holding that the 15 AEDPA did not apply where Washington Supreme Court refused to reach petitioner’s claim 16 under its “re-litigation rule”
How later courts described this case
- holding that the 15 AEDPA did not apply where Washington Supreme Court refused to reach petitioner’s claim 16 under its “re-litigation rule”
Written by the judges who cited it.
The opinion
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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 JAMES W. MILLNER, No. 2:19-CV-01311-JAM-DMC-P
12 Petitioner,
13 v. FINDINGS AND RECOMMENDATIONS
14 SCOTT FRAUENHEIM,
15 Respondent.
16
17 Petitioner, a state prisoner proceeding with retained counsel, brings this petition
18 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court are
19 Petitioner’s petition for a writ of habeas corpus, ECF No. 1, Respondent’s answer, ECF No. 32,
20 and Petitioner’s traverse, ECF No. 33. Respondent has lodged the state court record, ECF No. 31.
21 Petitioner asserts three claims: (1) the state knowingly presented false evidence at
22 his trial; (2) the state violated Maryland v. Brady1 when it failed to provide him with exculpatory
23 evidence; and (3) the trial court improperly denied his Trombetta/Youngblood2 motion. The most
24 recent reasoned decision on the matter is from the state Superior Court. Having reviewed the
25 petition and the record, the undersigned recommends that Petitioner’s petition be denied.
26 / / /
27
1 373 U.S. 83 (1963).
28 2 467 U.S. 479 (1984); 109 S. Ct. 333 (1988).
1 I. PROCEDURAL BACKGROUND
2 In 2007, Petitioner Millner was convicted by a jury of second-degree murder for
3 the killing of his wife and attempted murder of his son Adam. ECF No. 1-1at 12. He challenged
4 his convictions by direct appeal to the California Court of Appeal. Id. at 12-13. That court
5 affirmed his convictions but remanded the matter for resentencing. Id. at 13. The California
6 Supreme Court denied his petition for review. Id. Several years later, Petitioner filed a writ of
7 habeas corpus with the Shasta County Superior Court. Id. at 8-10. The court denied the petition
8 in 2018, which is the latest reasoned decision on the merits. Id. Petitioner subsequently filed a
9 writ with the California Court of Appeal and the California Supreme Court, both of which issued
10 silent denials of his requested habeas relief. See ECF No. 1 at 12-17. Having fully exhausted his
11 remedies, Petitioner now bring this action in federal court.
12
13 II. FACTUAL BACKGROUND
14 On January 6, 2006, Petitioner was at home with his wife Ila, their son Adam, their
15 older son, and Adam’s friend. Adam was sixteen years old at the time. Adam testified to the
16 following: in the early hours of January 6, he was in his room with his friend when he heard
17 screams come from his parents’ bedroom. ECF No. 26-4 at 3. He went to their bedroom and saw
18 Petitioner (his father) on top of his mother with his hand over her mouth. Id. at 15. Adam pulled
19 Petitioner off his mother and saw a gun in Petitioner’s hand. Id. at 16. Petitioner shot Adam in
20 the abdomen and fatally shot Ila several times. Id. at 21. Dr. Comfort, forensic pathologist,
21 testified that the Ila was shot once in the face, twice in her torso, once in her arm, and once below
22 her rib cage. ECF No. 18-5 at 528-530.
23 At trial, Petitioner argued he acted in self-defense, claiming that his wife pulled a
24 gun on him. Petitioner did not testify at trial, but his interviews with the police were admitted
25 into evidence. ECF No. 18-2 at 131. During the interview he stated that he and his wife were
26 arguing in their bedroom when she pulled a gun on him. Id. at 151. He stated that she hit him in
27 the face with it, causing a struggle for the gun. Id. at 203-04. He took possession of the gun and
28 pulled the trigger, shooting her. ECF No. 18-2 at 191, 198, 226, 228. He did not remember if the
1 gun was cocked when he took it from his wife but said that he did not cock it. Id. at 158.
2 Part of the prosecution’s theory was the victim was not strong enough to cock the
3 gun (because she recently had surgery on her dominate shoulder and the gun was difficult to
4 cock).3 To demonstrate that it would have been difficult for the victim to cock the gun, the jurors
5 were allowed to try to cock it themselves, with most of the female jurors being unable to do so.
6 In closing, the state argued that the victim did not cock the gun. The relevant portion of the
7 state’s closing follows:
8 First of all, she would have to pull it out with her left hand, and he
said she pulled it out with her left hand. We know she is right-handed,
9 and she just had her right shoulder operated on, so she is pulling this gun
out from somewhere behind the bed with her right hand, according to him.
10 She has got to pull it out and swing it hard enough across her body from a
prone position to hit him hard enough in the head to cut his head, and then
11 somewhere during that time she had to cock this gun because the
defendant never admitted cocking it. Who do you think cocked this gun?
12 That’s why I wanted you all to try the action to this gun, see how hard it
was to cock and to see what the trigger pull was like. And again, not to be
13 sexist, but I couldn’t help notice that a lot of the female jurors couldn't
even cock that gun. You all tried it. You all saw how hard it is. Think
14 about doing it with your weak hand and think about doing it lying down
and swinging this gun up over your head and around hard enough to hit
15 the defendant to cut him in the head and then be able to cock it.
You know what, it didn’t happen that way. She couldn’t have
16 done that. His first story is probably more accurate. Maybe she did have
the gun and he grabbed it and he got cut trying to take it away from her; or
17 even more likely, he had the gun, she was fighting for her life. He was
pointing it at her, and she was grabbing it and going back and forth and the
18 hammer here or the rear sight hit him in the eyebrow.
19 ECF No. 18-7 at 178-79.
20 By April 2017, Adam had not spoken with Petitioner for several years. Thereafter,
21 the two slowly started to communicate and eventually discussed Petitioner’s trial. Adam told
22 Petitioner that Adam was interviewed by either the District Attorney or an investigator before the
23 trial. ECF No. 1-1 at 4-6. Adam told the interviewer that he had used the gun the previous day—
24 January 5, and that he loaded and cocked the gun when he returned it to his parents’ bedroom. Id.
25 at 5-6. Adam then learned from Petitioner that the state “misrepresented the facts” that he told
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27 3 The weapon was a Browning Hi-Power nine-millimeter pistol with a six to six and half
pound trigger pull. Once the weapon was cocked, it did not need to be re-cocked after a shot was
28 fired.
1 the interviewer regarding the gun.4 Id. at 6.
2 This newly discovered evidence—that the gun was last seen by Adam loaded and
3 cocked, and the district attorney’s failure to disclose Adam’s interview, support two of
4 Petitioner’s claims: a Brady violation and the discovery of new evidence. Petitioner’s final claim
5 also relates to the gun—that the trial court wrongfully denied his Trombetta/Youngblood motion.
6
7 III. STATE COURT DETERMINATION
8 Petitioner filed a writ of habeas corpus in the Shasta County Superior Court on
9 November 13, 2017, which the court denied on April 3, 2018. ECF No. 1 at 8-10. There,
10 Petitioner argued that new and false evidence required the reversal of his conviction under
11 California Penal Code Section 1473. Id. at 8. Petitioner alleged that the new evidence was that
12 Adam loaded and cocked the gun before the incident, discussed supra, and the false evidence was
13 the state’s argument and theory that the victim was not strong enough to cock the gun. Id.
14 Petitioner also argued that the denial of his Trombetta/Youngblood motion required the reversal
15 of his conviction. Id.
16 The Superior Court evaluated each of Petitioner’s claims and found that whether
17 the evidence was new or false, he failed to establish a prima facie case that would entitle him to
18 any relief. Id. It noted that Adam’s declaration was “untimely, vague, and immaterial” and that
19 Adam was subject to cross examination at trial. That Court found that even assuming Adam’s
20 declaration was true, it still would have no probative significance to Petitioner’s guilt or
21 punishment. Further, it found that Petitioner failed to establish that the new evidence would more
22 likely than not have changed the trial’s outcome. “The fact that the murder weapon was used by
23 the son earlier in the day is not sufficient evidence, being offered nearly twelve (12) years later
24 that the murder weapon was in a certain condition later that evening, that would even remotely
25 suggest the outcome of Petitioner’s trial would have been any different.” Id. With regards to
26 Petitioner’s claim of false evidence, the Superior Court found that the evidence presented at trial
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4 Because Adam was a victim, he was only in court for his testimony and did not hear
28 other witness testify or the state’s arguments.
1 was that Petitioner admitting he did not cock the gun and that the victim would have had a
2 difficult time cocking it—none of which was false or refuted by Adam’s declaration. As for the
3 Trombetta/Youngblood motion, it found that Adam’s testimony established the crime, and the
4 potentially excluded evidence would not have affected the outcome of the trial.
5
6 IV. STANDARDS OF REVIEW
7 Because this action was filed after April 26, 1996, the provisions of the
8 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) are presumptively applicable.
9 See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128
10 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not,
11 however, apply in all circumstances. When it is clear that a state court has not reached the merits
12 of a petitioner’s claim, because it was not raised in state court or because the court denied it on
13 procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must
14 review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the
15 AEDPA did not apply where Washington Supreme Court refused to reach petitioner’s claim
16 under its “re-litigation rule”); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002)
17 (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA
18 did not apply because evidence of the perjury was adduced only at the evidentiary hearing in
19 federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where
20 state court had issued a ruling on the merits of a related claim, but not the claim alleged by
21 petitioner). When the state court does not reach the merits of a claim, “concerns about comity and
22 federalism . . . do not exist.” Pirtle, 313 F. 3d at 1167.
23 Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is
24 not available for any claim decided on the merits in state court proceedings unless the state court’s
25 adjudication of the claim:
26 (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
27 determined by the Supreme Court of the United States; or
28 (2) resulted in a decision that was based on an unreasonable determination
1 of the facts in light of the evidence presented in the State court proceeding.
2 Under § 2254(d)(1), federal habeas relief is available only where the state court’s
3 decision is “contrary to” or represents an “unreasonable application of” clearly established law.
4 Under both standards, “clearly established law” means those holdings of the United States
5 Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549
6 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412). “What matters are the holdings of the
7 Supreme Court, not the holdings of lower federal courts.” Plumlee v. Masto, 512 F.3d 1204 (9th
8 Cir. 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore
9 federal habeas relief is unavailable, unless it “squarely addresses” an issue. See Moses v. Payne,
10 555 F.3d 742, 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S. Ct. 743,
11 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a
12 “categorical answer” to the question before the state court. See id.; see also Carey, 549 U.S. at
13 76-77 (holding that a state court’s decision that a defendant was not prejudiced by spectators’
14 conduct at trial was not contrary to, or an unreasonable application of, the Supreme Court’s test
15 for determining prejudice created by state conduct at trial because the Court had never applied the
16 test to spectators’ conduct). Circuit court precedent may not be used to fill open questions in the
17 Supreme Court’s holdings. See Carey, 549 U.S. at 74.
18 In Williams v. Taylor, 529 U.S. 362 (2000) (O’Connor, J., concurring, garnering a
19 majority of the Court), the United States Supreme Court explained these different standards. A
20 state court decision is “contrary to” Supreme Court precedent if it is opposite to that reached by
21 the Supreme Court on the same question of law, or if the state court decides the case differently
22 than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state
23 court decision is also “contrary to” established law if it applies a rule which contradicts the
24 governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate
25 that Supreme Court precedent requires a contrary outcome because the state court applied the
26 wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court
27 cases to the facts of a particular case is not reviewed under the “contrary to” standard. See id. at
28 406. If a state court decision is “contrary to” clearly established law, it is reviewed to determine
1 first whether it resulted in constitutional error. See Benn v. Lambert, 283 F.3d 1040, 1052 n.6
2 (9th Cir. 2002). If so, the next question is whether such error was structural, in which case federal
3 habeas relief is warranted. See id. If the error was not structural, the final question is whether the
4 error had a substantial and injurious effect on the verdict, or was harmless. See id.
5 State court decisions are reviewed under the far more deferential “unreasonable
6 application of” standard where it identifies the correct legal rule from Supreme Court cases, but
7 unreasonably applies the rule to the facts of a particular case. See Wiggins v. Smith, 539 U.S.
8 510, 520 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested
9 that federal habeas relief may be available under this standard where the state court either
10 unreasonably extends a legal principle to a new context where it should not apply, or
11 unreasonably refuses to extend that principle to a new context where it should apply. See
12 Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court
13 decision is not an “unreasonable application of” controlling law simply because it is an erroneous
14 or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 538 U.S. 63,
15 75-76 (2003). An “unreasonable application of” controlling law cannot necessarily be found even
16 where the federal habeas court concludes that the state court decision is clearly erroneous. See
17 Lockyer, 538 U.S. at 75-76. This is because “[t]he gloss of clear error fails to give proper
18 deference to state courts by conflating error (even clear error) with unreasonableness.” Id. at 75.
19 As with state court decisions which are “contrary to” established federal law, where a state court
20 decision is an “unreasonable application of” controlling law, federal habeas relief is nonetheless
21 unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6.
22 / / /
23 / / /
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
1 V. DISCUSSION
2 As stated above, Petitioner contends his federal constitutional rights were violated
3 because the state presented false evidence at his trial and failed to disclose exculpatory evidence,
4 and because the trial court improperly denied his Trombetta/Youngblood motion. See ECF No. 1.
5 Respondent contends Petitioner is not entitled to relief on the merits because the state court’s
6 determination was neither contrary to nor based on an unreasonable application of clearly
7 established federal law. See id. at 17-21.
8 A. Brady Violation
9 Under Brady and its successors, a state can violate a criminal defendant’s due
10 process rights by failing to disclose evidence that is material to the defendant’s guilt or
11 punishment. See Cone v. Bell, 556 U.S. 449, 451 (2009); Brady, 373 U.S. at 87; Browning v.
12 Baker, 875 F.3d 444, 459 (9th Cir. 2017). A criminal defendant claiming a Brady violation must
13 show: (1) the evidence at issue is favorable to him either because it is exculpatory or impeaching;
14 (2) the government suppressed the evidence, either willfully or inadvertently; and (3) the
15 defendant suffered prejudice. See Banks v. Dretke, 540 U.S. 668, 691 (2004); Strickler v.
16 Greene, 527 U.S. 263, 281-82 (1999).
17 Here, Petitioner cannot demonstrate, and a reasonable jury could not conclude, that
18 he suffered prejudice as a result of this evidence. To show prejudice or materiality, the petitioner
19 must show a “reasonable probability that the suppressed evidence would have produced a
20 different verdict.” Strickler, 527 U.S. at 281. A reasonable probability does not require the
21 petitioner to show that he “would more likely than not have received a different verdict with the
22 evidence,” but only that the likelihood of a different result is great enough to ‘undermine’ the
23 court's “confidence in the outcome of the trial.” See Smith v. Cain, 565 U.S. 73, 75 (2012).
24 First, Adam’s declaration does not state, nor does any other declaration, that the
25 state did not turn over the evidence of Adam’s interview to the defense. There is no declaration
26 from defense counsel stating that the state failed to disclose this evidence. Second, the
27 declaration purports to identify the state of the gun hours before the murder—but because Adam
28 has not attested to the state of the gun immediately prior to the shooting—his declaration is
1 speculative and immaterial. There is no evidence that the gun was not touched or altered before
2 the shooting. There is, however, evidence that the victim had the gun in her possession before the
3 shooting, evidencing the possibility that the state of the gun was altered after Adam last saw it.
4 Finally, the evidence of guilt is overwhelming; Petitioner stated he pulled the trigger shooting the
5 victim and Adam testified to seeing Petitioner shoot the victim.
6 The state court found that even had the evidence established in Adam’s declaration
7 been withheld from Petitioner, that it carried no probative significance on the issue of Petitioner’s
8 guilt or punishment. ECF No. 1-1 at 8-9. The state court correctly determined that this evidence
9 was neither contrary to nor based on an unreasonable application of clearly established federal
10 law.
11 B. False Evidence
12 A “conviction obtained through use of false evidence,” known to be false by the
13 state, or when the state “allows false evidence to go uncorrected” falls under the Fourteenth
14 Amendment.” Napue v. People of State of Ill., 360 U.S. 264, 269 (1959). The Court here finds
15 that the state did not present false evidence regarding who cocked the gun. The state did not
16 present evidence that Petitioner cocked the gun. It did infer in argument, however, that because
17 Petitioner said he did not cock the gun and that the victim would have had trouble cocking the
18 gun, that the person who cocked the gun was Petitioner. The trial court instructed the jury that
19 closing arguments are not evidence, ECF No. 18-7 at 116, and the law presumes that the jury
20 followed that instruction, see Cheney v. Washington, 614 F.3d 987, 997 (9th Cir. 2010). The new
21 evidence from Adam’s declaration does not demonstrate that the state knew that it was impossible
22 for Petitioner to have cocked the gun.
23 The state court determined that there was no false evidence presented at trial. ECF
24 No. 1-1 at 9. It found that the state presented evidence that it would have been difficult for the
25 victim to cock the gun and Petitioner claimed he did not cock it—which is not false in
26 juxtaposition with Adam’s declaration. Id. Thus, this Court finds that the state court’s
27 determination was neither contrary to nor based on an unreasonable application of clearly
28 established federal law.
1 C. Trombetta/Youngblood Motion
2 In Trombetta, the Supreme Court held that when the government fails to preserve
3 evidence, the right to due process is violated only if the evidence at issue possesses “an
4 exculpatory value that was apparent before the evidence was destroyed, and [was] of such a
5 nature that the defendant would be unable to obtain comparable evidence by other reasonably
6 available means.” 467 U.S. at 489. In Youngblood, the Supreme Court imposed the additional
7 requirement that when “no more can be said than that [the evidence] could have been subjected to
8 tests, the results of which might have exonerated the defendant,” the defendant must demonstrate
9 the government's bad faith in failing to preserve the potentially useful evidence. 488 U.S. at 67-
10 68. Another configuration of this test is that a constitutional violation will be found if a showing
11 is made that (1) the government acted in bad faith, the presence or absence of which turns on the
12 government's knowledge of the apparent exculpatory value of the evidence at the time it was lost
13 or destroyed, and (2) that the missing evidence is “of such a nature that the defendant would be
14 unable to obtain comparable evidence by other reasonably available means.” United States v.
15 Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013) (internal quotation marks omitted). Additionally,
16 there is no due process violation unless there is bad faith conduct by the police in failing to
17 preserve potentially useful evidence. See Illinois v. Fisher, 540 U.S. 544, 547-48 (2004);
18 Youngblood, 488 U.S. at 58; Sivilla, 714 F.3d at 1168; Villafuerte v. Stewart, 111 F.3d 616, 625
19 (9th Cir. 1997).
20 Before trial, Petitioner moved to dismiss the case because he was not allowed to
21 test the gun before it was cleaned. According to Petitioner’s counsel at trial, the California
22 Department of Justice evaluated the gun for fingerprints, blood, and tissue. ECF No. 18-1 at 129.
23 The DNA on the gun was consistent with the victim’s—the prints, however, were too smudged to
24 make a meaningful comparison. Petitioner’s counsel sought to conduct an independent
25 evaluation of the gun but was unable to because the DOJ had wiped the gun clean prior to doing a
26 test fire of the gun. The DOJ informed Petitioner’s counsel that this was normal procedure. Id. at
27 130. Even assuming the state knew that Adam had cocked and loaded the gun the last time he
28 saw it, Petitioner has not shown that the police acted in bad faith by destroying the forensic
1 | evidence from the gun: the DOJ cleaned the gun prior to conducting a test fire as it was their
2 | “normal procedure,” evidencing a lack of bad faith. Cf. United States v. Russo, No. 2:19-CR-
3 | 0092-DB 1, 2020 WL 1057880, at *2 (E.D. Cal. Mar. 4, 2020) (noting a departure from normal
4 | procedures could be evidence of bad faith).
5 The state court determined that even if it were to consider the potentially excluded
6 | additional evidence related to the gun, that Adam’s testimony was sufficient to establish
7 | Petitioner’s crime. ECF No. 1-1 at 9-10. Thus, the Court finds that the state court’s
8 || determination was neither contrary to nor based on an unreasonable application of clearly
9 | established federal law.
10
11 VI. CONCLUSION
12 Based on the foregoing, the undersigned recommends that Petitioner’s petition for
13 | a writ of habeas corpus, ECF No. 1, be denied.
14 These findings and recommendations are submitted to the United States District
15 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days
16 | after being served with these findings and recommendations, any party may file written objections
17 | with the court. Responses to objections shall be filed within 14 days after service of objections.
18 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v.
19 | Yist, 951 F.2d 1153 (9th Cir. 1991).
20
21 | Dated: March 18, 2022 Sx<o_-
22 DENNIS M. COTA
23 UNITED STATES MAGISTRATE JUDGE
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