Slape v. Haase ( 2020 )

1 2 3 4 5 6 9 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 DARRELL SLAPE, 11 Case No. 16-05408 EJD (PR) Petitioner, ORDER DENYING PETITION FOR v. WRIT OF HABEAS CORPUS; 1 DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS 14 BOBBY HAASE, Warden, TO CLERK 2 15 Respondent. 16 17 Petitioner filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 18 challenging his state conviction. The Court found the petition (Docket No. 1, “Petition”), 19 || stated cognizable claims which merited an answer from Respondent. (Docket No. 12.) 20 || Respondent filed an answer on the merits. (Docket No. 18, “Answer.”) Petitioner filed a 21 || Traverse. (Docket No. 21, “Traverse.”) 22 For the reasons set forth below, the Petition for a Writ of Habeas Corpus is 23 || DENIED. 24 I. BACKGROUND 25 In May 2012, Petitioner was found guilty by a jury in Humboldt County Superior 26 || Court (“trial court”) of having committed sexual penetration by a foreign object, sexual 27 || battery by fraud, and misdemeanor battery, against multiple women. (See Pet. at 1.) On 28 || September 14, 2012, Petitioner was sentenced to seven years in prison. (See Ans. at 1; 1 || Ans. Ex. A at 839.') After less than three and one-half years in prison, Petitioner was 2 || released on February 20, 2016. (See Pet. at 2.) Petitioner filed the instant Petition while 3 || “at home on parole.” (Id.) 4 On July 30, 2014, the California Court of Appeal (“state appellate court”) affirmed 5 || the judgment in a reasoned opinion. (Ans., Ex. E; see also People v. Slape, No. A136669, 6 || 2014 WL 3735360, at *1 (Cal. Ct. App. July 30, 2014).) Petitioner did not pursue his 7 || appeal to the California Supreme Court. (See Ans. at 1.) 8 Petitioner filed a petition for a writ of habeas corpus in Humboldt County Superior 9 {| Court. (See Ans., Ex..G.) The petition was denied in a reasoned opinion. (See id.) 10 Petitioner filed a petition for a writ of habeas corpus in the California Court of 11 || Appeal for the First Appellate District. The petition was summarily denied. ge (212 Petitioner filed a petition for a writ of habeas corpus in the California Supreme - 13 |] Court. (See Ans., Ex. F.) The petition was summarily denied. (See id.) 14 On September 21, 2016, while on parole,” Petitioner filed the instant Petition. (See Oo 2 15 || Pet.) 16 I]. STATEMENT OF FACTS 17 The following facts are taken from the opinion of the state appellate court on direct 18 appeal: 19 Defendant committed his crimes against two victims, Jane Doe One and Jane Doe Two, while giving them massages at his 20 business. [FN 2] . 21 22 || ' Because Petitioner attached numerous exhibits to the Petition, and Respondent likewise attached exhibits to the Answer, the Court shall differentiate between exhibits by referring 23 || to them as “Petition Exhibit” or “Answer Exhibit.” ? The Ninth Circuit has held that, where a petitioner is on parole at the time his habeas 24 || petition is filed, this is sufficient to establish jurisdiction. See Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). That parole expires while the habeas petition is pending does 25 || not deprive the court of jurisdiction. See id. Moreover, continuing to be “subject to California’s sex offender registration requirement” is sufficient to prevent a case from 26 || becoming moot by the expiration of parole. Fowler v. Sacramento Cty. Sheriff's Dep't, 421 F.3d 1027, 1033 Crh Cir. 2005). 27 Accordingly, although petitioner is no longer in prison and is no longer on parole, the Court continues to have jurisdiction and this case is not moot due to the fact that 28 || Petitioner is a sex offender and required to register as such under California law. 1 [FN 2: In his briefing on appeal, defendant almost entirely ignores the facts underlying his 2 convictions, instead limiting his “Statement of Facts” to an explanation of his massage therapy 3 practice, a discussion of his hearing difficulties, a discussion of the testimony that his proposed 4 expert witnesses would have provided, and a summary of the procedural history of the case. 5 _ While recital of the facts of this case can be discomfiting, these facts are necessary to an 6 understanding of the issues defendant raises on appeal, particularly his challenge to the 7 exclusion of expert evidence on “referred sensation.” We remind defendant’s counsel of 8 his obligation to set forth the significant facts in appellant’s opening brief. (Cal. Rules of Court, 9 rule 8.204(a)(2)(C).)] 10 Doe One had injured her psoas muscle, [FN 3] which caused 1] pain from her lower back down to her thigh, and in 2007 was referred to Back in Action (or Healthy Life Alternatives), a business owned by defendant. During her first appointment, defendant told her he would give her a massage, and directed her 1 to undress. He massaged the inside of her upper thighs as she lay on her back, and his hand brushed against her genitals a 14 couple of times. He suddenly put his fingers inside her vagina, directly onto the area that was painful, and she was immediately 15 in pain. A female physical therapist had performed internal massage of the knots inside Doe One’s vagina in the past, but 16 she had not given defendant permission to do so. 17 [FN 3: The psoas is “a large flexor muscle of the hip-joint which arises from the lumbar vertebrae Z 18 and sacrum and is inserted along with the iliac into the lesser trochanter of the femur.” (12 19 Oxford English Dict. (2d ed. 1989) p. 755.).] 20 Defendant told Doe One to lie on her stomach and told her to lift her hips off the table. He again inserted his fingers into her 21 vagina, causing her to have an orgasm. He told her to lie on her back again, asked her if he could massage her breasts, and did 22 so. After the massage, Doe One tried to behave normally. She wrote a check to pay for the massage, made more appointments, 23 and left. She was upset afterward, discussed the matter with her husband and pastor, and reported the incident to the police. Doe One had taken lorazepam (Adavan) that morning, and an 25 Ambien tablet the previous night. The lorazepam relieved stress, but she did not otherwise feel its effects. She had not 26 noticed any adverse effects from the Ambien, which helped her sleep. She had been prescribed, and occasionally took, other 27 medications for migraines (Maxalt and Soma) and Percocet, but 38 . . did not recall taking them before the incident. She also took Cortef, which she said was a hydrocortisone in tablet form, and l which she said caused no side effects other than weight gain. Defendant presented evidence that some of the medications Doe 2 One took acted as central nervous depressants and could affect 3 . memory. Jane Doe Two was a massage therapist. She sought treatment 4 for back problems in 2009, and defendant told her that since her insurance would not pay for his services, she could use some of 5 his business’s equipment if she gave him massages in return. After they spoke in his office, he told her he had a massage 6 certificate and suggested they trade half-hour massages. While defendant was massaging Doe Two, he asked if she knew where 7 her first “chakra” was. She said she did not, and he slipped his hand under the sheet covering her and under her underwear, and 8 put his hand and finger at the opening of her vagina. He asked er to put her hand to his other hand, and asked if she could feel 9 the vibration between them. She was upset, but after the massage she was afraid defendant might have locked the door or 10 that he might pursue her if she tried to leave, and she decided to give him a massage before leaving. As she did so, he told her il e wanted her to work on his chakra, took her hand, and placed —- it on his perineum. Doe Two told him she was not comfortable (12 with that, and he asked her to continue massaging him. After the massage, Doe Two made more appointments with defendant e 13 because she was frightened that he would lock her up if he knew a she was uncomfortable. She later reported the matter to the % 14 police. we 15 Michael Drew, who had taught defendant massage therapy in a 1996, testified that he taught his students that it is not appropriate A 16 to touch a client’s genitals or massage a woman’s breasts. However, internal or pelvic massage could be used as part of 17 “trigger point therapy,” [FN 4] to search for painful spots that might be referring pain to other areas. A massage therapist a 18 should only do so under the supervision of a doctor or other 9 licensed medical professional. [FN 4: Drew explained that people develop 20 - trigger points from overuse injuries or acute injuries. ] 21 Drew testified on cross-examination that there can be trigger 22 points in the perineal area. He also testified that it was possible that if a massage therapist activated a nerve in the lower spine 23 area, a sensation could be felt in the genital area, and that some of the nerves that run to the genital area might run through the 24 psoas muscle. If a cramped muscle was released, the client could feel both painful and pleasurable sensations in the 25 genitals. A client who was having referred sensation would feel it both where the pressure was applied and in the area to which 26 the sensation was referred. 27 _ Janette Johnson, a certified massage therapist and massage 38 therapy instructor, testified for the People as an expert in I massage therapy and professional standards of conduct. On cross-examination, she testified that when pressure was applied 2 to a “trigger point,” sensation could be referred to another site. When a muscle in the inner thigh area or perineum was 3 - activated, referred pain could be felt in the genitals. 4 M.G. testified that she received massage therapy from defendant in 1998, that he asked her to disrobe completely, and that over 5 time, he focused his massages more on her crotch area and her breasts. On several occasions, as he worked on pressure points 6 near her pubic area, he “hit” her genitals. After each massage, he would give her a hug in order to “crack [her] back,” and on 7 two occasions he kissed her. 8 Defendant testified in his own defense. He testified that he performed trigger point therapy on Doe One, and that it could be 9 painful. He found trigger points in her right hip area, and ‘relieved the entrapment that was preventing circulation of the 10 neuromuscular portion of her hip.” When an entrapment was released, the client could feel sensations throughout the body. The psoas muscle encompassed the vagina, and when it was released, the client could experience sensation in the genitalia, «(212 because “those nerves that go to the genitalia actually go through the psoas muscle.” This could result in a simulated orgasm. 13 While he was massaging Doe One, he got no closer than three 3 inches to her vagina, and he denied penetrating her. He 14 massaged her right upper quadrant, but denied touching her 2 breasts. When Doe One was on her stomach, he asked her to 2 15 push her hips up into his hand so he could determine how much 2 pressure she could withstand. He did not penetrate her as he did AQ 16 so, and he was not aware that she was having an orgasm. He believed both Doe One and Doe Two might have experienced < 17 referred sensation. a 18 Defendant testified that Doe Two told him she was a massage therapist and that they agreed to trade massages. He said he was 19 within a few inches of her genitals as he was massaging her, but denied touching them. He said Doe Two had asked for “chakra 20 _ infusion,” but that he was unable to “get to” chakra number one, located on the perineum, because of her body weight, so he went 21 to chakra number two, just above the navel. 22 Defendant also testified that as part of the therapy he received for the effects of a broken back, a massage therapist regularly 23 massaged his perineum. When Doe Two was massaging him, he placed her hand on his perineum. 25 || Slape, 2014 WL 3735360, at *1-3. 26 27 28 1 Ill. DISCUSSION 2 || A. Legal Standard 3 This Court may entertain a petition for a writ of habeas corpus “in behalf of a 4 || person in custody pursuant to the judgment of a State court only on the ground that he is in 5 || custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 6 || § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ may not be granted with 7 || respect to any claim that was adjudicated on the merits in state court unless the state g || court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or 9 || involved an unreasonable application of, clearly established Federal law, as determined by 10 || the Supreme Court of the United States; or (2) resulted in a decision that was based on an 11 || unreasonable determination of the facts in light of the evidence presented in the State court 12 proceeding.” 28 U.S.C. § 2254(d). E 13 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state 14 || court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question 15 || of law or if the state court decides a case differently than [the] Court has on a set of A 16 || materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The i 17 || only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the 1g || holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court 19 || decision. Williams, 529 U.S. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). 20 || While circuit law may be “persuasive authority” for purposes of determining whether a 21 || state court decision is an-unreasonable application of Supreme Court precedent, only the 22 || Supreme Court’s holdings are binding on the state courts and only those holdings need be 23 || “reasonably” applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir), overruled on other 24 || grounds by Lockyer v. Andrade, 538 U.S. 63 (2003). 25 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the 26 || writ if the state court identifies the correct governing legal principle from [the Supreme 27 || Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s 28 1 || case.” Williams, 529 U.S. at 413. “Under § 2254(d)( 1)’s ‘unreasonable application’ 2 || clause, ...a federal habeas court may not issue the writ simply because that court 3 || concludes in its independent judgment that the relevant state-court decision applied clearly 4 || established federal law erroneously or incorrectly.” Id. at 411. A federal habeas court 5 || making the “unreasonable application” inquiry should ask whether the state court’s 6 || application of clearly established federal law was “objectively unreasonable.” Id. at 409. 7 || The federal habeas court must presume correct any determination of a factual issue made g || by a state court unless the petitioner rebuts the presumption of correctness by clear and 9 || convincing evidence. 28 U.S.C. § 2254(e)(1). 10 Here, as-‘noted above, the California Supreme Court summarily denied Petitioner’s 11 || petitions for review. See supra at 2; (Ans., Ex. F). The Superior Court of California for a 12 the County of Humboldt (“Humboldt Court”), on collateral review, addressed all the E 13 || claims in the instant petition. (Ans., Ex. G.) The Humboldt Court found some of the 14 || claims to be procedurally barred, and referred others to the appellate‘court for 3 15 || consideration. (See id.) The appellate court and the California Supreme Court then denied a 16 || all of Petitioner’s claims without comment. 5 17 As to the procedural bars, the Humboldt Court was the highest court to have 18 || reviewed the claims in a reasoned decision, and it is that decision that this Court reviews 19 || herein. See YIst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 20 || F.3d 1085, 1091-92 (9th Cir. 2005). 21 As to the claims that the Humboldt Court referred to the appellate court, because 22 || there is no reasoned opinion on collateral review, this Court “must determine what 23 || arguments or theories supported or, as here, could have supported, the state court’s 24 || decision; and then it must ask whether it is possible fairminded jurists could disagree that 2§ || those arguments or theories are inconsistent with the holding in a prior decision of this 26 || Court.” Harrington v. Richter, 562 U.S. at 101. Accordingly, as to the substance of 27 28 1 || Petitioner’s claims, where there is no reasoned decision on collateral review, the Court will 2 || largely refer to the state appellate court’s opinion on direct review. 3 The Supreme Court has vigorously and repeatedly affirmed that under AEDPA, 4 || there is a heightened level of deference a federal habeas court must give to state court 5 || decisions. See Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam): Harrington v. 6 || Richter, 131 S. Ct. 770, 783-85 (2011); Felkner v. Jackson, 131 8. Ct. 1305 (2011) (per 7 || curiam). As the Court explained: “[o]n federal habeas review, AEDPA ‘imposes a highly g || deferential standard for evaluating state-court rulings’ and “demands that state-court 9 || decisions be given the benefit of the doubt.’”” Id. at 1307 (citation omitted). With these 10 || principles in mind regarding the standard and limited scope of review in which this Court 11 || may engage in federal habeas proceedings, the Court addresses Petitioner’s claims. g «(12 B. Claims and Analysis E 13 - The Petition raised, and the Court found cognizable, the following grounds? for 5 14 || federal habeas relief: 15 (1) actual innocence on the basis that certain elements of Petitioner’s crimes were A 16 || not met (“Claim 1”); 5 17 (2) ineffective assistance of trial counsel on grounds not presented on direct appeal Z 18 || (“Claim 2”); 19 (3) the trial court erred in admitting prejudicial propensity evidence of “unproven 20 || prior accusation” to prove intent (“Claim 3”); 21 (4) ineffective assistance of trial counsel on grounds presented on direct appeal 22: || (“Claim 4”); 23 (5) the trial court erred in excluding the testimony of two expert witnesses for the 24 || defense (“Claim 5”); 25 (6) inadequate jury instructions (“Claim 6”); 26 ——————q— 38 ate ‘out notes that Respondent conceded timeliness and exhaustion as to all claims. 1 (7) failure to provide accommodations for his hearing disability (“Claim 7”); 2 (8) failure to give jury instructions on defense arguments (“Claim 8”); 3 (9) he was not given proper notice of the charges against him (“Claim 9”), 4 (10) ineffective assistance of appellate counsel (“Claim 10”); and 5 (11) new evidence establishes that the trial court’s exclusion of defense expert 6 || witnesses resulted in an unfair trial (“Claim 11”). 7 1. Procedurally Defaulted Claims 8 Respondent argues that Claims 1, 3, 6, 8, and 9 have been procedurally defaulted. 9 || (See Ans. at 10-11.) For the sake of efficiency, the Court will address this argument 10 || before considering the merits of petitioner’s claims. 11 A federal court will not review questions of federal law decided by a state court if || the decision also rests on a state law ground that is independent of the federal question and i 13 || adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729-30 5 14 || (1991). In the context of direct review by the United States Supreme Court, the “adequate 3 15 || and independent state ground” doctrine goes to jurisdiction; in federal habeas cases, in 16 || whatever court, it is a matter of comity and federalism. Id. The procedural default rule is 17 || aspecific instance of the more general “adequate and independent state grounds” doctrine. 18 || Wellsv. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994). In cases in which a state prisoner has 19 || defaulted his federal claims in state court pursuant to an independent and adequate state 20 || procedural rule, federal habeas review of the claims is barred unless the prisoner can . 21 || demonstrate cause for the default and actual prejudice as a result of the alleged violation of 22 || federal law, or demonstrate that failure to consider the claims will result in a fundamental 23 || miscarriage of justice. Coleman, 501 U.S. at 750. 24 a. Claims 1, 3, 6, 8, and 9 have been procedurally defaulted 25 The Humboldt Court found that Claims 1, 3, 6, 8, and 9 could have been, but were 26 |] not, raised on direct appeal. (See Ans., Ex. G at 12-14.) Accordingly, these claims had 27 || been procedurally defaulted under In re Dixon, 41 Cal. 2d 756 (1953). (See id.) 28 Dixon provides that to bring a claim in a state habeas corpus action a petitioner 2 || must first, if possible, have pursued the claims on direct appeal from his or her conviction 3 || unless the claim falls within certain exceptions.* See Park v. California, 202 F.3d 1146, 4 || 1151 (9th Cir. 2000). This is known as the “Dixon rule.” See id. 5 The Dixon rule is an adequate state procedural rule. Johnson v. Lee, 136 S. Ct. 6 || 1802, 1803-04 (U.S. May 31, 2016). Because the Humboldt Court expressly invoked 7 || Petitioner’s failure to raise these claims on direct appeal as the sole reason for dismissing 8 || them, citing state procedural rules without reference to federal law, this ground was 9 || independent. See Coleman, 501 U.S. at 729-30. Ifa state court denies a habeas claim on 10 || Dixon grounds, as the Humboldt Court did here, the Supreme Court has held that federal 11 || habeas review is barred. See Johnson, 136 S. Ct. at 1804 (noting that Dixon is a well- 12 established procedural bar that is adequate to bar federal habeas review). 13 Because the United States Supreme Court has specifically held that Dixon rule O14 “bar[s] federal habeas review,” Johnson 136 S. Ct. at 1806, and because the Humboldt 3 15 || Court relied only on Dixon in rejecting Claims 1, 3, 6, 8, and 9, this Court cannot reach the A 16 || merits of Claims 1, 3, 6, 8, and 9.5 See Coleman, 501 U.S. at 729-30. 17 b. The procedural default is not excused. Z 18 There is an exception to procedural default, which applies when a petitioner shows 19 || that there is “cause” for the failure to comply with the state procedural rule and “prejudice” 20 || arising from the default, or that the failure to consider the claim will result in a 21 || fundamental miscarriage of justice. Coleman, 501 U.S. at 750. To establish cause, a 22 || petitioner must show that “some objective factor external to the defense impeded counsel’s 23 24 || 4 The exceptions to the Dixon rule are (1) fundamental constitutional error; (2) lack of jurisdiction over the petitioner; (3) the trial court’s acting in excess of its jurisdiction or 25 an intervening change in the law. See In re Harris, 5 Cal. 4th 813, 828 n.7 (1993) identifying exceptions). Petitioner acknowledges in the Traverse that the Humboldt Court 26 || considered the Harris exceptions. (See Traverse at 17.) The Court agrees with the Humboldt Court that none of the exceptions to the Dixon rule apply to the instant petition. 27 (See Ans., Ex. G, passim, discussing Harris exceptions.) Even if these claims were not procedurally barred, the Court would find that they fail on 28 || the merits for the reasons given, infra. 1 || efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 2 || (1986) (emphasis added). To establish a “fundamental miscarriage of justice,” a petitioner 3 || must demonstrate “a constitutional violation has probably resulted in the conviction of one 4 || who is actually innocent.” Wood v. Ryan, 693 F.3d 1104, 1117-18 (9th Cir. 2012) 5 || (internal quotation omitted). A claim of actual innocence is rarely met and must be based 6 || on reliable evidence not presented at trial. Casey v. Moore, 386 F.3d 896, 921 n.27 (9th 7 || Cir. 2004). 8 Here, Petitioner has established neither cause and prejudice,® nor a fundamental 9 || miscarriage of justice. . 10 i. Petitioner did not establish cause as to Claims 3, 6, 8, and 9. 11 Petitioner does not provide a persuasive explanation for why Claims 3, 6, 8, and 9 3 12 were not raised on direct appeal. E 13 Petitioner appears to argue that the procedural default is the result of his counsel’s 14 || ineffectiveness (see Pet. at 23.), but this argument fails. To serve as “cause,” the claim of 3 15 || ineffective assistance of counsel must have been presented as an independent claim to the 16 |} state courts. See Carrier, 477 U.S. at 489. 5 17 As to Claims 3 and 6, it appears that Petitioner did not argue to the Humboldt Court Z 18 || thathis procedural default was because of ineffective assistance of counsel. (See Ans., Ex. 19 || Gat 1-3 (summarizing Petitioner’s arguments to the Humboldt Court).) And although the 20 || Humboldt Court called Petitioner’s attention to the problem of procedural default, 21 || Petitioner did not argue to the California Supreme Court that Petitioner procedurally 22 || defaulted Claims 3 and 6 because of ineffective assistance. (See Traverse at 6 (“Petitioner 23 || is aware he needs to give adequate explanation for his procedural default”); see generally, 24 || Ans., Ex. F at 19-21 (arguing against propensity evidence, without referring to ineffective 25 || assistance of counsel); 24 (arguing that jury instructions were inadequate, without referring 26 6 If insufficient cause is shown, a court need not reach the prejudice question. Smith v. 28 || Baldwin, 510 F.3d 1127, 1147 (9th Cir. 2007). 1 || to ineffective assistance of counsel).) Because Petitioner failed to argue to any state court 2 || that his procedural default of Claims 3 and 6 was the product of ineffective assistance, 3 || Petitioner has failed to establish cause as to Claims 3 and 6. 4 As to Claims 8 and 9, Petitioner argued to the California Supreme Court that these 5 || claims arose because his trial counsel was ineffective. (See Ans., Ex. F at 13-14 (claiming 6 || that trial counsel was ineffective in not ensuring defense arguments were put to the jury), 7 || and 26 (claiming that trial counsel was ineffective in not arguing about notice).) However, 8 || Petitioner did not argue to the California Supreme Court that his appellate counsel was 9 || ineffective in failing to raise these specific issues on appeal. (See Ans., Ex. F at 1-142.) 10 || Instead, Petitioner raised the general argument that appellate counsel was ineffective in not - 11. || properly arguing trial counsel’s ineffectiveness. (See, e.g.. id. at 6-8, 123, 141.) This is 12 || insufficient to present a claim that appellate counsel was ineffective in not arguing about E 13 || jury instructions or notice, as is required to show cause for the default of Claims 8 and 9. 5 14 || See Resendez v. Robertson, No. 2:18-03801 ADS, 2019 WL 1297948, at *4 (C.D. Cal. 3 15 || Mar. 20, 2019) (“[B]efore Petitioner can argue in federal court that appellate counsel’s © 16 || failure to raise the issue on appeal is cause for excusing the procedural default, he must i 17 || allege in state court that his appellate counsel was ineffective for failing to raise the issue Z 18 || and exhaust that claim.”) (emphasis added); accord Benton v. Koenig, No. 19-CV-01446- 19 || JD, 2019 WL 6465143, at *3 (N.D. Cal. Dec. 2, 2019) (finding a claim procedurally 20 || defaulted when appellate counsel failed to raise the claim on appeal, and petitioner did not 21 || claim ineffective assistance of appellate counsel); see also Jackio v. Pfeiffer, No. 2:16-CV- 22 || 2812 WBS GGH, 2019 WL 130332, at *12 (E.D. Cal. Jan. 8, 2019) (finding a claim 23 || procedurally defaulted when the petitioner failed to “appeal on this ground and support it 24 || with record citations” because “Petitioner cannot simply claim that his appellate counsel 25 || was ineffective” in general terms), subsequently aff'd, 785 F. App’x 442 (9th Cir. 2019). 26 It is well-settled that a procedurally defaulted ineffective assistance of counsel 27 || claim is not cause to excuse the default of another habeas claim unless the petitioner can 28 1 || satisfy the cause and prejudice standard with respect to the ineffective assistance of 2 || counsel claim itself. See Edwards v. Carpenter, 529 U.S. 446, 451-51(2000); Cockett v. 3 || Ray, 333 F.3d 938, 943 (9th Cir. 2003). Here, because Petitioner did not argue in state 4 || court that his appellate counsel was ineffective in failing to raise Claims 8 and 9, see supra, 5 || Petitioner defaulted any claim that appellate counsel was ineffective on thus ground. 6 || Accordingly, Petitioner’s default of Claims 8 and 9 is not excused. 7 Petitioner appears to argue that his failure to raise a particularized ineffective 8 || assistance of appellate counsel claim should be excused under Martinez v. Ryan, 566 U.S. 9 || □ (2012). (See Traverse at 6-8 (arguing that Martinez applies).) In support, he cites a 10 || Ninth Circuit case that applied Martinez to claims of ineffective appellate counsel. (See id. 11 || (quoting Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013).) However, the United «(12 States Supreme Court has since decided that Martinez does not extend to the situation E 13 || presented here. See Davila v. Davis, 137 S. Ct. 2058 (2017); see also Hurles v. Ryan, 914 14 || F.3d 1236, 1238 (9th Cir. 2019) (recognizing that Nguyen is no longer controlling, post-. 2 15 || Davila). In Davila, the United States Supreme Court explained that Martinez applied to 16 || defaulted claims of ineffective trial counsel, but did not salvage procedurally defaulted i 17 || claims of ineffective appellate counsel. See Davila, 137 S. Ct. at 2065-70; accord Easter v. 18 Franke, 694 F. App’x 540, 541 (9th Cir. 2017) (“Davila holds that federal habeas courts 19 || cannot hear procedurally defaulted claims of ineffective assistance of appellate counsel.”). 20 || The Ninth Circuit has since held that claims of ineffective appellate counsel are barred 21 || when not properly raised in state court, even if the petitioner was acting pro se when the 22 || claim was defaulted. See Senior v. Gilbert, 720 F. App’x 882, 883 (9th Cir.) (“The fact 23 || that Senior was appearing pro se when he failed to exhaust his ineffective assistance of 24 || counsel claim at the Washington Supreme Court is of no effect.”), cert. denied sub 25 || nom. Senior v. Haynes, 139 S. Ct. 271 (2018). 26 Accordingly, Petitioner’s failure to claim in state court that appellate counsel was 27 || ineffective in not presenting Claims 8 and 9 bars any such claim here. 28 1 Because Petitioner did not preserve a claim that appellate counsel was ineffective 2 |; with regard to propensity evidence, jury instructions, or notice, Petitioner is unable to show 3 || cause for his procedural default of Claims 3, 6, 8, and 9. 4 ii. Petitioner established cause, but not prejudice, as to Claim 1. 5 Unlike his other procedurally defaulted claims, Petitioner did argue to the California 6 || Supreme Court that his appellate counsel was ineffective in failing to argue that the elements of Petitioner’s crimes were unsatisfied. (See Ans., Ex. F at 4-6.) Petitioner has 8 || thus established cause for his procedural default of Claim 1. However, Petitioner cannot 9 || establish prejudice. See generally Davila, 137 S. Ct. at 2065 (“It has long been the rule 10 || that attorney error is an objective external factor providing cause for excusing a procedural 11 || default only if that error amounted to a deprivation of the constitutional right to □□□□□□□□□□ (citation omitted). 5 13 Petitioner bears the burden of showing, not merely that errors at his trial created a 5 14 || possibility of prejudice, but that they “worked to his actual and substantial disadvantage, 3 15 || infecting his entire trial with error of constitutional dimensions.” United States v. Frady, Q 16 || U.S. 152, 170 (1982). Petitioner must show with “reasonable probability” that the 5 17 || outcome of the trial would have been different. See Frost v. Gilbert, 835 F.3d 883, 890 18 (9th Cir. 2016) (citing Strickler v. Greene, 527 U.S. 263, 296 (1999)) (finding no prejudice 19 || where evidence of guilt was so overwhelming, which included petitioner’s own □ 20 || incriminating testimony, that there was no “reasonable probability” that jury would have 21 || acquitted petitioner based on a duress defense had they learned of additional impeachment 22 || evidence for one prosecution witness). 23 Here, Petitioner urges that his trial and appellate counsel were ineffective in failing 24 || to argue that the elements of Petitioner’s crimes were not satisfied. As Respondent notes _ 25 |] in the Answer, the jury is charged with deciding “whether the evidence satisfied those 26 || elements,” and “[t]he jury instructions, not the arguments of counsel, are what control the 27 || jury’s assessment of the evidence.” (Ans. at 16.) The Court agrees with Respondent; 28 . 1 || Petitioner cannot disguise a challenge to jury instructions as a new claim in order to 2 {| circumvent his procedural default. 3 In any event, for the reasons discussed infra, the Court concludes that Petitioner’s 4 || trial and appellate counsel were not ineffective. Quite simply, “[g]iven the evidence of 5 || guilt presented at trial, there is no ‘reasonable likelihood’ that” arguments from counsel 6 || regarding the elements of the crime “could have ‘affected the judgment of the jury.’”” 7 || Frost, 835 F.3d at 890. Accordingly, Petitioner has failed to demonstrate prejudice, and 8 || Claim 1 is procedurally defaulted. iii. Petitioner has not established a miscarriage of justice. 10 If a state prisoner cannot meet the cause and prejudice standard, a federal court may 11 || still hear the merits of the procedurally defaulted claims if the failure to hear the claims 12 || would constitute a “miscarriage of justice.” See McQuiggin v. Perkins, 569 U.S. 383, 391- E 13 {| 92 (2013). The Supreme Court limits the “miscarriage of justice” exception to habeas 6 14 || petitioners who can show that “a constitutional violation has probably resulted in the 3 15 |} conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995). . 16 || Under this exception, a petitioner may establish a procedural “gateway” permitting review i 17 || of defaulted claims if he demonstrates “actual innocence.” Schlup, 513 U.S. at 316 & 18 |] 0.32. [I]f a petitioner . . . presents evidence of innocence so strong that 19 a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless 20 constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying 21 claim. 22 || Id. at 316. The required evidence must create a colorable claim of actual innocence, that 23 || the petitioner is innocent of the charge for which he is incarcerated, as opposed to legal 24 || innocence as a result of legal error. Id. at 321. “To be credible, such a claim requires 25 || petitioner to support his allegations of constitutional error with new reliable evidence— 26 || whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 27 || physical evidence—that was not presented at trial.” Id, at 324. Because a Schlup claim 28 1 || involves evidence the trial jury did not have before it, the inquiry requires the federal court || to assess how reasonable jurors would react to the overall, newly supplemented record. Id. 3 Although Petitioner recites that he has “new” evidence (see Pet. at 7, 87-88), a 4 || review of the record reveals that Petitioner has nothing of the kind. First, the supposedly 5 || new evidence is not new at all. Instead, the document Petitioner proffers is a medical 6 || narrative dated well before Petitioner’s criminal trial. (See Pet., Ex. AA (dated May 22, 7 || 2007).) A document generated before Petitioner was even indicted hardly counts as 8 || “new.” 9 Moreover, the record suggests that this document — or one with similar content — 10 || was available to defense counsel. Petitioner contends the document shows that one of his 11 || victims, Jane Doe #1, had PTSD and was therefore an untrustworthy witness. (See Pet. at 12 || 7, 87-88.) Before trial, the prosecution filed a motion in limine to exclude testimony E 13 || regarding Jane Doe #1’s alleged PTSD, which defense counsel had announced he would 5 14 || use to impeach Jane Doe #1’s testimony. (See Ans., Ex. A at 326-28.) Thus, not only did 15 || defense counsel have access to the information contained in the supposedly new document, A 16 || defense counsel attempted to introduce that information at trial. E 17 Second, there is no information regarding the authenticity or admissibility of this Z 18 || document. Under Schlup, a petitioner must prevent “new reliable evidence” to support a 19 || miscarriage of justice argument. Schlup, 513 U.S. at 324 (emphasis added). Petitioner has 20 || not presented any facts or argument to suggest that this document is “reliable.” 21 Third, even if the document were new and reliable, it does not support the argument 22 || Petitioner puts forward. Although Petitioner contends the document shows that one of his 23 || victims was not credible due to psychological conditions, the document appears to concern 24 || the physical health of the victim, rather than her mental health, and appears to have been 25 || generated by a medical doctor, rather than a psychologist or psychiatrist. 26 Because this document is not new, is not reliable evidence, and does not show that 27 || Petitioner is factually innocent, it is not “new evidence of innocence” as required for the 28 1 || Court to find there has been a miscarriage of justice.’ See Schlup, 513 U.S. at 316 2 || (“Without any new evidence of innocence, even the existence of a concededly meritorious 3 || constitutional violation is not in itself sufficient to establish a miscarriage of justice that 4 || would allow a habeas court to reach the merits of a barred claim.”). 5 The Ninth Circuit has recognized that the petitioner bears the burden of establishing 6 || cause and prejudice, or a fundamental miscarriage of justice. See Madrid v. Gregoire, 187 7 || F.3d 648 (9th Cir. 1999) (finding petitioner had not borne his burden of establishing 8 || cause); Woolery v. Arave, 8 F.3d 1325, 1331 (9th Cir. 1993) (“the burden of showing 9 || ‘cause and prejudice’ is on the petitioner”); Blumberg v. Cal. Med. Facility, 967 F.2d 584 10 || (9th Cir. 1992) (“The burden is on the petitioner to show cause and prejudice.”). Because 11 || Petitioner did not carry this burden, Claims 1, 3, 6, 8, and 9 have been procedurally 12 || defaulted. 13 Accordingly, Petitioner is not entitled to relief on Claims 1, 3, 6, 8, and 9. 5 14 2. Merits Claims 15 Because the Court concludes that Claims 1, 3, 6, 8, and 9 have been procedurally 4 16 |] defaulted, the claims that will be analyzed on the merits are: (2) and (4) that trial counsel 17 || was ineffective; (5) that the trial court erred in excluding defense experts’ testimony; (7) - Z 18 || that the trial court failed to provide accommodations for petitioner’s hearing disability; 19 || (10) that appellate counsel was ineffective; and (11) that new evidence establishes the 20 || exclusion of defense expert testimony resulted in an unfair trial. 21 The Court will first discuss Petitioner’s claim that the trial court did not 22 || accommodate Petitioner’s hearing disability (Claim 7). The Court will next discuss 23 || Petitioner’s claims that the trial court erred in excluding defense expert testimony, and that 24 || new evidence establishes this exclusion resulted in an unfair trial (Claims 5 and 11). 25 26 || 7’ For the same reasons, were Claim 1 not procedurally defaulted, it would fail on the 27 || cognizable. See Williams v. Pennsylvania, 1368: Ct-1899, 1921 (2016) (noting the 38 Pnited ptates Supreme Court has not held a freestanding actual innocence claim may be 1 || Finally, the Court will discuss Petitioner’s claims regarding the ineffectiveness of trial 2 || (Claims 2 and 4) and appellate counsel (Claim 10). 3 c. Disability Accommodation Claim 4 In Claim 7, Petitioner argues that he received constitutionally inadequate 5 || accommodation for his hearing disability. (See Pet. at 5, 9, 27, 124-26.) On direct appeal, 6 || the state appellate court considered and rejected this argument: 7 Defendant contends the accommodations made for his hearin disability deprived him of a fair trial. (People v. Guillory (1 9605 8 178 Cal.App.2d 854, 861 [trial judge should afford deaf defendants reasonable facilities for confronting: and cross- 9 examining witnesses].) The requirement of reasonable accommodations has been codified in Civil Code section 54.8, 10 which requires trial court to provide, upon request, “a functioning assistive listening system or a computer-aided 1 transcription system.” «(212 Our high court considered and rejected a similar contention in People v. Freeman(1994) 8 Cal.4th 450, 479-480 2B (Freeman ). The defendant there had hearing difficulties, and counsel and the trial court took repeated steps to resolve the 14 problem: the court ordered medical treatment when the defendant requested it and made sure he got batteries for his hearing aids, and the defendant was given a daily transcript of the proceedings. (id. at p. 479.) Moreover, “except for a few 16 scattered early occasions, whenever defendant was spoken to he responded with no apparent hearing difficulty.” (/bid.) Even if 17 he occasionally failed to hear something, the high court reasoned, there was no reason to assume he missed anything of a 18 significance or could not participate effectively in the 19 proceedings. ( /bid.) The trial court here was aware that defendant needed 20 accommodations for his hearing disability, and provided them. As the court explained in denying the motion for new trial, 21 defendant was in fact provided with both the accommodations specified in Civil Code section 54.8. He was able to view a 22 computer-aided transcription system, a “realtime feed,” and he had the use of a headset, although he asserted in his motion for 23 new trial that it did not allow him to hear voices adequately. The trial judge also stated that he was aware of defendant’s hearing 24 difficulties and as a result “did purposely and intentionally throughout the proceeding observe Mr. Slape,” and that he 25 appeared to be reading along to the realtime. When he was testifying, defendant said on a few occasions that he could not 26 hear a question, but otherwise responded to questions posed by__. counsel, and the trial judge stated that in his opinion, defendant 27 had “no trouble hearing or answering any of the questions asked 38 in an appropriate witness-to-examiner response, none.” Here, as od in Freeman, defendant has not shown he was prejudiced or 5 enied a fair trial. (Freeman, supra, 8 Cal.4th at pp. 479-480.) 3 || Slape, 2014 WL 3735360, at *9-10. 4 First, Petitioner’s claim is belied by the record. The record reveals that Petitioner 5 || was granted accommodations for his hearing disability, in the form of access to a realtime 6 || transcript and the use of a headset. (See Ans., Ex. B at 103-04, 918:23-919:27.) The 7 || record shows that Petitioner made use of the realtime transcript throughout the trial. (See 8 || Ans., Ex. B at 917-18.) Although Petitioner now argues that the realtime transcript 9 || provided inadequate accommodation, Petitioner makes no mention of his use of the 10 || headset. (See generally, Pet. & Traverse.) In addition, although Petitioner argues he was 11 |} not offered accommodation while giving his own testimony (see Pet. at 125), the record 3 12 || reveals that Petitioner did have available the accommodation of a headset while testifying 13 || but chose not to use it, and did not request the use of a realtime transcript while testifying 14 || (See Ans., Ex. B at 919:14-19). It is therefore apparent from the record that Petitioner was 3 15 || offered, and used, disability accommodation throughout his criminal trial. See Slape, 2014 16 || WL 3735360, at *10 (“defendant was in fact provided with both the accommodations E 17 || specified in Civil Code section 54.8”). Indeed, the Court notes that the California only Zz 18 requires an “individual who is deaf or hard of hearing” to “be provided with a functioning 19 || assistive listening system or a computer-aided transcription system.” See Cal. Civ. Code § 20 || 54.8(a) (emphasis added). As Petitioner was provided with both, he appears to have 21 || received more accommodation than that required under California law. Petitioner’s claim 22 || that he was not given disability accommodation therefore fails. See Guillory v. Wilson, . 23 || 402 F.2d 34, 35 (9th Cir. 1968) (rejecting, where a trial court “attempted to accommodate 24 || the appellant,” and “[nJo further objection was made, and there was no indication that 25 || appellant was having any difficulty hearing,” a claim that appellant was deprived of his 26 || constitutional rights because he had difficulty hearing the trial). 27 28 1 Second, as Respondent notes, there does not appear to be any United States 2 || Supreme Court authority that would allow Petitioner to receive habeas relief on this claim. 3 || “Section 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court’s 4 || jurisprudence.” Williams v. Taylor, 529 U.S. 362, 412 (2000). “A federal court may not 5 || overrule a state court for simply holding a view different from its own, when the precedent 6 || from [the Supreme Court] is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17 7 || (2003). “Given the lack of holdings from [the United States Supreme] Court regarding” 8 || Petitioner’s claim, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly 9 || established Federal law.’” Carey v. Musladin, 549 U.S. 70, 77 (2006). Thus, even if 10 || Petitioner’s claim did not fail on the facts, Petitioner’s claim would fail as a matter of law. 11 || See Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004) (affirming denial of a habeas 12 || petition, where the Supreme Court had yet to decide the issue raised by petitioner). . . . & 13 Accordingly, Petitioner is not entitled to relief on Claim 7. a d. Defense Expert Claims 2 15 In Claim 5 and 11, Petitioner argues that the trial court erred in excluding the A 16 || testimony of defense expert witnesses, and that new evidence establishes this exclusion 5 || resulted in an unfair trial. (See Pet. at 7, 14-18, 82-84, 104-05.) The allegedly new Z 18 || evidence was not before the state appellate court and so was not discussed on direct appeal. 19 || However, on direct appeal the state appellate court considered and rejected the argument 20 || that the trial court erred in excluding certain experts: 21 Defendant contends the trial court abused its discretion in excluding evidence by two proposed experts, Dr. Podboy, a 22 clinical and forensic psychologist, and Dr. Harry Friedman, a 33 doctor of osteopathy. 4 1. Background Defendant sought to introduce the testimony of Dr. Podboy at 25 trial on “the issue of perception and memory as affected by prior _ trauma.” According to defense counsel’s declaration, the expert 26 testimony would “inform the jury of various psychological factors that affect perception and the reliability of memory.” 27 This included an explanation that “current perceptions can be 33 affected by psychological experiences at the time of the event,” 1 and that “[mJemory of current perceptions will be influenced by intrusive past feelings regarding similar events.” The expert 2 would also testify that massage could cause flashbacks of memories of past sexual assaults and a person might confuse 3 memories and past and current events. Dr. Podboy was also expected to testify that trigger point massage causes referred 4 pain, and that trigger points “usually send their pain to some other site.” 5 It appears that both Doe One and Doe Two had suffered sexual assault in the past. In argument to the trial court, defense counsel 6 described the nature of Dr. Podboy’s anticipated evidence about Doe One as follows: “We need testimony that posttraumatic 7 stress sufferers can relive these past memories and can have confusion with these memories. if Also that’s going to be clear 8 that she was in a great deal of pain, and I think we need evidence that stressors such as pain can cause the memory and the mind 9 to relive these events that are associated with this pain, and we need expert opinion regarding that fact. i We have the issue 10 of psychotic transference, where she sees things that are just not true. And he can testify that it’s not unusual for people who have 11 posttraumatic stress disorder to have a psychotic transfer where » she imagines things or has delusions about what reality is all aw (12 about. [] ... [J] There’s evidence from her doctor that she was □ being treated, that she has sexual abuse in her history and that 13 she’s suffering from posttraumatic stress from that injury. She has anxiety and depression as well. [{] All of those are going P14 to affect her ability to perceive, and it’s these unresolved psychological problems that she has [that] can be taken out 15 against Darrel Slape, that she has these incidents in her 2 background where she was assaulted sexually. [J] She wants to A 16 regain control over her life, and psychologically replaces Darrell -Slape as those abusers in the past and takes out her anger and 17 her hostility against him. [{] All of those are issues that Dr. 5 Podboy can address.” Defense counsel also informed the court 18 that Doe Two suffered from spina bifida, that the condition could impair thinking and memory, and that Dr. Podboy would “19 testify about those effects. 20 Defendant sought to introduce Dr. Friedman’s testimony “regarding referred sensation in the massage experience from 21 trigger-point massage.” His counsel explained that referred sensation meant that “a touching in one part of the body will 22 cause a sensation in another part of the body.” 23 The court excluded the testimony of Dr. Podboy and Dr. Friedman, reasoning that the question of whether people can misperceive events was within the province of the jury and was not an appropriate subject of expert testimony. The court also 25 concluded that a theory that massage released past memories was “a, quite frankly, stretch,” but told defense counsel each of 26 the victims could be questioned about how other massages had affected them. 27 28 During the court’s ruling, defense counsel twice tried to present further argument about the admissibility of Dr. Podboy’s 2 testimony, but the trial court refused to hear it. Defense counsel again raised the issue of whether expert testimony on referred 3 sensation would be allowed, and the trial court ruled it 4 inadmissible, stating it was “a stretch for ... expert testimony.” 5 2. Discussion “[E]xpert psychiatric testimony may be admissible to impeach 6 the credibility of a prosecution witness where the witness’ mental or emotional condition may affect the ability of the 7 witness to tell the truth. The admissibility of such testimony rests within the discretion of the trial court. Generally, 8 however, attempts to impeach a prosecution witness by expert psychiatric testimony have been rejected [citations], except in 9 certain sex offense cases.” (People v. Cooks (1983) 141 Cal.App.3d 224, 302.(Cooks ), italics added.) [FN 6] As our 10 high court has explained, “there is a ‘judicial policy disfavoring attempts to impeach witnesses by means of psychiatric . testimony. [Citations.] California courts have viewed such examinations with disfavor because “‘[a] psychiatrist’s g 12 testimony on the credibility of a witness may involve many . dangers: the psychiatrist’s testimony may not be relevant; the 13 techniques used and theories advanced may not be generally a accepted; the Psychiatrist may not be in any better position to q evaluate credibility than the juror; difficulties may arise in communication between the psychiatrist and the jury; too much 15 reliance may be placed upon the testimony of the psychiatrist; partisan psychiatrists may cloud rather than clarify the issues; QO 16 the testimony may be distracting, time-consuming and costly.’” “« (People v. Chatman (2006) 38 Cal.4th 344, 375-376 g (Chatman ), italics added; see also People v. Alcala (1992) 4 Cal.4th 742, 781, People v. Marshall (1996) 13 Cal.4th 799, 835 4 (Marshall )). 19 [FN 6: The court in Cooks went on to note that section 1112, which postdated the sex offense 20 cases mentioned, prohibited the trial court from ordering the victim in a sexual assault 21 prosecution to submit to a psyoniatric or psychological examination in order to assess his 22 or her credibility. (Cooks, supra, 141 Cal.App.3d at p. 302, fn. 61; see also People v. 23 Anderson (2001) 25 Cal.4th 543, 575 [section 1112 overruled cases allowing psychiatric 24 examination of complaining witness in sex- crime case to assist in evaluating witness’s 25 credibility].)] 26 In excluding the proffered expert testimony of Dr. Podboy, the trial court relied explicitly on the rule 27 of Chatman, Marshall, and Cooks that attempts to impeach 38 witnesses through psychiatric testimony are disfavored. We see no abuse of discretion in this ruling. Dr. Podboy had no personal 1 knowledge of either Doe One or Doe Two, and his general testimony on the _ possible effects of sexual trauma on memory 2 raises several of the concerns enumerated in Chatman : the jury might Pisce too much reliance on opinions Dr. Podboy had 3 formed without even examining Doe One or Doe Two, the testimony could be so speculative as to cloud the issues, and 4 presentation of the evidence could be distracting and time- 5 consuming. Nor do we see any abuse of discretion in excluding the evidence 6 of Dr. Friedman. In any case, even if he should have been allowed to testify about referred sensation, defendant was able 7 to elicit testimony on this subject when cross-examuning two of the People’s own witnesses, as well as to present it in his own 8 testimony. Defendant has not shown he was prejudiced by the 9 trial court’s ruling. 10 || Slape, 2014 WL 3735360, at *4-6. 11 Petitioner contends that the exclusion of defense experts violated his Sixth and 3 12 || Fourteenth Amendment rights. (See Pet. at 14.) First, the United States Supreme Court € 13 || has acknowledged that the Constitution guarantees criminal defendants a meaningful a 5 14 || opportunity to present a complete defense. See Nevada v. Jackson, 133 S.Ct. 1990, 1992 2 15 |! (2013) (citations omitted). However, there is no clearly established federal law providing A 16 || that a state court’s discretionary decision to exclude testimony violates a defendant’s right 17 || to present a defense. See Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir.2009). Without 18 such clearly established federal law, Petitioner’s claim fails. 19 Second, the state appellate court reasonably determined that the trial court was 20 || within its discretion to exclude the evidence. The constitutional right to present a complete 21 || defense includes the right to present evidence, including the testimony of witnesses. 22 || See Washington v. Texas, 388 U.S. 14, 19 (1967). However, the right is only implicated 23 || when the evidence the defendant seeks to admit is “relevant and material, and... vital to 24 || the defense.” Id. at 16. 25 A review of the record reveals that Dr. Friedman’s proposed testimony was not 26 || vital. The same content was provided by other witnesses. (Compare Ans., Ex. A at 708- 27 || 09 (argument by Petitioner on appeal, that Dr. Friedman would have testified as to 28 1 || “referred sensation) with Ans. at 30-31 (cataloging testimony presented to the jury 2 regarding “referred sensation”).) 3 __ As to Dr. Podboy, in excluding his testimony the trial court relied on well- 4 || established California Supreme Court precedent disfavoring the impeachment of a witness 5 || through psychiatric testimony. (See Ans., Ex. B at 467 (citing People v. Chatman, 38 Cal. 6 || 4th 344 (2006), People v. Marshall, 13 Cal. 4th 799 (1996), and People v. Cooks, 141 Cal. 7 || App. 3d 224 (Ct. App. 1983)).) In that precedent, the California Supreme Court explained 8 || that such testimony is disfavored because the testimony of a psychiatrist who has not 9 examined a witness — as Dr. Podboy had not examined Petitioner’s victims — is of limited 10 || relevance; determining credibility is generally considered the province of the jury, and the 11 || jury may improperly rely too much on a psychiatrist’s testimony; and the testimony may g (12 be distracting, time-consuming, and costly. See Chatman, 38 Cal. 4th at 375-76 5 13 || (describing problems with testimony). 5 14 The United States Supreme Court has recognized that state and federal rulemakers 3 15 || have broad latitude under the Constitution to establish rules excluding evidence from A 16 || criminal trials. See Moses, 555 F.3d at 758-59. (internal quotation marks and citations 17 || omitted). The exclusion of testimony violates the right to prevent a defense only when the 18 || exclusion is “arbitrary or disproportionate to the purposes [the exclusionary rule applied is] 19 || designed to serve.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (internal citation 20 || and quotation marks omitted); Michigan v. Lucas, 500 U.S. 145, 151 (1991). Here, the 21 || exclusion of Dr. Podboy’s testimony was not arbitrary or disproportionate to the rule 22 || announced in Chatman; rather, Chatman appears to squarely apply to the instant 23 || circumstances. Accordingly, Petitioner has failed to demonstrate that the California 24 || appellate court was unreasonable in upholding the exclusion of Dr. Podboy’s testimony. 25 Third, Petitioner’s intended use of the expert testimony was to impeach the 26 || testimony of one of Petitioner’s victims. (See Ans., Ex. A at 326-29 (arguing against the 27 || introduction of this testimony for this purpose).) In Nevada v. Jackson the Supreme Court 28 1 || unambiguously held that ’[the Supreme] Court has never held that the Confrontation 2 || Clause entitles a criminal defendant to introduce extrinsic evidence for impeachment 3 || purposes.” 133 S.Ct. at 1994 (emphasis original). By contrast, the Court in Jackson noted 4 || that it is rare that the right to present a complete defense is violated by the exclusion of 5 || defense evidence under a state rule of evidence. Jackson, 133 S.Ct. at 1992. Rejecting a _ 6 || broader constitutional right to present evidence bearing on witness credibility, the Court 7 || held that the Confrontation Clause is generally satisfied by the defense’s opportunity 8 || “expose [testimonial] infirmities through cross-examination.” Id. at 1994 (citing Fensterer, 9 || 474U.S. at 22). Because Petitioner was able to cross-examine his victims, under Jackson, 10 || the trial court’s exclusion of the experts’ extrinsic impeachment testimony was not a 11 || violation of Petitioner’s constitutional rights. See Jackson, 133 S.Ct. at 1994; see 12 || Doughton v. Foulk, 584 Fed. App’x. 842, 842 (9th Cir. 2014). g 13 As to Petitioner’s contention that new evidence shows the exclusion of Dr. a Y 14 || Friedman’s and Dr. Podboy’s testimony was prejudicial, the document Petitioner seeks to ° 2 15 || introduce does not change the analysis. As explained, supra III.B.1.b.iii, Petitioner’s A 16 || evidence is not new, and would not have altered the outcome of Petitioner’s case. . . £ 17 Accordingly, Petitioner is not entitled to relief on Claims 5 and 11. Z 18 e. Claims of Ineffective Trial Counsel 19 In Claim 2 and 4, Petitioner argues that he received ineffective assistance of trial 20 || counsel. (See Pet., passim.) On direct appeal, the state appellate court considered and 21 || rejected some of the grounds on which Petitioner claims his trial counsel was ineffective, 22 |} ruling as follows: 23 Defendant contends he was deprived of effective assistance of counsel through his attorney’s failure to call or effectively 24 interview Dr. Podboy and Dr. Friedman. In support of defendant’s motion for a new trial, Dr. Podboy stated in a 25 declaration that defendant’s trial counsel appeare to have little knowledge of the psychological histories of the victims, that he. 26 did not show interest when Dr. Podboy suggested he investigate spina bifida, and that he did not appear to have read the research 27 materials provided by Marsha Yates, a friend who was helping 38 defendant in the case. Yates submitted a declaration stating that 1 trial counsel did not seem aware of the issues related to spina bifida, that he said Podboy was “tainted” as a witness, and that 2 he.had not heard defendant’s version of events. Dr. Friedman _ stated in his declaration that he spoke with trial counsel once on 3 the phone and received correspondence from him, but otherwise had little contact with him about the details of his proposed 4d. testimony. "Establishing a claim of ineffective assistance of counsel 5 requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of 6 reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.c., □ 7 there is a ‘reasonable probability’ that, but for counsel’s failings, - defendant would have obtained a more favorable result.” 8 (People v. Dennis (1998) 17 Cal.4th 468, 540.) “A court must indulge a strong presumption that counsel’s acts were within the 9 wide range of reasonable professional assistance.” (Jd. at p. 541.) “Reviewing courts reverse convictions on direct appeal 10 on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpase 11 counsel’s omissions.” (People v. Lucas (1995) 12 Cal.4th 415, 442.) Moreover, “[i]f a defendant has failed to show that (12 the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining ~ 13 whether counsel’s performance was deficient.” (People v. . Mayfield (1997) 14 Cal.4th 668, 784.) Prejudice is established 14 when counsel’s performance “‘so undermined the proper 2 functioning of the adversarial process that the trial cannot be 15 - relied on as having produced a just result.” (lbid., a quoting Strickland v. Washington (1984) 466 U.S. 668, 686.) A 16 Prejudice must be proved as a demonstrable reality, not simply speculation. (People v. Williams (1988) 44 Cal.3d 883, 937.) a 5 Defendant has not met his burden to show his counsel’s failure a 18 to inquire further of the proposed expert witnesses or to call them at trial prejudiced him. Trial counsel adequately informed 19 the trial court of the substance of Dr. Podboy’s proposed testimony, and argued vigorously for its admission. Based on 20 its own analysis of the law, the trial court ruled the evidence inadmissible. Trial counsel also explained that Dr. Friedman 21 would testify about referred sensation. It would be pure speculation to conclude that the trial court would have admitted 22 the testimony of either proposed expert if trial counsel had prepared more thoroughly. Moreover, as we have noted, 23 defendant was able to elicit from two prosecution witnesses testimony that pressure in one part of the body during massage 24 could cause sensation in another part of the body, including painful and pleasurable sensations in the genitals. Because 25 defendant has not shown prejudice, we need not consider whether his counsel’s performance was in fact deficient. 27 || Slape, 2014 WL 3735360, at *6—7. 28 1 In addition to trial counsel’s alleged failures with respect to expert witnesses, 2 || Petitioner now asserts that trial counsel was ineffective in not arguing that the elements of 3 || Petitioner’s crimes were unmet and the jury instructions inadequate, failing to object to the _ 4 || introduction of propensity evidence and improper argument by the prosecution, and not 5 || arguing that Petitioner received supposedly improper notice of the charges against him. 6 || (See Traverse at 11-12; see also Ans. at 15-17 (attempting to decipher and respond to 7 || Petitioner’s rambling allegations).) 8 Petitioner’s claims are without merit. In order to prevail on a Sixth Amendment 9 || claim for ineffectiveness of trial counsel, Petitioner must establish two things. First, he 10 |] must establish that counsel’s performance was deficient, i.e., that it fell below an 11 || “objective standard of reasonableness” under prevailing professional norms. Strickland v. 3 12 || Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was 5 13 || prejudiced by counsel’s deficient performance, i.e., that “there is a reasonable probability 5 14 || that, but for counsel’s unprofessional errors, the result of the proceeding would have been 3 15 || different.” Id. at 694. A court need not.determine whether counsel’s performance was 16 || deficient before examining the prejudice suffered by the defendant as the result of the 17 || alleged deficiencies. Id. at 697. □ Zz 18 A “doubly” deferential judicial review is appropriate in analyzing ineffective 19 || assistance of counsel claims under § 2254. See Cullen v. Pinholster, 131 S. Ct. 1388, 20 || 1410-11 (2011); Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (same); Premo v. 21 || Moore, 131 S. Ct. 733, 740 (2011) (same). The general rule of Strickland, i.e., to review a 22 || defense counsel’s effectiveness with great deference, gives the state courts greater leeway 23 || in reasonably applying that rule, which in turn “translates to a narrower range of decisions 24 || that are objectively unreasonable under AEDPA.” Cheney v. Washington, 614 F.3d 987, 25 || 995 (9th Cir. 2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). When § 26 || 2254(d) applies, “the question is not whether counsel’s actions were reasonable. The 27 || question is whether there is any reasonable argument that counsel satisfied Strickland’s 28 1 || deferential standard.” Harrington, 131 S. Ct. at 788. Under a “doubly” deferential judicial 2 || review, the state appellate court did not unreasonably apply Strickland in rejecting 3 || Petitioner’s argument. See Pinholster, 131 S. Ct. at 1410-11; Harrington, 131 S. Ct. at 88. 4 As to the counsel’s supposed ineffectiveness with regard to expert witnesses, the 5 || Court has already concluded that the trial court did not err in excluding Petitioner’s 6 || experts. As the state appellate court noted, “[i]t would be pure speculation to conclude that 7 || the trial court would have admitted the testimony of either proposed expert if trial counsel 8 || had” behaved differently. Slape, 2014 WL 3735360, at *7. Moreover, Petitioner was able 9 || to introduce some of the experts’ evidence through other means. See id. Accordingly, 10 || Petitioner has shown neither that trial counsel was ineffective in being unable to get the 11 || experts’ testimony admitted, nor that the supposed ineffectiveness prejudiced Petitioner. ge «(212 As to Petitioner’s vague claim that trial counsel was inadequate in not arguing 13 || that the elements of Petitioner’s crimes were unmet, the Court agrees with Respondent: 14 || “(t]he jury instructions, not the arguments of counsel, are what control the jury’s 2 15 || assessment of the evidence.” Ans at 16. Petitioner has not established ineffectiveness or A 16 || prejudice on this ground. i 17 As to Petitioner’s argument that trial counsel should have challenged the jury Z 18 instructions, or requested different jury instructions, this argument fails.* First, the 19 || Court notes that the instructions as read to the jury are direct quotations of instructions 20 |} approved by the California Judicial Council. (See Ans., Ex. B at 779:27-807:8.) This 21 || undercuts Petitioner’s argument that the elements of Petitioner’s crimes were not clearly 22 || defined (see Pet. at 13), or any suggestions that the instructions were insufficient or 23 || confusing on their face. Moreover, Petitioner does not explain how the model instructions 24 || should have been modified to suit his particular case, or cite any authority to support a 25 || modification. (See generally, Pet.) 26 27 || ® As discussed, supra III.B.1.b.i, Petitioner procedurally defaulted Claims 6 and 8, which . challenged jury instructions. However, even had Petitioner not procedurally defaulted 28 || these claims, they would fail on the merits for the reasons stated] here. 1 Second, although Petitioner argues his counsel should have requested additional 2 instructions on consent as a defense (see id. at 23, 40, 42, 119, 122, 133), the defense 3 || theory at trial was that Petitioner’s sexual assaults “never happened.” (See Ans., Ex. B at 4 || 836:2-3.) It is well-established that counsel is not ineffective for deciding not to request 5 || jury instructions that are inconsistent with counsel’s trial theory. See Butcher v. Marquez, 6 || 758 F.2d 373, 377 (9th Cir. 1985) (“Defense counsel need not request instructions 7 || inconsistent with its trial theory.”) (additionally noting that a trial court does not err by not 8 || sua sponte giving such inconsistent instructions); accord Hollenback v. Ryan, 667 F. 9 || App’x 636 (9th Cir. 2016). Moreover, the jury heard directly from Petitioner’s victims 10 || that they had not consented to being sexually assaulted by Petitioner. (See Ans, Ex. B at 11 || 509:3-6, 654:24-26.) Petitioner’s counsel could have reasonably decided that, as 12 Petitioner’s victims expressly informed the jury they did not consent to Petitioner’s E 13 || assaults, requesting jury instructions on a consent defense would harm Petitioner’s case 5 14 || more than it would help. See, e.g., United States v. Gregory, 74 F.3d 819, 823 (7th Cir. 3 15 || 1996) (“[T]he decision not to request a limiting instruction is solidly within the accepted A 16 || range of strategic tactics employed by trial lawyers in the mitigation of damning evidence. 17 || Ifthe lawyer cannot stop the evidence from being admitted, it is perfectly rational to Z 18 || decide not to draw further attention to it... □□□ 19 As to Petitioner’s argument that trial counsel should have objected to the 20 || introduction of propensity evidence, the record shows that counsel did so. (See Ans., 21 Ex. B at 115:9-118:15.) Moreover, even if the evidence of Petitioner’s prior sexual 22 || misconduct had been excluded as propensity evidence, it would have been admissible as 23 || evidence regarding intent.? (See Ans. at 117:23-28 (the court, noting that the evidence was 24 || admissible to demonstrate intent).) Accordingly, Petitioner cannot show he was prejudiced 25 || by counsel’s inability to have this evidence excluded. See Hebner v. McGrath, 543 F.3d 26 27 || ? As discussed, supra III.B.1.b.i, Petitioner procedurally defaulted Claim 3, which challenged the admission of propensity evidence. However, even had Petitioner not 28 || procedurally defaulted this clairp, it would fail on the merits for the reasons stated here. 1 || 1133, 1137 (9th Cir. 2008) (Because “the jury would have heard the evidence anyway, 2 || because the trial court would have admitted Penelope’s testimony under the well- 3 || established rule permitting evidence regarding common plan or intent, Cal. Evid.Code § 4 || 1101(b),” “Hebner cannot establish the prejudice required by Strickland to make out a 5 || successful claim of ineffective assistance of counsel.”); accord Schwerin v. Knowles, 252 6 || F. App’x 842, 843 (9th Cir. 2007) (rejecting claim of ineffective assistance, where the 7 || failure to object to propensity evidence did not prejudice petitioner). 8 As to Petitioner’s argument that counsel should have objected to insufficient 9 || notice of the charges against Petitioner, the record shows that Petitioner had adequate 10 || notice. '® Petitioner challenges the notice he received regarding his conviction for simple 11 || battery under California Penal Code § 242. However, under California law, simple battery 12 || appears to be a lesser-included offense of sexual battery. See Campos v. Stone, 201 F. 5 13 || Supp. 3d 1083, 1091 (N.D. Cal. 2016) (“The jury convicted Campos of . . . one count of 5 14 || misdemeanor battery, in violation of Cal. Penal Code § 242, a lesser-included offense of 8 15 || one of the sexual battery charges.”’); People v. Azeem, No. B150816, 2002 WL 551002, at 16 || *2 (Cal. Ct. App. Apr. 15, 2002) (describing “simple battery” as “the lesser included 17 || offense of sexual battery,” and citing Cal. Penal Code § 243.4(c)) (unpublished); accord Z 18 || Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1018 (9th Cir. 2006) (“battery under section 19 || 242 is a lesser included offense of sexual battery under section 243.4(a)”); People Vv. 20 || Ortega, 240 Cal. App. 4th 956, 972 (2015) (describing simple battery as a lesser-included 21 || offense of Cal. Penal Code § 243(a) and (e)). Indeed, on direct appeal the California 22 || appellate court noted that “misdemeanor battery” is “the lesser included offense” “of 23 |} sexual battery by fraud.” Slape, 2014 WL 3735360, at *3. □ 24 It has long been established that an indictment charging a defendant with violation 25 || of one statute “necessarily encompasse[s] another lesser-included offense, thus sufficiently 26 27 || '° As discussed, supra III.B.1.b.i, Petitioner procedurally defaulted Claim 9, which challenged the allegedly insufficient notice. However, even had Petitioner not 28 || procedurally defaufied this claim, it would fail on the merits for the reasons stated here. ‘1 || putting the defendant on notice of the need to defend against both statutes.” Gautt v. 2 |} Lewis, 489 F.3d 993, 1007 (9th Cir. 2007) (citing Salinas v. United States, 277 F.2d 914, 3 || 918 (9th Cir.1960)). Here, the indictment charged Petitioner with sexual battery by fraud 4 || under California Penal Code § 243(c). (See Pet. at 14 (raising argument); see also Ans. 5 || Ex. A at 479 (jury verdict, convicting Petitioner of lesser offense).) Because simple 6 || battery is a lesser-included offense of sexual battery, Petitioner received notice that he 7 || could be convicted of simple battery. See Gautt, 489 F.3d at 1007. Counsel was not 8 || ineffective in failing to argue against the application of clearly established law. 9 As to Petitioner’s conclusory argument that trial counsel should have objected 10 || to prosecutorial misconduct (see Pet. at 4, 6, 8, 10, 25, 134, 140), Petitioner nowhere 11 || specifies exactly what the prosecutor did or said that Petitioner believes constituted gs 12 || misconduct (see generally, Pet.), and misconduct is not apparent on the face of the trial E 13 || transcript (see generally, Ans., Ex. B). This argument therefore fails. 5 14 Accordingly, Petitioner is not entitled to relief on Claims 2 and 4. 3 15 f. Claim of Ineffective Appellate Counsel 16: In Claim 10, Petitioner argues that he received ineffective assistance of appellate E 17 || counsel. (See Pet., passim.) Petitioner did not raise this argument on direct appeal. Z 18 Although the Petition is remarkably unclear on what Petitioner believes appellate counsel 19 || did wrong, the Court has attempted to identify the alleged errors. 20 First, Petitioner appears to argue that appellate counsel erred in not sufficiently 21 || arguing that trial counsel was ineffective. (See Pet. at 6, 26, 123.) However, as noted 22 || above, trial counsel was not ineffective. Because “[flailure to raise a meritless argument 23 || does not constitute ineffective assistance,” Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 24 || 1985), appellate counsel was not ineffective on this ground. 25 Second, Petitioner argues that appellate counsel failed to include Petitioner’s 26 || argument regarding actual innocence. (See Pet. at 3.) However, as noted above, this 27 || argument was meritless, and so appellate counsel was not ineffective in failing to raise it. 28 | Finally, Petitioner vaguely contends that appellate counsel was ineffective in 2 || refusing to “expos[e] the prosecution’s invalid legal argument, misstatements of law, and 3 || other errors of the court.” (Pet. at 141.) However, Petitioner does not identify what the 4 || prosecutor “invalid[ly” argued or misstated, or identify the errors which appellate counsel 5 || should have raised. (See generally, id.) Accordingly, Petitioner has failed to show that 6 || appellate counsel was ineffective on this ground. 7 Because Petitioner has failed to identify any way in which appellate counsel was 8 || ineffective, Petitioner is not entitled to relief on Claim 10. 9 IV. CONCLUSION 10 After a careful review of the record and pertinent law, the Court concludes that the 11 || Petition for a Writ of Habeas Corpus must be DENIED. 2 Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the Rules E 13. || Governing Section 2254 Cases. Petitioner has not made “‘a substantial showing of the 5 14 || denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has Petitioner demonstrated 3 15 || that “reasonable jurists would find the district court’s assessment of the constitutional 16 || claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may 5 17 || not appeal the denial of a Certificate of Appealability in this Court but may seek a 5 18 || certificate from the Court of Appeals under Rule 22 of the Federal Rules of Appellate 19 || Procedure. See Rule 11(a) of the Rules Governing Section 2254 Cases. 20 The Clerk shall terminate any pending motions, enter judgment in favor of 21 || Respondent, and close the file. 22 IT IS a eX 23 || Dated: i16@ 20 24 United States District Judge 25 26 27 28