# Lesester Duva McDaughtery v. Foss

> District Court, C.D. California · March 5, 2021

URL: https://www.frixlaw.com/law-library/cases/10040321

## Case

- **Court:** District Court, C.D. California
- **Decided:** March 5, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- holding that the 16 prosecution does not have a duty to volunteer information to the defense that is not 17 in its possession

## Opinion text

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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE CENTRAL DISTRICT OF CALIFORNIA
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11 LESESTER DUVA Case No. CV 20-08488-RAO
MCDAUGHTERY,
12
Petitioner,
13 MEMORANDUM OPINION AND
v. ORDER
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MATTHEW ATCHLEY,1 Warden,
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Respondent.
16

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On July 20, 2020, Petitioner Lesester Duva McDaughtery (“Petitioner”)
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constructively filed the instant Petition for Writ of Habeas Corpus by a Person in
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State Custody (“Petition”). Dkt. No. 1. The parties have consented to proceed
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before a magistrate judge. Dkt. Nos. 2, 18-19. After reviewing the Petition,
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Answer, and Traverse, as well as the relevant lodged documents, the Court DENIES
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the Petition.
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I. INTRODUCTION
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In 2018, a jury in the Los Angeles County Superior Court convicted
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Petitioner of two counts of criminal threats with the use of a deadly weapon and
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1 Petitioner is currently incarcerated at the Salinas Valley State Prison in Soledad,
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California. Matthew Atchley is the custodian at that prison and, accordingly, is
28 substituted as the Respondent herein. See Fed.R.Civ.P. 25(d).
1 two counts of assault with a deadly weapon, one of which involved the infliction of
2 great bodily injury. (1 Clerk’s Transcript (“CT”) at 191-96.) After Petitioner
3 admitted having a prior strike under California’s Three Strikes law, the trial court
4 sentenced him to 24 years and four months in prison. (3 Reporter’s Transcript
5 (“RT”) at 311-13; 1 CT at 244-48.)
6 Petitioner appealed to the California Court of Appeal, which affirmed the
7 judgment in a reasoned decision.2 (Lodg. Nos. 3-6.) Petitioner then filed a petition
8 for review in the California Supreme Court, which was denied summarily. (Lodg.
9 Nos. 7-8.)
10 On August 14, 2018, Petitioner’s first habeas corpus petition filed in the Los
11 Angeles County Superior Court was denied because his appeal was still pending.
12 (Lodg. Nos. 9, 16 at 16.) On November 19, 2019, Petitioner filed a second habeas
13 corpus petition in the Los Angeles County Superior Court that was denied both on
14 the merits and for procedural deficiencies. (Lodg. Nos. 10, 11.) Thereafter, he
15 filed a habeas petition in the California Court of Appeal, which was denied for
16 “failing to state a prima facie case for relief.” (Lodg. Nos. 12-13.) Finally, on
17 March 23, 2020, Petitioner filed a writ of habeas corpus in the California Supreme
18 Court, which was denied summarily on June 10, 2020. (Lodg. Nos. 14-15.)
19 On July 20, 2020, Petitioner, a California state prisoner proceeding pro se,
20 constructively filed a Petition for Writ of Habeas Corpus by a Person in State
21 Custody (“Petition”), pursuant to 28 U.S.C. § 2254, raising three grounds for
22 relief.3 (Docket No. 1.) On November 23, 2020, Respondent filed an Answer to

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2 The California Court of Appeal did remand the case to the trial court to exercise
24 its discretion whether to strike an enhancement for a prior felony conviction.
(Lodg. No. 6 at 11.) Ultimately, the trial court declined to strike the prior
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conviction and reaffirmed his sentence. (See Lodg. No. 16 at 24.)
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3 Pursuant to the prisoner “mailbox rule,” the Court uses the date on which Petitioner
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submitted his petition to prison authorities for mailing as the filing date. See Houston
28 v. Lack, 487 U.S. 266, 275-76 (1988). Under this rule, “the court deems the petition
1 the Petition and a supporting memorandum (“Answer”). (Docket No. 16.)
2 Respondent also lodged the relevant state records. (Docket No. 17.) On January 4,
3 2021, Petitioner filed a Traverse. (Docket No. 23.)
4 II. PETITIONER’S CLAIMS
5 The Petition raises three grounds for relief:
6 1. The prosecutor presented false evidence by allowing a witness to give
7 perjured testimony that undermined Petitioner’s defense at trial.
8 2. The prosecutor committed misconduct by failing to disclose
9 surveillance videos that would have supported Petitioner’s claim of self-defense.
10 3. The trial court was biased against him as evidenced by suppressing
11 subpoenaed video records by the defense.
12 (Petition at 5-6, Attached Memorandum (“Attach. Memo. at 5-34.)
13 III. FACTUAL SUMMARY
14 The Court adopts the factual summary set forth in the California Court of
15 Appeal’s opinion affirming Petitioner’s conviction.4
16 Prosecution Evidence
17 On the evening of December 22, 2017, [Petitioner] was at
the ground-floor apartment of his girlfriend, Victoria
18 Williams. Williams’ sister, Vanessa Conley, was also
present. According to Williams, the three of them were
19 drinking alcohol and ingesting cocaine; however, Conley
denied that they were using drugs. At one point,
20
constructively ‘filed’ on the date it is signed.” Roberts v. Marshall, 627 F.3d 768,
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770 n.1 (9th Cir. 2010).
22
4 The Court “presume[s] that the state court’s findings of fact are correct unless
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[p]etitioner rebuts that presumption with clear and convincing evidence.” Tilcock
24 v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008); 28 U.S.C. § 2254(e)(1). Because
Petitioner has not rebutted the presumption with respect to the underlying events,
25
the Court relies on the state court’s recitation of the facts. Tilcock, 538 F.3d at
26 1141. To the extent that an evaluation of Petitioner’s individual claims depends on
an examination of the trial record, the Court herein has made an independent
27
evaluation of the record specific to those claims.
28
1 [“Pgeetti tiino tnheer ]c bloesceatm.”e H “ep athraenno tiudr”n eadn do ftof ladl lt hthee w liogmhtesn a tnod
2 went from room to room, looking out the windows.
Conley, who had refused to get in the closet and said she
3 did not like sitting in the dark, left the apartment. After
she left, [Petitioner] moved the refrigerator so that it
4 blocked the front door. He then accused Williams and
Conley of setting him up to be attacked by gang members
5 who were outside.
6 Williams was able to move the refrigerator, and Conley
re-entered. [Petitioner] then moved the refrigerator back
7 to block the door. When Conley went to turn on a kitchen
light, [Petitioner] ordered her not to do so. She replied
8 that she was not going to sit in the dark, whereupon
[Petitioner] struck her in the head, breaking her glasses.
9 He then pulled out a knife from the back of his pants and
tried to stab Conley in the stomach. To protect herself,
10 Conley grabbed the knife blade, and two fingers of her
left hand were cut. Williams grabbed the knife handle,
11 and the three of them struggled over the weapon.
12 Conley and Williams tried to push the refrigerator away
from the door, but [Petitioner] prevented them. He called
13 the women “bitches,” accused them of “trying to set him
up,” and said he was going to kill them. [Petitioner]
14 continued to thrust the knife towards the women.
15 Ultimately, the women were able to push the refrigerator
from the door. Conley opened the front door a little bit
16 and told Williams’ neighbor, Gregory McCloud, who had
come out of his apartment after being awakened by the
17 sounds of the struggle, to call the police. [Petitioner] then
dropped the knife and went outside.
18
Conley and Williams went to McCloud’s apartment, and
19 the police and paramedics soon arrived. Los Angeles
Police Officer Vanessa Contreras, one of the responding
20 officers, recovered the knife used in the assault from
McCloud, and arrested [Petitioner], who was standing
21 outside Williams’ apartment and tried to walk away.
22 Conley later had surgery on her two injured fingers to
repair severed tendons. At the time of trial, she could no
23 longer bend the fingers.
24 According to Williams, [Petitioner] had numerous gang
tattoos. Although he had lived with Williams for a time
25 before the incident, he moved out after telling her that her
apartment was in the area of a rival gang. [Petitioner]
26 would usually leave Williams’ apartment early, because
he said that his life would be in danger if he was in the
27 area after sundown. On the night of [Petitioner’s] assault,
there were no gang members or other people outside
28 Williams’ apartment.
1 Defense Evidence
2 [Petitioner] testified that on the evening of the incident,
Williams invited him over because she had some cocaine.
3 [Petitioner] was suspicious because it was getting dark
and she had never before invited him over at night. While
4 [Petitioner] was on the bus to Williams’ apartment,
Williams called a couple of times asking where he was,
5 which made [Petitioner] more suspicious.
6 [Petitioner] arrived at the apartment around 7:00 p.m.
Williams, Conley, and he were “partying and smoking
7 crack and stuff” until about 12:30 a.m. Around that time,
[Petitioner] noticed a “furtive movement” “on the patio,”
8 and Conley made the comment, “Look at him, he’s
hiding.” Someone was jiggling the patio door, and
9 Williams said, “Oh, they’re working on the door.”
Through the blinds, [Petitioner] saw someone on the
10 patio, and immediately thought “they’re here to get me.”
Conley declared, “I’ve never been a part of anything like
11 this before.”
12 [Petitioner] retrieved a knife from the kitchen, and placed
it in the back of his pants. He wanted to call the police but
13 was unable to find his phone. He turned off the lights so
that he would not be visible from the patio. He saw two
14 people on the patio, one of whom was jiggling the door.
He placed the refrigerator in front of the front door and
15 began pacing back and forth. He had already checked the
windows and doors to make sure they were locked, as was
16 his habit whenever he went to Williams’ apartment.
Suddenly, he saw a “laser sight” come through a crack in
17 the blinds. [Petitioner] heard someone say “[i]f you sight
in, put the barrel against the glass.” Conley then said “I
18 hope they don’t shoot me.” She went to turn on a light
and [Petitioner] pushed her away. When she resisted,
19 [Petitioner] hit Conley in the face, saying “[m]an, you
trying--you trying to get me killed in here.”
20
Because someone was “really jiggling the door,”
21 [Petitioner] pulled the knife out, intending to run to the
door, but Conley, apparently believing [Petitioner] was
22 attacking her, grabbed the knife and they all started
“tussling.” [Petitioner] thought he would create a
23 diversion by making the women scream to scare away the
men on the patio, so he said “I’m gonna kill both you
24 bitches,” and pointed the blade towards Conley, making a
conscious effort not to pull or push the knife because he
25 did not want to injure Conley’s hand. As he planned, the
women began screaming, and the three of them continued
26 to “tussle.” [Petitioner] then saw the laser light moving
around the inside of the apartment, and stooped up and
27 down to avoid it. Eventually, [Petitioner] decided that the
men on the patio had fled, so he let go of the knife, and
28 allowed Williams and Conley to leave the apartment.
1 [hPoeotditiieo,n aenrd] cshtoaondg eodu thsiisd eb ltohoed ayp sahrtimrt,e pnut.t Hone da ibdu nrogtu wndayn t
2 to go outside, believing he would be “a dead man,” but he
thought it was better to be arrested than killed.
3 Nonetheless, when the police arrived, [Petitioner] walked
away from them. He did not attempt to talk to them and
4 did not tell them about the rival gang members trying to
kill him.
5
(Lodg. No. 6 at 2-6.)
6
IV. STANDARD OF REVIEW
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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
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“bars relitigation of any claim ‘adjudicated on the merits’ in state court, subject
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only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562
10
U.S. 86, 98 (2011). In particular, this Court may grant habeas relief only if the state
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court adjudication was contrary to or an unreasonable application of clearly
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established federal law as determined by the United States Supreme Court or was
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based upon an unreasonable determination of the facts. Id. at 100 (citing 28 U.S.C.
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§ 2254(d)). “This is a difficult to meet and highly deferential standard for
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evaluating state-court rulings, which demands that state-court decisions be given
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the benefit of the doubt[.]” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal
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citation and quotations omitted).
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A state court’s decision is “contrary to” clearly established federal law if: (1)
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the state court applies a rule that contradicts governing Supreme Court law; or (2)
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the state court confronts a set of facts that are materially indistinguishable from a
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decision of the Supreme Court but nevertheless arrives at a result that is different
22
from the Supreme Court precedent. See Lockyer v. Andrade, 538 U.S. 63, 73
23
(2003) (citing Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). A state court need
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not cite or even be aware of the controlling Supreme Court cases “so long as neither
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the reasoning nor the result of the state-court decision contradicts them.” Early v.
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Packer, 537 U.S. 3, 8 (2002).
27
///
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1 A state court’s decision is based upon an “unreasonable application” of
2 clearly established federal law if it applies the correct governing Supreme Court
3 law but unreasonably applies it to the facts of the prisoner’s case. Williams, 529
4 U.S. at 412-13. A federal court may not grant habeas relief “simply because that
5 court concludes in its independent judgment that the relevant state-court decision
6 applied clearly established federal law erroneously or incorrectly. Rather, that
7 application must also be unreasonable.” Id. at 411 (emphasis added).
8 In determining whether a state court decision was based on an “unreasonable
9 determination of the facts” under 28 U.S.C. § 2254(d)(2), such a decision is not
10 unreasonable “merely because the federal habeas court would have reached a
11 different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301
12 (2010). The “unreasonable determination of the facts” standard may be met where:
13 (1) the state court’s findings of fact “were not supported by substantial evidence in
14 the state court record”; or (2) the fact-finding process was deficient in some
15 material way. Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012) (citing
16 Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004)).
17 In applying these standards, a federal habeas court looks to the “last reasoned
18 decision” from a lower state court to determine the rationale for the state courts’
19 denial of the claim. See Cannedy v. Adams, 706 F.3d 1148, 1156 (9th Cir. 2013)
20 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). There is a presumption that
21 a claim that has been silently denied by a state court was “adjudicated on the
22 merits” within the meaning of 28 U.S.C. § 2254(d), and that AEDPA’s deferential
23 standard of review therefore applies, in the absence of any indication or state-law
24 procedural principle to the contrary. See Johnson v. Williams, 568 U.S. 289, 298
25 (2013) (citing Richter, 562 U.S. at 99).
26 Here, Petitioner raised the claims in the instant Petition in the state courts on
27 collateral review. (See Lodg. Nos. 12, 14.) The California Court of Appeal
28 rejected Petitioner’s claims for “failing to state a prima facie case for relief,” and
1 the California Supreme Court subsequently denied them without comment or
2 citation. (Lodg. Nos. 13, 15.) Accordingly, under the “look through” doctrine,
3 Petitioner’s claims are deemed to have been rejected on the merits by the California
4 Court of Appeal. See Phelps v. Alameida, 569 F.3d 1120, 1125 n.8 (9th Cir. 2009)
5 (holding state court’s rejection of claim for failure to state a prima facie case
6 constitutes denial on the merits).
7 Because the state appellate court did not explain its rationale for concluding
8 that Petitioner had not established a prima facie case for relief, the Court will
9 conduct an independent review of the record to determine whether the decision was
10 objectively reasonable. See Godoy v. Spearman, 834 F.3d 1078, 1084 (9th Cir.
11 2016) (“[W]e doubt the denial of [petitioner’s] habeas petition can properly be
12 considered a reasoned decision, since it states only that [petitioner] had ‘fail[ed] to
13 state a prima facie case for relief.’”), rev’d on other grounds, 861 F.3d 956 (2017);
14 see also Murray v. Schriro, 745 F.3d 984, 1010 (9th Cir. 2014) (finding superior
15 court’s decision rejecting ineffective assistance of counsel claim that “merely
16 concluded that [petitioner] ‘fail[ed] to raise a colorable issue of ineffective
17 assistance of counsel’” was not a reasoned decision). In doing so, the Court will
18 uphold the state court’s decision so long as there is any reasonable basis in the
19 record to support it. See Richter, 562 U.S. at 102 (holding that reviewing court
20 “must determine what arguments or theories supported or[ ] . . . could have
21 supported[ ] the state court’s decision” and “whether it is possible fairminded jurists
22 could disagree that those arguments or theories are inconsistent with” Supreme
23 Court precedent). Although the Court independently reviews the record, it must
24 “still defer to the state court’s ultimate decision.” Libberton v. Ryan, 583 F.3d
25 1147, 1161 (9th Cir. 2009) (internal quotations and citation omitted).5
26
5 Even under a de novo standard, the result would be the same, as Petitioner has
27
failed to demonstrate a violation of his constitutional rights. See Berghuis v.
28 Tompkins, 560 U.S. 370, 390 (2010) (“Courts can, however, deny writs of habeas
1 V. DISCUSSION
2 A. Ground One: False Evidence
3 In Ground One, Petitioner claims that the prosecutor committed misconduct
4 by presenting perjured testimony when Vanessa Conley testified that she had
5 surgery on her hand two weeks after she was assaulted by Petitioner with a knife.
6 (Petition, Attach. Memo. at 5-14.) Petitioner contends that the prosecutor “knew
7 there had been no surgery” because there were no medical records to substantiate
8 the surgery and Conley had not mentioned the surgery during the preliminary
9 hearing. (Id.) He argues that this “false evidence” was prejudicial because it
10 allowed the jury to find that he committed great bodily injury on Conley during the
11 attack. (Id. at 15-23.)
12 1. Background
13 The preliminary hearing took place on January 11, 2018. (1 CT at 7.)
14 Vanessa Conley testified that Petitioner tried to “stick” the knife in her side, so she
15 “start[ed] holding on to it with [her] left hand” to prevent getting stabbed. (Id. at
16 60, 62.) She testified that the cuts from knife caused her to be unable to bend her
17 pinkie and ring finger. (Id. at 60-61.) She told the court, “I have to have surgery.”
18 (Id.) She also described how the paramedics treated her wounds on the night of the
19 assault but stated that she did not go to the emergency room or see a doctor because
20 she did not have insurance. (Id. at 61.)
21 Two months later, on March 26, 2018, Conley testified at Petitioner’s trial.
22 (3 RT at 321.) She again testified that she grabbed onto the blade of the knife “[t]o
23 keep [Petitioner] from pushing it in [her] stomach or [her] side.” (Id. at 327, 331.)
24 She testified that two of her fingers were “paralyzed” from being cut by the knife,
25 and the jury was shown a photograph of her injuries. (Id. at 328.) Petitioner, who
26
corpus under § 2254 by engaging in de novo review when it is unclear whether
27
AEDPA deference applies, because a habeas petitioner will not be entitled to a writ
28 of habeas corpus if his or her claim is rejected on de novo review.”).
1 was representing himself at trial, objected on foundational grounds because there
2 were “no medical reports” to substantiate the claims. (Id.) The Court overruled the
3 objection. (Id.) She went on to tell the jury that the tendons in her fingers had been
4 “severed,” which required her “to have surgery.” (Id. at 329.) She testified the
5 surgery “didn’t work too well” and she was currently going through physical
6 therapy. (Id.) Petitioner again objected because the prosecution “hadn’t produced
7 any medical records.” (Id. at 330.) Again, it was overruled. (Id.) Conley testified
8 that she had the surgery “[a]bout two weeks” after the attack. (Id. at 330-31.)
9 On cross-examination, Petitioner asked Conley when and where she had the
10 surgery on her fingers. Conley told him it was about two weeks after the incident at
11 Kaiser Permanente in Sacramento. (Id. at 347.) The following colloquy then
12 occurred:
13 [Petitioner]: Well, ma’am, three weeks after the incident you
were here in preliminary hearing, ma’am.
14
[Conley]: Yeah. I came back.
15
[Petitioner]: Oh, you left and came back?
16
[Conley]: Yes, I did.
17
[Petitioner]: And you hadn’t had surgery then, ma’am?
18
[Conley]: Yes, I did.
19
[Petitioner]: No. You demonstrated for the court. Ma’am, do
20 you have any medical records concerning that
particular surgery.
21
[Conley]: No. I didn’t bring them with me.
22
[Petitioner]: So, it’s your testimony that you left and flew to
23 Sacramento, had surgery, and came back and
testified at preliminary hearing.
24
[Conley]: Yes.
25
(Id. at 348.) Conley told Petitioner she flew on Southwest Airlines but did not
26
remember the exact day of the flight or have a record of it. (Id. at 348-49.)
27
Petitioner then asserted that, at the preliminary hearing, Conley did not testify that
28
1 she had already been to the doctor in Sacramento. (Id. at 350-51.) Conley
2 responded that she “could have been off a day or two,” that she did not recall the
3 “exact date” of the surgery, but that she could get medical records to prove that she
4 was being truthful. (Id. at 351.)
5 2. Federal Law and Analysis
6 Prosecutors must “refrain from improper methods calculated to produce a
7 wrongful conviction.” Berger v. United States, 295 U.S. 78, 88 (1935). The
8 appropriate standard of review for prosecutorial misconduct is the narrow one of
9 due process and not the broad exercise of supervisory power. Darden v.
10 Wainwright, 477 U.S. 168, 181 (1986). Accordingly, a defendant’s due process
11 rights are violated when a prosecutor’s misconduct renders a trial “fundamentally
12 unfair.” Id. at 183 (internal quotations omitted); see also Smith v. Phillips, 455 U.S.
13 209, 219 (1982) (“[T]he touchstone of due process analysis in cases of alleged
14 prosecutorial misconduct is the fairness of the trial, not the culpability of the
15 prosecutor.”).
16 In order to prevail on a prosecutorial misconduct claim premised on the
17 alleged presentation of false evidence, Petitioner must establish that his conviction
18 was obtained by the use of false evidence that the prosecutor knew at the time to be
19 false or later discovered to be false and allowed to go uncorrected. See Napue v.
20 Illinois, 360 U.S. 264, 269 (1959). In order to state a claim under Napue, Petitioner
21 must show that the testimony was actually false, that the prosecutor knew or should
22 have known that it was false, and that the falsehood was material to the case. Jones
23 v. Ryan, 691 F.3d 1093, 1102 (9th Cir. 2012); Jackson v. Brown, 513 F.3d 1057,
24 1071-72 (9th Cir. 2008). A Napue violation is material if there is any reasonable
25 likelihood that the false testimony could have affected the jury’s decision.
26 Libberton, 583 F.3d at 1164.
27 Here, Petitioner has not shown that Vanessa Conley’s testimony regarding
28 the injuries to her hand or the medical treatment she sought was false. First, the
1 prosecution was not required to produce Conley’s medical records to corroborate
2 her testimony or demonstrate that she suffered great bodily injury. See Chilcote v.
3 Sherman, 2018 WL 3584460, at *6 (S.D. Cal. Jul. 26, 2018) (noting that “medical
4 records of hospitalization and treatment are not required to show great bodily
5 injury” and finding that victim testimony and photographic evidence was
6 sufficient); Carreon v. Long, 2014 WL 1093074, at *18 (C.D. Cal. Feb. 7, 2014)
7 (holding that the testimony of the victim and the nurse who treated the victim was
8 “itself evidence of [the victim’s] injuries regardless of any medical records”).
9 Second, Petitioner’s accusation that Conley lied about having surgery on her
10 hand is speculative. He relies on contradictory testimony from the preliminary
11 hearing—in which she said she had not seen a doctor—and later at trial—where she
12 said that she had surgery on the hand before she testified at the preliminary hearing.
13 Though these two statements are facially contradictory, “inconsistencies in
14 testimony are insufficient to establish that a witness intentionally gave false
15 testimony.” See United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir. 1995) (as
16 amended) (“Discrepancies in testimony . . . could as easily flow from errors in
17 recollection as from lies.”); see also United States v. Croft, 124 F.3d 1109, 1119
18 (9th Cir. 1997) (holding that actual falsity was not shown where witness merely had
19 “conflicting recollections of events”). Petitioner offers no other evidence
20 suggesting that Conley’s testimony about surgery was false.
21 Furthermore, Petitioner extensively cross-examined Conley regarding the
22 details and timing of her surgery. (3 RT at 347-51.) Conley admitted that she
23 might have been incorrect on the timeline of events, though she was steadfast on
24 her claim that she had surgery on her hand because of the injuries she sustained
25 from the knife attack. (Id. at 351.) Conley’s account of her surgery was
26 corroborated by her sister, Victoria Williams, who testified that Conley did not
27 receive medical treatment in Los Angles but had surgery on her hand in
28 Sacramento. (2 RT at 134.) Where a witness is “cross-examined . . . thoroughly
1 and well on the discrepancies in [her] recollections, . . . the determination of
2 credibility is for the jury.” Zuno-Arce, 44 F.3d at 1423; see also United States v.
3 Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (holding that, when “two conflicting
4 versions” were presented, it is “within the province of the jury to resolve the
5 disputed testimony”). Petitioner offers no evidence, other than his unsupported
6 assertions, that the testimony was false or that the prosecutor knew Conley’s
7 testimony was false and allowed it “to go uncorrected.” See Napue, 360 U.S. at
8 269.
9 For these reasons, the California Court of Appeal’s rejection of this
10 prosecutorial misconduct for the presentation of false evidence claim was not an
11 unreasonable application of, or contrary to, clearly established law from the United
12 States Supreme Court.
13 B. Ground Two: Brady Violation
14 In Ground Two, Petitioner claims that the prosecutor committed misconduct
15 by failing turn over surveillance videos of the patio outside of Williams’ apartment
16 on the night of the assault. (Petition, Attach. Memo. at 29-31.) He argues that the
17 videos would have shown that there were “attackers” outside the apartment in
18 support of his self-defense claim. (Id. at 29-30.)
19 In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme
20 Court held that “the suppression by the prosecution of evidence favorable to an
21 accused upon request violates due process where the evidence is material either to
22 guilt or to punishment, irrespective of the good faith or bad faith of the
23 prosecution.” To constitute a Brady violation, “[t]he evidence at issue must be
24 favorable to the accused, either because it is exculpatory, or because it is
25 impeaching; that evidence must have been suppressed by the State, either willfully
26 or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S.
27 263, 281-82 (1999).
28 ///
1 Evidence is material “only if there is a reasonable probability that had the
2 evidence been disclosed the result at trial would have been different.” United
3 States v. Bagley, 473 U.S. 667, 682 (1985). There is a “reasonable probability” of
4 prejudice when the suppression of evidence “undermines confidence in the outcome
5 of the trial.” Kyles v. Whitley, 514 U.S. 419, 434 (1995); see also Killian v. Poole,
6 282 F.3d 1204, 1210 (9th Cir. 2002) (“If exculpatory or impeachment evidence is
7 not disclosed by the prosecution and prejudice ensues, a defendant is deprived of
8 due process. Prejudice is determined by looking at the cumulative effect of the
9 withheld evidence and asking whether the favorable evidence could reasonably be
10 taken to put the whole case in such a different light as to undermine confidence in
11 the verdict.” (internal quotation marks and citations omitted)).
12 Here, Petitioner offers no evidence that the police were ever in possession of
13 any videos showing the outside patio area on the night in question. The
14 government has no obligation to turn over materials not in its possession. See
15 United States v. Bracy, 67 F.3d 1421, 1429 n.5 (9th Cir. 1995) (holding that the
16 prosecution does not have a duty to volunteer information to the defense that is not
17 in its possession); United States v. Chen, 754 F.2d 817, 824 (9th Cir. 1985) (“While
18 the prosecution must disclose any [Brady] information within the possession or
19 control of law enforcement personnel, . . . it has no duty to volunteer information
20 that it does not possess or of which it is unaware.”).
21 Petitioner argues that he has “personal knowledge” that there was a security
22 surveillance system that monitored the area. (Traverse at 16.) He suggests that the
23 police had a “duty” to collect the evidence from these cameras and turn them over
24 in discovery to Petitioner. (Id. at 16-17.) Even if that were true, Petitioner presents
25 no evidence that the videos captured images of any “attackers” that night. Absent
26 that evidence, his Brady claim is completely speculative and must be rejected. See
27 Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir. 2012) (“[T]o state a Brady
28 claim, [a petitioner] is required to do more than ‘merely speculate’ about” the
1 nature of undisclosed evidence.); United States v. Lopez-Alvarez, 970 F.2d 583, 598
2 (9th Cir. 1992) (rejecting Brady claim when defendant’s assertion that allegedly
3 withheld evidence existed was “purely speculative”). Nor has Petitioner
4 demonstrated how evidence of unknown attackers outside the apartment would
5 have aided his claim of self-defense and changed the outcome of the trial when he
6 assaulted two women inside the apartment. As such, any video evidence was
7 simply not material. Bagley, 473 U.S. at 682.
8 For these reasons, the California Court of Appeal’s rejection of this
9 prosecutorial misconduct claim was not contrary to, or an unreasonable application
10 of clearly established federal law. Accordingly, Petitioner’s claim in Ground Two
11 must be rejected.6
12 C. Ground Three: Judicial Bias
13 In Ground Three, Petitioner claims that the judge in his trial was biased
14 against him. (Petition at 6.) He argues that the judge “suppressed . . . subpoenaed
15 evidence” by failing to give Petitioner the surveillance videos from Williams’
16 apartment complex on the night of the assault. (Petition, Attach. Memo. at 31-34.)
17 1. Background
18 Prior to trial, Petitioner’s investigator sent a subpoena duces tecum to the
19 Broadway Villa Marina Apartments, seeking a copy of the video surveillance
20 recordings in December 2017 and asking that it be sent to the trial court. (See

21
6 Petitioner argues that he is entitled to discovery in this habeas proceeding to obtain
22 the alleged video evidence. (Petition, Attach. Memo. at 30-32.) “A habeas petitioner
‘is not entitled to discovery as a matter of ordinary course.’” Smith v. Mahoney, 611
23
F.3d 978, 996 (9th Cir. 2010) (quoting Bracy v. Gramley, 520 U.S. 899, 904 (1997)).
24 Rather, a habeas petitioner is entitled to discovery only upon a fact-specific showing
of good cause and in the court’s exercise of discretion. See Bracy, 520 U.S. at 904.
25
Good cause exists “where specific allegations before the court show reason to believe
26 that the petitioner may, if the facts are fully developed, be able to demonstrate that
he is . . . entitled to relief.” Harris v. Nelson, 394 U.S. 286, 300 (1969). Petitioner
27
has not met that burden and, therefore, his motion for discovery is DENIED.
28
1 Lodg. No. 12 at 36-37.) Before the start of trial, Petitioner inquired as to the
2 “results of [his] subpoenas.” (2 RT at 10.) He told the court that he had served two
3 subpoenas: one on the LAPD for calls regarding gang activity in the area and
4 another on the management company of the apartment complex for surveillance
5 videos. (Id.). The court stated that there was a return envelope from the LAPD but
6 that the response indicated that they were “unable to locate requested records.” (Id.
7 at 10-11.) The court did not indicate that there was any returned documents or
8 other items from the management company, and Petitioner did not inquire further
9 about the subpoena. (Id. at 11.) Shortly thereafter, Petitioner indicated that he was
10 ready for trial and had no other issues to discuss with the court. (Id. at 12-13.)
11 After trial, Petitioner wrote a letter to the trial court asking about the
12 subpoenaed surveillance video tapes. (See Lodg. No. 16 at 16.) The court
13 indicated that it was “not in receipt of discovery items requested in a subpoena from
14 Broadway Villa” apartments and did not have a copy of any served subpoena. (Id.)
15 2. Federal Law and Analysis
16 The right to a fair trial is a basic requirement of due process and includes the
17 right to an unbiased judge. Haupt v. Dillard, 17 F.3d 285, 287 (9th Cir. 1994)
18 (citing In re Murchison, 349 U.S. 133, 136 (1955)); see also Paradis v. Arave, 20
19 F.3d 950, 958 (9th Cir. 1994) (“[D]efendants are entitled to a judge who has no
20 direct personal interest in the outcome of a proceeding.”). To succeed on a judicial
21 bias claim, however, a petitioner must “overcome a presumption of honesty and
22 integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47
23 (1975). Furthermore, judicial rulings alone “almost never” demonstrate judicial
24 bias. Liteky v. United States, 510 U.S. 540, 555 (1994); see also Larson v.
25 Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008) (“[N]either adverse rulings nor
26 impatient remarks are generally sufficient to overcome the presumption of judicial
27 integrity.”).
28 ///
1 Petitioner provides no evidence that the trial court “suppressed” any
2 || surveillance video evidence to the detriment of Petitioner. In fact, the record
3 || indicates that the court did not have a copy of a served subpoena on the apartment
4 || management company, let alone any documents or videos from the company in
5 || response to the subpoena. As such, Petitioner’s claim of judicial bias is completely
6 || speculative and lacks merit. See Martinez v. Ryan, 926 F.3d 1215, 1227 (9th Cir.
7 || 2019) (“At bottom, [petitioner’s] judicial bias claim is based on unfounded
8 || speculation.”); Valle v. Gonzalez, 2015 WL 4776944, at *15 (C.D. Cal. Jul. 2,
3 || 2015) (“Petitioner’s speculative assertions do not rise to the level needed to
10 || overcome the Withrow presumption and to demonstrate judicial bias.’’).
11 Accordingly, the California Court of Appeal’s rejection of Ground Three was
12 || neither contrary to, nor an objectively unreasonable application of, any clearly
13 || established federal law, and Petitioner is not entitled to habeas relief on this claim.
14 || VI. CONCLUSION
15 For the foregoing reasons, IT IS HEREBY ORDERED that the Petition is
16 || DENIED, and Judgment shall be entered dismissing this action with prejudice.
17
18 || DATED: March 5, 2021 Rapelis, Qa. Q4~
ROZELLAA.OLIVER
20 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10040321. Public record. Not legal advice.