545 U.S. 374, 390 (2005) (where state court addressed only the Strickland performance prong but not the prejudice prong, Supreme Court applied de novo review applied to prejudice prong).
Petitioner claims that counsel failed to understand the case, investigate sufficiently, plan a defense and subject the prosecution's case to "meaningful adversarial testing" (see Petition, Ex. B, pp. 27-28). To the extent Petitioner contends that counsel's deficiencies were so extreme as to constitute a failure to subject the prosecution's case to "meaningful adversarial testing," Petitioner appears to be relying on the ruling of United States v. Cronic, 466 U.S. 648 (1984) ("Cronic"). Cronic ruled that prejudice is presumed when "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." Cronic, at 656-59. A Cronic presumption of prejudice attaches only when the attorney's failure is "complete." See Bell v. Cone, 535 U.S. 685, 696-97 (2002) (Cronic is inapplicable where attorney's failures occur only at "specific points" during the proceedings). Petitioner's challenges concern counsel's performance at "specific points" during the proceedings (see Petition, Ex. B, pp. 27-28). Therefore, the Cronic presumption does not apply. See Bell v. Cone, 535 U.S. at 696-97. In any event, Petitioner's counsel made opening and closing statements, cross-examined prosecution witnesses and presented defense witnesses, thus subjecting the prosecution's case to "meaningful adversarial testing." See Galvan v. Avers, 292 Fed.Appx. 643, 645 (9th Cir. 2008), cert. denied, 555 U.S. 1172 (2009) (counsel met with petitioner, hired an investigator, examined and cross-examined witnesses and made closing argument, thus subjecting the prosecution's case to meaningful adversarial testing); Buchanan v. United States, 2013 WL 4761025, at *11 (S.D. Cal. Sept. 4, 2013) ("By giving an opening statement and closing argument and cross-examining government witnesses, [counsel] subjected the prosecution's case to meaningful adversarial testing.").
Cronic is not rendered applicable by counsel's strategic decision to eschew contesting the charges of sex with a minor, pimping or pandering and instead to focus on the other charges, including the more serious human trafficking charge and the great bodily injury allegation (discussed further below). See Florida v. Nixon, 543 U.S. 175, 190-92 (2004) (counsel's concession of guilt at the guilt stage and decision to focus on penalty phase did not trigger Cronic presumption); United States v. Thomas, 417 F.3d 1053, 1057-58 (9th Cir. 2005), cert, denied, 546 U.S. 1121 (2006) (Cronic inapplicable where counsel conceded guilt on a robbery charge as to which the petitioner was "caught red-handed" in order "to focus on the charges on which [petitioner] had a chance"). Accordingly, the Strickland standard applies here.
B. Discussion
1. Failure to Object to Alleged Judicial Involvement in Plea Negotiations and to Alleged Judicial Bias
Petitioner faults counsel for failing to object to the judge's asserted involvement in plea negotiations and for allegedly failing to advise Petitioner "not to be swayed by the judge" (Petition, Ex. B, p. 17). This claim fails. "Unlike federal judges, California state judges are permitted be involved in plea negotiations though they must remain neutral." Bjorstrom v. Gonzalez, 2009 WL 1228484, at *4 (S.D. Cal. May 5, 2009) (citation omitted). As discussed above, at the time of the purported judicial involvement, there were no ongoing plea negotiations. Nothing in the record suggests that the judge diverged from neutrality in discussing the possibility of a plea bargain; in fact, the judge said she was not telling Petitioner what to do, that there was "no offer on the table" and that Petitioner could talk to his attorney about a counteroffer (R.T. 4). The judge also said that, if Petitioner could not work out a deal, the court would give Petitioner "the best and fairest trial that I can give for you" (R.T. 4-5). Strickland does not require counsel to raise a meritless objection. 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). To the extent Petitioner asserts that counsel should have objected to the judge's statements regarding a possible sentence, under California law, "[b]efore the trial court accepts a defendant's guilty or no contest plea, the court must advise the defendant of his or her maximum possible sentence if convicted of all charges." People v. Archer, 230 Cal.App.4th 693, 696, 178 Cal.Rptr.3d 722 (2014). A judge's pre-plea or pretrial discussion of possible sentence is not per se improper. Thus, the objection now urged by Petitioner would have been overruled. Counsel had no constitutional duty to raise a meritless objection, and, in any event, Petitioner suffered no prejudice from counsel's failure to object. See Gonzalez v. Knowles, 515 F.3d at 1017.
2. Alleged Ineffectiveness in Causing Petitioner to Reject Plea Offers
Petitioner contends he "rejected a plea bargain of 9 years and 17 years due to ineffective assistance of counsel" (Petition, Ex. B, pp. 15, 19). The Petition does not describe what counsel did or did not do which purportedly caused Petitioner to reject the plea offers (other than supposedly failing to object to the alleged judicial involvement in negotiations, discussed above). Such 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); see also Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977).
In the Reply, Petitioner alleges new factual allegations concerning what counsel supposedly did or failed to do during plea offer discussions (Reply, pp. 14-16). Petitioner did not present these factual allegations to the state courts (see Respondent's Lodgments 4, 8, 12, 14, 16, 18). As indicated above, under Pinholster, a federal habeas court's review under section 2254(d) "is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 563 U.S. at 180-181; see Benson v. Chappell, 958 F.3d 801, 824 (9th Cir. 2020), cert, denied, 141 S.Ct. 2779 (2021). Hence, the Court cannot consider the new factual allegations contained in the Reply.
3. Alleged Failure Vigorously to Challenge Asriah's Allegedly Perjured Trial Testimony
Petitioner's claim that counsel purportedly failed "vigorously" to challenge Asriah's allegedly perjured trial testimony lacks merit. In light of the evidence, including evidence showing that Petitioner was the father of the child Asriah bore as a minor and Petitioner's inculpatory statements in the jail phone recordings, counsel reasonably decided to target: (1) the most serious sex charge, the charge of human trafficking, seeking to show that Asriah, not Petitioner, controlled her prostitution activities; (2) the great bodily injury allegation (arguing that pregnancy did not constitute great bodily injury); and (3) the dissuading counts (see, e.g., R.T. 522-33 [closing argument]).
Notably, the Reply appears to concede Petitioner committed the offense of sex with a minor in violation of California Penal Code section 261.5(c) (Count One) (Reply, p.14) .
At trial, Asriah was not a cooperative witness on cross-examination, reiterating that she did not want to testify (R.T. 193). Counsel questioned Asriah concerning: (1) her prior experience as a prostitute; (2) Petitioner's alleged other sources of money; and (3) the use of the money Asriah allegedly received from prostitution (R.T. 194-95, 199-204). Counsel elicited Asriah's testimony that, when she first resumed engaging in prostitution after she met Petitioner, Petitioner did not know how much to charge and Asriah was the one who set the price (although she later said both of them set the price) (R.T. 203-05). Counsel elicited Asriah's testimony that she was the one texting with the undercover officer and she was the one who set up the Craigslist ad that led to the October 15, 2015 incident (although she later said both she and Petitioner set up the ad) (R.T. 203-04). Counsel elicited Asriah's testimony that she recalled telling someone from the Department of Children and Family Services that, after Asriah had been with Petitioner for two months, Asriah decided to prostitute herself in order to bring more money into the relationship (R.T. 232-33). Counsel questioned Asriah at some length concerning the phone calls upon which the dissuading charges were based (R.T. 213-24, 27-28). Counsel impeached Asriah with discrepancies between her March, 2017 preliminary hearing testimony and her trial testimony (see R.T. 206-12).
Counsel cannot properly be faulted for failing to elicit from Asriah testimony more favorable to Petitioner. In cross-examining an alleged victim of a crime, a defense attorney cannot necessarily expect that the witness will give testimony favorable to the defense, and often must attempt to undermine the witness' credibility by other means, such as pointing out inconsistent prior statements or testimony, as Petitioner's counsel did here. The mere fact that Petitioner's counsel failed to secure an acquittal does not show Strickland prejudice. See Strickland, 466 U.S. at 694. "What [petitioner's] protest[s] over the cogency of his defense really shows is that not every . . . case can be won by the defense." Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995), cert, denied, 517 U.S. 1111 (1996) .
Petitioner argues in the Reply that counsel erred by failing to file a motion in limine seeking exclusion of Asriah's anticipated testimony as "unsound, unbelievable, or even a patent lie" (Reply, p. 20). Counsel reasonably could have expected that any such motion would have failed. "A fundamental premise of our criminal trial system is that "the jury is the lie detector." United States v. Scheffer, 523 U.S. 303, 313 (1998) (citation omitted; original emphasis).
To the extent Petitioner purports to support this claim with new factual allegations and/or documents (such as a purported portion of a September 2017 "Detention Report") which Petitioner did not present to the state habeas courts, the Court does not consider any such allegations or documents. See Pinholster, 563 U.S. at 185; Benson v. Chappell, 958 F.3d at 824.
4. Alleged Failure to Impeach Asriah Concerning Her "False Accusation" That Another Person Became Her Pimp After Petitioner was Arrested.
i. Background
In opening statement, Petitioner's counsel represented that: (1) Asriah was a prostitute before Petitioner met her and was still a prostitute; (2) Asriah "may or may not have prostituted while they were together"; (3) Asriah had a "real pimp" whose name the jury would see "branded on her face" (apparently a tattoo) (R.T. 71). The prosecutor objected (R.T. 71). At sidebar, the prosecutor argued that, under California Evidence Code section 1162 (sic), evidence that a human trafficking victim had engaged in prostitution assertedly was inadmissible to impeach the victim (R.T. 71). Following an unreported discussion, the court said there was insufficient evidence at that time to conclude that the "brand" on Asriah's face was the name of a pimp (R.T. 73). Petitioner's counsel agreed that, at that time, counsel did not have sufficient evidence "to show that he is actually the pimp" (R.T. 75) .
In a subsequent proceeding, the court and the prosecutor clarified that the correct statute was California Evidence Code section 1161 (R.T. 169-170).
Later, during Asriah's testimony, the court inquired into the nature of the proposed impeachment in order to determine whether the proposed testimony was admissible under California Penal Code section 1161 (R.T. 170). Petitioner's counsel said he was aware that Asriah had been arrested for prostitution after Petitioner had been placed in custody, and counsel added that he "believe[d] the guy [was] her pimp" (R.T. 170). Counsel said that a record of the Department of Children and Family Services stated that Asriah's new boyfriend was her pimp and that she had been engaged in human trafficking with him (R.T. 170). Counsel said he wanted to ask Asriah about an alleged misdemeanor arrest to show she continued to prostitute herself "after [Petitioner's] involvement" (R.T. 171). The parties discussed with the court whether Asriah could be impeached with evidence of this alleged arrest (R.T. 171-81). The court stated that, assuming prostitution was a crime of moral turpitude, evidence that Asriah had been prostituting independently would be admissible, but evidence that Asriah had been working with a pimp would not be admissible (because of California Evidence Code section 1161) (R.T. 181).
Subsection (b) of section 1161 provides:
Evidence of sexual history or history of any commercial sexual act of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, is inadmissible to attack the credibility or impeach the character of the victim in any civil or criminal proceeding.
Later, the court recounted that, in conversations outside the record, Asriah had stated that she did have an adult arrest and that she had been "operating on her own, not under the thumb of a pimp" (R.T. 186). The court stated that it had found a case holding that "prostitution can be used for impeachment," and the court stated that it had appointed counsel for Asriah concerning the issue (R.T. 186-87). After Asriah said she would exercise her Fifth Amendment right not to testify concerning the arrest, the prosecutor said that Asriah would be granted use immunity (R.T. 187-88) .
At trial, Asriah testified that the name tattooed on her face was not Petitioner's name (R.T. 230). Later, after Asriah received use immunity, she testified that she had been arrested for prostitution in September, 2017 and she claimed that, on the date of the arrest, she had been working without a pimp (R.T. 244-45, 247).
ii. Discussion
Petitioner contends counsel ineffectively failed to impeach Asriah concerning her supposedly "false accusation" (mentioned in a record of the Department of Children and Family Services) that her new boyfriend was her pimp (Petition, Ex. B, pp. 21-23). In her trial testimony, Asriah did not "admit" the falsity of any supposed "prior accusation" that the new boyfriend was her pimp (see Petition, Ex. B, p. 23). Rather, in a conversation with counsel and the court, Asriah merely denied she had prostituted with a pimp after she was no longer with Petitioner. In any event, the court ruled inadmissible any evidence that, after her relationship with Petitioner ended, Asriah had engaged in prostitution with a pimp. This ruling effectively prevented counsel from attempting to do that which Petitioner appears to contend should have been done. Counsel cannot be deemed ineffective for failing to take a futile action. See 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).
Moreover, Petitioner has not shown a reasonable probability of a different outcome if counsel had somehow managed to do that which Petitioner appears to contend should have been done (and that which the trial court had prohibited). Impeachment of Asriah with (another) tangential inconsistent statement would have added little to the credibility analysis. Morever, the incriminating evidence against Petitioner, including the DNA evidence concerning the paternity of Asriah's child and the statements Petitioner made in the recorded phone calls with Asriah, was compelling.
To the extent Petitioner purports to support this claim with factual allegations and/or documents (such as a purported portion of a September 20, 2017 "Detention Report") contained the Reply which Petitioner did not present to the state habeas courts, the Court cannot consider any such allegations or documents. See Pinholster, 563 U.S. at 185; Benson v. Chappell, 958 F.3d at 824.
5. Failure to Make a "Pitchess" Motion Seeking Information Concerning the "Decoy" Police Officer
The October 15, 2015 police operation set up by Sergeant Hooker involved the use of an undercover officer, whom Petitioner calls the "decoy" officer. Petitioner alleges that, during Asriah's "second interview," Asriah stated that, at the time the "decoy" officer "did the Craigslist sting," the "decoy" was under investigation "and did not follow procedures" (Petition, Ex. B, p. 24). According to Petitioner, Detective Arcala assertedly stated that the "decoy," who allegedly had obtained the search warrant for the motor home and the "suv," subsequently had been "removed" (id.). Petitioner contends that the defense only found out about the "dirty decoy cop" from "the human trafficking expert" (id.). Petitioner attaches to the Petition a purported letter from the defense expert, dated January 25, 2020, identifying the "dirty cop" who assertedly was arrested for various crimes (Petition, Ex. E). Also attached is a copy of a purported news article reporting that, on September 21, 2018, a former Long Beach police officer was acquitted of various criminal charges (id.).
Although Petitioner cites to pages of this alleged interview (see Petition, Ex. B, p. 24; see also id., pp. 10-11), the record does not contain this interview.
Petitioner does not state when the defense supposedly found out about the "dirty cop." At a sidebar conference during trial, Petitioner's counsel raised an issue concerning a vice officer who had contact with Asriah but who had been "fired" (R.T. 182-83). The prosecutor stated, without contradiction from Petitioner's counsel, that the prosecutor had notified the defense "of this back in 2015 when it happened" (R.T. 183). As indicated above, the prosecutor stated that she did not intend to call the officer and that she had redacted the jailhouse calls and admonished her witnesses concerning the officer (R.T. 183).
Petitioner contends that, once trial counsel knew that the "decoy" had been fired and that "there were questions about incorrect procedures," counsel should have made a motion to obtain information in the personnel file of the "decoy" officer pursuant to Pitchess v. Superior Court, 11 Cal.3d 531, 537-38, 113 Cal.Rptr. 897, 522 P.2d 305 (1974) ("Pitchess") (criminal defendants have a limited right to discover information contained in an officer's personnel file which can assist in the preparation of a defense) (Petition, Ex. B, pp. 24-25). In 1978, the California Legislature codified the "Pitchess" discovery principles in California Penal Code sections 832.7-832.8 and California Evidence Code sections 1043-1047. See Ass'n for Los Angeles Deputy Sheriffs v. Superior Ct., 8 Cal. 5th 28, 41, 251 Cal.Rptr.3d 320, 447 P.3d 234 (2019); City of Santa Cruz v. Superior Court, 49 Cal.3d 74, 81-82, 260 Cal.Rptr. 520, 776 P.2d 222 (1989). Under these provisions, to warrant discovery of the officers' personnel files, counsel must submit a declaration showing "good cause" for the discovery, setting forth, inter alia, the materiality of the requested documents to the subject matter involved in the pending criminal proceedings. See Cal. Evid. Code § 1043(b)(3); see generally City of Santa Cruz v. Superior Court, 49 Cal.3d at 82-83. To show "good cause," counsel's declaration in support of a Pitchess motion must "propose a defense or defenses to the pending charges" and "articulate how the discovery sought [might] lead to relevant evidence or may itself be admissible direct or impeachment evidence." Warrick v. Superior Court, 35 Cal.4th 1011, 1024, 29 Cal.Rptr.3d 2, 112 P.3d 2 (2005) (citations omitted). Counsel's declaration also must articulate "a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." Id. at 1025-26 (citations omitted).
Petitioner does not allege any facts which could have supported such a declaration. Petitioner does not allege what defense or defenses the information sought could have supported, how the discovery sought could have led to admissible evidence, or any plausible "specific factual scenario" of officer misconduct. Petitioner's speculation that information helpful to the defense purportedly existed in the "decoy" officer's file is insufficient to show counsel's unreasonableness in failing to bring a Pitchess motion or any resulting prejudice. See Styers v. Schriro, 547 F.3d 1026, 1029 n.5 (9th Cir. 2008), cert, denied, 558 U.S. 932 (2009) ("Generally, a defendant claiming ineffective assistance of counsel for failure to file a particular motion must not only demonstrate a likelihood of prevailing on the motion, but also a reasonable probability that the granting of the motion would have resulted in a more favorable outcome in the entire case."); Osumi v. Giurbino, 445 F.Supp.2d 1152, 1163 (CD. Cal. 2006), aff 'd, 312 Fed.Appx. 23 (9th Cir. 2008), cert, denied, 556 U.S. 1109 (2009) ("petitioner's mere speculation regarding evidence possibly contained in the arresting officers' personnel files is manifestly insufficient to demonstrate petitioner was in any manner prejudiced by trial counsel not filing a Pitchess motion"). Accordingly, Petitioner is not entitled to federal habeas relief on this claim.
6. Failure to Seek Suppression of the Alleged "Decoy" Testimony and/or to Seek Dismissal Based on That Alleged Testimony
In confused allegations, Petitioner faults counsel for failing towfile[] a Motion to supress [sic], and/or dismiss the case, because everything to do with the Decoy was highly questionable, and everything afterwards, including Asriah's interview inregards [sic] to the main Detective asking her the questions had been in trouble for falsifying reports, this also was told to the Petitioner's attorney by the Defense's human trafficking Expert, this all is Fruit of the Poisonous Tree" (Petition, Ex. B, pp. 24-25) (original emphasis). Petitioner alleges no plausible legal basis for the suppression of any testimony concerning the events of October 21, 2015 or Ariah's statements to police on that date, much less for dismissal of the case. The "decoy" officer did not testify. The allegation that the "decoy" officer was fired for unrelated alleged criminal acts does not show any basis to suppress any trial evidence, much less to dismiss Petitioner's case. See Blackledge v. Allison, 431 U.S. U.S. 63, 75 n.7 (1977) ("the petition is expected to state facts that point to a real possibility of constitutional error") (citation, internal quotations and brackets omitted). Petitioner has not shown counsel's unreasonableness in this regard, or any resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 694 (1984) ("Strickland").
7. Failure to Subpoena and Call the "Decoy" Officer as a Witness
Petitioner also contends counsel erred by failing to subpoena and call the "decoy" officer as a witness "so that Petitioner could be confronted by the Key witness against him" (Petition, Ex. B, p. 25). Petitioner argues that he had a constitutional right to confront and cross-examine the "decoy" officer (id.).
Petitioner evidently misunderstands the Confrontation Clause. The Confrontation Clause does not require the prosecution or the defense to call any particular person as a witness; rather, as indicated above, it prohibits the admission of an out-of-court testimonial statement unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. See Crawford v. Washington, 541 U.S. 36, 59 (2004).
Furthermore, to the extent Petitioner contends counsel's failure to call "decoy" officer as a defense witness supposedly deprived Petitioner of allegedly exculpatory testimony, Petitioner does not demonstrate what testimony counsel could have elicited from the "decoy" which would have benefitted Petitioner's defense. In fact, in Petitioner's statement to police on October 22, 2015, introduced at trial, Petitioner appeared to admit that the "decoy" officer had offered Petitioner money during that incident. Additionally, evidence independent of the "decoy" showed Petitioner had participated in setting up the "date" for Asriah on October 21, 2015. Petitioner has not shown how testimony from the "decoy" supposedly would have exonerated Petitioner, or how the "decoy's" alleged arrest and/or termination because of unrelated criminal charges could have undercut the evidence incriminating Petitioner. Hence, Petitioner has not shown counsel's unreasonableness or any resulting prejudice. See Strickland, 466 U.S. at 694.
When asked about the money that the undercover officer allegedly gave to Petitioner, Petitioner stated that the undercover officer had tried to hand Plaintiff something but Plaintiff didn't "touch it" or "count it" and "just moved away," and that Asriah allegedly then took then the money (S.C.T. 87-88) .
8. Representing in Opening Statement That Petitioner Had Not Known that Asriah Was Underage, When Counsel Purportedly Should Have Known Otherwise
In opening statement, Petitioner's counsel told the jury that, at the time Petitioner met Asriah, Petitioner fell in love with her and did not know that she was underage (R.T. 70-71). Petitioner contends counsel thereby betrayed a misunderstanding of the case (Petition, Ex. B, p. 26). However, Asriah testified that, when she met Petitioner, she initially told Petitioner she was eighteen (R.T. 90-91). The jury also heard a transcript of her October 21, 2015 interview with Detective Arcala in which Asriah stated that she initially told Petitioner she was eighteen (S.C.T. 66). Petitioner has not shown counsel's ineffectiveness in opening statement or any resulting prejudice. See Strickland, 466 U.S. at 694.
9. Alleged Failure to Investigate
Petitioner contends counsel ineffectively failed to investigate the case in various ways, including allegedly: (1) failing to investigate whether Asriah had consented to her son's DNA test; (2) failing to send an investigator to speak with Petitioner's brother at the smog business assertedly run by Petitioner and his brother; (3) failing to investigate the "crime scene," "motor home" and "SUV"; and (4) failing to investigate potential social worker witnesses (Petition, Ex. B, p; 11-12, 26, 28; Ex. D). All of these claims lack merit.
a. Failure to Investigate Asriah's Alleged Unwillingness to Consent to Her Child's DNA Test
At the March, 2017 preliminary hearing, Detective Arcala testified that Asriah verbally agreed to a DNA test for her son (C.T. 89, 95). Petitioner contends that the transcript of Asriah's interview with Detective Arcala supposedly shows that Asriah did not want a DNA test of her son (see Petition, Ex., B., p. 28). In the Petition, Petitioner points to no particular portion of any transcript in the record reflecting Asriah's supposed refusal to allow the test. Petitioner's conclusory allegations are insufficient. 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).In any event, in light of Asriah's uncontroverted trial testimony that Petitioner was the baby's father (see R.T. 82), Petitioner has not shown any prejudice from counsel's alleged failure to investigate whether Asriah gave her consent for the baby's DNA test. See Strickland, 466 U.S. at 694.
Petitioner has lodged in support of the Reply a purported transcript of a July 13, 2016 interview of Asriah by the prosecutor and Detective Arcala (see Reply, ECF Dkt. No. 29-1, pp. 6-53). Petitioner contends portions of this transcript show Asriah's reluctance to agree to a DNA test of her son (Reply, p. 9-10). Initial reluctance does not necessarily equate to ultimate refusal. Moreover, Petitioner did not submit this transcript to the state habeas courts (see Respondent's Lodgements 12, 14, 16, 18). Therefore, under Pinholster, this Court cannot consider this new evidence. See Pinholster, 563 U.S. at 185; Benson v. Chappell, 958 F.3d 801, 824 (9th Cir. 2020), cert, denied, 141 S.Ct. 2779 (2021).
b. Failure to Subpoena Petitioner's Brother
Petitioner argues that he told his attorney to send a defense investigator to speak with Petitioner's brother, with whom Petitioner assertedly ran a smog business (Petition, Ex. B, p. 28). Counsel allegedly sent the investigator to the brother's home, rather than to the smog business, and allegedly never subpoenaed the brother (id.). Petitioner attaches to the Petition a purported declaration of Petitioner's brother, Jeremy Earls, allegedly executed on August 20, 2020, in which Earls states: (1) Earls was present on an unidentified date when Asriah allegedly told Petitioner that she was eighteen years old and that she had been kidnapped by a human trafficker and forced into prostitution in the past; (2) Earls observed that Asriah was "very manipulative and controlling" toward Petitioner (although Earls provided no specific examples of such observed behavior); (3) Earls never saw Petitioner abuse Asriah physically and never saw any bruises or black marks on Asriah; (4) Earls gave Petitioner money for food and gas "almost daily"; (5) Petitioner would leave Ariah at Earls' business when Petitioner went to work doing odd jobs; (6) Petitioner and Asriah were at Earls' business "most of the time every day"; (7) Earls had never seen Petitioner acting as a pimp or human trafficker toward any woman; and (8) Earls possibly could answer other questions "due to constant contact day and night with [Petitioner]" (Petition, Ex. F).
Even assuming arguendo that Earls would have testified in accordance with his declaration, Petitioner has not shown Strickland prejudice from the absence of Earls' testimony. Nothing in the proposed testimony was necessarily inconsistent with the prosecution's evidence that Asriah engaged in prostitution at Petitioner's direction and for Petitioner's benefit. Petitioner has not shown a reasonable probability of a different outcome had Earls testified. See Strickland, 466 U.S. at 694.
c. Failure to Investigate the "Crime Scene," "Motor Home" and "SUV"
Petitioner's conclusory allegations that counsel ineffectively failed to attempt to investigate the "crime scene," "motor home" and "SUV" lack merit. Petitioner does not allege what evidence any such investigation would have yielded, much less any facts showing a reasonable probability that, but for counsel's alleged failure to investigate in the fashion suggested by Petitioner, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694.
d. Failure to Investigate and Call Social Worker Witnesses
Petitioner faults counsel for failing to investigate and call as witnesses social workers who purportedly attempted to contact Asriah at the courthouse, supposedly concerning a child abuse investigation (see Petition, Ex. B, pp. 11-12, 26; Ex. D). According to an exhibit attached to the Petition, assertedly a portion of a "Detention Report" dated September 20, 2017, social workers Magana and Munoz went to the Long Beach courthouse on August 23, 2017, to speak with Asriah, but Detective Arcala allegedly told the social workers that Arcala did not want them to speak to Asriah until the case was over "or his whole case would be blown" because Asriah allegedly would feel like she was "being set up" (Petition, Ex. D, third page). After the hearing, the social workers allegedly saw Asriah, but could not approach her because Asriah allegedly left with an "unknown female," apparently a victim's advocate (id.). Allegedly learning that Asriah was in the prosecutor's office, the social workers assertedly located the prosecutor and said that they wanted to speak with Asriah regarding a "current child abuse investigation" (id.). The prosecutor allegedly said that Asriah had reported to the prosecutor that Asriah allegedly felt threatened and had left from another exit (id.). The prosecutor allegedly told the social workers that Asriah had been cooperative and that the prosecutor did not want Asriah "to be ambushed at the courthouse" (id.) .
In a pretrial proceeding, Petitioner's counsel indicated that Magana then was present in court, and counsel requested that Magana be ordered to return "on call" (R.T. 10-11). The court granted the request (R.T. 11). However, counsel did not call Magana as a defense witness.
The Petition does not allege facts showing how any testimony by the social workers would have materially advanced Petitioner's defense. Petitioner's conclusory allegations are insufficient to show counsel's unreasonableness or any resulting prejudice. See Bible v. Ryan, 571 F.3d 860, 871 (9th Cir. 2009), cert, denied, 559 U.S. 995 (2010) (speculation insufficient to show Strickland prejudice); Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir.), amended on other grounds, 253 F.3d 1150 (9th Cir. 2001) (petitioner failed to establish Strickland prejudice where he did "nothing more than speculate that, if interviewed," the witness would have given helpful information); Ceja v. Stewart, 97 F.3d 1246, 1255 (9th Cir. 1996), cert, denied, 522 U.S. 971 (1997) (rejecting Strickland claim where petitioner failed to explain what compelling evidence would have been uncovered had counsel interviewed more witnesses); United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987) (appellant failed to meet prejudice prong of ineffectiveness claim because he offered no indication of how potential witnesses would have testified or how their testimony might have changed the outcome of the hearing); Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.), cert, denied, 502 U.S. 902 (1991) (petitioner cannot satisfy Strickland standard by "vague and conclusory allegations that some unspecified and speculative testimony might have established his defense"); Her v. Jacquez, 2011 WL 1466868, at *25 (E.D. Cal. Apr. 18, 2011) ("to establish prejudice caused by the failure to call a witness, Petitioner must show that the witness was likely to have been available to testify, that the witness would have given the proffered testimony and that the witness would have created a reasonable probability that the jury would have reached a verdict more favorable to Petitioner").
To the extent Petitioner relies on documents lodged with the Reply which allegedly concern the possible testimony of the proposed social worker witnesses or the victim's advocate (see Reply, pp. 17-18, attachment 8, ECF Dkt. No. 29-1, pp. 89-81, Attachment 9, ECF Dkt. No. 29-1, pp. 93-94), Petitioner did not present these documents in his state court habeas petitions (see Respondent's Lodgments 8, 12, 14, 16, 18). Hence, this federal Court cannot consider them. See Pinholster, 563 U.S. at 185; Benson v. Chappell, 958 F.3d at 824.
10. Alleged Ineffectiveness in Closing Argument
"The right to effective assistance extends to closing arguments." Yarborouqh v. Gentry, 540 U.S. 1, 5 (2003) (citations omitted). "Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage." Id. at 5-6.
Petitioner faults counsel for assertedly making several concessions in closing argument, including allegedly: (a) conceding that Petitioner had no viable defense; (2) admitting that Asriah was underage and that Petitioner was her pimp; (3) suggesting that Asriah's March, 2017 preliminary hearing testimony was not credible; and (4) confusing the jury and prejudicing Petitioner's case by stating that Asriah's first interview was the most truthful (Petition, Ex. B, p. 27).
Contrary to Petitioner's argument, counsel did not concede that Petitioner lacked a viable defense. As indicated above, counsel reasonably decided to focus on the human trafficking charge, the great bodily injury allegation and the dissuading counts. Counsel's strategy was to focus the defense on the human trafficking charge, arguing that Asriah, not Petitioner, was the decision maker with respect to the prostitution. In light of the evidence, including inescapable evidence that Asriah was a minor when Petitioner fathered her child, and the evidence of Petitioner's inculpatory jail phone calls and text messages, counsel's decision essentially to concede Petitioner's manifest guilt on the charges of sex with a minor, pimping and pandering was not unreasonable. See Roblero v. Kernan, 756 Fed.Appx. 688, 690 (9th Cir. 2018), cert, denied, 139 S.Ct. 2020 (2019) ("Where the evidence of guilt on some counts is overwhelming, it may be sound strategy for defense counsel to concede guilt on those charges and focus on the more defensible charges, particularly if the defensible charges carry a greater penalty.") (citations omitted); Hovey v. Avers, 458 F.3d 892, 906 (9th Cir. 2006) ("defense attorneys often must make strategic decisions as to what arguments to include in closing arguments and may choose to acknowledge the 'shortcomings' of their client's case in order to build credibility with the jury"); United States v. Thomas, 417 F.3d 1053, 1058 (9th Cir. 2005), cert. denied, 546 U.S. 1121 (2006) (counsel reasonably conceded guilt on charges as to which there was overwhelming supporting evidence, in order to concentrate on defending the counts "that carried the stiffest penalties") (footnote omitted); United States v. Bradford, 528 F.2d 899, 900 (9th Cir. 1975), cert, denied, 425 U.S. 914 (1976) (counsel not ineffective for conceding that evidence was "overwhelming" that defendant committed robbery but arguing for a lesser offense); United States v. Holman, 314 F.3d 837, 840 (7th Cir. 2002), cert, denied, 538 U.S. 1058 (2003) ("[c]onceding an indefensible charge is thought to build credibility with a jury by acknowledging the overwhelming evidence of guilt for that particular charge, creating goodwill and trust that can be applied towards arguments attacking the remaining charges"); Clozza v. Murray, 913 F.2d 1092, 1099 (4th Cir. 1990), cert, denied, 499 U.S. 913 (1991) (noting "distinction which can and must be drawn between ... a tactical retreat and ... a complete surrender").
As indicated above, in the Reply Petitioner appears to concede he committed the offense of sex with a minor (Reply, p.14) .
Petitioner also faults counsel for allegedly telling the jury that Asriah's preliminary hearing testimony, which assertedly was favorable to Petitioner, was not credible (Petition, Ex. B, p. 27). Counsel told the jury: "If you believe her prelim transcript, which I suspect none of you do, then this case is over. My client is not guilty of anything." (R.T. 524). Arguing that the evidence did not show human trafficking, counsel pointed out that, in Asriah's first interview with police, she made statements purportedly inconsistent with the human trafficking offense, including statements that Petitioner allegedly did not know the price for a prostitution act, that Asriah allegedly was the one who decided whether to place the ads, that Asriah allegedly referred to her customers as "my clients" and "my Johns," and that Ariah and Petitioner were in a relationship from which one could infer that Petitioner was in love with her (R.T. 525-26). Characterizing these statements as truthful and using them to challenge the human trafficking charge was a reasonable defense strategy.
Counsel's decision to express suspicion that the jurors did not believe Asriah's March, 2017 preliminary hearing testimony was not an unreasonable decision in the context of counsel's overall strategy. The truthfulness of Asriah's preliminary hearing testimony was gravely suspect. For example, Asriah testified at the preliminary hearing that she did not remember where she had her first baby, and then said she had the baby in a car (C.T. 27-29). She testified that she did not know when or how she first met Petitioner, remembered "nothing" about their relationship, did not recall Petitioner's text messages to her and did not recall with whom she was arrested on October 21, 2015 (C.T. 31-33, 50-51). She testified that she did not recall any interview with Detective Arcala on October 21, 2015, and claimed that the tape of that interview was "all lies" (C.T. 33-34, 61, 65-66). She testified that some, but not all, of the voice on the tape of the interview was not hers (C.T. 45-46). She said that a photo of the motor home did not "look familiar" (C.T. 48). Asked whether her statements to police the day she went to the hospital with her baby were true, she responded: "I don't know. I could have been truthful, I could have been lying at some point." (C.T. 52-53). Asked whether she recognized herself in photographs taken in October of 2015, she intimated that the person could be someone else who looked like her (R.T. 48-49). In these circumstances, counsel's decision to concede a suspicion the jury would not deem Asriah's preliminary hearing testimony truthful, and then to argue the truth of some of Asriah's favorable statements in the October 21, 2015 interview which arguably undercut the human trafficking charge, was not an unreasonable decision.
For the foregoing reasons, Petitioner has not shown counsel's unreasonableness in closing argument, or any resulting prejudice. See Strickland, 466 U.S. at 694.
11. Conclusion
Upon de novo review, this Court concludes that Petitioner has failed to demonstrate any unreasonable performance by his trial counsel. Under AEDPA review, this Court concludes that the state courts' decision that Petitioner failed to demonstrate Strickland prejudice 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, 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on his claims that trial counsel was ineffective.
Any claim of alleged cumulative prejudice from counsel's purported ineffectiveness (see Petition, Ex. B, pp. 16, 29) lacks merit. "When an attorney has made a series of errors that prevents the proper presentation of a defense, it is appropriate to consider the cumulative impact of the errors in assessing prejudice." Turner v. Duncan, 158 F.3d 449, 457 (9th Cir. 1998). Because Petitioner has not shown that counsel made any errors preventing the proper presentation of a defense, any claim of cumulative Strickland error necessarily fails.
VII. Petitioner's Claims of Ineffective Assistance of Appellate Counsel Do Not Merit Federal Habeas Relief.
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); see also Daire v. Lattimore, 818 F.3d 454, 461 (9th Cir. 2016) (en banc) (clearly established Supreme Court law holds that Strickland applies to claim of ineffective assistance of counsel in noncapital sentencing proceedings). 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.
Petitioner's claim that appellate counsel ineffectively failed to raise on appeal the trial court's allegedly improper involvement in plea proceedings and trial counsel's alleged ineffectiveness in connection therewith fails because, as discussed above, these claims lack merit. Appellate counsel cannot be deemed ineffective for failing to make a futile argument. See 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 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).
Petitioner's claim that appellate counsel ineffectively neglected to challenge trial counsel's failure to impeach Asriah with her purportedly "false accusation" fails for the same reasons, discussed above, that Petitioner's claim of ineffective assistance of trial counsel in this regard fails. See Moormann v. Ryan, 628 F.3d at 1109; Featherstone v. Estelle, 948 F.2d at 1507.
For the reasons discussed above, counsel also reasonably could have determined that raising on appeal any of the other claims asserted in the present Petition would have been fruitless. Again, counsel cannot be deemed ineffective for failing to raise a meritless claim. See Gonzalez v. Knowles, 515 F.3d at 1017; Rupe v. Wood, 93 F.3d at 1445. Further, Petitioner has not shown that counsel's failure to raise on appeal any other claim asserted in the present Petition prejudiced Petitioner in the state appellate proceedings.
Petitioner's peculiar argument that appellate counsel should have filed a "Wende" brief is plainly meritless. Under People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (1979), if appellate counsel concludes that an appeal would be frivolous, counsel may file a brief: (1) summarizing the procedural and factual history of the case; (2) attesting that counsel has reviewed the record, explained counsel's evaluation of the case to his client, provided the client with a copy of the brief and informed the client of his right to file a pro se supplemental brief; and (3) requesting the appellate court to examine the record independently for "arguable issues." Smith v. Robbins, 528 U.S. at 265 (citing People v. Wende, 26 Cal.3d at 441-42). Here, counsel did not deem the claims counsel raised on appeal to be frivolous. Nor did the California Court of Appeal find any of those claims to be frivolous. Counsel was not ineffective for failing to conclude that any appeal would be frivolous (or for failing to file a brief effectively misrepresenting that counsel had so concluded). Cf. Thomason v. Runnels, 2008 WL 544389, at *8-10 (E.D. Cal. Feb. 26, 2008), adopted, 2008 WL 5381429 (E.D. Cal. Dec. 22, 2008) (rejecting argument that counsel was ineffective for raising an unmeritorious claim on appeal rather than filing a Wende brief).
Petitioner also has not shown any reasonable probability that, had counsel filed a Wende brief, the Court of Appeal would have examined the record, discerned some supposedly material error and then issued a ruling favorable to Petitioner. Hence, Petitioner has not shown Strickland prejudice. See Strickland, 466 U.S. at 694.
Finally, Petitioner faults appellate counsel for failing to obtain a complete trial record, contending that the record did not include any pre-trial motions, any "In Lime" motion, a Marsden motion and an "Ex-Parte recorded hearing . . . with the Judge, DA, and complaining witness Asriah, but Defendant and his attorney were excluded" (Petition, Ex. B, p. 30). With the exception of the alleged "Ex Parte" hearing (discussed below), Petitioner does not identify any specific pretrial proceeding, motion in limine or Marsden motion which supposedly was missing in the record. Nor does he demonstrate how the absence from the record of evidence of these proceedings prejudiced Petitioner. Petitioner further fails to demonstrate how it purportedly was unreasonable for counsel not to include in the appellate record any alleged transcripts of, or documents reflecting, the proceedings identified by Petitioner. See United States v. Taylor, 802 F.2d 1108, 1119 (9th Cir. 1986), cert, denied, 479 U.S. 1094 (1987) ("vague and speculative assertions" that counsel lacked professional competence insufficient under Strickland; see also Powell v. California, 408 Fed.Appx. 96, 98 (9th Cir.), cert, denied, 564 U.S. 1043 27 (2011) (petitioner's conclusory assertion that counsel was "clearly ineffective," unsupported by any allegations of fact demonstrating deficient performance, did not warrant habeas relief) (citation and quotations omitted). Nor does Petitioner demonstrate a reasonable probability of a different outcome had counsel included these allegedly missing documents in the appellate record. See Bible v. Ryan, 571 F.3d 870, 871 (9th Cir. 2009), cert, denied, 559 U.S. 995 (2010) (speculation insufficient to show Strickland prejudice).
See People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (1970) (California's seminal case on substitution of counsel).
With the exception of the "Ex Parte" hearing, Petitioner does not deny that he was present at all of the pretrial proceedings.
With respect to the "Ex-Parte" hearing referenced by Petitioner, in that proceeding the judge merely admonished Asriah for arriving late to court and ordered her to return to court on a certain date (see R.T. 13). Although it does appear that Petitioner and his counsel were not present during this brief proceeding, the transcript of this proceeding is part of the record (see R.T. 12-14). Hence, Petitioner's claim that appellate counsel failed to include the transcript of this proceeding in the record is meritless. The transcript was in the record. Even so, the transcript was not of any material consequence to Petitioner's appeal.
For the foregoing reasons, the state courts' rejection of Petitioner's claims of alleged ineffective assistance of appellate counsel 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 his claims that appellate counsel was ineffective.
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 Pinholster, 563 U.S. at 185; 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. Petitioner's request for the appointment of counsel is also denied. See Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir.), cert, denied, 479 U.S. 867 (1986).
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 (2 0) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.