Opinion
5:18-cv-01191-DSF (MAA)
03-14-2023
RAUL OTERO CAZARES, Petitioner, v. KATHLEEN ALLISON, Secretary of the California Department of Corrections and Rehabilitation, Respondent.
AMENDED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MARIA A. AUDERO UNITED STATES MAGISTRATE JUDGE
This Amended Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
INTRODUCTION
On June 1, 2018, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On October 30, 2020, Respondent filed an Answer. (ECF No. 55.) On December 18, 2020, the Court granted Petitioner's request for appointment of counsel. (ECF No. 65.) On August 19, 2021, Petitioner's counsel filed a Traverse. (ECF No. 79.)
On November 3, 2021, the undersigned Magistrate Judge issued a Report recommending denial of the Petition after considering eighteen claims for habeas relief. (ECF Nos. 81-82.) On December 10, 2021, Petitioner's counsel filed Objections in which he argued that Petitioner in fact was raising forty claims and should receive consideration of all of them. (ECF No. 87 at 6-11.) This Amended Report follows.
For the reasons discussed below, upon consideration of Petitioner's forty claims, the Court recommends that the Petition be denied and that this action be dismissed with prejudice.
PROCEDURAL SUMMARY
On October 23, 2015, a Riverside County Superior Court jury convicted Petitioner of rape. (Lodgment No. 12, Clerk's Transcript [“CT”] 118; Lodgment No. 15, 2 Reporter's Transcript [“2 RT”] 357.) On December 11, 2015, the trial court sentenced Petitioner to six years in state prison. (CT 155; 2 RT 384.)
On direct appeal, on July 18, 2016, Petitioner's appellate counsel filed a “no issue” brief in accordance with the procedures outlined in People v. Wende, 25 Cal.3d 436 (1979), and Anders v. California, 386 U.S. 738 (1967). (Lodgment No. 2.) The brief requested independent review of the entire record to determine whether it revealed any issues that would, if resolved favorably to Petitioner, result in reversal or modification of the judgment. (Id. at 9.) On October 18, 2016, Petitioner filed a pro per supplemental brief. (Lodg. No. 3.) In an unpublished decision filed on December 14, 2016, the California Court of Appeal affirmed the judgment of conviction. (Lodgment No. 1.) Petitioner did not file a Petition for Review with the California Supreme Court. (Lodgment No. 4.)
On June 5, 2017, Petitioner filed a habeas petition with the Riverside County Superior Court. (Lodgment No. 5.) On June 8, 2017, the Superior Court denied the petition. (Lodgment No. 6.)
On August 2, 2017, Petitioner filed a document entitled “Reconsideration of New Evidence” with the California Court of Appeal. (Lodgment No. 7.) After construing the filing as a habeas petition, the California Court of Appeal denied it on August 18, 2017. (Lodgment Nos. 8-9.)
On September 25, 2017, Petitioner filed a habeas petition with the California Supreme Court. (Lodgment No. 10.) On November 29, 2017, the California Supreme Court denied the petition. (Lodgment No. 11.)
On June 1, 2018, Petitioner filed the instant Petition (“Petition”) in federal court. (ECF No. 1.)
On August 2, 2018, Respondent filed a Motion to Dismiss the Petition as unexhausted. (ECF No. 10.) On December 3, 2018, the Court denied the motion without prejudice because Petitioner had requested a stay under Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 16.) After receiving further briefing from the parties, the Court granted Petitioner's stay request on May 7, 2019. (ECF No. 27.)
On June 17, 2019, Petitioner filed a habeas petition with the Riverside County Superior Court. (Lodgment No. 17.) On June 21, 2019, the Superior Court denied the petition. (Lodgment No. 18.)
On August 30, 2019, Petitioner filed a habeas petition with the California Court of Appeal. (Lodgment No. 19.) On October 24, 2019, the California Court of Appeal denied the petition. (Lodgment No. 20.)
On January 27, 2020, Petitioner filed a habeas petition with the California Supreme Court. (Lodgment No. 21.) On April 1, 2020, the California Supreme Court denied the petition. (Lodgment No. 22.)
On April 20, 2020, Petitioner filed a request to proceed in which he notified the Court that he wished to delete a claim that the Court had construed as “Ground Eight.” (ECF No. 38 at 2, 7; see also ECF No. 16 at 3; ECF No. 39 at 2 and n.2.) In that claim, Petitioner had argued that his trial counsel was ineffective for failing to investigate satellite photographs that would have shown the victim approaching Petitioner on the day of the rape. (ECF No. 1 at 23.)
On April 24, 2020, the Court issued an order lifting the stay. (ECF No. 39.) In the same order, the Court directed Petitioner to specify the grounds for relief on which he wished to proceed in the instant federal habeas action. (Id. at 3.) It had appeared to the Court that Petitioner wished to proceed only on Grounds One to Seven and Grounds Nine to Nineteen. (Id. at 2.) On May 11, 2020, Petitioner filed a “Notice to Proceed” in which he stated, “Just go ahead and proceed” and “Petitioner thanks the court for the chance to do nothing . . . check-mate . . . check.” (ECF No. 41.)
On October 30, 2020, Respondent filed an Answer. (ECF No. 55.) On December 18, 2020, the Court appointed counsel for Petitioner, because the Federal Public Defender's Office had expressed its willingness represent him and because Respondent did not oppose the appointment. (ECF No. 65.) On August 19, 2021, Petitioner's counsel filed a Traverse. (ECF No. 79.)
On November 3, 2021, the undersigned Magistrate Judge issued a Report and Recommendation that addressed Grounds One to Seven and Nine to Nineteen. (ECF Nos. 81-82.) On December 10, 2021, Petitioner's counsel filed Objections in which he argued that the Court also should consider Grounds Twenty to Forty-One. (ECF No. 87 at 6-11.) This Amended Report follows.
FACTUAL SUMMARY
A factual summary from a state appellate court's opinion is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1) that may be rebutted only by clear and convincing evidence that the facts were otherwise. See Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009) (citation omitted). Petitioner does not challenge the following factual summary set out in the California Court of Appeal's decision:
Doe met [Petitioner] in 1998 at work. Doe and [Petitioner] first had sex together in 1999. From 2001 to 2002, Doe rented a room from [Petitioner]. During that time, Doe and [Petitioner] continued to have sex with each other. In 2002, Doe moved to an apartment with her mother, and then to a house Doe bought in 2003. [Petitioner] and Doe continued their sexual relationship. [Petitioner] moved in to Doe's home around 2005, after he was fired from his job.
[Petitioner] and Doe stopped having sex with each other in 2006, because of [Petitioner's] verbal abuse. [Petitioner], however, continued living in Doe's home, during which he was verbally and physically abusive to Doe. The abuse got worse after Doe's mother moved out in 2007. [Petitioner] did not pay rent but did yardwork and home repairs for Doe, and contributed to groceries when able to do so.
Doe testified that from 2007 to 2014, her relationship with [Petitioner] was contentious and he was abusive to her on numerous occasions. On one occasion, [Petitioner] attempted to choke her. On another occasion, [Petitioner] told Doe he was never going to leave her home and, if she tried to force him to leave, he would burn it down. Doe told him if he did, he would go to jail. [Petitioner] said when he got out, he would find her and put her in the hospital permanently. Doe testified that she was “really scared” of [Petitioner]. The next morning [Petitioner] agreed to move to Doe's guest house.
[Petitioner] continued to live on Doe's property but Doe did not have sex with him from 2007 to 2014. Two weeks before the charged crime, [Petitioner] returned from a three-week trip. Doe had put on the table [Petitioner's] gun, which [Petitioner] had let Doe borrow for
protection in his absence. [Petitioner] became angry because Doe turned on the television while he was talking on the phone. [Petitioner] hit the remote out of Doe's hand and broke it. Then he picked up the gun on the table and said to Doe, “I ought to put a bullet in your head right now.” [Petitioner's] other hand was on the ammunition clip.
Doe froze. While watching [Petitioner], she calculated that she had enough time to run out the front door before [Petitioner] loaded the gun. With his right hand, [Petitioner] pointed his index finger at Doe, imitating a gun. [Petitioner] then picked up his belongings and walked out. Doe went to the courthouse and picked up restraining order forms. She did not fill out and file the restraining order application that day.
On the day of the rape incident, at Doe's request, [Petitioner] removed his computer and other belongings from Doe's house and placed them in Doe's guest house where [Petitioner] was living. Doe intended to change the locks on her house to prevent [Petitioner] from having free access to her home. [Petitioner] was angry about having to move his belongings into the guest house.
That same day, [Petitioner] entered Doe's kitchen to give Doe a $100 check for a vehicle he was purchasing from Doe. Doe took the check. Doe testified that when she went to her bedroom to put it on her dresser, [Petitioner] followed her to her bedroom and, without saying anything, pushed Doe onto her bed on her back. Doe said, “what are you doing?” [Petitioner] fell on top of Doe on her bed. Doe said, “get off of me” and tried to hit him. She again said “get off of me” and “[d]on't do this.” [Petitioner] said, “[Y]ou've taken everything from me. Now I'm going to get something for myself.”
Doe testified [Petitioner] took off Doe's clothes, including her pants, underpants, shirt and bra. Doe tried but was unable to get out from underneath him. [Petitioner] then put his penis in Doe's vagina while Doe was trying to hit him and was telling him not to do it. [Petitioner] ignored Doe's pleas.
Doe testified she eventually gave up fighting [Petitioner] because it was not doing any good and she feared [Petitioner] would hurt her. She was afraid of [Petitioner] because of his threats made earlier that month. After [Petitioner] ejaculated, he put his pants back on and said to Doe, “[T]his is better than what a tramp like you deserves.” Doe told him to get out, and he left.
Doe immediately put her clothes on, grabbed her restraining order papers she had filled out, and went to the courthouse to file them. Doe left as quickly as possible because she feared [Petitioner] would return and shoot her. When she submitted her restraining order papers to the court clerk, she started crying. The clerk asked her what was wrong. Doe told her she had just been raped. A police officer immediately came over and asked her to come with him. Doe then went to the hospital for a sexual assault response team (SART) exam. The exam showed Doe suffered abrasions and bleeding to her external genitalia and a bruise to her right buttock.
That same day, Detective Brazil set up a pretext call for Doe to call [Petitioner] regarding the rape incident. During two recorded pretext calls, [Petitioner] denied raping Doe. He complained about being forced to leave Doe's home and not having any money. In response to Doe accusing him of raping her, he said, “[Y]ou're not 16 anymore. And it's not like you didn't have sex with me in the past. You didn't incur any damages. Not traumatized by it. I don't know
what you want. You took from me. I'm taking from you. It's as simple as that.” Doe denied taking anything from him.
During the recorded call, Doe asked [Petitioner] why he raped her. [Petitioner] responded, “You weren't f----n' raped. It wasn't like a f----n' stranger on the street. It wasn't like in a dark alley. And it wasn't like you're in some f----n' . . . convent all over again. Where you're reinventing your . . . virginity.” [Petitioner] added, “Yeah you said, ‘No.' I didn't see f-----g tooth-and-nail, or screaming your head off, okay?” Doe responded, “I was trying to. I was pushing you. I was hitting you.” In response, [Petitioner] said, “Oh yeah. I-I have scratches. [¶] . . . [¶] . . . I have bite marks.”
Later during the recorded conversation, [Petitioner] declared, “Call it payback, I guess. You push-you kick a dog enough f----n' times, it's gonna bite you.” A little later, [Petitioner] said, “[y]ou're not f-----g raped. You know, it's not like I'm a cluck off the f n' street or some . . . ninja-style dressed (unintelligible) creeping into your bedroom. You've known me for how many f-----g years?” Doe said they had not had sex for almost eight years. [Petitioner] replied, “tough shit.”
[Petitioner] testified at trial that he did not rape Doe. He claimed they had consensual sex. Doe asked him to come inside the house because she wanted to show him something. She led him to her bedroom, put her hands on his cheeks, and kissed him. Doe undressed herself, and [Petitioner] took off his boots, socks, and jeans. [Petitioner] asked for oral sex. Doe said no. [Petitioner] helped Doe take off her shirt and then they had sex for five or 10 minutes.(Lodgment No. 1 at 2-6.)
PETITIONER'S CLAIMS
Ground One: The trial court denied Petitioner's equal protection rights by excluding a videotape depicting sex between Petitioner and the victim. (ECF No. 1 at 12, 15, 20-21.)
Because the pleadings do not always use consecutive page numbers, the page numbers cited in this Report from the pleadings are the numbers automatically tgenerated by the Court's ECF filing system. However, the page numbers cited in is Report from the state courts' transcripts and opinions are the numbers originally generated in those documents.
Ground Two: The trial court denied Petitioner's equal protection rights by allowing an unfair gender balance on the jury, which consisted of eight females and four males. (ECF No. 1 at 12.)
Ground Three: The trial court denied Petitioner's due process rights by failing to obtain Petitioner's valid waiver of his constitutional rights before accepting a plea of guilty or no contest. (ECF No. 1 at 12.)
Ground Four: Trial counsel was ineffective for failing to investigate the victim's adverse history of mental and physical ailments. (ECF No. 1 at 13-14.)
Ground Five: The trial court erred in refusing to recognize Petitioner's common law living arrangement with the victim. (ECF No. 1 at 17.)
Ground Six: Trial counsel was ineffective for failing to request and show Petitioner copies of the bank checks used against Petitioner from 17 years earlier. (ECF No. 1 at 21-22; ECF No. 79 at 24-30.)
Ground Seven: Trial counsel was ineffective for failing to include all audio recordings taken by the police. (ECF No. 1 at 23.)
Ground Eight: Withdrawn. (ECF No. 38 at 2, 7; ECF No. 39 at 2 and n.2.)
Ground Nine: Trial counsel was ineffective for failing to dispute the DNA results and to ascertain if there were traces of other individuals. (ECF No. 1 at 23.)
Ground Ten: Trial counsel was ineffective for failing to summon mental health professionals to testify in Petitioner's defense, and who would have disputed the rape examination. (ECF No. 1 at 23.)
Ground Eleven: Trial counsel was ineffective for failing to make sufficient and stern objections when the prosecutor baited Petitioner into a staring match in front of the jury. (ECF No. 1 at 23-24.)
Ground Twelve: Trial counsel was ineffective for failing to protest vehemently to Petitioner's excessive bail amount. (ECF No. 1 at 24.)
Ground Thirteen: Trial counsel was ineffective for failing to contest or object to Petitioner's being limited to a “yes” or “no” response during the line of questioning while on the witness stand. (ECF No. 1 at 24-25.)
Ground Fourteen: The prosecutor committed misconduct by making disparaging comments about the relationship between Petitioner and the victim. (ECF No. 1 at 25.)
Ground Fifteen: The prosecutor committed misconduct by labeling Petitioner an “alpha male.” (ECF No. 1 at 25-26.)
Ground Sixteen: The prosecutor committed misconduct by underhandedly displaying pictures of Petitioner's firearms on the court table. (ECF No. 1 at 2627.)
Ground Seventeen: An employee of the prosecutor unlawfully conducted surveillance of Petitioner during trial recesses. (ECF No. 1 at 27-28.)
Ground Eighteen: Trial transcripts were censored and then altered to fit a narrative. (ECF No. 1 at 28.)
Ground Nineteen: The police conducted an illegal search of Petitioner's home for a firearm. (ECF No. 1 at 28-29.)
Ground Twenty: The trial court erred in excluding the videotape depicting sex between Petitioner and the victim. (ECF No. 1 at 43, 46.)
Ground Twenty-One: The trial court erred in failing to instruct the jury about the sex tape and about Petitioner's right to be present. (ECF No. 1 at 44, 63.)
Ground Twenty-Two: The trial court erred in not instructing the jury on the affirmative defense of duress. (ECF No. 1 at 45.)
Ground Twenty-Three: The trial court erred in instructing the jury on reasonable doubt. (ECF No. 1 at 45-46, 50.)
Ground Twenty-Four: The trial court erred in allowing evidence of Petitioner's commission of an uncharged gun offense two weeks before the charged rape. (ECF No. 1 at 43.)
Ground Twenty-Five: The evidence was insufficient to convict Petitioner of rape. (ECF No. 1 at 49.)
Ground Twenty-Six: The prosecutor committed misconduct in his closing argument to the jury. (ECF No. 1 at 49-50.)
Ground Twenty-Seven: The trial court erred in allowing Petitioner to waive his right to be present during a discussion of jury instructions. (ECF No. 1 at 59-63.)
Ground Twenty-Eight: The trial court violated Petitioner's constitutional rights by setting him up as a racial target. (ECF No. 1 at 40, 64.)
Ground Twenty-Nine: The prosecutor presented a detective's fabricated and irrelevant testimony. (ECF No. 1 at 64.)
Ground Thirty: The trial court erred in allowing the detective's testimony. (ECF No. 1 at 64.)
Ground Thirty-One: The trial court erred in instructing the jury with CALJIC Nos. 2.50.1 and 2.50.01. (ECF No. 1 at 65-67.)
Ground Thirty-Two: The trial court erred in allowing prosecution exhibits whose prejudicial effect outweighed their probative value. (ECF No. 1 at 66.)
Ground Thirty-Three: Trial counsel was ineffective for failing to challenge Doe regarding the prior assault with a firearm. (ECF No. 1 at 40, 43.)
Ground Thirty-Four: Trial counsel was ineffective for failing to impeach Doe with her prior inconsistent statements. (ECF No. 1 at 54-57.)
Ground Thirty-Five: Trial counsel was ineffective for failing to introduce Doe's medical records and subpoena her physician to testify as impeachment. (ECF No. 1 at 44, 46, 48.)
Ground Thirty-Six: Trial counsel was ineffective for failing to present expert testimony regarding battered women's syndrome. (ECF No. 1 at 46-47.)
Ground Thirty-Seven: Trial counsel was ineffective for waiving Petitioner's right to be present during discussions on instructions and evidence. (ECF No. 1 at 50-53, 60.)
Ground Thirty-Eight: Trial counsel was ineffective for failing to raise contemporaneous objections before and during trial. (ECF No. 1 at 62.)
Ground Thirty-Nine: Trial counsel was ineffective for failing to file a motion to suppress the evidence and a Pitchess motion. (ECF No. 1 at 63.)
Ground Forty: Trial counsel was ineffective for failing to object to prosecutorial misconduct. (ECF No. 1 at 63-64.)
Ground Forty-One: The constitutional violations Petitioner suffered deprived him of a fair trial. (ECF No. 1 at 58.)
STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):
“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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.”
Under the AEDPA, the “clearly established Federal law” that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Carey v. Musladin, 549 U.S. 70, 74 (2006).
Although a particular state court decision may be both “contrary to” and “an unreasonable application of” controlling Supreme Court law, the two phrases have distinct meanings. See Williams, 529 U.S. at 391, 413. A state court decision is “contrary to” clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); Williams, 529 U.S. at 405-06. When a state court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is “unconstrained by § 2254(d)(1).” See Williams, 529 U.S. at 406.
State court decisions that are not “contrary to” Supreme Court law may be set aside on federal habeas review only “if they are not merely erroneous, but ‘an unreasonable application' of clearly established federal law, or based on ‘an unreasonable determination of the facts.'” See Early, 537 U.S. at 11 (citing 28 U.S.C. § 2254(d)) (emphasis added). A state-court decision that correctly identifies the governing legal rule may be rejected if it unreasonably applies the rule to the facts of a particular case. See Williams, 529 U.S. at 406-10, 413 (e.g., the rejected decision may state the Strickland standard correctly but apply it unreasonably); Woodford v. Visciotti, 537 U.S. 19, 24-27 (2002) (per curiam). However, to obtain federal habeas relief for such an “unreasonable application,” a petitioner must show that the state court's application of Supreme Court law was “objectively unreasonable.” Woodford, 537 U.S. at 24-27; Williams, 529 U.S. at 413. An “unreasonable application” is different from an erroneous or incorrect one. See Williams, 529 U.S. at 409-10; Woodford, 537 U.S. at 25; Bell v. Cone, 535 U.S. 685, 699 (2002). The same standard of objective unreasonableness applies where the petitioner is challenging the state court's factual findings under 28 U.S.C. § 2254(d)(2). See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.”).
Here, Petitioner's claims in Ground Four and Grounds Twenty to Forty-One are subject to review under the AEDPA. The California Supreme Court summarily denied these claims on the merits. (Lodgment Nos. 10-11.) Thus, the Court “must determine what arguments or theories . . . could have supported the state court's” determination. Shinn v. Kayer, 141 S.Ct. 517, 524 (2020) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). “Then we must assess whether ‘“fairminded jurists could disagree” on the correctness of the state court's decision' if based on one of those arguments or theories.” Shinn, 141 S.Ct. at 524 (quoting Richter, 562 U.S. at 101).
Petitioner's remaining claims in Grounds One to Three, Five to Seven, and Nine to Nineteen are not subject to the AEDPA standard. They were rejected by the California Supreme Court solely on procedural grounds. (Lodgment Nos. 21-22.) Thus, review of these claims is de novo. See Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
DISCUSSION
I. Initial Procedural Arguments.
Respondent raises two initial arguments for why some of Petitioner's claims should not be considered on the merits. First, Respondent argues that subject matter jurisdiction is lacking for some of Petitioner's claims because they fail to present federally cognizable questions. (ECF No. 55-1 at 37-38.) A lack of cognizability, however, is not equivalent to a lack of subject matter jurisdiction. See Bean v. Matteucci, 986 F.3d 1128, 1132 (9th Cir. 2021) (“We conclude that the state mischaracterizes the cognizability question as a subject-matter jurisdiction issue.”) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1988) (“It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject matter jurisdiction, i.e., the courts' statutory or constitutional powers to adjudicate the case.”) (emphasis removed)); see also United States v. Doe, 810 F.3d 132, 149 (3d Cir. 2015) (“If his claim is not cognizable, then he has failed to state a claim on which relief may be granted, but he properly invoked the District Court's jurisdiction.”) (citing Bell v. Hood, 327 U.S. 678, 681 (1946)). Because Petitioner raises federal habeas claims challenging his conviction, the Court has subject matter jurisdiction to review them, regardless of whether they are cognizable.
Second, Respondent argues that some of Petitioner's claims are procedurally defaulted. (ECF No. 55-1 at 38-47.) But because it is more efficient to address the merits of Petitioner's claims, the Court elects to resolve them in that manner, without deciding the more complex questions of procedural default. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997); Floyd v. Filson, 949 F.3d 1128, 1138 (9th Cir. 2020) (citing Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)).
In sum, these arguments do not preclude resolution of Petitioner's claims on the merits.
II. Merits.
A. Ground One.
In Ground One, Petitioner claims that the trial court denied Petitioner's equal protection rights by excluding a videotape depicting sex between Petitioner and the victim (“tape” or “sex tape”). (ECF No. 1 at 12, 15, 20-21.)
1. Standard.
Although Petitioner inaptly labels this claim an “equal protection” issue (ECF No. 1 at 12), an examination beyond the label to the fuller context of Petitioner's argument reveals that he is claiming that the exclusion of the sex tape resulted in an “unfair balance of evidence” (id.), in violation of “due process” and the “right to a fair trial” (id. at 15, 21). Thus, the Court liberally construes Petitioner's claim as an argument that the exclusion of the sex tape violated his federal constitutional right to present a complete defense.
“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.'” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)); see also Holmes v. South Carolina, 547 U.S. 319, 324 (2006). On the other hand, “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” United States v. Scheffer, 523 U.S. 303, 308 (1998). “The accused does not have an unfettered right to offer testimony that is . . . inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410 (1988). “Only rarely [has the Supreme Court] held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence.” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (per curiam).
Courts will not find that a due process violation has occurred based on the exclusion of evidence proffered by the defense if the excluded evidence was, for example, unreliable, marginally relevant, or repetitive. Crane, 476 U.S. at 689-90. The exclusion of evidence is “unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.” Scheffer, 523 U.S. at 308. Moreover, a violation of a defendant's constitutional right to present a defense is subject to harmless error analysis. Crane, 476 U.S. at 691 (“[T]he erroneous ruling of the trial court [in excluding the evidence] is subject to harmless error analysis.”); see also Cudjo v. Ayers, 698 F.3d 752, 768 (9th Cir. 2012).
2. Background.
Petitioner's trial counsel requested that the sex tape, which depicted Petitioner and Doe having sex in 1999, be admitted into evidence. (CT 70.) Trial counsel argued that the sex tape was relevant because it showed that Petitioner and Doe had “a very sexual, active relationship” in which Petitioner was dominant and Doe was submissive. (Lodgment No. 14, 1 Reporter's Transcript [“1 RT”] 7.) The defense also argued that Doe could be heard saying “no” on the tape, which proved that she had a history of saying “no” without meaning it. (1 RT 8.)
The prosecutor countered that the tape should be excluded under Cal. Evidence Code § 352 as highly prejudicial, confusing, and an undue consumption of time. (1 RT 10.) The prosecutor also argued that, although Doe could be heard on the tape saying “no,” she was saying no to having a camcorder placed near her face, not to having sex. (1 RT 9-10.)
The trial court agreed with the prosecutor and excluded the tape under Evidence Code § 352, subject to an exception that it could be used as impeachment evidence. (1 RT 11-14.) The trial court repeatedly explained that the tape “doesn't really add anything” (1 RT 12) and “doesn't add anything to this case, frankly” (1 RT 13) because it merely depicted consensual sex from sixteen years earlier. The trial court also disagreed with the defense's interpretation of the “no” uttered by Doe on the tape, commenting that “at no point is there anybody saying to stop having sex with me” and that Doe was not “saying no, but yeah, you can continue, but I'm saying no.” (1 RT 13.)
3. Analysis.
Under de novo review of Petitioner's constitutional claim, the trial court's discretionary exclusion of the sex tape was neither arbitrary nor disproportionate to the purpose that it served. “A defendant has no right . . . to present irrelevant evidence.” Wood v. Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992) (citing United States v. Torres, 937 F.2d 1469, 1473 (9th Cir. 1991)). And even “[i]f the evidence is relevant, we ask next whether other legitimate interests outweighed [petitioner's] interest in presenting the evidence.” Wood, 957 F.2d at 1550.
The trial court's ruling that the sex tape was irrelevant because it did not “add anything” to the case (1 RT 12, 13) did not infringe on Petitioner's right to present a defense. The tape was irrelevant because it depicted an encounter in 1999, fifteen years before the alleged rape in 2014. See United States v. Pablo, 696 F.3d 1280, 1301 (10th Cir. 2012) (no violation of defendant's right to present a defense from the exclusion of evidence of the victim's sexual advances, proffered to show her consent, when they “occurred some time before the alleged rape”); see also United States v. Saunders, 736 F.Supp. 698, 703 (E.D. Va. 1990) (“Evidence of a consensual relationship ten years in the past falls plainly on the non-probative side of the border.”), affirmed, 943 F.2d 388 (4th Cir 1991).
Petitioner disagrees, arguing that the sex tape was “highly probative.” (ECF No. 87 at 13.) But the trial court's finding that it was not probative, based on its own review of its contents, is binding on the Court, even under de novo review. See DePetris v. Kuykendall, 239 F.3d 1057, 1061-62 (9th Cir. 2001) (state court's admissibility finding is binding even when a claim is reviewed without AEDPA deference). Because the tape was irrelevant, Petitioner had no constitutional right to present it.
Even assuming arguendo that the sex tape was relevant to the question of Doe's consent during the 2014 incident, the tape's probative value was “outweighed by other legitimate interests.” See Wood, 957 F.2d at 1551. One legitimate interest was that of alleged rape victims, such as Doe, who “deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy.” Michigan v. Lucas, 500 U.S. 145, 150 (1991); see also Anderson v. Morrow, 371 F.3d 1027, 1030 (9th Cir. 2004) (no violation of petitioner's right to present a defense from the exclusion of graphic evidence of the victim's sexual history, given the “importance of protecting [the victim] from unnecessary invasions of privacy”).
Other legitimate interests, such as “the more traditional considerations about prejudice and confusion of the issues,” also weighed in favor of exclusion of the sex tape. See Wood, 957 F.2d at 1552. The risk of prejudice was substantial because the state did not dispute a prior sexual relationship (1 RT 8, 9), making the admission of sexually explicit material unnecessary to prove it. See Lucas, 500 U.S. at 150 (where “a prior sexual relationship is conceded,” a trial court may determine whether the proffered defense evidence “is material to a fact at issue in the case” and whether “its inflammatory or prejudicial nature . . . outweigh[s] its probative value”) (alterations in original); see also Wood, 957 F.2d at 1553 (even where a prior sexual relationship was disputed, evidence of the victim's sexually explicit communications with petitioner was unduly prejudicial partly because it was “simply one more indication that they had a sexual relationship; it does not add any significantly new dimension to the overall story presented”). Moreover, the risk of confusion of the issues was substantial because the tape depicted a consensual sexual encounter 15 years before the rape, so that the tape, even if marginally relevant, was “lacking in probity,” was “extraneous,” and had only a “tenuous” connection to the defendant's case. See Perry v. Rushen, 713 F.2d 1447, 1453-54 (9th Cir. 1983) (proffered defense evidence of such a character added weight to the state's interest in “avoiding confusion of the jury”). Because the exclusion of the sex tape reflected a proper balance of the competing interests, Petitioner's right to present a defense was not violated.
Finally, even assuming arguendo that the interests weighed in favor of allowing the sex tape, the violation of Petitioner's right to present a defense from its exclusion was harmless error. The error was harmless because “the very evidence excluded by the trial court's ruling ultimately came in through other witnesses.” See Crane, 476 U.S. at 691. Petitioner offered the tape to show that he and Doe had “a very sexual, active relationship.” (1 RT 7.) But this was proven through witness testimony. Petitioner testified that he started having sex with Doe in 1998, which was followed by a relationship (1 RT 184), and that the “sex was a lot in the beginning” of the relationship (1 RT 194). Even Doe testified that she and Petitioner “had an affair in 1999” (1 RT 36), when the sex tape was made, and that she then had a “romance” with Petitioner while living with him from 2001 to 2002 (1 RT 37). The sex tape merely would have supported a point-“a very sexual, active relationship” (1 RT 7)-that was already sufficiently established by the witnesses' testimony. See Moses, 555 F.3d at 760 (exclusion of portions of victim's diary was harmless error where other evidence admitted at trial showed the victim's mental state); see also Mejorado v. Hedgpeth, 629 Fed.Appx. 785, 787 (9th Cir. 2015) (“Neither the exclusion nor the admission of cumulative evidence is likely to cause substantial prejudice.”). In sum, habeas relief is unwarranted for this claim.
B. Ground Two.
In Ground Two, Petitioner claims that the trial court violated Petitioner's equal protection rights by allowing an unfair gender balance on the jury, which consisted of eight females and four males. (ECF No. 1 at 12.)
The Supreme Court has emphasized that there is “no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition.” Taylor v. Louisiana, 419 U.S. 522, 538 (1975). Rather, “the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Id. Thus, the right to a jury selected from a representative cross-section of the community “applies only to venires, not to petit juries.” Evans v. Lewis, 855 F.2d 631, 634-35 (9th Cir. 1988) (quoting Buchanan v. Kentucky, 483 U.S. 402, 415 (1987)); see also United States v. Mitchell, 502 F.3d 931, 951 (9th Cir. 2007) (distinguishing between the venire stage and the petit jury stage).
Petitioner does not allege that males were systematically excluded from the venire from which the petit jury was selected. Rather, Petitioner challenges only the outcome of the jury-selection process, which was a petit jury composed of eight females and four males. (ECF No. 1 at 12.) Petitioner's claim challenges only “the process of selecting the petit jury and did not involve the composition of the venire. Therefore, the fair cross-section right did not attach.” Evans, 855 F.2d at 635 (citing Harris v. Pulley, 852 F.2d 1546, 1563 (9th Cir.), as amended by 855 F.2d 1354 (9th Cir. 1988)). Thus, habeas relief is unavailable for this claim.
C. Ground Three.
In Ground Three, Petitioner claims that the trial court denied Petitioner his due process rights by failing to obtain Petitioner's valid waiver of his constitutional rights before accepting a plea of guilty or no contest. (ECF No. 1 at 12.)
This claim is contrary to the record, which shows that Petitioner did not plead guilty or no contest to the rape charge. Petitioner was convicted after a jury trial. (CT 118; 2 RT 357.) Thus, habeas relief is unwarranted for this claim.
D. Ground Four.
In Ground Four, Petitioner claims that his trial counsel was ineffective for failing to investigate the victim's adverse history of mental and physical ailments. (ECF No. 1 at 13-14.) These ailments purportedly led the victim to make false accusations in this case. (Id. at 13.)
1. Standard.
To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate that counsel's performance was both deficient and prejudicial to the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to satisfy either prong requires denial of the claim. See 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”) (citing Strickland, 466 U.S. at 688).
“To establish deficient performance, a person challenging a conviction must show that ‘counsel's representation fell below an objective standard of reasonableness.'” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 688). “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 690. “The question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms,' not whether it deviated from best practices or most common custom.” Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690).
To establish prejudice, a habeas petitioner must demonstrate a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A reasonable probability is a probability “sufficient to undermine confidence in the outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112. The court must consider the totality of the evidence before the jury in determining whether a petitioner satisfied this standard. Strickland, 466 U.S. at 695.
2. Analysis.
Petitioner claims that his trial counsel was ineffective for failing to disclose Doe's adverse history of mental and physical health ailments, which led her to make false accusations and which consisted of the following: a mental breakdown during her marriage, a gall bladder removal, dependency on medications, phobias, paranoias, and an obsession with witchcraft. (ECF No. 1 at 13-14.)
Petitioner has not proven that his trial counsel performed deficiently in failing to investigate and offer evidence from Doe's medical history. Petitioner has offered no credible evidence that his trial counsel had the ability to show Doe had ailments “that procured her false accusations.” (ECF No. 1 at 13.) In particular, Petitioner has not produced any evidence that Doe had any mental ailments that would have caused her to make false accusations.
Petitioner's unsupported and self-serving statements about what Doe's medical history involved are insufficient to establish that his trial counsel's performance was objectively unreasonable. See Burt v. Titlow, 571 U.S. 12, 12-13 (2013) (“[T]he burden to ‘show that counsel's performance was deficient' rests squarely on the defendant, . . . [and] [i]t should go without saying that the absence of evidence cannot overcome the ‘strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'”) (quoting Strickland, 466 U.S. at 687, 698); Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002) (rejecting ineffective assistance claim supported only by the petitioner's self-serving statement) (citing United States v. Allen, 153 F.3d 1037, 1041 (9th Cir. 1998) (“[S]elf-serving statements by a defendant that his conviction was constitutionally infirm are insufficient to overcome the presumption of regularity accorded state convictions.”) (quoting Cuppett v. Duckworth, 8 F.3d 1132, 1139 (7th Cir. 1993) (en banc)); Womack v. Del Papa, 497 F.3d 998, 1004 (9th Cir. 2007) (same).
Although Petitioner has submitted no evidence that his trial counsel could have found damaging evidence from Doe's medical history, Petitioner suggests that the state court should have given him an opportunity to develop the record on that issue. (ECF No. 87 at 16-17.) To the contrary, Petitioner's allegations were insufficient to warrant further evidentiary development. Allegations based only on speculation are insufficient to entitle a habeas petitioner to an evidentiary hearing, in either state or federal court. See Woods v. Sinclair, 764 F.3d 1109, 1128 (9th Cir. 2014) (petitioner was not entitled to an evidentiary hearing in state court “when all he could offer was speculation that an evidentiary hearing might produce [helpful] testimony or other evidence”); Morris v. State of Cal., 966 F.2d 448, 455-56 (9th Cir. 1991) (petitioner was not entitled to an evidentiary hearing in federal court based on a “bare allegation” and “speculation as to the contents” of testimony; “wishful suggestions cannot substitute for declaratory or other evidence.”); see also Hibbler v. Benedetti, 693 F.3d 1140, 1148 (9th Cir. 2012) (if a habeas petitioner is not entitled to an evidentiary hearing in federal court, he likewise is not entitled to a hearing in state court). Thus, Petitioner's allegations about the existence of damaging evidence about Doe's health did not entitle him to factual development of his claim of deficient performance.
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 25; Lodgment No. 11) was not objectively unreasonable. Thus, habeas relief is unwarranted for this claim.
E. Ground Five.
In Ground Five, Petitioner claims that the trial court erred in refusing to recognize Petitioner's common law living arrangement with the victim, Doe. (ECF No. 1 at 17.)
Petitioner's claim is contradicted by the record, which shows that the defense was allowed to present evidence and argument about a common law living arrangement between Petitioner and Doe. Petitioner testified that he had spoken with an attorney about having a vested property interest in Doe's house because of the length of their relationship. (1 RT 218.) Petitioner also testified that he and Doe were so close that they were “basically common law husband and wife.” (1 RT 250-51.) Petitioner's trial counsel emphasized this point, by arguing to the jury that “all the evidence that you saw leads to one thing, like a common law marriage,” in the sense that “they got along a lot of times, and they had some spats like a married couple.” (2 RT 315.) Because Petitioner was not precluded from presenting any evidence or argument about the nature of his living arrangements with Doe, habeas relief is unwarranted for this claim.
F. Ground Six.
In Ground Six, Petitioner claims that his trial counsel was ineffective for failing to request and show Petitioner copies of bank checks, from several years before the trial, that the prosecutor used to impeach Petitioner during trial. (ECF No. 1 at 21-22; ECF No. 79 at 24-30.)
Doe testified that, while living with Petitioner in his Redondo Beach apartment in 2001, she paid him $600 per month for rent and still had the cancelled checks to prove it. (1 RT 84-85.) In contrast, Petitioner testified that Doe did not pay him rent during that time but only “offered money for incidentals.” (1 RT 185.) During his cross-examination of Petitioner, the prosecutor presented a series of cancelled checks written by Doe in 2001, each for the amount of $600 and each with the word “rent” written on it. (1 RT 247-50.)
Petitioner's claim about his trial counsel's performance regarding the cancelled checks fails to establish ineffective assistance of counsel. First, Petitioner has not proven that his trial counsel performed deficiently by failing to request and show Petitioner the cancelled checks before Petitioner took the witness stand to testify on his own behalf. “While a lawyer is under a duty to make reasonable investigations, a lawyer may make a reasonable decision that particular investigations are unnecessary.” Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998) (citing Strickland, 466 U.S. at 691). Trial counsel reasonably could have thought it was unnecessary to obtain the cancelled checks because, before Petitioner took the witness stand, Doe had testified about keeping them. (1 RT 84-85.) Thus, Petitioner was on notice of the existence of the cancelled checks before he testified. Trial counsel had no reason to believe that obtaining physical copies of the actual checks was necessary to prevent Petitioner from giving testimony on the issue that would subject him to damaging impeachment. Thus, it was not professionally unreasonable for trial counsel not to have taken that step. See Matylinsky v. Budge, 577 F.3d 1083, 1092 (9th Cir. 2009) (“The United States Supreme Court has said that counsel need not undertake exhaustive witness investigation. The question is not ‘what is prudent or appropriate, but only what is constitutionally compelled.'”) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
Petitioner argues that this assessment of trial counsel's performance is flawed because it involves “post hoc rationalization of counsel's conduct” without any evidence of “counsel's actual thinking,” which means in turn that he should receive an evidentiary hearing. (ECF No. 87 at 19.) But a federal court is not required to elicit evidence of an attorney's “actual thinking” before rejecting a claim of deficient performance. See Richter, 562 U.S. at 109 (“Although courts may not indulge ‘post hoc rationalization' for counsel's decisionmaking that contradicts the available evidence of counsel's actions, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions.”) (internal citation omitted). Rather, a federal court is entitled to reject a claim of ineffective assistance if trial counsel had “any possible reason” for proceeding as he did. Dunn v. Reeves, 141 S.Ct. 2405, 2412 (2021) (alterations omitted) (quoting Cullen v. Pinholster, 563 U.S. 170, 196 (2011)). The record allowed for the possibility that, given Doe's testimony that she had kept the cancelled rent checks she had made out to Petitioner, trial counsel would think it unnecessary to retrieve and show the checks to Petitioner before he testified that Doe had not paid him rent. Thus, Petitioner has not shown deficient performance.
Second, Petitioner has not demonstrated prejudice from trial counsel's failure to obtain and show Petitioner the cancelled checks. Petitioner argues that the failure was prejudicial because the prosecutor used the cancelled checks to damage Petitioner's credibility in a “he-said, she-said” rape case.” (ECF No. 79 at 29.) Contrary to Petitioner's characterization, this was not a “he-said, she-said” rape case. Doe's testimony did not stand alone, but was corroborated by the pretext calls and the physical evidence. In the pretext calls, Petitioner acknowledged Doe had said “no” before sex earlier that day (CT 85); acknowledged he had sustained scratches and bite marks (CT 85-87); and called the encounter “payback” because if “you kick a dog enough fuckin' times, it's gonna bite you” (CT 98). The physical evidence showed abrasions and blood in Doe's genital area (1 RT 132); bruising on her buttocks (1 RT 135); and makeup stains on her blouse (1 RT 152, 155), as if the blouse had been removed forcefully. Given this totality of the evidence, even if trial counsel had prevented the impeachment of Petitioner with the cancelled rent checks, it is not reasonably probable that the trial outcome would have been different. See Strickland, 466 U.S. at 695 (assessment of prejudice from counsel's errors “must consider the totality of the evidence”). Thus, habeas relief is unwarranted for this claim.
Petitioner also claims that the prosecutor's failure to turn over the cancelled checks to the defense violated Brady v. Maryland, 373 U.S. 83 (1963). (ECF No. 1 at 22-23.) A prosecutor's obligation under Brady applies only to evidence that is favorable to the accused. See Weatherford v. Bursey, 429 U.S. 545, 559-60 (1977). Because the cancelled checks were not favorable to Petitioner, he fails to state a Brady claim.
G. Ground Seven.
In Ground Seven, Petitioner claims that his trial counsel was ineffective for failing to include all audio recordings taken by the police. (ECF No. 1 at 23.)
The police arranged for and recorded two “pretext calls” between Petitioner and Doe on the day of the rape. (1 RT 158; CT 79, 95.) During the calls, Petitioner acknowledged Doe had said “no” that day (CT 85) and told Doe, among other things, “Call it payback, I guess. You push-you kick a dog enough fuckin' times, it's gonna bite you.” (CT 98.) Petitioner claims that his trial counsel “perhaps inadvertently overlooked” the existence of other audio recordings, “which would have aided for an even stronger defense.” (ECF No. 1 at 23.)
Petitioner has not proven the existence of any additional audio recordings, and he has not even specified what such recordings would contain. Thus, Petitioner's claim is too vague and speculative to establish ineffective assistance of counsel. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (petitioner's claim that counsel was ineffective, without specific facts, was too “cursory and vague” to state a claim of ineffective assistance) (citing James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)); Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995) (“Absent an account of what beneficial evidence investigation into any of these issues would have turned up, [petitioner] cannot meet the prejudice prong of the Strickland test.”); see also Womack, 497 F.3d at 1004 (rejecting an ineffective assistance claim about what petitioner and his counsel allegedly had discussed, which was supported only by “[petitioner's] own self-serving statement”). Thus, habeas relief is unwarranted for this claim.
H. Ground Nine.
In Ground Nine, Petitioner claims that his trial counsel was ineffective for failing to dispute the DNA results and to ascertain if there were traces of other individuals. (ECF No. 1 at 23.)
Petitioner's claim fails to establish either deficient performance or prejudice. Petitioner's claim is contradicted by the record, which reveals that no DNA evidence was presented at Petitioner's trial. Even if it had been presented, Petitioner would have no grounds to dispute it because his defense theory was consensual intercourse. (1 RT 177.) Moreover, Petitioner's suggestion that DNA evidence would have shown “traces of other individuals” (ECF No. 1 at 23) is entirely speculative. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (acknowledging that conjecture that a favorable expert witness might have been found cannot establish prejudice) (citing Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (“Speculation about what an expert could have said is not enough to establish prejudice.”)). Thus, habeas relief is unwarranted for this claim.
I. Ground Ten.
In Ground Ten, Petitioner claims that his trial counsel was ineffective for failing to summon mental health professionals to testify in Petitioner's defense, and who would have disputed the rape examination. (ECF No. 1 at 23.)
As is the previous claim, this claim is speculative. Petitioner only speculates that mental health professionals would have been available to testify favorably for the defense. See Wildman, 261 F.3d at 839; Grisby, 130 F.3d at 373. It also is speculative to claim that any such professionals would have disputed the rape examination of Doe. See Rios, 299 F.3d at 813 n.23 (“[Petitioner] has failed to come forward with any evidence suggesting that the presentation of different expert testimony . . . might have resulted in a different outcome.”). Thus, habeas relief is unwarranted for this claim.
J. Ground Eleven.
In Ground Eleven, Petitioner claims that his trial counsel was ineffective for failing to make sufficient and stern objections when the prosecutor baited Petitioner into a staring match in front of the jury. (ECF No. 1 at 23-24.) The staring match purportedly left the impression that Petitioner was “predatory.” (Id. at 24.)
A reviewing court “is not privy to the unspoken atmosphere of the trial court-the nuance, demeanor, body language, expressions and gestures of the various players.” Tolbert v. Page, 182 F.3d 677, 683-84 (9th Cir. 1999) (en banc) (citation omitted). The cold transcript of Petitioner's trial contains no suggestion that the prosecutor and Petitioner engaged in a staring match. Petitioner has not submitted any corroborating evidence, from anyone who was in the courtroom, of a staring match. See Greenway v. Ryan, 856 F.3d at 681 (“The problem is that we have no affidavit from [the potential witness], or anyone else, to that effect.”).
But even assuming that Petitioner's factual allegation was true, it would not establish ineffective assistance of counsel. The staring match, as Petitioner describes it, was not clearly objectionable, especially because Petitioner was not forced to engage in it. See People v. Bradford, 15 Cal.4th 1229, 1337-38 (1997) (no prejudicial prosecutorial misconduct from the alleged “staring down” of a defendant before the jury). Even if it were objectionable, counsel reasonably could have refrained from objecting to avoid drawing further attention to it. See Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013) (counsels' failure to object to a prosecutor's comments, “possibly to avoid highlighting them, was a reasonable strategic decision”). Thus, habeas relief is unwarranted for this claim.
K. Ground Twelve.
In Ground Twelve, Petitioner claims that his trial counsel was ineffective for failing to protest vehemently to the excessive bail amount. (ECF No. 1 at 24.) Petitioner alleges that he had to pay $300 per month for an ankle monitor. (Id.)
A habeas petitioner's constitutional claim to pretrial bail becomes moot once he or she is convicted in state court. Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam). Although Respondent suggests that the claim is moot under this authority (ECF No. 55-1 at 98), it is not. Petitioner challenges his pretrial bail conditions not as a standalone constitutional claim, but as a matter his trial counsel handled ineffectively. (ECF No. 1 at 24.) Trial counsel's performance on the matter is assessed at the time the bail conditions were imposed, well before Petitioner was convicted in state court. See United States v. Juliano, 12 F.4th 937, 940 (9th Cir. 2021) (“[T]he reasonableness of counsel's conduct must be evaluated based on the time it occurred[.]”); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (counsel's performance “must be evaluated for purposes of the performance standard of Strickland ‘as of the time of counsel's conduct.'”) (quoting Strickland, 466 U.S. at 690); see also Maryland v. Kulbicki, 577 U.S. 1, 4 (2015) (per curiam) (“[W]e have ‘adopted the rule of contemporary assessment of counsel's conduct.'”) (quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). Thus, Petitioner's claim is not moot.
Under a contemporary assessment, however, Petitioner has not met his burden of showing ineffective assistance of counsel under Strickland. First, he has failed to allege deficient performance because he has not stated any meritorious argument trial counsel could have offered for relieving Petitioner of the costs of the ankle monitor. Second, Petitioner has not alleged how he was prejudiced from counsel's failure to obtain more favorable bail conditions, by specifically arguing how such conditions would have resulted in a different trial outcome. See Greenway v. Schriro, 653 F.3d at 804 (“[Petitioner's] cursory and vague claim [of ineffective assistance] cannot support habeas relief.”) (citing James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”)). Thus, habeas relief is unwarranted for this claim.
L. Ground Thirteen.
In Ground Thirteen, Petitioner claims that his trial counsel was ineffective for failing to contest or object to Petitioner's being limited to a “yes” or “no” response during the line of questioning by the prosecutor while Petitioner was on the witness stand. (ECF No. 1 at 24-25.)
Petitioner cites, as the only specific example, his response to the prosecutor's question on cross-examination about Petitioner's past care for Doe. (ECF No. 1 at 24-25.) Petitioner allegedly answered “yes” when asked whether, after he took Doe to the hospital on several occasions, he had gone home. (Id.) According to Petitioner, he should have been allowed to explain that, after completing the “arduous process” of getting Doe checked into the hospital, he went home to perform several household tasks and work at his job. (Id. at 25.)
Petitioner's claim is unsupported by the record, which reveals no such exchange between Petitioner and the prosecutor during cross-examination. Even had such an exchange occurred, trial counsel would have had no basis to object to the limitation of Petitioner to a “yes” or “no” answer during cross-examination. Leading questions are permitted on cross-examination. Cal. Evidence Code § 767(a)(2). Moreover, Petitioner would have had an opportunity to explain his answer on redirect examination. Finally, Petitioner did testify, at length, about the numerous tasks he performed for Doe around the house. (1 RT 191-92, 208-10). Because Petitioner has not shown deficient performance or prejudice from his trial counsel's alleged failure to object to the prosecutor's alleged limitation on cross-examination, habeas relief is unwarranted for this claim.
M. Ground Fourteen.
In Ground Fourteen, Petitioner claims that the prosecutor committed misconduct by making disparaging comments about the relationship between Petitioner and the victim. (ECF No. 1 at 25.)
1. Standard.
A prosecutor's actions constitute misconduct if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The Darden standard is a “highly generalized” assessment of the fairness of the trial, not an “elaborate, multistep test” or dependent on any particular consideration. See Deck v. Jenkins, 814 F.3d 954, 978 (9th Cir. 2014); see also Parker v. Matthews, 567 U.S. 37, 48 (2012). Accordingly, to determine whether a prosecutor's actions rise to the level of a due process violation, the reviewing court must examine the entire proceedings. Boyde v. California, 494 U.S. 370, 384-85 (1990); see also Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.”). Relevant factors may include the type and extent of the misconduct, any rebuttal by defense counsel, the specificity and timing of any curative instructions, and the weight of the evidence. See Deck, 814 F.3d at 979; Hein v. Sullivan, 601 F.3d 897, 914 (9th Cir. 2010).
2. Analysis.
Petitioner cites two specific examples to claim that the prosecutor committed misconduct by disparaging Petitioner's relationship with Doe. First, during crossexamination, the prosecutor allegedly asked Petitioner whether he practiced anal sex. (ECF No. 1 at 25.) Second, the prosecutor allegedly ridiculed the seventeenyear age difference between Petitioner and Doe. (Id.)
Neither example establishes a due process violation based on prosecutorial misconduct. First, the record does not support Petitioner's allegation that the prosecutor asked him a question about anal sex during cross-examination. The only testimony on this point occurred during direct examination, when Petitioner testified that Doe had offered it to him and that they had engaged in it before. (1 RT 223-24.)
Second, although the prosecutor did comment on the age difference between Petitioner and Doe, the comment did not constitute misconduct. The prosecutor said the following during his closing argument:
And I'm going to tell you right now that was a weird relationship. I mean, they can't be more dynamically different than each other, right. We have a 17 year age difference. And you saw (Jane Doe). She's now 69 years old, almost 70 years old. [Petitioner] is 52, I'm guessing, right now, 52 years old. I mean, those two seem like pretty opposite.(2 RT 296.)
The prosecutor's comments had a basis in the evidence. Earlier, Petitioner had acknowledged the age difference was a factor in his relationship with Doe, by testifying that Doe was “much older” (1 RT 182), that he initially was “both flattered but apprehensive” because of her attention (id.), and that “she's older, so we have to be gentle about these things” (1 RT 258). Based on this testimony, the prosecutor's characterization of the relationship as “weird” and “dynamically different” from other relationships was a fair comment. See United States v. Hermanek, 289 F.3d 1076, 1100 (9th Cir. 2002) (“During closing argument, ‘[p]rosecutors have considerable leeway to strike “hard blows” based on the evidence and all reasonable inferences from the evidence.”) (quoting United States v. Henderson, 241 F.3d 638, 652 (9th Cir. 2000)). Thus, habeas relief is unwarranted for this claim.
N. Ground Fifteen.
In Ground Fifteen, Petitioner claims that the prosecutor committed misconduct by labeling Petitioner an “alpha” male. (ECF No. 1 at 25-26.) The prosecutor said the following during his closing argument:
I think it was pretty clear when you saw them testify that you have a victim that is meek, that is elderly and kind of alone on a two-acre property by herself and she's dependent on somebody else. This somebody else has a type-A personality. And okay, there's nothing wrong for somebody that is more passive or meek to be attracted to somebody more of alpha or type-A personality. There's nothing wrong with that. But this person, [Petitioner], took advantage of her trust, took advantage of this relationship and used her, abused her, both physically and verbally over the years and it escalated. It escalated.(2 RT 296-97.)
Petitioner has not established a due process violation from being called an alpha male. In the first place, labels that are significantly more disparaging than alpha male have been held, repeatedly, to be insufficient to give rise to a due process violation. See Darden, 477 U.S. at 179-80 and n.12 (1986) (“animal”); Hein, 601 F.3d at 913 (“a pack of wolves,” “a little punk,” and “a tough guy”); Dubria v. Smith, 224 F.3d 995, 1004 (9th Cir. 2000) (en banc) (“piece of garbage”); Turner v. Marshall, 63 F.3d 807, 818 (9th Cir. 1995) (perpetrator was a “monster of a human being”), overruled on other ground by Tolbert, 182 F.3d at 685; United States v. Rewald, 889 F.2d 836, 862 and n.26 (9th Cir. 1989) (“lizard” and “Hydra, a nine-headed serpent”); United States v. Taxe, 540 F.2d 961, 968 (9th Cir. 1976) (“scavenger” and “parasite”).
Moreover, the characterization of Petitioner as the alpha male in the relationship was a “reasonable inference[] from the evidence.” Hermanek, 289 F.3d at 1100. Doe testified that she felt threatened by Petitioner's larger size and foul language (1 RT 40-41) and that the relationship became physically abusive (1 RT 41-42). And even Petitioner testified that “the older [Doe] got, yeah, she probably felt more threatened over things that just weren't an issue early on and through part of the relationship.” (1 RT 263.) Because the prosecutor's characterization of Petitioner as an alpha male in the relationship was a fair comment on this evidence, it did not render the proceeding fundamentally unfair. Thus, habeas relief is unwarranted for this claim.
O. Ground Sixteen.
In Ground Sixteen, Petitioner claims that the prosecutor committed misconduct by underhandedly displaying pictures of Petitioner's firearms on the courtroom table. (ECF No. 1 at 26-27.)
No photographs of firearms were offered as evidence, and the trial transcript contains no suggestion that the jury was exposed to any such photographs. Petitioner has offered no credible evidence to support his bare assertion that the prosecutor displayed photographs of Petitioner's firearms. See Morris, 966 F.2d at 455-56 (rejecting a “bare allegation” of a constitutional violation in “the absence of any record evidence”).
Even assuming that Petitioner's factual allegation was true, it would not establish prosecutorial misconduct that rose to the level of a due process violation. In the first place, Petitioner did not alert his trial counsel of the photographs so that the defense could make an objection. See United States v. Pratt, 531 F.2d 395, 398 (9th Cir. 1976) (rejecting prosecutorial misconduct claim based on the prosecutor's display of a gun that had not been admitted as evidence, partly because the defense did not object at the time of the display). Moreover, the jury heard ample testimony about Petitioner's firearms. For example, Petitioner testified that he had kept 14 guns in a safe. (1 RT 261.) Because photographs of Petitioner's firearms would have been cumulative of testimony the jury heard, any display of such photographs would not have resulted in a fundamentally unfair proceeding. See United States v. Henderson, 404 F.2d 832, 834-35 (9th Cir. 1968) (rejecting prosecutorial misconduct claim based on the prosecutor's display of a gun that had not been admitted as evidence, partly because the jury heard testimony about the defendant's use of guns); see generally United States v. Sayakhom, 186 F.3d 928, 946 (9th Cir. 1999) (rejecting prosecutorial misconduct claim based on the prosecutor's introduction of an exhibit that had been excluded, where it “did not materially affect the fairness of the proceedings”). Thus, habeas relief is unwarranted for this claim.
P. Ground Seventeen.
In Ground Seventeen, Petitioner alleges that an employee of the prosecutor unlawfully conducted surveillance of Petitioner during trial recesses. (ECF No. 1 at 27.) Petitioner further alleges that this employee, together with another employee, distracted Petitioner during the trial with hand gestures and verbal heckling. (Id.) Finally, Petitioner alleges that a bailiff hollered at Petitioner and Petitioner's sister, in the presence of prospective jurors, about knocking on a closed door during a court recess. (Id. at 28.)
As with the prior claim, the state court record contains no evidence to support Petitioner's bare allegations that he was surveilled and mistreated during the trial. See Morris, 966 F.2d at 455-56. For that reason alone, habeas relief is unwarranted.
Even accepting the allegations at face value, they still would fail to show entitlement to habeas relief. Petitioner's allegation of surveillance is conclusory because he offers no specific details about what the surveillance involved. See James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”). Petitioner's remaining allegations, about being distracted by employees in the audience and being hollered at during a recess, fail to demonstrate prejudice because the trial court properly instructed the jury to base its verdict only on the admitted evidence (CT 122; 2 RT 285), which the jury presumably did. See Brown v. Ornoski, 503 F.3d 1006, 1018 (9th Cir. 2007) (no prejudice from extraneous comments where the jury was properly instructed). Thus, habeas relief is unwarranted for this claim.
Q. Ground Eighteen.
In Ground Eighteen, Petitioner claims that trial transcripts were censored and then altered to fit a narrative. (ECF No. 1 at 28.) As an example, the trial transcripts allegedly were censored to exclude opening statements by the trial judge that were intended to incite, influence, and mislead the jury. (Id.)
Petitioner's bare allegation that the trial transcripts were censored and altered is insufficient to meet his burden of showing entitlement to habeas relief. See Morris, 966 F.2d at 455-56; see also Pinholster, 563 U.S. at 181 (“The petitioner carries the burden of proof.”) (citing Woodford, 537 U.S. at 25); Bellew v. Gunn, 532 F.2d 1288, 1290 (9th Cir. 1976) (same); Garcia v. United States, 456 Fed.Appx. 804, 807 (11th Cir. 2012) (appellant's bare allegations that transcripts were altered failed to show ineffective assistance of counsel). Thus, habeas relief is unwarranted for this claim.
R. Ground Nineteen.
In Ground Nineteen, Petitioner claims that the police conducted an illegal search of Petitioner's home for a firearm. (ECF No. 1 at 28-29.)
“[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976) (footnotes omitted). “The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (citing Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990)).
Petitioner had an opportunity to litigate a Fourth Amendment claim in the state court but did not do so. He has not demonstrated or even alleged that the state court denied him an opportunity to litigate a Fourth Amendment claim. See Woolery v. Arave, 8 F.3d 1325, 1328 (9th Cir. 1993) (“[A] petitioner must demonstrate that the state court has not afforded him a full and fair hearing on those claims.”) (citing Stone, 428 U.S. at 494 n.37). Thus, habeas relief may not be granted for this claim.
S. Ground Twenty.
In Ground Twenty, Petitioner claims that the trial court erred in excluding, under Cal. Evidence Code § 352, the videotape depicting consensual sex between Petitioner and Doe in 1999. (ECF No. 1 at 43, 46.)
The allegations for this claim are duplicative of the allegations for Ground One. But this claim, unlike Ground One, is reviewed under the AEDPA standard. Petitioner's claim in Ground Twenty therefore is unsuccessful for a lack of clearly established federal law. See Robertson v. Pichon, 849 F.3d 1173, 1189 (9th Cir. 2017) (trial court's discretionary exclusion of evidence under Cal. Evidence Code § 352 “could not be an unreasonable application of clearly established Supreme Court precedent, because the Court has never addressed the question whether such a rule could violate a defendant's constitutional rights”) (citing Moses, 555 F.3d at 758-59); see also Brown v. Horell, 644 F.3d 969 (9th Cir. 2011) (recognizing that, since Moses, “the Supreme Court has not decided any case either ‘squarely address[ing]' the discretionary exclusion of evidence and the right to present a complete defense or ‘establish[ing] a controlling legal standard' for evaluating such exclusions.”) (alterations in original); Smith v. Small, 697 Fed.Appx. 538, 539 (9th Cir. 2017) (same).
Petitioner's argument to the contrary is unpersuasive. Petitioner argues that his claim challenging the exclusion of the sex tape is governed by clearly established federal law from Chambers v. Mississippi, 410 U.S. 284 (1973). (ECF No. 87 at 12.) In Chambers, “the United States Supreme Court clearly established that the exclusion of trustworthy and necessary exculpatory testimony at trial violates a defendant's due process right to present a defense.” Cudjo, 698 F.3d at 754. As further support, Petitioner cites two Ninth Circuit decisions that relied on Chambers to order the grant of federal habeas relief: Cudjo, 698 F.3d 752; and Lunbery v. Hornbeak, 605 F.3d 754 (9th Cir. 2010). (ECF No. 87 at 12.) These decisions, however, do not warrant Petitioner's reliance on Chambers because they are too dissimilar from his case.
In Cudjo, 698 F.3d at 763, the Ninth Circuit held that a state court decision upholding the exclusion of third-party culpability evidence under a hearsay rule was “contrary to” Chambers. Here, however, Petitioner has not attempted to argue that the state court decision upholding the trial court's discretionary exclusion of the sex tape was “contrary to” Chambers. The “contrary to” clause of 28 U.S.C. § 2254(d)(1) requires a federal habeas petitioner to show that “the state court confronts a set of facts materially indistinguishable from those at issue in a decision of the Supreme Court [i.e., Chambers,] and, nevertheless, arrives at a result different from its precedent.” Cudjo, 698 F.3d at 761 (citing Moses, 555 F.3d at 751). In Chambers and Cudjo, the facts were materially indistinguishable because, in both cases, a defendant charged with murder attempted to present evidence that an “alternate suspect had allegedly previously confessed to the crime; the defense was prevented from cross-examining the alternate suspect at trial; and the trial court's application of the hearsay rules prevented the defendant's witness from testifying to the alternate suspect's confession.” Cudjo, 698 F.3d at 765-66 (citing Chambers, 410 U.S. at 289-94). The facts of Petitioner's case are not similar in any respect. Petitioner has not attempted to argue that his case involved “materially indistinguishable” facts from Chambers or that there were “no constitutionally significant distinguishable facts between Chambers and this case.” Cudjo, 698 F.3d at 763.
In Lunbery, 605 F.3d at 762, the Ninth Circuit held that a state court decision upholding the exclusion of third-party culpability evidence under a hearsay rule constituted “an objectively unreasonable application of Chambers.” Here, however, Petitioner, cannot similarly rely on Chambers as clearly established federal law. To constitute clearly established federal law, the Supreme Court holding must be “closely on point.” John-Charles v. California, 646 F.3d 1243, 1248 (9th Cir. 2011). As the Supreme Court has recognized, “Chambers specifically confined its holding to the ‘facts and circumstances' presented in that case; [Chambers] thus stressed that the ruling did not ‘signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.'” Scheffer, 523 U.S. at 316 (quoting Chambers, 410 U.S. at 302-03). “Chambers therefore does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence.” Scheffer, 523 U.S. at 316. Petitioner's challenge to the discretionary exclusion of the sex tape under Cal. Evidence Code § 352, as an alleged denial of a fair opportunity to defend himself, “is different in kind” from the rule in Chambers, which “required the trial court to exclude crucial evidence that had a critical effect on the trial, with little or no rational justification.” Moses, 555 F.3d at 758. Petitioner's claim, therefore, is not based on any holding of the Supreme Court that is closely on point.
Petitioner's claim is not based on any clearly established federal law. But even assuming that Petitioner's argument to the contrary is correct, the claim still would not warrant habeas relief. As discussed above in Ground One, the exclusion of the sex tape did not violate Petitioner's right to present a complete defense to the charge of rape. The tape depicted an encounter in 1999, fifteen years before the charged rape in 2014; it was undisputed that Petitioner and Doe had a consensual relationship at the time the tape was made; the State had several legitimate interests in having the tape excluded, particularly the protection of Doe from unnecessary invasions of privacy; and the jury heard testimony, including from Doe, about the consensual nature of the relationship near the time the tape was made. In sum, habeas relief is unwarranted for this claim.
T. Ground Twenty-One.
In Ground Twenty-One, Petitioner claims that the trial court erred in failing to instruct the jury about the sex tape and about Petitioner's absence during the parties' discussion of jury instructions. (ECF No. 1 at 44, 63.)
To show that the omission of the jury instruction was a constitutional violation, Petitioner must demonstrate that the omission “so infected the entire trial that the resulting conviction violates due process.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Here, the omission of Petitioner's proposed instruction did not violate due process because the jury heard nothing that related either to the sex tape or to Petitioner's absence at the discussion of instructions. As discussed above in Ground One, the trial court excluded the sex tape prior to trial under Evidence Code § 352 because “it doesn't add anything to this case, frankly.” (1 RT 13.) And as discussed below in Ground Twenty-Seven, Petitioner waived his right to be present during the discussion of instructions, which occurred outside the presence of the jury. The trial court had no duty to instruct the jurors about events that occurred outside their presence and of which they were unaware. See People v. Ervin, 22 Cal.4th 48, 90 (2000) (“A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.”).
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 21, 59; Lodgment No. 11) was not objectively unreasonable. Thus, habeas relief is unwarranted for this claim.
U. Ground Twenty-Two.
In Ground Twenty-Two, Petitioner claims that the trial court erred in not instructing the jury on the affirmative defense of duress. (ECF No. 1 at 45.) Petitioner appears to be suggesting that he committed the rape under duress, specifically, “that he acted under [an] unlawful [or] imminent [threat of] death or serious bodily injury,” or “that there was no reasonable, legal alternative to committing the crime.” (Id.)
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 23; Lodgment No. 11) was not objectively unreasonable. Petitioner's theory of duress has no basis in the state-court record. Thus, habeas relief is unwarranted for this claim.
V. Ground Twenty-Three.
In Ground Twenty-Three, Petitioner claims that the trial court erred in instructing the jury on reasonable doubt. (ECF No. 1 at 45-46, 50.)
The trial court gave the following instruction on reasonable doubt:
The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.
A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.(2 RT 287-88; CT 127.)
Petitioner claims that the trial court erroneously instructed the jury that it “need not find every fact beyond a reasonable doubt” or that reasonable doubt was “substantial doubt.” (ECF No. 1 at 45.) But Petitioner cites nowhere in the record where the trial court made such remarks, and no such remarks are apparent in the record. Rather, the trial court instructed the jurors that the People had the burden to prove Petitioner's guilt “beyond a reasonable doubt” and that such proof should leave them “with an abiding conviction that the charge is true.” (2 RT 287; CT 127.) The instruction was a correct formulation of the People's burden of proof. See Lisenbee v. Henry, 166 F.3d 997, 999 (9th Cir. 1999) (affirming jury instructions on reasonable doubt cast in terms of an abiding conviction) (citing Victor v. Nebraska, 511 U.S. 1, 14-15 (1994); and Ramirez v. Hatcher, 136 F.3d 1209, 1214 (9th Cir. 1998)).
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 23; Lodgment No. 11) was not objectively unreasonable. Thus, habeas relief is unwarranted for this claim.
W. Ground Twenty-Four.
In Ground Twenty-Four, Petitioner claims that the trial court erred in allowing evidence of Petitioner's commission of an uncharged gun offense two weeks before the charged rape. (ECF No. 1 at 43.)
Doe testified that, two weeks before the charged rape, Petitioner picked up a gun in her presence and said, “I ought to put a bullet in your head right now.” (1 RT 54.) The trial court had allowed the testimony over the defense's objection because it was relevant to Doe's state of mind, such as explaining why she did not fight back forcefully while being raped. (1 RT 17-18.)
Because this claim is subject to the AEDPA standard, federal habeas relief is unavailable. No clearly established federal law precludes the admission of allegedly irrelevant or overtly prejudicial evidence. See Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (a federal habeas court constrained by the AEDPA would have no power to grant relief for a claim premised on the erroneous admission of evidence because the United State Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ”).
Specifically, no clearly established federal law precludes the admission of evidence of a defendant's prior bad acts as a violation of federal due process. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) (“[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes' evidence to show propensity to commit a charged crime.”); see also Kipp v. Davis, 971 F.3d 939, 951 n.8 (9th Cir. 2020) (“[T]here is no clearly established law that addresses whether the admission of a defendant's criminal history or prior bad acts would violate due process.”) (citing Alberni v. McDaniel, 458 F.3d 860, 864, 866 (9th Cir. 2006)). Petitioner “can point to no Supreme Court precedent establishing that admission of propensity evidence . . . is unconstitutional. [The Court] cannot say that the [state court] decision was contrary to clearly established Supreme Court precedent.” Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008). Thus, habeas relief may not be granted for this claim.
X. Ground Twenty-Five.
In Ground Twenty-Five, Petitioner claims that the evidence was insufficient to convict him of rape because he had reasonably and in good faith believed Doe had consented to intercourse. (ECF No. 1 at 49.)
1. Standard.
“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). When a habeas petitioner challenges the sufficiency of the evidence supporting the jury's verdict, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Coleman v. Johnson, 566 U.S. 650, 656 (2012) (per curiam) (the “question under Jackson is whether [the jury's] finding was so insupportable as to fall below the threshold of bare rationality.”). Jackson does not require that the prosecutor affirmatively “‘rule out every hypothesis except that of guilt.'” Wright v. West, 505 U.S. 277, 296 (1992) (citation omitted). Further, “‘[c]ircumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.'” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted). When the factual record supports conflicting inferences, the federal court must presume - even if it does not affirmatively appear on the record - that the trier of fact resolved any such conflicts in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326; McDaniel v. Brown, 558 U.S. 120, 133 (2010) (per curiam). Ultimately, for Petitioner's claim to be successful, the jury's finding must be “so insupportable as to fall below the threshold of bare rationality.” Coleman, 566 U.S. at 656.
Further, when, as here, both Jackson and the AEDPA apply to the same claim, the claim is reviewed under a “twice-deferential standard.” Parker, 567 U.S. at 43. Accordingly, on federal habeas review, “we ask only whether the state court's decision was contrary to or reflected an unreasonable application of Jackson to the facts of a particular case.” Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011) (per curiam) (citing Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005)).
2. Analysis.
The jury was instructed that one of the elements of rape was that “the woman did not consent to the intercourse[.]” (2 RT 293; CT 140.) The jury also was instructed that it may consider evidence of Doe and Petitioner's prior relationship “to help [it] decide whether the alleged victim consented to the charged act and whether [Petitioner] reasonably and in good faith believed that Jane Doe consented to the charged act.” (2 RT 294-95; CT 143.) Petitioner argues that the evidence was insufficient to convict him of rape because he “knows that the alleged victim consented to the charged act, [and he] acted reasonably and in good faith, believing that Jane Doe consented to the charged act.” (ECF No. 1 at 49.)
To the contrary, the evidence permitted a reasonable jury to find that Doe did not consent to the charged act and that Petitioner did not have a reasonable, good faith belief that she did. Doe testified that she told Petitioner to “[g]et off of me” and “[d]on't do this”; that she “kept trying to hit him”; and that she threatened to report him. (1 RT 66-67.) Doe's testimony was consistent with the pretext calls and the physical evidence. In the pretext calls, Petitioner acknowledged Doe had said “no” before sex earlier that day (CT 85), acknowledged he had sustained scratches and bite marks (CT 85-87), and called the encounter “payback” because if “you kick a dog enough fuckin' times, it's gonna bite you” (CT 98). The physical evidence showed abrasions and blood in Doe's genital area (1 RT 132); bruising on her buttocks (1 RT 135); and makeup stains on her blouse (1 RT 152, 155), as if the blouse had been removed forcefully.
Although Petitioner testified, to the contrary, that the encounter was consensual (1 RT 177), the jury was not required to believe his testimony. “It is not our function to reweigh the evidence and pass on the credibility of the witnesses.” United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972). “Supreme Court precedent makes clear that questions of credibility are for the jury to decide.” Cudjo, 698 F.3d at 763 (citing United States v. Bailey, 444 U.S. 394, 414 (1980)).
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 31; Lodgment No. 11) was not objectively unreasonable. Thus, habeas relief is unwarranted for this claim.
Y. Ground Twenty-Six.
In Ground Twenty-Six, Petitioner claims that the prosecutor committed misconduct in his closing argument to the jury, citing three examples. (ECF No. 1 at 49-50.) Specifically, the prosecutor allegedly misled the jury about Petitioner's history of being verbally and physically abusive, misstated the requirements of rape, and misstated the reasonable doubt standard. (Id.)
None of the three cited examples establishes a due process violation based on prosecutorial misconduct during closing argument. First, the prosecutor's argument that Petitioner had been verbally and physically abusive in the past toward Doe (2 RT 303) was a reasonable inference from Doe's testimony that Petitioner had been “foul mouthed” and verbally threatening toward her, had knocked her into a wall, and had tried to choke her to death (1 RT 40-42). See Hermanek, 289 F.3d at 1100 (prosecutors may draw “all reasonable inferences from the evidence”).
Second, the prosecutor did not misstate the requirements of rape. During his closing argument, the prosecutor stated the following about duress:
Duress can be accomplished by implied threat of force such as the weeks leading up. The age difference. She's elderly. He's younger. He's heavier. He's stronger. He's been abusive to her both verbally and physically in the past. So that's what duress is. It's the threat of force is implicit. That's what we have here as well.
Now, so you know, I don't have to prove all of these things. Just one. Just one as long as you believe that there was force or duress or fear.(2 RT 303.)
Contrary to Petitioner's argument (ECF No. 1 at 49-50), this statement did not mean the prosecutor was telling the jurors that he “only” had to prove force, duress, or fear in order to secure a rape conviction. “[T]he arguments of counsel . . . must be judged in the context in which they were made.” Boyde, 494 U.S. at 385 (collecting cases). The context of the prosecutor's argument reveals that he was discussing force, duress, or fear as part of his discussion of only one of the elements of rape. That element required the prosecutor to prove that Petitioner “accomplished the intercourse by force, violence, duress, menace or fear of immediate and unlawful bodily injury to the woman or to someone else.” (2 RT 293; CT 140.) The prosecutor never denied that he had the burden of proving all of the elements of rape beyond a reasonable doubt, and he emphasized that burden to the jury. (2 RT 301-02.)
Third, the prosecutor did not misstate the reasonable doubt standard. The prosecutor stated the following about the standard:
It is the highest standard in the law. That's very true, but I don't want you to be tricked into thinking that it's like an unachievable or an insurmountable standard. Right. I mean, jurors find people guilty all the time. It's not an unachievable standard. I want you to follow the law. You took an oath to follow that law.(2 RT 311.)
Although Petitioner highlights this passage (ECF No. 1 at 50), he does not explain the constitutional error, and none is apparent. Indeed, the prosecutor's remarks about reasonable doubt (2 RT 311-12) tracked the trial court's jury instruction on reasonable doubt (2 RT 287-88; CT 127), which, as discussed above in Ground Twenty-Three, did not violate due process.
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 31-33; Lodgment No. 11) was not objectively unreasonable. None of Petitioner's cited examples establishes a due process violation based on prosecutorial misconduct during closing arguments. Thus, habeas relief is unwarranted for this claim.
Z. Ground Twenty-Seven.
In Ground Twenty-Seven, Petitioner claims that the trial court erred in allowing Petitioner to waive his right to be present during a discussion of jury instructions. (ECF No. 1 at 59-63.)
A criminal defendant “is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). “However, it is not a guaranteed right when presence would be useless, or the benefit but a shadow, or when the defendant could have done nothing had [he] been at the conference, nor would [he] have gained anything by attending[.]” Clark v. Chappell, 936 F.3d 944, 991 (9th Cir. 2019) (internal citations and quotation marks omitted). Specifically, a criminal defendant has no federal constitutional right to be present at a conference on jury instructions, which is purely a legal matter. United States v. Sherman, 821 F.2d 1337, 1339 (9th Cir. 1987) (agreeing with the Fifth Circuit that “[a] defendant does not have a federal constitutional . . . right to attend a conference between the trial court and counsel concerned with the purely legal matter of determining what jury instructions the trial court will issue.”) (quoting United States v. Graves, 669 F.2d 964, 972 (5th Cir. 1982)).
Petitioner had no federal constitutional right to be present at the discussion of jury instructions. Federal “habeas corpus insures that a federal forum is available to vindicate a violation of a federal right.” Hunt v. Vasquez, 899 F.2d 878, 880 (9th Cir. 1990). Because Petitioner fails to state a violation of a federal constitutional right based on his absence from the discussion, habeas relief may not be granted for this claim.
AA. Ground Twenty-Eight.
In Ground Twenty-Eight, Petitioner claims that the trial court violated Petitioner's constitutional rights by handling the trial “in a discriminatory way” and by “setting him up as a racial target in his alleged criminal case.” (ECF No. 1 at 40, 64.)
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 61; Lodgment No. 11) was not objectively unreasonable. The record is completely devoid of any evidence to suggest any support for Petitioner's accusations. Moreover, this “cursory and vague claim cannot support habeas relief.” Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (citing James, 24 F.3d at 26). Thus, habeas relief is unwarranted for this claim.
BB. Ground Twenty-Nine.
In Ground Twenty-Nine, Petitioner claims that the prosecutor presented the fabricated and irrelevant testimony of Detective Brazil. (ECF No. 1 at 64.)
Detective Brazil performed the initial investigation of Doe's rape allegation. (1 RT 151.) Detective Brazil testified that she had noticed makeup stains on the clothes Doe was wearing in the hospital (1 RT 152), had found a gun in a safe located in the guest house where Petitioner lived (1 RT 153), and had arranged for Doe's “pretext calls” to Petitioner (1 RT 158-60).
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 61; Lodgment No. 11) was not objectively unreasonable. Petitioner fails to specify how Detective Brazil's testimony was fabricated. See Panah v. Chappell, 935 F.3d 657, 664 (9th Cir. 2019) (to establish that a prosecutor presented false testimony, “the testimony or evidence in question must have been false or misleading”). Petitioner also fails to specify how Detective Brazil's testimony was irrelevant. See McKoy v. North Carolina, 494 U.S. 433, 440 (1990) (“[I]t is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”) (alteration in original; citation and internal quotation marks omitted). Thus, habeas relief is unwarranted for this claim.
CC. Ground Thirty.
In Ground Thirty, Petitioner claims that the trial court erred by allowing Detective Brazil's testimony, in violation of Petitioner's due process rights. (ECF No. 1 at 64.)
Because this claim is subject to the AEDPA standard, Petitioner cannot receive federal habeas relief for it. No clearly established federal law precludes the admission of allegedly irrelevant or overtly prejudicial evidence. See Holley, 568 F.3d at 1101; see also Duvardo v. Giurbino, 410 Fed.Appx. 69, 70 (9th Cir. 2011) (rejecting due process challenge to the admission of an FBI agent's testimony because of the absence of clearly established federal law). Thus, habeas relief may not be granted for this claim.
DD. Ground Thirty-One.
In Ground Thirty-One, Petitioner claims that the trial court erred in instructing the jury with CALJIC Nos. 2.50.1 and 2.50.01, regarding evidence of uncharged offenses. (ECF No. 1 at 65-67.)
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 63-67; Lodgment No. 11) was not objectively unreasonable. The record does not suggest that the trial court ever gave these challenged instructions. Thus, habeas relief is unwarranted for this claim.
EE. Ground Thirty-Two.
In Ground Thirty-Two, Petitioner claims that the trial court erred in allowing prosecution exhibits whose prejudicial effect outweighed their probative value. (ECF No. 1 at 66.)
Petitioner fails to specify what prosecution exhibits should have been excluded. Instead, he argues merely that the prosecution exhibits amounted to “overkill” and that their prejudicial value outweighed their probative value. (ECF No. 1 at 66.) This claim is too vague and conclusory to state a claim for federal habeas relief. See James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”). Moreover, no clearly established federal law precludes the admission of allegedly irrelevant or overtly prejudicial evidence. See Holley, 568 F.3d at 1101. Thus, habeas relief is unwarranted for this claim.
FF. Ground Thirty-Three.
In Ground Thirty-Three, Petitioner claims that his counsel was ineffective for failing to challenge Doe regarding the prior assault with a firearm. (ECF No. 1 at 40, 43.)
Doe testified that, two weeks before the charged rape, Petitioner picked up a gun in her presence and said, “I ought to put a bullet in your head right now.” (1 RT 54.) Contrary to Petitioner's claim, his trial counsel did challenge that testimony.
“Counsel . . . has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Strickland, 466 U.S. at 688 (citation omitted). Here, Petitioner's trial counsel subjected Doe's testimony about the gun incident to adversarial testing, by arguing for its exclusion or by trying to minimize its impact. Before trial, counsel argued that the testimony should be excluded as inflammatory and not probative. (1 RT 15.) During trial, counsel elicited concessions from Doe on cross-examination: Doe conceded that Petitioner had never, while angry, gone to his guest house and then come to Doe's house with a gun (1 RT 101); she also conceded that, during the gun incident itself, the gun was not loaded (1 RT 121). Later, counsel elicited testimony from Petitioner that the alleged gun incident never happened. (1 RT 219.) Finally, during his closing argument, counsel argued that the gun incident made “no sense” as Doe described it; that Petitioner had “loaned her this gun for her safety”; and that Petitioner had “never threatened her with a gun.” (2 RT 321.)
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 19; Lodgment No. 11) was not objectively unreasonable. Petitioner's claim that his trial counsel failed to challenge Doe's testimony about the gun incident is contrary to the record and, therefore, fails to establish deficient performance or prejudice. Thus, habeas relief is unwarranted for this claim.
GG. Ground Thirty-Four.
In Ground Thirty-Four, Petitioner claims that his trial counsel was ineffective for failing to impeach Doe with her prior inconsistent statements about how the rape occurred. (ECF No. 1 at 54-57.)
1. Background.
Doe described the rape, including details about how Petitioner had physically restrained her, on three occasions: the police report, her preliminary hearing testimony, and her trial testimony.
The police report is not a part of the state-court record. According to Petitioner, however, the police report stated that Doe claimed Petitioner “fell on top of her” and “pinned [her] down.” (ECF No. 1 at 54.) The police report also allegedly stated that Doe claimed to have “struggled with the person that held her in the embrace.” (Id. at 57.)
During the preliminary hearing, Doe testified that Petitioner pushed her backwards onto her bed, got on top of her, pinned her down to the bed, and removed her clothes. (CT 29-30.) More specifically, Doe testified that she “was trying to hit him,” but she “couldn't” because he “was using his shoulders to kind of hold me down.” (CT 31.)
During the trial, Doe testified that Petitioner pushed her backward on the bed, fell on top of her, pinned her down, and unbuttoned her pants. (1 RT 66-67.) More specifically, Doe testified that Petitioner “had his head under chin and his shoulder were-had my arms pinned, so I could barely move them and I started to hit him, try to him hit [sic], on his head.” (1 RT 66.)
Petitioner claims that his trial counsel was ineffective for failing to confront Doe on cross-examination with her “evolving” and “changing” accounts of this event. (ECF No. 1 at 55.)
2. Analysis.
A trial counsel's use of a witness's prior testimony as impeachment evidence against that witness is “obviously a matter of trial tactics[.]” Gustave v. United States, 627 F.2d 901, 905 (9th Cir. 1980). Here, Petitioner has shown neither deficient performance nor prejudice from his trial counsel's alleged failure to impeach Doe with inconsistent statements about how she was restrained or pinned down during the rape. No such inconsistency is apparent in the record. Although Petitioner alleges Doe made inconsistent statements about whether she “struggled” with him (ECF No. 1 at 57), this alleged inconsistency is not apparent in the record. Rather, the available record shows that Doe consistently testified that Petitioner pushed her onto the bed and pinned her down, and that she tried to hit him. (CT 29-31; 1 RT 66-67.) Petitioner's counsel had no obligation to elicit an inconsistency that was contrary to the record and that would likely have highlighted the consistency in Doe's accounts. See Cuffle v. Goldsmith, 906 F.2d 385, 388 (9th Cir. 1990) (“An attorney is not required to argue a claim that is clearly refuted by the record.”).
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 41-47; Lodgment No. 11) was not objectively unreasonable. Thus, habeas relief is unwarranted for this claim.
HH. Ground Thirty-Five.
In Ground Thirty-Five, Petitioner claims that his trial counsel was ineffective for failing to introduce Doe's medical records and subpoena her physician to testify as impeachment against Doe. (ECF No. 1 at 44, 46, 48.)
To the extent that this claim is duplicative of Ground Four, it is unsuccessful for the same reasons: Petitioner has not shown that his trial counsel could have found any favorable evidence in Doe's medical records. To the extent that this claim argues for the first time that Petitioner's trial counsel was ineffective for failing to subpoena Doe's physician to testify as a means to impeach Doe, Petitioner has raised only speculation about the existence and availability of such testimony. See Wildman, 261 F.3d at 839; Grisby, 130 F.3d at 373.
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 21, 25, 29; Lodgment No. 11) was not objectively unreasonable. Thus, habeas relief is unwarranted for this claim.
II. Ground Thirty-Six.
In Ground Thirty-Six, Petitioner claims that his counsel was ineffective for failing to present expert testimony regarding battered women's syndrome, which would show Doe was incompetent to testify. (ECF No. 1 at 46-47.) Petitioner has shown neither deficient performance nor prejudice.
First, Petitioner has not proven that his trial counsel performed deficiently in failing to present evidence of Doe's alleged battered women's syndrome. Petitioner acknowledges that any battered women's syndrome that Doe may have suffered would have been “due to [her] abusive relationship with [Petitioner].” (ECF No. 1 at 47.) Petitioner's trial counsel would have had sound strategic reasons for not presenting or opening the door to evidence of Petitioner's abusive behavior against Doe.
Second, Petitioner has not shown prejudice from trial counsel's failure to present such evidence. Petitioner only speculates that a mental health professional would have been available to testify that Doe suffered from battered women's syndrome. Such speculation is insufficient to demonstrate prejudice. See Wildman, 261 F.3d at 839; Grisby, 130 F.3d at 373.
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 25-27; Lodgment No. 11) was not objectively unreasonable. Thus, habeas relief is unwarranted for this claim.
JJ. Ground Thirty-Seven.
In Ground Thirty-Seven, Petitioner claims that his counsel was ineffective for waiving Petitioner's right to be present during discussions on jury instructions and evidence. (ECF No. 1 at 50-53, 60.)
1. Background.
On the day of the discussion of jury instructions, Petitioner's trial counsel asked that Petitioner be allowed to waive his presence. (1 RT 277-78.) The following exchange occurred:
[Trial court]: All right.
Mr. Cazares, is that what you want to do, sir? Do you want to waive your presence for the informal off the record discussion of jury instructions? It's up to you.
[Petitioner]: I don't understand everything on this. It is new to me, all of this, so yes. I'm going to say yes. Excuse me.
[Trial court]: But I have to inquire of you, that's why-so is it okay with you if we have our discussion about jury instructions without you being present?
[Petitioner]: Yes.
[Trial court]: It means you can go if you want to. You have the right to stay. I'm not forcing you to go. It's just a matter-
[Petitioner]: Tomorrow?
[Trial court]: Right now.
[Petitioner]: Right now?
[Petitioner's trial counsel]: Right now. Tomorrow you'll be here at 9:00.
[Petitioner]: Yes. That's fine, your Honor. Thank you.
[Trial court]: All right. Counsel join?
[Petitioner's trial counsel]: Join.
[Trial court]: All right.
[Petitioner's trial counsel]: Double join.
[Trial court]: Find he's knowingly, intelligently, voluntarily waived his presence for the informal off the record discussion of jury instructions.
[Petitioner's trial counsel]: Great.
[Trial court]: See you back here tomorrow.(1 RT 278-79.)
The next day, the trial court addressed the fact that the lawyers also had discussed exhibits without Petitioner's presence:
[Trial court]: Additionally, we did discuss when I talked to [Petitioner] about waiving his presence for the informal discussion of jury instructions, we also went ahead and discussed on the record, even though he wasn't here for it, the admission of the exhibits into evidence, which is more a formality than anything else. Certainly something that needs to be done because if something wasn't used, it doesn't go back to the jury. So I wanted to make sure [Petitioner] knew we had done that and make sure that was okay with him with respect to that conversation.
....
[Petitioner's trial counsel]: I'll be happy to ask him.
[Trial court]: Okay.
[Petitioner's trial counsel]: Mr. Cazares, after you left and I waived your presence, we went through all of the exhibits and both stipulated, agreed what exhibits could be admitted and then they were thereafter admitted. We were fine with you not being present. You
are fine with the knowledge that we did that outside your presence, correct?
[Petitioner]: Yes.
....
[Trial court]: I'll take his waiver as far as him being present with respect to discussion of exhibits, likewise to the jury instructions.(2 RT 353-54.)
2. Analysis.
Petitioner has shown neither deficient performance nor prejudice from the fact that his trial counsel allowed Petitioner to be absent during these discussions.
First, Petitioner has not demonstrated that his counsel performed deficiently. Petitioner had no federal constitutional right to be present during discussions of jury instructions and exhibits. See Sherman, 821 F.2d at 1339 (jury instructions); Stein v. United States, 313 F.2d 518, 522 (9th Cir. 1962) (exhibits). Even assuming that Petitioner did have a federal constitutional right to be present at these discussions, Petitioner expressly waived the right. See Campbell v. Wood, 18 F.3d 662, 671 (9th Cir. 1994) (“Characterization of the right of presence as ‘fundamental' adds little to the analysis. A defendant may waive such fundamental rights as . . . the right to be present at trial[.]”) (citing Taylor v. United States, 414 U.S. 17, 19-20 (1973)). To the extent that Petitioner alleges it was “unprofessional and unethical” for his trial counsel to allow Petitioner to make the waiver (ECF No. 1 at 60), the record does not support this characterization. It is not unprofessional or unethical for an attorney to advise a defendant that the defendant's presence at a trial conference is unnecessary. See United States v. Steed, 465 F.2d 1310, 1315 (9th Cir. 1972) (finding no due process violation where a defendant's “absence from the hearing was a voluntary decision reached by [the defendant] and his counsel”). Thus, Petitioner has not shown that his trial counsel's performance in this regard fell below professional norms.
Second, Petitioner has not demonstrated prejudice from the fact that his counsel allowed Petitioner to be absent during the discussions of jury instructions and exhibits. Petitioner has not explained how these discussions would have differed with his presence or how any such difference would have affected the outcome of the trial. Speculation is insufficient to establish prejudice from his counsel's performance. See Cooks v. Spalding, 660 F.2d 738, 740 (9th Cir. 1981) (“His claim of prejudice amounts to mere speculation.”); see also United States v. Kupau, 781 F.2d 740, 744 (9th Cir. 1986) (rejecting a defendant's “generalized complaint” about his absence from a trial proceeding because “reversal is not required when there is no reasonable possibility of prejudice”).
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 33-39, 53; Lodgment No. 11) was not objectively unreasonable. Thus, habeas relief is unwarranted for this claim.
KK. Ground Thirty-Eight.
In Ground Thirty-Eight, Petitioner claims that his trial counsel was ineffective for failing to raise contemporaneous objections before and during trial. (ECF No. 1 at 62.)
The only specific example Petitioner suggests for this claim is the fact that his trial counsel did not object when the trial court permitted discussions of jury instructions and exhibits in Petitioner's absence. (Id. (citing 1 RT 277-78).) But as discussed above, in Ground Thirty-Seven, Petitioner failed to demonstrate that his trial counsel was ineffective for going forward with these discussions without Petitioner.
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 57; Lodgment No. 11) was not objectively unreasonable. Thus, habeas relief is unwarranted for this claim.
LL. Ground Thirty-Nine.
In Ground Thirty-Nine, Petitioner claims that his trial counsel was ineffective for failing to file a motion to suppress the evidence and a motion under Pitchess v. Superior Court, 11 Cal.3d 531 (1974), for discovery of police personnel files. (ECF No. 1 at 63.)
Petitioner has not met his burden of alleging and demonstrating ineffective assistance of counsel under Strickland. First, he has failed to allege deficient performance because he has not specified what evidence should have been suppressed or which officer's personnel files should have been examined. Second, Petitioner has not alleged how he was prejudiced from counsel's failure to file these motions, by specifically arguing why the motions should have been granted and how the motions would have changed the outcome of the trial. See Greenway v. Schriro, 653 F.3d at 804 (“[Petitioner's] cursory and vague claim [of ineffective assistance] cannot support habeas relief.”) (citing James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”)).
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 59; Lodgment No. 11) was not objectively unreasonable. Thus, habeas relief is unwarranted for this claim.
MM. Ground Forty.
In Ground Forty, Petitioner claims that his counsel was ineffective for failing to object to prosecutorial misconduct. (ECF No. 1 at 63-64.)
Petitioner has not met his burden of alleging and demonstrating ineffective assistance of counsel under Strickland. First, he has failed to allege deficient performance because he has not specified what misconduct was objectionable. Second, Petitioner has not alleged how he was prejudiced from counsel's failure to object, by specifically arguing why an objection would have been sustained and how that would have changed the outcome of the trial. See Greenway v. Schriro, 653 F.3d at 804 (“[Petitioner's] cursory and vague claim [of ineffective assistance] cannot support habeas relief.”) (citing James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”)).
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 59-61; Lodgment No. 11) was not objectively unreasonable. Thus, habeas relief is unwarranted for this claim.
NN. Ground Forty-One.
In Ground Forty-One, Petitioner claims that he suffered a “miscarriage of justice” because of “the constitutional violations that infected his trial.” (ECF No. 1 at 58.)
Petitioner appears to be alleging cumulative error. (Id.) Petitioner appears to be alleging cumulative prejudice from the exclusion of the sex tape, the omission of evidence of Doe's mental illness, the admission of evidence of the gun incident two weeks before the rape, and the illegal search of Petitioner's home. However, because “none of [Petitioner's] claims rise to the level of constitutional error, there is nothing to accumulate to the level of a constitutional violation.” Fairbank v. Ayers, 650 F.3d 1243, 1257 (9th Cir. 2011) (citation and internal quotation marks omitted); Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (same).
The California Supreme Court's summary denial of this claim on the merits (Lodgment No. 10 at 49; Lodgment No. 11) was not objectively unreasonable. Thus, habeas relief is unwarranted for this claim.
III. Request for an Evidentiary Hearing.
Finally, Petitioner requests an evidentiary hearing. (ECF No. 79 at 1, 11.) But if “the state-court record ‘precludes habeas relief' under the limitations of § 2254(d), a district court is ‘not required to hold an evidentiary hearing.'” Pinholster, 563 U.S. at 183 (quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007)). Moreover, “an evidentiary hearing is not required on issues that can be resolved by reference to the state court record.” Totten v. Merkle, 137 F.3d 1172, 1176 (1998) (emphasis in original). Because the state-court record in its current form is sufficient to conclude that Petitioner is not entitled to federal habeas relief, his request for an evidentiary hearing should be denied.
RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court issue an Order: (1) approving and accepting this Amended Report and Recommendation; (2) denying Petitioner's request for an evidentiary hearing; and (3) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.