Opinion
ED CV 22-1986-SB(E)
01-10-2023
ANDREW S. MOLINA, Petitioner, v. KATHLEEN ALLISON, ET AL., Respondents.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Stanley Blumenfeld Jr., United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On November 2, 2022, in the United States District Court for the Southern District of California, Petitioner filed a “Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 By a Person in State Custody.” On November 14, 2022, this Court received a transfer of the Petition.
On December 5, 2022, Respondents filed an Answer to the Petition. On December 15, 2022, Petitioner filed a “Traverse to Respondents [sic] Answer.”
BACKGROUND
A Superior Court jury found Petitioner guilty of first degree murder and of being a felon in possession of a firearm (Reporter's Transcript (“R.T.") 930-33). Petitioner appealed the resulting conviction, but the California Court of Appeal affirmed (Lodgment 6). The California Supreme Court summarily denied review (Lodgment 8).
Subsequently, Petitioner filed habeas corpus petitions in the state courts, raising claims of: (a) allegedly ineffective assistance of trial counsel; (b) allegedly ineffective assistance of appellate counsel; (c) alleged jury misconduct; and (d) allegedly suggestive identification. The Superior Court denied Petitioner's ineffectiveness claims in reasoned decisions (Lodgments 10, 12). The Superior Court denied Petitioner's other claims under the rule of In re Dixon, 41 Cal. 2d 756, 264 P.2d 513 (1953) (“Dixon"). Dixon established a California state law procedural rule generally barring habeas claims not raised on direct appeal. Dixon, 41 Cal. 2d at 759. Petitioner subsequently filed habeas corpus petitions in the California state appellate courts, but all such petitions were denied summarily (Lodgments 13-16).
SUMMARY OF TRIAL EVIDENCE
A. The Prosecution's Case.
In June 2016, the victim lived on Stover Street in Riverside. He used the backyard shack to drink beer and smoke methamphetamine with his friends. His friends included Alex Arzate and defendant. Defendant's cousin,Jacob Gamboa, lived with Jessica Valdivia in a house nearby. Gamboa and the victim did not get along; however, they were “keeping the peace” for defendant's sake. The victim and Arzate were associated with the La Sierra Brown Knights gang; defendant was a member of the Hillside gang; and Gamboa was a former member of the 5150 gang, a rival of the La Sierra Brown Knights.
Defendant represented that he and Gamboa were cousins; however, they are not actually related.
During the afternoon of June 25, 2016, Arzate encountered Valdivia, a former schoolmate, while waiting for the victim to purchase beer and return to the car. Arzate did not know Valdivia was dating Gamboa. When he talked to her, she “wasn't really talking.” The victim returned, saw Valdivia, and told Arzate, “Forget this girl, fool. Let's go.” Arzate threw his “hands up” and said, “La Sierra up in this motherfucker.” Although Arzate meant the comment to be a joke, Valdivia interpreted it as an act of disrespect.
Later in the day, Gamboa went to the victim's home and yelled, “You guys banging on my lady?” and “That's disrespect. If you want to bang, bang on me.” Arzate aid, “[I]t wasn't like that,” apologized, and offered to fight Gamboa one-on-one and apologize to Valdivia. The victim supported Arzate, saying, “My homie didn't bang on your lady like that.” In response, Gamboa pulled out a handgun and began “talking shit.” While the victim yelled back, Arzate pushed him toward the backyard. Gamboa left, but returned, driving by the victim's house “real slow.” The victim returned to the front yard holding a shotgun.
The victim, Arzate, and others continued to party at the victim's home into the evening. In the early morning hours of June 26, 2016, defendant arrived and spoke with the victim and Arzate. Defendant said he was there to help resolve their conflict with Gamboa and not to take sides. Arzate conveyed what happened, explaining he meant no disrespect to Valdivia, and he proposed a one-on-one fight with Gamboa, followed by an apology to Valdivia. Defendant left.
When defendant was leaving, Arzate saw him walking away with another person, who Arzate assumed was Gamboa. A short while later, while Arzate was inside the house, he saw defendant and Gamboa approach. Gamboa was holding a handgun, and defendant was carrying a shotgun. Arzate testified he saw both of their faces clearly and recognized both people. He also recognized defendant based on his clothing. Arzate ran outside and warned the victim, who was standing by the side gate holding a shotgun. Arzate told the victim, “Fucking Sonic and Maniac are in the front yard, fool.” At the victim's request, Arzate ran toward the backyard to get help and, on his way, he heard gunshots.
B. The Defense Case.
Defendant's younger brother and a family friend both testified that on June 25, 2016, defendant was home attending a “going-away party” the entire night, except from 10:00 p.m. to midnight. The party ended around 2:00 a.m., and defendant's car was parked in front of the house at the time.
Defendant testified that he was very good friends with both the victim and Gamboa. During the afternoon of June 25, 2016, the victim told defendant that Gamboa had disrespected the victim at his home. Defendant called Gamboa who was also agitated. That evening, defendant left the “going-away party” at his home to talk to Gamboa, who was at a mutual friend's house. When Gamboa and Valdivia left the friend's house, defendant followed in his car. At Valdivia's house, defendant saw Gamboa's cousin, Victor Gastelum, in the driveway. Defendant did not particularly like Gastelum, so he did not go inside Valdivia's house. As he was leaving, defendant had a “bad feeling” and decided to stop at the victim's house and talk to the victim.
Defendant parked his car away from the victim's house because he did not want his car, which appeared stolen, to draw attention to the house given the illegal activities happening in the backyard. As he approached the house, defendant saw a group of people across the street. He went to the backyard and talked to the victim and Arzate. The victim was still upset and showed defendant a shotgun. Defendant attempted to diffuse the situation; however, the victim remained angry and was convinced the conflict could not be resolved. Defendant left, thinking he was walking alone, but he was not paying close attention, and the unfamiliar group of people was still across the street. He returned home around midnight and went to bed.
On June 26, 2016, defendant woke up around 9:00 a.m., went to a friend's house, and drank heavily. As he attempted to drive home, he passed out and was arrested for driving under the influence (DUI) and booked into county jail. Upon his release, defendant went home and slept until June 27. When he woke up, he immediately left for Mexico because he had multiple DUI convictions and did not want to go back to prison. He was ignorant of the victim's death until a friend informed him that he and Gamboa had been charged with murder. Defendant did not return to the United States because he was worried that his hasty relocation “made [him] look really bad.” Since he knew he was innocent, he assumed the police would eventually find and charge the actual killer and then drop the charges against him. In October 2016, defendant was extradited to the United States and taken into custody.
PETITIONER'S CLAIMS
Petitioner alleges:
1. His trial counsel was ineffective in various respects;
2. His appellate counsel was ineffective in various respects;
3. The jury assertedly committed misconduct; and
4. A pretrial identification procedure assertedly was impermissibly suggestive.
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
“Clearly established Federal law” refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is “contrary to” clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it “confronts a set of facts . . . materially indistinguishable” from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the “unreasonable application” prong of section 2254(d)(1), a federal court may grant habeas relief “based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision “involves an unreasonable application” of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
“In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). “The state court's application must have been ‘objectively unreasonable.'” Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). “Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 101 (2011). This is “the only question that matters under § 2254(d)(1).” Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents.” Id. “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
In applying these standards, the Court looks to the last reasoned state court decision. See Brown v. Davenport, 142 S.Ct. 1510, 1528 (2022) (under AEDPA, federal habeas court must “assess the reasonableness of the last state-court adjudication on the merits of the petitioner's claim”) (citation and quotations omitted); Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision). Where no reasoned decision exists, as where the state court summarily denies a claim, “[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).
Furthermore, on federal habeas review, a federal court will not disturb a conviction for a non-structural error unless the error had a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (citation and internal quotations omitted). Under this standard, “[t]here must be more than a ‘reasonable possibility' that the error was harmful.” Crespin v. Ryan, 46 F.4th 803, 811 (9th Cir. 2022) (citations omitted).
Additionally, federal habeas corpus relief may be granted “only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
For the reasons discussed below, the Petition should be denied and dismissed with prejudice.
The Court has read, considered and rejected all of Petitioner's arguments. The Court discusses Petitioner's principal arguments herein. Within this discussion, the Court has reordered Petitioner's claims to promote clarity and to avoid repetition.
I. Petitioner is Not Entitled to Federal Habeas Relief on his Claims of Ineffective Assistance of Trial Counsel.
Petitioner claims his trial counsel was ineffective for, inter alia, failing to: file a “Pitchess” motion; move for a live lineup; move to suppress Alex Arzate's identification of Petitioner; introduce evidence of the alleged “third party culpability” of Victor Gastelum; call potential defense witness Maggie Sanchez at trial; impeach Arzate “properly”; and raise an issue of alleged jury misconduct. Whether considered individually or in combination, Petitioner's claims of the ineffective assistance of trial counsel fail as a matter of law.
Pitchess v. Superior Court, 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 (1974).
A. Governing Legal Standards
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 697 (1984) (“Strickland”). A reasonable probability of a different result “is a probability sufficient to undermine confidence in the outcome.” Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy either prong of the Strickland test obviates the need to consider the other.”) (citation omitted).
Review of counsel's performance is “highly deferential” and there is a “strong presumption” that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct “on the facts of the particular case, viewed as of the time of counsel's conduct.” Strickland, 466 U.S. at 690. The court may “neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . .” Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”) (citations omitted). “Defense lawyers have limited time and resources, and so must choose from among countless strategic options.” Dunn v. Reeves, 141 S.Ct. 2405, 2410 (2021) (citation and quotations omitted). “Such decisions are particularly difficult because certain tactics carry the risk of harming the defense by undermining credibility with the jury or distracting from more important issues.” Id. (citation, quotations and brackets omitted).
Petitioner bears the burden to show that “counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. at 104 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy”) (citation and quotations omitted); see also Morris v. Cal., 966 F.2d 448, 456-57 (9th Cir.), cert. denied, 506 U.S. 831 (1992) (if the reviewing court can conceive of a reasonable explanation for counsel's challenged action or inaction, the court need not determine the actual explanation before denying relief).
“In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently.” Harrington v. Richter, 562 U.S. at 111 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is “‘reasonably likely'” that the result would have been different. Id. (quoting Strickland, 466 U.S. at 696). “The likelihood of a different result must be substantial, not just conceivable.” Id. at 112.
“When the claim at issue is one for ineffective assistance of counsel, moreover, AEDPA review is ‘doubly deferential,' [citation], because counsel is ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'” Woods v. Etherton, 578 U.S. 113, 117 (2016) (citations and internal quotations omitted). “In such circumstances, federal courts are to afford ‘both the state court and the defense attorney the benefit of the doubt.'” Id. (citation omitted). “[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Sexton v. Beaudreaux, 138 S.Ct. 2555, 2560 (2018) (citation and internal quotations omitted).
B. Analysis
1. Pitchess
Under Pitchess, criminal defendants have the right to discover information contained in an officer's personnel files under certain circumstances. Pitchess, 11 Cal.3d at 537-38. In 1978, the California Legislature codified the Pitchess discovery principles in California Penal Code sections 832.7-832.8 and California Evidence Code sections 1043-1047. See Ass'n for Los Angeles Deputy Sheriffs v. Super. Ct., 8 Cal. 5th 28, 41, 251 Cal.Rptr.3d 320, 447 P.3d 234 (2019); City of Santa Cruz v. Super. Ct., 49 Cal.3d 74, 81-82, 260 Cal.Rptr. 520, 776 P.2d 222 (1989). Under these provisions, to warrant discovery of the officers' personnel files, counsel must submit a declaration showing “good cause” for the discovery, setting forth, inter alia, the materiality of the requested documents to the subject matter involved in the pending criminal proceedings. See Cal. Evid. Code § 1043(b)(3); see generally City of Santa Cruz v. Super. Ct., 49 Cal.3d at 82-83. To show “good cause,” counsel's declaration in support of a Pitchess motion must “propose a defense or defenses to the pending charges” and “articulate how the discovery sought [might] lead to relevant evidence or may itself be admissible direct or impeachment evidence.” Warrick v. Super. Ct., 35 Cal.4th 1011, 1024, 29 Cal.Rptr.3d 2, 112 P.3d 2 (2005) (citations omitted). Counsel's declaration also must articulate “a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.” Id. at 1025-26 (citations omitted).
Petitioner does not allege any facts which could have supported such a declaration. Petitioner does not allege what defense or defenses the information sought could have supported, how the discovery sought could have led to admissible evidence, or any plausible “specific factual scenario” of officer misconduct. Petitioner's speculation that information helpful to the defense purportedly existed in Detective Wheeler's file is insufficient to show counsel's unreasonableness for failing to file a Pitchess motion and is likewise insufficient to show any resulting prejudice. See Styers v. Schriro, 547 F.3d 1026, 1029 n.5 (9th Cir. 2008), cert. denied, 558 U.S. 932 (2009) (“Generally, a defendant claiming ineffective assistance of counsel for failure to file a particular motion must not only demonstrate a likelihood of prevailing on the motion, but also a reasonable probability that the granting of the motion would have resulted in a more favorable outcome in the entire case.”); Osumi v. Giurbino, 445 F.Supp.2d 1152, 1163 (C.D. Cal. 2006), aff'd, 312 Fed.Appx. 23 (9th Cir. 2008), cert. denied, 556 U.S. 1109 (2009) (“petitioner's mere speculation regarding evidence possibly contained in the arresting officers' personnel files is manifestly insufficient to demonstrate petitioner was in any manner prejudiced by trial counsel not filing a Pitchess motion”).
2. Lineup
Petitioner had no absolute constitutional right to a lineup. See United States v. Robertson, 606 F.2d 853, 857 (9th Cir. 1979) (decision to order lineup “is solely within the discretion of the trial judge”). In Evans v. Super. Ct., 11 Cal.3d 617, 625, 114 Cal.Rptr. 121, 522 P.2d 681 (1974), the California Supreme Court held that “due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate.” However, the decision to allow a lineup rests “within the broad discretion of the magistrate or trial judge.” Id.
In the present case, Petitioner claims his trial counsel was ineffective for failing to request a lineup. Any such failure was neither unreasonable nor prejudicial. The Superior Court expressly stated that, by the time Petitioner's counsel was appointed to represent Petitioner, a request for a lineup would have been untimely (Lodgment 17 at 45). Moreover, even if a timely motion for a lineup could have been made and would have been granted, Petitioner's speculation that he would not have been identified during such a lineup would fail to establish Strickland prejudice. See Cooks v. Spaulding, 660 F.2d 738, 740 (9th Cir. 1981), cert. denied, 455 U.S. 1026 (1982) (mere speculation insufficient to establish Strickland prejudice); accord Bible v. Ryan, 571 F.3d 860, 871 (9th Cir. 2009), cert. denied, 559 U.S. 995 (2010).
3. Arzate's Identification of Petitioner
A suggestive identification procedure can violate due process if the procedure is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968). “[T]he bare fact that a confrontation was suggestive does not alone establish constitutional error.” Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.), cert. denied, 516 U.S. 1017 (1995). “The fact that only one suspect is presented for identification does not make the identification procedure invalid.” United States v. Jones, 84 F.3d 1206, 1210 (9th Cir.), cert. denied, 519 U.S. 973 (1996) (citation omitted).
Petitioner argues that counsel should have challenged the admissibility of Arzate's in-court identification of Petitioner based on an allegedly suggestive identification procedure used during a police interview of Arzate. Counsel's failure to challenge the admissibility of Arzate's identification on this basis was neither unreasonable nor prejudicial. Arzate was an acquaintance and former co-worker of Petitioner (R.T. 388, 393). During interviews with police, Arzate repeatedly referred to a person with the gang nickname “Sonic” as having been present at the scene of the crime (R.T. 574; C.T. 16, 71-77). At one point during the interview, Detective Wheeler showed Arzate a photograph of Petitioner, attempting to confirm that the person Arzate was referencing as “Sonic” was indeed Petitioner (C.T. 79). Detective Wheeler later explained that he showed Arzate a single picture rather than a six-pack of pictures “[b]ecause I knew that [Arzate] already knew [Petitioner] and it wasn't a question of if [Arzate] knew Sonic” (C.T. 79). Under these circumstances, Petitioner's counsel reasonably could have concluded that the display of the single photograph to someone who knew Petitioner and who already had been referencing Petitioner by Petitioner's gang moniker was not impermissibly suggestive. See, e.g., Moore v. Howell, 2021 WL 4854229, at *8 (D. Nev. Oct. 18, 2021) (“Because Reese identified Moore as the shooter prior to his identification of Moore from the single photograph such that the photo was used only to confirm Reese's identification of Moore, it is not readily apparent that the identification procedure was suggested in the first instance”). Certainly, Wheeler's display of the photograph was not “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”
4. Gastelum
Petitioner's argument that his counsel was remiss in failing to attempt to introduce evidence of the alleged “third party culpability” of Gastelum is frivolous. Petitioner's counsel did attempt to introduce such evidence, but the trial court excluded all such evidence (see, e.g., R.T. 590-94, 650-59).
5. Maggie Sanchez
Petitioner faults his counsel for not calling Maggie Sanchez at trial. Prior to trial, Sanchez gave a statement arguably inconsistent with certain aspects of Arzate's testimony.
Petitioner has failed to demonstrate counsel's alleged unreasonableness in failing to call Sanchez or any resulting prejudice. There is no evidence Sanchez was available at the time of trial. Petitioner's counsel, as well as the prosecution, had attempted to locate Sanchez for trial, but Sanchez, a homeless person, could not then be located (R.T. 440-41). Moreover, Petitioner has failed to demonstrate the requisite prejudice from the absence of Sanchez's potential testimony. See, e.g., Her v. Jacquez, 2011 WL 1466868, at *25 (E.D. Cal. Apr. 18, 2011) (“to establish prejudice caused by the failure to call a witness, Petitioner must show that the witness was likely to have been available to testify, that the witness would have given the proffered testimony and that the witness would have created a reasonable probability that the jury would have reached a verdict more favorable to Petitioner”); see also Dows v. Wood, 211 F.3d 480, 486 (9th Cir.), cert. denied, 531 U.S. 908 (2000) (“Dows provides no evidence that this witness would have provided helpful testimony for the defense - i.e., Dows has not presented an affidavit from this alleged witness”).
Plaintiff also argues that counsel should have sought to introduce into evidence Sanchez' police interview statement. However, the statement in question is plainly hearsay for which there is no available exception. Contrary to Petitioner's argument, section 1230 of the California Evidence Code (governing declarations against interest) would not have permitted the introduction at trial of Sanchez' prior statement. There was and is no evidence that Sanchez' statement was against her interest, within the meaning of section 1230.
6. Impeachment of Arzate
Petitioner argues that his counsel did not impeach Arzate's trial testimony “properly.” No material error occurred. “Impeachment tactics generally are a matter of trial strategy.” Fontana v. Ramirez-Palmer, 1999 WL 111896, at *8 (N.D. Cal. 1999), aff'd, 229 F.3d 1157 (9th Cir. 2000); accord Gallo v. Kernan, 933 F, Supp. 878, 881 (N.D. Cal. 1996), aff'd 141 F.3d 1175 (9th Cir.), cert. denied, 525 U.S. 856 (1998); see also Dows v. Wood, 211 F.3d at 487 (“counsel's tactical decisions at trial, such as refraining from cross examining a particular witness or from asking a particular line of questions, are given great deference and must similarly meet only objectively reasonable standards”). Petitioner's counsel reasonably (and extensively) impeached Arzate with, among other things, Arzate's immunity agreement, prior convictions, gang membership, bias, inconsistent statements, memory problems and alleged inability to perceive accurately because of sleeplessness, darkness, distance and the influence of methamphetamine (R.T. 453-510, 516-47). Petitioner's conclusory speculation that additional avenues of impeachment should have been pursued, and would have made a difference in the outcome of the case, does not warrant habeas relief. See Powell v. Cal., 408 Fed. App'x 96, 98 (9th Cir.), cert. denied, 564 U.S. 1043 (2011) (conclusory allegations insufficient to show Strickland violation); Bible v. Ryan, 571 F.3d at 871 (speculation insufficient to show Strickland prejudice); Cooks v. Spaulding, 660 F.2d at 740 (speculation insufficient to show Strickland violation).
7. Alleged Jury Misconduct
Jury exposure to facts not in evidence can violate a criminal defendant's Sixth Amendment rights. See Turner v. La., 379 U.S. 466, 472-73 (1965); Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006), cert. denied, 552 U.S. 833 (2007). Upon receiving a suggestion that a jury may have considered facts not in evidence, a court has considerable discretion regarding how to proceed. An evidentiary hearing is not required where the court can determine from the record before it that the allegations of misconduct are without credibility. See United States v. Harber, 53 F.3d 236, 242 n.4 (9th Cir. 1995); White v. Smith, 984 F.2d 163, 166 (6th Cir.), cert. denied, 508 U.S. 920 (1993). The Court is entitled to handle the situation in the least disruptive way possible. See United States v. Olano, 62 F.3d 1180, 1192 (9th Cir. 1995), cert. denied, 519 U.S. 931 (1996) (trial court vested with considerable discretion in determining whether to hold a hearing on allegations of jury bias and in defining nature and extent of hearing); United States v. Angulo, 4 F.3d 843, 847 (9th Cir. 1993) (evidentiary hearing not mandated; in deciding whether to hold hearing, court must consider content and seriousness of allegations and credibility of source).
Plaintiff faults trial counsel for failing to argue for a more searching inquiry into the possibility that the jury considered a particular video not introduced into evidence. Under the circumstances presented, counsel's failure was neither unreasonable nor prejudicial.
After the verdict, Petitioner's mother reported having overheard a conversation among the prosecutor, Petitioner's counsel and the jurors at which a video or videos were mentioned. One of the videos mentioned had not been introduced into evidence at trial. The prosecutor subsequently represented to the court that the prosecutor had mentioned such a video and, in response, the jury had reacted in a way as to suggest that they had never seen nor heard of the nonadmitted video (Lodgment 2 at 16). Petitioner's counsel similarly represented to the court that it also had been clear to counsel that the jury never saw the video. Even in his Traverse, Petitioner concedes a lack of knowledge regarding whether the non-admitted video was or was not given to the jury (Traverse at 2). Under these circumstances, any failure by Petitioner's counsel to pursue the suggested theory of jury misconduct (which would have run counter to counsel's own post-trial conversations with and observations of the jury) was neither unreasonable nor prejudicial.
Accordingly, Petitioner has failed to demonstrate ineffective assistance of trial counsel. Thus, the California state courts' rejection of Petitioners ineffectiveness claims was neither contrary to, nor an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-103 (2011).
II. Petitioner is Not Entitled to Federal Habeas Relief on his Claims of Ineffective Assistance of Appellate Counsel.
Petitioner claims that his appellate counsel was ineffective for failing to raise on direct appeal: the alleged jury misconduct; the allegedly suggestive identification; and trial counsel's alleged ineffectiveness, including ineffectiveness for failing to call Maggie Sanchez as a trial witness. Whether considered individually or in combination, these claims fail as a matter of law.
A. Legal Standards
The Strickland standards govern claims of ineffective assistance of appellate counsel as well as claims of ineffective assistance of trial counsel. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001), cert. denied, 535 U.S. 995 (2002). Appellate counsel has no constitutional obligation to raise all non-frivolous issues on appeal. See Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997); see also Moormann v. Ryan, 628 F.3d 1102, 1109 (9th Cir. 2010), cert. denied, 565 U.S. 921 (2011) (appellate counsel is not required to raise a meritless issue on appeal). “A hallmark of effective appellate counsel is the ability to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court.” See Pollard v. White, 119 F.3d at 1435.
B. Analysis
For the reasons discussed above, Petitioner's appellate counsel reasonably could have determined that it would be fruitless to argue on appeal the alleged jury misconduct, the allegedly suggestive identification or the alleged ineffectiveness of trial counsel (including the failure to call Maggie Sanchez at trial). Appellate counsel cannot be deemed ineffective for failing to make a futile argument. See Gonzalez v. Knowles, 515 F.3d 1006, 1017 (9th Cir. 2018); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997); see also Moormann v. Ryan, 628 F.3d at 1109 (where petitioner failed to show trial counsel's alleged ineffectiveness prejudiced petitioner, appellate counsel's failure to argue trial counsel's alleged ineffectiveness “was neither deficient representation nor prejudicial”); Featherstone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991) (where trial counsel's performance was reasonable or non-prejudicial under the Strickland standard, “petitioner was not prejudiced by appellate counsel's decision not to raise issues that had no merit”) (footnote omitted).
Thus, the state courts' rejection of Petitioner's claims of ineffective assistance of appellate counsel was not contrary to, or an objectively unreasonable application of, any clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03.
III. The Doctrine of Procedural Default Bars Petitioner's Claims of Alleged Jury Misconduct and Allegedly Suggestive Identification.
As previously mentioned, the state courts denied on collateral review Petitioner's claims of alleged jury misconduct and allegedly suggestive identification because those claims had not been raised during Petitioner's direct appeal. As discussed below, the doctrine of procedural default precludes this Court's separate consideration of the merits of those claims.
A federal court may be barred from reviewing the merits of a habeas petitioner's claim when the petitioner has violated a state law procedural rule. See Coleman v. Thompson, 501 U.S. 722, 729 (1991); see also Johnson v. Lee, 578 U.S. 605, 606 (2016) (per curiam); Walker v. Martin, 562 U.S. 307, 315 (2011). “[A]bsent showings of ‘cause' and ‘prejudice,' [or a miscarriage of justice] federal habeas relief will be unavailable when (1) ‘a state court [has] declined to address a prisoner's federal claims because the prisoner failed to meet a state procedural requirement,' and (2) ‘the state judgment rests on independent and adequate state procedural grounds.'” Walker v. Martin, 562 U.S. at 315 (citation omitted); see Coleman v. Thompson, 501 U.S. at 729-30, 748.
In the present case, the state courts relied on Dixon declining to address the subject claims (Lodgments 10, 12, 16). See Wilson v. Sellers, 138 S.Ct. 1188 (2018) (federal habeas court generally “looks through” an unreasoned higher court denial to a reasoned lower court decision for the basis of the decision); accord Flemming v. Matteson, 26 F.4th 1136, 1139-40 (9th Cir. 2022). Dixon is an independent and adequate state procedural ground. Johnson v. Lee, 578 U.S. at 606-12 (2016).
Therefore, this Court cannot consider these procedurally defaulted claims unless: (1) Petitioner demonstrates cause for the default and actual prejudice as a result of the alleged violations of federal law; or (2) Petitioner demonstrates that failure to consider his claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 485, 494-95 (1986) (petitioner has the burden of proving both cause and prejudice); Cook v. Schriro, 538 F.3d 1000, 1025-26 (9th Cir. 2008), cert. denied, 555 U.S. 1141 (2009); Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (en banc), cert. denied, 555 U.S. 830 (2008), abrogated in part on other grounds, Martinez v. Ryan, 566 U.S. 1 (2012).
“Cause” requires some objective factor external to Petitioner, i.e., something that cannot fairly be attributed to Petitioner, which precluded Petitioner from properly raising the claims in state court. See McCleskey v. Zant, 499 U.S. 467, 493-94 (1991); see also Coleman v. Thompson, 501 U.S. at 753; Maples v. Thomas, 565 U.S. 266, 280-81 (2012). Petitioner has failed to demonstrate any such “cause.” No objective factor external to Petitioner precluded Petitioner from raising the subject claims on direct appeal. Petitioner argues that ineffective assistance of counsel “caused” this failure, but, as discussed above, Petitioner has failed to demonstrate appellate counsel's ineffectiveness.
Finally, the “miscarriage of justice exception” to the doctrine of procedural default applies only if the petitioner can show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (“Schlup”); see also McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Murray v. Carrier, 477 U.S. at 496; Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008), cert. denied, 556 U.S. 1211 (2009) (“the miscarriage of justice exception is limited to those extraordinary cases where the petitioner asserts his innocence and establishes that the court cannot have confidence in the contrary finding of guilt”). To make a credible claim of actual innocence, a petitioner must “support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324. Petitioner has failed to submit any new reliable evidence not presented at trial that supposedly shows his actual innocence. See id. at 324.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment shall be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and on counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
STANLEY BLUMENFELD, JR. UNITED STATES DISTRICT JUDGE.
JUDGMENT
Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge, IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.