(HC) Brown v. Pfeiffer

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JACORY BROWN,

No. 2:16-cv-2747-JKS

Petitioner,

MEMORANDUM DECISION

vs.

C. PFEIFFER, Warden, Kern Valley State

Prison,

Respondent.

Jacory Brown, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas

Corpus with this Court pursuant to 28 U.S.C. § 2254. Brown is in the custody of the California

Department of Corrections and Rehabilitation and incarcerated at Kern Valley State Prison.

Respondent has answered, and Brown has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

Brown was charged with attempted premeditated murder and other offenses after he fired

from the back seat of a friend’s car multiple rounds into the side of another vehicle, seriously

injuring two of the vehicle’s passengers, Nehemiah and Garvin Johashen.1 On direct appeal of

his conviction, the California Court of Appeal recounted the following facts underlying the

charges against Brown and the evidence presented at trial:

We begin with undisputed facts. On November 13, 2011, at about 8:30 p.m.,

Nehemiah and Garvin walked to a fast food restaurant on Elkhorn Boulevard in North

Highlands. At the restaurant, Nehemiah called a friend, Trayvion Pointer, and asked for

a ride. Pointer, who was on a date with Marquell Witten at the time, drove to the

restaurant with Witten in the front passenger seat and picked up Nehemiah and Garvin,

who got into the back seat. Pointer was driving a Volvo.

1 Because the victims have the same last name, this Court will, like the California

Court of Appeal, refer to them by their first names for clarity.

Meanwhile, [Brown] was in the back seat of a Chevy Malibu in the restaurant’s

drive-through. The Malibu belonged to Alexander Ford, who was seated in the front

passenger seat. The driver’s identity was disputed. [Brown] had previously been

“jumped” by friends of Nehemiah and Garvin over the outcome of a dice game. Because

of this, “hard” looks were exchanged between occupants of the two vehicles. The Volvo

then exited the restaurant parking lot, drove eastbound on Elkhorn Boulevard, and

entered Interstate Highway 80 (I–80) heading westbound. The Malibu followed, caught

up to the Volvo as it entered the freeway, and pulled up along the driver’s side of the car,

at which point the Malibu’s backseat passenger lowered the window and opened fire with

a large caliber handgun. Bullets struck both Nehemiah and Garvin, causing great bodily

injury.

The dispute at trial was over who occupied the back seat of the Malibu at the time

of the shooting. Ford testified for the prosecution and implicated [Brown]. [Brown]

testified in his own defense and implicated Ford. We provide a detailed summary of their

respective testimony. We then set forth the evidence corroborating Ford’s account,

including victim identification of [Brown] as the shooter prior to trial, although these

identifications were recanted at trial.

Ford’s Testimony

Ford testified he met [Brown] through a mutual friend, Elijah Nevarez, about a

week before the shooting. Ford, Nevarez, Nick Buzo, and another man drove from

Stockton to Sacramento to “find a party, drink.” Nevarez drove Ford’s car. They ended

up at an apartment belonging to one of Nevarez’s friends, a man named Paul. [Brown]

was also at Paul’s apartment. At some point, Ford and Paul got into an altercation. Ford

explained: “[Paul] got drunk and angry and he got mad at me for being in a side bedroom

for a second. And [Brown] came and pulled him away from me and told him not to treat

his guest like that . . . .” Ford was unsure whether he and his friends stayed the night at

Paul’s apartment or rented a motel room, but they returned to Stockton the following day.

About a week later, on the day of the shooting, Ford, Nevarez, and Buzo again

drove from Stockton to Sacramento. Nevarez again drove Ford’s car. After picking up

another man, who went by the name “Gwop,” at Paul’s apartment, they drove to a motel

to get a room and party. At some point in the afternoon, after drinking alcohol and

smoking marijuana in the room, they also picked up [Brown]. Later in the evening, Ford

and Nevarez decided to drive to a fast food restaurant to get some food. As they were

getting into Ford’s Malibu, Nevarez behind the wheel and Ford in the front passenger

seat, defendant decided to join them and got into the back seat. Nevarez drove to the

restaurant and pulled into the drive-through. When they got to the front of the line,

Pointer’s Volvo pulled in front of the Malibu and stopped, blocking their exit from the

drive-through. The Volvo then pulled around so it was parallel to the Malibu. [Brown]

said: “Those are the guys that want to kill me. Don’t look at them because the one

always carries a .40 with a 30–round clip on him.” [Brown] also said: “Don’t worry, I

have protection.”

The Volvo then pulled out of the parking lot, traveled eastbound on Elkhorn

Boulevard, and got onto I–80. The Malibu followed and caught up to the Volvo on the

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on-ramp. According to Ford, no one told Nevarez to “[c]atch the car,” but as the Malibu

approached the Volvo, [Brown] said: “I should get them before they get me.” Ford

protested: “I don’t want to do that in my car because I don’t want to get in trouble for

this.” [Brown] and Nevarez both assured him they would not “snitch.” As the Malibu

pulled up beside the Volvo, Ford heard “loud bangs” coming from behind him in the car

and “ducked down.” Ford then looked in his rear view mirror, saw the Volvo slide off of

the freeway, and said: “Man, I think you killed them.” [Brown] responded: “No

snitching.” Nevarez drove back to the motel. Inside the room, [Brown] told Gwop:

“‘You remember the niggas that said they were going to kill me?’” “‘Well, they know

I’m not some little bitch that they’re just going to punk.’”

[Brown’s] Testimony

[Brown] confirmed he met Ford at Paul’s apartment and intervened in an

altercation between Ford and Paul. According to [Brown], Ford was bragging to Paul

about Stockton being more “active” than Sacramento, which [Brown] understood to be a

boast of toughness, and “Paul basically wanted to test him and see if he was all talk.”

After [Brown] intervened, Ford thanked him for “having his back.” Ford then rented a

motel room, where [Brown] drank alcohol and smoked marijuana with Ford and his

companions before they returned to Stockton. [Brown] also testified he had several

interactions with Ford over the span of a few weeks between their initial meeting at

Paul’s apartment and the night of the shooting. According to [Brown], he helped Ford

sell four pounds of marijuana during this time.

The day of the shooting, Ford picked [Brown] up at Paul’s apartment. [Brown]

confirmed Ford’s account of who was with him, except for the addition of a man who

went by the name “Least–O.”FN2 [Brown] also confirmed Ford rented a motel room,

where the group drank alcohol and smoked marijuana. Later that night, according to

[Brown], he decided to leave the party and caught Ford and Least–O as they got into

Ford’s car to pick up some food. [Brown] asked Ford, who was “extremely drunk” and

seated in the front passenger seat, for a ride to Elkhorn Boulevard and Andrea Boulevard,

which happened to be where the fast food restaurant was located. Ford agreed. [Brown]

got into the back seat. Least–O drove to the restaurant and pulled into the drive-through.

At this point, Ford noticed someone in the restaurant “looking at the car real, real hard.”

[Brown] looked up, saw Nehemiah and Garvin in the restaurant, and said: “Yeah,

they—those are the individuals that mess with the people—that hang out with the people

that jumped me.”FN3

FN2. Ford testified that Least–O was Nevarez’s nickname. [Brown] testified

that Least–O was a separate person.

FN3. [Brown] explained he had no problems with either Nehemiah or Garvin,

but three unidentified friends of theirs had previously “jumped” him over

the outcome of a dice game; however, according to [Brown], he “end[ed]

up beating them up—all three of them” and “got to keep all [his] stuff.”

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Ford became “agitated” and “aggressive” and said: “Are those the people that

jumped you? The people that jumped you?” Ford then “started muggin’ ‘em real, real

hard.” [Brown] believed Ford felt he owed [Brown] because [Brown] “had his back with

Paul” and tried to diffuse the situation by telling Ford: “‘Nehemiah carries a gun’” and

“‘you need to calm down.’” The “aggressive” looks continued when Nehemiah and

Garvin got into Pointer’s Volvo, which pulled in front of Ford’s Malibu at the front of the

drive-through line. [Brown] again told Ford to “‘calm down.’” Ford responded: “‘I ain’t

no little bitch.’” When the Volvo drove away, [Brown] asked to be dropped off behind a

convenience store in the same parking lot. Ford and Least–O complied. As [Brown] got

out of the car, Ford said: “I’m going to show you how we get down in Stockton.” He

then retrieved “something” from his trunk and got into the back seat. The Malibu

departed. [Brown] then sent a text message to a friend named “Bear,” who picked him

up. He spent the next two or three hours with Bear. At some point, an unidentified

person called [Brown] and told him Nehemiah had been shot. Gwop then called and told

[Brown] to come back to the motel room, which he did. In the motel room, Ford was

“drunk and bragging” that he “laid ‘em down.”

Corroboration of Ford’s Testimony

After the shooting, the Volvo slid off of the freeway and came to a stop as Pointer

passed out for a brief moment and released his foot from the accelerator. When he

regained consciousness, Pointer drove to a nearby motel. Law enforcement and medical

personnel arrived a short time later. Nehemiah and Garvin were transported to the

hospital, where they each provided a brief statement.

Nehemiah stated he clearly saw [Brown’s] face as the Malibu’s back window

rolled down, just before a gun emerged and started shooting. He provided a name:

“Jacory or Cory.” He also provided an accurate description: “A [B]lack male, early

twenties, dark-skinned, wearing a do-rag. He’s approximately six foot tall and had an

athletic build.” With respect to the Malibu’s driver and front seat passenger, Nehemiah

said “they might have been two white guys or one possibly Hispanic.” Ford is White;

Nevarez is Hispanic. Nehemiah also explained he believed the shooting involved a “dice

game,” where someone owed [Brown] $300, and one of Nehemiah’s friends “got beat up

over this money.” Garvin also stated the shooter was “a [B]lack male” with “short hair”

and “wearing a do-rag,” although he believed the shots came from the front passenger

seat.

About a month later, both Nehemiah and Garvin picked [Brown] out of a

photographic lineup. After Nehemiah chose [Brown’s] photo, which was in the number

five position, he wrote in the comments section: “I’m almost one hundred percent

number five is the person who shot me and my little brother.” After Garvin chose

[Brown’s] photo, he wrote in the comments section: “Number five looks like him.”FN4

FN4. At trial, Nehemiah and Garvin recanted these identifications. They also

acknowledged being a “snitch” is not looked upon favorably “out there on

the streets.”

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[Brown] and Ford were each arrested. After Ford was released on bail, [Brown]

sent him a letter, through another inmate. Because a certain statement in this letter is the

evidence the Attorney General argues [Brown] failed to explain in his testimony, we set

forth the contents of the letter in the discussion below. For present purposes, it will

suffice to note Ford understood the letter to be a warning against “snitchin[g]” on

[Brown], a reasonable interpretation. Accordingly, the letter was admitted into evidence

to show [Brown’s] consciousness of guilt.

People v. Brown, No. C074292, 2015 WL 1887110, at *1-4 (Cal. Ct. App. Apr. 27, 2015).

At the conclusion of trial, the jury convicted him of two counts of attempted premeditated

murder, two counts of assault with a firearm, one count of shooting at an occupied vehicle, and

one count of possession of a firearm by a convicted felon. Various firearm and great bodily

injury enhancement allegations were also found true. The trial court sentenced Brown to an

aggregate indeterminate prison term of 89 years to life imprisonment plus a consecutive

determinate term of 7 years.

Through counsel, Brown appealed his conviction, arguing that: 1) the prosecutor

committed misconduct by vouching for a prosecution witness; and 2) the trial court erred in

instructing the jury with CALCRIM No. 361 regarding how the jury should evaluate Brown’s

testimony. The Court of Appeal unanimously affirmed the judgment against Brown in a

reasoned, unpublished opinion issued on April 27, 2015. Brown, 2015 WL 1887110, at *7. The

California Supreme Court summarily denied Brown’s petition for review on July 8, 2015.

Brown then filed in the California Superior Court a pro se habeas petition dated April 21,

2016, which raised six claims of ineffective assistance of trial counsel and a claim of

prosecutorial misconduct. The superior court denied the petition in a reasoned, unpublished

decision issued on June 29, 2016.

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Brown then raised the same seven claims in a habeas petition filed on August 1, 2016, in

the California Court of Appeal. The appellate court denied the petition without comment on

August 12, 2016. Brown additionally raised those claims by way of habeas petition filed in the

California Supreme Court, which was likewise summarily denied on November 9, 2016.

Brown timely filed a Petition for a Writ of Habeas Corpus in this Court on November 17,

2016. Docket No. 1 (“Petition”); see 28 U.S.C. § 2244(d)(1),(2).

II. GROUNDS/CLAIMS

In his pro se Petition before this Court, Brown raises the seven claims he unsuccessfully

raised to the California state courts on habeas review. Namely, Brown argues in Grounds 1

through 6 that trial counsel rendered ineffective assistance by failing to: 1) object to certain

identification evidence; 2) adequately investigate his claim; 3) object to the admission of highly

prejudicial uncharged conduct evidence; 4) introduce evidence of a prior, consistent statement;

5) move to strike portions of Detective Biggers’ testimony; and 6) use extrinsic evidence to

challenge Detective Biggers’ testimony regarding Nehemiah’s statements implicating Brown.

Brown additionally contends in Ground 7 that the prosecutor committed misconduct by making

improper comments during summation.

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III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.

§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding,”

§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that

contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that

are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives

at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)

“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the

relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon

the states; that is, the decision must be based upon constitutional grounds, not on the supervisory

power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where

holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it

cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”

Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

To the extent that the Petition raises issues of the proper application of state law, they are

beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.

Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was

correctly applied). It is a fundamental precept of dual federalism that the states possess primary

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authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,

67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and

application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state

court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536

U.S. 584 (2002).

In applying these standards on habeas review, this Court reviews the “last reasoned

decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)

(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication

on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under

the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner

rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003).

IV. DISCUSSION

A. Ineffective Assistance of Trial Counsel (Grounds 1-6)

Brown argues that trial counsel rendered ineffective assistance for a variety of reasons.

To demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant

must show both that counsel’s performance was deficient and that the deficient performance

prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which

“counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by

the Sixth Amendment.” Id.

The Supreme Court has explained that, if there is a reasonable probability that the

outcome might have been different as a result of a legal error, the defendant has established

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prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012); Glover v.

United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas

petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice

standard is applied and federal courts do not engage in a separate analysis applying the Brecht

harmlessness standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin

v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing ineffective

assistance of counsel claims in a federal habeas proceeding:

The question “is not whether a federal court believes the state court’s

determination” under the Strickland standard “was incorrect but whether that

determination was unreasonable—a substantially higher threshold.” And, because the

Strickland standard is a general standard, a state court has even more latitude to

reasonably determine that a defendant has not satisfied that standard.

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.

Ryan, 686 F.3d 758, 775 (9th Cir. 2012).

Thus, Brown must show that his trial counsel’s representation was not within the range of

competence demanded of attorneys in criminal cases, and there is a reasonable probability that,

but for counsel’s ineffectiveness, the result would have been different. See Hill v. Lockhart, 474

U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the petitioner

fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466

U.S. at 697 (courts may consider either prong of the test first and need not address both prongs if

the defendant fails on one).

1. Failure to object to identification evidence

Brown first claims that trial counsel was ineffective in failing to object to identification

evidence. According to Brown, a defense investigator interviewed victim Nehemiah Johashen

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on November 16, 2012, and Nehemiah told the investigator that the police had brought a picture

of Brown to his house and informed Nehemiah that the picture was of the person who had shot

him. Brown alleges that Nehemiah told the investigator that Brown did not shoot him. Brown

argues that, since counsel had this information prior to the preliminary hearing on December 7,

2012, counsel should have used that information to challenge Nehemiah’s lineup identification,

which he contends would have led to its suppression. Brown further contends that, if the lineup

identification had been suppressed, his codefendant Ford’s testimony would not have been

corroborated and thus would likely also have been suppressed.

On habeas review, the superior considered this claim and denied it for failure to set forth

a prima facie case for relief as follows:

The crimes occurred on November 13, 2011, around 8:30 p.m. One of the

documents attached [to Brown’s state habeas petition] is a copy of a police report dated

November 13, 2011, showing that at a time partially cut off from the copy provided but

probably just after the shooting, it was reported that a deputy spoke with Nehemiah at the

hospital trauma room and Nehemiah said, “I can’t really talk to the cops right now. My

jaw is wired shut and I’m having a hard time breathing. I don’t know who shot me. I

don’t know who did this. Maybe later on after I get out of here I can figure it out. I can

not talk anymore.”

Another document attached is a copy of a police report dated November 13, 2011,

reporting that probably shortly thereafter, at 10:20 p.m., Nehemiah told an officer that

“the dude I met once was in the backseat of the car and he’s the one who shot at us. I

saw the rear window roll down just before he shot and that gave me the opportunity to

clearly see his face. He lit up (shot up) our whole backseat. . . . I’m sure this is the same

nigga Jonas was talking about I just don’t know his name. I think they call this dude

‘Jacory’ or ‘Cory.’ The shooter—he’s a black male, shave hair, he was wearing a doo-

rag, he’s about 22-23 years old, dark skinned, maybe 6' tall, with an athletic build. The

gun he used was big. It had to be at least a .40 caliber. I heard this du[de] is from

[blanked out] but he’s always in North Highlands . . . . There were at least two other

dudes in the car. They were both in the front seat. Both may have been white but one

could have been Hispanic. I only know the dude who shot at us and he’s black. Oh look,

I guess this dude shot at some of my brothers a couple of months back. One of my

friends I guess owed him like three hundred dollars or something. So the dude tried to

snake him or beat him up and some of my brothers tried to help my friend. So I guess

because some of my people got involved he targeted me tonight. You feel me. None of

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these guys were in any gang. They were just friends or associates. So, he tried to shoot

onas and now he tried to kill me and my little brother (Garvin). The money owed may

have come from a dice game. That’s what my friend got beat up over. That’s all I know.

I’m not going to give any other names but I think Jonas can identify this dude by name. I

can identify this guy if I saw him again.”

The third document is a copy of a report of an investigator to the Public Defender,

stating that on November 6, 2012, the investigator interviewed Nehemiah, who stated “I

never made any statement to the police about who shot me. The police said that Jacory

got caught up with a gun. They brought a picture of Jacory to my house. The police

said, ‘This is who shot you, does he look[] familiar?’ I said, ‘How do you know who

shot me?’ The police officer said, ‘The streets are talking.’ They said that he was

shooting at people before, and that my friend had given him up. The police just showed

up with the picture and they asked me which one was Jacory and I pointed to one and

said, ‘This one.’ They told me to circle and initial it. I never said that he was the on who

shot at me, though. . . . As far as what happens to Jacory, I don’t care. If the charges are

dropped, it doesn’t matter to me. But he did not shoot me, not that I’m aware of. ‘I’m

not afraid of him, of course not.’ We are not friends, but I know him because he is one of

my friends’ friend.”

The court’s underlying file contains a copy of the reporter’s transcript from the

December 7, 2012 preliminary hearing, at which Officer Biggers testified that on

December 21, 2011, which was about one month after the shootings, Biggers met with

Nehemiah and Garvin at the station house, to show them a photo lineup that included a

photograph of petitioner, whom Biggers identified in court, and that both Nehemiah and

Garvin, in separate rooms, picked out petitioner’s photograph. Biggers himself, alone,

had showed both victims the lineup. When Nehemiah was shown the lineup, Nehemiah

picked out petitioner’s photograph as the person who shot Nehemiah and Garvin, and

Nehemiah placed his initials next to the photograph of petitioner. On cross-examination,

Biggers was asked if before the lineup he had gone out to the victims’ residence, and

Biggers replied that he had not; there was no further inquiry on that subject.

Had defense counsel moved to exclude the lineup either before or at the

preliminary hearing and presented evidence that Nehemiah, a year after the shootings and

Nehemiah’s identification of petitioner in the lineup, had told a defense investigator that

the officer had come to Nehemiah’s home and been suggestive in getting the

identification of petitioner, it would not have been likely to have resulted in exclusion of

the lineup. Too much time had passed, and Nehemiah by then had had second thoughts

about having identified petitioner as the shooter; indeed, by the time of trial, Nehemiah

had recanted his identification of petitioner as the shooter out of fear of retaliation on him

in the streets. It was not reasonably probable that the trial court would have simply

excluded the identification; rather, the trial court would have allowed the identification to

be introduced at trial and allowed petitioner to present evidence that the identification

had been tainted.

Nor has petitioner shown that even if it is true that an officer had come to

Nehemiah’s house and shown Nehemiah the photo, that that had occurred before Biggers

showed Nehemiah the phone lineup.

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Nor was there any ineffective assistance at trial with regard to this matter. As

petitioner admits, “During trial, Nehemiah elaborated on the person who brought the

picture to his house. Nehemiah explained it was his brother’s probation officer . . . [w]ho

showed him the petitioner’s picture and told him ‘this is the person who shot you.’ As

such, it appears that the jury was informed about Nehemiah’s claim that was made to the

investigator, and that the jury had opportunity to give that testimony whatever weight the

jury felt was appropriate. Simply put, this remained a credibility contest before the jury,

between petitioner’s testimony, denying guilt, and the testimony of his codefendant Ford,

that petitioner was the shooter, plus Nehemiah’s and Garvin’s by-the-time-of-trial-

retracted identifications of petitioner as the shooter, with the addition of Nehemiah’s

testimony that he had been shown a photo of petitioner and been told that petitioner was

the shooter.

Nor does petitioner now present any affidavit from Nehemiah’s brother’s

probation officer[] attesting to having gone to Nehemiah’s house before Nehemiah’s

December 21, 2011 photo lineup identification of petitioner, having shown Nehemiah

petitioner’s photo, and having told Nehemiah “this is the person who shot you.”

Lodged Document (“LD”) No. 8 at 5-7 (citations omitted).

The Superior Court ultimately rejected Brown’s claim after concluding that there was

insufficient evidence in the record to demonstrate that the photo lineup identification was unduly

suggestive. Id. at 7. Such a determination constitutes a decision on the merits. See Phelps v.

Alameida, 569 F.3d 1120, 1126 n.8 (9th Cir. 2009) (rejection of claim for failure to state prima

facie case constitutes denial on the merits of the claim).

Evidence derived from a suggestive pretrial identification procedure may be inadmissible

if the challenged procedure was “so impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.” See Simmons v. United States, 390 U.S. 377, 384

(1968). To determine the admissibility of identification testimony, courts use a two step

analysis. United States v. Love, 746 F.2d 477, 478 (9th Cir. 1984). First, they determine whether

the identification procedure was impermissibly suggestive. Id. Each case must be considered on

its own facts, and whether due process was violated depends on the totality of the surrounding

circumstances. Simmons, 390 U.S. at 383-84. If the court finds that a challenged procedure is

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not impermissibly suggestive, the due process inquiry ends. United States v. Bagley, 772 F.2d

482, 493 (9th Cir. 1985). However, if a court finds that the procedure was impermissibly

suggestive, it then determines whether the identification was nevertheless reliable under the

totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 198-99 (1972); Love, 746 F.2d at

478.

The factors to be considered in evaluating the reliability of an identification after an

impermissibly suggestive identification procedure include:

[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the

witness’ degree of attention, [3] the accuracy of the witness’ prior description of the

criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and

[5] the length of time between the crime and the confrontation.

Biggers, 409 U.S. at 199-200. These five indicia of reliability must be balanced by the

reviewing court against the corrupting effect of the suggestive pretrial identification procedure to

determine whether the in-court identification should have been admitted. Manson v.

Braithwaite, 432 U.S. 98, 114 (1977). In a motion to suppress, the defense bears the burden to

show the unconstitutionality of the identification procedure. See People v. DeSantis, 831 P.2d

1210 (Cal. 1992).

Again, to prevail on a claim of ineffective assistance of counsel predicated on counsel’s

failure to file a motion to suppress evidence, a petitioner must establish both that the motion

would have been meritorious and a reasonable probability that the jury would have reached a

different verdict absent the introduction of the evidence. Kimmelman v. Morrison, 477 U.S. 365,

375 (1986); Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003). Brown does not do

so here because, for the reasons persuasively articulated by the California Superior Court, he

fails to demonstrate that the lineup identification procedure was impermissibly suggestive or

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unreliable given the totality of the circumstances. Brown provides the same evidence in support

of his claim before this Court, which is likewise insufficient to establish that counsel was

deficient or that he was prejudiced by counsel’s inaction. See Woodford v. Visciotti, 537 U.S.

19, 15 (2002) (per curiam) (holding that state habeas petitioner carries the burden of proof). The

California Superior Court’s rejection of Brown’s claim is both reasonable and fully supported by

the record. Brown is thus not entitled to relief on this claim.

2. Failure to investigate

Brown next argues that trial counsel was ineffective for failing to personally interview

Nehemiah about his statement to the defense investigator. According to Brown, such inquiry

would have enabled counsel to pursue defenses that Nehemiah identified Brown solely on what

he had heard from a person named Marcell; that Nehemiah had two brain surgeries that might

have affected his ability to make a reliable identification; and that Nehemiah only picked

Brown’s photo from a lineup because Garvin’s probation officer had previously shown him

Brown’s photo. But again, Brown fails to provide any evidentiary support for this speculative

claim. Just as his claim was denied on state habeas review, the lack of evidentiary support is

also fatal to his claim on federal habeas review.

3. Object to admission of prior uncharged acts evidence

Brown additionally faults counsel for failing to object to testimony by Detective Bigger

that Nehemiah told him on the night of the shooting that the person who shot him and Garvin

was the same person who had shot his friend, Jonas Calhoun. Brown contends that the

admission of this testimony allowed the jury to improperly consider evidence of uncharged

conduct, despite the trial court’s questioning on the admissibility of evidence regarding Calhoun.

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But as the Superior Court concluded, Detective Bigger’s statement was not offered for

the truth of the matter asserted; i.e., it was not admitted to prove that Brown shot Calhoun.

Rather, it was introduced to explain Nehemiah’s belief that the same person who had shot at

Calhoun had shot at Nehemiah and Garvin. Accordingly, the Superior Court correctly concluded

that the statement was not inadmissible hearsay. See FED. R. EVID. 801(c)(2) (defining hearsay

as a statement that “a party offers in evidence to prove the truth of the matter asserted in the

statement”). Moreover, the Confrontation Clause “does not bar the use of testimonial statements

for purposes other than establishing the truth of the matter asserted.” Crawford v. Washington,

51 U.S. 36, 59 n.9 (2006). Brown is therefore not entitled to relief on this claim.

4. Failure to introduce a prior consistent statement

Brown next contends that trial counsel should have introduced Nehemiah’s first

statement at the hospital that he did not know who shot him as a prior consistent statement that

would have supported Nehemiah’s recantation of his identification of Brown. The Superior

Court denied the claim, reasoning:

[A]ny error in this regard is not shown to be prejudicial. The first statement was

probably made when Nehemiah first came to the hospital, at a time when he could have

been in such pain that he was unable to organize his thoughts, whereas the second

statement at the hospital was probably given sometime later when he was better able to

gather his thoughts. In any event, he did later identify petitioner in a photo lineup, as did

Garvin, and that coupled with codefendant Ford’s testimony was overwhelming evidence

of petitioner’s guilt. Petitioner does not show that introducing this statement, if it was

not introduced, would have been reasonably likely to have made a difference in the

outcome of the trial.

The Superior Court’s determination is both reasonable and fully supported by the record.

In any event, the record reflects that trial counsel asked Nehemiah about his initial statement

during cross-examination of Nehemiah. The record thus belies Brown’s contention that counsel

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did not introduce evidence of Nehemiah’s initial statement. Accordingly, he is not entitled to

relief on this ground in any event.

5. Failure to move to strike portions of Detective Biggers’ testimony

Brown additionally argues that trial counsel was ineffective for failing to move to strike

portions of Detective Biggers’ testimony for failure to satisfy the personal knowledge

requirement of Evidence Code § 702.2 According to Brown, because Nehemiah testified that he

did not know the name of the shooter, Biggers should not have been allowed to testify that

Nehemiah had told Biggers that the shooter was named “Jacory” or “Cory.”

But as the Superior Court determined:

Biggers was probably allowed to testify to Nehemiah’s statement to Biggers in

the hospital[] as a prior inconsistent statement to Nehemiah’s testimony at trial. That

Nehemiah testified at trial that Nehemiah did not know who the shooter was does not

render Nehemiah’s statement to Biggers actual personal knowledge of the identity of the

shooter. Rather, Nehemiah’s statement to Biggers was a clear identification of what

Nehemiah had seen of the shooter, and that Nehemiah recanted at trial does not render

Nehemiah’s statement to Biggers inadmissible for lack of personal knowledge. Rather,

both were admissible and it was a credibility determination for the jury to make as to

which version should be believed.

Again, that determination is both reasonable and fully supported by the record. Brown is

not entitled to relief on this ground.

6. Failure to object to Detective Biggers’ testimony based on Nehemiah’s medical

history

Brown relatedly argues that trial counsel should have challenged Detective Biggers’

testimony regarding Nehemiah’s statements implicating Brown by introducing evidence about

2 That provision provides that “the testimony of a witness concerning a particular

matter is inadmissible unless he has personal knowledge of the matter. Against the objection of

a party, such personal knowledge must be shown before the witness may testify concerning the

matter.” CAL. CODE EVID. § 702(a).

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Nehemiah’s brain surgeries. According to Brown, trial counsel should have “sp[oke] to

Nehemiah in an effort to obtain cooperation for Nehemiah’s testimony about his medical history

proving he did indeed have brain surgery and then obtain[] an expert witness if need be to testify

how it could affect his memory.” Brown avers that, armed with that medical information,

counsel could have successfully objected to Biggers’ testimony on the grounds that it had no

probative value.

But again, Biggers’ testimony was admitted as evidence of a prior inconsistent statement.

Any evidence challenging the veracity of the previous statement would not change the fact that

the statement was probative; it merely highlights that the veracity of Nehemiah’s statements was

a credibility determination squarely before the jury. Moreover, as discussed in Ground 2, Brown

has not provided documentary evidence supporting his speculative contention that Nehemiah’s

brain surgeries affected his memory and led him to falsely identify Brown as his shooter. In any

event, Brown fails to show that such evidence would have led the jury to believe his version of

events rather than Ford’s. Brown is therefore not entitled to relief on this claim in any event.

B. Prosecutorial Misconduct (Ground 7)

Brown additionally contends that the prosecutor committed misconduct by making

improper remarks to the jury during summation. Federal habeas review of prosecutorial

misconduct claims is limited to the narrow issue of whether the alleged misconduct violated due

process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). To prevail on such a claim, a

petitioner must show that the prosecutor’s conduct “so infected the trial with unfairness as to

make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974). Moreover, “[o]n habeas review, constitutional errors of the ‘trial type,’

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including prosecutorial misconduct, warrant relief only if they ‘had substantial and injurious

effect or influence in determining the jury’s verdict.’” Wood v. Ryan, 693 F.3d 1104, 1113 (9th

Cir. 2012) (quoting Brecht, 507 U.S. at 637-38 (1993)).

Under clearly established federal law, a prosecutor’s incorrect and improper comments

will be held to violate the Constitution only if they “so infected the trial with unfairness as to

make the resulting conviction a denial of due process.” Parker v. Matthews, 132 S. Ct. 2148,

2153 (2012) (per curiam) (quoting Darden v. Wainright, 477 U.S. 168, 181 (1986)); see

Sassounian v. Roe, 230 F.3d 1097, 1106 (9th Cir. 2000). In determining whether the

prosecutor’s remarks rendered a trial fundamentally unfair, the remarks must be analyzed in the

context of the entire proceeding. Boyde, 494 U.S. at 385; Darden, 477 U.S. at 179-182. Even

when prosecutorial misconduct rises to the level of a due process violation, such misconduct

provides grounds for habeas relief only if that misconduct is prejudicial under the harmless error

test articulated in Brecht v. Abrahamson, 507 U.S. 619, 637-638 (1993). Shaw v. Terhune, 380

F.3d 473, 478 (9th Cir. 2004).

Brown fails to satisfy these standards with respect to any of his contentions. Brown first

avers that the prosecutor committed misconduct by arguing in summation that the victims did not

care and were living by their own set of rules, and by urging the jurors not to let the code of the

street take the place of the rules of law and society. The record reflects that the prosecutor stated

in closing argument that “it would be fairly easy to say, Hey, look, these folks in that care who

got shot up don’t care. The Johashens don’t care. Right? They didn’t want to be here. They

didn’t want to participate. And they don’t care what you do. The question is: Do we operate

under the rule of law as a civilized society or, as jurors, are we willing to let the code of the

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street take its place?” The Superior Court concluded that this “argument was merely proper

commentary on the victims’ recantation of their identifications of petitioner as being part of the

rules of the street, to which the victims also testified, and that the prosecutor was merely arguing

that the jurors need to follow the law and not the rule of the street. . . . [I]n this case, the

prosecutor . . . merely urged the jurors to follow the law, which is not improper. . . .” This

determination is both reasonable and fully supported by the record.

Brown also argues that the “prosecutor committed misconduct by arguing in closing that

petitioner engaged in potential witness tampering and deception which was false and not

supported by evidence in the record[] when the prosecutor stated in closing that the jurors should

keep in mind that Nehemiah was in custody, and that the prosecutor had asked petitioner if

petitioner had bumped into Nehemiah there and talked with Nehemiah, and petitioner would not

answer.”

The record reflects that, during cross-examination of Brown, the prosecutor asked him

about a letter he wrote to Ford while in jail that stated that things were looking positive in his

case and discouraged Ford from cooperating with law enforcement. Specifically, the prosecutor

asked Brown what he meant in the jail letter by “it’s looking positive.” Brown testified, “Well,

there’s no evidence in the case. There’s no—there’s nothing. Basically, it’s just he say/she

say. . . . And he’s in the good and I’m in the jail.” The prosecutor then argued in summation:

And I asked him about this on the stand, and he tried to talk about it. But in the

end, he can’t and he didn’t. But he said, ‘The case is looking positive.’ Now, keep in

mind that Nehemiah Johashen was in custody. It’s when he had the bullet removed.

Now, how in the world could the case be looking positive? What about it? I

asked him, Mr. Brown, Well what did you mean by that? Well, there’s no evidence.

Come on now. You know better than that. You got people who have said, at least in the

past, that you shot ‘em. They’ve picked you out of photographic lineups. You know Mr.

Ford has already made a statement to Detective Biggers, giving at least your name.

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What is it that’s looking positive? Did you bump into Mr. Johashen? Did you

have a little talk with him? Who knows. He wouldn’t tell us. I asked. He had an

opportunity to explain what he meant by that, and he didn’t.

The Court’s independent review of the record supports the Superior Court’s conclusion

that the prosecutor’s comments represented a fair comment on the evidence as presented,

including Brown’s testimony. Although Brown disagrees with the prosecutor’s assessment of

that testimony, he was given an opportunity to present a conflicting reason, which the jury

apparently found not credible. Accordingly, Brown fails to show that the prosecutor’s comment

was improper, much less that it rose to the egregious level required for habeas relief.

Brown next argues that the prosecutor misstated the evidence when he told the jury that

Nehemiah has a tattoo that reads “no snitchin.’” According to Brown, the prosecutor fabricated

the tattoo to bolster his argument that Nehemiah had a motive to recant his identification of

Brown. But the record reflects that the prosecutor referred to the tattoo when discussing the

photographs of Nehemiah’s exposed body by crime scene investigators. As the Superior Court

noted, it thus appears that the jurors had evidence of the tattoo from photographs of Nehemiah’s

body. Brown fails to provide this Court with any documentary evidence that contradicts the

Superior Court’s reasonable conclusion; he merely relies on the absence of any reference to the

tattoo in the testimony of the witness. Again, this lack of evidentiary support is fatal to his

claim. See Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002) (“self-serving statement”

insufficient to raise claim for relief).

Finally, Brown claims that the prosecutor falsely told the jury that Nehemiah referred to

the shooter as “Cory” or “Jacory” in his first statement to law enforcement when he actually

provided those names in his second statement. As discussed supra, however, the record reflects

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that the jury heard that Nehemiah’s initial statement, while in the hospital, that he did not know

who shot him. So even assuming that the prosecutor misspoke as to when the reference to

“Cory” or “Jacory” was made, Brown fails to show either that the misstatement was egregious,

or that, absent the misstatement, he would have achieved a better result. In sum, Brown fails to

show that he is entitled to relief on any argument advanced in support of his prosecutorial

misconduct claim.

V. CONCLUSION AND ORDER

Brown is not entitled to relief on any ground raised in his Petition.

IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ

of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of

Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain

a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree

with the district court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,

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537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the

Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.

The Clerk of the Court is to enter judgment accordingly.

Dated: September 14, 2020.

/s/James K. Singleton, Jr.

JAMES K. SINGLETON, JR.

Senior United States District Judge

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