it is “not enough that a federal habeas 5 court, ‘in its independent review of the legal question,’ is left with a ‘firm conviction’ that the 6 state court was ‘erroneous.’ ”
How later courts described this case
- it is “not enough that a federal habeas 5 court, ‘in its independent review of the legal question,’ is left with a ‘firm conviction’ that the 6 state court was ‘erroneous.’ ”
- “In this respect, the general 9 statute that proscribes the attempted commission of crimes—section 664—applies to criminal 10 conduct only if “ ‘no [other] provision is made by law for the punishment of those attempts... .’ ” 11 (People v. Duran (2004
- not asserting a futile claim or 9 argument cannot be ineffective assistance of counsel
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 DWAYNE ALLEN HUBBARD, No. 2:21-cv-00040 WBS GGH
12 Petitioner,
13 v. FINDINGS AND RECOMMENDATIONS
14 LUIS MARTINEZ, Acting Warden,1
15 Respondent.
16
17
18 Introduction and Summary
19 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus
20 pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge
21 pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c).
22 It is indeed the unusual case where a conviction for indecent exposure will result in a life-
23 in-prison sentence. The undersigned has therefore thoroughly scrutinized the claims herein. After
24 ////
25 1 The People of the State of California was previously named as the respondent. Luis
26 Martinez is currently the Acting Warden of Correctional Training Facility (“CTF”), where
petitioner is incarcerated. “A petitioner for habeas corpus relief must name the state officer
27 having custody of him or her as the respondent to the petition.” Stanley v. California Supreme
Court, 21 F.3d 359, 360 (9th Cir.1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Accordingly,
28 the court substitutes Luis Martinez, Acting Warden, as respondent.
1 careful review, however, the undersigned cannot find that the state courts’ decisions applicable to
2 those claims are AEDPA unreasonable.
3 Factual Background
4 The California Court of Appeal, Third Appellate District (“Court of Appeal”) provided the
5 following factual background:
6 At approximately 10:00 p.m., after finishing class at Cosumnes
River College, Nayeli B. stood at the top of a set of stairs in front of
7 the Winn Center while awaiting her ride home. She stood on the left
side of the stairs. It was dark, but the area was well-lit by
8 streetlamps. Nayeli saw defendant walking toward her; there was
no one else in front of the building. Defendant walked closely past
9 her.
10 After walking past Nayeli, defendant walked down the stairs and
stood behind two signs with a several inch gap between them; the
11 signs were to the left of the bottom of the stairs and approximately
36 feet from her. That area was illuminated by a thin-poled
12 streetlamp located between defendant and Nayeli.
13 Nayeli felt uncomfortable, so she called her girlfriend. Defendant
“kept looking back staring at [her]” and “gawking” at her for
14 approximately one to two minutes. Nayeli increased her attention
on him so she could describe him for her girlfriend. She “noticed he
15 was masturbating” while gawking at her. She did not see defendant
pull out his penis, but she could see his penis, and she saw him
16 moving his hand up and down in a “masturbating motion.” She
watched him masturbate for approximately 30 to 40 seconds.
17 Defendant did not turn his back to her, position himself behind one
of the signs, try to cover himself up, or stop gawking at her. Nayeli
18 testified the light pole was “[a]bsolutely not” obstructing her view
of defendant.
19
Nayeli ran back into the building; she was crying and screaming.
20 She told an employee that she had seen a man masturbating. She
said defendant was “thrusting himself” and that he “showed [her]
21 his privates.” The employee called the police. Campus security
arrived at the scene and arrested defendant within three to five
22 minutes.
23 The prosecution charged defendant with a single count of indecent
exposure (Pen. Code, § 314, subd. 1) and alleged that he had been
24 previously convicted of committing a lewd or lascivious act on a
child (§ 288, subd. (a)). That previous conviction rendered the
25 indecent exposure charge a felony. (§ 314, subd. 2.) The
information further alleged defendant had three serious felony prior
26 convictions within the meaning of section 667, subdivision
(e)(2)(C)(iv) and section 1170.12, subdivision (c)(2)(C)(iv) -- lewd
27 or lascivious act on a child under 14 years (§ 288, subd. (a)), assault
with intent to commit a sexual offense (§ 220), and attempted
28 kidnapping (§§ 664, 207, subd. (a)).
1 A jury found defendant guilty of indecent exposure. In a bifurcated
proceeding, the trial court found the allegations true. The court
2 denied defendant’s motion to dismiss the prior strike convictions
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
3 497, 53 Cal.Rptr.2d 789, 917 P.2d 628. Applying the three strikes
law, the court sentenced defendant to 25 years to life in prison.
4
5 People v. Hubbard, 52 Cal. App. 5th 555, 558-559 (2020) (footnotes omitted).
6 Procedural History
7 After denial of the petition for review in the California Supreme Court, the federal petition
8 was filed on January 8, 2021. ECF No. 1. After respondent’s Answer was filed, ECF No. 11,
9 petitioner requested a stay of proceedings, ECF No. 15, which respondent did not oppose, ECF
10 No. 18. However, because petitioner had not identified the federal claims he wished to exhaust,
11 the undersigned ordered petitioner to expressly identify such claims. ECF No. 19. Petitioner never
12 did so. Therefore, the undersigned recommended that the Motion to Stay be denied. ECF No. 20.
13 Petitioner thereafter filed an amended petition which was stricken as having been filed without
14 authorization, ECF No. 24; this amended petition contained two claims which had never been
15 specifically discussed before in state or federal court.2 The Findings and Recommendations
16 regarding the Motion to Stay were adopted by the district judge, ECF No. 23.
17 Issues Presented
18 1. Failure to [Sua Sponte] Instruct the Jury on the “Lesser Included Offense” of Attempted
19 Indecent Exposure
20 2. [Ineffective] Assistance of Counsel (on grounds similar to Claim 1)
21 3. Griffin Error in Prosecutor’s Rebuttal Argument
22 4. Admission of Irrelevant and Prejudicial Photographic Evidence
23 ////
24 2 Petitioner presents the following new claims: “failure to provide footage of night in
question which could exonerate defendant” and “Penal Code 1181 (5)(6) creates new trial or
25
reduces judgment of defendant.” ECF No. 22 at 5, 7. With respect to the “footage’ claim, it is
26 doubtful that any so-called footage exists, and if it does, what it shows. Petitioner sheds no light
on how such footage would “exonerate” him. The Cal. Penal Code § 1181 claim is simply a
27 repetition of the claims already made, i.e., this section gives the scenarios for when the trial court
can reform a verdict, and the subsections (5),(6) mirror the claims made herein. This repetitive
28 state law claim is not cognizable in federal habeas corpus.
1 Legal Standards
2 The statutory limitations of the power of federal courts to issue habeas corpus relief for
3 persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and
4 Effective Death Penalty Act of 1996 (“AEDPA”). The text of § 2254(d) provides:
5 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
6 granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim—
7
(1) resulted in a decision that was contrary to, or involved
8 an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
9 States; or
10 (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
11 in the State court proceeding.
12 For purposes of applying § 2254(d)(1), clearly established federal law consists of holdings
13 of the United States Supreme Court at the time of the last reasoned state court decision.
14 Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34,
15 39 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529
16 U.S. 362, 405-406 (2000)). Circuit precedent may not be “used to refine or sharpen a general
17 principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has
18 not announced.” Marshall v. Rodgers, 569 U.S. 58, 63-64 (2013) (citing Parker v. Matthews, 567
19 U.S. 37, 48 (2012)). Nor may it be used to “determine whether a particular rule of law is so
20 widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court,
21 be accepted as correct. Id.
22 A state court decision is “contrary to” clearly established federal law if it applies a rule
23 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
24 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
25 Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the
26 writ if the state court identifies the correct governing legal principle from the Supreme Court’s
27 decisions, but unreasonably applies that principle to the facts of the prisoner’s case. Lockyer v.
28 Andrade, 538 U.S. 63, 75 (2003); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this
1 regard, a federal habeas court “may not issue the writ simply because that court concludes in its
2 independent judgment that the relevant state-court decision applied clearly established federal law
3 erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, supra,
4 529 U.S. at 412. See also Lockyer, supra, 538 U.S. at 75 (it is “not enough that a federal habeas
5 court, ‘in its independent review of the legal question,’ is left with a ‘firm conviction’ that the
6 state court was ‘erroneous.’ ”) “A state court’s determination that a claim lacks merit precludes
7 federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state
8 court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
9 Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus
10 from a federal court, a state prisoner must show that the state court’s ruling on the claim being
11 presented in federal court was so lacking in justification that there was an error well understood
12 and comprehended in existing law beyond any possibility for fairminded disagreement.”
13 Harrington, 562 U.S. at 103.
14 The court looks to the last reasoned state court decision as the basis for the state court
15 judgment. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). “[Section] 2254(d) does not require a
16 state court to give reasons before its decision can be deemed to have been ‘adjudicated on the
17 merits.’ ” Harrington, 562 U.S. at 100. Rather, “[w]hen a federal claim has been presented to a
18 state court and the state court has denied relief, it may be presumed that the state court
19 adjudicated the claim on the merits in the absence of any indication or state-law procedural
20 principles to the contrary.” Id. at 99. This presumption may be overcome by a showing “there is
21 reason to think some other explanation for the state court’s decision is more likely.” Id. at 99-100.
22 Similarly, when a state court decision on a petitioner’s claims rejects some claims but does not
23 expressly address a federal claim, a “federal habeas court must presume (subject to rebuttal) that
24 the federal claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 293 (2013).
25 When it is clear, however, that a state court has not reached the merits of a petitioner’s claim, the
26 deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court
27 must review the claim de novo. Stanley, supra, 633 F.3d at 860.
28 ////
1 The state court need not have cited to federal authority, or even have indicated awareness
2 of federal authority in arriving at its decision. Early v. Packer, 537 U.S. 3, 8 (2002). Where the
3 state court reaches a decision on the merits but provides no reasoning to support its conclusion, a
4 federal habeas court independently reviews the record to determine whether habeas corpus relief
5 is available under Section 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848,
6 853 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional
7 issue, but rather, the only method by which we can determine whether a silent state court decision
8 is objectively unreasonable.” Id. at 853. Where no reasoned decision is available, the habeas
9 petitioner still has the burden of “showing there was no reasonable basis for the state court to
10 deny relief.” Harrington, supra, 562 U.S. at 98. A summary denial is presumed to be a denial on
11 the merits of the petitioner’s claims. Stancle v. Clay, 692 F.3d 948, 957 n. 3 (9th Cir. 2012).
12 While the federal court cannot analyze just what the state court did when it issued a summary
13 denial, the federal court must review the state court record to determine whether there was any
14 “reasonable basis for the state court to deny relief.” Harrington, 562 U.S. at 98. This court “must
15 determine what arguments or theories [...] could have supported, the state court’s decision; and
16 then it must ask whether it is possible fairminded jurists could disagree that those arguments or
17 theories are inconsistent with the holding in a prior decision of this Court.” Id. at 102.
18 “ ‘[E]valuating whether a rule application was unreasonable requires considering the rule’s
19 specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-
20 by-case determinations.’ ” Id. at 101 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
21 Emphasizing the stringency of § 2254(d), which “stops short of imposing a complete bar of
22 federal court relitigation of claims already rejected in state court proceedings[,]” the Supreme
23 Court has cautioned that “even a strong case for relief does not mean the state court’s contrary
24 conclusion was unreasonable.” Id. at 102.
25 ////
26 ////
27 ////
28 ////
1 Discussion
2 1. Failure to [Sua Sponte] Instruct the Jury on the “Lesser Included Offense” of
3 Attempted Indecent Exposure
4 The undersigned has placed the “lesser included offense” of attempted indecent exposure
5 in quotes as it is not clear from California law whether such a lesser included offense exists. And
6 although, as pointed out below, no federal claim in habeas corpus exists for “sua sponte” jury
7 instructions in non-capital cases. The issue here is a bit more complicated than that, especially as
8 it impacts ineffective assistance of counsel discussed in the next section regarding “theory of the
9 defense case,” and whether counsel failed to request a lesser included offense instruction on the
10 “correct” explication of California law. Therefore, the undersigned spends some effort in
11 characterizing California indecent exposure law and “lesser included offenses.”
12 First, whether characterized as an indecent exposure charge, or one for attempted indecent
13 exposure, the charge is a misdemeanor with one important exception discussed below. Cal. Penal
14 Code § 314 provides the following:
15 Every person who willfully and lewdly, either:
16 1. Exposes his person, or the private parts thereof, in any public
place, or in any place where there are present other persons to be
17 offended or annoyed thereby; or,
18 2. Procures, counsels, or assists any person so to expose himself or
take part in any model artist exhibition, or to make any other
19 exhibition of himself to public view, or the view of any number of
persons, such as is offensive to decency, or is adapted to excite to
20 vicious or lewd thoughts or acts, is guilty of a misdemeanor.
21 The pertinent exception here to the misdemeanor status of the crime is prior convictions
22 for indecent exposure or other sex crimes:
23 Upon the second and each subsequent conviction under subdivision
1 of this section, or upon a first conviction under subdivision 1 of
24 this section after a previous conviction under Section 288, every
person so convicted is guilty of a felony, and is punishable by
25 imprisonment in state prison.
26 Cal. Penal Code § 314.
27 It is undisputed here that petitioner had qualifying previous convictions thereby rendering
28 his conviction a felony. More to petitioner’s dismay, he also tripped the “Three Strikes” wire
1 thereby exploding the otherwise usual misdemeanor punishment into an indeterminate life-in-
2 prison term.
3 Generally, in California, an attempted violation of a criminal statute is by practical
4 definition (although not substantively) a lesser included offense because the punishment for the
5 attempt is not the same as the punishment for actual commission of the crime, unless the statute in
6 question includes both the crime and the attempt of the crime in its language. See, e.g., Cal. Penal
7 Code § 664; People v. Cummings, 61 Cal. App. 5th 603, 609 (2021) (court interprets Cal. Penal
8 Code § 664); In re Maria D., 199 Cal. App. 4th 109, 114 (2011) (“In this respect, the general
9 statute that proscribes the attempted commission of crimes—section 664—applies to criminal
10 conduct only if “ ‘no [other] provision is made by law for the punishment of those attempts... .’ ”
11 (People v. Duran (2004) 124 Cal.App.4th 666, 674, 21 Cal.Rptr.3d 495, quoting section 664.)”).
12 In general, the punishment for attempt of a specific crime, under Cal. Penal Code § 664, unless
13 otherwise specifically proscribed, is one-half the punishment for completed commission of the
14 crime at issue.
15 Thus, if there is such a crime as “attempted indecent exposure,” the penalty could only be
16 one-half the penalty for indecent exposure as there is no specific reference to attempted indecent
17 exposures in Cal. Penal Code § 314. And the prior conviction exception to the misdemeanor
18 status of indecent exposure referenced above does not apply to “attempted” indecent exposure
19 convictions. People v. Finley, 26 Cal. App. 4th 454, 456 (1994).3
20 Petitioner believes that his jury should have been given an attempted indecent exposure
21 instruction because the theory of the defense was that although the indecent act took place, the
22 victim could not have seen his indecent exposure rendering the conduct only an attempt at
23 indecent exposure. Although petitioner’s desire to have such an attempt instruction is
24 ////
25 3 But see, People v. Cummings, 61 Cal App. 5th 603, 612 (2021) refusing to follow
26 Finley. If an attempt at indecent exposure were to be found a felony because of prior convictions,
at least one California case has held that the Three Strikes law takes precedence over the attempt
27 statute, § 664. People v. Espinoza, 58 Cal. App. 4th 248, 251-252 (1997). Petitioner does not,
and has not raised a sentencing issue. In any event, as the discussion in this case indicates infra,
28 petitioner could not have been convicted of attempted indecent exposure.
1 understandable, because of the nature of his charge and the evidence in the case, no such
2 instruction was substantively correct or indicated.
3 As indicated above, the controlling statute does not mention attempted indecent exposure.
4 And, the law is not clear that such a charge is correct, or at least, practically available. It is true
5 that some prosecutions have charged attempted indecent exposure, possibly in an abundance of
6 caution, because the victim could not have seen the exposure. On appeal, without discussing
7 whether such a charge was available or necessary, the courts have upheld the conviction. See
8 People v. Rehmeyer, 19 Cal App. 4th 1758, 1766, 1767 (1993). However, as held by People v.
9 Hubbard, 52 Cal. App. 5th at 569 (this case), in distinguishing Rehmeyer, nothing in the indecent
10 exposure statute requires that the victim actually see the indecent act in order for the defendant to
11 be convicted for the “straight” indecent exposure itself. See also People v. Carbajal, 114 Cal.
12 App. 4th 978, 986 (2003). Hubbard, 52 Cal. App. 5th at 570, went on to find that the facts of this
13 case rendered any “attempt” instruction unwarranted:
14 However, the issue here is not whether Nayeli actually observed
defendant’s genitals. Rather, the issue is whether, in Nayeli’s
15 presence, defendant willfully exposed himself lewdly for the
purpose of sexually gratifying himself or offending Nayeli.
16 Defendant argues that a reasonable juror could have concluded that
defendant’s conduct satisfied all of the elements but that his
17 genitals were not visible to Nayeli. But in that circumstance,
defendant would still have satisfied the elements of indecent
18 exposure. Therefore, we conclude there was no factual
circumstance in which the jury could have found defendant guilty
19 of attempted indecent exposure and not guilty of indecent exposure.
(footnote omitted).
20
21 Thus, petitioner is in error that under California law such an instruction was required sua
22 sponte.4
23 Moreover, even assuming for the moment that Hubbard erroneously set forth California
24 law, petitioner’s belief that he can claim federal error for the failure to give an instruction sua
25 sponte is incorrect. In Carter v. McDonald, No. CIV S-08-2103 GGH P, 2009 WL 4718747, at
26
4 Both Hubbard and Carbajal make one wonder what an attempted indecent exposure
27 could be, e.g. fumbling with a zipper? However, Hubbard is the law of this case, and it does not
contravene any known federal principle. Nor can the undersigned quibble with its interpretation
28 of California law even if the undersigned thought it to be incorrect (which he does not here).
1 *5-6 (E.D. Cal. Dec. 3, 2009), the undersigned stated the following:
2 At the outset, the court notes that in a non-capital case, such as the
one presented here, the “[f]ailure of a state court to instruct on a
3 lesser offense fails to present a federal constitutional question and
will not be considered in a federal habeas corpus proceeding.”
4 Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir.1984) (quoting
James v. Reese, 546 F.2d 325, 327 (9th Cir.1976) (per curiam)).
5 While the United States Supreme Court, in Beck v. Alabama, 447
U.S. 625, 638, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), has held that
6 criminal defendants possess a constitutional right to have the jury
instructed on a lesser included offense in a capital murder case, the
7 Beck court also expressly reserved the question of whether due
process mandates the application of the same right in a non-capital
8 case. See Beck, 447 U.S. at 638, n. 7; Solis v. Garcia, 219 F.3d 922,
928 (9th Cir.2000). Thus, in a non-capital case, the failure of a trial
9 court to sua sponte instruct on a lesser included offense does not
present a federal constitutional question that would warrant habeas
10 corpus relief. Windham v. Merkle, 163 F.3d 1092, 1106 (9th
Cir.1998).
11
The Ninth Circuit in Solis noted that there might exist an exception
12 to this general rule for adequate jury instructions on a defendant's
theory of defense. Solis, 219 F.3d at 929 (citing Bashor, 730 F.2d at
13 1240, but noting that Windham, 163 F.3d at 1106, mentioned no
such exception to the general rule).
14
15 See also Kakowski v. Pollard, No. 2:20-cv-00549 KJM GGH P, 2020 WL 7041722, at *3
16 (E.D. Cal. Dec. 1, 2020); Phan v. Adams, No. CV 15-5358-RGK (KES), 2016 WL 5387671, at
17 *9-10 (C.D. Cal. June 28, 2016).
18 In this AEDPA setting, if the Supreme Court has not “unreserved” its ruling, which it has
19 not, no federal claim exists. In any event, the undersigned will discuss the “theory of the defense”
20 issue in the ineffective assistance of counsel section below.
21 Nevertheless, petitioner’s claim alleging the trial court’s failure to sua sponte give a lesser
22 included offense instruction should be denied.
23 2. Ineffective Assistance of Counsel in Not Requesting an Attempted Indecent Exposure
24 Instruction
25 Respondent has not addressed this claim, and it was clearly set forth in the petition.5 ECF
26 No. 1 at 5. The claim was clearly exhausted. ECF No. 9-8 at 25-26; see also ECF No. 9-4.
27
5 The undersigned does not consider the in-passing, half sentence referencing
28 ineffectiveness of counsel as addressing the claim. See ECF No. 11 at 5 n. 2.
1 Perhaps this oversight was occasioned by the failure to submit briefing in the petition in addition
2 to the statement of the claim. Perhaps, it was caused by the cryptic, oblique reference to
3 ineffective assistance of counsel as “other issues” in the appellate opinion. ECF No. 9-7 at 17 n.
4 4. Ineffective assistance of counsel in the lesser included offense issue was not directly addressed
5 by the appellate court.
6 What to do? Default in habeas proceedings is not a realistic sanction. See Peterson v.
7 Lizarraga, No. 1:17-cv-01537-LJO-SKO HC, 2018 WL 3637038, at *3-4 (E.D. Cal. July 30,
8 2018); Arvizu v. Ryan, No. CV-16-3347-PHX-ROS (JFM), 2017 WL 10858843, at *6-7 (D.
9 Ariz. Aug. 7, 2017); McKinney v. Wofford, No. 1:14-cv-01751-SAB-HC, 2015 WL 1830474, at
10 *2 (E.D. Cal. Apr. 9, 2015). If this were a consent case, the undersigned would order respondent
11 to respond to the claim, perhaps consider lesser sanctions, await the briefing, and then address all
12 claims. However, this is not a consent case, and there are already enough time inefficiencies
13 baked into the Findings and Recommendations process, that the undersigned will not set this case
14 aside for further briefing. In addition, as of January 1, 2022, the undersigned will be completely
15 retired; the effort put into this case will have been wasted, and the inefficiencies doubled because
16 a colleague would be starting from scratch. Moreover, since the standard of review by the district
17 judge is de novo, petitioner will have ample opportunity to object to any findings by the
18 undersigned. Therefore, the undersigned will simply decide the issue here, which basically
19 follows from the previous section.
20 The standards for ineffective assistance of counsel in an AEDPA case are well
21 established.
22 The challenger's burden is to show “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed
23 the defendant by the Sixth Amendment.” Id., at 687, 104 S.Ct.
2052. [Strickland v. Washington, 466 U.S.668 (1984)]
24
With respect to prejudice, a challenger must demonstrate “a
25 reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. A
26 reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id., at 694, 104 S.Ct. 2052. It is not
27 enough “to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id., at 693, 104 S.Ct. 2052. Counsel's
28 errors must be “so serious as to deprive the defendant of a fair trial,
1 a trial whose result is reliable.” Id., at 687, 104 S.Ct. 2052.
2 ***
3 Establishing that a state court's application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The
4 standards created by Strickland and § 2254(d) are both “highly
deferential,” id., at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S.
5 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when
the two apply in tandem, review is “doubly” so, Knowles, 556 U.S.,
6 at 123, 129 S.Ct. at 1420. The Strickland standard is a general one,
so the range of reasonable applications is substantial. 556 U.S., at
7 123, 129 S.Ct. at 1420. Federal habeas courts must guard against
the danger of equating unreasonableness under Strickland with
8 unreasonableness under § 2254(d). When § 2254(d) applies, the
question is not whether counsel's actions were reasonable. The
9 question is whether there is any reasonable argument that counsel
satisfied Strickland's deferential standard.
10
11 Harrington, supra, 562 U.S. at 104-105 (emphasis added).
12 Defense counsel was not unaware of her client’s potential punishment, and she ultimately
13 did request a lesser include offense instruction. However, she asked that the court give an
14 instruction pursuant to Cal. Penal Code § 647(a)—engaging in lewd or dissolute conduct. See
15 ECF No. 9-3 at 24, 122, 126. Counsel specifically demurred to asking for a lesser included
16 offense instruction to the extent such was possible under Section 314. Id. at 122. The trial judge
17 denied the request for a lesser included offense instruction.
18 The benefit of this requested instruction pursuant to Cal. Penal Code § 647 was that the
19 only penalty proscribed for a violation of section (a) was a misdemeanor penalty; this statute did
20 not have a felony conversion aspect as did Cal. Penal Code § 314. However, this benefit was not
21 to be realized as the California courts have recognized, ever since Pryor v. Municipal Court, 25
22 Cal.3d 238, 256, (1979), and despite earlier authority to the contrary, that Cal. Penal Code § 647
23 is not a lesser included offense to a Cal. Penal Code § 314 charge. People v. Meeker, 208 Cal.
24 App. 3d 358, 361-362 (1989). Thus, counsel’s request was a long shot, and not one authorized by
25 the law.
26 However, petitioner asserts that the request for a lesser included offense should have been
27 made under the rubric of “attempted indecent exposure” within Cal. Penal Code § 314 because
28 the rubric had been at least recognized in previous cases. See discussion above. Petitioner
1 essentially asserts that this instruction, which did indeed arise from the theory of the defense,6
2 was mandated, and counsel should have known this. Of course, as set forth above, if the jury had
3 determined to adopt this rubric, no felony punishment may have been possible. Finley, supra.
4 Nevertheless, in this case, the Court of Appeal held that attempted indecent exposure was
5 not a viable theory in the case (and perhaps any case). The undersigned is not prepared to quibble
6 with the Court of Appeal over its decision based on state law. The upshot is that counsel cannot
7 be ineffective if the law and/or facts did not support what petitioner urges his counsel should have
8 attempted. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (not asserting a futile claim or
9 argument cannot be ineffective assistance of counsel). Accordingly, this claim should be denied.
10 3. Griffin Error
11 In what the Court of Appeal considered was a “close case,” petitioner’s claim that the
12 prosecutor had commented on his Fifth Amendment to remain silent was ultimately found
13 wanting by that Court. Because in this AEDPA context, the focus is on the reasonableness of the
14 state courts’ decision, and because the Court of Appeal gave a thoughtful and thorough
15 discussion, the undersigned will set forth large portions of that discussion herein:
16 During her closing argument, defense counsel argued that defendant
was merely a student who had to urinate: “So this student is leaving
17 campus. He has to take a pee. He is walking down the stairs. He is
going to the Light Rail station. He has no idea how many people
18 might be standing there at that Light Rail station. There is one
person where he is, okay? There is one person that he just walked
19 past. She had just stopped in front of him at the top of those stairs.
He passed her. He glances back once to check is she going to stay
20 there. Is this a private place or not.” Two short paragraphs of the
transcript from the end of her closing, defense counsel emphasized
21 the lack of physical evidence against defendant and told the jury
that: “In no way, shape or form did the government give a student
22 any chance of proving he is not guilty.” (Italics added.) The trial
court sustained the prosecutor’s objection that the argument
23 assumed facts not in evidence.
24 After a recess, at the beginning of his rebuttal argument, the
prosecutor read CALCRIM No. 355: “A defendant has an absolute
25 constitutional right not to testify. He may rely on the state of the
26
6 The defense did not offer any evidence and rested immediately after the prosecution
27 case. However, it was clear from the cross-examination that defense counsel was attempting to
show that the victim/witness could not have seen petitioner’s actions because of some signs
28 proximate to petitioner’s position.
1 evidence and argue that the People have failed to prove the charges
beyond a reasonable doubt. Do not consider for any reason at all the
2 fact the defendant did not testify. Do not discuss that fact during
your deliberations or let it influence your decision in any way.”
3
The prosecutor then argued: “That’s the law and you guys have to
4 follow it. You must understand that. Also, the burden in this case,
it’s with the People. It’s with me. It never shifts. [Defense counsel]
5 is absolutely correct when she tells you they don’t have to do
anything. They don’t have to put on any evidence.
6
“But now let’s talk about what they are not allowed to do. She’s not
7 allowed to get up here in closing and make up facts of which there
is no evidence of that. What am I talking about? Well, apparently
8 he’s a college student who was getting out of class, going to the
Light Rail station, stopped to pee. What evidence did we hear of
9 that? What evidence at all?
10 “He had a collared shirt and a backpack on. That is true. You heard
that evidence. You didn’t hear any evidence of the narrative she
11 spun about this innocent man walking after getting out of college
class going to the Light Rail station, zero, none.
12
“The defendant has an absolute right not to testify, but she cannot
13 use that as a sword and a shield. And that’s what she did. And the
reason she did it, because these facts don’t break good for her or her
14 client. You are left with the evidence you heard.”
15 The prosecutor concluded his rebuttal: “Did [defendant] sit around
innocently peeing or just hanging out facing the Winn Center? No,
16 he didn’t. He went to the Light Rail station. [¶] The facts are clear,
the evidence is uncontroverted. The defendant has a constitutional
17 right to the presumption of innocence. He has that throughout these
proceedings, up and until you are convinced otherwise. The burden
18 never shifts. Remember that. But what he is not entitled to do is a
made up universe of facts that was just given to you in the defense
19 attorney’s closing argument.”
20 At the conclusion of the prosecutor’s argument, defense counsel
requested to approach the bench. The lawyers and the court
21 conferenced in chambers. After giving the jury its final instructions
and dismissing it to begin deliberations, the court told defense
22 counsel, “I know you have something you want to put on the record
... so we will get to that in just a moment.” After addressing other
23 procedural issues, the court stated, “And your argument on the
closing, Ms. Cunningham.” Defense counsel then objected to the
24 prosecutor’s argument; she argued he improperly drew attention to
the fact that defendant did not testify before arguing there was no
25 evidence to support defense counsel’s version of the events.
According to defense counsel, the prosecutor’s argument implied
26 defendant should have testified. She requested a curative
instruction.
27
The trial court observed the prosecutor had a right to recite any jury
28 instruction, and it was not improper to highlight the fact that there
1 was no evidence that defendant was merely urinating. It did not
give a curative instruction.
2
3 Hubbard, supra, 52 Cal. App. 4th at 560-561.
4 There is no doubt that defense counsel had fabricated the “pee” scenario, and no such
5 evidence had been admitted.
6 The Court of Appeal engaged in a lengthy discussion of the Supreme Court case, Griffin
7 v. California, 380 U.S. 609 (1965), which generally prohibits a prosecutor’s comments on the
8 defendant’s failure to testify. Included within that discussion, however, was the Supreme Court
9 exception to the general rule:
10 As relevant here, under certain specific circumstances a
prosecutor’s reference to a defendant’s opportunity to testify may
11 be properly classified as fair response to defense counsel’s
argument. This tactic is not without risk, but the United States
12 Supreme Court has described a situation where a reference to a lack
of evidence coming from defendant himself does not violate his
13 Fifth Amendment privilege. In United States v. Robinson (1988)
485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23, defense counsel urged
14 during closing argument that the government had not allowed
defendant to explain his side of the story in a mail fraud
15 prosecution. The prosecutor responded during his closing that
defendant “ ‘could have taken the stand and explained it to you ....’
16 ” ( Id. at p. 28, 108 S.Ct. 864.) The Court observed that the
prosecutor’s comment referred to defendant’s decision to not testify
17 as declining an opportunity to tell his side of the story. ( Id. at pp.
31-32, 108 S.Ct. 864.) The Court did not find error, explaining the
18 difference between Griffin error and the prosecutor’s comments in
Robinson: “Where the prosecutor on his own initiative asks the jury
19 to draw an adverse inference from a defendant’s silence, Griffin
holds that the privilege against compulsory self-incrimination is
20 violated. But whereas in this case the prosecutor’s reference to the
defendant’s opportunity to testify is a fair response to a claim made
21 by defendant or his counsel, we think there is no violation of the
privilege.” ( Id. at p. 32, 108 S.Ct. 864.) The Court observed, “
22 ‘[The] central purpose of a criminal trial is to decide the factual
question of the defendant’s guilt or innocence, [citation] ....’
23 [Citation.] To this end it is important that both the defendant and
the prosecutor have the opportunity to meet fairly the evidence and
24 arguments of one another.” ( Id. at p. 33, 108 S.Ct. 864.) “It is one
thing to hold ... that the prosecutor may not treat a defendant’s
25 exercise of his right to remain silent at trial as substantive evidence
of guilt; it is quite another to urge, as defendant does here, that the
26 same reasoning would prohibit the prosecutor from fairly
responding to an argument of the defendant by adverting to that
27 silence.” ( Id. at p. 34, 108 S.Ct. 864.)
28 Hubbard, 52 Cal. App. 4th at 563-564.
1 The threshold issue here is whether AEDPA applies to the Griffin discussion as the Court
2 of Appeal expressly recognized that the California standard of review was different in some
3 respects from that of the federal review.
4 “What is crucial to a claim of prosecutorial misconduct is not the
good faith vel non of the prosecutor, but the potential injury to the
5 defendant.” ( People v. Benson (1990) 52 Cal.3d 754, 793, 276
Cal.Rptr. 827, 802 P.2d 330.) “Under the federal standard,
6 prosecutorial misconduct that infects the trial with such ‘
“unfairness as to make the resulting conviction a denial of due
7 process” ’ is reversible error. [Citation.] In contrast, under our state
law, prosecutorial misconduct is reversible error where the
8 prosecutor uses ‘deceptive or reprehensible methods to persuade
either the court or the jury’ [citation] and ‘ “it is reasonably
9 probable that a result more favorable to the defendant would have
been reached without the misconduct” ’ [citation].” ( People v.
10 Martinez (2010) 47 Cal.4th 911, 955-956, 105 Cal.Rptr.3d 131, 224
P.3d 877.)
11
12 Hubbard, 52 Cal. App. 4th at 562.
13 One could validly question whether there is any real distinction between the federal
14 standard and that of California. Moreover, the distinction, if any, refers to the harmfulness of the
15 error. As seen above, to analyze the error itself, Hubbard heavily relied upon Supreme Court
16 authority. In the harmfulness respect, if there is any substantial difference between California law
17 and the Brecht7 standard (substantially harmful and injurious to the verdict) the undersigned
18 cannot see it. And Griffin error would ultimately be judged by the Brecht standard in any event.
19 See Cook v. Schriro, 538 F.3d 1000, 1019 (9th Cir. 2008). If anything, the California standard
20 might be considered more strict-to-the-prosecution, thereby causing the analysis to be subsumed
21 within the Brecht standard.8 However, in this case, the Court of Appeal found no Griffin error to
22
7 Brecht v. Abrahamson, 507 U.S. 619 (1993).
23 8 On federal habeas review of state court findings of constitutional error, the harmless
error standard of Brecht, 507 U.S. 619, applies. The question is whether the error had substantial
24 and injurious effect or influence in determining the jury's verdict, and resulted in “actual
prejudice.” See Brecht, 507 U.S. at 637; Fry v. Pliler, 551 U.S. 112, 120 (2007). The Supreme
25
Court has since clarified that Brecht incorporates the requirements of § 2254(d) (AEDPA). Davis
26 v. Ayala, 576 U.S. 257, 269-270 (2015). Accordingly, if a state court has determined that a trial
error was harmless, “a federal court may not award habeas relief under § 2254(d) unless the
27 harmlessness determination itself was unreasonable.” Id. (quoting Fry v. Pliler, 551 U.S. at 119
(emphasis in original)). “[R]elief is proper only if the federal court has ‘grave doubt about
28 whether a trial error of federal law had substantial and injurious effect or influence in determining
1 begin with and did not engage in a harmlessness analysis. Therefore, on the merits of the Griffin
2 error, AEDPA applies in full force, and if necessary, the Brecht standard will be applied de novo.
3 In consideration of the alleged Griffin error itself, as explained by the Court of Appeal,
4 whether the prosecutor fairly responded to the defense “made up” evidence argument, the Court
5 of Appeal held:
6 The prosecutor fairly observed that defense counsel had just argued
a version of the facts largely lacking in evidentiary support--the
7 sword--while not subjecting defendant or that version of the facts
generally to cross examination--the shield. And, importantly, as we
8 have described above, defense counsel had just told the jury that
“the government” had not, in any “way, shape, or form,” given
9 defendant the “chance of proving he is not guilty.” Under Robinson
and Lewis, this argument permitted the prosecutor to counter the
10 suggestion that defendant was somehow precluded by the
government from telling his story. While we recognize that, for
11 practical purposes, defendant was not able to testify given his prior
sex offenses (see Evid. Code, § 788; People v. Linyard (1957) 151
12 Cal.App.2d 50, 55, 311 P.2d 57), here defense counsel herself
raised the issue.
13
***
14
Our Supreme Court has held that a prosecutor may commit Griffin
15 error if he argues to the jury that certain testimony or evidence is
uncontradicted, if such contradiction or denial could be provided
16 only by the defendant, who therefore would be required to take the
witness stand. ( People v. Johnson (1992) 3 Cal.4th 1183, 1229, 14
17 Cal.Rptr.2d 702, 842 P.2d 1.) The prosecutor may, however,
describe the evidence as “unrefuted” or “uncontradicted” where the
18 evidence could have been contradicted by witnesses other than
defendant. ( Ibid.) In People v. Bruce G. (2002) 97 Cal.App.4th
19 1233 at pages 1244 to 1245, 118 Cal.Rptr.2d 890, we observed that
a prosecutor may characterize evidence as “uncontroverted” even
20 where the defendant is the only person who could have known what
did or did not happen if the prosecutor was commenting on the
21 entire state of the evidence.
22 Here, defendant could have presented other witnesses to support his
counsel’s version of events. For example, defendant could have
23 called his professor, a classmate, or an administrator to testify that
he was in a class that had concluded immediately before the
24 incident or some other fact to show that he was, indeed, “a student,”
as counsel argued. Moreover, here the prosecutor’s statement that
25 the evidence was “uncontradicted” was a comment on the state of
26
the jury's verdict.’ ” Davis, 576 U.S. at 267-268 (quoting O'Neal v. McAninch, 513 U.S. 432,
27 436, 115 S.Ct. 992 (1995)). The Brecht test will be applied, but with due consideration of the
state court's reasons for concluding the error was harmless beyond a reasonable doubt. Jones v.
28 Harrington, 829 F.3d 1128, 1141-42 (9th Cir. 2016).
1 the evidence rather than a comment on defendant’s failure to testify.
The comment simply observed, correctly, that no evidence
2 contradicting Nayeli’s version of events had been presented.
Because the prosecutor’s statements were fair comments in
3 response to a defense argument that was not based on actual
evidence admitted at trial, this segment of the argument was also
4 permissible.
5 For these reasons, we conclude the prosecutor did not commit
Griffin error in any of his challenged comments during his rebuttal
6 argument.
7 Hubbard, 52 Cal. App. 4th at 565-566.
8 Given the rather desperate ploy of the defense to place a non-introduced version of facts in
9 final argument, along with the temerity to suggest that defendant had not been permitted to put his
10 case before the jury, reasonable jurists could easily have come to the same conclusion as did the
11 Court of Appeal. Indeed, the only disagreement the undersigned might have with the Court of
12 Appeal was its observation that Griffin error was a “close case.” This was not close whether in
13 terms of AEDPA or de novo review.
14 Even if a Brecht analysis were to be performed because of Griffin error, it is clear that the
15 prosecutor’s comments could not have had a substantial, harmful effect on the verdict. Petitioner
16 did not contest that he was at the scene, or that he performed the indecent act. His defense, as it
17 appeared through cross-examination, was that the victim/witness was wrong when she stated
18 (with great certainty) that she indeed had seen petitioner perform the indecent act. A prosecutor’s
19 oblique comment on petitioner’s silence or failure to present himself as a witness paled in light of
20 the certainty with which the complainant testified. The evidence before the jury strongly proved
21 that petitioner had performed his indecent act within the sight of the complainant.
22 Accordingly, the Griffin error claim should be denied.
23 4. Admission of a Prejudicial Photo(s)
24 Petitioner contests that admission of a booking photo arguably made him look sinister,
25 intoxicated or some other undesirable attribute. The petition focuses upon petitioner’s unflattering
26 booking photo, which was introduced by the prosecution, as found by the Court of Appeal, for no
27 good reason. Slightly referenced is a “lovely” photo of the complainant which was also
28 introduced by the prosecution for irrelevant reasons.
1 Respondent contends that the issue is unexhausted because the appellate brief, ECF No. 9-
2 4 completely focused on state law, but in the petition for review, ECF No. 9-8 at 28, the new
3 headline issue was a federal lack of due process, albeit the brief dealt mainly with state law.
4 Respondent contends that because federal law was left out of the appellate brief, the belated
5 reference to it in the petition for review did not fairly present the issue.
6 Respondent is correct in the main, but not completely. The appellate brief did reference
7 federal due process and federal cases at ECF No. 9-4 at 65. This discussion was repeated in the
8 petition for review. ECF No. 9-8 at 29-30. Respondent contends that the unexhausted status of
9 the claim “bars” it from federal review. Respondent does not contend that the unexhausted status
10 of the claim must result in a dismissal without prejudice. See Rose v. Lundy, 455 U.S. 509 (1982)
11 (mixed petitions (exhausted and unexhausted claims) may not be reviewed by the federal courts.)
12 The undersigned will not engage in the hairsplitting analysis of whether the reference to
13 federal law in the state briefs substantially exhausts the claim. Rather, assuming the claim is
14 unexhausted, it may be denied if found lacking on the merits. See 28 U.S.C. 2254(b)(2).
15 In the part of the opinion that was unpublished, the Court of Appeal found the following:
16 The prosecutor sought to introduce defendant’s booking
photograph and a photograph of Nayeli taken before the incident. In
17 defendant’s photograph, his eyes appear red, watery, and almost
closed. The top of the photo states defendant’s “Arrest Number.”
18 The photograph extends to defendant’s top shoulder and neck area;
he appears to be wearing a dark-colored outer layer, although it is
19 not clear what that garment is, and possibly a collared shirt. To the
extent the photograph would otherwise show defendant’s clothes,
20 almost all of that area is covered by defendant’s long, dreadlocked
hair. Defendant had not changed his appearance since the
21 photograph was taken.
22 Nayeli presents in her photograph as a smiling and pleasant
young lady, possibly at some kind of event. She testified the
23 photograph was taken around the time of the incident, which was
less than nine months before trial. No evidence suggested her
24 appearance had changed between the date of the incident and the
date of her testimony.
25
***
26
C. Booking Photo
27
Defendant’s booking photograph was not relevant. Identity
28 was not disputed. Defense counsel sought to establish that Nayeli
1 could not see what defendant was doing behind the signs, but she
did not argue he was not there. Even if identity were disputed,
2
the booking photograph was only minimally relevant to proving
3 identity. Nayeli identified defendant in person the night of the
incident, and she identified him in court. The officer who responded
4 to the scene identified defendant in court and identified defendant
as the person in the booking photograph, but did not testify that
5 defendant’s physical appearance had changed.
6 Moreover, the parties agreed that the photograph does not
depict defendant as he looked that evening. The photograph only
7 shows the collar portion of what defendant wore on the night in
question, which was not in dispute. The parties agree the
8 photograph depicted defendant “mid-blink,” which we presume was
not how defendant looked while interacting with Nayeli. To the
9 extent that the photograph was relevant to show his haircut, facial
hair, or other identifying features, defendant had not changed any of
10 those things between the date of his arrest and the trial date.
11 Any marginal relevance was substantially outweighed by its
prejudicial effect. Defendant’s nearly-closed, red, watery eyes give
12 the appearance of intoxication. As argued by defense counsel at
trial, the photograph is very unflattering. In our view, the booking
13 photograph only served to provide the jury with a lasting, negative
image of defendant. It was an abuse of discretion to admit the
14 irrelevant, prejudicial photograph.
15 D. Photo of Nayeli
16 The photograph of Nayeli was completely irrelevant. We are
not persuaded by the prosecutor’s argument that he “use[s] them in
17 Power Point closings” and the trial court’s conclusion that the
photograph was admissible to “remind the jury of who she is.”
18 Nayeli was one of only three witnesses to testify during the only
day of testimony and had testified the day before. On appeal, the
19 Attorney General argues the photograph of Nayeli “was relevant to
whether [defendant] [w]as guilty of the charged crime.
20 Accordingly, the photo was relevant.” How exactly the photograph
is relevant, the Attorney General does not say. Frankly, the
21 argument makes no sense. It was an abuse of discretion to admit the
photograph.
22
23 ECF No. 9-7 at 17-20.
24 The Court of Appeal went on to find the error harmless utilizing its state law standard:
25 “only if the appellate court concludes that it is reasonable probable the jury would have reached a
26 different result had the photograph been excluded.” Id. at 21. The Court of Appeal elaborated:
27 We conclude it was not reasonably probable that the jury
would have returned a different verdict had the photographs been
28 excluded. Nayeli testified the previous day, and the impression of
1 her testimony was likely fresh in the jury’s mind. The photograph
of Nayeli did not affect her version of events as explained through
2 her testimony. While the photograph tends to show Nayeli in a
favorable light, which could make her appear more sympathetic to
3 the jury, we conclude it was not reasonably probable any such
sympathy would have changed the verdict.
4
Similarly, the jury had the opportunity to observe defendant
5 throughout the trial. Testimony at trial informed the jury that
defendant was arrested on the night in question, and nothing in the
6 photograph suggested defendant had previously been arrested, so
the photograph provided no new information. Both counsel told the
7 jury that defendant was not intoxicated at the time of the incident. It
was not reasonably probable that defendant would have received a
8 different result at trial had the photograph been properly excluded.
Therefore, the error in admitting the photographs was harmless.
9
10 ECF No. 9-7 at 21.
11 The undersigned would add that petitioner never argued that it was some other person at
12 the scene that night, nor that the indecent act did not take place. Thus, the pictures had nothing to
13 do with the jury’s assessment of what was simply undisputed evidence. Moreover, petitioner’s
14 present appearance to the jury, as well as the complainant, would have been much more
15 remembered than a couple of irrelevant photographs.
16 Generally, the alleged error in the admission of overly prejudicial evidence will not state a
17 cognizable claim in federal habeas. Holley v. Yarborough, 568 F.3d 1091, 1101 fn. 2 (9th Cir.
18 2009) (emphasis added) (noting that if it were free to rule on the issue, the Ninth Circuit would
19 have found a violation of due process.) See also Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir.
20 2008); Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006); Soojian v. Lizarraga, No. 1:16-
21 cv-00254-AWI-SAB-HC, 2018 WL 3155617 (E.D. Cal. June 25, 2018); Jones v. Spearman, No.
22 16-cv-03627-JD, 2018 WL 424402, at *4 (N.D. Cal. Jan. 16, 2018); Garcia v. Madden, No.
23 EDCA 17-00049-DOC (JDE), 2018 WL 910184, at *15 (C.D. Cal. Jan. 5, 2018).
24 However, if the evidence is both irrelevant and prejudicial, a federal due process claim is
25 started. Dawson v. Delaware, 503 U.S. 159 (1992), finding that the Aryan Brotherhood evidence
26 introduced in Dawson was totally irrelevant as well as prejudicial. Dawson remanded the case to
27 the Delaware courts for a harmless error standard.
28 ////
1 In federal habeas, harmless error is, as set forth on footnotes 7 and 8 of this Findings and
2 Recommendations, whether the error had a substantial and injurious effect on the verdict. See
3 also Schneider v. McDaniel, 674 F.3d 1144, 1150 (9th Cir. 2012). There is no daylight between
4 this standard and the standard utilized by the state appellate court. For all the reasons set forth
5 above, the harmfulness of the irrelevant evidence on the verdict was nil. Accordingly, this claim
6 should be denied.
7 Certificate of Appealability
8 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must
9 issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A
10 certificate of appealability may issue only “if the applicant has made a substantial showing of the
11 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings
12 and recommendations, a substantial showing of the denial of a constitutional right has been made
13 in this case.
14 Conclusion
15 IT IS HEREBY RECOMMENDED that:
16 1. The habeas petition should be DENIED; and
17 2. The district court decline to issue a certificate of appealability.
18 These findings and recommendations are submitted to the United States District Judge
19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
20 after being served with these findings and recommendations, any party may file written
21 objections with the court and serve a copy on all parties. Such a document should be captioned
22 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the
23 objections shall be served and filed within fourteen days after service of the objections. The
24 parties are advised that failure to file objections within the specified time may waive the right to
25 appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
26 Dated: December 7, 2021
/s/ Gregory G. Hollows
27
UNITED STATES MAGISTRATE JUDGE
28