Opinion
3:22-CV-5371-TL-DWC
11-09-2022
MARTIN A. JONES, Petitioner, v. JEFFREY UTTECHT, Respondent.
Noting Date: November 25, 2022
REPORT AND RECOMMENDATION
David W. Christel United States Magistrate Judge
The District Court has referred this action to United States Magistrate Judge David W. Christel. Petitioner Martin A. Jones, represented by retained counsel Jeffrey Erwin Ellis and Todd Maybrown, filed his federal habeas petition, pursuant to 28 U.S.C. § 2254, seeking relief from his state court conviction and sentence. See Dkt. 1, 7. The Court concludes the state court's adjudication of Grounds 1-3 raised in the Amended Petition was not contrary to, nor an unreasonable application of, clearly established federal law. Additionally, Ground 4 is not cognizable under § 2254. Therefore, the undersigned recommends the Amended Petition be denied and a certificate of appealability not be issued.
I. Background
A. Factual Background
On February 23, 2011, in the Superior Court of Washington for Pierce County (“trial court”), a jury found Petitioner guilty of attempted murder in the first degree. See Dkt. 12-1 at 2. Petitioner was sentenced to 600 months confinement on March 9, 2011. See id. at 2-10. The Court of Appeals of the State of Washington (“state court of appeals”) summarized the facts of Petitioner's case as follows:
I. Factual Background
Early in the morning on February 13, 2010 in Long Beach, Washington State Patrol Trooper Jesse Greene pulled over a minivan driven by Susan Jones,[ ] Jones's wife, for driving in excess of the speed limit. Trooper Greene believed Susan Jones was intoxicated and began conducting field sobriety tests. During this time, Trooper Scott Johnson arrived as backup. Trooper Greene arrested Susan Jones for driving under the influence.
Trooper Johnson asked Susan Jones if there was someone available who would pick up the minivan, to which she replied “Marty” and provided a phone number. Trooper Johnson wrote “Marty” and the phone number on his hand. Trooper Greene then took Susan Jones to the Long Beach Police Department for processing. Shortly after being placed into custody, Susan Jones sent text messages to Jones informing him of her arrest.
Before leaving the scene, Trooper Greene requested a towing company to tow the minivan. Trooper Johnson began processing the minivan's contents until George Hill, owner of Hill Auto Body & Towing, arrived in short order.
As the minivan was being prepared for towing, Trooper Johnson noticed a white male approaching. This white male was visibly agitated and spoke to Hill, asking him what he was doing. Hill indicated that he was preparing the vehicle for towing.
As the unidentified white male began walking away, Trooper Johnson contacted him and asked if he needed help with anything. The white male responded that he did not need help and continued walking away.
Trooper Johnson went back to processing the minivan's contents. Sometime later, Hill saw a white male approach Trooper Johnson from behind and grab him. Hill heard a gunshot and smelled gunpowder. The white male had shot Trooper Johnson in the back of the head. Trooper Johnson, still conscious, made eye contact with the man who had shot him and returned fire. Hill also gave chase, but the man fired upon him; then, Hill returned to assist Trooper Johnson. Trooper Johnson watched the shooter flee.
Hill contacted the Washington State Patrol dispatcher, who notified law enforcement personnel. Long Beach police arrived and one of the officers took Trooper Johnson to Ocean Beach Hospital in Ilwaco. The physician who initiated treatment arranged for Trooper Johnson's transfer to Oregon Health Sciences University Hospital (OHSU) to ensure that Trooper Johnson had access to a trauma surgeon.
At the scene, investigating officers found one .22 caliber short cartridge casing where Trooper Johnson had been shot. The cartridge was stamped with the logo for Cascade Cartridge, Inc., an ammunition manufacturer.
Officers at the scene employed two K-9 units to track the scent from the shooting scene. One of these units led to the block on which Martin and Susan Jones resided. Police realized that the dog was approaching Susan Jones's home.
Police surrounded the Joneses' home. Jones exited the home and walked toward the beach. Police followed him and detained him at gunpoint. Jones told police that he was going for a morning walk on the beach and that he had been asleep all night. Police questioned Jones but released him during further investigation.
Meanwhile, Trooper Johnson recuperated at OHSU for about three days following the shooting. During this time he was shown several photographs of potential suspects in photomontages, as well as individual photographs. Trooper Johnson did not identify the shooter in any of these photos. Trooper Johnson began asking to see a photo of Susan Jones's husband, which officers eventually showed him. Trooper Johnson identified Jones as the shooter.
Following Trooper Johnson's identification, officers arrested Jones, who continued to claim he was at home asleep at the time of the shooting. Police obtained warrants to search his home and phone records. The phone records disclosed several phone calls exchanged between Jones and his neighbor in the early morning hours of February 13, 2010. A search of Jones's home disclosed a box of .22 caliber Cascade Cartridge, Inc. ammunition manufactured in 1999, which matched the .22 shell casing found at the scene of Trooper Johnson's shooting.
II. Pretrial Proceedings
The State charged Jones with attempted first degree murder. Jones was initially arraigned in Pacific County, but due to pretrial publicity, Jones requested a venue change. The court granted Jones's motion and transferred the case to Thurston County Superior Court. Jones filed an affidavit of prejudice against Thurston County Superior Court Judge Pomeroy. Unable to accommodate the trial in Thurston County following the affidavit, the case was transferred back to Pacific County. Pacific County Superior Court then transferred venue to Pierce County.
The parties exchanged several pretrial evidentiary motions. Jones planned to present evidence that Trooper Greene had observed a different white male walking past the minivan 40 minutes before the shooting, just after stopping Susan Jones. The State successfully moved to exclude this evidence as impermissible “other suspect” evidence.
Jones also moved to suppress Trooper Johnson's eyewitness identification or alternatively present expert testimony regarding the questionable reliability of
eyewitness identifications. The court denied Jones's motion to suppress but allowed his expert to testify.
III. Trial
During trial, Jones sought to impeach the testimony of Sara Trejo, the Washington State Patrol Crime Lab's fingerprint analyst, with the e-mail of Chris Sewell, who had called the State's investigation “haphazard” and otherwise had criticized communication breakdowns among law enforcement agencies. The trial court denied the use of the e-mail for impeachment, concluding that the e-mail was a collateral matter. Jones later sought to present the testimony of Chris Sewell in his case-in-chief, but the court excluded this testimony as unduly prejudicial under ER 403.
At the conclusion of the evidence, the court indicated that the court clerk would randomly draw the names of four jurors from a rotating cylinder to determine which jurors would be alternates. During the defense's closing arguments, there was a court recess during which the court clerk randomly pulled four jurors' names. The court announced the names of the four alternate jurors following closing arguments and excused these jurors. Jones did not object to any aspect of the alternate juror drawing.
The jury found Jones guilty of attempted first degree murder and returned a verdict that included a firearm sentencing enhancement. Following the verdict, Jones moved for a new trial, claiming that the random drawing of alternate jurors violated his right to a public trial and right to be present and appear and defend. He also asserted that he should have been able to present evidence that another suspect shot Trooper Johnson. The trial court denied Jones's motions. Jones appealed.State v. Jones, 175 Wash.App. 87, 91-95 (2013), aff'd in part, rev'd in part, 185 Wash. 2D 412 (2016); see also Dkt. 12-1 at 194-227 (footnote omitted).
B. Procedural Background
1. Direct Appeal
Petitioner challenged his conviction and sentence on direct appeal. See Dkt. 12-1 at 3398. The state court of appeals vacated Petitioner's conviction and remanded for a new trial, concluding the process for selecting alternate jurors violated the right to a public trial. Id. at pp. 194-227. Both the State and Petitioner sought discretionary review by the Washington State Supreme Court (“state supreme court”). See id. at 301-65, 367-88. The state supreme court granted review and, on April 21, 2016, the state supreme court found Petitioner's public trial right was not implicated by the process for selecting alternate jurors and reinstated Petitioner's conviction. Id. at 471-77. The state supreme court issued its mandate on May 19, 2016. Id. at 779-80.
2. Personal Restraint Petition
On April 20, 2017, Petitioner filed a personal restraint petition (“PRP”) seeking state post-conviction relief. See Dkt. 12-2. The state court of appeals transferred the PRP to the trial court for an evidentiary hearing to determine the merits of the claim. Dkt. 12-6 at 151-67. After transferring the case, the state court of appeals issued the certificate of finality on November 19, 2019. Id. at 169.
The trial court held an evidentiary hearing and, on January 23, 2020, dismissed the PRP. Id. at 172-826, 829-45, 847. Petitioner appealed the decision to the state court of appeals. Id. at 849-909. The state court of appeals affirmed the dismissal on July 27, 2021. Dkt. 12-1 at 14-31. Petitioner filed a petition for review, which the state supreme court denied without comment on March 30, 2022. Dkt. 12-6 at 995-1027, 1087. The state court of appeals issued the certificate of finality on June 2, 2022. Id. at 1089.
3. Federal Petition
On May 23, 2022, Petitioner initiated this case. Dkt. 1. In his Amended Petition (Dkt. 7), Petitioner raised the following four grounds for relief:
1. Petitioner was denied his Fourteenth Amendment right to due process when the State relied upon highly suggestive and exceedingly unreliable identification procedures that created a substantial likelihood of irreparable misidentification of Petitioner.
2. Petitioner was denied his Sixth Amendment right to present a defense by excluding critical evidence during the trial proceedings.
3. Petitioner was denied his Sixth Amendment right to confrontation during the trial proceedings.
4. Petitioner was denied his Sixth Amendment right to present a defense by excluding critical evidence during the personal restraint petition proceedings.Dkt. 7 at 4-7. On August 24, 2022, Respondent filed, and electronically served on Petitioner's retained counsel, an Answer to the Amended Petition and relevant state court records. Dkt. 11, 12. In the Answer, Respondent asserts the state court's adjudication of the grounds raised in the Amended Petition was not contrary to, nor an unreasonable application of, clearly established federal law. Dkt. 11. Petitioner did not file a traverse.
II. Discussion
Respondent maintains the state courts' adjudication of the grounds raised in the Amended Petition was not contrary to, nor an unreasonable application of, clearly established federal law. Dkt. 11.
A. Standard of Review
Pursuant to 28 U.S.C. § 2254(d)(1), a federal court may not grant habeas relief on the basis of a claim adjudicated on the merits in state court unless the adjudication “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.” In interpreting this portion of the federal habeas rules, the Supreme Court has ruled a state decision is “contrary to” clearly established Supreme Court precedent if the state court either (1) arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or (2) confronts facts “materially indistinguishable” from relevant Supreme Court precedent and arrives at an opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000).
Moreover, under § 2254(d)(1), “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see Lockyer v. Andrade, 538 U.S. 63, 69 (2003). An unreasonable application of Supreme Court precedent occurs “if the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case.” Williams, 529 U.S. at 407. In addition, a state court decision involves an unreasonable application of Supreme Court precedent “‘if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Williams, 529 U.S. at 407).
The Anti-Terrorism Effective Death Penalty Act (“AEDPA”) requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Further, review of state court decisions under §2254(d)(1) is “limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).
B. Witness Identification (Ground 1)
In Ground 1, Petitioner contends his Fourteenth Amendment right to due process was denied when the State relied upon highly suggestive and exceedingly unreliable identification procedures that created a substantial likelihood of irreparable misidentification of Petitioner. Dkt. 7 at 4-5.
Generally, the reliability of relevant testimony typically falls within the province of the jury to determine. Perry v. New Hampshire, 565 U.S. 228, 232 (2012). That said, the Supreme Court has recognized due process safeguards where the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime. Id. However, even if an identification is infected by improper police influence, this evidence is not automatically excluded. Id.; see also Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977); Neil v. Biggers, 409 U.S. 188, 198-99 (1972). Rather, the trial judge must screen the evidence prior to trial for reliability. Perry, 565 U.S. at 232. When evaluating the reliability of both in-court and out-of-court identifications, the Court should consider the following factors: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Neil, 409 U.S. at 199-200; United States v. Field, 625 F.2d 862, 866-67 (9th Cir. 1980). If there is “a very substantial likelihood of irreparable misidentification,” the evidence should not be admitted at trial. Perry, 565 U.S. at 232 (quotation omitted). “But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.” Id.
Photographic procedures which emphasize the focus upon a single individual increase the danger of misidentification. Simmons v. United States, 390 U.S. 377, 382-83 (1968); United States v. Hanigan, 681 F.2d 1127, 1133 (9th Cir. 1982), cert. denied, 459 U.S. 1203 (1983). Thus, “[c]onvictions based on in-court identifications following a pre-trial identification by photograph will be set aside where the photographic identification procedure was so impermissibly suggestive as to give use to a substantial likelihood of misidentification.” United States v. Barrett, 703 F.2d 1076, 1084 (9th Cir. 1983). Short of the point where “under all the circumstances” of a given case, there is “a very substantial likelihood of irreparable misidentification,” those circumstances are “for the jury to weigh.” Manson, 432 U.S. at 116 (quoting Simmons, 390 U.S. at 384).
Petitioner raised this ground on direct appeal. In determining Petitioner's due process rights were not violated when the trial court allowed the prosecution to present eyewitness identification evidence, the state court of appeals stated:
Jones contends that the admission of Trooper Johnson's photo identification of Jones violates his due process rights. First, Jones asserts that the photo identification procedure was impermissibly suggestive. We agree and hold that the photo identification procedure employed by law enforcement officers was unduly suggestive. Second, Jones asserts that the procedure was unreliable because it was substantially likely to result in an irreparable misidentification under the totality of the circumstances. On this point, we disagree with Jones and hold that Trooper Johnson's photo identification of Jones was reliable enough to be considered by the jury.
“Admission of a photo identification or a photomontage is, reduced to its essence, the admission of evidence in a criminal case” and is therefore “subject to the sound discretion of the trial court.” State v. Kinard, 109 Wash.App. 428, 432, 36 P.3d 573 (2001). Instead of making independent evaluations where constitutional issues are at play, appellate courts determine whether substantial evidence supports trial court's findings. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994). We thus review the trial court's order denying the suppression of Trooper Johnson's eyewitness identification for abuse of discretion and substantial evidence. [Fn. The trial court denied the suppression of Trooper Johnson's eyewitness identification based on stipulated evidence presented by the parties. See App. A to Br. of Appellant].
A. The Photo Identification Procedure Was Unduly Suggestive
Jones bears the burden of showing that the photographic identification procedures employed by law enforcement were impermissibly suggestive. State v. Vickers, 148 Wash.2d 91, 118, 59 P.3d 58 (2002). A photographic identification meets the strictures of due process if it is not “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The Simmons court provided several factors that may result in a high likelihood of misidentification, including where the witness has only a brief chance to observe the criminal, sees him under poor conditions, sees “only the picture of a single individual who generally resembles the person he saw,” or sees only “the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.” Simmons, 390 U.S. at 383, 88 S.Ct. 967.
Under these statements of the law, we conclude that the procedures employed here were impermissibly suggestive. The parties stipulated that following the shooting, Trooper Johnson made the following statements regarding how well he saw the man who shot him: “I got a good look at him”; “diligent attention”; “did not get a good look at the shooter”; “mostly saw a side profile.” These stipulated statements are at best inconsistent. On February 13, 2010, while Trooper Johnson was recuperating at OHSU, Portland police showed him a single photograph of a white male. Trooper Johnson indicated that he could not be “100% sure” that this was the shooter, but indicated that the photograph resembled the shooter. Police later showed Trooper Johnson a sketch based on another witness's description and Trooper Johnson indicated that the sketch did not look like the shooter. About an hour later, police showed Trooper Johnson a black-and-white, poor quality copy of Jones's Department of Licensing photo; Trooper Johnson requested a clearer copy. He was shown another photograph of a different man 45 minutes later. Three hours after that, police showed Trooper Johnson a montage with six photos, none of which was of Jones, and he responded that none of the men in the photos was the shooter. The next day, police showed Trooper Johnson six different photos throughout the day, none of which was of Jones; Trooper Johnson did not identify any as the shooter.
In the two-day period during which he was presented with these photographs, Trooper Johnson had the name “Marty” and a phone number written on his hand from when he stopped Susan Jones's minivan. Trooper Johnson twice asked to see a photograph of Susan Jones's husband. On the afternoon of February 14, 2010, Trooper Johnson was shown a clear, color photo of Jones's Department of Licensing photograph which Trooper Johnson identified as the shooter. [Fn. Based on the photocopy of the Department of Licensing photograph attached to the parties' stipulation, it appears the Jones' name and identifying information was printed below the photograph.] Later that day, after Trooper Johnson had identified a photograph of Jones as the shooter, a sketch artist met with Trooper Johnson to complete a composite sketch of the shooter. Sometime later on the same day, detectives who were unaware of Trooper Johnson's previous identification of Jones presented another photo montage to Trooper Johnson that included Jones's photo. Trooper Johnson indicated that Jones's photo “look[ed] very much similar to the gentleman [he] saw.”
Throughout the time that police officers showed Trooper Johnson photographs to determine who the shooter was, he repeatedly requested photos of Susan Jones's husband, suspecting that Jones was involved in the shooting. He was shown several single photographs, including several pictures of Jones. The picture he identified as Jones likely had Jones's name printed on it. Then he identified Jones from a photo montage after having already identified him from a single photograph. The identifications were made after Trooper Johnson made inconsistent statements about his ability to identify Jones. This all leads us to conclude that the photo identifications employed by law enforcement in this case were impermissibly suggestive.
B. Despite Suggestiveness, the Photo Identification Procedure Was Reliable Enough to Be Given to the Jury
Even though several aspects of the photo identification procedures were suggestive, the reliability of the identification, considering the totality of the circumstances, controls the determination of whether the procedures created a substantial likelihood of irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 113-14, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In other words, if the identification is reliable, it cures the suggestive nature of the confrontation procedure.
The United States Supreme Court has provided several factors to determine the identification's reliability, “includ[ing] the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Brathwaite, 432 U.S. at 114; Biggers, 409 U.S. at 199-200. Based on the facts presented in the parties' stipulation, the trial court carefully weighed each of these factors in its order denying Jones's motion to suppress Trooper Johnson's identification. It determined that the there was no substantial likelihood of irreparable misidentification. We hold that the trial court did not abuse its discretion by reaching this determination.
Furthermore, in Brathwaite, the United States Supreme Court indicated that the reliability of eyewitness identification was best left to the jury:
[S]uch evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.
432 U.S. at 116. The trial court permitted evidence of Trooper Johnson's eyewitness identification, noting that any defects in the evidence go to the evidence's weight, not its admissibility. It did not abuse its discretion in doing so. We hold that the trial court appropriately allowed the prosecution to present eyewitness identification evidence, leaving for the jury the question of how much credence such evidence deserved.[ ]State v. Jones, 175 Wash.App. 87, 108 (2013) (some footnotes omitted); see also Dkt. 12-1 at 211-15.
The state court of appeals also addressed Petitioner's claim that the trial court should have included a cautionary jury instruction related to the reliability of eyewitness identification. See Jones, 175 Wash.App. at 108. As Petitioner did not raise this ground in his Petition, the Court declines to consider the state court's decision regarding a cautionary jury instruction.
During a pretrial hearing, Petitioner's counsel argued Trooper Johnson's pretrial identification of Petitioner should be suppressed. As detailed by the state court of appeals, the facts showed Trooper Johnson was shot at approximately 12:42 A.M. Dkt. 12-7 at 414. Immediately after the shooting, Trooper Johnson provided some general identification information regarding the suspect's size, race, and height. Id. While at OHSU, Trooper Johnson was provided with many photographs of possible suspects. Id. at 415. Because Mrs. Jones had requested Petitioner pick up her vehicle after the DUI stop, Trooper Johnson knew Petitioner's name. Id. at 415-16. Trooper Johnson stated he suspected Petitioner had something to do with the shooting and requested to see a photograph of Petitioner. Id. at 416.
A day after the shooting, Petitioner's Department of Licensing (“DOL”) photograph was emailed to an officer stationed at OHSU. Id. The officer showed Trooper Johnson Petitioner's DOL photo, which included Petitioner's name, and Trooper Johnson looked at the photo and identified Petitioner as the shooter by saying, “I hate to say it, but that's him.” Id. at 417. About four hours later, Trooper Johnson was shown a six-photograph montage - Petitioner's DOL photo was included in the photo montage. Id. at 421. But, the officers who showed Trooper Johnson the photo montage did not know Trooper Johnson had earlier viewed a photo of Petitioner and identified him as the shooter. Id. From the photo montage, Trooper Johnson selected Petitioner as the shooter. Dkt. 12-1 at 93. Trooper Johnson also assisted in creating a sketch, which was not finished until after Trooper Johnson had identified Petitioner from the single picture identification. Dkt. 12-7 at 421.
Petitioner's counsel argued that, because Trooper Johnson has been asking to see a photo of Petitioner for a day and a half, he had a very strong predisposition to find Petitioner was involved in the shooting. Id. at 417. Petitioner's counsel asserted that the identification was “tantamount to a police officer telling an eye witness . . . that a certain person is the suspect[.]” Id. But, worse, the photo of Petitioner included his name when all the other photographs did not contain identifying information. Id. Counsel also argued that the photo montage and the sketch should be suppressed because Trooper Johnson had identified Petitioner from the single photo identification prior to viewing the photo montage and completing the sketch. Id. at 421.
The State argued Trooper Johnson was not predisposed to identify Petitioner. Dkt. 12-7 at 423. Rather, the State asserted Trooper Johnson believed the person who shot him had interest in Mrs. Jones' vehicle and he had Petitioner's name and phone number on his hand. Id. Trooper Johnson wanted to see a picture of Petitioner to exclude or identify Petitioner as the shooter. Id. The State argued that the procedure used was not so unreliable or untrustworthy that the jury would be unable to weigh the evidence and make a rational decision. Id. at 427. The State asserted there was an exigent circumstance exception in this case that allowed the police to employ a suggestive identification procedure due to logistics or time restraints. Id. at 430. It also argued there was no substantial likelihood of irreparable misidentification. Id. at 435.
In ruling on the motion to suppress, the trial court stated,
. . . the motion to suppress the eyewitness identification testimony is denied. I do not find the due process violation. The procedures that were employed do not create the substantial likelihood of an irreparable misidentification.
Certainly, it's not preferred to show a single photo, but in light of the totality of the circumstances, and I will go through the Manson factors, I th[ink] that there are a
couple of things going on. One, I think that there was an emergency situation potential for harm to citizens. Law enforcement doing the investigation in Long Beach, the victim in Portland, the poor communications between the areas.
The Manson factors indicate . . . the opportunity of the witness to view the criminal at the time of the crime, I think have been satisfied. The information that I have reviewed indicates that Trooper Johnson had an opportunity and spoke to face-to-face as well as from the profile side of the alleged suspect. The degree of attention provided by the trooper at the time of the incident and the other Mason factors, the accuracy of the witness's description prior to the viewing of the photo, the level of certainty demonstrated at a confrontation, and the time between the time of the alleged crime and the confrontation. I didn't chart it out with your new timeline, less than 24 hours 12:42 a.m. on the 13th, and I think the photo was shown at noon on the 14th....It looks like 3:45 p.m.
The Court finds that the identification was independent, reliable and the substantial likelihood of irreparable misidentification is not present.Id. at 436-37. The trial court, however, granted Petitioner's motion seeking to allow Dr. Geoffrey Loftus, Petitioner's identification expert, to testify regarding eyewitness identification procedures and their reliability. Id. at 442-43.
During trial, Trooper Johnson testified that, while he was at the location of the traffic stop of Mrs. Jones, Petitioner approached the tow truck operator, George Hill. Dkt. 12-12 at 284-85. Trooper Johnson stated Petitioner had an angry expression on his face and was traveling at a brisk pace toward Mr. Hill. Id. at 284. Petitioner had a brief conversation with Mr. Hill, then Petitioner abruptly turned around and headed back in the direction he came. Id. at 287. Trooper Johnson asked if he could help Petitioner with anything, to which Petitioner angrily responded, “No.” Id. at 289. Trooper Johnson identified Petitioner's clothing and appearance. Id. at 289-90. Petitioner then left the scene and Trooper Johnson continued to inventory the vehicle for impounding. Id. at 289-98. Trooper Johnson testified that, a few minutes later, he was approached from behind and shot in the back of the head. Id. at 298-303. Trooper Johnson saw Petitioner at the scene of the shooting and shot at him. Id. at 303, 304-05.
Additionally, at trial, Trooper Johnson explained the identification process that was used to show him potential suspects, including Petitioner, while he was in the hospital following the shooting. Id. at 322-29. He stated he requested a photo of Petitioner because he knew Petitioner and Mrs. Jones lived near the shooting location and were involved in the DUI incident. Id. at 323-24. Trooper Johnson testified he had no doubts Petitioner was the person who shot him. Id. at 332.
On cross-examination, Petitioner's counsel questioned Trooper Johnson about his identification of Petitioner. Id. at 380-99. Counsel also questioned Trooper Johnson about the preferable way to show photos of suspects and Trooper Johnson's training related to photo montages. Id. at 394-95, 402, 404-07. Petitioner was also able to elicit testimony from Dr. Loftus, who testified as an expert regarding human memory and psychological impacts on reliability of specific identification procedures. See Dkt. 12-13 at 435-83, 499-501.
Based on the totality of the circumstances, the identification procedures in this case were not so unreliable as to create a substantial likelihood of irreparable misidentification. The record shows Trooper Johnson viewed Petitioner at the scene of the shooting and that he was attentive to Petitioner during the shooting. Trooper Johnson made eye-contact with Petitioner and was looking at Petitioner when he shot at Petitioner. Following the shooting, Trooper Johnson provided a general description of the suspect that matched Petitioner's description. The length of time between the shooting and the photo identification was also relatively short - one to two days. Moreover, Trooper Johnson was confident Petitioner was the individual that shot him when he viewed the photographs and when identifying Petitioner in court.
The trial court and state court of appeals, relying on Supreme Court precedent, reasonably considered the relevant factors and reached the conclusion that Trooper Johnson's eyewitness identification was not so unreliable as to create a substantial likelihood of irreparable misidentification and that this was a matter for the jury to consider regarding the evidence's weight, not admissibility. Petitioner has failed to show the state court of appeals' conclusion that Petitioner's due process rights were not violated when the trial court permitted evidence of Trooper Johnson's eyewitness identification was contrary to, or was an unreasonable application of, clearly established federal law. Accordingly, the Court recommends Ground 1 be denied.
C. Present a Defense (Grounds 2 & 4)
In Ground 2, Petitioner alleges he was denied his Sixth Amendment right to present a defense when the trial court excluded “critical evidence” during the trial proceedings. Dkt. 7 at 5-6. In Ground 4, Petitioner asserts he was denied his Sixth Amendment right to present a defense when “critical evidence” was excluded from his PRP proceedings. Id. at 7.
The Constitution guarantees a criminal defendant a meaningful opportunity to present relevant evidence in his own defense at trial. See, e.g., Taylor v. Illinois, 484 U.S. 400, 408 (1988); Crane v. Kentucky, 476 U.S. 683, 690 (1986). “The Supreme Court has made clear that the erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense.” DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citations omitted). However, “the right to present relevant testimony is not without limitation. The right ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'” Rock v. Arkansas, 483 U.S. 44, 55 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). Relevant evidence may be excluded for failure to comply with procedural requirements, and “any number of familiar and unquestionably constitutional evidentiary rules also authorize the exclusion of relevant evidence.” Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (plurality opinion). “While the Constitution ... prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 U.S. 319, 326 (2006).
1. Ground 2
In Ground 2, Petitioner alleges he was denied his Sixth Amendment right to present a defense when the trial court excluded “critical evidence” during the trial proceedings. Dkt. 7 at 5-6. Specifically, Petitioner contends the trial court refused to allow Petitioner to present information or evidence regarding a man seen by Trooper Greene prior the shooting. Id.
In determining Petitioner's right to present a defense was not violated, the state court of appeals stated:
Jones argues that the trial court violated his constitutional right to present a defense by excluding Trooper Greene's testimony that Greene saw an individual walk by when he stopped Susan Jones's car. According to Jones, Trooper Green's description of this individual matched the description given by George Hill, the tow truck operator, who was present at the time of the shooting. The court ruled that Trooper Greene could not testify about seeing another individual unless the defendant was able to show the necessary foundation connecting another suspect to the shooting. The trial court did not abuse its discretion in so ruling.
The Sixth Amendment to the United States Constitution provides in pertinent part that in “all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor....” The United States Supreme Court has held that “[j]ust as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). However, this right is not absolute. State v. Smith, 101 Wash.2d 36, 41, 677 P.2d 100 (1984). A criminal defendant has no constitutional right to present irrelevant evidence. Thomas, 150 Wash.2d at 857, 83 P.3d 970; State v. Hudlow, 99 Wash.2d 1, 15, 659 P.2d 514 (1983).
Under Washington law, “[w]hen there is no other evidence tending to connect another person with the crime, such as his bad character, his means or opportunity to commit the crime, or even his conviction of the crime, such other evidence is irrelevant to exculpate the accused.” Thomas, 150 Wash.2d at 857, 83 P.3d 970. Our Supreme Court's decision in State v. Downs, 168 Wash. 664, 13 P.2d 1 (1932), is instructive. There, the court upheld the exclusion of evidence that a well-known burglar was in Seattle on the night of a burglary. Downs, 168 Wash. at 665-66, 13 P.2d 1. The mere fact that another burglar was in Seattle on the same night of the subject burglary was not a “circumstance[] tending in some manner to connect him with the commission of the crime.” Downs, 168 Wash. at 668, 13 P.2d 1. Defendants must show more than mere opportunity to commit the crime because such evidence is “ ‘the most remote kind of speculation.' ” Thomas, 150 Wash.2d at 857, 83 P.3d 970 (quoting Downs, 168 Wash. at 668)
Jones's proposed presentation of Trooper Greene's testimony would have shown only that when Trooper Greene stopped Susan Jones's car, Greene saw someone else on the street who may have had an opportunity to shoot Trooper Johnson. But 40 minutes elapsed between Trooper Greene's observation and the shooting. Thus, Trooper Greene's testimony would not demonstrate the required connection between the person Trooper Greene saw and the shooter, only that this other person walked by 40 minutes earlier. The trial court did not abuse its discretion by excluding Trooper Greene's observation of the unidentified pedestrian.
Jones argues that State v. Maupin, 128 Wash.2d 918, 913 P.2d 808 (1996), a case involving the constitutional right to call witnesses to support the defense, compels a different result. In Maupin, the defendant sought to elicit testimony from a witness who saw the girl that the defendant allegedly raped and murdered with another person after the rape and murder were supposed to have taken place under the State's theory. Maupin, 128 Wash.2d at 922. Our Supreme Court held that the witness's testimony went beyond speculation about mere motive or opportunity that someone else committed the crime because the witness “would have testified he saw the kidnapped girl with someone other than the defendant after the time of kidnapping.” Maupin, 128 Wn.2d at 928 (emphasis added). Unlike Maupin, in which the defendant demonstrated the necessary nexus between another suspect and the crime, here Jones's argument boils down to the mere presence of another person on a public street who may have had the opportunity to shoot Trooper Johnson. This other-suspect evidence is irrelevant to exculpate Jones. We hold that the trial court's exclusion of this evidence did not violate Jones's constitutional right to present a defense. [Fn. In his SAG (Statement of Additional Grounds), Jones asserts that the State was permitted to state that all other suspects were cleared, despite the lack of investigation of all 1600 tips called in from citizens. Even if Jones' assertion is true, Jones fails to demonstrate that any of these tips demonstrate the necessary connection between another suspect and Trooper Johnson's shooting.]Jones, 175 Wash.App. at 108; see also Dkt. 12-1 at 218-20.
The state court record shows the State moved to exclude evidence related to “other suspects.” See Dkt. 12-7 at 398. The trial court heard proffers from both the State and Petitioner's trial counsel regarding excluding Trooper Greene's testimony related to another potential suspect. Id. at 398-413. The State argued Trooper Greene, who was the person who arrested Petitioner's wife on the night of the shooting, stated in his report that a white male walked by while he was conducting the traffic stop and arrest. Id. at 403. Petitioner's counsel argued Trooper Greene's report indicated that he saw an individual with a watch cap walking down the street on the sidewalk right next to the traffic stop. Id. at 404. Trooper Greene's description of this individual matched the tow truck driver, George Hill's, description of the shooter, including a similar cap. Id. Petitioner's counsel argued the individual was in the same geographical location of the shooting 15 to 20 minutes before Trooper Johnson was shot. Id. Counsel also argued Trooper Greene was sent out to several roadblocks to attempt to identify this individual after the shooting. Id. Counsel asserted that Trooper Greene identified someone very different from Trooper Johnson. Id. at 405. The State countered that Trooper Greene would testify he did not think the person whom he saw had anything to do with the shooting, but the State Patrol wanted to talk to anyone who might know something about the shooting. Id. at 40809.
The trial court considered the arguments and stated:
State's motion is granted. The case law does not support other suspect evidence without something more specific, and it has to be more of a nexus than motive, ability and opportunity, and that has not been shown.Id. at 413.
“Only rarely ha[s 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). Even so, in some circumstances, state rules of evidence cannot be used to prevent a defendant from presenting reliable evidence crucial to his defense. Washington v. Texas, 388 U.S. 14, 22 (1967); Chambers, 410 U.S. at 302; Rock, 483 U.S. at 55-56.
Here, the state court of appeals found the trial court did not abuse its discretion in excluding Trooper Greene's testimony about seeing another individual when he was arresting Mrs. Jones. The evidence shows Trooper Greene saw a person walk by him when he was conducting the traffic stop on Mrs. Jones. There was no information identifying this individual or motive connecting the individual to the shooting. The only nexus was the fact the individual walked by the traffic stop approximately 30-40 minutes before the shooting. As Trooper Greene's testimony would have provided limited information showing sufficient “other suspect” evidence, Petitioner fails to show the trial court's decision to exclude Trooper Greene's testimony about seeing another individual at the time of the traffic stop deprived Petitioner of his right to present a defense. On this basis, the state court of appeals reasonably concluded Petitioner did not sufficiently connect Trooper Greene's identification of an individual that walked by the traffic stop to the shooting.
Furthermore, the Supreme Court has not “squarely addressed” whether a trial court's exercise of discretion to exclude evidence violates a defendant's right to present a complete defense, nor has it clearly established a “controlling legal standard” for evaluating such exclusions. See Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009); Brown v. Horrell, 644 F.3d 969, 983 (9th Cir. 2011). As Petitioner has not shown there is clearly established federal law, Petitioner has not shown the state court's decision upholding the exclusion of the “other suspect” evidence is contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent. See Rafay v. Obenland, 2020 WL 5984210, at *18 (W.D. Wash. Jan. 28, 2020), report and recommendation adopted, 2020 WL 5982000 (W.D. Wash. Oct. 8, 2020) (finding state court's decision upholding exclusion of “other suspect” evidence was not contrary to, or an unreasonable application of, clearly established law); Little v. Haynes, 2021 WL 2211309, *11 (W.D. Wash. May 12, 2021) (same). Accordingly, the Court recommends Ground 2 be denied.
2. Ground 4
In Ground 4, Petitioner contends he was denied the right to present a defense during his PRP proceedings. Dkt. 7 at 7. “[A] petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.” Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989). As Ground 4 alleges errors related to Petitioner's state post-conviction proceeding only, this claim is not cognizable under § 2254. Accordingly, the Court recommends Ground 4 be denied.
D. Right to Confront (Ground 3)
In Ground 3, Petitioner contends his Confrontation Clause rights were violated when he was not allowed to present evidence that the Washington State Patrol's investigation was “shoddy and biased,” allowing the State to present a false impression that the Washington State Patrol's investigation was flawless and trustworthy. Dkt. 7 at 6-7. The Court notes it is unclear if Petitioner is attempting to raise a Confrontation Clause violation resulting from his inability to cross-examine Sarah Trejo or a Sixth Amendment right to present a defense based on his inability to present Chris Sewell's testimony. See id. The Amended Petition does not adequately explain this ground and Petitioner did not file a traverse to further expand on this ground. As Petitioner explicitly stated his right to confront was violated, the Court has focused its analysis on the Confrontation Clause. However, as discussed below, the Court also considered Petitioner's right to present a defense regarding the exclusion of Mr. Sewell's testimony.
The Court notes Petitioner raised this ground as a denial of his right to present a defense in his direct appeal. See Dkt. 12-1 at 84-85. Respondent does not argue Ground 3 is unexhausted. See Dkt. 11.
The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted by the witnesses against him.” U.S. Const. Amend. VI. The Confrontation Clause applies to the states through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403 (1965), and it guarantees criminal defendants the right to confront and cross-examine the witnesses against them. Chambers, 410 U.S. at 294-95. “The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315-16 (1974). This right includes the right to cross-examine adverse witnesses to attack their general credibility or show their possible bias or self-interest in testifying. Olden v. Kentucky, 488 U.S. 227, 231 (1988).
Despite this constitutional guarantee, trial judges retain wide latitude to impose reasonable limits on cross-examination “based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Delaware v Van Arsdall, 475 U.S. 673, 679 (1986). A trial court's restrictions on the defendant's right to cross-examine witnesses may not be “arbitrary or disproportionate to the purposes they are designed to serve” and may not prohibit all inquiry into the possibility that a witness is biased. Ortiz v. Yates, 704 F.3d 1026, 1034, 1035 (9th Cir. 2012) (quotations omitted) (citing Michigan v. Lucas, 500 U.S. 145, 151 (1991)). Generally, the Confrontation Clause is satisfied when the defendant has the opportunity to show the weaknesses in a witness's testimony and undermine a witness's credibility. Hayes v. Ayers, 632 F.3d 500, 518 (9th Cir. 2011) (citations omitted) (“No Confrontation Clause violation occurs as long as the jury receives sufficient information to appraise the biases and motivations of the witness.”).
In determining Petitioner's Sixth Amendment rights were not violated, the state court of appeals stated:
Jones sought to present the testimony of Chris Sewell, a Washington State Patrol Crime Lab supervisor, who had sent an e-mail calling the police investigation of Trooper Johnson's shooting “haphazard.” Jones planned to use this e-mail to impeach the State crime lab's fingerprint analyst. Sewell's general e-mail regarding the police investigation being haphazard had nothing specifically to do with the fingerprint analysis of various items that was performed by the State's fingerprint analyst. The e-mail was not offered for any purpose pertaining to fingerprint analysis. Therefore, if permitted, the e-mail would have constituted impeachment on a collateral matter. See State v. Alexander, 52 Wash.App. 897, 901-02, 765 P.2d 321 (1988) (“Contradictory or impeaching testimony is collateral if it could not be shown in evidence for any purpose independent of contradiction.”). Thus, we hold that the trial court's exclusion of this impeachment evidence was not an abuse of discretion and did not implicate Jones's Sixth Amendment right to present a defense.
The evidence of Sewell's opinion of the investigation was also properly excluded under ER 403 because “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” Although perhaps relevant to the general quality of the police investigation, the generality of Sewell's comments minimize their probative value. Allowing a crime lab supervisor to openly and generally criticize the entire police investigation through an opinion that it was haphazard would have elicited an emotional, rather than rational, response among the jurors. Furthermore, after hearing testimony from several Washington State Patrol troopers, as well as from forensic specialists involved in the investigation, Sewell's testimony at a late trial stage could have misled or at best have confused the jury. Therefore, we hold that the trial court did not abuse its discretion excluding Sewell's testimony. We also hold that this exclusion of evidence did not impinge Jones's ability to present a defense. After all, Jones had ample opportunity to cross-examine the State's forensic witnesses and present his own forensic witnesses.Jones, 175 Wash.App. at 108; see also Dkt. 12-1 at 220-21.
At trial, the State filed a motion in limine requesting the trial court exclude testimony regarding an email sent from Chris Sewell, a supervisor at the Washington State Crime Lab, to Sarah Trejo, a fingerprint analyst from the Crime Lab. See Dkt. 12-12 at 6. The email from Mr. Sewell was “criticizing the investigation, basically saying he thought that [it] was haphazard” and the communication was lacking. Id. at 6-8. After the State produced the email to Petitioner, Petitioner's counsel notified the State they wanted to call Mr. Sewell as a witness to testify that he did not think the State Patrol investigation was well-organized. Id. at 7. Petitioner's counsel also sought to cross-examine Ms. Trejo regarding the contents of the email, arguing it was relevant regarding whether she thought the investigation was haphazard and whether Mr. Sewell had directed her to not document investigation concerns in the case file. Id. at 8-9. The State objected to the testimony because it was irrelevant. Id. at 6-7, 9-10. The trial court prohibited Petitioner from using Mr. Sewell's email during cross-examination of Ms. Trejo because the evidence was collateral. Id.
Later, Petitioner subpoenaed Mr. Sewell and the State sought to re-address the issue of whether Mr. Sewell could testify. See Dkt. 12-12 at 508. In moving to exclude Mr. Sewell's testimony, the State argued Mr. Sewell was only providing his opinion as to how the investigation was run and did not point to any specific piece of evidence before the jury. Id. at 509. The State also argued the evidence was cumulative. Id. at 510. Petitioner's counsel argued the evidence showed Mr. Sewell's opinions about the integrity of the investigation and directed “underlings” to not document concerns in the case file. Id. at 512.
After hearing argument, the trial court ruled as follows:
The motion [to exclude Mr. Sewell] is granted.
I have considered, and I think it is appropriate to make a 403 probative. I have looked at 402 again. It has limited probative value. I think there are too many interpretations possible from this Exhibit 402. The defense can still argue based upon the evidence that's been introduced to date.Id. at 519.
Initially, the Court notes that Petitioner's Confrontation Clause claim is premised on state evidentiary rulings made by the trial court. See Dkt. 7. To the extent Petitioner is challenging a state evidentiary ruling, that claim is not cognizable in a federal habeas action See Jammal v. Van de Kamp, 918, 919-20 (9th Cir. 1991) (federal-court habeas petitioner may not challenge evidentiary rulings as being incorrect under state law).
Furthermore, “courts will not find a constitutional violation based on the exclusion of evidence proffered by the defense if the excluded evidence was, among other things, only marginally relevant or repetitive, incompetent, privileged, poses an undue risk of harassment, prejudice, or confusion of the issues, or is otherwise inadmissible.” Hansen v. Long, 2014 WL 3435871, at *10 (C.D. Cal. Jan. 28, 2014) (citing Montana, 518 U.S. at 42; Crane, 476 U.S. at 689-90; Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Here, the record shows the state court of appeals found the evidence in question - an email - did not pertain to any specific evidence and would have constituted impeachment evidence on a collateral matter. See United States v. Higa, 55 F.3d 448, 452 (9th Cir. 1995) (“A collateral contradiction is typically one on a point not related to the matters at issue, but designed to show that the witness' false statement about one thing implies a probability of false statements about the matters at issue.”). Petitioner failed to show how the email was relevant to Ms. Trejo's fingerprint analysis in this case. The email did not contain information regarding Ms. Trejo's opinion of the investigation, nor did it contain information regarding the fingerprint analysis during this investigation. Because the evidence was not directly related to any issue before the jury, the state court of appeals decision that the trial court did not err in determining the evidence was collateral and excluding it when cross-examining Ms. Trejo was not unreasonable. See Jackson, 569 U.S. at 512 (emphasis in original) (“[T]his court has never held that the confrontation clause entitles a criminal defendant to introduce extrinsic evidence for impeachment purposes.”).
Petitioner also fails to identify any clearly established federal law indicating his confrontation rights or right to present a defense was violated by the state court's application of Washington State Evidence Rule 403 when excluding Mr. Sewell's testimony. See Dkt. 7. Rather, it does not appear the Supreme Court has decided this issue. The Ninth Circuit has stated:
We have previously held that a trial court's exercise of discretion to exclude evidence under a rule of evidence that requires balancing probative value against prejudice could not be an unreasonable application of clearly established Supreme Court precedent, because the Court has never addressed the question whether such a rule could violate a defendant's constitutional rights. See Moses, 555 F.3d at 75859. No Supreme Court decision has established such a rule since we reached this conclusion in Moses.Robertson v. Pichon, 849 F.3d 1173, 1189 (9th Cir. 2017); see Hale v. Cate, 530 Fed.Appx. 636 (9th Cir. 2013) (The Ninth Circuit has held that under AEDPA, “even clearly erroneous” evidentiary errors “that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by ‘clearly established Federal law,' as laid out by the Supreme Court.” (quoting Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) and 28 U.S.C. § 2254(d))).
Because the Supreme Court has not squarely addressed whether the right to present a defense may be violated by the state court's application of a state evidentiary rule of this nature, the state court of appeal's rejection of Petitioner's claim cannot be contrary to, or an unreasonably application of, clearly established federal law. See Smith v. Small, 697 Fed. App'x 538, 539 (9th Cir. 2017) (state appellate court ruling affirming trial court's exclusion of proposed defense witnesses was not contrary to clearly established federal law because the Supreme Court has not squarely addressed the constitutionality of the discretionary exclusion of evidence).
Moreover, Petitioner has not shown it was unreasonable for the state court to exclude Mr. Sewell's testimony because his opinion regarding the investigation was unfairly prejudicial or would confuse the jury. The information was a general critique of the investigation. In the email, Mr. Sewell generally noted his opinion was that the State Patrol's investigation was haphazard and, at times, lacking in communication. There is no indication regarding what portions of the investigation he believed were completed in a haphazard way or why he formed such an opinion. He also does not indicate if the lack of communication was from the State Patrol or within the Crime Lab. The statement was open to a variety of possible interpretations. Additionally, the general nature of the statement, without any specific reference to evidence in this case, had the potential to elicit an emotional response from the jurors. The statement, therefore, had limited probative value and Petitioner has not shown the state court's finding that Mr. Sewell's testimony would be unfairly prejudicial was not unreasonable.
Importantly, Petitioner's counsel was able to cross-examine the State's forensic witnesses, who worked in the crime lab, and present his own witnesses regarding the investigation. See e.g. Dkt. 12-11 at 230-62, 265-26, 454-92; Dkt. 12-12 at 20-23; Dkt. 12-13 at 6-23, 30-32, 367-434. Petitioner does not assert he was unable to elicit testimony from these witnesses that was similar to Mr. Sewell's potential testimony regarding the investigation. As such, Petitioner fails to show he was unable to confront the State's witnesses and present evidence regarding the State Patrol's investigation.
For these reasons, Petitioner fails to show the state court of appeals' conclusion that Petitioner's Sixth Amendment rights were not violated when the trial court excluded evidence that Mr. Sewell thought the State Patrol's investigation was haphazard was contrary to, or was an unreasonable application of, clearly established federal law. Accordingly, the Court recommends Ground 3 be denied.
III. Evidentiary Hearing
The decision to hold an evidentiary hearing is committed to the Court's discretion. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “[A] federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Id. at 474. In determining whether relief is available under 28 U.S.C. § 2254(d)(1), the Court's review is limited to the record before the state court. Cullen, 563 U.S. at 181-82. A hearing is not required if the allegations would not entitle Petitioner to relief under §2254(d). Landrigan, 550 U.S. at 474. “It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id. The Court does not find it necessary to hold an evidentiary hearing because, as discussed in this Report and Recommendation, Petitioner's grounds for relief may be resolved on the existing state court record.
IV. Certificate of Appealability
A petitioner seeking post-conviction relief under 28 U.S.C. § 2254 may appeal a district court's dismissal of the federal habeas petition only after obtaining a certificate of appealability from a district or circuit judge. See 28 U.S.C. § 2253(c). “A certificate of appealability may issue . . . only if the [petitioner] has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner satisfies this standard “by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
No jurist of reason could disagree with this Court's evaluation of Petitioner's claims or would conclude the issues presented in the Amended Petition should proceed further. Therefore, the Court concludes Petitioner is not entitled to a certificate of appealability with respect to the Amended Petition.
V. Conclusion
For the above stated reasons, the Court concludes Petitioner has not shown the state courts' adjudication of Grounds 1-3 was contrary to, nor an unreasonable application of, clearly established federal law. The Court also finds Ground 4 is not cognizable under § 2254. The Court finds an evidentiary hearing is not necessary. Therefore, the Court recommends the Amended Petition be denied and a certificate of appealability not be issued.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the Clerk is directed to set the matter for consideration on November 25, 2022, as noted in the caption.
Dated this 9th day of November, 2022.