“A federal court may not second-guess a state court’s 14 fact-finding process unless, after review of the state-court 15 record, it determines that the state court was not merely wrong, 16 but actually unreasonable.”
How later courts described this case
- “A federal court may not second-guess a state court’s 14 fact-finding process unless, after review of the state-court 15 record, it determines that the state court was not merely wrong, 16 but actually unreasonable.”
- as amended Jan. 19 15, 2013
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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PETER IVAN McNEAL, ) Case No. CV 18-6964-JGB (JPR)
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Petitioner, ) ORDER ACCEPTING FINDINGS AND
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) RECOMMENDATIONS OF U.S.
v. ) MAGISTRATE JUDGE
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JAMES HILL, Acting Warden, )
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Respondent. )
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17 The Court has reviewed the Petition, records on file, and
18 Report and Recommendation of U.S. Magistrate Judge, which
19 recommends that judgment be entered denying the Petition and
20 dismissing this action with prejudice. See 28 U.S.C.
21 § 636(b)(1). On April 15, 2021, Petitioner filed Objections to
22 the R. & R., in which he largely reiterates the arguments raised
23 in his Petition and Traverse. A few of his contentions warrant
24 discussion, however.1
25 I. Insufficient Evidence
26 Petitioner argues that in denying his insufficient-evidence
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28 1 Respondent has not responded to the Objections.
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1 claim, the Magistrate Judge “overlook[ed]” that I.P. testified
2 that she did not immediately disclose that Petitioner had
3 assaulted her during the 2009 Thanksgiving party to either her
4 cousin Braden or her mother, Michaele. (Objs. at 4.) But I.P.
5 never said that she didn’t promptly tell her mother about the
6 assault. Rather, she observed that although she “probably” told
7 her mother “right away” about the assault, she didn’t know for
8 sure. (Lodged Doc. 15, 4 Rep.’s Tr. at 3047.) And the
9 Magistrate Judge noted that although I.P. testified that Braden
10 might have witnessed the assault, he testified that he did not
11 see anything happen to her. (See R. & R. at 7 n.5 (citing Lodged
12 Doc. 15, 3 Rep.’s Tr. at 2465, 2472-73, 4 Rep.’s Tr. at 3025,
13 3040-43).) Critically, as Petitioner does not dispute, I.P.
14 testified that a male guest at the Thanksgiving party put his
15 penis in her mouth (see Lodged Doc. 15, 4 Rep.’s Tr. at 3008-09),
16 and, as the Magistrate Judge found, other evidence corroborated
17 her account and established that Petitioner was the perpetrator —
18 including but not limited to Michaele’s testimony that on the
19 night of the party I.P. asked her why someone matching
20 Petitioner’s description had wanted to put his penis in her mouth
21 at the party and that I.P. then demonstrated what he had done to
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her.2 (See R. & R. at 14-16.) That evidence was
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24 2 Petitioner also appears to argue that I.P.’s statements to
Michaele the night of the party were inadmissible hearsay. (See
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Objs. at 4-6.) But the trial court found that they were admissible
26 as excited utterances (see Lodged Doc. 15, 2 Rep.’s Tr. at 334-35),
and Petitioner has never challenged that finding. In any event,
27 for purposes of deciding the sufficiency of the evidence, a habeas
court considers all the evidence, properly admitted or not. See
28 McDaniel v. Brown, 558 U.S. 120, 131 (2010).
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1 constitutionally sufficient to support Petitioner’s conviction
2 even though I.P.’s parents didn’t immediately report the assault
3 to police. (See Objs. at 5.)
4 Petitioner also claims that the Magistrate Judge
5 “overlook[ed]” that although his sexual assault of M.K. might
6 have been admissible to show his propensity to commit sex crimes,
7 the prosecution still needed to establish that M.K.’s testimony
8 was truthful. (See id. at 6-7.) But the Magistrate Judge noted
9 that M.K. not only identified Petitioner as her assailant and
10 described what he did to her but that other evidence corroborated
11 her testimony.3 (See R. & R. at 16 & n. 10.)
12 At bottom, Petitioner’s insufficient-evidence arguments boil
13 down to his insistence that he was convicted “based on the
14 uncorroborated and inconsistent story of a three-year old
15 child” and the unreliable testimony of her mother. (See Objs. at
16 3; id. at 4-7.) But as the Magistrate Judge found, the arguments
17 Petitioner highlights in his objections were all presented to the
18 jury, which nevertheless credited I.P.’s and her mother’s
19 testimony. (See R. & R. at 18.) This Court can’t reweigh the
20 evidence or reassess the witnesses’ credibility. See Bruce v.
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3 Petitioner suggests that the evidence concerning M.K.’s
23 assault showed that he was actually just “urinating in the bushes.”
(Objs. at 30.) But M.K. testified that he exposed his penis to her
24 after “laying down in a weird position” and instructing her to
“close [her] eyes and open [her] mouth” (Lodged Doc. 15, 5 Rep.’s
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Tr. at 3640, 3647-51, 3653-54, 3682), actions inconsistent with his
26 simply urinating. Moreover, any such claim is inconsistent with
his arguments that the bushes were only four, not seven, feet tall
27 and that Petitioner would not have done something inappropriate in
plain view of other parents. (See id., 6 Rep.’s Tr. at 4286-87,
28 4289-92, 4297, 8 Rep.’s Tr. at 4910-12.)
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1 Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004).
2 II. Ineffective Assistance of Counsel
3 Petitioner argues that in denying his claims that his trial
4 counsel were ineffective for failing to consult with or present
5 the testimony of a memory or a taint expert to undermine I.P.’s,
6 Michaele’s, and M.K.’s testimony, the Magistrate Judge improperly
7 found that the psychiatrist or psychiatrists whom his attorneys
8 did consult were an effective substitute for those experts. (See
9 Objs. at 13-15, 21.) But the Magistrate Judge didn’t make any
10 such finding, instead noting that Petitioner failed to meet his
11 burden to show that the psychiatrist or psychiatrists with whom
12 trial counsel consulted, who had expertise in evaluating child-
13 abuse claims (see Lodged Doc. 14, 2 Aug. Clerk’s Tr. at 290; see
14 id. at 288), didn’t consider some or all of the topics he claims
15 a memory or taint expert would have discussed.4 (See R. & R. at
16 37-38, 46.)
17 Nor did the Magistrate Judge err in relying on Gentry v.
18 Sinclair, 705 F.3d 884, 899-900 (9th Cir. 2012) (as amended Jan.
19 15, 2013), in denying Petitioner’s claims in part because he had
20 failed to provide a declaration from trial counsel explaining
21 their decision not to present expert testimony. (See Objs. at
22 22.) In Gentry, the petitioner claimed that his trial counsel
23 failed to have him evaluated by a psychologist and as a result
24 didn’t present any mitigating evidence of his mental state. 705
25 F.3d at 897, 899. The state court denied the claim, finding
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27 4 Indeed, both the memory and the taint expert whose testimony
Petitioner claims should have been presented are themselves
28 psychiatrists. (See Pet., Exs. A-G.)
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1 “insufficient evidence” that trial counsel “neglected the issue”
2 when their declarations, which addressed other aspects of his
3 ineffective-assistance claim, didn’t discuss “why no expert
4 testimony was presented,” leaving the possibility that “an
5 evaluation was performed that provided no evidence useful to the
6 defense.” Id. at 899-900. The Ninth Circuit held that the state
7 court was not unreasonable in finding counsel’s performance not
8 deficient, emphasizing that although trial counsel submitted
9 detailed declarations in support of most of petitioner’s claims,
10 they “said nothing” about his expert-evidence claim, leaving
11 petitioner, who bore the burden of dispelling the “strong”
12 presumption that counsel’s performance was reasonable, with “no
13 evidence to indicate why the failure to present [expert] evidence
14 . . . was unreasonable under the circumstances.” Id. at 900.
15 Here as in Gentry, trial counsel submitted declarations
16 addressing Petitioner’s various ineffective-assistance claims.
17 (See Lodged Doc. 14, 2 Aug. Clerk’s Tr. at 288-90.) But although
18 counsel mentioned consulting with a psychiatrist with an
19 expertise in child-abuse cases, they apparently weren’t asked to
20 elaborate on what information that expert shared and how that
21 shaped their decision not to call a memory or a taint expert
22 during trial. (Id.) As in Gentry, that left open that the
23 psychiatrist or psychiatrists addressed the various memory and
24 taint issues relevant to I.P.’s, Michaele’s, and M.K.’s testimony
25 but that counsel found that such testimony wouldn’t be “useful to
26 the defense.” 705 F.3d at 900; see Womack v. McDaniel, 497 F.3d
27 998, 1004 (9th Cir. 2007) (rejecting ineffective-assistance claim
28 when petitioner offered no evidence of counsel’s allegedly
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1 deficient performance aside from petitioner’s own self-serving
2 statement).5 Petitioner’s argument that he was entitled to an
3 evidentiary hearing in state court to explore these issues (Objs.
4 at 23, 42-43) ignores that it was his burden to produce some
5 evidence that counsel performed deficiently. He does not allege
6 that he requested an evidentiary hearing because he was unable to
7 develop the record as to counsel’s decision not to call a memory
8 or a taint expert; indeed, not being granted a state-court
9 evidentiary hearing didn’t prevent him from obtaining counsel’s
10 explanation for various other issues he had with their
11 performance, and he hasn’t explained why this one is any
12 different. Cf. Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.
13 2004) (“A federal court may not second-guess a state court’s
14 fact-finding process unless, after review of the state-court
15 record, it determines that the state court was not merely wrong,
16 but actually unreasonable.”), overruled on other grounds by
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5 Petitioner argues that under the Magistrate Judge’s logic,
19 “trial counsel could avoid being found ineffective by refusing to
provide a declaration.” (Objs. at 22.) But numerous cases hold
20 that a petitioner can’t be faulted and the reasoning of Gentry
doesn’t apply if he asks counsel to address a particular topic and
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counsel refuses, see, e.g., Manzano v. Montgomery, No. ED CV
22 13-02249-RGK (VBK)., 2014 WL 1670079, at *11 (C.D. Cal. Mar. 26,
2014), accepted by 2014 WL 1669974 (C.D. Cal. Apr. 25, 2014),
23 aff’d, 669 F. App’x 864 (9th Cir. 2016), and the Magistrate Judge
said nothing to the contrary. This is not such a case. Indeed,
24 although one of Petitioner’s trial attorneys eventually told habeas
counsel he “no longer wished to talk [to her]” (Pet., Mem. P. & A.,
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Ex. F at 143), that was in response to habeas counsel’s questioning
26 on a different topic, and Petitioner does not claim that counsel
were ever asked to elaborate on why they didn’t call a memory or
27 taint expert.
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1 Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014).
2 Beyond that, for the reasons discussed in the R. & R., even
3 without expert testimony Petitioner’s counsel were able to expose
4 the weaknesses in I.P.’s, Michaele’s, and M.K.’s testimony and
5 suggest to the jury that their testimony was tainted and
6 unreliable. (See R. & R. at 38-41, 46-52.) Accordingly, as the
7 Magistrate Judge also found, any deficient performance didn’t
8 prejudice Petitioner. (See id. at 41-48, 51-52.)
9 Petitioner’s objections to the Magistrate Judge’s findings
10 in denying his other ineffective-assistance claims are similarly
11 unpersuasive. For instance, he argues that in denying his claim
12 that his attorneys failed to present evidence to corroborate his
13 wife’s trial testimony that there weren’t any cupcakes at the
14 Thanksgiving party, the Magistrate Judge “overlooked” that the
15 prosecutor repeatedly emphasized I.P.’s testimony that Petitioner
16 had lured her with a cupcake. (See Objs. at 33-34.) But even
17 assuming the prosecutor capitalized on that improbable testimony,
18 the evidence that Petitioner claims counsel failed to use
19 wouldn’t have shown that there were no cupcakes at the party, as
20 the Magistrate Judge pointed out. (See R. & R. at 36.)
21 Petitioner also maintains that his attorneys were ineffective for
22 failing to establish that I.P.’s parents knew about the M.K.
23 incident before reporting I.P.’s accusation to the police,
24 insisting that testimony from the new-trial hearing “proved” they
25 had “learned about the M.K. case.” (See Objs. at 9-10.) But as
26 the Magistrate Judge explained, that testimony showed only that a
27 guest at the Thanksgiving party later learned about the M.K.
28 incident, and that in fact the hearing testimony established that
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1} I.P.’s parents did not learn about M.K.’s case until after they
had already contacted the police. (See R. & R. at 27-31.)
3 || Tellingly, as the Magistrate Judge pointed out (see id. at 29-
30), Petitioner never presented any testimony from that guest,
5 who presumably would have testified that he alerted I.P.’s
6} parents to the M.K. assault were that in fact true. Petitioner’s
7 || arguments on this score are pure speculation.
8 Having reviewed de novo those portions of the R. & R. to
which Petitioner objects, the Court agrees with and accepts the
10 || findings and recommendations of the Magistrate Judge. IT
11 || THEREFORE IS ORDERED that judgment be entered denying the
12 |} Petition and dismissing this action with prejudice.
13 gq
patep: June 11, 2021 ———y _ □□
JESUS} G. BERNAL .
15 U.S ISTRICT JUDGE
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