noting that prosecutor’s argument that witness “told the 23 truth because, if she were lying, she would have done a better 24 job” was proper “inference from evidence in the record”
How later courts described this case
- noting that prosecutor’s argument that witness “told the 23 truth because, if she were lying, she would have done a better 24 job” was proper “inference from evidence in the record”
- finding that counsel’s failure to consult with certain 28 experts was not unreasonable when experts he did retain did not tell him to do so
- holding that petitioner failed to make prima 25 facie showing of diligence when he did not satisfactorily explain delay in obtaining codefendant’s declaration
- finding that 17 petitioner did not make prima facie showing that codefendant’s 18 declaration established his actual innocence even though it 19 undermined some evidence of his guilt
Written by the judges who cited it.
The opinion
1
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
DAMEN RABB, ) Case No. CV 17-9318-JAK (JPR)
11 )
Petitioner, )
12 ) ORDER ACCEPTING FINDINGS AND
v. ) RECOMMENDATIONS OF U.S.
13 ) MAGISTRATE JUDGE
M. ELIOT SPEARMAN, Warden, )
14 )
Respondent. )
15 )
16
The Court has reviewed the Successive Petition, records on
17
file, and Report and Recommendation of U.S. Magistrate Judge,
18
which recommends that Respondent’s motion to dismiss the
19
Successive Petition be granted. Petitioner filed objections to
20
the R. & R. through counsel on December 2, 2019, and two pro se
21
letters asserting his innocence, on October 1 and December 11,
22
2019; Respondent did not reply. Having reviewed de novo those
23
portions of the R. & R. to which Petitioner objects, see 28
24
U.S.C. § 636(b)(1)(C), the Court accepts the findings and
25
recommendations of the Magistrate Judge.
26
Petitioner challenges the Magistrate Judge’s analytical
27
approach in determining that the Successive Petition should be
28
dismissed because none of its claims meet the requirements of 28
1 U.S.C. 2244(b). According to Petitioner, because the Ninth
2 Circuit already “saw fit to send the case back” to the district
3 court (Objs. at 7), the Magistrate Judge had no business
4 reviewing the record as if she were an “appellate court,” drawing
5 inferences from the record, assessing the strength of the
6 evidence of his guilt, or “posit[ing] abstract doubts regarding
7 the veracity or trustworthiness of the evidence [he] submitted”
8 (id. at 4, 7).
9 But the Magistrate Judge’s thorough examination of the
10 record to determine whether Petitioner met § 2244(b)’s dictates
11 was not just warranted but required. It is a “misnomer” to say
12 that the Circuit “grants leave to file” a successive petition
13 after it finds that an application makes a prima facie showing
14 under § 2244(b). Edwards v. Koehn, No. CV 14-00390 VBF-SH, 2014
15 WL 11980006, at *2 n.1 (C.D. Cal. Apr. 14, 2014). A prima facie
16 showing is “simply a sufficient showing of possible merit to
17 warrant a fuller exploration by the district court.” Woratzeck
18 v. Stewart, 118 F.3d 648, 650 (9th Cir. 1997) (per curiam)
19 (citation omitted). The district court then “must,” as the
20 Magistrate Judge did here, “conduct a thorough review of all
21 allegations and evidence presented by the prisoner to determine
22 whether the [petition] meets the statutory requirements.” United
23 States v. Villa–Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000)
24 (per curiam); see § 2244(b)(4) (providing that “district court
25 shall dismiss any claim presented in a second or successive
26 application that the court of appeals has authorized to be filed
27 unless the applicant shows that the application satisfies the
28 requirements of this section”). In doing so, it “must not defer
2
1 to [the circuit court’s] preliminary determination.” Case v.
2 Hatch, 731 F.3d 1015, 1029 (10th Cir. 2013).
3 Petitioner’s objections to the Magistrate Judge’s findings,
4 many of which simply reiterate arguments he raised in the
5 Successive Petition and his opposition to the motion to dismiss,
6 are not persuasive. Although he takes issue with practically all
7 of the R. & R.’s footnotes — which by their nature are not
8 critical to the analysis — he does not challenge many of the
9 Magistrate Judge’s key conclusions in finding that he has not
10 acted diligently in bringing his claims and that the facts
11 underlying those claims, even if true, would not establish his
12 actual innocence. § 2244(b)(2)(B).
13 For instance, he does not anywhere dispute that the
14 Successive Petition’s fourth claim must be dismissed because it
15 was already raised in his initial Petition. (See R. & R. at 28-
16 30 (citing § 2244(b)(1)).) Nor does he address the Magistrate
17 Judge’s conclusion that many of his ineffective-assistance
18 subclaims, including those concerning counsel’s failure to object
19 to hearsay testimony, move to prohibit reference to the guns
20 recovered from the Camry, or seek to introduce Petitioner’s
21 girlfriend’s 2007 statement to the defense investigator, must be
22 dismissed because they are based on factual predicates that were
23 known to him at the time of trial. (See id. at 31-38.)
24 Petitioner repeatedly references Farmer’s and Chappell’s
25 2016 statements that Petitioner was not the man who robbed them
26 as new evidence supporting his actual innocence (see, e.g., Objs.
27 at 1, 23-24, 29-31), but he does not convincingly object to the
28 Magistrate Judge’s finding that he “was or should have been
3
1 aware” much earlier of the substance of those statements (R. & R.
2 at 35). He argues that they are not the same as their 2007
3 statements that they could not identify him as the robber in a
4 photo lineup (see Objs. at 24), but he does not dispute that the
5 2007 statements, which were discussed during trial in his
6 presence, put him on notice that Farmer and Chappell potentially
7 had more exculpatory identification information to provide (see
8 id. at 34-37).1
9 And although the Magistrate Judge pointed out in a footnote
10 that the record was unclear on whether Petitioner’s photograph
11 was even included in the 2007 photo lineup (see Objs. at 8
12 (citing R. & R. at 16 n.4)), her analysis makes plain that she
13 assumed it was — and that the lineup therefore put Petitioner on
14
15
1 The Magistrate Judge also correctly observed that the
16 victims’ 2007 statements would not likely have been admitted at
trial (see R. & R. at 50 n.22) and that it was unclear how
17 counsel could have been ineffective for allegedly not obtaining
the information shared by them in 2016 when he requested and
18
received court authorization for an investigator and sent that
19 investigator to speak to them back in 2007 (see id. at 46 n.20).
Further, just as in Gentry v. Sinclair, 705 F.3d 884, 899-900
20 (9th Cir. 2012) (as amended Jan. 15, 2013), Petitioner submitted
evidence concerning trial counsel’s strategy only on certain
21 subclaims — here, in the form of habeas counsel’s declaration
conveying trial counsel’s answers to questions habeas counsel
22
asked him during several interviews (see Opp’n, Ex. 15) — but no
23 evidence as to other subclaims, likely because habeas counsel
didn’t ask him about them. That may well bar those subclaims, as
24 the Magistrate Judge noted. (See R. & R. at 32 n.12 (citing
Gentry, 705 F.3d at 899-900), 34 n.14 (same).) Petitioner now
25 asserts that unlike in Gentry, trial counsel refused to submit a
declaration or to “speak with habeas counsel further about the
26
case” (Objs. at 10), but that information is not in his
27 declaration, and although trial counsel apparently could not
recall many of the “strategies related to the issues . . .
28 raised,” he at least initially cooperated with habeas counsel
(Opp’n, Ex. 15 at 5-7).
4
1 notice of any potential claims stemming from the victims’
2 inability to identify him in it. Of course, as the Magistrate
3 Judge pointed out (see R. & R. at 36), the best evidence that
4 Petitioner was in fact on notice of those claims is that
5 immediately after being appointed and years before the victims
6 made their 2016 statements, habeas counsel filed a superior-court
7 habeas petition raising most of the Successive Petition’s claims
8 (see generally Lodged Doc. 21).
9 Petitioner identifies three factual predicates that he
10 claims the Magistrate Judge incorrectly determined he could have
11 discovered before he filed the initial Petition. First, he
12 asserts that he could not have earlier known that trial counsel
13 allegedly failed to watch a surveillance videotape collected from
14 the crime scene and so learned only several years after the
15 initial Petition was filed, when habeas counsel interviewed trial
16 counsel. (Objs. at 11-12.) But as Petitioner has acknowledged
17 (see Opp’n, Ex. 15 at 6) and the Magistrate Judge outlined (see
18 R. & R. at 33), although trial counsel told habeas counsel during
19 that interview that “he was not aware of any surveillance tape
20 and . . . never viewed it or sought to view it” (Opp’n, Ex. 15 at
21 6), the record makes plain that he in fact knew about it before
22 trial (see, e.g., Lodged Doc. 2, 3 Rep.’s Tr. at 1335). His
23 cross-examination of a police witness at trial made clear that he
24 knew of the surveillance tape, and the particular questions he
25 asked suggested that he had watched it. (See R. & R. at 33
26 (citing Lodged Doc. 2, 3 Rep.’s Tr. at 1335).) Thus, there is no
27 credible newly discovered evidence that trial counsel never
28 watched the surveillance tape. Rather, he just didn’t remember,
5
1 seven years later, what had happened at trial. (See Opp’n, Ex.
2 15 ¶ 13 (habeas counsel noting that trial counsel said he could
3 not remember much about Petitioner’s trial).) In any event,
4 Petitioner was clearly aware of the facts underlying this
5 ineffective-assistance subclaim when he filed his initial
6 Petition and yet failed to raise it, instead claiming that his
7 counsel allegedly never watched the tape because the prosecution
8 didn’t produce it in discovery. (See Objs. at 12.)
9 Second, Petitioner claims the Magistrate Judge misapplied
10 relevant law in finding that he could have earlier challenged
11 trial counsel’s failure to procure the testimony of an
12 eyewitness-identification expert. (Id. at 19-23.) The
13 Magistrate Judge did not “create[] a higher standard for
14 [Petitioner]” or find that “a petitioner must instruct their
15 counsel on how to do their job as counsel or they cannot have
16 been diligent.” (Id. at 20.) Rather, her analysis correctly
17 noted that Petitioner’s claim boiled down to counsel allegedly
18 having been ineffective for failing to ask the expert whether he
19 would have accepted less to testify. (See R. & R. at 42-44.)
20 And she correctly concluded that Petitioner, who was present
21 during the court’s colloquies with counsel about the expert’s fee
22 and aware that counsel believed he would not be able to testify
23 because his full fee had not been authorized, could have — just
24 as habeas counsel did after being appointed — discovered, or at
25 least tried to, that the expert would have accepted less and
26 challenged counsel’s effectiveness for not asking him to do so.2
27
28 2 Petitioner has never cited any authority to support his
(continued...)
6
1 (Id.)
2 The Magistrate Judge also properly distinguished Rudin v.
3 Myles, 781 F.3d 1043 (9th Cir. 2015), on which Petitioner relies.
4 (See Objs. at 20-22.) As an initial matter, Rudin has nothing to
5 do with successive petitions or the standards governing them.
6 Moreover, as the Magistrate Judge explained (see R. & R. at 44
7 n.19), the Ninth Circuit held in that case that the petitioner
8 was entitled to equitable tolling of the AEDPA limitation period
9 because she could have raised her ineffective-assistance claim
10 only after learning of and being prejudiced by counsel’s
11 abandonment of her, 781 F.3d at 1054 n.13. That holding does not
12 help Petitioner because he was prejudiced by counsel’s alleged
13 deficiencies when he was convicted and therefore could have
14 raised his ineffective-assistance claim immediately thereafter.
15 See Gimenez v. Ochoa, Civil No. 12-1137 LAB (BLM)., 2013 WL
16 8178829, at *5 (S.D. Cal. Nov. 22, 2013) (finding § 2244(b)’s
17 due-diligence requirement not satisfied when petitioner had been
18 aware since trial of counsel’s failure to have radiologist
19 testify concerning certain evidence), accepted by 2014 WL 1302463
20 (S.D. Cal. Mar. 28, 2014), aff’d, 821 F.3d 1136 (9th Cir. 2016).
21
22
2(...continued)
23 suggestion that trial counsel, who informed the court of the
expert’s fee but was not granted the full amount requested,
24 performed deficiently in not negotiating with the expert to take
less. Counsel’s failure to do so, when no evidence shows that
25 the expert had ever even suggested he would consider a lower fee,
did not likely “f[a]ll below an objective standard of
26
reasonableness.” Strickland v. Washington, 466 U.S. 668, 688
27 (1984); see Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir.
1998) (finding that counsel’s failure to consult with certain
28 experts was not unreasonable when experts he did retain did not
tell him to do so).
7
1 Petitioner claims the Magistrate Judge misconstrued Rudin because
2 the case is not about “learning of prejudice, but experiencing
3 it.” (Objs. at 21.) The Court is not certain what semantic
4 difference Petitioner seeks to draw, but in any event, he
5 “experienced” prejudice when he was convicted after no
6 identification expert testified at trial.
7 Finally, Petitioner claims the Magistrate Judge wrongly
8 decided — based on Chappell’s 2007 statement that he wasn’t
9 scared during the robbery — that he was on notice from before his
10 conviction that police descriptions of the victims as being
11 scared and agitated immediately after the robbery were allegedly
12 inaccurate. (Id. at 12-13.) The Magistrate Judge rightly
13 concluded that Chappell’s 2007 denial of being scared during, as
14 opposed to immediately after, the robbery should have alerted him
15 to the claim. Indeed, Chappell himself spoke of one continuous
16 time frame, claiming in 2016 that it was “completely untrue” that
17 he was “under stress and acting excited” when talking to the
18 police a few minutes after the robbery because he had had “plenty
19 of guns pulled on [him] before.” (Opp’n, Ex. 11 at 1.)
20 And if Chappell wasn’t afraid during the robbery, as he said
21 in 2007, he presumably would have had no reason to be right after
22 it either, calling into question the officers’ testimony to the
23 contrary. As the Magistrate Judge pointed out (see R. & R. at
24 40), the best evidence that Chappell’s 2007 statement put
25 Petitioner on notice of his claim is habeas counsel’s argument in
26 a superior-court petition filed years before Farmer’s and
27 Chappell’s 2016 statements that trial counsel should have used
28 Chappell’s statement about not being scared to prevent his crime-
8
1 scene statements to the police officers from being admitted into
2 evidence as excited utterances.3 (See Lodged Doc. 21 at 18, 21-
3 22.)4 Therefore, contrary to Petitioner’s suggestion (Objs. at
4 14-15), the Magistrate Judge properly determined that Hasan v.
5 Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001), holding as to an
6 initial, not a successive, petition that a petitioner could not
7 have discovered an ineffective-assistance claim until he was
8 aware of the prejudice he had allegedly suffered, was inapposite.
9
10
3 Petitioner claims, without any evidence or citation to
11 supporting authority, that a “victim might experience
psychological shock when facing a gun, but then deal with the
12 flood of repressed emotions once the dangerous situation abated”
and therefore “there was no reason to disbelieve [the officers’]
13 testimony” that Chappell was “emotionally agitated” when he spoke
14 to them despite his 2007 statement that during the robbery itself
he wasn’t scared. (Objs. at 14.) But Petitioner clearly was
15 earlier aware of his claim because he raised it in the state
petition years before his initial federal Petition and the
16 victims’ 2016 statements.
17 4 Petitioner argues that the Magistrate Judge failed to
appreciate that he was not in a position to conduct the sort of
18
investigation necessary to uncover most of his claims. (Objs. at
19 16-18.) But as discussed, he possessed most of the information
he needed to challenge counsel’s effectiveness when he filed the
20 initial Petition. Further, although his pro se status certainly
hampered his ability to reach out to Farmer and Chappell, he was
21 not without options. For example, he could have asked a family
member or friend to contact them. Beyond that, courts have not
22
excused the failure to exercise due diligence based on a
23 petitioner’s pro se status, including in cases when a petitioner
has not timely obtained statements from codefendants or
24 witnesses. See, e.g., Johnson v. Williams, 650 F. App’x 508, 511
(9th Cir. 2016) (holding that petitioner failed to make prima
25 facie showing of diligence when he did not satisfactorily explain
delay in obtaining codefendant’s declaration); Gant v. Barnes,
26
No. CV 14-2618-CJC (SP), 2017 WL 3822063, at *7 (C.D. Cal. July
27 19, 2017) (“Petitioner’s inability to locate, rather than
discover [alibi] witnesses due to his previous pro se litigant
28 status does not undermine the conclusion that he knew the factual
predicate for his IAC claim by the conclusion of his trial.”).
9
1 (See R. & R. at 40-41); West v. Ryan, 652 F.3d 1071, 1078 (9th
2 Cir. 2011) (denying application for leave to file successive
3 petition because evidence of abuse was not “newly discovered”
4 given that petitioner’s counsel was aware “of at least some of
5 the allegations” when petitioner filed his first state habeas
6 petition).
7 Petitioner suggests he exercised due diligence in presenting
8 his claims because habeas counsel filed an unsuccessful motion to
9 stay the appellate proceedings based on newly discovered
10 evidence, see Mot., Rabb v. Sherman, No. 13-55057 (9th Cir. June
11 20, 2014), ECF No. 29, and an unsuccessful motion under Crateo,
12 Inc. v. Intermark, Inc., 536 F.2d 862 (9th Cir. 1976), asking
13 this Court to indicate that it would “entertain or grant” a Rule
14 60(b) motion for relief from judgment based on newly discovered
15 evidence in the event the Ninth Circuit remanded the case, see
16 Mot., Rabb v. Lopez, No. CV 11-5110-JAK (JPR) (C.D. Cal. Dec. 21,
17 2014), ECF No. 63. (See Objs. at 21.) But those motions were
18 filed after this Court had denied the initial Petition, and it is
19 well settled that in those circumstances a petitioner seeking to
20 “present newly discovered evidence” or “add a new ground for
21 relief” must satisfy § 2244(b)’s requirements to file a
22 successive petition and cannot raise the claim in a Rule 59(e) or
23 60(b) motion. Rishor v. Ferguson, 822 F.3d 482, 491 (9th Cir.
24 2016) (citing Gonzalez v. Crosby, 545 U.S. 524, 531 (2005)).
25 Counsel’s having filed stay motions that were almost certain to,
26 and did, fail does not demonstrate diligence.
27 Even if any of Petitioner’s claims could not have been
28 discovered earlier, the Magistrate Judge correctly found that
10
1 “the facts underlying [them], if proven and viewed in light of
2 the evidence as a whole,” would be “[in]sufficient to establish
3 by clear and convincing evidence that, but for constitutional
4 error, no reasonable factfinder would have found [Petitioner]
5 guilty of the underlying offense.” (R. & R. at 46 (citing
6 § 2244(b)(2)(B)(ii)).)5 Petitioner cannot seriously contend that
7 the surveillance video or the eyewitness-identification expert’s
8 testimony would have established that he was actually innocent.
9 He presents no nonspeculative basis to question Detective
10 Williams’s testimony that no particular person or vehicle in the
11 video could be identified. (See id. at 12 n.3, 33 (citing Lodged
12 Doc. 2, 3 Rep.’s Tr. at 1328-29).) Indeed, he elsewhere proffers
13 Williams’s testimony as being truthful, noting that he
14 specifically declined to label Petitioner a gang member. (Objs.
15 at 39.) And although the expert’s testimony would have served to
16 undermine Banuelos’s identification of Petitioner, that
17 identification was already called into question by trial
18 counsel’s extensive cross-examination about its circumstances and
19 the inconsistencies in it (see R. & R. at 55-56 (discussing
20 counsel’s cross-examination)), as Petitioner acknowledges (see
21 Objs. at 44-49, 51-53), and nonetheless was credited by the jury.
22
23 5 The Magistrate Judge did not hold Petitioner to an
improperly high “unquestionably” innocent standard. (See Objs.
24 at 43-44.) She noted that standard — which governs a stand-alone
actual-innocence claim in a successive petition (see R. & R. at
25 50 (citing Morales v. Ornoski, 439 F.3d 529, 533-34 (9th Cir.
2006) (per curiam))) — most likely because Petitioner in fact
26
raised such a claim in the Successive Petition, although he later
27 clarified that he did not seek relief on it (see Opp’n at 6).
She elsewhere consistently applied § 2244(b)(2)(B)(ii)’s actual-
28 innocence standard in recommending dismissal of Petitioner’s
claims. (See, e.g., R. & R. at 25-26, 46, 61.)
11
1 The crux of Petitioner’s actual-innocence claim and his
2 objections to the Magistrate Judge’s analysis of it is that she
3 undervalued the significance of the victims’ 2016 statements that
4 the police officers’ testimony about their emotional state was
5 untrue. According to Petitioner, that testimony would have
6 prevented admission of their crime-scene statements to the
7 officers as excited utterances and established that the officers
8 were lying. (Objs. at 15.) But as the Magistrate Judge
9 explained, that the victims claimed they were not scared would
10 not likely have resulted in their descriptions of the suspects
11 being excluded from evidence because the trial judge could have
12 determined that they were acting scared or excited, as the
13 officers perceived, even if they genuinely believed they hadn’t
14 felt those emotions. (See R. & R. at 39 n.17, 55.) Further,
15 that the Magistrate Judge offered this insight was not improper
16 “extrapolat[ion]” (Objs. at 14) but rather appropriate analysis
17 of how a reasonable factfinder would consider that evidence.
18 Beyond that, whether the victims’ statements would have rendered
19 certain parts of the officers’ testimony inadmissible has no
20 bearing on whether they establish Petitioner’s factual innocence.
21 Indeed, in assessing actual innocence the Court must consider
22 “‘all the evidence, old and new, incriminating and exculpatory,’
23 admissible at trial or not.” Lee v. Lampert, 653 F.3d 929, 938
24 (9th Cir. 2011) (en banc) (citation omitted) (assessing more
25 lenient actual-innocence standard for equitable exception to time
26 bar); see also King v. Trujillo, 638 F.3d 726, 732 (9th Cir.
27 2011) (finding that although counsel could have used new evidence
28 to object to admission of certain evidence at trial, that was
12
1 “irrelevant as to [petitioner’s] actual innocence”).
2 The Magistrate Judge also correctly determined that the
3 victims’ statements about their demeanor the night of the crime
4 would not have led any reasonable factfinder to conclude that
5 each of the police officers was lying and that they had all
6 conspired to frame Petitioner, which is what Petitioner
7 essentially claims. (See Objs. at 42-43.) As noted, the
8 officers’ testimony and the victims’ statements were not
9 inconsistent; the jury could have believed that the officers saw
10 the victims as excited while the victims themselves thought they
11 were calm, at least from the vantage point of a decade later.
12 More significantly, an impartial witness testified that shortly
13 after the crimes the victims told her they had been scared (see
14 Lodged Doc. 2, 3 Rep.’s Tr. at 1509), which corroborates the
15 officers’ accounts. And Petitioner’s suggestion that the
16 officers’ testimony was perjured is undermined by his own
17 extensive analysis of the contradictions and weaknesses in it.
18 (See, e.g., Objs. at 45-48, 52-53.) If the officers were in fact
19 lying and conspiring with one another to frame Petitioner, their
20 accounts likely would have been more consistent and inculpatory.
21 See United States v. Nacoechea, 986 F.2d 1273, 1279 (9th Cir.
22 1993) (noting that prosecutor’s argument that witness “told the
23 truth because, if she were lying, she would have done a better
24 job” was proper “inference from evidence in the record”).6
25
26
6 There is no merit to Petitioner’s claim that the
27 “Magistrate Court wrongly believes that perjury by the state’s
witnesses only matters if the prosecutor knowingly put on the
28 testimony.” (Objs. at 49.) That legal conclusion is nowhere in
(continued...)
13
1 Nor did the victims’ 2007 failure to identify Petitioner in
2 a lineup as the man who robbed them and their 2016 statements
3 that he was not the man who robbed them establish his actual
4 innocence. Petitioner claims that the Magistrate Judge
5 improperly rejected those statements as “incredible” (Objs. at 2)
6 without holding a hearing. But although he is correct that the
7 Magistrate Judge identified reasons to question their credibility
8 and factors that undermined the exculpatory value of the
9 statements, the R. & R. makes plain that she accepted for the
10 purposes of her analysis that the victims genuinely believed what
11 they said.
12 That does not mean, however, that the Magistrate Judge was
13 precluded from considering how much weight those statements would
14 carry with reasonable factfinders. Indeed, she was required to
15 do so in assessing whether any newly discovered evidence was
16 sufficient to establish clearly and convincingly that Petitioner
17 was actually innocent. § 2244(b)(2)(B)(ii). She properly
18 identified the many reasons why the victims’ statements had
19 limited exculpatory value and did not establish Petitioner’s
20 actual innocence. Likewise, she persuasively identified the
21
22
6(...continued)
23 the R. & R. In a footnote, the Magistrate Judge cited Hayes v.
Brown, 399 F.3d 972, 974 (9th Cir. 2005) (en banc), to point out
24 that Petitioner could not establish prosecutorial misconduct, a
claim raised in ground five of the Successive Petition (see
25 Successive Pet. at 74-78), without evidence that the prosecution
knowingly acted improperly. (R. & R. at 54-55 n.24.) She did
26
not decide that a petitioner convicted based on false evidence
27 could not pursue a due-process claim unless the prosecutor him-
or herself knew the evidence was false (see Objs. at 49-51) and
28 had no reason to do so given that no such claim was raised by
Petitioner.
14
1 ample evidence of Petitioner’s guilt that blunted what little
2 exculpatory value the victims’ statements had. Indeed, contrary
3 to Petitioner’s assertion that “[n]ot one piece of tangible
4 evidence points to [him]” (Objs. at 42), the R. & R. outlines the
5 compelling proof of Petitioner’s guilt that corroborates
6 Banuelos’s identification testimony, including convicted
7 codefendants Parron and Brown both identifying him as their
8 accomplice, a statement from his girlfriend that she lent him the
9 car used during the robbery, and his resemblance to Chappell’s
10 and Farmer’s crime-scene descriptions of the gunman and
11 Banuelos’s description of the man he saw that night. (R. & R. at
12 49-50.)
13 Although Petitioner points out various inaccuracies and
14 inconsistencies in those descriptions, the jury heard all of them
15 and nonetheless credited Banuelos’s and the other officers’
16 testimony. See Johnson, 650 F. App’x at 511 (finding that
17 petitioner did not make prima facie showing that codefendant’s
18 declaration established his actual innocence even though it
19 undermined some evidence of his guilt). And Petitioner fails to
20 acknowledge that as the Magistrate Judge noted, in assessing his
21 showing of actual innocence the Court must consider all the
22 evidence — including Parron’s and Brown’s identifications of him
23 as their accomplice — and not just the evidence admitted at
24 trial. (See R. & R. at 27 (citing Lee, 653 F.3d at 938).)
25 Under these circumstances, the Magistrate Judge was not
26 required to hold a hearing before recommending dismissal of the
27 Successive Petition. Just as in Cox v. Powers, assuming that
28 Farmer and Chappell were credible “in the sense that [they were]
15
1 stating what [they] believed [they] saw,” that did not
2 “‘clear[ly] and convincing[ly]’ show[] that no reasonable
3 factfinder would find [Petitioner] guilty.” 525 F. App’x 541,
4 543 (9th Cir. 2013) (citing § 2244(b)(2)(B)(ii)). Although
5 “there would then be directly contradictory eyewitnesses, the
6 jury could have continued to believe that the prosecution
7 witness’ testimony was more accurate than that of the defense
8 witnesses.” Id. Although Petitioner posits that “[s]imply by
9 reading the transcript, it is obvious that Sgt. Banuelos
10 presented false evidence” (Objs. at 51), apparently the jury did
11 not think so. The R. & R. explains why any reasonable factfinder
12 would have had ample reason to give little weight to Farmer’s and
13 Chappell’s statements even if the witnesses believed them to be
14 true and how what weight they did deserve was outweighed by the
15 robust other evidence of guilt. See, e.g., McDermott v. Soto,
16 No. CV 16-1888-GW (AGR), 2018 WL 4501170, at *8-9, *11 n.12 (C.D.
17 Cal. Jan. 5, 2018) (dismissing successive petition without
18 holding hearing because even assuming statements in exculpatory
19 declaration were true, “they do not show, clearly and
20 convincingly, that no reasonable jury would have convicted
21 [p]etitioner”), accepted by 2018 WL 4471096 (C.D. Cal. Sept. 17,
22 2018); Bryant v. Gonzalez, No. CV 10-5137-CAS (SH)., 2012 WL
23 6012868, at *7 & n.8 (C.D. Cal. Nov. 28, 2012) (same when
24 witness’s recantation of identification testimony and allegations
25 of police misconduct did not establish actual innocence),
26 accepted by 2012 WL 6012862 (C.D. Cal. Nov. 30, 2012).
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1 IT THEREFORE IS ORDERED that Respondent’s motion to dismiss
granted and judgment be entered dismissing this action with
3 || prejudice.
4 Oe VE
DATED: January 30, 2020
5 JOHN A. KRONSTADT
U.S. DISTRICT JUDGE
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