Hosley v. Foulk ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 WALTER HOSLEY, Case No.: 15cv00877 JAH-AGS 11 Petitioner, ORDER DENYING PETITIONER’S 12 v. MOTION TO STAY; DENYING PETITIONER’S MOTION TO 13 SANDRA ALFARO, AMEND; OVERRULING 14 PETITIONER’S OBJECTIONS AND Defendant. ADOPTING THE REPORT AND 15 RECOMMENDATION [Doc. Nos. 40, 16 54, 56, 63, 66] 17 18 INTRODUCTION 19 After a jury found Petitioner guilty of one count of robbery and two counts of 20 burglary, the trial court sentenced Petitioner to 21 years and four months imprisonment. 21 Lodg. 5 at 5 (Doc. No. 22-9). Following his unsuccessful appeal and state collateral 22 challenges, Petitioner filed a writ of habeas corpus under 28 U.S.C. section 2254. See 23 Amended Petition at 6 (Doc. No. 12). The Honorable Clinton E. Averitte, United States 24 Magistrate Judge, submitted a Report and Recommendation (“Report”) to this Court 25 recommending denial of the petition. See Doc. No. 40. Neither party filed objections and 26 this Court adopted the Report. See Doc. No. 44. 27 In response, Petitioner filed a motion for relief from judgment and a notice of appeal. 28 See Doc. Nos. 41, 44, 45. The Ninth Circuit Court of Appeals held the appeal in abeyance 1 pending the Court’s decision on Petitioner’s motion for relief from judgment. This Court 2 granted Petitioner’s motion and provided him another opportunity to file objections to the 3 Report. 4 Petitioner filed objections and, later, filed a motion for stay and abeyance and a 5 motion to amend his petition. See Doc. Nos. 54, 56, 63, 66. For the reasons set forth 6 below, the Court DENIES Petitioner’s motion for stay and abeyance as moot, DENIES 7 Petitioner’s motion to amend and OVERRULES Petitioner’s objections and ADOPTS the 8 Report. 9 DISCUSSION 10 I. Motion for Stay and Abeyance 11 Petitioner filed a motion to stay the petition while he exhausted an additional ground 12 for habeas relief. Because Petitioner provides documentation to demonstrate he exhausted 13 and now seeks to amend his petition to add the new ground, his motion to stay is DENIED 14 as moot. 15 II. Motion to Amend 16 Petitioner seeks to amend his petition to add another ground for relief. Habeas 17 petitions “may be amended or supplemented as provided in the rules of procedure 18 applicable to civil actions.” 28 U.S.C. § 2242. A party may amend a pleading once as a 19 matter of course within 21 days after serving a pleading or 21 days after service of a 20 responsive pleading or motion and may otherwise amend by leave of court. FED. R. CIV. 21 P. 15(a). Granting leave to amend rests in the sound discretion of the trial court. 22 International Association of Machinists & Aerospace Workers v. Republic Airlines, 761 23 F.2d 1386, 1390 (9th Cir. 1985). This discretion must be guided by the strong federal 24 policy favoring the disposition of cases on the merits. DCD Programs Ltd. v. Leighton, 25 833 F.2d 183, 186 (9th Cir. 1987). Even though leave to amend is generally granted freely, 26 it is not granted automatically. See Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 27 1087 (9th Cir. 2002). Four factors are considered when a court determines whether to 28 allow amendment of a pleading. These are prejudice to the opposing party, undue delay, 1 bad faith, and futility. See DCD Programs, 833 F.2d at 186; see also Foman v. Davis, 371 2 U.S. 178, 182 (1962). 3 Petitioner seeks to amend his petition to add a new ground for habeas relief asserting 4 he was denied due process of law when the state court denied application of California 5 Senate Bill 1393. Notwithstanding his reference to due process, a review of his motion to 6 amend demonstrates he is solely challenging the state court’s application of California law 7 which is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 8 67-68 (1991) (“Today, we reemphasize that it is not the province of a federal habeas court 9 to reexamine state-court determinations on state-law questions.”). Petitioner’s passing 10 reference to due process does not transform his state law claim into a cognizable federal 11 claim. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). 12 Because his proposed additional ground for relief is not cognizable, amendment of 13 the petition is futile. Accordingly, Petitioner’s motion to amend is DENIED. 14 III. Petitioner’s Objections 15 A. Legal Standard 16 The district court’s role in reviewing a magistrate judge’s report and 17 recommendation is set forth in 28 U.S.C. section 636(b)(1). Under this statute, the district 18 court “shall make a de novo determination of those portions of the report . . . to which 19 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate [judge].” Id. 21 B. Analysis 22 In seeking federal habeas relief, Petitioner asserts he was denied effective assistance 23 of counsel when (1) his trial attorney failed to object on confrontation grounds to the trial 24 court’s refusal to allow counsel to impeach a witness with a magazine addressing the 25 witness’s reputation and (2) failed to request a CALCRIM No. 315 instruction. 26 1. Confrontation Clause 27 Trial counsel sought to impeach the victim witness with a magazine article which 28 included a description of the victim based on his business dealings but the trial court denied 1 the request. Lodge. 2 at 28-30 (Doc. No. 22-3). Petitioner asserts trial counsel was 2 ineffective when he failed to object to the denial on confrontation clause grounds. 3 The California Court of Appeal found the magazine article which discussed the 4 victim witness’s reputation in the motorcycle community was only collateral to the case 5 and trial counsel had ample opportunity to impeach the witness and cross-examination did 6 reveal inconsistencies in the witness’s statements. The court determined there was no 7 violation of the confrontation clause. In denying Petitioner’s habeas corpus petition, the 8 Court of Appeal determined that Petitioner failed to demonstrate a reasonable probability 9 the jury would have found reasonable doubt had counsel challenged the denial on 10 confrontation grounds. Lodge. 10 at 2 (Doc. No. 22-14). 11 Relying on United States v. Owens, 484 U.S. 554, 559 (1988), Judge Averitte 12 reasoned that the confrontation clause does not give a defendant the right to cross-examine 13 a witness in any way he wishes and found trial counsel confronted the victim witness on 14 his contradictory statements and attempted to impeach him. Judge Averitte determined, 15 the state court’s application of Strickland v. Washington, 466 U.S. 668, 691 (1984) was not 16 unreasonable. 17 Petitioner objects to the findings pointing to various inconsistencies in the victim 18 witness’s statements. Counsel’s cross-examination of the witness revealed the 19 inconsistencies of the witness’s various statements and provided Petitioner the opportunity 20 to impeach the witness. As noted by Judge Averitte and the Court of Appeals, “[t]he 21 Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not 22 cross-examination that is effective in whatever way, and to whatever extent, the defense 23 might wish.’” Owens, 484 U.S. at 559 (citing Kentucky v. Stincer, 482 U.S. 730, 739 24 (1987). Additionally, Petitioner fails to demonstrate that but for counsel’s failure to object, 25 there is a reasonable probability the jury would have reached a different verdict. See 26 Strickland, 466 U.S. at 694. Accordingly, counsel’s failure to object to the trial court’s 27 denial of his request to impeach the witness with the magazine on confrontation clause 28 grounds did not deny Petitioner effective assistance of counsel. This Court, therefore, 1 agrees the state court’s denial of the claim was neither contrary to nor an unreasonable 2 application of clearly established Supreme Court law nor based on an unreasonable 3 determination of the facts. Petitioner’s objection is overruled and the Court adopts Judge 4 Averitte’s recommendation to deny this claim. 5 2. CALCRIM No. 315 instruction 6 Petitioner argues counsel was ineffective for failing to request the trial court give 7 jury instruction CALCRIM No. 315 because eye witness identification was a critical and 8 contested issue at trial. The Court of Appeal did not address the argument in the opinion 9 denying Petitioner’s appeal. However, in the denial of his petition for a writ of habeas 10 corpus, the Court of Appeal determined Petitioner failed to demonstrate a reasonable 11 probability the jury would have found reasonable doubt had counsel requested the court 12 give the instruction. Lodge. 10 at 2 (Doc. No. 22-14). 13 Noting the Court of Appeal did not address the issue in Petitioner’s direct appeal, 14 Judge Averitte conducted an independent review and found the trial court gave instructions 15 similar to CALCRIM No. 315 that included factors which were favorable to Petitioner such 16 as “personal bias or prejudice” and “personal interest in how the case is decided.” Although 17 Petitioner argued failure to give the instruction was per se prejudicial, Judge Averitte 18 determined some CALCRIM No. 315 factors would have been unfavorable to Petitioner 19 because the witness knew or had contact with Petitioner before the event and very little 20 time passed between the event and the time when the witness identified Petitioner. 21 Additionally, Judge Averitte found because the evidence against Petitioner, which included 22 U-Haul rental information showing Petitioner rented a truck during the time of the robbery, 23 tools with the victim’s initials in Petitioner’s garage, and video which showed Petitioner 24 pawned tools identified as belonging to the victim, was overwhelming, the failure to 25 request CALCRIM No. 315 was not prejudicial. Judge Averitte determined there is not a 26 substantial likelihood the result of the case would have changed if the court gave the jury 27 the instruction. Judge Averitte also found the state law case Petitioner relies upon 28 1 || distinguishable because, unlike the case cited by Petitioner, there was significant evidence 2 || to corroborate the identification in Petitioner’s trial. 3 Petitioner objects. He points to factors in CALCRIM No. 315 he deems favorable. 4 || He also maintains People v. Palmer, 154 Cal.App.3d 79, 89 (1984), the case distinguished 5 || by Judge Averitte, supports that only an instruction such as CALCRIM No. 315 can protect 6 || a defendant when eyewitness identification is an issue at trial. 7 This Court agrees with Judge Averitte that there is no substantial likelihood the result 8 ||of case would have changed in light of the overwhelming evidence of Petitioner’s guilt. 9 || Accordingly, Petitioner fails to demonstrate ineffective assistance of counsel. The Court 10 || overrules Petitioner’s objections and adopts Judge Averitte’s recommendation to deny this 11 || ground for relief. 12 ||C. Evidentiary Hearing 13 In his objections, Petitioner requests a hearing. The Court finds Petitioner is not 14 |/entitled to an evidentiary hearing. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 15 |} 1998). 16 CONCLUSION AND ORDER 17 Based on the foregoing, IT IS HEREBY ORDERED: 18 1. Petitioner’s motion for stay and abeyance (Doc. No. 56) is DENIED as moot. 19 2. Petitioner’s motion to amend his petition (Doc. Nos. 63, 66) is DENIED. 20 3. Petitioner’s objections to the Magistrate Judge’s report and 21 recommendation are OVERRULED. 22 4. The Magistrate Judge’s report and recommendation is ADOPTED. 23 5. The petition is DENIED in its entirety. 24 25 ||DATED: November 30, 2020 26 he h Wasa == 17 JOHN A. HOUSTON Unfted States District Judge 28