(HC) Brown v. Robertson

1

2

3

4

5

6 UNITED STATES DISTRICT COURT

7 FOR THE EASTERN DISTRICT OF CALIFORNIA

8

9 KEVIN A. BROWN, No. 2:20-cv-0991 KJM DB P

10 Petitioner,

11 v. FINDINGS AND RECOMMENDATIONS

12 JIM ROBINSON,

13 Respondent.

14

15 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a

16 writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his convictions and sentence

17 imposed by the Sacramento County Superior Court in 2016 for sex crimes and robbery.

18 Petitioner alleges violations of his right to due process and his Sixth Amendment right to counsel.

19 For the reasons set forth below, this court will recommend the petition be denied.

20 BACKGROUND

21 I. Facts Established at Trial

22 The California Court of Appeal for the Third Appellate District provided the following

23 factual summary:

24 Prosecution Evidence

25 More than 20 years prior to trial, defendant married his wife, the

victim's daughter. In 1995, the victim purchased an apartment

26 building in Louisiana where she lived in the front apartment.

Defendant, his wife, and their son lived together in the back

27 apartment. The victim had defendant cut a hole in the closet so that

she could go back and forth between the apartments “to do laundry

28 and whatever she needs to do.”

1

1 One day, defendant asked the victim to come and see something in

the closet. At the closet, defendant tried to shove the victim inside.

2 Defendant's brother-in-law, the victim's son, happened to be present

and intervened.

3

On another occasion, the victim woke up to see defendant standing

4 over her with a knife in his hand. As the victim said defendant's

name, he put his hand over her mouth. Defendant's wife and brother-

5 in-law ran into the victim's apartment. As defendant's wife attempted

to take the knife from defendant, the victim was cut on her hand. The

6 cut was deep enough to leave a scar. Defendant's wife and brother-

in-law and defendant kept “tussling with the knife” until the blade

7 broke from the handle.

8 The victim testified she had known defendant to use crack cocaine in

Louisiana. During both assaults, defendant seemed like a different

9 person and behaved erratically. About defendant, the victim testified

that “he's a pretty decent person other than when he's under the

10 influence.”

11 As a result of the damage caused by Hurricane Katrina in 2005, the

victim and her family – including defendant and his wife – moved to

12 Sacramento to be near other family members. In 2012, defendant, his

wife, and their son moved in with the victim at her residence in

13 Sacramento.

14 On January 11, 2013, the victim came home from work around 5:30

p.m. As she walked inside, defendant surprised her and began

15 punching her in the face. The victim attempted to fight back.

Defendant put her into a chokehold and told her he was going to kill

16 her if she did not stop fighting. Defendant choked the victim until she

urinated on herself and lost consciousness. When the victim regained

17 consciousness, she was lying on the floor with her arms tied behind

her back and her legs taped up. Defendant put duct tape over the

18 victim's mouth.

19 Defendant asked for and received the victim's bank card and PIN.

Defendant said the PIN “better be right” or he would “come back and

20 get [her].” The victim scooted toward the kitchen to try to find

something to help free herself.

21

Defendant returned within 15 minutes and found the victim in the

22 kitchen. Even with duct tape over her mouth, the victim believed

defendant understood what she was saying. Defendant dragged her

23 back into the living room and tied her more tightly with a vacuum

cleaner cord. Defendant paced for a few minutes before dragging the

24 victim into a small bedroom. The windows were closed and there was

no ventilation.

25

The victim asked defendant what he was doing. Defendant

26 responded, “Shut up.” Defendant smoked crack cocaine from a pipe

for about 10 minutes. Defendant was so close to the victim she

27 “inhaled whatever it was he was smoking.” Defendant then pulled

down the victim's pants. The victim told him, “Kevin, you don't want

28 to do that.”

2

1 Defendant used a telephone to call someone to tell the call recipient

to “bring him some more.” Defendant stepped outside and spoke with

2 someone. After about 5 to 10 minutes, defendant returned. Defendant

resumed smoking. The victim was lying on the bed with her pants

3 pulled down.

4 Defendant took off his clothes and inserted his penis into the victim's

vagina. He then inserted his penis into her anus. Defendant was

5 smoking while he inserted his penis into her anus for the first time.

“After a while, when he ... couldn't get an erection, he stopp[ed] and

6 started smoking” again. At some point, defendant licked her breast.

7 The victim testified defendant inserted his penis into her anus during

three “different separate occasions.” Between the second and third

8 occasion, defendant “[j]ust smoked.” Although defendant never

achieved a full erection, the victim said he was most erect during the

9 third insertion into her anus. After the third attempt, defendant

appeared to get tired, got up, and began pacing again. The victim

10 estimated the assault ended at 1:30 a.m.

11 The victim did not consent to sex or smoke crack cocaine with

defendant.

12

Defendant freed the victim and then drove off in her vehicle. The

13 victim informed defendant's wife of the assault and left the house.

Defendant's wife called the police and the victim went to the Sutter

14 Medical Center.

15 The victim was examined by physician's assistant Jennifer Joses

around 5:00 a.m. on January 12, 2013. The victim reported she had

16 not had consensual sexual intercourse within the previous 5 days, had

not consumed alcohol within the previous 12 hours, and had not used

17 drugs within the previous 96 hours. The victim's right eye showed a

ruptured blood vessel consistent with receiving a direct blow or being

18 choked. The victim had multiple bruises on her neck, right knee, and

right arm. Joses did not observe any signs the victim was under the

19 influence of cocaine.

20 The victim was bleeding at the opening of her cervix. She also had

abrasions at the anal fold that were consistent with sexual assaults

21 such as anal penetration. Joses collected several biological samples

from the victim, including a urine sample and the victim's underwear.

22

At 11:00 a.m., defendant called his wife and said he was in Los

23 Angeles. Defendant's wife testified that “he don't know what

happened. All he knows is he was driving and when he really woke

24 up, he was in LA. That's what he said.” Defendant's wife arranged a

three-way conference call including defendant, herself, and City of

25 Sacramento Police Detective Newby. During the call, which was

played for the jury, defendant stated he borrowed the victim's car. He

26 admitted taking the victim's ATM card and money. He remembered

driving to Los Angeles but not assaulting the victim. Defendant

27 admitted he had ingested “drugs.” He denied having sex with the

victim or tying her up.

28

3

1 Defendant's wife testified she had never known the victim to ingest

crack cocaine. Although defendant's wife had observed others to be

2 under the influence of crack cocaine, she did not see any such signs

in the victim after the assault.

3

Later, after defendant was taken into custody, he was interviewed by

4 City of Sacramento Police Detective Terri Castiglia. During the

interview, defendant acknowledged taking the victim's car and

5 money from her bank account. Defendant admitted he had smoked

crack cocaine on the day of the incident. Defendant stated he could

6 not remember what had happened when the victim arrived home

from work that day. Defendant noted his DNA had been collected

7 and “if it matched up whatever they said I done, I must have done it.”

8 Criminalist Sarah Porter testified as an expert witness in forensic

examination of body fluids and tissues for controlled substances,

9 including cocaine and cocaine metabolite. Porter's testing of the

victim's urine sample revealed the presence of benzoylecgonine, a

10 cocaine metabolite. Porter stated that “there are cases where people

may come in contact with cocaine passively, such that they then have

11 the cocaine or cocaine metabolite in their system as a result.”

Second-hand smoke from a crack cocaine user can cause the passive

12 exposure. Porter described studies in which exposure to second-hand

smoke or vaporized cocaine produced positive urine results.

13 However, Porter did not opine about how the victim might have

ingested or been exposed to cocaine.

14

Forensic testing matched defendant's DNA with a DNA profile on

15 swabs taken from the victims' breast and rectal swabs.

16 Defense

17 During closing arguments, defendant's trial attorney argued the

evidence was insufficient to convict defendant. Defense counsel

18 argued the evidence showed the victim had smoked cocaine and the

injuries she sustained “were more visible than they look.” The

19 defense theory was that the victim had smoked cocaine with

defendant and then lied about it and the sexual assault.

20

People v. Brown, No. C081100, 2019 WL 2314592, at ** 1-3 (Cal. Ct. App. May 31, 2019) (ECF

21

No. 20-8 at 2-71).

22

23 1

Respondent lodged portions of the state court record. (See ECF No. 20.) The Clerk’s Transcript

is lodged at ECF Nos. 20-1 and 20-2. The Record of Transcript is ECF Nos. 20-3 and 20-4. The

24 briefs and opinions on appeal are ECF Nos. 20-5 to 20-10. The state habeas petitions and

opinions are ECF Nos. 20-11 to 20-16. This court cites to the electronic filing pagination rather

25 than the pagination of the original documents. With respect to the opinion of the Court of

26 Appeal, that court modified one section of its opinion on rehearing. See 2019 WL 2314592 (Cal.

Ct. Ap. June 20, 2019). The Westlaw version of the opinion contains that modification.

27 However, the version of the opinion lodged with the court does not. This court cites to the lodged

version of the appellate court’s opinion and cites to the Westlaw version only with respect to

28 petitioner’s arguments regarding the amended section.

4

1 II. Procedural Background

2 A. Judgment and Sentencing

3 A jury convicted defendant of committing the following offenses against the victim: three

4 counts of forcible sodomy (Cal. Penal Code § 286(c)(2); Counts 1-3); rape (Penal Code §

5 261(a)(2); Count 4); sexual assault (Penal Code § 243.4(a); Count 5); false imprisonment (Penal

6 Code § 236; Count 6), robbery (Penal Code § 211; Count 7), and unlawfully taking a vehicle

7 (Veh. Code, § 10851(a); Count 8). The jury also found true the allegations that defendant bound

8 the victim during the rape and sodomies in violation of Penal Code § 667.61(e)(5), which

9 imposed a minimum fifteen-year sentence. The trial court sentenced defendant to serve a state

10 prison term of 66 years to life.

11 B. State Appeal and Federal Proceedings

12 The California Court of Appeal affirmed the judgment and sentence in a reasoned opinion.

13 (ECF No. 20-8.) The California Supreme Court denied the petition for review without comment.

14 (ECF No. 20-10). Petitioner then filed habeas petitions in the state superior, appellate and

15 supreme courts. (ECF Nos. 20-11, 20-13, and 20-15.) The superior court issued a reasoned

16 order. (ECF No. 20-12.) The appellate and supreme courts denied the habeas petitions without

17 comment. (ECF Nos. 20-14 and 20-16.)

18 Petitioner originally filed a petition in this court in 2017. Brown v. Arnold, 2:17-cv-1344

19 TLN DB P. Because petitioner’s state court appeal was pending at that time, the court abstained

20 from considering the petition and dismissed it without prejudice.

21 Petitioner filed the present petition for a writ of habeas corpus on May 15, 2020. (ECF

22 No. 1.) Respondent filed an answer (ECF No. 24) and petitioner filed a reply (ECF Nos. 27, 28).

23 STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS

24 An application for a writ of habeas corpus by a person in custody under a judgment of a

25 state court can be granted only for violations of the Constitution or laws of the United States. 28

26 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

27 application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502

28 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

5

1 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas

2 corpus relief:

3 An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

4 with respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim –

5

(1) resulted in a decision that was contrary to, or involved an

6 unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

7

(2) resulted in a decision that was based on an unreasonable

8 determination of the facts in light of the evidence presented in the State

court proceeding.

9

10 For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

11 holdings of the United States Supreme Court at the time of the last reasoned state court decision.

12 Greene v. Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011)

13 (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “‘may be

14 persuasive in determining what law is clearly established and whether a state court applied that

15 law unreasonably.’” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th

16 Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle

17 of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not

18 announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 567 U.S.

19 37 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely

20 accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be

21 accepted as correct.” Id. at 64. Further, where courts of appeals have diverged in their treatment

22 of an issue, it cannot be said that there is “clearly established Federal law” governing that issue.

23 Carey v. Musladin, 549 U.S. 70, 76-77 (2006).

24 A state court decision is “contrary to” clearly established federal law if it applies a rule

25 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

26 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003)

27 (quoting Williams, 529 U.S. at 405-06). “Under the ‘unreasonable application’ clause of §

28 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct

6

1 governing legal principle from th[e] [Supreme] Court's decisions, but unreasonably applies that

2 principle to the facts of the prisoner's case.’” Lockyer v. Andrade, 538 U.S. 63, 75 (2003)

3 (quoting Williams, 529 U.S. at 413); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A]

4 federal habeas court may not issue the writ simply because that court concludes in its independent

5 judgment that the relevant state-court decision applied clearly established federal law erroneously

6 or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411;

7 see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Andrade, 538 U.S. at 75 (“It is not

8 enough that a federal habeas court, in its independent review of the legal question, is left with a

9 firm conviction that the state court was erroneous.” (Internal citations and quotation marks

10 omitted.)). “A state court's determination that a claim lacks merit precludes federal habeas relief

11 so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision.”

12 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,

13 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a

14 state prisoner must show that the state court's ruling on the claim being presented in federal court

15 was so lacking in justification that there was an error well understood and comprehended in

16 existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

17 There are two ways a petitioner may satisfy subsection (d)(2). Hibbler v. Benedetti, 693

18 F.3d 1140, 1146 (9th Cir. 2012). He may show the state court’s findings of fact “were not

19 supported by substantial evidence in the state court record” or he may “challenge the fact-finding

20 process itself on the ground it was deficient in some material way.” Id. (citing Taylor v. Maddox,

21 366 F.3d 992, 999-1001 (9th Cir. 2004), abrogated by Murray v. Schriro, 745 F.3d 999-1000 (9th

22 Cir. 2014)2); see also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir. 2014) (If a state court makes

23

2

In Kipp v. Davis, 971 F.3d 939, 953 n.13 (9th Cir. 2020), the Court of Appeals explained the

24 effect of the decision in Murray on Taylor:

In Murray I, we recognized that Pinholster foreclosed Taylor’s suggestion that an

25 extrinsic challenge, based on evidence presented for the first time in federal court, may

26 occur once the state court's factual findings survive any intrinsic challenge under section

2254(d)(2). Murray I, 745 F.3d at 999–1000. Kipp does not present an extrinsic challenge

27 so Murray I’s abrogation of Taylor on this ground is irrelevant here.

Similarly, in the present case, there is no extrinsic challenge based on evidence presented for the

28 first time in federal court, so Murray’s limitation of Taylor is not relevant.

7

1 factual findings without an opportunity for the petitioner to present evidence, the fact-finding

2 process may be deficient and the state court opinion may not be entitled to deference.). Under the

3 “substantial evidence” test, the court asks whether “an appellate panel, applying the normal

4 standards of appellate review,” could reasonably conclude that the finding is supported by the

5 record. Hibbler, 693 F.3d at 1146 (9th Cir. 2012).

6 The second test, whether the state court’s fact-finding process is insufficient, requires the

7 federal court to “be satisfied that any appellate court to whom the defect [in the state court’s fact-

8 finding process] is pointed out would be unreasonable in holding that the state court’s fact-finding

9 process was adequate.” Hibbler, 693 F.3d at 1146-47 (quoting Lambert v. Blodgett, 393 F.3d

10 943, 972 (9th Cir. 2004)). The state court’s failure to hold an evidentiary hearing does not

11 automatically render its fact-finding process unreasonable. Id. at 1147. Further, a state court may

12 make factual findings without an evidentiary hearing if “the record conclusively establishes a fact

13 or where petitioner’s factual allegations are entirely without credibility.” Perez v. Rosario, 459

14 F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)).

15 The court looks to the last reasoned state court decision as the basis for the state court

16 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

17 “[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from

18 a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the

19 reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en

20 banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim

21 has been presented to a state court and the state court has denied relief, it may be presumed that

22 the state court adjudicated the claim on the merits in the absence of any indication or state-law

23 procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be

24 overcome by showing “there is reason to think some other explanation for the state court's

25 decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

26 Similarly, when a state court decision on a petitioner's claims rejects some claims but does not

27 expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that

28 the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 293 (2013).

8

1 When it is clear, that a state court has not reached the merits of a petitioner’s claim, the

2 deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court

3 must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099,

4 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

5 If a petitioner overcomes one of the hurdles posed by section 2254(d), the federal court

6 reviews the merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir.

7 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear

8 both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is

9 such error, we must decide the habeas petition by considering de novo the constitutional issues

10 raised.”). For the claims upon which petitioner seeks to present evidence, petitioner must meet

11 the standards of 28 U.S.C. § 2254(e)(2) by showing that he has not “failed to develop the factual

12 basis of [the] claim in State court proceedings” and by meeting the federal case law standards for

13 the presentation of evidence in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S.

14 170, 186 (2011).

15 ANALYSIS

16 Petitioner raises numerous claims, some of which overlap. As best this court can tell,

17 petitioner’s claims are: (1) there was insufficient evidence at the preliminary hearing to support

18 holding petitioner over for trial on all charges; (2) counsel was ineffective at the preliminary

19 hearing for failing to object to the unsupported charges; (3) petitioner did not have fair notice of

20 the evidence presented at trial; (4) there was insufficient evidence to support the jury’s finding

21 that counts 1 through 5 were separate incidents resulting in consecutive sentences; (5) petitioner

22 was subjected to double jeopardy on the three counts of forcible sodomy (counts 1-3); (6) there

23 was insufficient evidence to support claims 3 and 4; (7) the trial court erred in admitting evidence

24 of prior uncharged crimes; (8) trial counsel was ineffective for failing to object to expert

25 testimony regarding passive inhalation of crack cocaine; (9) petitioner was denied the right to

26 represent himself on the motion for a new trial; (10) the state courts violated his due process

27 rights by refusing to hear claims on procedural grounds; and (11) appellate counsel was

28 ineffective for failing to raise claims on appeal.

9

1 Because petitioner is pro se and this court liberally construes his pleadings, in addition to

2 considering the arguments petitioner makes in federal petition, this court has also considered the

3 arguments made in petitioner’s briefs on appeal and in his state habeas petitions.

4 Initially, this court notes that respondent objects to some claims on the basis that they are

5 unexhausted and/or procedurally defaulted. (See ECF No. 24 at 11-13.) Because this court finds

6 it more efficient to address these claims on their merits, the undersigned does not address the

7 exhaustion and procedural default issues in any detail. See 28 U.S.C. § 2254(b)(1) (The federal

8 court may not grant a habeas petition based on an unexhausted claim.); Lambrix v. Singletary,

9 520 U.S. 518, 524-25 (1997) (reviewing court need not invariably resolve the question of

10 procedural default prior to ruling on the merits of a claim); Franklin v. Johnson, 290 F.3d 1223,

11 1232 (9th Cir. 2002) (“Procedural bar issues are not infrequently more complex than the merits

12 issues presented by the appeal, so it may well make sense in some instances to proceed to the

13 merits if the result will be the same.”); see also Ayala v. Chappell, 829 F.3d 1081, 1096 (9th Cir.

14 2016) (same; citing Franklin, 290 F.3d at 1232).

15 I. Claims re Preliminary Hearing

16 Petitioner makes several arguments regarding the preliminary hearing. He alleges there

17 was insufficient evidence to support the five sex crime charges (counts 1-5) and that his attorney

18 was ineffective for failing to object to the unsupported charges. (ECF No. 1 at 10-14, 31-35.) He

19 further alleges that the evidence presented at the preliminary hearing did not give him fair notice

20 of the charges brought at trial or the evidence presented at trial. (ECF No. 1 at 15, 32.)

21 A. Claims re Sufficiency of the Evidence at Preliminary Hearing

22 1. Decision of the State Court

23 Petitioner’s first two claims were raised in his state habeas petitions and addressed by the

24 Superior Court.3 Because the Court of Appeal and the California Supreme Court issued silent

25 3

The Superior Court noted that petitioner raised four additional issues, but did not identify those

issues. As best this court can tell from its review of the state court habeas petition, they are: (1)

26 there was insufficient evidence at the preliminary hearing to support the prosecutor’s amendment

of one count of sodomy (ECF No. 20-11 at 50-52); (2) the “multiplicity” of counts 1-5 violated

27 petitioner’s right to be free of double jeopardy (ECF No. 20-11 at 75, 63); (3) the consecutive

sentences violated due process (ECF No. 20-11 at 60, 115); and (4) the preliminary hearing did

28 not provide notice of the charges and/or the evidence adduced at trial. The Superior Court

10

1 opinions, the Superior Court’s opinion is the last reasoned opinion of a state court. The Superior

2 Court held:

3 Petitioner’s primary contention is that insufficient evidence was

presented at the preliminary hearing to justify a holding order on

4 Counts 1-5 or under Penal Code § 667.61. He claims that the crimes

were not separate and that his public defender should have objected

5 to evidence at the preliminary hearing or should have filed a 995

motion.

6

When the evidence produced at trial supports a conviction, the

7 question of whether evidence at the preliminary hearing supported

probable cause is moot. (People v. Hampton (1981) 116 Cal.App.3d

8 193, 199.) Similarly, inadequate assistance of counsel at a

preliminary hearing cannot be shown unless the defendant can show

9 that counsel’s error resulted in an unfair trial. (People v. Coleman

(1988) 46 Cal. 3d 749, 773.)

10

Petitioner’s claims about the inadequacy of evidence at his

11 preliminary hearing cannot succeed. At preliminary hearing, the

evidence had to be sufficient to show only that there was probable

12 cause to believe that petitioner had committed the crimes charged.

At trial, the evidence had to be sufficient beyond a reasonable doubt

13 to show the same. Because petitioner went to trial and was convicted,

he has no claim regarding the earlier proceeding. If he thinks that

14 the evidence at trial was insufficient, that claim may be made on

appeal. The same is true of counsel’s representation. Unless

15 petitioner can show that counsel’s representation during preliminary

hearing resulted in an unfair trial – a claim that cannot be sustained

16 based on insufficiency of the evidence – he cannot show ineffective

representation regarding the earlier proceeding.

17

(ECF No. 20-12 at 1.)

18

2. Analysis

19

The state court relied on only state law for its decision. When a state court decision

20

rejects some of a petitioner’s claims but does not expressly address a federal claim, a federal

21

habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the

22

merits.4 Johnson, 568 U.S. at 292. For unexplained state court decisions, this court “must

23

determine what arguments or theories . . . could have supported, the state court’s” rejection of the

24

claim “and then it must ask whether it is possible fairminded jurists could disagree that those

25

26 refused to consider these issues because they should have been, or were, raised on appeal. (ECF

No. 20-12 at 2.)

27 4

Because petitioner was pro per at the time he filed the habeas petition in state court, and because

the court liberally construes prisoners’ pro se filings, this court will assume for purposes of this

28 analysis that petitioner raised a federal law basis for his claims based on the preliminary hearing.

11

1 arguments or theories are inconsistent with the holding in a prior decision of th[e] [Supreme]

2 Court.” Richter, 562 U.S. at 102. Here, the state and federal case law are essentially the same.

3 Errors at a preliminary hearing provide no grounds for relief and do not present a federal

4 constitutional claim cognizable in a § 2254 action.

5 [E]rrors at a preliminary hearing cannot support federal habeas relief

because they do not affect the constitutionality of the conviction. At

6 most, defects at a preliminary hearing affect the validity of the

probable cause determination. A probable cause determination,

7 however, is not a constitutional prerequisite to a charging decision.

Gerstein v. Pugh, 420 U.S. 103, 125 n.26 (1975); see also Howard v.

8 Cupp, 747 F.2d 510, 510 (9th Cir. 1984) (well settled that there is no

fundamental right to a preliminary hearing), cert. denied, 471 U.S.

9 1021 (1985). Accordingly, a conviction will not be vacated on the

ground that the defendant was detained pending trial without a

10 determination of probable cause, Gerstein, 420 U.S. at 119, or on the

ground that the probable cause determination was faulty, Viltz v.

11 McEwen, 2013 U.S. Dist. LEXIS 153714 at *38-39 (S.D. Cal. 2013)

(collecting cases). Issues pertaining to the sufficiency, credibility,

12 and admissibility of testimony at a preliminary hearing simply

13 provide no basis for habeas relief, even without reference to

AEDPA5 standards. See Gilmore v. California, 364 F.2d 916, 918 n.

14 5 (9th Cir. 1966). In short, once a jury returns a guilty verdict, the

validity of the conviction turns on the constitutionality of the trial—

15 any errors at the preliminary hearing are moot.

16 Blair v. Price, No. 2:16-cv-0132 JAM AC, 2020 WL 3574269, at *12 (E.D. Cal. July 1, 2020),

17 rep. and reco. adopted, 2020 WL 7240582 (E.D. Cal. Dec. 9, 2020).

18 This reasoning applies equally to petitioner’s claim that his attorney was ineffective at the

19 preliminary hearing because they failed to object to the sufficiency of the evidence. The test for

20 an ineffective assistance of counsel claim is whether counsel’s conduct was unreasonable and, if

21 it was, whether there is a reasonable probability the result of the trial would have been different

22 had counsel acted reasonably. Strickland v. Washington, 466 U.S. 668, 687 (1984). The result of

23 trial was based on the evidence presented to the jury at trial, not the evidence introduced at the

24 preliminary hearing.6

25 5

In 1996, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) became effective. It

26 substantially amended the federal habeas statutes.

27 6

To the extent petitioner is also making a claim that his trial attorney was ineffective for failing to

object to the insufficiency of the evidence at the preliminary hearing to support all charges (see

28 reply, ECF No. 27 at 115-137), not just charges 1-5, such a claim should not succeed because

12

1 Petitioner has no constitutional basis for his claims that the evidence at the preliminary

2 hearing was insufficient to support the separate charges in counts 1-5. Those claims should be

3 denied.

4 B. Claim that Preliminary Hearing did not Provide Fair Notice

5 Petitioner’s third claim regarding the preliminary hearing is that the evidence presented

6 did not give petitioner fair notice of the charges and evidence brought at trial. It appears that

7 petitioner raised this claim in his state habeas petitions and the superior court found it

8 procedurally barred because it should have been raised on appeal. (See ECF No. 20-12 at 2.)

9 This court need not address the procedural bar issue because petitioner’s claim is baseless on its

10 merits.

11 Petitioner cites various state laws in support of this argument. (See ECF No. 1 at 32-33.)

12 However, he cites no federal law basis for this claim. Further, the amended complaint for the

13 preliminary hearing was the same document with the same charges as the information for trial.

14 (ECF No. 20-1 at 45-49.) Therefore, petitioner had notice of the charges pursued at trial. To the

15 extent petitioner is arguing that the preliminary hearing did not give him notice of the evidence

16 presented at trial, there is no such constitutional requirement. See United States v. Agurs, 427

17 U.S. 97, 112 n. 20 (1976) (“[I]t has always been the Court’s view that the notice component of

18 due process refers to the charge rather than the evidentiary support for the charge.”); Smith v.

19 McDaniel, No. 3:06-cv-0087-ECR VPC, 2009 WL 2152325, at *26 (D. Nev. July 10, 2009) (“It

20 is long-established law that a defendant does not have a general constitutional right to notice of

21

22 petitioner cannot show prejudice. See Gabay v. Woodford, 418 F. App’x 649, 651 (9th Cir.

2011) (“Trial counsel's failure to seek dismissal of the charges was also non-prejudicial because

23 the charges would have been simply re-filed.” (citing Cal. Penal Code § 999).) Further, this

court will not second-guess the determination of the judge at the preliminary hearing that

24 sufficient evidence supported all charges because petitioner fails to show that “no rational trier of

fact” could have come to that conclusion. Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam);

25 see also Richter, 562 U.S. at 103 (habeas claim may be granted only where state court decision is

26 so unreasonable that no fairminded jurist could have so held). Finally, any claim challenging the

sufficiency of the evidence for all charges is procedurally defective because it is unexhausted and

27 also because, as far as this court can tell, it was raised for the first time in petitioner’s reply. See

28 U.S.C. § 2254(b)(1); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (reply is

28 not proper pleading to raise additional grounds for relief or amend petition).

13

1 the evidence that the State will use against him.” (citing Gray v. Netherland, 518 U.S. 152, 167-

2 68 (1996).), aff’d, 467 F. App’x 703 (9th Cir. 2012). Petitioner’s claim that the preliminary

3 hearing did not provide him notice of the charges and/or the evidence at trial should be denied.

4 II. Duplicative Verdicts

5 Petitioner argues that the evidence did not show that each charge was a distinct crime. He

6 contends: (1) there was insufficient evidence to support the jury’s finding that counts 1 through 5

7 were separate incidents and should not have resulted in consecutive sentences;7

8 and (2) that the convictions and sentences for the three sodomy counts amounted to Double

9 Jeopardy. (ECF No. 1 at 22, 33, 36; ECF No. 20-5 at 51-59.)

10 There is one reasoned decision from a state court, the Court of Appeal, which addresses

11 the first issued raised. It should be noted that the argument raised in state court involved the

12 imposition of consecutive sentences on the first four counts – the convictions for three counts of

13 sodomy and one of rape. Petitioner’s indication that the sentence on count five, sexual battery,

14 was consecutive to the first four is incorrect. (See ECF No. 20-4 at 489-499.)

15 A. Insufficient Evidence of Separate Incidents for Sentencing

16 The Court of Appeal considered petitioner’s claim that consecutive sentences for the rape

17 and first act of sodomy violated his due process rights because the evidence did not show the

18 crimes occurred on separate occasions.

19 Defendant argues the trial court erred in imposing consecutive

sentences for the rape and first act of sodomy against the victim.

20 Defendant asserts the evidence does not support a finding the two

incidents were separate offenses under section 667.6, subdivision (d).

21 We disagree.

22 7

In his reply brief, citing Apprendi v. New Jersey, 530 U.S. 466 (2000), petitioner contends his

23 rights were violated by the determination by the trial judge, rather than a jury, that counts 1

through 5 were separate incidents for purposes of imposing consecutive sentences. While an

24 issue raised for the first time in petitioner’s reply brief is neither exhausted nor properly raised

here, see n.6, supra, this claim would also fail on its merits. The Supreme Court has held that the

25 Sixth Amendment, as construed in Apprendi, and Blakely v. Washington, 542 U.S. 296, 301

26 (2004), does not inhibit states from assigning to judges, rather than juries, the findings of facts

necessary to the imposition of consecutive, rather than concurrent, sentences for multiple

27 offenses. Oregon v. Ice, 555 U.S. 160 (2009). As petitioner is not constitutionally entitled to have

a jury find facts necessary to the imposition of a consecutive sentence, any challenge to the state

28 court’s imposition of consecutive sentences does not merit habeas relief.

14

1 Section 667.61 requires “a consecutive sentence for each offense . . .

if the crimes involve separate victims or involve the same victim on

2 separate occasions as defined in subdivision (d) of Section 667.6.” (§

667.61, subd. (i), italics added.) Subdivision (d) of section 667.6

3 provides: “In determining whether crimes against a single victim

were committed on separate occasions under this subdivision, the

4 court shall consider whether, between the commission of one sex

crime and another, the defendant had a reasonable opportunity to

5 reflect upon his or her actions and nevertheless resumed sexually

assaultive behavior. Neither the duration of time between crimes, nor

6 whether . . . the defendant lost or abandoned his or her opportunity

to attack, shall be, in and of itself, determinative on the issue of

7 whether the crimes in question occurred on separate occasions.”

8 The California Supreme Court has explained that “[u]nder the broad

standard established by . . . section 667.6, subdivision (d), the Courts

9 of Appeal have not required a break of any specific duration or any

change in physical location. Thus, the Court of Appeal herein cited

10 People v. Irvin (1996) 43 Cal.App.4th 1063, 1071, for the principle

that a finding of ‘separate occasions’ under . . . section 667.6 does

11 not require a change in location or an obvious break in the

perpetrator’s behavior: ‘[A] forcible violent sexual assault made up

12 of varied types of sex acts committed over time against a victim, is

not necessarily one sexual encounter.’ Similarly, the Court of Appeal

13 in People v. Plaza (1995) 41 Cal.App.4th 377, 385, affirmed the trial

court’s finding that sexual assaults occurred on ‘separate occasions’

14 although all of the acts took place in the victim’s apartment, with no

break in the defendant’s control over the victim. (But see People v.

15 Pena (1992) 7 Cal.App.4th 1294, 1316, 9 Cal.Rptr.2d 550

[defendant’s change of positions between different sexual acts was

16 insufficient by itself to provide him with a reasonable opportunity to

reflect upon his actions, ‘especially where the change is

17 accomplished within a matter of seconds”]; People v. Corona (1988)

206 Cal.App.3d 13, 18 [holding, after the respondent implicitly

18 conceded the point, that the trial court erred in imposing consecutive

sentences for different sexual acts when there was no cessation of

19 sexually assaultive behavior ‘between’ acts].)” (People v. Jones

(2001) 25 Cal.4th 98, 104-105.)

20

We deferentially review the trial court’s factual finding regarding

21 whether the sex offenses were separately committed. As this court

has previously observed, “Once a trial judge has found under section

22 667.6, subdivision (d), that a defendant committed offenses on

separate occasions, we may reverse only if no reasonable trier of fact

23 could have decided the defendant had a reasonable opportunity for

reflection after completing an offense before resuming his [or her]

24 assaultive behavior.” (People v. Garza (2003) 107 Cal.App.4th 1081,

1092.) Under this deferential standard of review, we conclude the

25 trial court did not err in imposing consecutive sentences for the rape

and first count of sodomy against the victim.

26

Defendant’s four convictions for rape and sodomy arose out of his

27 six-and-a-half hour sexual assault of his victim. The record indicates

defendant had time to reflect between each of his instances of rape

28 and sodomy. As pertinent to defendant’s contention, defendant

15

1 inserted his penis into the victim’s vagina while he was in front of

her. Defendant then changed his position and moved to a position

2 behind the victim. While he was doing this, defendant was smoking

crack cocaine. Defendant had difficulty achieving an erection. He

3 persisted until he was able to penetrate her anus with his penis. The

victim’s testimony indicates the amount of time defendant spent after

4 vaginal penetration and before the sodomy when she stated, “After a

while, when he . . . couldn’t get an erection, he stopp[ed] and started

5 smoking” again. This testimony indicates a substantial time lapse

before the penetration for which he was convicted of sodomy and is

6 consistent with a series of sexual assaults spanning more than six

hours. Accordingly, the trial court did not err in imposing

7 consecutive sentences.

8

(ECF No. 20-8 at 19-21.)

9

The Court of Appeal set out the state law standards for the imposition of consecutive

10

sentences. It then considered the trial court’s factual findings. The court noted that its review of

11

those findings was highly deferential to the trial court. The Court of Appeal would only find

12

error if “no reasonable trier of fact could have decided the defendant had a reasonable opportunity

13

for reflection after completing an offense before resuming his [or her] assaultive behavior.”

14

To the extent petitioner is challenging the state’s court’s determination of the legal

15

standards, that claim should fail. First, as it did with respect to the prior claims, the state court

16

considered petitioner’s claim only under state law. It held that the trial court’s consideration of

17

the rape and first incident of sodomy as separate incidents for sentencing purposes did not violate

18

the state statutory standard for imposing consecutive sentences. That state-law holding is

19

consistent with petitioner’s briefs on appeal. On appeal, petitioner argued only that the

20

consecutive sentences violated state law. 8 (See ECF No. 20-5 at 53-58.) There is no mention of

21

a federal law violation.

22

Even if this court assumes petitioner properly raised a federal due process claim that the

23

Court of Appeal misinterpreted the legal standards, that claim would fail on the merits. The

24

8

Because petitioner was represented by counsel on appeal, this court need not assume, as it did

25 with respect to the prior claims, that petitioner raised a federal law argument in his consecutive

26 sentences claim. To the extent petitioner may have raised a federal basis for the claim in his

petition to the superior court, the superior court denied that claim on procedural grounds. (See

27 ECF No. 20-12 at 2.) A federal court treats a procedural denial as a bar to federal review. See

Coleman v. Thompson, 501 U.S. 722, 729 (1991). In any event, this court addresses petitioner’s

28 claim on its merits.

16

1 Court of Appeal ruled that petitioner’s sentence was correct under state law. The federal court is

2 bound by the state court’s determination of its own laws. See Bradshaw v. Richey, 546 U.S. 74,

3 76 (2005) (“[A] state court’s interpretation of state law, including one announced on direct appeal

4 of the challenged conviction, binds a federal court sitting in habeas corpus.”); see also Mullaney

5 v. Wilbur, 421 U.S. 684, 691 (1975) (“state courts are the ultimate expositors of state law”). The

6 only exception to that rule under the Due Process Clause is the “highly unusual case in which the

7 ‘interpretation is clearly untenable and amounts to a subterfuge to avoid federal review’ of a

8 constitutional violation.” Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008).

9 This court can find no basis to conclude that the decision of the Court of Appeal is “so

10 inconsistent with prior case law or the statute itself as to suggest that it is merely a subterfuge” to

11 evade federal review. See id.

12 Petitioner argued in his appellate briefs, and appears to argue here, that the Court of

13 Appeal incorrectly determined the facts. Even assuming petitioner properly exhausted a federal

14 due process challenge to the sufficiency of the evidence underlying the state court’s factual

15 findings, petitioner makes no showing that the Court of Appeals’ determination of the facts was

16 unreasonable within the meaning of 28 U.S.C. § 2254(d)(2). To satisfy § 2254(d)(2), petitioner

17 must show that the state appellate court, “applying the normal standards of appellate review”

18 could not reasonably conclude that the finding of the trial court was unsupported by the record.

19 Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). To do so, he may show the state

20 court’s findings of fact “were not supported by substantial evidence in the state court record” or

21 he may “challenge the fact-finding process itself on the ground it was deficient in some material

22 way.” Id. (citing Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), abrogated on other

23 grounds as stated in Kipp v. Davis, 971 F.3d 939, 953 n.13 (9th Cir. 2020)); see also Hurles v.

24 Ryan, 752 F.3d 768, 790-91 (9th Cir. 2014) (If a state court makes factual findings without an

25 opportunity for the petitioner to present evidence, the fact-finding process may be deficient and

26 the state court opinion may not be entitled to deference.).

27 Because petitioner does not allege that the fact-finding process at trial was deficient, this

28 court examines his challenge to the state court’s factual findings under the “substantial evidence”

17

1 test. “The question under AEDPA is not whether a federal court believes the state court’s

2 determination was incorrect but whether that determination was unreasonable - a substantially

3 higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). The Ninth Circuit has noted

4 that a federal court’s review of a record-based challenge, such as the challenge in this case, must

5 be “particularly deferential” to the state court’s decision. Murray v. Schriro, 745 F.3d 984, 999

6 (9th Cir. 2014) (citing Taylor, 366 F.3d at 1000).

7 During sentencing, the trial court considered whether it was required to impose

8 consecutive sentences for the sexual assault crimes under Penal Code § 667.6. Section 667.6(d)

9 states:

10 A full, separate, and consecutive term shall be imposed for each

violation of an offense specified in subdivision (e) if the crimes

11 involve separate victims or involve the same victim on separate

occasions.

12

In determining whether crimes against a single victim were

13 committed on separate occasions under this subdivision, the court

shall consider whether, between the commission of one sex crime

14 and another, the defendant had a reasonable opportunity to reflect

upon his or her actions and nevertheless resumed sexually assaultive

15 behavior. Neither the duration of time between crimes, nor whether

or not the defendant lost or abandoned his or her opportunity to

16 attack, shall be, in and of itself, determinative on the issue of whether

the crimes in question occurred on separate occasions.

17

The term shall be served consecutively to any other term of

18 imprisonment and shall commence from the time the person

otherwise would have been released from imprisonment. The term

19 shall not be included in any determination pursuant to Section

1170.1. Any other term imposed subsequent to that term shall not be

20 merged therein but shall commence at the time the person otherwise

would have been released from prison.

21

22 Applying section 667.61, the trial court imposed a fifteen-year sentence for each of the

23 four sexual assault crimes.

24 The testimony regarding the number of anal penetrations, and which one could be

25 considered the first instance of sodomy, was not entirely consistent. Several times the victim

26 testified that petitioner penetrated her anally three times. (See ECF No. 20-3 at 232 (“Three in

27 the butt, and one in the vagina.”); at 318 (“Q. . . . So you say that he had -- he penetrated you

28 three times in the rectum, as best as you remember, and once in the vagina? [¶] A. Yes.”)

18

1 In one series of answers, the victim responded there were three, and then appeared to

2 respond that there were four, anal penetrations:

3 Q. You stated earlier that he had penetrated your anus three times,

correct?

4

A. Yes.

5

Q. In between those times, did he get up out of the bed and walk

6 around?

7 A. After the second time.

8 Q. So he tried to put it in your anus the first time, and after that he

got off the bed. And another time, he had come up and put his penis

9 in your anus?

10 A. Yes.

11 Q. Did that also happen between the third and fourth time?

12 A. Yes.

13 (ECF No. 20-3 at 247.)

14 The trial court considered the testimony to show four instances of sodomy, citing the

15 colloquy above. (See ECF No. 20-4 at 502.) It stated:

16 The victim testified that the sexual assaults started when “[h]e

inserted his penis in my vagina, and then after, he got behind and did

17 my buttocks." The court deems this to be the first occasion of rape.

The victim further testified, quote, "And after a while when he

18 couldn't get an erection, he stopped and started smoking when he was

still behind me, laying behind me, and then he tried again to insert in

19 my butt."

20 The court deems this to be the first occasion of sodomy.

21 ...

22 Mr. Brown raped and sodomized the victim the first time, stopped

and smoked. There was an assault -- a break in his assaultive

23 behavior and an opportunity for him to reflect on what he was doing.

During this break, he engaged in nonsexual conduct. He then put his

24 penis in her anus. This was the second occasion.

25 He walked out of the bedroom after the second, third and fourth time

he sodomized the victim. At each point he stepped out of the

26 bedroom. Mr. Brown had an opportunity to reflect on his behavior,

but subsequently resumed his assaultive behavior in between each of

27 these occasions.

28 After returning each time, he put his penis inside the victim's anus,

19

1 stopped and smoked more crack cocaine. The victim testified that he

would assault her, stop and smoke crack, and then resume his

2 assaults.

3 Based upon the evidence and testimony at trial, the court finds there

was a break in the assaultive behavior, that the defendant had an

4 ample opportunity to reflect upon his actions.

5 Thus, based upon the testimony at trial, the court finds by a

preponderance of the evidence that each of the offenses committed

6 in Counts 1 through 4 were committed upon the same victim on four

separate occasions.

7

8 (ECF No. 20-4 at 500-501, 502-503.)

9 Whether or not the trial court’s findings that the victim was sodomized four times was

10 reasonably supported by the record, the Court of Appeal’s decision is the one this court reviews

11 for reasonableness. The Court of Appeal cited the victim’s testimony which “indicates a

12 substantial time lapse before the penetration for which he was convicted of sodomy.”

13 The victim testified that:

14 He inserted his penis in my vagina. And then after, he got behind and

he did my buttocks. And after a while, when he couldn't -- get -- um,

15 he couldn't get an erection, he stop and he started smoking when he

was still behind me, laying behind me, and I inhaled whatever it was

16 he was smoking. And then he tried again to insert in my -- in my butt.

17 (ECF No. 20-3 at 230.)

18 In determining whether the Court of Appeal’s decision was an unreasonable determination

19 of the facts, this court must consider not only whether the Court of Appeal failed to apply its

20 standard of review – that “no reasonable trier of fact could have” could have made the trial

21 court’s findings - but also the deference due the state court’s decision under §2254(d). See

22 Hibbler, 693 F.3d at 1146 (Petitioner must show that the state appellate court, “applying the

23 normal standards of appellate review” could not reasonably conclude that the finding of the trial

24 court was unsupported by the record.).

25 In the present case, the Court of Appeal’s finding that petitioner had the opportunity for

26 reflection, as required by state statute, between the rape and the first instance of sodomy,

27 assuming three rather than four instances, was not unreasonable in light of the evidence presented

28 at trial. The appellate court found that after the rape, petitioner moved around to the back of the

20

1 victim and did not immediately sodomize her because he failed to immediately have an erection.

2 Further, to the extent the Court of Appeal’s agreed with the trial court’s finding of four separate

3 instances of sodomy, there was evidence, as cited by the trial court, that petitioner sodomized the

4 victim four times. To the extent petitioner also argues that the other instances of sodomy were

5 not separate for purposes of the sentencing statute, petitioner fails to make any showing to

6 support such an argument and this court finds no support in the record for it. Accordingly, this

7 court finds no due process violation in the state court’s determination that, under state law,

8 petitioner should suffer consecutive sentences on the rape and three sodomy verdicts.

9 To the extent petitioner argues that his trial counsel should have challenged the

10 consecutive sentences, that claim should fail. Petitioner was not prejudiced by any error of

11 counsel because the appellate court determined that the consecutive sentences were appropriate

12 under state law and because this court finds no due process violation. There is no reasonable

13 probability petitioner would have received a different sentence had counsel made those

14 challenges.

15 B. Double Jeopardy

16 Petitioner challenges the consecutive sentence discussed above as violating the Double

17 Jeopardy Clause. This challenge should also fail.

18 The Double Jeopardy Clause protects “an individual from being subjected to the hazards

19 of trial and possible conviction more than once for an alleged offense.” Burks v. United States,

20 437 U.S. 1, 11 (1978) (quoting Green v. United States, 355 U.S. 184, 187 (1957)). “With respect

21 to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than

22 prevent the sentencing court from prescribing greater punishment than the legislature intended.”

23 Missouri v. Hunter, 459 U.S. 359, 366 (1983).

24 Petitioner was convicted of rape and three counts of sodomy. As discussed above, the

25 state court did not unreasonably interpret state law or unreasonably determine the facts to impose

26 consecutive sentences for these four crimes under California Penal Code § 667.6. Petitioner’s

27 double jeopardy claim should be denied.

28 ////

21

1 III. Sufficiency of the Evidence for Counts 3 and 4

2 Petitioner argues the evidence was insufficient to support two sodomy verdicts. The

3 United States Supreme Court has held that when reviewing a sufficiency of the evidence claim, a

4 court must determine whether, viewing the evidence and the inferences to be drawn from it in the

5 light most favorable to the prosecution, any rational trier of fact could find the essential elements

6 of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A

7 reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no

8 rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011)

9 (per curiam). Moreover, “a federal court may not overturn a state court decision rejecting a

10 sufficiency of the evidence challenge simply because the federal court disagrees with the state

11 court. The federal court instead may do so only if the state court decision was ‘objectively

12 unreasonable.’” Id. (citing Renico v. Lett, 559 U.S. 766 (2010)). The Supreme Court cautioned

13 that “[b]ecause rational people can sometimes disagree, the inevitable consequence of this settled

14 law is that judges will sometimes encounter convictions that they believe to be mistaken, but that

15 they must nonetheless uphold.” Id.

16 It is not clear whether petitioner raised this claim in state court. In any event, the claim

17 should not succeed. As described in the previous section, there was sufficient evidence to support

18 verdicts for three separate instances of sodomy.

19 IV. Admission of Evidence of Prior Acts

20 The prosecution presented evidence at trial that when the family resided in New Orleans

21 in 1998, petitioner assaulted the victim and, at another time, threatened her. In the first instance,

22 petitioner attempted to shove the victim into a closet. In the second, the victim woke up to see

23 petitioner standing over her with a knife in his hand. He covered her mouth with his hand.

24 Petitioner’s wife entered the victim’s apartment. As petitioner’s wife attempted to take the knife

25 from petitioner, the victim was cut on her hand. (See ECF No. 20-3 at 202-222.)

26 Petitioner argues that the evidence was not admissible under state law and was unduly

27 prejudicial in violation of his right to due process. In addition, petitioner argues that his trial

28 counsel was constitutionally ineffective for failing to challenge admission of the evidence. (ECF

22

1 No. 1 at 24, 38; ECF No. 20-5 at 20-34.)

2 A. Legal Standards for Review of State Court Evidentiary Rulings

3 It is well established that “federal habeas corpus relief does not lie for errors of state law.”

4 Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).

5 Thus, whether a petitioner’s “due process rights were violated by the admission of evidence . . . .

6 is [usually] no part of a federal court’s habeas review of a state conviction.” Id.; see also Rhoades

7 v. Henry, 638 F.3d 1027, 1034 n.5 (9th Cir. 2011) (“[E]videntiary rulings based on state law

8 cannot form an independent basis for habeas relief.”).

9 Nonetheless, courts have held that errors of state evidentiary law may violate due process

10 where “the evidence so fatally infected the proceedings as to render them fundamentally unfair.”

11 Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991); accord Gonzalez v. Knowles, 515

12 F.3d 1006, 1011 (9th Cir. 2008). In the context of review under 28 U.S.C. § 2254(d), however,

13 the federal court may only consider a rule that the Supreme Court has clearly established. The

14 Supreme Court has made very few rulings regarding the admission of evidence as a violation of

15 due process.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Indeed, the Supreme

16 Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence

17 constitutes a due process violation sufficient to warrant issuance of the writ.” Id. (citation

18 omitted); see also Munoz v. Gonzales, 596 F. App’x 588, 589 (9th Cir. 2015) (same). The Ninth

19 Circuit has also found no clearly established Supreme Court law that: (1) the admission of prior

20 bad acts evidence to show a propensity to commit the crime violates due process, Flowers v.

21 Foulk, 774 F. App’x 1019, 1022 (9th Cir.), cert. denied, 140 S. Ct. 379 (2019); or (2) the

22 admission of multiple hearsay violates due process, Zapien v. Davis, 849 F.3d 787, 794 (9th Cir.

23 2015).

24 There appears to be some disagreement in this circuit about whether, absent a Supreme

25 Court ruling on the specific issue – here, the admission of prior acts evidence, an analysis under

26 the broad fundamentally unfair standard should be conducted separately. For example, in Garnett

27 v. Adams, 731 F. App’x 636, 638 (9th Cir. 2018), the court held:

28 ////

23

1 [The petitioner’s] arguments must fail as, under the AEDPA, even if

this Court were inclined to find the admission of the fire

2 experimentation evidence so “clearly erroneous” that it rendered the

trial “fundamentally unfair,” we “may not permit the grant of federal

3 habeas corpus relief” if such an admission is “not forbidden by

‘clearly established Federal law.’” Holley v. Yarborough, 568 F.3d

4 1091, 1101 (9th Cir. 2009) (quoting § 2254(d)(1)).

5

See also Zapien, 849 F.3d at 794 (same). The court in Leinweber v. Tilton, 490 F. App’x 54 (9th

6

Cir. 2012), took a different approach. After recognizing the absence of any clearly established

7

Supreme Court law regarding propensity evidence, the court considered whether the petitioner

8

could establish that admission of the evidence rendered the trial fundamentally unfair. 490 F.

9

App’x at 58. In fact, the court in Leinweber specifically noted that “certain evidentiary rulings

10

and particularly the admission of propensity evidence under certain circumstances in a trial may

11

constitute a violation of due process and result in a fundamentally unfair trial.” Id.

12

B. Legal Standards for Ineffective Assistance of Counsel Claim

13

To establish his trial attorney rendered ineffective assistance in violation of his Sixth

14

Amendment rights, petitioner must show counsel acted unreasonably and, if counsel had acted

15

reasonably, there is a reasonable probability the result of the trial would have been different.

16

Strickland v. Washington, 466 U.S. 668, 687 (1984). A reasonable probability is “a probability

17

sufficient to undermine confidence in the outcome.” Id. at 694. “The likelihood of a different

18

result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).

19

A reviewing court “need not determine whether counsel’s performance was deficient

20

before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. .

21

. . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice

22

. . . that course should be followed.” Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002)

23

(quoting Strickland, 466 U.S. at 697), amended and superseded on other grounds, 385 F.3d 1247

24

(9th Cir. 2004); United States v. Ray, No. 2:11-cr-0216-MCE, 2016 WL 146177, at *5 (E.D. Cal.

25

Jan. 13, 2016) (citing Pizzuto, 280 F.3d at 954), aff’d, 735 F. App’x 290 (9th Cir. 2018).

26

////

27

////

28

24

1 C. Decision of the State Court

2 Petitioner raised this claim on appeal. The Court of Appeal held:

3 B.

4 Admission of Prior Acts Evidence Against the Same Victim under

Evidence Code Section 1101

5

1. General Rule

6

As a general rule, character evidence is not admissible to show

7 propensity to prove criminal conduct on a specific occasion. (Evid.

Code, § 1101, subd. (a).) Subdivision (b) of Evidence Code section

8 1101, provides an exception to the general rule by providing that

“[n]othing in this section prohibits the admission of evidence that a

9 person committed a crime, civil wrong, or other act when relevant to

prove some fact (such as motive, opportunity, intent, preparation,

10 plan, knowledge, identity, absence of mistake or accident, or whether

a defendant in a prosecution for an unlawful sexual act or attempted

11 unlawful sexual act did not reasonably and in good faith believe that

the victim consented) other than his or her disposition to commit such

12 an act.”

13 “Admission of section 1101, subdivision (b) evidence is addressed to

the sound discretion of the trial court. The trial court may exclude or

14 admit this type of evidence pursuant to Evidence Code section 352

which provides: ‘The court in its discretion may exclude evidence if

15 its probative value is substantially outweighed by the probability that

its admission will (a) necessitate undue consumption of time or (b)

16 create substantial danger of undue prejudice, of confusing the issues,

or of misleading the jury.’ The trial court’s determination will not be

17 disturbed on appeal absent a clear showing of an abuse of discretion.”

(People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609-1610

18 (Linkenauger).)

19 Linkenauger involved a defendant who was convicted of murdering

his wife after a marriage “punctuated by [the defendant’s] use of

20 physical force on her.” (32 Cal.App.4th at p. 1606.) The defendant in

that case argued the trial court had erred in admitting evidence of his

21 prior assaults on his wife. (Ibid.) The Linkenauger court rejected the

argument and noted California Supreme Court decisions have held

22 that “ ‘Evidence tending to establish prior quarrels between a

defendant and decedent and the making of threats by the former is

23 properly admitted . . . to show the motive and state of mind of the

defendant. . . .’ ” (Id. at p. 1610, quoting People v. Cartier (1960) 54

24 Cal.2d 300, 311, and collecting authority.) The Linkenauger court

concluded this rule “remains ‘good law’ after the California Supreme

25 Court opinion in People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt)”

that held varying degrees of similarity are required when evidence of

26 prior misconduct against different victims is offered to show intent,

common design or plan, or identity. (Linkenauger, supra, at pp.

27 1606, 1612.)

28

25

1 The Linkenauger court affirmed the continuing validity of the rule

that “[w]here a defendant is charged with a violent crime and has or

2 had a previous relationship with a victim, prior assaults upon the

same victim, when offered on disputed issues, e.g., identity, intent,

3 motive, etcetera, are admissible based solely upon the consideration

of identical perpetrator and victim without resort to a ‘distinctive

4 modus operandi’ analysis of other factors.” (Id. at p. 1612, quoting

People v. Zack (1986) 184 Cal.App.3d 409, 415 (Zack), italics

5 added.) In contrast to the general rule of admissibility under

Evidence Code section 1101, subdivision (b), that requires a

6 similarity analysis for prior acts evidence against a different victim,

“a broader range of evidence may be presented to show motive,

7 intent, and identity where the prior misconduct and charged offense

involves the identical perpetrator and victim.” (Linkenauger, supra,

8 at p. 1613, italics added.)

9 2. Evidence of Defendant’s Prior Assaults on the Same Victim

10 In this case, the evidence of defendant’s two prior assaults in

Louisiana was properly admitted at trial under Evidence Code

11 section 1101, subdivision (b), to show motive [fn 2] and the victim’s

fear.

12

Evidence of the prior assaults was relevant to proving defendant’s

13 motive. Both of the prior assaults occurring in Louisiana were

committed by the defendant against the same victim. During all three

14 attacks, defendant was acting under the influence of cocaine when he

physically assaulted his victim. The primary difference between the

15 attacks was that defendant was thwarted during the Louisiana

assaults but was able to continue his assault during the Sacramento

16 attack. Although similarity is not required where the same victim is

involved, we note the striking similarity here of defendant getting

17 high on crack cocaine and assaulting the victim added to the

probative value of the prior acts evidence. Further, the lapse of time

18 between the Louisiana and Sacramento assaults did not diminish the

probative value.

19

As to the victim’s fear, the prior assaults were relevant to show the

20 reasonableness of the victim’s fear of defendant when he is using

cocaine. Defendant argued the sexual encounter was consensual. The

21 victim’s fear was relevant to show a lack of consent.

22 The prior acts evidence was not unduly prejudicial. The victim’s

testimony regarding the prior assaults was brief. Moreover, the prior

23 assaults against the victim paled in comparison to defendant’s

conduct for the charged offenses that involved choking her to

24 unconsciousness, tying her up, threatening “to get her,” and raping

and sodomizing her over the course of several hours.

25

In short, the prior acts evidence was admissible under Evidence Code

26 section 1101, subdivision (b).

27 ////

28 ////

26

1 C.

2 Prior Acts of Domestic Violence under Evidence Code Section

1109

3

Defendant also argues the trial court erred in admitting the evidence

4 because defendant and the victim were not cohabitants within the

meaning of Evidence Code section 1109. We do not need to address

5 whether the trial court erred in allowing the prior acts evidence under

Evidence Code section 1109 because the admissibility of the prior

6 acts evidence in this case did not depend on Evidence Code section

1109. Instead, the prior acts evidence was admissible under Evidence

7 Code section 1101, subdivision (b), and the trial court did not give

the jurors an Evidence Code section 1109 instruction telling them

8 they could consider the evidence to show propensity. The purposes

for which the jury was told it could use the evidence was limited to

9 valid Evidence Code section 1101, subdivision (b), purposes.

Consequently, even if the trial court had erred in its analysis of

10 admissibility under Evidence Code section 1109, the evidence would

have been admissible under section 1101. “[W]e will affirm a

11 judgment correct on any legal basis, even if that basis was not

invoked by the trial court.” (Shaw v. County of Santa Cruz (2008)

12 170 Cal.App.4th 229, 269.)

13 The admissibility of the prior acts evidence under Evidence Code

section 1101, subdivision (b), and limited purposes for which the jury

14 was instructed it could use the evidence defeats defendant’s

contention that he received ineffective assistance of counsel because

15 his trial attorney did not object that Evidence Code section 1109’s

cohabitant requirement was not met. (People v. Cudjo (1993) 6

16 Cal.4th 585, 616 [no ineffective assistance of counsel for failure to

lodge an evidentiary objection to admissible evidence].) And “we

17 also reject defendant’s various constitutional claims. The routine and

proper application of state evidentiary law does not impinge on a

18 defendant’s due process rights.” (People v. Riccardi (2012) 54

Cal.4th 758, 809, overruled on another point by People v. Rangel

19 (2016) 62 Cal.4th 1192.)

20 [fn 2] On the issue of motive, “[a] defendant is not entitled to

have the jury determine his [or her] guilt or innocence on a

21 false presentation that his [or her] and the victim’s

relationship was peaceful and friendly. [Citation.]” (People

22 v. Fruits (2016) 247 Cal.App.4th 188, 204.)

23 D. Analysis of Admission of Evidence of Prior Acts

24 Petitioner argues the evidence of prior acts was inadmissible under either of the state

25 Evidence Code sections cited at trial. Evidence Code § 1101(a) prohibits the use of character

26 evidence to show propensity to commit the charged crimes. Subdivision (b) provides an

27 exception to this general rule by providing that “[n]othing in this section prohibits the admission

28 of evidence that a person committed a crime, civil wrong, or other act when relevant to prove

27

1 some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

2 mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or

3 attempted unlawful sexual act did not reasonably and in good faith believe that the victim

4 consented) other than his or her disposition to commit such an act.”

5 Petitioner’s argument regarding admissibility under section 1101(b) is solely a matter of

6 state law and, therefore, presents no federal constitutional issue for review in a federal habeas

7 proceeding. Estelle, 502 U.S. at 67.

8 Evidence Code § 1109 permits the admission of evidence of prior acts of domestic

9 violence. However, the Court of Appeal did not consider the admissibility of the evidence under

10 this section because it found the evidence admissible under section 1101(b). Further, the

11 appellate court noted that the trial court instructed the jurors that they could consider the evidence

12 under section 1101(b). It did not give the jurors an Evidence Code § 1109 instruction. Therefore,

13 any error in the admissibility of the evidence under section 1109 could not have affected the

14 verdict.

15 With respect to petitioner’s due process challenge, as described above, there is no clearly

16 established Supreme Court law that propensity evidence violates the Due Process Clause,

17 Flowers, 774 F. App’x at 1022, or that irrelevant or overtly prejudicial evidence violates due

18 process, Holley, 568 F.3d at 1101. Petitioner does not show otherwise. The cases petitioner cites

19 in support of his due process argument have very little precedential value. The Ninth Circuit

20 decided both cases - Walters v. Maass 45 F.3d 1355, 1357 (9th Cir. 1995) and Colley v. Sumner

21 784 F.2d 984, 990 (9th Cir. 1986) – prior to the enactment of the AEDPA in 1996. Rather than

22 review petitioner’s due process claim de novo as the Ninth Circuit did in those cases, the federal

23 court must now initially consider whether the state court decision was contrary to or an

24 unreasonable application of clearly established Supreme Court law under 28 U.S.C. § 2254(d).

25 The AEDPA standard involves a deference to the state court’s opinion not previously required.

26 Accordingly, petitioner’s due process challenge should fail because he has not shown the state

27 court’s decision was “contrary to or an unreasonable application of clearly established Federal

28 law” under 28 U.S.C. § 2254(d).

28

1 Even if petitioner may seek relief by showing the admission of the evidence rendered his

2 trial fundamentally unfair, petitioner’s claim should fail. The evidence of two prior acts was

3 limited and both sides made little of them. The victim testified briefly at trial to the two

4 incidents. (See ECF No. 20-3 at 202-222.) When she was cross-examined, the defense attorney

5 merely pointed out that the prior incidents had occurred many years previously and they were

6 nothing like the current charges. (ECF No. 20-3 at 309-310.) In their closing arguments, both

7 sides mentioned the prior incidents just once. The prosecution stated that they showed petitioner

8 does “erratic” things when smoking crack cocaine. (ECF No. 20-4 at 321.). The defense noted

9 that petitioner’s “bizarre” behavior in New Orleans occurred “20 years ago or something” and did

10 not appear to “make much of an impression on” the victim. (ECF No. 20-4 at 383.)

11 The jury’s conclusion that the victim was sexually assaulted multiple times had to rest on

12 a determination that the victim was credible. This court finds little, if any, relationship between

13 the victim’s credibility and her account of the two minor crimes petitioner committed many years

14 previously. To the extent it corroborated the victim’s testimony that petitioner was smoking

15 crack cocaine when committing the crimes at issue, she was not the only person to testify that

16 petitioner had acted badly when taking drugs. Petitioner’s wife testified that during both of the

17 incidents in New Orleans, petitioner had been smoking crack cocaine. (ECF No. 20-3 at 501-

18 503.) Admission of the evidence of those two prior incidents did not render petitioner’s trial

19 fundamentally unfair. Petitioner’s due process claim should fail.

20 Petitioner’s claim that his trial attorney erred by failing to seek an evidentiary hearing on

21 the issue of whether petitioner and the victim were co-habitants for purposes of Evidence Code §

22 1109 should fail as well. As described above, the state court found alternative grounds under

23 Evidence Code § 1101(b) to admit the evidence. Therefore, there is no reasonable probability

24 that any conduct by petitioner’s trial attorney with respect to issues under section 1109 affected

25 the verdict. Because petitioner cannot establish prejudice under Strickland, he should not succeed

26 on his ineffective assistance of counsel claim.

27 V. Admission of Testimony re Passive Inhalation of Crack Cocaine

28 Petitioner makes two arguments that his due process rights were violated by the admission

29

1 of expert testimony that the victim’s positive drug test was due to the passive inhalation of crack

2 cocaine smoke. First, petitioner contends the prosecutor failed to lay an adequate foundation to

3 show the passive inhalation studies were sufficiently similar to the circumstances in the case. He

4 adds an argument that his trial attorney was ineffective for failing to object to introduction of the

5 studies on that basis. Second, petitioner challenges the denial of a defense request to show the

6 disparity between the quantity of the drug found in the victim’s urine with the amounts found in

7 the urine of the subjects of the second-hand smoke experiment. (See ECF No. 1 at 26, 39; ECF

8 No. 20-5 at 34-45.)

9 The legal standards for a federal court’s consideration of state court evidentiary rulings are

10 set out above. Petitioner presents no clearly established Supreme Court law demonstrating that

11 this sort of expert testimony violates due process as required by 28 U.S.C. § 2254(d). Even if this

12 court may consider a due process argument that these decisions of the state court rendered

13 petitioner’s trial fundamentally unfair, as discussed below, petitioner fails to meet that standard.

14 A. Decision of the State Court

15 Petitioner raised this claim on appeal. The Court of Appeal held:

16 Expert Testimony Regarding Passive Inhalation of Cocaine

Vapors

17

Defendant argues the trial court should have excluded expert witness

18 testimony regarding studies about second-hand inhalation of cocaine

vapors. In defendant’s view, the prosecution laid an inadequate

19 foundation to show the studies were sufficiently similar to the

circumstances of this case. In an included argument that lacks a

20 proper subheading, defendant contends the trial court erred in

preventing his trial attorney from cross-examining the expert witness

21 about the level of cocaine metabolite found in the victim’s urine

sample. We reject the arguments.

22

A.

23

Expert Witness Testimony Regarding Studies Involving Passive

24 Inhalation of Cocaine Vapors

25 Prior to trial, the defense sought to introduce the testimony of

criminalist Sarah Porter to show the victim’s urine tested positive for

26 the presence of cocaine metabolite. The prosecution objected to the

testimony unless the defense could show the victim was actually

27 under the influence of that or any other drug in her system. The trial

court indicated it would allow Porter to testify about the presence of

28 cocaine metabolite in the victim’s urine sample.

30

1 During trial and outside the presence of the jury, the trial court

conducted a hearing on the admissibility of Porter’s testimony –

2 including her testing of the victim’s urine sample and her reliance on

studies involving passive inhalation of cocaine. Porter testified about

3 the studies without objection. In response to a question about whether

there were additional studies supporting the passive inhalation

4 theory, defense counsel objected on grounds of foundation. The

objection was overruled and the trial court allowed Porter to testify

5 in front of the jury. In so ruling, the trial court noted Porter’s training,

skill, and expertise.

6

In front of the jury, Porter explained the victim’s urine tested positive

7 for the presence of cocaine metabolite. Porter did not express an

opinion as to how the victim had come to have cocaine metabolite in

8 her system. Porter testified about studies involving passive inhalation

of cocaine vapors through second-hand exposure. Defendant’s trial

9 attorney did not make an objection to Porter’s testimony regarding

second-hand exposure to cocaine vapors.

10

B.

11

Porter’s Testimony Regarding Passive Inhalation Studies9

12

To preserve an evidentiary issue for review, a defendant must make

13 a timely objection on the same ground as to be raised on appeal. (In

re S.C. (2006) 138 Cal.App.4th 396, 406.) A close reading of the

14 record shows defendant's trial attorney did not object on the same

grounds as he argues. On appeal, defendant argues that “the court

15 abused its discretion when it admitted evidence of the passive

inhalation studies and the expert's opinion derived therefrom.”

16 Although defense counsel made several objections at trial, none

related to these two arguments on appeal.

17

The first four objections occurred during the hearing outside the

18 presence of the jury during which the prosecutor sought to introduce

the testimony of its expert witness, Sarah Porter. The first objection

19 related to the lack of foundation that the prosecutor failed to lay

regarding the meaning of the term “passive inhalation.” The second

20 objection on grounds of being nonresponsive occurred when Porter

began to go astray by exploring “other ways that drugs may be

21 ingested passively.” The third objection based on leading and lack of

foundation were to the question whether there were “other studies”

22 other than the ones described by Porter and “that support the idea that

passive inhalation does occur.” (Italics added.) The objection was

23 that the question was posed “without foundation as to what they

were.” The fourth objection again pointed out that the prosecutor

24

9

The Court of Appeal revised subsection II.B. of its opinion in its denial of petitioner’s petition

25 for rehearing. The copy of the Court of Appeal opinion that respondent lodged herein does not

26 include that revision. However, petitioner included it with his petition. ( See ECF No. 1 at 720-

722.) The revision of this subsection appears in the Westlaw version of the Court of Appeal

27 opinion. That Westlaw version of this subsection is cited here. See People v. Brown, 2019 WL

2314592 (Cal. Ct. App. May 31, 2019), as modified on denial of rehearing, 2019 WL 2314592, at

28 *6-7 (Cal. Ct. App. June 20, 2019).

31

1 asked about studies without identifying to which studies she was

referring. In short, none of the objections during the hearing outside

2 the presence of the jury were on the same grounds as argued on

appeal.

3

So too, the objections by defendant's trial attorney when Porter was

4 testifying in front of the jury also did not object to Porter describing

the studies or relying on these studies in forming her opinion.

5 Defense counsel raised two relevance objections to questions about

ethics and practicality of studying the effects of illicit drugs.

6 Defendant's trial counsel objected to Porter's tangent about legal

consumption of alcohol. In response to a question about cocaine

7 absorption in children, defense counsel objected: “There's no

foundation that any child has ever been tested for passive cocaine

8 smoke.” (Italics added.) This case does not involve children.

9 None of these objections were to the description of the studies upon

which the expert relied or that these studies did not adequately

10 support the expert's conclusion. Because defendant's trial attorney

did not object on the same grounds as he argues on appeal, the

11 evidentiary issue has not been preserved for review.

12 C.

13 Cross-examination Regarding the Results of the Victim’s Urine

Sample

14

Defendant asserts the trial court erred when it “precluded defense

15 counsel from eliciting evidence to show the disparity between the

actual quantity of drug found in [the victim’s] urine as compared to

16 the trace amounts found in the urine of subjects of the second-hand

smoke experiment[s].” We disagree.

17

During the Evidence Code section 402 hearing, defendant’s trial

18 attorney argued he should be allowed to introduce evidence of

cocaine metabolites in the victim’s system to show she was lying and

19 to show she was under the influence of cocaine. The trial court ruled

it would allow Porter to testify about the presence of cocaine

20 metabolite in the victim’s urine sample. As to defense counsel’s

proposed argument the victim was under the influence of cocaine,

21 the trial court asked of the defense:

22 “Are you planning on having an expert who’s going to tie it all

together, that if [the victim] tested for cocaine at a certain point in

23 time, like a DUI case, can you kind of extrapolate backwards and say

she was, therefore, under the influence of cocaine metabolites at the

24 time of the alleged offense and that it’s a reasonable inference for the

jury to assume that she had drugs in her system at the time of the

25 offense? Otherwise all you’ve got is this lab test.”

26 Defense counsel indicated he did not plan to introduce such expert

testimony and did not believe it was necessary to do so. The trial

27 court responded: “[Y]ou were going to try to make the argument that

because [the victim] had cocaine in her bloodstream at the time of

28 the test, she was, therefore, under the influence at the time of the

32

1 incident. [¶] And I don’t think a jury can make that conclusion in the

absence of expert testimony. Now, if you want to point out the fact

2 that she lied and at least said she didn’t have drugs in her system and

then the tests come back positive for cocaine, I think that’s fair game.

3 But for the other purpose, in the absence of expert testimony, I don’t

think you can get there.”

4

“ ‘In determining the admissibility of evidence, the trial court has

5 broad discretion. . . . A trial court’s ruling on admissibility implies

whatever finding of fact is prerequisite thereto. . . .’ (People v.

6 Williams (1997) 16 Cal.4th 153, 196 (Williams).) ‘We review the

trial court’s conclusions regarding foundational facts for substantial

7 evidence. [Citation.] We review the trial court’s ultimate ruling for

an abuse of discretion [citations], reversing only if “ ‘the trial court

8 exercised its discretion in an arbitrary, capricious, or patently absurd

manner that resulted in a manifest miscarriage of justice.’ ”

9 [Citation.]’ (People v. DeHoyos (2013) 57 Cal.4th 79, 132.)” (People

v. Jackson (2016) 1 Cal.5th 269, 320-321.)

10

We do not discern an abuse of discretion by the trial court in

11 disallowing defense counsel to introduce evidence regarding the

relative quantities of cocaine metabolites found in scientific study

12 participants and the victim’s urine sample. “The probable effect of

intoxicants other than alcohol is a topic ‘sufficiently beyond [the]

13 common experience’ of most jurors that expert testimony is required.

(Evid. Code, § 801, subd. (a); People v. Cox (1990) 221 Cal.App.3d

14 980, 989; see People v. Balderas (1985) 41 Cal.3d 144, 191-192,

superseded on other grounds in Civ. Proc. Code, § 223.)” (Pedeferri

15 v. Seidner Enterprises (2013) 216 Cal.App.4th 359, 374.) The trial

court did not err in excluding evidence that lay beyond the common

16 experience of jurors to evaluate.

17

People v. Brown, 2019 WL 2314592 (Cal. Ct. App. May 31, 2019), as modified on denial of

18

rehearing, 2019 WL 2314592, at *6-7 (Cal. Ct. App. June 20, 2019).

19

B. Analysis

20

1. Foundation for Passive Inhalation Theory

21

As he does here, petitioner argued on appeal that the trial court erred in admitting the

22

passive inhalation studies and the expert’s testimony about them because the prosecutor failed to

23

establish a foundation to show those studies were conducted in circumstances sufficiently similar

24

to the circumstances in the present case. The Court of Appeal found these issues procedurally

25

defaulted because petitioner’s trial counsel did not specifically object to the admission of the

26

studies or of the expert’s testimony. This court may not consider a claim procedurally defaulted

27

28

33

1 in state court absent a showing of certain exceptions.10 See Xiong v. Felker, 681 F.3d 1067, 1075

2 (9th Cir. 2012) (California’s contemporaneous objection rule is a procedural bar to federal

3 review). Even assuming this court may consider the merits of petitioner’s foundation argument,

4 petitioner fails to show the evidence rendered his trial fundamentally unfair for a number of

5 reasons.

6 First, during cross-examination, the expert admitted that there were significant differences

7 between the tests conducted and the circumstances of the present case. The tests were conducted

8 for limited periods of time in sealed rooms. The victim in the present case was subjected to the

9 second-hand smoke in a larger, ventilated room, making it less likely that her drug level would

10 exceed that of the test subjects’ if it was due to passive inhalation. The defense argued those

11 points thoroughly in closing argument. He argued that the victim must have ingested crack

12 voluntarily, likely with petitioner, and that fact should affect the jury’s consideration of her

13 credibility. (ECF No. 20-4 at 362-369.)

14 Second, even if the trial court barred the use of the passive inhalation testimony, petitioner

15 makes no credible argument that the result of the trial would have been different. The

16 prosecution had a strong case. The victim told stories in interviews and testimony that were

17 consistent in their general description of the attack she suffered.11 She had some physical injuries

18 consistent with the attacks she described. (ECF No. 20-3 at 254-255; ECF No. 20-4 at 116-127,

19 289-291, 303.) There was evidence consistent with the victim’s story of how she was bound.

20 (ECF No. 20-3 at 300-301; ECF No. 20-4 at 87.) ATM records and video showed petitioner

21 twice withdrew money from the victim’s account as she described. (ECF No. 20-4 at 238-243).

22 ////

23

24 10

A federal court will not consider a petitioner’s claim forfeited if the petitioner can show cause

for the default and prejudice resulting therefrom. Coleman v. Thompson, 501 U.S. 722, 750

25 (1991). Because this court reaches the merits of petitioner’s claim, it need not reach petitioner’s

26 argument that he has established cause and prejudice.

27 11

Testimony regarding the sex crimes includes that of the victim (ECF No. 20-3 at 224-235, 246-

247, 256-258, 318-319) and that of officers who interviewed the victim, Officer Stone (ECF No.

28 20-4 at 25-36) and Officer Castiglia (ECF No. 20-4 at 232-235, 299-300).

34

1 Further, petitioner’s actions could have been reasonably considered incriminatory. He

2 fled immediately after the sexual assaults. (ECF No. 20-4 at 88.) He telephoned his wife the

3 following day and asked whether the police were looking for him. (ECF No. 20-3 at 492-493.)

4 He told the police multiple stories including that he did not recall what happened, that nothing

5 happened, and, after DNA evidence identified him, the defense at trial was that the sex was

6 consensual. (ECF No. 20-8 at 5-6.) A defense attack on the victim’s credibility regarding any

7 cocaine use would have paled in comparison to the significant evidence of petitioner’s guilt.

8 For these reasons, petitioner’s allegation that his attorney was ineffective for failing to

9 object to this evidence should fail as well. Petitioner cannot show a reasonable probability the

10 result of the trial would have been different had counsel objected to the foundation for the

11 expert’s testimony and introduction of the passive inhalations studies. See Strickland, 466 U.S. at

12 687.

13 2. Denial of Defense Request to Show Victim’s Drug Level

14 Petitioner challenges the denial of a defense request to show the disparity between the

15 actual quantity of the drug found in the victim’s urine with the amounts found in the urine of the

16 subjects of the second-hand smoke experiment.

17 a. Factual Background

18 During the 402 hearing, the defense requested the right to question the expert about the

19 difference between the drug level found in the study participants’ urine and the victim’s drug

20 level. There was some confusion about whether the defense wanted to show the victim’s actual

21 drug level or just the fact that the victim’s level exceeded the lab’s threshold for determining

22 cocaine was present. After the court held that the defense would not be permitted to make a

23 “quantitative” comparison, meaning a comparison between the victim’s actual cocaine level and

24 the levels of the study participants, defense counsel explained that he was not, in fact, seeking to

25 do that. Rather, he explained that he only wanted to show that the victim’s level exceeded the

26 lab’s threshold and did not intend to attempt to show the victim’s actual drug level. With that

27 explanation, the trial court permitted the defense to so question the expert. (ECF No. 20-3 at 409-

28 427.)

35

1 At trial, defense counsel did attempt to elicit evidence of the victim’s actual drug level.

2 The prosecution objected and the objection was sustained. (ECF No. 20-4 at 60.) When defense

3 counsel again asked the question, the court held a sidebar at which the prosecutor pointed out that

4 the issue of the victim’s actual drug level had been decided at the 402 hearing. Defense counsel

5 stated that he had forgotten that ruling and had not intended to violate the court’s order. He then

6 abandoned that line of questioning. (ECF No. 20-4 at 78-79.)

7 b. Analysis

8 In his appellate briefs, petitioner only briefly touched on this argument and it was based

9 on an incomplete description of the 402 hearing. Petitioner described the judge’s ruling as one

10 denying the defense the right to question the expert about the victim’s actual drug level. (See

11 ECF No. 20-5 at 34.) Petitioner left out the fact that defense counsel ended up explaining that he

12 was not seeking to do so. Accordingly, petitioner’s argument is baseless because the defense

13 never sought to elicit testimony at trial regarding the victim’s actual cocaine level. Further

14 petitioner does not allege his attorney was ineffective for failing to seek to present this

15 information.

16 VI. Denial of Faretta Motions

17 On appeal, petitioner argued the trial court’s denial of his motion to represent himself,

18 made on the day scheduled for sentencing, violated his Sixth Amendment rights under Faretta v.

19 California. In his petition, petitioner adds arguments that the trial court violated his rights under

20 Faretta when it denied three other motions to represent himself. In addition, petitioner argues the

21 trial court violated his rights when it denied his motion for a new trial without inquiring into the

22 grounds he raised. (ECF No. 1 at 20, 35; ECF No. 20-5 at 45-51.)

23 A. Legal Standards

24 A criminal defendant has a right under the Sixth Amendment to represent himself at trial.

25 Faretta v. California, 422 U.S. 806, 832 (1975). Once a defendant makes a valid request for self-

26 representation, a court’s denial of such a request is a Sixth Amendment violation that “is

27 complete at the time of the court’s denial” and that cannot be cured by the defendant's subsequent

28 acquiescence to representation by counsel. See Tamplin v. Muniz, 894 F.3d 1076, 1085-86 (9th

36

1 Cir. 2018). The right to self-representation, however, is not absolute. Martinez v. Court of

2 Appeal of California, 528 U.S. 152, 161 (2000). “A defendant may not invoke the Faretta right if

3 the Faretta demand is untimely, equivocal, made for the purpose of delay, or is not knowingly and

4 intelligently made.” Sandoval v. Calderon, 241 F.3d 765, 774 (9th Cir. 2000).

5 B. Background Facts

6 On appeal, petitioner raised only the claim regarding the trial court’s denial of his right to

7 self-representation on the day scheduled for sentencing. The background facts for that claim are

8 set out below in this court’s recounting of the Court of Appeal’s decision on that issue. In his

9 habeas petition, petitioner contends he was denied the right to represent himself on three other

10 occasions. In addition, petitioner contends the trial court deprived him of his constitutional rights

11 by denying the motion for a new trial he raised on the day of sentencing.

12 Below, this court provides a summary of petitioner’s motions, the hearings held on those

13 motions, and the trial court’s rulings.

14 1. September 2015 Motion

15 Petitioner filed a pro se Marsden motion on September 13, 2015. (ECF No. 20-1 at 78.)

16 “A ‘Marsden motion’ is the California procedural mechanism through which a criminal defendant

17 ‘seeks to discharge his appointed counsel and substitute another attorney’ on the ground that he

18 has received inadequate representation.” Mahrt v. Beard, 849 F.3d 1164, 1168 (9th Cir. 2017)

19 (quoting People v. Barnett, 17 Cal. 4th 1044 (1998)). While petitioner appears to be arguing that

20 he sought to represent himself by bringing this motion, the record does not support that

21 characterization of his argument. Rather, the record shows that the motion was limited to

22 petitioner’s request to be appointed a new attorney.

23 Petitioner used a form for his motion entitled “Notice of Motion and Motion for

24 Substitution of Counsel (Marsden Motion).” (ECF No. 20-1 at 78.) During the trial court’s

25 hearing on petitioner’s motion, he did not mention that he sought to represent himself. (See ECF

26 No. 568-583.12)

27

Petitioner’s first three motions to discharge his counsel were held ex parte and the transcripts

12

28 were sealed. While it is not clear whether a state court ordered they be made public, petitioner

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1 Therefore, this court does not consider petitioner’s contention that his Faretta rights were

2 violated by the trial court’s decision on the September 2015 motion.

3 2. November 2015 Motion #1

4 Petitioner made a second request to discharge his counsel in November 2015, during voir

5 dire. (See ECF No. 20-3 at 160.) The court held a hearing on this request as well. While it is

6 identified by the court as a Marsden hearing, petitioner specifically told the court he wished to

7 discharge his attorney and represent himself. The trial judge found petitioner’s attorney had been

8 representing petitioner well and denied petitioner’s motion. (See ECF No. 1 at 585-608.)

9 3. November 2015 Motion #2

10 Nine days after the trial court considered and denied petitioner’s prior motion, petitioner

11 again sought to discharge his attorney and represent himself. At this point, trial was well

12 underway. (See ECF No. 20-4 at 277.) The court held a hearing. The court denied the motion on

13 the grounds that it was untimely and because she felt petitioner could not adequately represent

14 himself against such serious charges. (See ECF No. 1 at 610-627.)

15 4. Faretta Motion and Motion for a New Trial

16 During the hearing on petitioner’s Faretta motion made on the day set for sentencing,

17 January 4, 2016, petitioner argued that he should be permitted to represent himself to make a

18 motion for a new trial. (See ECF No. 20-4 at 467.) His attorney informed the court that he found

19 no grounds for a new trial motion. After denying petitioner’s Faretta motion, as described by the

20 Court of Appeal below, the judge informed petitioner that it would not consider his pro per

21 motion for a new trial because he was represented by counsel. (ECF No. 1 at 634-652.)

22 However, the judge did consider a motion for a new trial petitioner filed with the court after the

23 first hearing set for sentencing and before the second hearing, at which petitioner was sentenced.

24 While initially stating that because petitioner was represented by counsel and the pro se motion

25 was not before her, the judge added that even if she could consider it, she would deny it. (ECF

26 No. 20-4 at 518.)

27

28 has attached them to his publicly-filed petition and the court considers them here.

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1 C. Decision of the State Court

2 Denial of Defendant’s Faretta Motion

3 Defendant argues the trial court deprived him of his constitutional

right to self-representation. We disagree.

4

A.

5

Defendant’s Request for Self-representation

6

Defendant was convicted on November 23, 2015. On January 4,

7 2016, the day scheduled for sentencing, defendant indicated to the

court that he wanted to personally file a motion for new trial. The

8 trial court reminded defendant he was represented by legal counsel.

Defendant’s trial attorney stated he did not plan to file a motion for

9 new trial because he had not identified any meritorious issues to

argue.

10

Defendant indicated he wanted to relieve his attorney and represent

11 himself. Defendant proceeded to explain why he believed he had

meritorious grounds for a new trial motion. Defendant concluded, “I

12 just don’t want him representing me.” Defense counsel argued that

granting defendant’s self-representation motion would be “extremely

13 prejudicial” to defendant because defendant did not understand the

legal issues of the case. The trial court noted that “[t]he right to self-

14 representation may be invoked by any defendant competent to stand

trial.” Nonetheless, the trial court denied the motion as untimely and

15 explained:

16 “I am going to deny [defendant’s] Faretta motion. I find that the

motion itself is not timely. It is made for the first time at the

17 scheduled date for judgment and sentencing. [¶] As the record

previously indicated, this matter has been continued for – or had been

18 pending for six weeks, since the jury reached a verdict, and

[defendant] did waive time for purposes of this hearing this morning,

19 so it has been about six weeks.”

20 The trial court further stated, “I will note that [defendant] did also

indicate that, on some of his grounds for a new trial, he would like to

21 have additional time and confer with counsel. [¶] So at this point, the

Court is going to deny [defendant]’s Faretta motion as untimely.”

22

Although the trial court denied the motion for self-representation, the

23 court nonetheless allowed defendant to orally argue his motion for a

new trial. The trial court found the motion was not properly before

24 the court, and to the extent it was properly before the court it lacked

merit.

25

B.

26

Right to Self-representation

27

Criminal defendants have a constitutional right to represent

28 themselves. (Faretta, supra, 422 U.S. at p. 834.) As the Faretta court

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1 explained, “The right to defend is personal. The defendant, and not

his [or her] lawyer or the State, will bear the personal consequences

2 of a conviction. It is the defendant, therefore, who must be free

personally to decide whether in his [or her] particular case counsel is

3 to his [or her] advantage. And although he [or she] may conduct his

[or her] own defense ultimately to his [or her] own detriment, his [or

4 her] choice must be honored out of ‘that respect for the individual

which is the lifeblood of the law.’ ” (Ibid., quoting Illinois v. Allen

5 (1970) 397 U.S. 337, 350-351 [25 L.Ed.2d 353].)

6 Trial courts, however, have discretion to deny untimely motions for

self-representation. (People v. Miller (2007) 153 Cal.App.4th 1015,

7 1024.) A motion for self-representation that is made after a guilty

verdict is timely only if made “a reasonable time prior to the

8 commencement of the sentencing hearing.” (Ibid.) In considering a

motion for self-representation, the trial court should consider the

9 totality of the circumstances in including the amount of time between

the self-representation motion and scheduled sentencing date,

10 readiness of the defendant to proceed, and whether the defendant

could have earlier asserted his or her right of self-representation. (See

11 People v. Lynch (2010) 50 Cal.4th 693, 726, overruled on other

grounds in People v. McKinnon (2011) 52 Cal.4th 610, 637.)

12

C.

13

Defendant’s Motion

14

The trial court did not err in denying defendant’s motion for self-

15 representation as untimely. Six weeks elapsed after defendant was

convicted and before he appeared at sentencing. However, the record

16 does not indicate defendant filed his motion prior to the date

scheduled for sentencing. Moreover, defendant articulated no reason

17 why his motion for self-representation could not have been brought

on a more timely basis prior to the date of sentencing. Instead,

18 defendant indicated a granting of self-representation would have

injected additional delay because he wanted trial transcripts

19 prepared. Based on the circumstances, the trial court was within its

discretion to deny self-representation. (People v. Doolin (2009) 45

20 Cal.4th 390, 454–455 [motion for self-representation made on the

day of the sentencing hearing was untimely].)

21

22 (ECF No. 20-8 at 16-19.)

23 D. Analysis of Faretta Claims

24 1. Motion Made at Time of Sentencing

25 Because a criminal defendant does not have an absolute right to self-representation, most

26 courts require it to be asserted “in a timely manner.” See Martinez, 528 U.S. at 161-62.

27 “Supreme Court precedent regarding the permissible timing of a Faretta request is scarce.”

28 Marshall v. Taylor, 395 F.3d 1058, 1060 (9th Cir. 2005). Faretta “indicates only that a motion for

40

1 self-representation made ‘weeks before trial’ is timely.” Stenson v. Lambert, 504 F.3d 873, 884

2 (9th Cir. 2007) (citing Faretta, 422 U.S. at 835). Thus, courts may determine that a Faretta

3 request is untimely “so long as their standards comport with the Supreme Court's holding that a

4 request ‘weeks before trial’ is timely.” Marshall, 395 F.3d at 1061 (citation omitted).

5 Here, petitioner requested self-representation on the day scheduled for his sentencing

6 hearing. The California Court of Appeal’s determination that petitioner's request was untimely

7 comported with Faretta’s “weeks before trial” standard. See Jackson v. Ylst, 921 F.2d 882, 884,

8 888 (9th Cir. 1990) (Faretta request was untimely where the defendant requested self-

9 representation for his sentencing proceedings); United States v. Long, 597 F.3d 720, 727 (5th Cir.

10 2010) (same; citing Wood v. Quarterman, 491 F.3d 196, 202 (5th Cir. 2007)); see also United

11 States v. McKenna, 327 F.3d 830, 844 (9th Cir. 2003) (Faretta request was untimely where the

12 defendant requested self-representation after the case went to the jury).

13 The California Court of Appeal’s rejection of petitioner’s claim regarding the denial of his

14 motion made at sentencing was thus not contrary to or an unreasonable application of clearly

15 established law under 28 U.S.C. § 2254(d). By the same token, the state court’s refusal to

16 consider petitioner’s motion for a new trial was not unreasonable because petitioner was

17 represented by counsel. This is especially true where, as the trial court informed petitioner, he

18 had the right to raise his claims on appeal. Moreover, the trial court did, in fact, consider

19 petitioner’s pro se motion. After the first sentencing hearing, petitioner mailed his motion to the

20 court. (ECF No. 20-2 at 17-22.) During the second sentencing hearing on January 8, 2016, the

21 trial judge recognized that petitioner had filed the pro se motion and stated that she would again

22 decline to take any action on it because petitioner was represented by counsel. (ECF No. 20-4 at

23 509-510, 518.) However later in the hearing, the judge permitted petitioner to argue the motion.

24 (ECF No. 20-4 at 510-516.) The judge then concluded that, even if the motion was properly

25 before her, she would deny it. (ECF No. 20-4 at 518.)

26 2. Motions Made in November 2015

27 Assuming for purposes of this discussion that petitioner properly raised these claims in his

28 state habeas petitions, then the California Supreme Court’s rejection of the claim was a “silent” or

41

1 “summary” denial because the court did not explain its reasoning. A summary denial is presumed

2 to be a denial on the merits of the petitioner’s claims. Stancle v. Clay, 692 F.3d 948, 957 & n.3

3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it

4 issued a summary denial, the federal court must review the state court record to determine

5 whether there was any “reasonable basis for the state court to deny relief.” Harrington v. Richter,

6 562 U.S. 86, 98 (2011). This court “must determine what arguments or theories ... could have

7 supported, the state court's decision; and then it must ask whether it is possible fairminded jurists

8 could disagree that those arguments or theories are inconsistent with the holding in a prior

9 decision of [the Supreme] Court.” Id. at 102. The petitioner bears “the burden to demonstrate

10 that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d

11 925, 939 (9th Cir.2013) (quoting Richter, 562 U.S. at 98).

12 The California Supreme Court could have determined that both motions were untimely

13 and denied petitioner’s claim on that basis. A state court’s denial of a motion for self-

14 representation as untimely is not an objectively unreasonable application of Faretta where the

15 request was made on the morning of the first day of trial. Marshall, 395 F.3d at 1061. Here,

16 petitioner made his first Faretta request on the third day of voir and the second during the

17 prosecutor’s examination of its final witness. Upholding those decisions made during trial was

18 neither contrary to, nor an unreasonable application of, clearly established Supreme Court

19 precedent. See Stenson, 504 F.3d at 879, 884-885 (not an unreasonable application of Faretta to

20 deny request for self-representation as untimely when it was made on the day before voir dire

21 ended and on the verge of jury empanelment). Petitioner’s Faretta claims should be denied.

22 VII. Rejection of Claims on Procedural Grounds

23 Petitioner argues that the state courts violated his due process rights by refusing to

24 consider some of his claims on the merits because they found them procedurally defaulted. (ECF

25 No. 1 at 19, 35.) To the extent petitioner is arguing that the state courts erroneously applied

26 procedural defaults to his claims, that is a matter of state law that is not cognizable in a federal

27 habeas proceeding. See Villafuerte v. Stewart, 111 F.3d 616, 632 n. 7 (9th Cir. 1997) (claim that

28 petitioner was denied due process in his state habeas corpus proceedings is “not addressable in a

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1 section 2254 proceeding” (citing Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989).) The Ninth

2 Circuit decision in Sivak v. Hardison, 658 F.3d 898, 907 (9th Cir. 2011), which petitioner cites, is

3 not to the contrary. (See ECF No. 27 at 24.) In Sivak, the Ninth Circuit rejected the state court’s

4 application of the state procedural bar because it rested on a factual determination that was flatly

5 contradicted by the record. 658 F.3d at 907. In this case, by contrast, petitioner objects not to a

6 state’s factual determination, but rather appears to argue that the state court improperly applied a

7 state law standard. (See ECF No. 1 at 19, 35.) A federal court may, consistent with the principles

8 of comity and federalism embodied in federal habeas law, reject a state court’s application of its

9 own rule when that application rests on a factual error. But absent such error, a federal court may

10 not substitute its own interpretation of a state law for that of a state court, Dixon v. Williams, 750

11 F.3d 1027, 1033 (9th Cir. 2014), and, as stated above, a state law claim is not cognizable in

12 federal habeas.

13 To the extent petitioner is arguing that, as a matter of due process, state courts may not

14 rely on procedural rules to refuse to consider claims on their merits, petitioner fails to cite, and

15 this court is unaware of, any federal law that prohibits state courts from imposing procedural rules

16 when considering appeals or post-conviction applications invoked by criminal defendants. Cf.

17 Harris v. Reed, 489 U.S. 255, 264 (1989) (state court is free to impose a procedural bar to its

18 consideration of habeas claims on the merits). Petitioner’s argument regarding the state’s

19 rejection of his claims on procedural bases should be denied.

20 VIII. Ineffective Assistance of Appellate Counsel

21 Petitioner contends his appellate counsel was ineffective for failing to raise claims on

22 appeal. (ECF No. 1 at 17.) Petitioner identifies his procedurally defaulted claims as claims 1-5,

23 and 8. (ECF No. 1 at 41.) Because claim 5 is ineffective assistance of appellate counsel which

24 could not have been raised on appeal, any procedural default of that claim is not attributable to

25 appellate counsel. It appears then that petitioner is alleging counsel failed to raise the following

26 claims: (1) there was insufficient evidence at the preliminary hearing to support some claims

27 (claim 1); (2) petitioner was subjected to double jeopardy on the three counts of forcible sodomy

28 (claim 2); (3) ineffective assistance of counsel at the preliminary hearing (claim 3); (4) the

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1 prosecution’s case at preliminary hearing did not provide sufficient notice of evidence at trial

2 (claim 4); and (5) petitioner was wrongly subjected to consecutive sentences (claim 8).

3 First, this court notes that three of petitioner’s claims were, in fact, considered on the

4 merits and, therefore, their denial was not the result of any failure of appellate counsel to raise

5 them. Claims 1 and 3 regarding the sufficiency of the evidence at the preliminary hearing, were

6 addressed on the merits in the superior court’s habeas decision. (ECF No. 20-12.) Claim 8 was

7 raised, and considered, on appeal. (ECF No. 20-8 at 10-21.) Therefore, the only claims that were

8 not considered on their merits because appellate counsel failed to raise them are claims 2 and 4.

9 The test for an ineffective assistance of counsel claim is whether counsel’s conduct was

10 unreasonable and, if it was, whether there is a reasonable probability the result of the proceeding

11 would have been different had counsel acted reasonably. Strickland v. Washington, 466 U.S.

12 668, 687 (1984). The Strickland standard is applicable to claims of ineffective assistance of

13 appellate counsel. Jensen v. Hernandez, 864 F. Supp. 2d 869, 947 (E.D. Cal. 2012) (citing Smith

14 v. Murray, 477 U.S. 527, 535-36 (1986) and Miller v. Keeney, 882 F.2d 1428, 1433 (9th

15 Cir.1989)), clarified on denial of recon., 2012 WL 2571272 (E.D. Cal. July 2, 2012), and aff’d,

16 572 F. App’x 540 (9th Cir. 2014).

17 With respect to the reasonableness of counsel’s conduct, the Sixth Amendment does not

18 require appellate counsel to raise every non-frivolous claim suggested by the client. Jones v.

19 Barnes, 463 U.S. 745 (1983). Further, even if counsel had raised those claims, petitioner cannot

20 show prejudice because there is no reasonable probability they would have succeeded. Claims 2

21 and 4 involve the preliminary hearing. As described above, there is no constitutional basis for

22 claims regarding the preliminary hearing under federal law. See Blair v. Price, No. 2:16-cv-0132

23 JAM AC, 2020 WL 3574269, at *12 (E.D. Cal. July 1, 2020), rep. and reco. adopted, 2020 WL

24 7240582 (E.D. Cal. Dec. 9, 2020). Nor is there a basis for those claims under state law, as

25 described by the superior court with respect to other claims regarding the preliminary hearing.

26 Petitioner’s claim of ineffective assistance of appellate counsel should be denied.

27 ////

28 ////

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1 CONCLUSION

2 For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner’s petition

3 for a writ of habeas corpus be denied.

4 These findings and recommendations will be submitted to the United States District Judge

5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after

6 being served with these findings and recommendations, any party may file written objections with

7 the court and serve a copy on all parties. The document should be captioned “Objections to

8 Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be

9 filed and served within seven days after service of the objections. The parties are advised that

10 failure to file objections within the specified time may result in waiver of the right to appeal the

11 district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In the objections, the

12 party may address whether a certificate of appealability should issue in the event an appeal of the

13 judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the district court must

14 issue or deny a certificate of appealability when it enters a final order adverse to the applicant).

15 Dated: June 21, 2021

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