(HC)Valencia v. Robertson ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAUL A. VALENCIA, Case No. 1:19-cv-00398-NONE-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR A WRIT OF HABEAS 13 v. CORPUS AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 14 JIM ROBERTSON, OBJECTIONS DUE WITHIN 30 DAYS 15 Respondent. ECF No. 1 16 17 Petitioner Raul A. Valencia, a state prisoner without counsel, petitions for a writ of habeas 18 corpus under 28 U.S.C. § 2254. ECF No. 1. Petitioner claims that: (1) his trial and appellate 19 counsel were ineffective; (2) the prosecutor engaged in misconduct; and (3) the California Court 20 of Appeal erred when it denied him habeas relief. See generally ECF No. 1. For the reasons set 21 forth below, we recommend that the court deny the petition and decline to issue a certificate of 22 appealability. 23 I. Background 24 In 2013, a Stanislaus County jury convicted petitioner of three counts of robbery. ECF 25 No. 20 at 8. The jury also found that petitioner personally used a firearm in two of the robberies 26 and that his co-defendant was armed during the other robbery. Id. Petitioner was sentenced to 27 thirty-two years and eight months in state prison. Id. We set forth below the pertinent facts, as 28 1 summarized by the California Court of Appeal.1 A presumption of correctness applies to these 2 facts. See 28 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 3 2015). 4 On January 14, 2013, four robberies were reported over a roughly 5 three-hour period of time in Stanislaus County. The first robbery was reported around 5:17 p.m. and occurred at a Millennium Food 6 and Liquor. The victim of that robbery and a separate witness told the police that two suspects approached the store. One stood at the 7 door while the other approached the victim, pointed a gun at him, and took both money and alcohol. A third witness, who was not 8 contacted by the police, allegedly told the victim that the suspects fled in a black Volvo. Surveillance cameras at the store captured 9 images of the suspects and of a black car leaving the scene under circumstances suggesting the car was used by the suspects in the 10 robbery. A picture was taken of the surveillance video, showing the black car, and was emailed to other officers. 11 The second robbery was reported at approximately 5:31 p.m. and 12 occurred at a Golden West Market. This robbery again involved two male suspects, one of which was armed with a gun. Money 13 was taken from the register. 14 The third robbery was reported at approximately 8:00 p.m. and occurred at a Country Market. Once again a gun was used. 15 The fourth robbery was reported at approximately 8:33 p.m. and 16 occurred at a Viva Market. The robbery was done by two suspects, one of which had a gun. The suspects fled in a used, but newer, 17 black car, which was believed to be a Volvo. 18 At approximately 9:04 p.m., Modesto Police Officer William Jones and his partner, Officer Watson, were patrolling an area very near 19 to three of the reported robberies. Officers Jones and Watson had received a notice to be on the lookout for a black Volvo and had 20 received and viewed the image of the vehicle emailed after the first robbery. As Officer Jones was driving, he saw a black Volvo 21 approach from the opposite direction. This was the first black Volvo Officer Jones had seen while on patrol and it closely 22 matched both the description and the picture of the car believed to be involved in the reported robberies. Although the windows were 23 tinted, Officer Jones believed he saw three individuals in the car. Based on these facts, Officer Jones initiated a traffic stop on the 24 vehicle. 25 1 These facts are taken from the Court of Appeal’s opinion on petitioner’s direct appeal of his conviction, in which petitioner claimed that the trial court erred when it denied his motion to 26 exclude evidence. ECF No. 21-6. His direct appeal was rejected on the merits in a reasoned 27 decision and he did not seek California Supreme Court review. ECF No. 21-8. Petitioner then sought habeas relief in the state courts, exhausting the claims presented here. ECF No. 20 at 8-9. 28 1 2 People v. Valencia, No. F0716202017, Cal. App. Unpub. LEXIS 884 (Feb. 7, 2017); ECF No. 3 21-8. 4 Officers Jones and Watson found Patricio Sandoval, Antonia Valencia, and petitioner 5 inside the car that they pulled over. ECF No. 21-5 at 58. The officers searched the suspects and 6 the vehicle, finding cash on all suspects, including $675 on petitioner, as well as a handgun, gray 7 jacket, and, in the trunk, a bottle of Crown Royal. Id. at 59-64. The suspects were handcuffed 8 and placed in a police patrol vehicle. Id. at 12-13. They were then individually removed from the 9 vehicle, while handcuffed, and shown to the victims. Id. 10 All four of the witnesses were given a Simmons admonishment and asked to identify any 11 persons involved in the robbery. 2 Id. at 10, 20, 40, 88. Nagi Saad, the first witness, did not 12 identify any of the suspects as involved in the robbery. Id. at 97. Bupinder Singh, the second 13 witness, identified Sandoval and petitioner as two of the robbers and stated that he was “100%” 14 certain about his identifications. Id. at 92. Singh stated that he did not recognize Antonio 15 Valencia. Id. At trial, Singh was unable to identify petitioner as one of the robbers. Id. at 123. 16 The third witness, Fares Alwarafi, in addition to being shown the suspects, was shown the 17 gray jacket and handgun found in the back of the suspects’ car. ECF No. 21-5 at 21-22. Alwarafi 18 identified the jacket as the one worn by the gunman and the gun as that used in the robbery. Id. at 19 22-23. Alwarafi was unsure whether the suspects he was shown were involved in the robbery. 20 Id. at 23. At trial, Alwarafi testified that the gunman was wearing a gray jacket, but he did not 21 identify petitioner as an individual involved in the robbery. Id. at 177. 22 A police officer interviewed witness Ana Verduzco at the scene of the robbery. ECF No. 23 21-5 at 10-11. The officer showed Verduzco photographs of the suspects, possibly describing 24 2 In California, it is common to give a Simmons admonishment to a witness before he or she is asked to identify a criminal suspect. See Simmons v. United States, 390 U.S. 377 (1968). The 25 admonishment states: “You will be asked to look at a subject. The fact that the subject is shown to you should not influence your judgment. You should not conclude or guess that the subject is 26 the person who committed the crime. You’re not obligated to identify anyone. It is just as 27 important to free innocent persons from suspicions as to identify guilty parties. Please do not discuss the case with other witnesses, nor indicate in any way that you have identified someone.” 28 ECF No. 21-5 at 89. 1 them as individuals who “had just committed a robbery in the Modesto area.” Id. There is no 2 evidence in the record that Verduzco made a positive identification of any of the suspects during 3 this photographic lineup. Verduzco was then brought to the scene of the traffic stop. Id. at 12. 4 The police officer gave her a Simmons admonishment and asked her to identify any persons 5 involved in the robbery. Id. at 10. Verduzco stated that she believed petitioner was one of the 6 robbers, but she was uncertain. Id. at 14. However, she stated that petitioner’s build and clothing 7 matched that of one of the robbers. At trial, Verduzco was unable to identify petitioner as one of 8 the robbers. Id. at 129. 9 II. Discussion 10 A federal court can grant habeas relief when a petitioner shows that his custody violates 11 federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 12 (2000).3 Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty 13 Act of 1996 (“AEDPA”), governs a state prisoner’s habeas petition. See Harrington v. Richter, 14 562 U.S. 86, 97 (2011). To decide a § 2254 petition, a federal court examines the decision of the 15 last state court to have issued a reasoned opinion on petitioner’s habeas claims. See Wilson v. 16 Sellers, 138 S. Ct. 1188, 1192 (2018). In general, § 2254 requires deference to the state court 17 system that produced the relevant conviction and sentence. 18 Under AEDPA, a petitioner can obtain relief on federal habeas claims that have been 19 “adjudicated on the merits in state court proceedings” only if the state court’s adjudication 20 resulted in a decision (1) “contrary to, or involved an unreasonable application of, clearly 21 established Federal law, as determined by the Supreme Court of the United States,” or (2) “based 22 on an unreasonable determination of the facts in light of the evidence presented in the State court 23 proceeding.” 28 U.S.C. § 2254(d). The petitioner’s burden is great. See Harrington v. Richter, 24 562 U.S. 86, 103 (2011) (“[To gain relief under § 2254(d)(1), a petitioner] must show that the 25 state court’s ruling . . . was so lacking in justification that there was an error well understood and 26 3 This court has jurisdiction over the petition pursuant to 28 U.S.C. § 2241(a): “Writs of habeas 27 corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” 28 1 comprehended in existing law beyond any possibility for fairminded disagreement.”); see Davis 2 v. Ayala, 576 U.S. 257, 271 (2015) (quoting § 2254(e)(1)) (“[Under § 2254(d)(2), s]tate-court 3 factual findings . . . are presumed correct; the petitioner has the burden of rebutting the 4 presumption by ‘clear and convincing evidence.’”). 5 If obtaining habeas relief under § 2254 is difficult, “that is because it was meant to be.” 6 Richter, 562 U.S. at 102. As the Supreme Court has put it, federal habeas review “disturbs the 7 State’s significant interest in repose for concluded litigation, denies society the right to punish 8 some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises 9 of federal judicial authority.” Id. at 103 (citation omitted). Our habeas review authority serves as 10 a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for 11 ordinary error correction through appeal.” Id. at 102-103. 12 Most of petitioner’s current claims—specifically, his claims of ineffective assistance of 13 trial and appellate counsel and prosecutorial misconduct— were presented to the Stanislaus 14 County Superior Court in a habeas petition. ECF No. 21-9. That court rejected the claims on the 15 merits in a reasoned decision. ECF No. 21-10. The California Court of Appeal denied the 16 petition “without prejudice to petitioner demonstrating exhausting [sic] his legal remedies by first 17 petitioning the superior court where he was convicted,”4 ECF No. 21-12, and the California 18 Supreme Court summarily denied review, ECF No. 21-14. Because the superior court issued the 19 last reasoned decision on the claims, we review the decision of that court, applying the deferential 20 standard of § 2254. See Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003) (explaining that 21 “[b]ecause, here, neither the court of appeal nor the California Supreme Court issued a reasoned 22 opinion on the merits of this claim, we look to the trial court’s decision” on federal habeas 23 review). 24 The lone additional claim, that the California Court of Appeal erred when it denied 25 petitioner habeas relief, was summarily rejected by the California Supreme Court. ECF No. 21- 26 27 4 It appears that petitioner raised the same claims in his superior court and Court of Appeal habeas petitions. ECF Nos. 21-9, 21-11. The Court of Appeal did not identify which claims were 28 unexhausted. 1 14. Because the California Supreme Court summarily rejected this claim, we must conduct an 2 independent review of the record to determine whether the state court’s final resolution of the 3 case constituted an unreasonable application of clearly established federal law; nonetheless, we 4 give deference under AEDPA to that decision. See Greene v. Lambert, 288 F.3d 1081, 1088-89 5 (9th Cir. 2002); Himes v. Thompson, 336 F.3d 848, 853 & n.3 (9th Cir. 2003) (“Independent 6 review of the record is not de novo review of the constitutional issue, but rather, the only method 7 by which we can determine whether a silent state court decision is objectively unreasonable.”). 8 A. Ineffective Assistance of Counsel 9 Petitioner argues that his trial counsel was ineffective because he: (1) failed to call a 10 witness who had described the gunman as a “white male with medium length hair,” ECF No. 1 at 11 19; (2) failed to elicit testimony from Singh that he had previously been unable to identify 12 petitioner, id.; (3) unnecessarily asked witnesses whether petitioner had an accent, id.; (4) failed 13 to highlight discrepancies between the witnesses’ testimony during the investigation and at trial, 14 id. at 20-21, 54, 58, 67, 73, 85; (5) had a conflict of interest, id. at 21-22, 95-97; and 15 (6) improperly conceded probable cause at the preliminary hearing and at a hearing to set aside a 16 charge,5 id. at 22, 98—and, additionally, (7) that his appellate counsel was ineffective for failing 17 to raise ineffective assistance of trial counsel on appeal, id. at 107. 18 The two-step inquiry from Strickland v. Washington, 466 U.S. 668, 687 (1984), guides 19 our review. Under Strickland, a criminal defendant first must show some deficiency in 20 performance by counsel that is “so serious that counsel was not functioning as the counsel 21 guaranteed the defendant by the Sixth Amendment.” Id. Second, the defendant must show that 22 the deficient performance caused him prejudice. Id. This requires petitioner to show “that there 23 24 5 Additionally, petitioner makes the general claims that his trial counsel “failed to proffer any defense whatsoever,” ECF No. 1 at 21, and “failed to investigate . . . and prep for trial in all 25 regards,” id. at 21. We reject these arguments—the record reveals that his counsel investigated his case, prepared for trial, and mounted a defense. Petitioner also appears to claim that he was 26 forced to proceed with his counsel against his wishes because he is a “layman of law and had no 27 other option.” Id. at 22. Although petitioner may have been unsatisfied with his appointed counsel, petitioner has given the court no reason to think that his constitutional rights were 28 violated by his counsel’s representation, and accordingly we reject his claim. 1 is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 2 proceeding would have been different.” Id. at 694. On habeas review, when filtered through 3 § 2254(d)’s fairminded-jurist standard, the Strickland requirements become even more 4 deferential, and we must ask “whether there is any reasonable argument that counsel satisfied 5 Strickland’s deferential standard.” Richter, 562 U.S. at 105. If there is even one reasonable 6 argument that counsel did not violate the Strickland standard—even if the state court has not 7 identified the argument—then the petitioner cannot obtain habeas relief. See id. at 106. 8 In general, strategic choices made by counsel receive a “heavy measure of deference.” 9 See Strickland, 466 U.S. at 690-91 (explaining that “strategic choices made after thorough 10 investigation of law and facts relevant to plausible options are virtually unchallengeable; and 11 strategic choices made after less than complete investigation are reasonable precisely to the extent 12 that reasonable professional judgments support the limitations on investigation”). “[C]ounsel has 13 a duty to make reasonable investigations or to make a reasonable decision that makes particular 14 investigations unnecessary.” Id. In addressing petitioner’s counsel’s performance, we must ask 15 whether his strategic choices were reasonable under “prevailing professional norms.” Id. at 688. 16 1. Failure to call a witness 17 Petitioner argues that his counsel was ineffective when he failed to call a witness named 18 Corbin who had described the gunman who robbed Singh as a “white male with medium length 19 hair.” ECF No. 1 at 19. The superior court rejected petitioner’s claim on the merits in a reasoned 20 decision, which we review under the deferential standard of § 2254. The superior court found 21 that petitioner had failed to explain why the jury would have credited Corbin’s testimony over the 22 testimony of Singh, and accordingly that petitioner had failed to show that he was prejudiced by 23 the absence of the testimony. ECF No. 21-10 at 2. 24 To establish prejudice from the failure to call a witness, petitioner would need to show 25 that the witness was likely to have been available to testify, the witness would have testified in 26 support of the petitioner, and the witness’ testimony would have created a reasonable probability 27 that the jury would have reached a verdict more favorable to the petitioner. See Alcala v. 28 Woodford, 334 F.3d 862, 872-73 (9th Cir. 2003). Petitioner has failed to meet the first prong of 1 Alcala. At the hearing on petitioner’s motion for a new trial, the prosecution stated that they 2 Corbin may have had evidence which would assist in the state’s case and had attempted to secure 3 Corbin as a witness but were unsuccessful. ECF No. 21-5 at 259. Petitioner has failed to show 4 that his own counsel would have fared better in securing Corbin’s presence at trial, much less that 5 Corbin would have given the testimony that petitioner sought and that the testimony would have 6 created a reasonable probability of a more favorable verdict. Accordingly, the undersigned 7 recommends that petitioner’s claim be denied. 8 2. Failure to impeach Singh 9 Petitioner claims that his counsel was ineffective because he failed to elicit from Singh 10 testimony that Singh had previously been unable to identify petitioner. ECF No. 1 at 19. The 11 superior court rejected petitioner’s claim on the merits in a reasoned decision, which we review 12 under the deferential standard of § 2254. The superior court found that petitioner’s counsel had 13 “spent large amounts of time” exploring the issue of identity when questioning witnesses and that 14 petitioner had failed to show how additional questioning would have changed the jury’s verdict. 15 ECF No. 21-10 at 1. 16 Lawyers have “no duty to pursue investigations likely to be fruitless or even harmful,” and 17 “they have no duty to inject evidence likely to open the door to additional evidence that would be 18 harmful.” Stanley v. Schriro, 598 F.3d 612, 636-37 (9th Cir. 2010); see Bell v. Cone, 535 U.S. 19 685 (2002) (holding that counsel made a reasonable strategic decision to waive closing argument 20 because it prevented unfavorable evidence from being presented to the jury). 21 This issue was considered at a post-trial hearing on petitioner’s motion for a new trial, at 22 which petitioner recounted a conversation he had with his counsel during the trial. ECF No. 21-5 23 at 243. Petitioner stated that he had confronted his trial counsel and had asked why he did not 24 attempt to highlight that Singh had not been able to identify petitioner at trial.6 Id. According to 25 petitioner, his counsel responded, “What if he would have said it was you?”—revealing that 26 27 6 Singh had identified petitioner as a robber during the field identification. ECF No. 21-5 at 91- 92. However, at trial, Singh stated that he was only able to identify Sandoval as a robber; he did 28 not identify petitioner. Id. at 242 1 counsel had made a strategic decision not to highlight this discrepancy in order to avoid 2 potentially harmful testimony. Id. At the post-trial hearing, moreover, his counsel took many 3 opportunities to highlight discrepancies in Singh’s testimony during closing argument. See ECF 4 No. 21-5 at 142-47, 151. Giving the deference to counsel’s strategic choices that is required 5 under Strickland, we cannot find that petitioner’s counsel’s actions were deficient. 6 Neither can we find that this counsel’s actions prejudiced petitioner. Indeed, it seems 7 quite possible that the line of questioning petitioner sought would have hurt him. As it was, the 8 jury witnessed Singh’s inability to identify petitioner at trial, which could reasonably be expected 9 to cast doubt on the reliability of Singh’s initial identification of petitioner. Petitioner has failed 10 to show that the outcome of the trial would have been better for petitioner had his counsel 11 attempted to impeach Singh with his earlier testimony. 12 3. Questioning about the gunman’s accent 13 Petitioner argues that his counsel’s line of questioning regarding his accent, or lack 14 thereof, was unnecessary. ECF No. 1 at 19. The superior court rejected this argument on the 15 merits in a reasoned decision, and so we apply the deferential standard of § 2254. The superior 16 court found that any error by petitioner’s counsel was not the sort of “tactical error” warranting 17 reversal. ECF No. 21-10 at 1. 18 Attorneys are not expected to be “flawless,” and they may not be “faulted for a reasonable 19 miscalculation or lack of foresight or for failing to prepare for what appear to be remote 20 possibilities.” Harrington v. Richter, 562 U.S. 86, 110 (2011). The entire performance of the 21 attorney must be considered; it is “difficult to establish ineffective assistance when counsel’s 22 overall performance indicates active and capable advocacy.” Id. at 111. 23 During the police officers’ investigation, Verduzco told officers that the gunman “sounded 24 like a Mexican guy.” ECF No. 21-4 at 234. At trial, counsel elicited testimony from Singh and 25 Verduzco regarding petitioner’s accent and both testified that the robber spoke without an 26 accent.7 ECF No. 21-4 at 164-66, 234. When it became clear that neither witness recalled 27 7 A police officer also testified that, when questioned by the prosecution whether petitioner had 28 an accent, there was “nothing that I recall out of the ordinary” about petitioner’s speech. ECF 1 petitioner having an accent, petitioner’s counsel discontinued the line of questioning. 2 Considering Verduzco’s prior statements, petitioner’s counsel could have reasonably expected the 3 witnesses to testify that the gunman had an accent. We cannot find that petitioner’s counsel’s 4 performance was deficient for this “reasonable calculation.” 5 Moreover, even if these lines of questioning constitute error, petitioner has failed to show 6 any prejudice arising from them. The jury did not hear petitioner speak during the trial, and we 7 have no indication that the jury knew whether he had an accent or not.8 Petitioner has failed to 8 show that the witnesses’ testimony served to inculpate him, and therefore he has failed to show 9 that the outcome would have been better for petitioner absent these questions. 10 4. Discrepancies between the witnesses’ testimony during the investigation 11 and at trial 12 Petitioner argues that his counsel was ineffective because he failed to highlight various 13 discrepancies between the witnesses’ testimony during post-robbery interviews with police 14 officers, at the in-field identifications, and during trial. Specifically, petitioner argues that his 15 counsel should have: highlighted that petitioner’s clothing at arrest was different than the 16 gunman’s clothing during the robbery, as evidenced by a surveillance video and a photo, ECF No. 17 1 at 20; highlighted discrepancies in Alwarafi’s testimony regarding petitioner’s clothing, id. at 18 20-21, 58, 54; cross-examined detectives Rivera and Gonzales concerning differences in the 19 gunman’s clothing described by eyewitnesses and petitioner’s clothing at arrest, id. at 20; and 20 cross-examined Verduzco on her testimony regarding petitioner’s clothing at the photographic 21 lineup and in-field identifications, id. at 73, 85. The superior court rejected petitioner’s claim on 22 the merits in a reasoned decision, which we review under the deferential standard of § 2254. The 23 superior court noted that petitioner’s counsel “spent large amounts of time” questioning 24 witnesses’ identifications and that petitioner “failed to show how counsel could have done more 25 26 27 No. 21-5 at 64. 28 8 Petitioner states that he “never took . . . the stand” during the trial. ECF No. 1 at 19. 1 to make the point that in some cases the identifications of petitioner as the suspect were not 2 absolute.” ECF No. 21-10 at 1-2. 3 Petitioner has not shown deficient performance. Contrary to his assertions, his counsel 4 highlighted the discrepancies between the clothing seen on the gunman and petitioner’s clothing 5 at arrest. Defense counsel reminded the jury that Alwarafi only identified the gray jacket after the 6 robbery but did not identify petitioner as the robber during the in-field identification. ECF No. 7 21-5 at 146-47. Petitioner’s counsel elicited testimony from Deputy Gonzales that the gunman in 8 the surveillance video wore a covering over his face, a blue sweatshirt, and black pants.9 Id. at 6. 9 On cross examination of Officer Rivera, petitioner’s counsel called into doubt the reliability of a 10 still photo taken of the gunman from the surveillance video and moved to strike Rivera’s 11 testimony regarding the photo. Id. at 54-56. Petitioner also questioned Rivera in an effort to 12 discredit the reliability of the identification of the black Volvo. Id. at 59-60. 13 Petitioner’s counsel cast doubt on Verduzco’s testimony. Shortly after the robbery, 14 Verduzco told an officer that the robber had been wearing a dark sweatshirt, but that she was 15 uncertain whether petitioner was the robber. ECF No. 21-4 at 11, 29. And although petitioner 16 argues that his counsel should have cross-examined Verduzco regarding the photographic lineup, 17 he has neither pointed to any evidence that Verduzco made a positive identification of petitioner 18 during the photographic lineup, nor given any indication that the jury was aware that Verduzco 19 had been shown the photographic lineup.10 Subsequently, Verduzco was unable to definitively 20 identify petitioner as the gunman at either the in-field identification or trial.11 ECF No. 21-5 at 21 246. At trial, petitioner’s counsel questioned Verduzco about her primary focus on the gun 22 23 9 Petitioner argues that his counsel should have used Gonzales’ police report containing 24 Alwarafi’s post-robbery statements to highlight the discrepancies in Alwarafi’s testimony regarding the clothing of the gunman. However, petitioner’s counsel highlighted the 25 discrepancies in Alwarafi’s own testimony—additional testimony regarding the police report would have been cumulative. ECF No. 21-5 at 146-47; ECF No. 21-10 at 1. 26 10 We have only found mention of the photographic lineup at the preliminary hearing and at 27 petitioner’s post-trial hearing on his motion for a new trial. ECF No. 21-5 at 253. 11 At trial, petitioner’s counsel asked Verzduzco, “do you remember what his [robber’s] clothes 28 looked like?” and Verduzco answered “No, I don’t.” Id. at 247. 1 during the robbery, and she testified that she did not remember much about the appearance of the 2 gunman. ECF No. 21-4 at 153, 232-34. 3 In closing, petitioner’s counsel urged the jury to “focus on the non-identification . . . focus 4 on the clothing, focus on the descriptions . . . the reasonable doubt . . . [c]arloads of reasonable 5 doubt” and argued that the difference in clothing demonstrated that petitioner was not the robber. 6 ECF No. 21-5 at 156. He specifically emphasized that “Verduzco said she only recognized the 7 guy with the blue sweatshirt and [petitioner] wasn’t wearing that.” Id. Petitioner has not shown 8 that his counsel needed to do more to highlight the discrepancies in the witnesses’ testimony. 9 Giving deference to counsel’s strategic decisions, we cannot find that his choice constituted 10 deficient performance. Moreover, petitioner has failed to show that he was prejudiced by his 11 counsel’s decisions. The prosecution itself made the jury aware of the difference between the 12 gunman’s clothing and petitioner’s clothing at the time of his arrest, introducing both surveillance 13 video footage of one of the robberies and a photo of petitioner at the time of his arrest. The 14 prosecution addressed the difference in clothing during closing arguments, suggesting that 15 petitioner could have changed his clothing between the robbery and arrest. ECF No. 21-4 at 160; 16 ECF No. 21-5 at 66-67. The prosecution also made the jury aware of the discrepancies in 17 Alwarafi’s testimony, even stating that Alwarafi “may have been mistaken.” ECF 21-5 at 126. 18 And despite the difference in clothing, the jury could have found similarities between the gunman 19 and petitioner—such as similar body frames and heights—probative of his guilt. At the time of 20 his arrest, petitioner was found with a large amount of cash and a bottle of Crown Royal 21 whiskey—a type of liquor that had been stolen during one of the robberies. ECF No. 21-5 at 60- 22 63. Petitioner was found by police officers in a black Volvo with Sandoval, who was identified 23 by every victim as one of the robbers. See id. at 14, 23, 91. The jury was charged with 24 determining what significance, if any, to accord the discrepancy in clothing, in light of the other 25 evidence presented at trial. See United States v. Brady, 579 F.2d 1121, 1127 (9th Cir. 1978) 26 (noting that “it is the exclusive function of the jury to determine the credibility of the witnesses, 27 28 1 resolve evidentiary conflicts and draw reasonable inferences from proven facts”). The 2 undersigned recommends that this claim be denied. 3 5. Counsel Conflict of Interest 4 Petitioner argues that his counsel had a conflict of interest because he believed that petitioner was 5 guilty. ECF No. 1 at 21-22, 95-97. Although the superior court did not explicitly address this 6 claim, we assume that the court rejected the claim on the merits and accordingly give the superior 7 court’s decision deference under § 2254. See Johnson v. Williams, 568 U.S. 289, 301 (2013). 8 We cannot find that the superior court’s rejection of petitioner’s claim was an unreasonable 9 application of clearly established federal law. A counsel’s conflict of interest can violate a 10 defendant’s Sixth Amendment rights where the petitioner can show an “actual,” not speculative, 11 conflict—and that the conflict “adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 12 446 U.S. 335, 348 (1980); see Mickens v. Taylor, 535 U.S. 162 (2002). Petitioner has not done 13 so. We can find no U.S. Supreme Court case that protects a criminal defendant from an attorney 14 who believes him to be guilty. Moreover, petitioner’s only support for his claim that his attorney 15 thought he was guilty is that his counsel stated to him privately, “you did four robberies.” ECF 16 No. 1 at 22. Petitioner has presented no proof that his counsel’s alleged belief presented an actual 17 conflict of interest, much less that this supposed conflict adversely affected his counsel’s 18 performance. Petitioner’s claim should be denied. 19 6. Concession of probable cause 20 Petitioner argues that his counsel was ineffective when he conceded probable cause at the 21 preliminary hearing, ECF No. 1 at 22, 98, and in his motion to set aside his charge for the robbery 22 of Alwarafi, id. at 22, 103. Although the superior court did not explicitly address this claim, we 23 assume that the court rejected it on the merits and accordingly give the superior court’s decision 24 deference under § 2254. See Williams, 568 U.S. at 301. Although “federal habeas corpus relief 25 does not lie for errors of state law,” Estelle v. McGuire, 502 U.S. 62, 67 (1991), a habeas 26 petitioner can gain relief on an ineffective assistance of counsel claim if he can show both that his 27 attorney was ignorant of “a point of law that [was] fundamental to his case,” and that his attorney 28 failed “to perform basic research on that point of state law.” Hinton v. Alabama, 571 U.S. 263, 1 274 (2014) (explaining that such a failure is a “quintessential example of unreasonable 2 performance under Strickland”). 3 Here, petitioner has failed to demonstrate that his counsel was ignorant of the relevant 4 state law—that is, the law governing preliminary hearings and motions to set aside charges. 5 Under Cal. Penal Code § 872(a), a trial court may “hold a defendant to answer on felony charge” 6 at the preliminary hearing where there is “sufficient cause to believe that the defendant is guilty.” 7 Sufficient cause exists if facts have been presented that would “lead a man of ordinary caution or 8 prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” 9 People v. Ortiviz, 74 Cal. App. 3d 537, 541 (1977). A finding of sufficient cause “may be based 10 in whole or in part upon the sworn testimony of a law enforcement officer . . . relating the 11 statements of declarants made out of court offered for the truth of the matter asserted.” Cal. Pen. 12 Code § 872(b). After a defendant has been held to answer for a charge, he can move to set aside 13 the charge on the theory that he “has been committed without reasonable or probable cause.” Cal. 14 Pen. Code § 995(a)(2)(B). 15 Petitioner has failed to show that his counsel’s performance was deficient. At the 16 preliminary hearing, multiple police officers testified to petitioner’s involvement in the robbery, 17 one of them stating that Singh was “100%” certain of his identification of petitioner shortly after 18 the robbery. ECF No. 21-5 at 92. Petitioner’s counsel then stated that Singh’s identification was 19 sufficient for “preliminary hearing purposes” and that the evidence of the robbery of Singh was 20 “clear.”12 ECF No. 21-1 at 120-23. In his motion to set aside the Alwarafi charge, petitioner’s 21 counsel acknowledged that petitioner “was definitively identified as the gunman” in the Singh 22 robbery. Id. at 187. Petitioner’s counsel’s statements were supported by the record; he had no 23 duty to make futile arguments. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 24 2005) (explaining that attorneys have no duty to raise meritless arguments). 25 12 Notably, at the preliminary hearing petitioner’s counsel argued that there was insufficient evidence to hold petitioner to answer for the robbery of Alwarafi, ECF No. 21-5 at 121, and then 26 later moved to have this charge dropped, id. at 187. Counsel’s actions suggest that that he 27 attempted to highlight weaknesses in the government’s case while also offering the court realistic assessments. 28 1 Moreover, petitioner has failed to show how he was prejudiced by his counsel’s 2 concession. Because the evidence of probable cause was sufficient to hold petitioner to answer 3 for the robbery of Singh, the court could have found probable cause despite counsel’s concession. 4 And petitioner has failed to show how counsel’s brief mention of Singh’s positive identification 5 in his motion to set aside the Alwarafi charge had any effect on the outcome of the trial. 6 7. Ineffective assistance of appellate counsel 7 Petitioner argues that his appellate counsel was ineffective because he failed to argue on 8 direct appeal that petitioner’s trial counsel was ineffective. ECF No. 1 at 5, 8, 22, 107. The 9 superior court rejected petitioner’s claim on the merits in a reasoned decision, which we review 10 under the deferential standard of § 2254. The superior court found that, because petitioner failed 11 to show that his trial counsel was ineffective, he necessarily also failed to show that his appellate 12 counsel was ineffective for failing to argue ineffectiveness on appeal. ECF No. 21-10 at 3. 13 The superior court’s determination was not contrary to clearly established federal law. A 14 defendant’s right to appellate representation does not include a right to present non-viable 15 arguments. See McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 436 (1988); Morrison 16 v. Estelle, 981 F.2d 425, 429 (9th Cir. 1992) (explaining that appellate counsel cannot be found 17 ineffective for failing to raise an argument that would not have been successful). Even if 18 petitioner’s ineffective assistance of counsel claims had merit, no U.S. Supreme Court decision 19 holds that a “defendant has a constitutional right to compel appointed counsel to press 20 nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, 21 decides not to present those points.” Jones v. Barnes, 463 U.S. 745, 751 (1983). 22 Here, petitioner’s claims of ineffective assistance of trial counsel are meritless; he has 23 failed to meet the requirements of Strickland. We cannot find that his appellate counsel was 24 deficient for failing to argue ineffective assistance of trial counsel, or that petitioner was 25 26 27 28 1 prejudiced by appellate counsel’s failure to raise this claim.13 The undersigned recommends that 2 this claim be denied. 3 B. Prosecutorial Misconduct 4 Petitioner argues that the prosecution knowingly presented false evidence concerning 5 Alwarafi’s description of the gunman’s clothing. ECF No. 1 at 7. The superior court rejected the 6 claim, unconvinced by petitioner’s argument that any evidence presented by the prosecution that 7 contradicted the police report must be false. The court stated that “nothing in the record shows 8 why the information in the police report is the correct version of the facts.” ECF No. 21-10 at 3. 9 We review the superior court’s opinion—the last reasoned opinion on this claim—under 10 the deferential standard of § 2254. Napue v. Illinois governs our inquiry into claims that a 11 prosecutor presented false evidence at trial. 360 U.S. 264 (1959). To prevail on a Napue claim, 12 “the petitioner must show that (1) the testimony (or evidence) was actually false, (2) the 13 prosecution knew or should have known that the testimony (or evidence) was actually false, and 14 (3) that the false testimony (or evidence) was material.” Hein v. Sullivan, 601 F.3d 897, 908 (9th 15 Cir. 2010) (quoting United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)). False 16 evidence is “material” when there is a “reasonable likelihood that the evidence could have 17 affected the judgment of the jury.” United States v. Bagley, 473 U.S. 667, 680 (1985); see United 18 States v. Agurs, 427 U.S. 97, 104 (1976). 19 According to the police report, Alwarafi initially told officers that the gunman wore a blue 20 sweatshirt. ECF No. 1 at 7. At trial, however, Alwarafi testified that the gunman was wearing a 21 gray jacket. Id. at 62. In the closing statement, the prosecutor stated that “there are differences 22 here in Mr. Alwarafi’s testimony.” ECF No. 12-5 at 125. The prosecutor theorized that perhaps 23 petitioner had dressed in layers that day or that Alwarafi was mistaken about petitioner’s clothes 24 altogether. See id. at 126. The prosecutor then urged the jury to “look at the way . . . Alwarafi 25 testified” and to “consider how that testimony was.” Id. at 127. 26 27 28 13 Petitioner raised this claim unsuccessfully in his state habeas petitions 1 Petitioner has failed to show that the evidence presented by the prosecutor at trial was 2 “actually false.” Inconsistent witness statements do not establish a Napue violation. See United 3 States v. Bingham, 653 F.3d 983, 995 (9th Cir. 2011); United States v. Croft, 124 F.3d 1109, 1119 4 (9th Cir. 1997) (“The fact that a witness may have made an earlier inconsistent statement . . . does 5 not establish that the testimony offered at trial was false.”); United States v. Necoechea, 986 F.2d 6 1273, 1281 (9th Cir. 1993) (finding no prosecutorial misconduct where “[a]t most, the prosecutor 7 presented contradictory testimony”). Alwarafi’s inconsistent statements were addressed directly 8 by the prosecutor, and there is no proof that the prosecutor mischaracterized the testimony. 9 Because petitioner has failed to meet the first prong of Napue—since he cannot show that the 10 testimony was actually false—we need not analyze the remaining prongs.14 The superior court’s 11 rejection of petitioner’s claim was not contrary to clearly established law. Therefore, his claim 12 should be denied. 13 C. California Court of Appeal’s Denial of Habeas Petition 14 Petitioner argues that the Court of Appeal erred when it rejected his habeas petition as 15 untimely under state procedural rules. ECF No. 1 at 10. Because the California Supreme Court 16 summarily rejected this claim, we review that decision under the standard announced in Greene, 17 288 F.3d at 1088-89. 18 As a preliminary matter, “[a] federal habeas petition is not the proper vehicle for 19 addressing the adequacy of process provided . . . in state post-conviction proceedings.” Silversky 20 v. Frink, 500 F. App’x 625, 626 (9th Cir. 2012). Moreover, we are bound on federal habeas 21 review by a state court’s interpretation of state law. See Bradshaw v. Richey, 546 U.S. 74, 76 22 (2005); Estelle, 502 U.S. at 67-68 (“[I]t is not the province of a federal habeas court to reexamine 23 14 If we were to analyze the remaining prongs, petitioner would have difficulty showing that the 24 prosecutor’s statements were material, i.e., that they affected the judgment of the jury. Petitioner’s counsel sought to rebut the prosecution’s theory of the case in his closing argument, 25 attempting to cast doubt on Alwarafi’s testimony and identification. ECF No. 21-5 at 133; 148. The jury was then free to make credibility determinations about all the evidence presented, 26 including Alwarafi’s testimony. See Jackson v. Denno, 378 U.S. 368, 386 (1964) (noting that 27 questions of witness credibility are for the jury to resolve). Moreover, the inconsistencies in Alwarafi’s testimony may have cast doubt on his credibility, advantaging petitioner. 28 1 state-court determinations on state-law questions.”). Therefore, we recommend that petitioner’s 2 claim be denied.15 3 III. Certificate of Appealability 4 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 5 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 6 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a 7 district court to issue or deny a certificate of appealability when entering a final order adverse to a 8 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 9 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial 10 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires 11 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of 12 his constitutional claims or that jurists could conclude the issues presented are adequate to 13 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. 14 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the 15 denial of a constitutional right. Thus, we recommend that the court not issue a certificate of 16 appealability. 17 IV. Findings and Recommendations 18 We recommend that the court deny the petition for a writ of habeas corpus, ECF No. 1, 19 and decline to issue a certificate of appealability. These findings and recommendations are 20 submitted to the U.S. District Court judge presiding over this case under 28 U.S.C. § 636(b)(1)(B) 21 and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District 22 of California. Within thirty days of the service of the findings and recommendations, petitioner 23 may file written objections to the findings and recommendations with the court and serve a copy 24 on all parties. That document must be captioned “Objections to Magistrate Judge’s Findings and 25 26 15 Moreover, petitioner has given us no reason to believe that his constitutional rights were 27 violated by the Court of Appeal’s rejection of his habeas petition. Despite the Court of Appeal’s ruling, petitioner was able to present the same claim to the California Supreme Court in his 28 petition for review. ECF No. 20 at 28. Cow 4.49 UV □□□ □□ INE VR MUO ot PR vere AY ot VI a 1 | Recommendations.” The district judge will then review the findings and recommendations under 2 | 28 US.C. § 636(b)(1)(C). 3 4 IT IS SO ORDERED. ° p : —N prssann — Dated: _ September 2, 2020 6 UNI STATES MAGISTRATE JUDGE 7 8 | No. 206. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19