“We shall assume purely for argument’s 1 sake that the State violated the Constitution . . . .”
How later courts described this case
- “We shall assume purely for argument’s 1 sake that the State violated the Constitution . . . .”
- exclusion of cross-examination that would have provided 11 cumulative or repetitive evidence did not violate Confrontation Clause or was harmless error
- “Hicks involved an unusual 26 situation which the Supreme Court concluded required due process treatment.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 SAN JOSE DIVISION
7
EARNEST L. PRESCOTT,
8 Case No. 5:16-cv-01359-EJD
Petitioner,
9 ORDER DENYING PETITION FOR
v. WRIT OF HABEAS CORPUS
10
KELLY SANTORO, Re: Dkt. Nos. 1, 25
11
Respondent.
12
13 A California jury convicted Earnest L. Prescott of first-degree murder. The sentencing
14 court applied an enhancement for the discharge of a firearm. He is currently incarcerated. He has
15 petitioned this court for the writ of habeas corpus. For the reasons discussed below, the court
16 denies the petition.
17 I. Background
18 Mr. Prescott was jointly tried with Jason Jones for the June 6, 2010 murder of James
19 Johnson. The Alameda County jury convicted Mr. Prescott and acquitted Mr. Jones on June 8,
20 2012. The California Court of Appeal, in considering his direct appeal, described the facts of the
21 case as follows:
22 On June 6, 2010, James Johnson was shot and killed as he walked
from his home to the store. He lived in the Acorn housing complex
23 in west Oakland, an area which was the territory of the “Acorn”
gang.
24 On the day of the shooting, defendant, then 16 years old, was in a
car heading over to Sycamore Street in west Oakland, part of the turf
25 of the “Ghost Town” gang. Armond Turner was driving, and
defendant was in the front seat with Laquisha Williams. Williams
26 was a crack dealer who at one time headed the “Q Team,” which
was allied with the “P Team.” Both “teams” were subsets of the
27 Ghost Town gang. Jason Jones, known as “2–9” and an individual
called “Duder,” both of whom were affiliated with P Team, as well
1 as “three or four girls” were also in the car, which belonged to
Williams’s sister. Defendant was also affiliated with P Team.
2
Williams wanted to buy some marijuana, so the group headed
3 toward an Oakland neighborhood known as “Lower Bottoms,”
driving though the territory of the rival Acorn gang. Williams
4 testified that while they were in Acorn territory, Jones said he saw a
man he thought was “Birdman,” who had knocked out his tooth
5 while they were in jail. Both Officer Valle and Williams testified
they knew Dionte Houff went by the name “Birdman,” and that he
6 was associated with Acorn. Jones and defendant convinced Turner,
the driver, to turn the car around anyway.
7 Turner made a U-turn, drove back and parked in a lot by a housing
unit known as “Mohr 1.” Defendant and Jones got out of the car and
8 entered the housing complex. They did not see Houff, but saw
Johnson, who was walking from his home at the Acorn housing unit
9 toward Green Valley Foods. Defendant fired multiple shots at
Johnson, who fell to the ground. Johnson died from massive
10 hemorrhaging due to multiple gunshot wounds.
11 After defendant and Jones left the car but before the shooting,
Williams sent Duder to find out why the two were taking so much
12 time in rival gang territory. She testified if an individual is from
Ghost Town, it would be dangerous to be in Acorn. Williams then
13 heard seven or eight shots fired, and defendant, Duder and Jones
came running back to the car. Williams told police that when
14 defendant got in the car, he had a silver and black gun, but at trial
she testified she did not remember seeing a gun. Williams told
15 police defendant told her Jones “wanted to shoot” but defendant
“ran up on the dude.” At trial, Williams testified what she told
16 police was “[n]ot really” true.
At the time of the shooting, Mignon Perry was at her mother’s home
17 in the Mohr 1 unit, directly across from Johnson’s home. Perry
supported “Gas Team,” a subset of the Acorn gang. She knew
18 Johnson well, and thought of him as a relative. From her kitchen
window, she saw Johnson headed toward the Green Valley store,
19 which she knew was his “everyday routine.” She had just opened
the front door to ask him to pick something up for her when she
20 heard multiple gunshots and Johnson shouting he had been shot.
21 Perry’s mother slammed the front door shut, and through the
window, Perry saw the shooter with a semiautomatic gun in his
22 hand. The shooter pointed his gun at Johnson, moved closer, and
aimed. After the shooting stopped, she opened the door and stepped
23 outside, where she saw Johnson on the ground and the shooter
running away. The shooter turned around when Perry swore at him,
24 giving her the opportunity to see “the front of him,” and make eye
contact with him. Perry saw no one else around. Perry stayed with
25 Johnson, who was still alive but could not speak, until police
arrived.
26 Perry described the shooter to police as an African–American male
between the ages of 16 and 18 years old, 6 feet and 1 inch tall,
27 wearing a white T-shirt and blue jeans and carrying a silver
handgun. She would not provide a written statement at the time
1 because the crowd that had gathered told her not to say anything to
police. She later learned from “[p]eople from the neighborhood”
2 that Williams, Turner and defendant may have been involved in the
shooting. Perry was acquainted with Williams and Turner. She
3 logged on to Williams’s MySpace page, where she saw a
photograph of Williams with Turner and defendant, and recognized
4 defendant as the shooter.
5 In an interview with police, Perry identified defendant in the
MySpace photo as the shooter. Police also showed her still photos
6 from surveillance videos taken at Mohr 1, in which she was able to
identify defendant, Williams, and Williams’s car. The surveillance
7 videos show a man identified as defendant leaving Williams’s car
first and heading into the housing complex, followed by a second
8 man. About two minutes later, a youth got out of Williams’s car and
ran in the direction defendant and Jones had gone. Within 30
9 seconds, all three of them returned to the car, got in, and drove
away.
10 The day before the shooting, Williams hosted a memorial barbecue
for Anthony Dailey, known as “Active,” a Ghost Town gang
11 member killed in 2007. She had T-shirts made with Dailey's picture
on them for the event. Defendant, Jones and Dailey were close, and
12 defendant was wearing one of the memorial T-shirts on the day of
the shooting.
13
Two days after the shooting, police arrested defendant and Williams
14 for the murder. Ultimately, defendant and Jones were charged with
murder. (Pen.Code, § 187, subd. (a).) The amended information
15 further alleged defendant personally and intentionally discharged a
firearm causing great bodily injury and death. (Pen.Code, §§
16 12022.5, subd. (a), 12022.53, subds. (b) & (d), 12022.7, subd. (a).)
Police found the gun used to kill Johnson a few weeks later, in the
17 course of investigating another shooting. Police discovered
defendant was a contact in the cell phone of the individual from
18 whom the gun was recovered.
19 A few months after his arrest, defendant escaped from the juvenile
facility where he was being held for trial. In his cell, law
20 enforcement found two handwritten letters addressed to “Dear Lord”
in which he admitted “taking a human being life,” and asked for
21 forgiveness and a not guilty verdict.
Dkt. No. 1-6 at 4-7.1
22
Neither Mr. Jones nor Mr. Prescott testified. Dkt. No. 14-8 at 10, 51-52. Following his
23
conviction, Mr. Prescott filed a direct appeal and petitioned the California courts for the writ of
24
habeas corpus. On April 14, 2015, the Court of Appeal affirmed the conviction and summarily
25
26
27 1 All citations are to this court’s docket entries. Pincites go to the ECF page number of each
document.
1 denied his habeas petition. Dkt. Nos. 1-6 at 21, 14-13 at 3. He then petitioned the California
2 Supreme Court for review of both decisions; the California Supreme Court denied the petitions.
3 Dkt. Nos. 1-7, 1-8.
4 Before this court, Mr. Prescott raises the following factual allegations: On September 28,
5 2011, his trial counsel, John Plaine, received an unsigned letter dated September 19, 2011 that
6 apologized for blaming “lil Earn” for the murder and stated, “I was told to say that it was you. But
7 in reality it wasn’t you, it was Poony.” Dkt. No. 14-8 at 1-2. (the “2011 Letter”). Mr. Plaine
8 assumed the letter was written by Mr. Jones and provided the letter to Jones’s attorney. Dkt. No.
9 14-8 at 8. On May 8, 2012—after the trial had started—Mr. Prescott gave his attorney a letter
10 dated January 25, 2012 and signed by Mr. Jones; that letter confessed to the murder and asserted
11 that Mr. Prescott had nothing to do with it. Dkt. Nos. 14-7 at 24 (the “2012 Letter”), 14-8 at 9.
12 On May 13, 2012, Mr. Plaine asked David DeGarmo, a retired investigator and document analyst
13 for the Alameda County Public Defender’s Office, to analyze the handwriting in the letters. Dkt.
14 No. 14-8 at 9, 19. A few days later, Mr. DeGarmo requested additional samples of Jones’s
15 handwriting; Mr. Plaine provided him with an additional 21 pages of documents. Id. at 9. On
16 May 24, 2012, Mr. DeGarmo told Mr. Plaine in a telephone call that he could not determine
17 whether Mr. Jones had written the Letters. Id. at 9-10. Mr. Plaine neither pursued the inquiry
18 further nor introduced either Letter as evidence. Id.
19 In July of 2012—shortly after Mr. Prescott was sentenced—Mr. Jones agreed to an
20 interview with an investigator retained by Mr. Plaine. Id. at 24, 52. Mr. Jones told the
21 investigator that he had authored both Letters. Id. at 24, 52. He also stated that he, not Mr.
22 Prescott, had shot Mr. Johnson, and described the events of the murder. Dkt. No. 14-10 at 48-58.
23 The investigator recorded the interview with Mr. Jones’s consent. Id. at 24-25. In January 2014,
24 Mr. Jones wrote a declaration in which he stated under penalty of perjury that he shot Mr.
25 Johnson, that he authored both letters, that the 2012 Letter is accurate, that he blamed someone
26 else for the murder in the 2011 Letter because he was struggling with coming forward with the
27 truth, and that he is willing to testify. Dkt. No. 14-5 at 26-27. Mr. Prescott’s state habeas attorney
1 retained a new handwriting expert, Patricia Fisher. Ms. Fisher opined that, based on the writing
2 samples available to Mr. DeGarmo, a handwriting examiner could conclude it was highly probable
3 that Mr. Jones wrote the 2011 and 2012 Letters. Dkt. No. 14-5 at 45. After analyzing newly-
4 requested handwriting samples from Mr. Jones, she concluded that a competent handwriting
5 examiner could render an opinion of identification that Mr. Jones wrote the Letters. Id. Such a
6 conclusion is the highest level of confidence that multiple writings have the same author. Id.
7 II. Legal Standard
8 Federal district courts may consider petitions for the writ of habeas corpus on behalf of “a
9 person in custody pursuant to the judgment of a State court only on the ground that he is in
10 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
11 § 2254(a). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits’ in
12 state court, subject only to the exceptions in §§ 2254(d)(1) and (2).” Harrington v. Richter, 562
13 U.S. 86, 98 (2011). Section 2254(d) provides that a federal habeas court may review claims
14 adjudicated by a state court on the merits where the adjudication “(1) resulted in a decision that
15 was contrary to, or involved an unreasonable application of, clearly established Federal law, as
16 determined by the Supreme Court of the United States; or (2) resulted in a decision that was based
17 on an unreasonable determination of the facts in light of the evidence presented in the State court
18 proceeding.” 28 U.S.C. § 2254(d).
19 “[C]learly established Federal law” means the holdings—opposed to the dicta—of the
20 Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705
21 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct. 38, 44-45 (2011)). Circuit
22 court decisions “may be persuasive in determining what law is clearly established and whether a
23 state court applied that law unreasonably.” Id. (quotation and citation omitted). “Under the
24 ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a
25 conclusion opposite to that reach by [the Supreme] Court on a question of law or if the state court
26 decides a case differently than [the] Court has on a set of materially indistinguishable facts.”
27 Williams v. Taylor, 529 U.S. 362, 412-13 (2000). “Under the ‘reasonable application’ clause, a
1 federal habeas court may grant the writ if the state court identifies that correct legal principle from
2 [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the
3 prisoner’s case.” Id. at 413. The district court “may not issue the writ simply because that court
4 concludes in its independent judgment that the relevant state-court decision applied clearly
5 established federal law erroneously or incorrectly. Rather, that application must also be
6 unreasonable.” Id. at 411. “A state court’s determination that a claim lacks merit precludes federal
7 habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
8 decision.” Richter, 562 U.S. at 101. So, “a state prisoner must show that the state court’s ruling
9 on the claim being presented in federal court was so lacking in justification that there was an error
10 well understood and comprehended in existing law beyond any possibility for fair-minded
11 disagreement.” Id. at 103. As to § 2254(d)(2), “[a] state court decision ‘based on a factual
12 determination will not be overturned on factual grounds unless objectively unreasonable in light of
13 the evidence presented in the state-court proceeding.’” Stanley v. Cullen, 633 F.3d 852, 859 (9th
14 Cir. 2011) (quoting Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004)).
15 The Supreme Court has repeatedly affirmed that AEDPA “imposes a highly deferential
16 standard for evaluating state-court rulings and demands that state-court decisions be given the
17 benefit of the doubt.” Hardy v. Cross, 565 U.S. 65, 66 (2011). The district court must presume
18 any determinations of factual issues made by a state court to be correct, unless the petitioner can
19 rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). “Section
20 2254(d) applies even where there has been a summary denial.” Cullen v. Pinholster, 563 U.S. 170,
21 187 (2011). So, “[w]here a state court’s decision is unaccompanied by an explanation, the habeas
22 petitioner’s burden still must be met by showing there was no reasonable basis for the state court
23 to deny relief.” Richter, 562 U.S. at 98.
24 III. Discussion
25 Mr. Prescott raises three separate claims for relief under § 2254. The first claim is “[c]o-
26 defendant Jones’ confessions were not introduced at trial in violation of Prescott’s right to due
27 process and fair trial. Jones’ confessions establish Prescott’s actual innocence warranting relief.”
1 Dkt. No. 1-2 at 4. Second, he contends that his “VIth Amendment right to effective counsel was
2 violated. His trial counsel failed to investigate and establish before trial that co-defendant Jones
3 authored letters confessing to the crime and exonerating Prescott.” Id. And his third claim argues
4 that “Prescott’s VIth Amendment right to confront witnesses was violated. His conviction was
5 based on material false testimony of one witness Prescott was not allowed to effectively impeach
6 and cross-examine.” Id.
7 a. Mr. Prescott’s First Claim
8 Mr. Prescott supports his first claim by arguing that that during his state habeas
9 proceedings, he presented sufficient new evidence to the California Court of Appeal to carry his
10 prima facie case under the California Supreme Court decision People v. Duvall, 9 Cal. 4th 464,
11 470, 886 P.2d 1252 (1995), so that the Court of Appeal should have issued an order to show cause
12 to the State. Instead, the Court of Appeal summarily denied his petition. The Court of Appeals,
13 he argues, erred in doing so. The petition suggests that this alleged error amounted to a
14 “constitutional violation” that “probably resulted in the conviction of one who is actually
15 innocent,” warranting relief under Murray v. Carrier, 477 US 478, 496 (1986), Schlup v. Delo,
16 513 US 298, 327 (1995), and House v. Bell, 547 US 518, 537 (2006). In his traverse, he contends
17 that the California Court of Appeal violated Prescott’s due process under Hicks v. Oklahoma, 447
18 U.S. 343 (1980), by not issuing the order show cause pursuant to Duvall and by not considering
19 his “new evidence” as required by In re Hall, 30 Cal. 3d 408 (1981). Mr. Prescott disclaims
20 bringing a freestanding actual innocence claim. Dkt. No. 15 at 7. His first claim turns on the
21 California Supreme Court decisions in Duvall and Hall.
22 Mr. Prescott’s first claim cannot succeed for several reasons. First, and at the most basic
23 level, the Court of Appeal’s purported errors are of California law, not federal law. He is not in
24 custody “in violation of the Constitution or laws or treaties of the United States,” as § 2254
25 requires. 28 U.S.C. § 2254(a); see also Hubbart v. Knapp, 379 F.3d 773, 779 (9th Cir. 2004)
26 (“Federal habeas corpus relief is generally unavailable for alleged error in the interpretation or
27 application of state law.”). Both Duvall and Hall are California Supreme Court cases that concern
1 California law. In Duvall, the California Supreme Court granted review “to address certain
2 procedural rules governing petitions for writs of habeas corpus in this state” because “the modern
3 expansion of the availability of relief on habeas corpus . . . justif[ied] a clarification of the
4 pleading rules applicable to such petitions.” 9 Cal. 4th at 470 (1995). The Duvall Court clarified
5 the procedures for state courts assessing state habeas petitions. Specifically, the petitioner must
6 first plead grounds for relief by stating, with particularity, the facts warranting relief, and by
7 including documentary evidence, e.g. trial transcripts and/or affidavits, supporting the claim. Id.
8 at 474. If the petitioner cannot make this showing that they are entitled to relief, then the state
9 court should “summarily deny the petition.” Id. at 475. But, if the petitioner carries this prima
10 facie case, then the court should issue an order to show cause to the respondent. Id. In articulating
11 this framework, Duvall extends a line of California cases interpreting the California Penal Code
12 sections regarding state habeas claims. Id. at 475, 476 (citing Cal. Penal Code § 1480); see also In
13 re Lawler, 23 Cal. 3d 190, 194 (1979); In re Hochberg, 2 Cal. 3d 870, 875 n.4 (1970) (discussing
14 Cal. Penal Code §§ 1476-77, 1483-84). Duvall does not implicate federal rights.
15 Neither does Hall. Hall concerned evidence submitted at an evidentiary hearing in a state
16 habeas proceeding. 30 Cal. 3d 408. There, the California Supreme Court, while relying on its
17 own precedent, held that in a state habeas proceeding, a petitioner “may introduce ‘any evidence
18 not presented to the trial court and which is not merely cumulative in relation to evidence which
19 was presented at trial’ insofar as it assists in establishing his innocence.” Id. at 420 (quoting In re
20 Branch, 70 Cal. 2d 200, 214 (1969)). Thus, under Hall, a state habeas petitioner may rely on
21 “information either that was known or could have been discovered by diligent investigation before
22 trial” so long as it is not cumulative, and they first present newly discovered evidence that raises
23 doubt to their guilt. Id. This holding does not implicate federal rights. The Court of Appeal’s
24 purported violations of Duvall and Hall are not cognizable under § 2254.
25 In his traverse, Mr. Prescott tries to use Hicks as a hook to pull Duvall and Hall within the
26 reach of § 2254. In Hicks, the Supreme Court considered the direct appeal of a state appellate
27 court decision upholding the conviction and sentencing of a criminal defendant. The Supreme
1 Court held that it violated due process for the trial court to give a jury instruction based on an
2 invalid state law mandatory sentence provision, when the valid instruction would have allowed the
3 possibility of a substantially shorter sentence. Id. at 346. The Supreme Court dismissed an
4 argument that the case concerned purely procedural mattes of state concern:
5 Where, however, a State has provided for the imposition of criminal
punishment in the discretion of the trial jury, it is not correct to say
6 that the defendant’s interest in the exercise of that discretion is
merely a matter of state procedural law. The defendant in such a
7 case has a substantial and legitimate expectation that he will be
deprived of his liberty only to the extent determined by the jury in
8 the exercise of its statutory discretion and that liberty interest is one
that the Fourteenth Amendment preserves against arbitrary
9 deprivation by the State.
Id. (citations omitted). Mr. Prescott contends that the same reasoning that applied to the state law
10
regarding sentencing also applies to Duvall and Hall, and so the Court of Appeal denied him due
11
process by not issuing an order to show cause. The Court of Appeal’s application of Hicks was
12
therefore unreasonable under § 2254(d)(1).
13
This argument applies Hicks far too broadly. The Court of Appeal’s summary dismissal
14
was not “so lacking in justification that there was an error well understood and comprehended in
15
existing law” concerning the application of Hicks. Richter, 562 U.S. at 103. Rather, “[t]he Ninth
16
Circuit has rejected a broad reading of Hicks.” McNally v. Frauenheim, 2018 WL 4006330, at *7.
17
In Gonzalez v. Wong, 667 F.3d 965, 995 (9th Cir. 2011), the Ninth Circuit held that Hicks did not
18
apply where the prosecutor’s closing argument in the penalty phase of a case allegedly violated
19
state law. And in Hubbart, the Ninth Circuit ruled that Hicks was inapplicable to a petitioner who
20
was subject to civil confinement under the Sexually Violent Predator Act because Hicks concerns
21
the sentencing of prisoners. 379 F.3d at 780. Other circuits have also declined to extend Hicks.
22
See, e.g., Simpson v. Norris, 490 F.3d 1029, 1034 (8th Cir.2007) (“Hicks represents a rather
23
narrow rule: some aspects of the sentencing process, created by state law, are so fundamental that
24
the state must adhere to them in order to impose a valid sentence.” (citation and quotation
25
omitted); Johnson v. Rosemeyer, 117 F.3d 104, 112 (3d Cir. 1997) (“Hicks involved an unusual
26
situation which the Supreme Court concluded required due process treatment.”).
27
1 Moreover, the court finds that the circumstances here are not like those in Hicks. There,
2 the state appellate court upheld a mandatory 40-year sentence that was based on a constitutionally
3 invalid law while the proper sentencing instruction would have allowed the jury to set the
4 petitioner’s sentence as short as ten years. 447 U.S. at 346. The Supreme Court reasoned, “the
5 petitioner had a statutory right to have a jury fix his punishment in the first instance, and this is the
6 right that was denied . . . . [I]t is a right that substantially affects the punishment imposed.” Id.
7 347. The appellate court deprived the petitioner of his right to have a jury consider a sentence as
8 brief as ten years. Id. at 346-47. Mr. Prescott does not contend that there was such a deprivation
9 of a statutory right here, nor does he identify any federal rights implicated by Duvall or Hall.
10 Rather, he contends that he submitted enough evidence—including evidence admissible under
11 Hall—to present a prima facie case and require the Court of Appeal to issue an order to show
12 cause. The Court of Appeal’s summary denial of his state habeas petition indicates though that the
13 Court of Appeal found that he had not stated a prima facie case for relief. Dkt. No. 14-13 at 3.
14 “[S]ummary denial of a habeas petition on the merits reflects that court’s determination that ‘the
15 claims made in th[e] petition do not state a prima facie case entitling the petitioner to relief.’”
16 Pinholster, 563 U.S. at 188 n.12 (quoting In re Clark, 5 Cal. 4th 750, 780-81 (1993), superseded
17 by statute on other grounds as stated in Briggs v. Brown, 3 Cal. 5th 808, 842 (2017)). Unlike the
18 defendant in Hicks, Mr. Prescott was not denied a right; rather the Court of Appeal denied his
19 petition on the merits. The Court of Appeal’s decision was neither contrary to, nor an
20 unreasonable application of Hicks.
21 Mr. Prescott also cites Cuero v. Cate to argue that the Court of Appeal’s decision violated
22 his constitutional rights for similar reasons to those expressed above. 827 F.3d 879 (9th Cir.
23 2016), cert. granted, judgment rev’d sub nom. Kernan v. Cuero, 138 S. Ct. 4, 199 L. Ed. 2d 236
24 (2017). In reversing the Ninth Circuit’s decision based on the ordered remedy, the Supreme Court
25 did not directly address the analysis that undergirds Mr. Prescott’s position here – that the State
26 had violated the Cate petitioner’s constitutional rights by moving to amend the complaint after
27 they had entered a plea deal. Kernan, 138 S. Ct. at 8 (“We shall assume purely for argument’s
1 sake that the State violated the Constitution . . . .”). To the extent any of Cate remains good law,
2 this court though finds that the Ninth’s Circuit’s reasoning on that issue is not applicable to the
3 facts before this court. The Ninth Circuit found that “[a] defendant’s guilty plea implicates the
4 Constitution,” such that the “guilty plea seals the deal between the state and the defendant, and
5 vests the defendant with “a due process right to enforce the terms of his plea agreement.” Cuero,
6 827 F.3d at 885 (quotations and citations omitted). For the reasons discussed above, neither
7 Duvall nor Hall implicate the Constitution.
8 Finally, Mr. Prescott’s reliance on Carrier, Schlup, and House does not support his claim.
9 All three cases are inapposite because they dealt with actual innocence claims as a means to
10 overcome procedural default. Procedural default is not an issue here.
11 Mr. Prescott’s first claim does not warrant relief.
12 b. Mr. Prescott’s Second Claim
13 Mr. Prescott’s second claim is that his trial counsel, Mr. Plaine, was constitutionally
14 deficient for failing to adequately investigate the authorship of the Letters. Claims based on the
15 ineffective assistance of counsel have two prongs. First, “the defendant must show that counsel’s
16 performance was deficient.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, “the
17 defendant must show that the deficient performance prejudiced the defense.” Id. “To establish
18 deficient performance, a person challenging a conviction must show that counsel’s representation
19 fell below an objective standard of reasonableness.” Richter, 562 U.S. at 104 (citation and
20 quotation omitted). Habeas courts should apply a “strong presumption that counsel’s
21 representation was within the wide range of reasonable professional assistance.” Id. (citation and
22 quotation omitted). Regarding the prejudice prong, the petitioner must show “a reasonable
23 probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
24 been different. A reasonable probability is a probability sufficient to undermine confidence in the
25 outcome.” Id. The attorney’s errors must have been so serious as to deprive the petitioner of a
26 fair trail whose result is reliable. Id. “The inquiry under Strickland is ‘highly deferential, and
27 ‘every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the
1 circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel’s
2 perspective at the time.’” Greenway v. Ryan, 856 F.3d 676, 679-80 (9th Cir. 2017) (quoting
3 Strickland, 466 U.S. at 608).
4 “The standards created by Strickland and § 2254(d) are both highly deferential, and when
5 the two apply in tandem, review is doubly so.” Richter, 562 U.S. at 105 (quotations and citations
6 omitted). “Federal habeas courts must guard against the danger of equating unreasonableness
7 under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is
8 not whether counsel’s actions were reasonable. The question is whether there is any reasonable
9 argument that counsel satisfied Strickland’s deferential standard.” Id.
10 Mr. Prescott contends that Mr. Plaine’s investigation of the Letters was deficient because it
11 did not continue after Mr. DeGarmo concluded that he could not reach a conclusion as to whether
12 Mr. Jones was the author. Mr. Prescott contends that Mr. DeGarmo was not qualified to examine
13 the letters and did not conduct an adequate analysis of the letters’ handwriting. He further argues
14 that given the importance of the letters, Mr. Plaine was constitutionally obligated to further
15 investigate the letters’ handwriting and authorship after Mr. DeGarmo’s inconclusive result. He
16 supports this argument with the declaration of Ms. Fisher.
17 The court concludes that it was not unreasonable for the Court of Appeal to reject this
18 claim. To begin, there was considerable evidence that Mr. DeGarmo was well qualified to analyze
19 the letters, and it was not unreasonable for the state court to reach that conclusion. Mr. DeGarmo
20 has testified as an expert in over 300 cases. Dkt. No. 14-8 at 19. He undertook a five-year
21 apprenticeship under the Chief Document Examiner in the California State Bureau of Criminal
22 Identification and Investigations. Id. From 1976 to 2006, his job title was “Examiner of
23 Questioned Documents” in the Alameda County Public Defender’s Office, where he worked as the
24 in-house handwriting expert. Id. at 10, 20. Next, based on the evidence, it was not unreasonable
25 for the Court of Appeal to find that Mr. DeGarmo’s analysis met the Strickland reasonableness
26 standard. Mr. Plaine initially provided Mr. DeGarme with the two letters and three samples of Mr.
27 Jones’s handwriting. Dkt. No. 14-8 at 9. Mr. DeGarmo then indicated that he needed more
1 samples of Mr. Jones’s handwriting, so Mr. Plaine provided him with an additional 21 pages of
2 Mr. Jones’s handwriting. Id. Mr. DeGarmo later stated his inability to reach a conclusion to Mr.
3 Plaine by explaining that too many variations and differences to be inconclusive. Dkt. N0. 14-8 at
4 9-10, 18.
5 Finally, it was not unreasonable for the Court of Appeal to conclude that Mr. Plaine
6 performed reasonably by not continuing to investigate the authorship of the letter. When Mr.
7 DeGarmo told Mr. Plaine that he could not reach a conclusion as to whether Mr. Jones had written
8 the letters, he did not indicate that further investigation would be useful, nor did he request further
9 information, as he had previously. Dkt. No. 14-8 at 10. Mr. Plaine “relied on [Mr. DeGarmo’s]
10 analysis, thinking he had provided [Mr. Plaine] an answer,” so Mr. Plaine “had no reason to think
11 further investigation would be useful.” Id. “Attorneys are entitled to rely on the opinions of
12 properly selected, adequately informed and well-qualified experts.” Crittenden v. Ayers, 624 F.3d
13 943, 966 (9th Cir. 2010). Even though Mr. DeGarmo’s analysis of the authorship of the letters did
14 not result in exculpating evidence, Mr. Plaine did not perform unreasonably by “mak[ing] the
15 judgment not to pursue [the] line of inquiry further.” Id.
16 Mr. Prescott’s second claim is denied.
17 c. Mr. Prescott’s Third Claim
18 The Confrontation Clause of the Sixth Amendment provides that in criminal cases the
19 accused has the right to “be confronted with the witnesses against him.” U.S. Const. amend. VI.
20 The ultimate goal of the Confrontation Clause is to ensure reliability of evidence, but it is a
21 procedural rather than a substantive guarantee. Crawford v. Washington, 541 U.S. 36, 61 (2004).
22 The Confrontation Clause applies not only to in-court testimony but also to out-of-court
23 statements introduced at trial, regardless of the admissibility of the statements under state laws of
24 evidence. Id. at 50-51. Confrontation Clause claims are subject to harmless error analysis.
25 United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004); see also United States v. Allen, 425
26 F.3d 1231, 1235 (9th Cir. 2005). For purposes of federal habeas corpus review, the standard
27 applicable to violations of the Confrontation Clause is whether the inadmissible evidence had an
1 actual and prejudicial effect upon the jury. See Hernandez v. Small, 282 F.3d 1132, 1144 (9th Cir.
2 2002) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
3 The Confrontation Clause guarantees an opportunity for effective cross-examination, not
4 cross-examination that is effective in whatever way, and to whatever extent, the defense might
5 wish. Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Accordingly, “trial judges retain wide
6 latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such
7 cross-examinations based on concerns about, among other things, harassment, prejudice,
8 confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally
9 relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see also Plascencia v. Alameda,
10 467 F.3d 1190, 1201-02 (9th Cir. 2006) (exclusion of cross-examination that would have provided
11 cumulative or repetitive evidence did not violate Confrontation Clause or was harmless error);
12 Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir. 2005) (“[A] trial judge may exclude or limit
13 evidence to prevent excessive consumption of time, undue prejudice, confusion of the issues, or
14 misleading the jury. The trial judge enjoys broad latitude in this regard, so long as the rulings are
15 not arbitrary or disproportionate.” (citations omitted)).
16 Here, Mr. Prescott contends that his rights under the Confrontation Clause were violated
17 by the trial court’s decision to bar cross-examination of Ms. Williams. Ms. Williams had told the
18 police that when Mr. Prescott returned to the car, he was carrying a gun and that Mr. Prescott had
19 told her that Mr. Jones had “wanted to shoot” but that Mr. Prescott “ran up on the dude.” Dkt. No.
20 1-6 at 2. At trial though, she testified that she did not remember seeing a gun and that her
21 statements to the police were “not really true. Id. During the trial, counsel for Mr. Jones filed a
22 motion to question Ms. Williams about her testimony in an unrelated murder trial, which was
23 proceeding at the same time. Id. at 11-12. Mr. Prescott argues that cross examination would have
24 produced evidence that—in the other case—she had lied to the police in order to incriminate her
25 husband, but later contradicted those statements in her trial testimony. The trial judge
26 acknowledged that this evidence would be relevant to her credibility but excluded the evidence
27 because of the likelihood of it creating confusion and undue delay outweighed its probative value.
1 Id. at 12. The Court of Appeal found that this evidence would be cumulative and have little
2 probative value because her credibility was already “severely undermined.” Id. Her testimony
3 contradicted important aspects of her statements to the police. Id. She testified that she had
4 “fabricated a little bit” of those statements. Id. She had been impeached with her three felony
5 convictions. Id. She testified that alcohol and drug use impaired her memory when she was under
6 the influence. Id. She also answered in the affirmative to the question “do you think it’s fair to
7 say that this statement is true: That you are willing to lie often to get what you want.” Id.
8 (alteration omitted).
9 Mr. Prescott argues that the Supreme Court case Davis v. Alaska is on point and should
10 control here. 415 U.S. 308 (1974). The court disagrees. There, the defendant was convicted of
11 burglary and grand larceny for stealing a safe from a bar largely due to the testimony of a juvenile
12 witness. Id. at 310-11. At the time, the witness was on probation by order of a juvenile court for
13 burglarizing two cabins. Id. Citing state laws protecting the confidentiality of juvenile
14 adjudications of delinquency, the trial court prohibited the defense from impeaching the witness
15 about his probation and adjudications of delinquency. Id. at 312. The Supreme Court reversed. It
16 acknowledged “the broad discretion of a trial judge to preclude repetitive” testimony, but found in
17 that instance that the defendant was “unable to make a record from which to argue why” the
18 witness was biased. Id. at 316, 318.
19 The circumstances here are not analogous. Ms. Williams changed her story on the stand,
20 and stated that she had initially misled the police so that she would not be charged. Dkt. 1-2 at 28.
21 So, Mr. Prescott had a record from which he could argue that Ms. Williams was biased when she
22 gave her initial statements to the police. Cross examination concerning her testimony in her
23 husband’s murder trial would have gone to solely to her credibility. As the Court of Appeal noted,
24 that subject was thoroughly covered at trial. The precluded cross examination would have been
25 cumulative and lacking in probative value. Its exclusion was not an error warranting relief here.
26 Mr. Prescott’s third claim for relief is denied.
27
1 IV. Conclusion and Certificate of Appealability
2 For the reasons discussed in this order, Mr. Prescott’s petition is denied. His Request for
3 Order is terminated. Dkt. No. 25. The court issues a certificate of appealability as to his first and
4 || second claims. 28 U.S.C.§ 2253(c).
5 IT ISSO ORDERED.
6 Dated: December 12, 2019
7
EDWARD J. DAVILA
8 United States District Judge
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS