Horton v. Spearman ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHRISTOPHER BRIAN HORTON, Case No. 19-cv-02954-WHO (PR) Petitioner, 8 ORDER DENYING PETITION FOR v. 9 WRIT OF HABEAS CORPUS 10 M. ELIOT SPEARMAN, 11 Respondent. Dkt. Nos. 35 and 37 12 13 INTRODUCTION 14 Petitioner Christopher Brian Horton seeks federal habeas relief from his state 15 convictions for corporal injury to a spouse, spousal rape, forcible oral copulation, and 16 assault with intent to commit a felony. None of his claims has merit. The petition is 17 DENIED. 18 BACKGROUND 19 In 2015, Horton was convicted by a Monterey County Superior Court jury of 20 infliction of corporal injury upon a spouse, spousal rape, forcible oral copulation spousal 21 rape, and assault with intent to commit a felony. Additionally, the jury found true the 22 allegations that Horton had a prior conviction for rape and was a habitual sex offender. A 23 sentence of 156 years was imposed. (Ans., State Appellate Decision, Dkt. No. 22-16 at 24 122-123.)1 25 The victim of these crimes was Horton’s wife, Jane Doe 1 (Jane), who testified at 26 27 1 trial.2 She had met Horton in person in August 2010. (Id. at 124.) The two talked over the 2 phone a few times after that, and he invited her over to dinner at his house. (Id.) During 3 this dinner, Horton told Jane he was married. (Id.) She told him she did not want to see 4 him anymore. (Id.) 5 They next met in March 2011 when Horton came to her apartment and told her his 6 wife had died. (Id.) The pair began a relationship soon thereafter. (Id.) In May 2011, 7 Jane allowed Horton to move in with her, after he told her he “was lonely and that his 8 daughters and mother-in-law had abandoned him.” (Id.) The relationship became sexual, 9 and in July 2011, Horton asked her to marry him. (Id. at 124-125.) She thought marriage 10 inappropriate so soon after his wife’s death, and declined. (Id. at 125.) They eventually 11 married on November 11, 2011, and had a reception on November 19. (Id.) 12 Horton’s behavior and demeanor changed immediately after the wedding reception. 13 He cancelled the couple’s honeymoon and scoffed at Jane’s invitation to have sex, 14 declaring “it would only happen when he wanted to, not whenever.” (Id.) In the days 15 after, “he was angry all the time, and would frequently curse, using words like ‘fuckin’ 16 bitches . . . and putas [Spanish for whores],’ words he had not used before they had 17 married.” (Id.) 18 Physical and sexual abuse of Jane followed: 19 On the evening of November 21, Jane was in the bedroom on the phone with 20 her daughter. [Horton] came in, asked with whom she was speaking, and then ordered Jane to hang up and not to talk to anyone on the phone. Jane 21 continued the call. She then went into the kitchen for a glass of milk. [Horton] came in from the living room and told her she couldn’t get anything 22 and ordered her to put down the milk. As Jane returned to the bedroom, 23 [Horton] struck her with ‘a very strong blow to the head,’ and she dropped the phone. She felt dizzy and ‘[e]verything went dark.’ [Horton] yelled at 24 her, called her puta and said, ‘Why didn’t you listen to me? I told you to 25 hang up.’ After Jane asked why he had struck her, [Horton] kept yelling at her and told her she had to do as he ordered. He shook her by the shoulder. 26 After he stopped, Jane picked up the phone. In response to her daughter 27 asking what was wrong, Jane said she had just dropped the phone; she was 1 embarrassed to tell her daughter that [Horton] had struck her. After telling 2 [Horton] not to hit her, he said, ‘Shut up, whore, puta. You have to do what I say.’ She sustained a bump on the back of her head as a result of [Horton]’s 3 striking her. It persisted for approximately one week. 4 The next evening (November 22), Jane was lying down in the bedroom 5 resting because her head hurt. [Horton] came in, grabbed his penis, and said, ‘That’s what you wanted.’ She told him she didn’t feel well and that her 6 head hurt. [Horton] grabbed her by the hair, got on the bed, spread her legs, 7 and orally copulated and digitally penetrated her. Jane, who was crying, told him to stop, that he was hurting her, and her head hurt from him hitting her 8 the previous day. [Horton] turned her, insulted her, called her a whore, and put his penis in her vagina, pulling her hair and slapping her in the face while 9 doing so. He also grabbed her by the neck and spat on her. She repeatedly 10 asked him to stop and told him he was hurting her. He stopped after ejaculating inside of her. 11 12 On another occasion, [Horton] took Jane’s phone and her ‘papers’ away so that she was unable to communicate with her family in Mexico. She saw her 13 friend, Jasmin, on the street as Jane was walking to buy a phone after [Horton] had taken her phone away from her. [Horton] also forbade Jane 14 from going to school and took her car keys. [Horton] instructed her to stay 15 inside the house and threatened to report her to immigration. She went to school anyway on foot. 16 17 On the morning of December 23, as they were getting ready to clean homes, [Horton] was very upset by someone having left a drawing of him outside 18 the door. He swore and said, ‘All women are whores.’ After Jane asked him to stop, he said, ‘You, too, bitch. Shut up.’ When they returned home that 19 evening, [Horton] was still upset and was yelling. At approximately 9:00 20 p.m., while Jane was in the bedroom on the phone with her daughter, [Horton] came in from the living room and asked with whom she was 21 speaking. After she told him, [Horton] got on the bed and began orally 22 copulating her. After she moved him away and told him to stop because she was talking to her daughter, [Horton] said, ‘Tell your daughter I licked your 23 pussy.’ Jane told her daughter she would call her back and hung up. She then said, ‘Brian, don’t treat me this way.’ [Horton] responded, ‘Shut up, 24 whore, bitch. I will do whatever I want to do.’ 25 Approximately one hour later, Jane was talking on the phone with Jasmin. 26 [Horton] came into the bedroom and again asked her with whom she was 27 speaking. After she told him, [Horton] got on the bed and spread Jane’s legs. She told him to stop, but he did not, and he orally copulated her. She again Jasmin that I’m licking your pussy.’ Jasmin asked Jane what was going on, 1 and she responded that she would call her back. After she hung up, [Horton] 2 kept calling Jane a whore, and said, ‘I want to fuck, bitch.’ [Horton] laughed and left the room. 3 Jane then lay on the bed and chatted on Facebook. [Horton] came back and 4 got into bed. Jane showed him a picture of his daughter she had found. (She 5 had conducted the search because [Horton] had told her previously that ‘he wanted to look for his daughters, because they didn’t want to see him.’) 6 [Horton] became very upset and started yelling at her, again calling her a 7 whore. He got out of bed, grabbed Jane by the neck, raised his hand to hit her, and called her a whore. He then pulled her by the arm out of bed and 8 started shaking her. He pushed her into the living room. 9 Jane watched television (‘the Animal Planet channel’) in the living room. 10 After a while, [Horton] came out of the bedroom, threw a Bible at her, and told her, ‘Whore, read.’ She returned it to her bedside table and asked 11 [Horton] not to throw it. In a later encounter, [Horton] came back into the 12 living room, pulled on his penis, and told Jane, ‘This is what you wanted.’ Jane asked him not to bother her and said she wanted to rest in the living 13 room. [Horton] pulled Jane hard towards him, took off her panties, and again called her a whore and a bitch. He began orally copulating her; she told him 14 to stop, tried to close her legs, and tried to push him away. He used more 15 force to open her legs again twice more. Because he refused to stop, Jane kicked [Horton] in the stomach, and he fell back on the floor. He then got 16 up and grabbed Jane by the hair and hit her in the face. She asked him to 17 stop. He spat in her face and tried to force her to orally copulate him. She turned her face and told him to stop. [Horton] threw Jane on the floor and 18 continued hitting her in the face and stomach, again calling her a bitch and a whore. Jane struck him in the groin, which caused him to stop momentarily. 19 Jane reached for her phone and tried to get up. [Horton] grabbed her hand. 20 Jane said she wanted to go into the bedroom to rest; [Horton] said, ‘No, bitch. You’re going to call the police.’ Jane went into the bathroom, locked the 21 door, and dialed 911. [Horton] knocked on the door and asked her to open 22 it; she refused. He begged her not to call the police. 23 Jane told the 911 operator that her husband had struck her in the face and she felt embarrassed. After a Spanish interpreter was brought into the 24 conversation, Jane repeated that her husband had struck her in the face, and 25 that he had grabbed her by the neck and pulled her hair. She said that ‘[he] wanted to abuse with me [sic].’ 26 27 Two or three police officers responded to the apartment. After being interviewed by them, Jane went to Natividad Medical Center (Natividad). sides of her face were swollen, and she had pain in her stomach. She went 1 for a follow-up visit because of her injured eye. 2 (Id. at 125-128.) 3 Horton’s attempts to overturn his convictions in state court were unsuccessful. 4 (Pet., Dkt. No. 1 at 3-4.) This federal habeas petition followed. 5 As grounds for federal habeas relief, Horton claims: (i) the trial court erred by 6 denying his request for self-representation in violation of Faretta v. California, 429 U.S. 7 806 (1975); (ii) the trial court erred in admitting sexual propensity evidence; (iii) the trial 8 court violated Horton’s right to confrontation and due process by stopping the cross- 9 examination of Jane; (iv) the trial court erred by preventing discovery of Jane’s prior report 10 of rape and employment records; (v) trial counsel was ineffective for failing to impeach 11 Jane and her friend with the friend’s prior inconsistent statements; (vi) trial counsel was 12 ineffective for failing to object to evidence that Horton had stalked and harassed Jane Doe 13 2; and (vii) the cumulative error of all these claims violated his rights. 14 STANDARD OF REVIEW 15 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), this 16 Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody 17 pursuant to the judgment of a State court only on the ground that he is in custody in 18 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 19 The petition may not be granted with respect to any claim that was adjudicated on the 20 merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a 21 decision that was contrary to, or involved an unreasonable application of, clearly 22 established Federal law, as determined by the Supreme Court of the United States; or 23 (2) resulted in a decision that was based on an unreasonable determination of the facts in 24 light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 25 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state 26 court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question 27 of law or if the state court decides a case differently than [the] Court has on a set of 1 materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 2 (2000). 3 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the 4 writ if the state court identifies the correct governing legal principle from [the] Court’s 5 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 6 413. “[A] federal habeas court may not issue the writ simply because that court concludes 7 in its independent judgment that the relevant state court decision applied clearly 8 established federal law erroneously or incorrectly. Rather, that application must also be 9 unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application” 10 inquiry should ask whether the state court’s application of clearly established federal law 11 was “objectively unreasonable.” Id. at 409. 12 DISCUSSION 13 i. Right to Self-Representation 14 Horton claims that the trial court unconstitutionally denied his right to self- 15 representation. (Pet., Dkt. No. 1 at 5.) The relevant facts are as follows. Horton brought 16 10 motions to change counsel during the three years preceding trial, from 2012 to 2015. 17 (Ans., State Appellate Opinion, Dkt. No. 22-16 at 140.) In 2015, after the court denied 18 another motion to change counsel, Horton asked to represent himself. (Id. at 141.) The 19 trial court advised Horton that he should consider the matter carefully, gave him a 20 questionnaire and a waiver advisement to review and complete, and scheduled a Faretta 21 hearing in two weeks on the request. (Id. at 141-142.) “In doing so, the court stated that it 22 was giving [Horton] ‘two weeks to think about this.’” (Id. at 142.) 23 At the January 2015 Faretta hearing, Horton gave the court the signed waiver form 24 (with advisements) and a waiver of the right to counsel. (Id.) The form stated that “no 25 continuance will be allowed without a showing of good cause, and that such request made 26 just before trial will most likely be denied.” (Id.) Yet Horton said at least seven times at 27 the hearing that he would not be ready by the trial date of March 9, 2015. (Id.) He cited 1 that point, meet with an investigator one of his prior attorneys had consulted, and prepare 2 for trial. (Id.) He also stated that he did not have the right glasses for reading, there was 3 no law library he could use, and he did not think he would have adequate funds for 4 investigations. (Id.) 5 The Faretta motion was denied. (Id.) The trial court said that it would not grant 6 the request unless Horton was ready to go to trial on March 9. (Id.) “We have had this 7 matter set for trial for quite a significant period of time. [¶] And your request to represent 8 yourself at this point is one where you are saying that it would require you to delay this 9 trial. And that is not something that the court or the cases allow.” (Id.) While 10 acknowledging Horton had a right to represent himself, the trial judge said that “that right 11 has to be weighed against other . . . things that relate to the process and to the 12 proceedings.” (Id. at 143.) If Horton had made the motion and “had stuck by this motion 13 several months ago, prior to us setting this trial date, we would be in a completely different 14 situation than we are today.” (Id.) The trial judge brought up the no continuance language 15 in the signed waiver and stated “serving as your own attorney is not good cause” to grant a 16 continuance. (Id.) 17 Furthermore, the trial court was concerned that “you are making this at a late date 18 . . . And honestly, my other concern is that you are intending to use this to delay this trial 19 unnecessarily. That you are using this to manipulate the process of the court.” (Id.) The 20 court concluded: “So based on that [Horton’s statement he is not prepared to proceed to 21 trial on the date set], if you cannot move forward at that time in representing yourself, then 22 the court will respectfully deny your request to represent yourself.” (Id.) 23 The state appellate court rejected Horton’s Faretta claim. “[T]here was ample 24 evidence from which the trial court reasonably concluded that [Horton] made the Faretta 25 request for purposes of delay and to obstruct proceedings.” (Id. at 147.) The appellate 26 court noted: proceedings had been pending for over three years; Horton’s “dissatisfaction” 27 with the attorneys assigned to him; his “repetitive and numerous” motions to change 1 could not be ready for the trial date. (Id.) 2 The appellate court emphasized that given Horton’s “constant dissatisfaction with 3 appointed counsel, [Horton] could have made a request to represent himself long before he 4 did so on January 8, 2015.” (Id. at 148.) Also, the record indicated that he “contemplated 5 making a Faretta request long before he actually did so.” (Id.) Horton admitted at the 6 Faretta hearing that in August 2014, he told another attorney from the Alternate 7 Defender’s Office that because he was dissatisfied with his current attorney, he “was 8 strongly considering taking [his] own case.” (Id.) 9 The appellate court underscored that Horton repeatedly said he would not be ready 10 for trial by March 9. (Id.) The trial court asked Horton many times about his readiness 11 and repeated that “if his Faretta request was tied to the expectation of a trial continuance, 12 the request would be denied.” (Id.) “And although [Horton] was given ample opportunity 13 at the hearing, he failed to give any indication as to when, if not on March 9, 2015, he 14 would in fact be ready for trial as a self-represented defendant.” (Id.) 15 “A criminal defendant has a Sixth Amendment right to self-representation at trial. 16 Faretta v. California, 422 U.S. 806, 832 (1975). The right is not absolute, however. 17 Indiana v. Edwards, 554 U.S. 164, 171 (2008). The request for self-representation must be 18 “unequivocal, timely, and not for purposes of delay.” Stenson v. Lambert, 504 F.3d 873, 19 882 (9th Cir. 2007). A request to represent oneself “need not be granted if it is intended 20 merely as a tactic for delay.” United States v. Flewitt, 874 F.2d 873, 674 (9th Cir. 1989). 21 “A court may consider events preceding a motion for self-representation to determine 22 whether the request is made in good faith or merely for delay.” United States v. George, 23 56 F.3d 1078, 1084 (9th Cir. 1995). In George, the court held the trial court’s “findings 24 provide[d] ample basis for its conclusion that [the defendant’s] motion was made for 25 purposes of delay. George, 56 F.3d at 1084. 26 Habeas relief is not warranted on this claim because the state court reasonably 27 determined that Horton’s request for self-representation was a tactic for delay. First, his 1 to change counsel) shows that he could have made a Faretta request far earlier than he did. 2 Second, although the waiver he signed stated that a continuance was unlikely to be 3 granted, Horton admitted he would not be ready for trial on March 9 and he gave no 4 indication about when he would be ready. Third, the frequent motions to change counsel 5 indicate that Horton was attempting to delay the trial. Horton filed his Faretta motion 6 after the trial court had denied his fourth motion to change one attorney (Rutledge), his 7 third motion to change another (Liner) and another regarding another attorney (Lambros), 8 which was granted. (Ans., Clerk’s Transcript, Dkt. No. 22-3 at 123-124, 131, 133, 144, 9 257, 286, 296; Dkt. No. 22-4 at 102, 104.) At the January 2015 Faretta hearing, the trial 10 court, after hearing from Horton, determined that petitioner was “intending to use this 11 [Faretta request] to delay this trial unnecessarily” and was using it to “manipulate the 12 process of the court.” (Id., Dkt. No. 22-9 at 76.) On this record, the state court’s rejection 13 of Horton’s Faretta claim was reasonable and is entitled to AEDPA deference. This claim 14 is DENIED. 15 ii. Admission of Propensity Evidence 16 Horton claims that the trial court violated his due process right to a fair trial by 17 admitting evidence of uncharged sex crimes against Jane Doe 2 and evidence of sex crimes 18 he was convicted of committing against Jane Doe 3. (Pet., Dkt. No. 1 at 5.) At trial, Jane 19 Doe 2 testified that in 1993 Horton raped her after she came to his house for dinner at his 20 invitation. (Ans., State Appellate Opinion, Dkt. No. 22-16 at 133-134.) Jane Doe 3 21 testified at trial that in 1996 Horton raped her after accepting his invitation to help him 22 clean houses. (Id. at 134-135.) 23 Horton’s due process claim was rejected on appeal. The appellate court concluded 24 the evidence had been properly admitted under state law and did not create prejudice. 25 (Ans., State Appellate Opinion, Dkt. No. 22-16 at 152-159.) 26 Horton’s claim cannot succeed because no remediable constitutional violation 27 occurred. The United States Supreme Court has left open the question of whether 1 67-71 (1991). Based on the Supreme Court’s reservation of this issue as an “open 2 question,” the Ninth Circuit has held that a petitioner’s due process right concerning the 3 admission of propensity evidence is not clearly established as required by AEDPA. 4 Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006). It has noted that courts have 5 “routinely allowed propensity evidence in sex-offense cases, even while disallowing it in 6 other criminal prosecutions.” United States v. LeMay, 260 F.3d 1018, 1025 (9th Cir. 7 2001). And the Supreme Court “has not yet made a clear ruling that admission of 8 irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to 9 warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). 10 In sum, because the Supreme Court expressly has left open this question presented 11 in the petition, Horton cannot show that a clearly established constitutional right was 12 violated when the trial court admitted propensity evidence. The state court’s rejection of 13 this claim was reasonable and is entitled to AEDPA deference. This claim is DENIED. 14 iii. Terminating Cross-Examination 15 Horton claims that the trial court violated his right to confrontation and due process 16 by stopping the cross-examination of Jane regarding the nature of her relationship with 17 Horton. (Pet., Dkt. No. 1 at 5.) The state appellate court summarized the facts: 18 The examination related to her ownership of a vehicle and whether she 19 possessed a driver’s license during the time she was married. [¶] During cross-examination, Jane was asked about a Jeep Cherokee automobile she 20 referred to in her direct examination. She testified that she ‘would drive it.’ Defense counsel asked if she owned the vehicle, and, over the People’s 21 relevance objection (which the court overruled), Jane responded that it was 22 owned by another person. The court thereafter sustained the People’s relevance objections to defense counsel’s questions: (1) whether the owner 23 was a person named Rangel; (2) whether it was true that the owner of the 24 vehicle wanted it back at the time she possessed it; and (3) whether she had a driver’s license at the time she was driving the vehicle. After Jane’s 25 testimony was completed, defense counsel stated for the record that because Jane had testified that [Horton] had taken her documents, ‘we felt it was 26 relevant to be able to probe into whether or not she had a California driver’s 27 license and that was part of the documentation that [Horton] kept.’ Defense the owner had wanted to take back possession of the car. The court 1 responded that it had ‘found that going any further into that line of 2 questioning would not be relevant . . . to the issues before the Court and . . . jury.’ 3 (Ans., State Appellate Opinion, Dkt. No. 22-16 at 174.) Horton contends that the cross- 4 examination was in response to Jane’s direct testimony that he took her car keys, phone, 5 and papers from her. Examination of this matter was important “to the exploration of the 6 nature of his relationship with Jane before December 23, 2011.” (Id. at 174.) 7 This claim was rejected on appeal. First, the state appellate court saw as irrelevant 8 the evidence that Jane did not valid driver’s license at the time she was married to Horton, 9 and failed to see how such evidence related to the nature of the pair’s relationship. (Ans., 10 State Appellate Opinion, Dkt. No. 22-16 at 175-176.) Furthermore, “the speculative 11 import” that Horton took her car keys because he didn’t want her driving without a valid 12 license was refuted by Horton’s testimony that he never prevented Jane from having the 13 car keys. (Id. at 176.) Also, Jane admitted during her cross-examination by defense 14 counsel that she had told an investigator that Horton kept “[d]ocuments from my country, 15 the counsel matricula and [her] driver’s license from that country.” (Id.) From this 16 testimony, the jury could have inferred that Jane did not have a California’s driver’s 17 license during her marriage and “therefore [Horton] never kept it from her.” (Id.) 18 “[T]he Confrontation Clause guarantees an opportunity for effective cross- 19 examination, not cross-examination that is effective in whatever way, and to whatever 20 extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per 21 curiam). Accordingly, “trial judges retain wide latitude insofar as the Confrontation 22 Clause is concerned to impose reasonable limits on such cross-examinations based on 23 concerns about, among other things, harassment, prejudice, confusion of the issues, the 24 witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware 25 v. Van Arsdall, 475 U.S. 673, 679 (1986). A court violates the “Confrontation Clause only 26 when it prevents a defendant from examining a particular and relevant topic.” Fenenbock 27 v. Director of Corrections, 692 F.3d 910, 919 (9th Cir. 2012). A defendant meets his 1 burden of showing a Confrontation Clause violation by showing that “[a] reasonable jury 2 might have received a significantly different impression of [a witness’] credibility . . . had 3 respondent’s counsel been permitted to pursue his proposed line of cross-examination.” 4 Van Arsdall, 475 U.S. at 680; Slovik v. Yates, 556 F.3d 747, 753 (9th Cir. 2009). A due 5 process violation occurs only if the excluded evidence had “persuasive assurances of 6 trustworthiness” and was “critical” to the defense. Chambers v. Mississippi, 410 U.S. 284, 7 302 (1973.) 8 Here, the state appellate court reasonably determined that the trial court’s limitation 9 of cross-examination did not violate Horton’s Confrontation Clause or due process rights. 10 First, the evidence was irrelevant concerning the nature of the relationship between Horton 11 and Jane. Second, Horton’s own testimony contradicted his assertion that he took Jane’s 12 car keys away from her. Third, Jane’s testimony allowed the jury to infer that she never 13 had a California driver’s license during her marriage. Fourth, there was no showing that a 14 reasonable jury would have had a “significantly different impression” of Jane’s credibility 15 had counsel been allowed to continue his cross-examination. Van Arsdall, 475 U.S. at 16 680. Fifth, there was no showing that the testimony Horton sought was “critical” to the 17 defense. By ending cross-examination on an irrelevant and unimportant topic, the trial 18 court was acting well within its discretion. Id. at 679. The state court’s rejection of 19 Horton’s claims was reasonable and is entitled to AEDPA deference. This claim is 20 DENIED. 21 iv. Denying Discovery of a Police Report and Employment Records 22 Horton claims that the trial court violated his due process right to a fair trial and his 23 Confrontation Clause rights by denying disclosure of Jane’s prior report of rape (in 2010 24 by someone other than Horton) in a Salinas Valley police report and her employment 25 records. (Pet., Dkt. No. 1 at 7.) Defense counsel believed that Jane had had disciplinary 26 action taken against her by her employer, and sought evidence to support this. His 27 requests for both sets of records was denied. (Ans., State Appellate Opinion, Dkt. No. 22- 1 The trial court reviewed the employment records and found nothing regarding 2 reviews, layoffs, or any other relevant material. (Id. at 177-178.) It also reviewed the 3 police report and concluded it was not relevant and that its disclosure was not likely to 4 lead to any relevant evidence. (Id.) The appellate court also reviewed the documents and 5 agreed with the trial court that the records contained nothing relevant. (Id. at 178.) 6 The United States Supreme Court “has never held that the Confrontation Clause 7 entitles a criminal defendant to introduce extrinsic evidence for impeachment purposes.” 8 Nevada v. Jackson, 569 U.S. 505, 512 (2013) (per curiam). “[T]he Confrontation Clause is 9 generally satisfied when the defense is given a full and fair opportunity to . . . expose 10 [testimonial] infirmities through cross-examination.” Delaware v. Fensterer, 474 U.S. 15, 11 22 (1985). “[T]rial judges retain wide latitude insofar as the Confrontation Clause is 12 concerned to impose reasonable limits on such cross-examinations based on concerns 13 about, among other things, harassment, prejudice, confusion of the issues, the witness’ 14 safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 475 15 U.S. at 679. 16 Habeas relief is not warranted on this claim. The trial and appellate courts reviewed 17 both sets of records and held that they were not relevant. Such factual determinations are 18 presumed correct. 28 U.S.C. § 2254(e)(1). Horton has not overcome this presumption of 19 correctness and has not shown how his Confrontation Clause or due process rights were 20 violated. And there is no clearly established right to have extrinsic evidence for 21 impeachment purposes in any event. The state court’s rejection of these claims was 22 reasonable and is entitled to AEDPA deference. This claim is DENIED. 23 v., vi. Assistance of Counsel 24 Horton raises two claims of ineffective assistance of counsel. In the first, he 25 contends defense counsel should have impeached Jane and Jane’s friend Jasmin Deanda. 26 In the second, Horton contends counsel should have objected to evidence that Horton had 27 stalked and harassed Jane Doe 2. 1 establish two factors. First, he must establish that counsel’s performance was deficient, 2 i.e., that it fell below an “objective standard of reasonableness” under prevailing 3 professional norms, Strickland v. Washington, 466 U.S. 668, 687-68 (1984), “not whether 4 it deviated from best practices or most common custom,” Harrington v. Richter, 562 U.S. 5 86, 105 (2011) (citing Strickland, 466 U.S. at 690). “A court considering a claim of 6 ineffective assistance must apply a ‘strong presumption’ that counsel’s representation was 7 within the ‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting 8 Strickland, 466 U.S. at 689). 9 Second, he must establish that he was prejudiced by counsel’s deficient 10 performance, i.e., that “there is a reasonable probability that, but for counsel’s 11 unprofessional errors, the result of the proceeding would have been different.” Strickland, 12 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine 13 confidence in the outcome. Id. Where the defendant is challenging his conviction, the 14 appropriate question is “whether there is a reasonable probability that, absent the errors, 15 the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “The 16 likelihood of a different result must be substantial, not just conceivable.” Richter, 562 17 U.S. at 112 (citing Strickland, 466 U.S. at 693). 18 Tactical decisions of trial counsel deserve deference when: (1) counsel in fact bases 19 trial conduct on strategic considerations; (2) counsel makes an informed decision based 20 upon investigation; and (3) the decision appears reasonable under the circumstances. See 21 Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). The investigation itself must be 22 reasonable for an attorney’s tactical decision based on that investigation to be reasonable. 23 Wiggins v. Smith, 539 U.S. 510, 523-24 (2003) (tactical decision not to present life history 24 as mitigating evidence in capital sentencing trial unreasonable where counsel failed to 25 follow up on evidence that defendant had a miserable childhood). However, federal courts 26 should not overlook the “wide latitude counsel must have in making tactical decisions”; 27 therefore, there are no “strict rules” for counsel's conduct “[b]eyond the general 1 particular set of detailed rules for counsel's conduct can satisfactorily take account of the 2 variety of circumstances faced by defense counsel or the range of legitimate decisions’”) 3 (quoting Strickland, 466 U.S. at 688-89). 4 AEDPA “erects a formidable barrier to federal habeas relief.” Burt v. Titlow, 134 S. 5 Ct. 10, 16 (2013). The barrier is even more formidable when seeking relief on an 6 ineffective assistance claim. The standards created by Strickland and § 2254(d) are 7 “highly deferential.” Strickland, 466 U.S. at 689. When the two apply in tandem, review 8 is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). When 9 § 2254(d) applies, “the question is not whether counsel’s actions were reasonable. The 10 question is whether there is any reasonable argument that counsel satisfied Strickland’s 11 deferential standard.” Richter, 562 U.S. at 105. 12 (a) Impeaching Deanda 13 Horton claims that his trial counsel rendered ineffective assistance by failing to 14 impeach Jane and her friend Jasmin Deanda with Deanda’s prior inconsistent statements. 15 (Pet., Dkt. No. 1 at 7.) The relevant facts, based on the state appellate court’s summary, 16 are as follows. Deanda testified at trial that she had been friends with Jane before and after 17 her marriage to Horton. (Ans., State Appellate Opinion, Dkt. No. 22-16 at 129.) One time 18 after the marriage, Deanda saw Jane crying on the sidewalk, and that she was wearing 19 pajama pants and a long coat. (Id.) Jane told Deanda that Horton had taken her phone 20 away, and that she was having problems in her marriage. (Id. at 129-130.) Jane said that 21 Horton was aggressive when she did not obey him, and that there had been “physical 22 contact.” (Id.) Another time, when Deanda called Jane, Jane said “in a desperate manner” 23 that she could not talk. (Id. at 130.) According to Deanda’s testimony, Horton “was trying 24 to perform oral sex on [Jane] . . . he wanted her to tell [Deanda] what he was doing to her.” 25 (Id.) 26 However, when Jasmin was interviewed by an investigator from the district 27 attorney’s office, Jorge Ramirez, she said that on the day she found Jane crying, Jane had 1 No. 1-2 at 39-41; Dkt. No. 1-3 at 1.) Horton believes that his defense counsel, Richard 2 Rutledge, should have impeached Jane and Jasmin with this evidence. (Id., Dkt. No. 1 at 3 7.) 4 Rutledge declined to impeach for several reasons, which he made clear in a 5 declaration.3 First, examining Ramirez about Jasmin’s interview would put before the jury 6 additional evidence of Horton’s abuse of Jane. (Ans., Rutledge Decl., Dkt. No. 22-18 at 7 146.) Second, impeaching Jasmin about exactly when she heard about the abuse would 8 have been pointless. It would not “portray Deanda as a liar or not credible, as I believed 9 the prosecutor would likely argue that Deanda had simply been confused.” (Id. at 147.) 10 Third, Rutledge had found Ramirez a “difficult and ‘slippery’ witness to examine.” (Id.) 11 The state appellate court found that no prejudice resulted from Jane’s statements to 12 Deanda about her marital problems. Jane herself had testified “in detail” that Horton had 13 been “aggressive” and that “there had been physical contact.” (Ans., State Appellate 14 Opinion, Dkt. No. 22-16 at 173.) “Moreover, while [Horton] attaches heightened 15 significance to the challenged evidence, we observe that the prosecutor did not even refer 16 to this testimony by Jasmin in her arguments to the jury.” (Id.) 17 Habeas relief is not warranted. First, there was no deficient performance: Rutledge 18 made a reasonable tactical decision in declining to impeach Deanda. He thought that: the 19 examination would add evidence to Jane’s abuse claims, hurting his client; it would be 20 pointless because the prosecutor would then contend Deanda was confused, rather than a 21 liar; and from Rutledge’s experience, Ramirez was a difficult witness to examine. Second, 22 23 3 Horton’s appellate counsel, Alexis Haller, submitted a declaration in which he recalls his discussion with Rutledge regarding why he did not impeach Deanda with her statements to 24 Ramirez. (Pet., Dkt. No. 1-3 at 31-34.) Horton relies on Haller’s declaration to support his claims. However, Haller’s declaration does not change my conclusion. First, it is hearsay, 25 and as such cannot be considered. Second, if I could consider it, it adds little. According to Haller’s declaration, on one occasion Rutledge “could not recall any tactical or strategic 26 reason for the omission.” (Id. at 32.) On another occasion, Rutledge thought Ramirez’s report left “a lot of gray area,” Ramirez was a difficult witness, and it was best not to raise 27 the issue of abuse again. (Id.) On another occasion, Rutledge gave the same reasons put 1 there was no prejudice, as the state appellate court concluded: Jane herself had testified to 2 Horton’s physical abuse and to his being aggressive. The state court’s rejection of these 3 claims was reasonable and is entitled to AEDPA deference. This claim is DENIED. 4 (b) Objecting to Evidence of Stalking and Harassment 5 Horton next contends that defense counsel rendered ineffective assistance when he 6 failed to object to the admission of evidence that Horton had stalked and harassed Jane 7 Doe 2, consequent to which she obtained a restraining order against him. (Pet., Dkt. No. 1 8 at 7.) At trial, the prosecution presented documentary evidence that supported the 9 restraining order. (Ans., State Appellate Opinion, Dkt. No. 22-16 at 159-160.) 10 Rutledge declined to object for two reasons, which he made clear in a declaration.4 11 He did not believe that the documentary evidence “negatively affected one of our defense 12 theories: that while Horton had committed bad acts in the past, he had taken responsibility 13 for those acts.” (Ans., Rutledge Decl., Dkt. No. 22-18 at 147-148.) He thought that this 14 defense theory “made Horton’s claim at trial that he did not commit the offenses against 15 Jane Doe One more credible.” (Id. at 148.) Also, Rutledge “believed the evidence of 16 Horton’s harassment of Jane Doe Two supported the defense position that Jane Doe Two 17 was not raped by Horton.” (Id.) This is because Jane Doe 2 “did not initially report the 18 rape and only contacted police after Horton began to stalk and harass her.” (Id.) 19 The state appellate court rejected the ineffective assistance claim because no 20 prejudice resulted. “[W]hile the harassment/restraining order evidence placed [Horton] in 21 a bad light relative to his alleged actions toward Doe 2, it was far less inflammatory than 22 the properly admitted evidence that [Horton], after befriending Doe 2, gaining her trust, 23 and assuring her that he would respect her desire that they have no physical relationship, 24 25 4 Horton’s appellate counsel, Alexis Haller, submitted a declaration in which he recalls his discussion with Rutledge regarding why he did not object to the Jane Doe 2 evidence. 26 (Pet., Dkt. No. 1-3 at 31-34.) Horton relies on Haller’s declaration to support his claims. However, Haller’s declaration does not change my conclusion. First, it is hearsay, and as 27 such cannot be considered. Second, if I could consider it, it adds nothing new. (Id. at 32- 1 forcibly raped her.” (Ans., State Appellate Opinion, Dkt. No. 22-16 at 169.) Also, the 2 documentary evidence was “largely cumulative of Doe 2’s testimony (e.g., that [Horton] 3 had raped her)”; “included statements favorable to [Horton]”; the prosecutor “made only 4 minimal reference to harassment/restraining order evidence in her argument to the jury”; 5 and that there were no juror questions “suggested the jury placed any significance” on 6 Horton’s stalking of Jane Doe 2, “causing her to obtain a restraining order.” Furthermore, 7 Jane Doe 1 presented “strong and direct evidence that [Horton] committed the charged 8 offenses,” evidence that was corroborated by others. (Id. at 168.) 9 Habeas relief is not warranted. Rutledge had a reasonable tactical basis for 10 declining to object, so there was no deficient performance. Richter, 562 at 105 (“The 11 question is whether there is any reasonable argument that counsel satisfied Strickland’s 12 deferential standard.”) The state appellate court’s determination that there was no 13 prejudice was also reasonable. The evidence was cumulative of and less inflammatory 14 than testimony that had already been introduced. Furthermore, Jane Doe 1 presented 15 strong, corroborated evidence. The state court’s rejection of these claims was reasonable 16 and is entitled to AEDPA deference. This claim is DENIED. 17 v. Cumulative Error 18 Horton claims there was cumulative error. The state appellate court rejected this 19 claim: 20 [Horton] contends further that reversal is required due to cumulative error. 21 We have concluded there is one nonprejudicial error concerning the admission of Jane’s statements through the testimony of Jasmin.5 There are 22 thus no multiple errors to cumulate. In addressing the challenge to admission of the harassment/restraining order evidence, we have assumed without 23 deciding that counsel’s performance was deficient in failing to object to this 24 evidence, but have concluded there was no ineffective assistance of counsel that was prejudicial. This assumed error, together with the nonprejudicial 25 error concerning the admission of Jane’s statements through Jasmin’s 26 27 5 On appeal, Horton contended Jasmin Deanda’s statements were improperly admitted testimony, does not warrant reversal. Considered separately or together, we 1 find ‘no serious flaw’ in the judgment, and ‘[o]ur careful review of the record 2 persuades us that the trial was fundamentally fair and its determination reliable.’ (People v. Millwee (1998) 18 Cal.4th 96, 168.) 3 In some cases, although no single trial error is sufficiently prejudicial to warrant 4 reversal, the cumulative effect of several errors may still prejudice a defendant so much 5 that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th 6 Cir. 2003). Where there is no single constitutional error existing, nothing can accumulate 7 to the level of a constitutional violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th 8 Cir. 2002) (overruled on other grounds). 9 There has been no showing that the combined effect of alleged errors “so infected 10 the trial with unfairness as to make the resulting conviction a denial of due process.” 11 Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The state court’s rejection of this 12 claim was reasonable and is therefore entitled to AEDPA deference. This claim is 13 DENIED. 14 CONCLUSION 15 The state court’s adjudication of Horton’s claims did not result in decisions that 16 were contrary to, or involved an unreasonable application of, clearly established federal 17 law, nor did they result in decisions that were based on an unreasonable determination of 18 the facts in light of the evidence presented in the state court proceeding. Accordingly, the 19 petition is DENIED. 20 A certificate of appealability will not issue. Reasonable jurists would not “find the 21 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 22 McDaniel, 529 U.S. 473, 484 (2000). Horton may seek a certificate of appealability from 23 the Ninth Circuit. 24 Horton’s motions inquiring about the status of his traverse are GRANTED. (Dkt. 25 Nos. 35 and 37.) The traverse is deemed timely filed. 26 The Clerk shall terminate all pending motions, enter judgment in favor of 27 1 || respondent, and close the file. 2 IT IS SO ORDERED. 3 |) Dated: June 14, 2021 i . \f OE ® 4 LIAM H. ORRICK 5 United States District Judge 6 7 8 9 10 11 a 12 13 16 Z 18 19 20 21 22 23 24 25 26 27 28