Opinion
Case No. CV 10-8128 SVW (JCG)
03-19-2014
ANTHONY WAYNE CLARKE, Petitioner, v. DOMINGO URIBE, JR., Warden Respondent.
ORDER ACCEPTING FINDINGS
AND RECOMMENDATION OF
UNITED STATES MAGISTRATE
JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, the records and files herein, and the Report and Recommendation of the United States Magistrate Judge ("R&R"). The Court has also read and considered petitioner's traverse as presenting petitioner's objections to the R&R. (See Dkt 34, 35.) Having conducted a de novo review of the claims raised in the petition, the Court concurs in the Magistrate Judge's conclusions.
With regard to petitioner's claim that trial counsel was ineffective for failing to investigate evidence concerning the path of the bullet, petitioner has not explained how further investigation would have led to evidence casting doubt on the prosecution's theory of the case. See Weaver v. Palmateer, 455 F.3d 958, 971 (9th Cir. 2006); Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997). The state court could reasonably have concluded that in view of the absence of any such evidence, petitioner had failed to "show that there is a reasonable probability that, but for counsel's [deficient investigation of the gunshot evidence], the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). For this additional reason, the state court's denial of Ground Four did not involve an unreasonable application of the Strickland standard. 28 U.S.C. § 2254(d)(1).
In reviewing Ground Six, which alleges that the trial court erred in denying petitioner's motion for disclosure of the identity of a confidential informant, the Court read the sealed transcript of the in camera testimony of Detective Kloss in the trial court on October 10, 2006. (Dkt 27.) It contains eleven pages of sworn testimony by Detective Kloss answering questions posed by the trial judge and the prosecutor. The California Court of Appeal accurately described this hearing in its opinion on direct appeal. Like the state court, this Court is satisfied from the testimony at the in camera hearing that the confidential informant was not a material witness who could have provided evidence that would have assisted the defense. The Court of Appeal therefore reasonably concluded that the trial court did not err in refusing to disclose the identity of the informant. Roviaro v. United States, 353 U.S. 53, 60-61 (1957).
With respect to Ground Seven, the state Court of Appeal concluded that the trial judge's close questioning of the defense psychologist about how he was being compensated for his testimony did not deprive petitioner of a fair trial. As the state court observed, the judge's questioning consumed only a small part of the 26 transcript pages of Dr. Shomer's testimony and did not impugn the validity of the witness's testimony about the frailties of eyewitness identification. The Court of Appeal's rejection of this claim involves neither an unreasonable application of clearly established Federal law nor an unreasonable determination of the facts in light of the trial transcript. 28 U.S.C. § 2254(d).
For the foregoing reasons and those stated in the R&R, the petition for habeas corpus is hereby DENIED.
The Court further concludes that petitioner has not made a substantial showing of the denial of a constitutional right, and therefore declines to issue a certificate of appealability. 28 U.S.C. § 2254; Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
IT IS SO ORDERED.
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STEPHEN V. WILSON
United States District Judge