stating “an evidentiary 1 || hearing is pointless once the district court has determined that § 2254(d) precludes habeas 2 ||relief’ and citing Pinholster, 563 U.S. at 203, n. 20
How later courts described this case
- stating “an evidentiary 1 || hearing is pointless once the district court has determined that § 2254(d) precludes habeas 2 ||relief’ and citing Pinholster, 563 U.S. at 203, n. 20
- holding findings of historical fact, including inferences properly drawn from 13 those facts, are entitled to statutory presumption of correctness
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 ANTUON EUGENE GREY, Case No.: 16-cv-2764-GPC-AGS
12 Plaintiff,
ORDER ADOPTING THE
13 v. MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION
14 WARREN L. MONTGOMERY
DENYING PETITION FOR WRIT
Warden,
15 OF HABEAS CORPUS
Defendant.
16
17
Presently before this Court is a Petition for Writ of Habeas Corpus pursuant to 28
18
U.S.C. § 2254, filed by Petitioner Antuon Eugene Grey (“Petitioner”), a state prisoner
19
proceeding with counsel. Pet., Dkt. No. 1. In his petition, Grey seeks to challenge his
20
convictions in San Diego Superior Court for murder, attempted murder, and assault with
21
firearm. Pet., Dkt. No. 1. On March 15, 2017, Respondent Warren L. Montgomery,
22
Warden, filed an Answer and Memorandum of Points and Authorities in Support of the
23
Answer (“Answer”) and Lodgments. Dkt. Nos. 14–15. Petitioner filed a Traverse on
24
June 19, 2017. Dkt. No. 20. On September 20, 2018, Magistrate Judge John L.
25
Weinberg issued a Report and Recommendation (“Report”) recommending that this
26
27
28
1 Court deny the request for an evidentiary hearing and deny the Petition. Dkt. No. 22.
2 Petitioner filed a written objection to the Report on October 6, 2018.1
3 After a thorough review of the issues and documents presented, this Court
4 ADOPTS the Magistrate Judge’s Report and Recommendation, DENIES Petitioner’s
5 request for an evidentiary hearing, OVERRULES Petitioner’s objections, DENIES the
6 petition for a writ of habeas corpus, and DENIES a certificate of appealability.
7 I. BACKGROUND
8 A. Factual Background
9 This Court gives deference to state court findings of fact and presumes them to be
10 correct; Petitioner may rebut the presumption of correctness, but only by clear and
11 convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parle v. Fraley, 506 U.S. 20, 35–
12 36 (1992) (holding findings of historical fact, including inferences properly drawn from
13 those facts, are entitled to statutory presumption of correctness). This Court provides the
14 following summary of the facts based on the opinion of the California Court of Appeal.
15 On January 20, 2012, Hopeton Bennett, a member of the
Parkside/Skyline gang known as “Baby Dos,” was shot and killed, and
16
Parkside/Skyline gang member Julian Velasquez was shot. Grey was also a
17 member of the Parkside/Skyline gang and was known as “Little Dos.” The
naming arrangement between Grey and Bennett indicated that Grey was
18
something of a mentor to Bennett.
19 The following day, [Dave] Lockett was visiting some family members
at an apartment complex on Solola Avenue in San Diego. While in the
20
parking lot, Lockett ran into an acquaintance, [Edwin] Jackson, who lived at
21 the complex. Jackson was a member of the Lincoln Park gang, the chief
rival of Parkside/Skyline gang. The Lincoln Park gang was known to
22
occupy the apartment complex on Solola Avenue.
23 As Lockett started back to his relative’s apartment, he saw two black
males, one of whom he later identified as Grey, approaching from the
24
parking lot entrance. Another witness heard Jackson ask the men, “Blood,
25
26
1 Although Petitioner filed the objection after the October 5, 2018 deadline established by the Report
27 pursuant to Local Civil Rule HC.2 of the United States District Court of the Southern District of
California, the Court finds that there is no prejudice from the untimely filing and will excuse the one-day
28
1 who is you niggers?” After a brief exchange, Grey pulled a firearm from his
sweatshirt pocket and fired the weapon, striking Lockett in the stomach as
2
Lockett dove to the ground. Lockett then heard running footsteps and
3 multiple gunshots. A number of these shots struck Jackson, who died from
his injuries. Police recovered a beanie hat from the scene with DNA
4
analysis producing a match to Grey’s brother.
5 Later that day, Lockett gave a description of the shooter to police,
noting that the shooter had a lot of acne on his face. Lockett, however, did
6
not get a good look at the face of Grey’s companion. As a result of the DNA
7 match, police went to the residence of Grey’s brother where they
encountered and photographed Grey, who had distinctive acne on his face
8
and appeared to fit the general description of the shooter. Police recovered
9 from the residence a pamphlet for Bennett’s funeral memorial.
Police later conducted an audio-recorded lineup with Lockett. Lockett
10
selected Grey’s photograph out of a five-photograph lineup and identified
11 him as the shooter. The detective, however, forgot to have Lockett sign the
photograph. The following day, police conducted another audio-recorded
12
photographic lineup with Lockett. Lockett again identified Grey’s
13 photograph as the shooter and signed the photograph. Lockett testified at
trial he had no doubt and was “100 percent” sure Grey was the shooter.
14
A gang expert testified regarding gangs and gang culture, including
15 that acts of violence between rival gangs result in violent retaliation. Based
on a hypothetical mirroring the prosecution’s evidence, including the
16
shooting death of Bennett approximately 30 hours earlier, the gang expert
17 opined that the shooting in this case was committed for the benefit of the
Parkside/Skyline gang.
18
19 Pet., Dkt. No. 1-3 at 2–4.
20 B. Procedural Background
21 On January 7, 2013, the San Diego District Attorney’s Office filed a complaint
22 charging Petitioner with the following: Count One, murder of Edwin Jackson, in violation
23 of California Penal Code (Penal Code) § 187(a); Count Two, attempted murder of Dave
24 Lockett, in violation of Penal Code §§ 187(a) and 664; and Count Three, assault with a
25 semiautomatic firearm upon Dave Lockett, in violation of Penal Code § 245(b). Dkt. No.
26 15-17 at 1–6. As to Counts Two and Three, the complaint also alleged Petitioner had
27 personally used a firearm, within the meaning of Penal Code § 12022.5(a), had
28 committed the crimes alleged in those counts for the benefit of, at the direction of and in
1 association with a gang with intent to promote further and assist the gang’s criminal
2 activities, within the meaning of Penal Code § 186.22(b)(1), and personally inflicted
3 great bodily injury, within the meaning of Penal Code § 12022.7(a). Id. at 3–4. In
4 addition, the complaint alleged Petitioner had suffered a prior conviction, for which he
5 had served a prison sentence, within the meaning of Penal Code §§ 667.5(b) and 668, and
6 had suffered a prior “strike” conviction, within the meaning of Penal Code §§ 667(b)–(i),
7 1170.12, and 668, California’s Three Strikes Law. Id. at 5. Following a jury trial,
8 Petitioner was convicted on all counts and the jury found all the allegations to be true.
9 Lodgment No. 8, Vol. 3 at 665-70.
10 Petitioner appealed his conviction to the California Court of Appeal, Fourth
11 Appellate District, Division One. Lodgment No. 4. The state appellate court affirmed
12 Petitioner’s conviction in a written, unpublished decision. Pet., Dkt. No. 1-3. Petitioner
13 then filed a petition for review in the California Supreme Court, which summarily denied
14 the petition. Lodgment No. 1. Petitioner then filed a habeas corpus petition in the
15 California Supreme Court. Lodgment No. 2. The California Supreme Court summarily
16 denied the petition. Lodgment No. 3.
17 On November 9, 2016, Petitioner filed a petition for a writ of habeas corpus
18 pursuant to 28 U.S.C. § 2254 in this Court. Pet., Dkt. No. 1. On March 15, 2017,
19 Respondent filed an Answer and Memorandum of Points and Authorities in Support of
20 the Answer (“Answer”) and Lodgments. Dkt. Nos. 14–15. Petitioner filed a Traverse on
21 June 19, 2017. Dkt. No. 20. On September 20, 2018, Magistrate Judge John L.
22 Weinberg issued a Report and Recommendation (“Report”) recommending that this
23 Court deny the request for an evidentiary hearing and deny the Petition. Dkt. No. 22.
24 Petitioner filed a written objection to the Report on October 6, 2018. Dkt. No. 23.
25 II. STANDARD OF REVIEW
26 A. Magistrate Judge’s Report and Recommendation Standard of Review
27 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) outline the
28 procedure regarding the district court’s treatment of a magistrate judge’s report and
1 recommendation. The district court “may accept, reject, or modify, in whole or in part,
2 the findings of recommendations made by the magistrate judge.” 28 U.S.C. §
3 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 675 (1980). Because
4 objections were made, the Court reviews de novo the parts of the magistrate judge’s
5 findings and recommendations to which specific objections have been made. FED. R.
6 CIV. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C); United States v. Reyna-Tapia, 328 F.3d 1114,
7 1121 (9th Cir. 2003) (en banc).
8 B. AEDPA Standard of Review of Habeas Petition
9 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a court will
10 not grant a habeas petition with respect to any claim adjudicated on the merits by the state
11 court unless that adjudication “(1) resulted in a decision that was contrary to, or involved
12 an unreasonable application of, clearly established federal law, as determined by the
13 Supreme Court of the United States; or (2) resulted in a decision that was based on an
14 unreasonable determination of the facts in light of the evidence presented in the State
15 court proceeding.” Early v. Packer, 537 U.S. 3, 7–8 (2002) (quoting 28 U.S.C. §
16 2254(d)).
17 A federal court may grant habeas relief under the “contrary to” clause if the state
18 court applied a different rule than the governing law established by the Supreme Court, or
19 if it decided a case differently than the Supreme Court on a set of materially
20 indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). A state court need not
21 cite Supreme Court precedent when resolving a habeas corpus claim “so long as neither
22 the reasoning nor the result of the state-court action contradicts [Supreme Court
23 precedent].” Early, 537 U.S. at 8.
24 The court may grant relief under the “unreasonable application” prong if the state
25 court correctly identified the governing Supreme Court principle but unreasonably
26 applied it to the facts of the case. Bell, 535 U.S. at 694. Additionally, the “unreasonable
27 application” prong requires the state court’s application of clearly established federal law
28 to be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The
1 Court may also grant relief if the state court’s decision was based on an unreasonable
2 determination of the facts. 28 U.S.C. § 2254(d)(2).
3 A federal court uses the decision of the highest state court to make its habeas
4 determination. See Ylst v. Nunnemaker, 501 U.S. 797, 803–06 (1991). However, if no
5 reasoned decision from the highest state court exists, the Court “looks through” the
6 unreasoned judgment to the last reasoned state court decision and presumes it provides
7 the basis for the higher court’s denial of a claim or claims. Id. at 805–06.
8 III. DISCUSSION
9 Petitioner requests habeas relief based on four grounds: (1) the trial judge
10 improperly removed a juror when, following the testimony of the eyewitness defense
11 expert, the juror realized he had participated in some of the studies the witness had
12 performed while at the University of Texas, Dkt. No. 1-2 at 1–5; (2) ineffective
13 assistance of trial counsel for failing to present exculpatory alibi evidence to support a
14 defense of mistaken identification, Id. at 6–19; (3) ineffective assistance of trial counsel
15 for failing to object to the removal of the juror, Id. at 19–23; and (4) the trial judge
16 wrongly refused to instruct the jury to view the eyewitness identification with caution, Id.
17 at 23. Because Petitioner filed his federal habeas petition in 2016, it is subject to the
18 provisions of AEDPA.
19 A. Removal of Juror No. 8 (ground one)
20 First, Petitioner alleges the trial judge improperly removed Juror No. 8 during the
21 trial after that juror told the judge he had attended the same university at which the expert
22 taught. The juror also informed the judge that he had participated in some of the studies
23 on eyewitness testimony the expert cited. Pet., Dkt. No. 1-2 at 1–5; Traverse, Dkt. No.
24 20-1 at 11–20. Specifically, Petitioner contends the state court’s denial of this claim was
25 based on an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2)
26 because Juror No. 8’s statements did not establish he was biased, only that he harbored
27 serious doubt about the reliability of eyewitness testimony. As such, Petitioner asserts
28
1 that the removal of the juror therefore violated Petitioner’s due process and fair trial
2 rights. Traverse, Dkt. No. 20-1 at 19.
3 Respondent claims this ground is procedurally defaulted because the last reasoned
4 state court decision, the California Court of Appeal’s opinion, concluded Petitioner had
5 failed to object to the discharge of the juror and had therefore forfeited the claim. P. &
6 A. Supp. Answer, Dkt. No. 14-1 at 14. In any event, Respondent argues, the claim is also
7 meritless even if Petitioner’s procedurally barred claim had been excused. Id. at 14–18.
8 1. Procedural Default
9 Because the California Supreme Court summarily denied Petitioner’s petition for
10 review in which he raised his claim regarding Juror No. 8, this Court must “look through"
11 to the state appellate court’s decision. Ylst, 501 U.S. at 805–06. That court concluded
12 the claim had been waived under People v. Holt, 15 Cal. 4th 619, 656 (1997) because
13 defense counsel failed to object to the juror’s removal. Pet., Dkt. No. 1-3 at 9–10. The
14 appellate court went on to address the merits of the claim and denied Petitioner relief. Id.
15 at 10–11.
16 The Ninth Circuit has held that procedural default is an affirmative defense. As a
17 result, in order to establish a claim is procedurally defaulted, Respondent must first
18 “adequately [plead] the existence of an independent and adequate state procedural ground
19 . . . .” Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). To place the defense at
20 issue, Petitioner must then “assert[] specific factual allegations that demonstrate the
21 inadequacy of the state procedure . . . .” Id. The “ultimate burden” of proving procedural
22 default, however, belongs to the state. Id. If the state meets its burden under Bennett,
23 federal review of the claim is foreclosed unless the Petitioner can “demonstrate cause for
24 the default and actual prejudice as a result of the alleged violation of federal law, or
25 demonstrate that failure to consider the claims will result in a fundamental miscarriage of
26 justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
27 A state procedural rule is “independent” if the state law basis for the decision is not
28 interwoven with federal law. Michigan v. Long, 463 U.S. 1032, 1040–41 (1983); Harris
1 v. Reed, 489 U.S. 255, 265 (1989). A ground is “interwoven” with federal law if the state
2 has made application of the procedural bar depend on an antecedent ruling on federal law
3 such as the determination of whether federal constitutional error has been committed.
4 See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). “To qualify as an ‘adequate’ procedural
5 ground, a state rule must be ‘firmly established and regularly followed.’” Walker v.
6 Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009)).
7 All cases cited by a state court must be independent and adequate to bar federal review of
8 the claims. Washington v. Cambra, 208 F.3d 832, 834 (9th Cir. 2000).
9 Petitioner contends his claim is not procedurally defaulted because the state court
10 decided the merits of his claim in addition to imposing a procedural bar. Dkt. No. 20 at
11 2. In his objection, Petitioner argues that the Magistrate Judge improperly found that trial
12 counsel was ineffective. As such, Petitioner surmises that the Magistrate Judge wrongly
13 found a procedural default.
14 Respondent contends that Petitioner’s claim is procedurally defaulted because the
15 last reasoned state court decision, the California Court of Appeal’s opinion, concluded
16 Petitioner had failed to object to the juror’s dismissal and had therefore forfeited the
17 claim. P. & A. Supp. Answer, Dkt. No. 14-1 at 14. Thus, according to Respondent, it
18 follows that Respondent has pled the existence of an independent and adequate state
19 procedural bar. Moreover, Respondent notes that Petitioner Grey has not “asserted
20 specific factual allegations that demonstrate the inadequacy of the state procedure . . . .”
21 Bennett, 322 F.3d at 586. As such, Respondent submits that Petitioner’s claims are
22 procedurally defaulted unless he can show cause for the default and actual prejudice as a
23 result of the alleged violation of federal law – or a demonstration that failure to consider
24 the claims would result in a fundamental miscarriage of justice. See Coleman, 501 U.S.
25 at 750. (Emphasis added).
26 The “cause” prong is satisfied if Petitioner is able to demonstrate some “objective
27 factor” that precluded him from raising his claims in state court. These objective factors
28 could include “interference by state officials” or “constitutionally ineffective counsel.”
1 See McClesky v. Zant, 499 U.S. 467, 493-94 (1991). In this case, Petitioner has pointed
2 to his trial counsel’s ineffectiveness by account of his counsel’s failure to object to Juror
3 No. 8, which in turn caused the procedural default at issue. ECF No. 20-1 at 15-16. As
4 discussed below, the Court agrees with the Magistrate Judge’s finding in the R&R that
5 trial counsel was not ineffective. Thus, counsel’s failure to object to the juror’s removal
6 cannot form the basis for a successful showing of “cause” under Coleman. Since
7 Petitioner does not allege any other “objective factor” that precluded him from raising his
8 claims in state court, the Court agrees with the Magistrate Judge in finding that Grey has
9 not established cause for the default. See McClesky, 499 U.S. at 493-94.
10 A showing of prejudice sufficient to excuse procedurally barred claims requires
11 “actual harm resulting from the alleged error.” Vickers v. Stewart, 144 F.3d 613, 617 (9th
12 Cir. 1998). Because the court addressed the merits of the claim and denied it as an
13 alternative holding, Petitioner has not established prejudice that resulted from the state
14 court’s imposition of the procedural bar. In addition, procedural default is not nullified
15 even where, as here, the state court reaches a decision on the merits of the claim as an
16 alternative holding. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989). As such, the Court
17 agrees with the Magistrate Judge’s finding that the state has met its burden under Bennett
18 to plead the existence of an independent and adequate state procedural bar.
19 Thus, the Court agrees with the Magistrate Judge that Petitioner has failed to
20 overcome the procedural bar by demonstrating some “objective factor” that precluded
21 him from raising his claims in state court. Therefore, it follows that Petitioner has not
22 established cause for the default under Coleman, and his claim regarding the removal of
23 Juror No. 8 is procedurally defaulted.
24 2. Merits
25 Even if Petitioner’s claim about the removal of Juror No. 8 was not procedurally
26 defaulted, this Court agrees with the Report and also finds that the claim is meritless.
27 During the defense portion of the case, Dr. Roy Malpass testified as an expert in
28 eyewitness identification. Dr. Malpass had previously conducted experiments regarding
1 the accuracy of eyewitness identification and lineups while he worked at the University
2 of Texas at El Paso. Pet., Dkt. No. 1-3 at 4. At trial in this instant matter, he testified
3 generally about the unreliability of eyewitness testimony and specifically about the
4 unreliability of the identification and biased lineup procedures in Petitioner’s case. Id. at
5 4–5. During a break in the trial, Juror No. 8 asked to speak with the Judge. The
6 following exchange took place in chambers:
7 THE COURT: We’re in my office with the two attorneys, the reporter and
[the Juror]. Yes, sir. Go ahead. Tell us what your concerns are.
8
9 JUROR NO. 8: The last witness stated that he was a professor at the
University of Texas at El Paso, and I believe I am now a biased juror
10
because of that, because I actually attended the University of Texas at El
11 Paso as a student, and I was a participant in some of the psychological
studies that were discussed.
12
13 THE COURT: Do you recognize him?
14
JUROR NO. 8: I do not recognize him. I do not recognize his name, but my
15 fear is that the atmosphere of the researchers that he was a part of influenced
me in the past, and it has helped me form an opinion, you know, that is
16
biased in the favor of the defense.
17
THE COURT: Okay. Let’s see. Mr. Rumble, do you have any questions
18
you would like to ask the Juror?
19
MR. RUMBLE: So what do you mean by biased?
20
21 JUROR NO. 8: I feel like I have already formed an opinion of the – once
the prosecutor rested, I felt I already formed a good solid opinion, and unless
22
something else changed, then I almost knew which was I was going to cast
23 my ballot for. But now that this witness has come up, I kind of feel guilty. I
feel that I would feel guilty voting in that particular way. I’m not sure if it’s
24
appropriate to discuss how I would find the case.
25
THE COURT: No. I think we probably can infer it from what you said. I
26
don’t know that we need to go into that. Let me ask you this: When were
27 you there and participating in those studies?
28
1 JUROR NO. 8: Well, there was two periods when I was a student at the
University of El Paso. I was a student between 1999 and 2000, also from
2
2006 to 2009, and it was during 1999 and 2000 when I participated in a
3 psychological – psychology class, introduction to psychology. And part of
the curriculum of that class was essays. And in lieu of writing an essay, you
4
can participate in psychological studies, and I participated in a number of
5 those, including studies that involved eyewitness identification.
6
THE COURT: Okay. You will only – bias means that you can’t be fair
7 anymore. It doesn’t mean you have a difference in evidence, and you have
to resolve that. Do you think that you are so biased, really, against the
8
prosecutor now?
9
JUROR NO. 8: I believe so. I would feel very bad if I was forced to render
10
a verdict. I’d constantly be questioning myself whether or not I made the
11 right decision.
12
THE COURT: Mr. Rumble, any other questions?
13
MR. RUMBLE: No thanks.
14
15 THE COURT: Mr. Prosecutor, any questions?
16
MR. OJEIL: No.
17
THE COURT: Thank you for your candor. But you don’t recognize the
18
professor?
19
JUROR NO. 8: I do not recognize the professor.
20
21 THE COURT: Did you go through the types of studies he describes where
something happens?
22
23 JUROR NO. 8: Yes. And followed up after on it. Afterwards, followed up
on the studies. And, like, in the years I followed it, I heard stuff, you know,
24
say, like, reports that had – that were related to those studies, and it would
25 pique my curiosity because of my involvement in them. I would read up on
the reports. I would read their findings that eyewitnesses were very
26
unreliable, according to those studies, and so that influenced my
27 development while I was – from the late teenage years through my 20’s to
form that opinion.
28
1
THE COURT: Thanks.
2
3 Lodgment No. 7, Vol. 6 at 877–80.
4 At the conclusion of this colloquy, the prosecutor told the judge that the juror
5 should be replaced. The defense attorney did not object. Id. at 880–81. Subsequently,
6 the judge excused Juror No. 8. Id. at 881.
7 The Sixth Amendment to the United States Constitution guarantees a criminal
8 defendant “the right to a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irwin v.
9 Dowd, 366 U.S. 717, 722 (1961). A fair trial requires that a jury reach a verdict based
10 only on the evidence presented at trial. Turner v. Louisiana, 379 U.S. 466, 472 (1965). In
11 California, the mechanism for protecting this right is California Penal Code § 1089,
12 which authorizes a trial judge to replace a juror when that juror “dies or becomes ill, or
13 upon other good cause shown to the court is found to be unable to perform his or her
14 duty, or if a juror requests a discharge and good cause appears therefor.” Cal. Penal Code
15 § 1089 (West 2003). The Ninth Circuit has found California Penal Code § 1089 complies
16 with the Sixth Amendment’s requirements. Bell v. Uribe, 748 F.3d 857, 869 (9th Cir.
17 2014). Accordingly, where, as here, a petitioner challenges a California trial court’s
18 removal of a juror, the question is whether the application of California Penal Code §
19 1089 violated a petitioner’s Sixth Amendment rights. Perez v. Marshall, 119 F.3d 1422,
20 1426 (9th Cir. 1997).
21 The Ninth Circuit has recognized that United States Supreme Court authority on
22 the subject of juror bias is “sparse.” Williams v. Johnson, 840 F.3d 1006, 1010 (9th Cir.
23 2016). “Although we know that biased jurors may be dismissed from deliberations
24 without offending the Constitution, we don’t know precisely what it means for a juror to
25 be biased.” Id. (citing United States v. Wood, 299 U.S. 123, 146 (1936)). The Supreme
26 Court has stated, however, that an unbiased juror is one who “can lay aside his
27 impression or opinion and render a verdict based on the evidence presented in court.”
28 Irwin, 366 U.S. at 723 (citing Spies v. People of State of Illinois, 123 U.S. 131 (1887);
1 Reynolds v. United States, 98 U.S. 145 (1878); Holt v. United States, 218 U.S. 245
2 (1910).) “[T]he determination [of bias] is essentially one of credibility, and therefore
3 largely one of demeanor,” and a trial court’s determination about juror bias is entitled to
4 “special deference.” Patton v. Yount, 467 U.S. 1025, 1038 (1984) (citations omitted).
5 Here, Petitioner contends the application of California Penal Code § 1089, and the
6 subsequent removal of Juror No. 8, violated his Sixth Amendment rights because (1) the
7 trial judge’s inquiry was insufficient and (2) the decision was based on an unreasonable
8 determination of the facts. Pet., Dkt. No. 1-2 at 5; Traverse, Dkt. No. 20-1 at 18–20. The
9 state appellate court concluded that even if Petitioner preserved on appeal his claim
10 regarding the removal of Juror No. 8, the trial court properly excused the juror based on
11 bias against the prosecution. Dkt. No. 21-1 at 10. The Magistrate Judge found this
12 conclusion was neither an unreasonable application of clearly established Supreme Court
13 law, nor an unreasonable determination of the facts. Dkt. No. 22 at 16. In his objection,
14 Petitioner again argues that the appellate court and the Magistrate Judge unreasonably
15 denied relief on the merits because the trial judge performed only a superficial inquiry
16 into whether Juror No. 8 was actually biased. In addition, Petitioner argues that while the
17 juror did express some concerns about his ability to be impartial, the juror never formed
18 any final opinions or indicated that he would not engage in deliberations. Dkt. No. 23 at
19 3-4. Therefore, the Petitioner surmises it is impossible to know whether the juror’s
20 request for discharge stemmed from actual bias or from doubts the juror harbored about
21 the sufficiency of the government’s evidence.
22 As the appellate court observed, “‘[A]ctual bias’ is ‘the existence of a state of mind
23 on the part of the juror in reference to the case, or to any of the parties, which will
24 prevent the juror from acting with entire impartiality, and without prejudice to the
25 substantial rights of any party.’” Dkt. 1-3 at 10 (quoting CAL. CODE CIV. PROC. §
26 225(b)(1)(C)). In this case, the Court finds that Juror No. 8 expressed concerns that he
27 was biased against the prosecution, explaining that he attended the university where Dr.
28 Malpass taught, participated in some of the studies involving eyewitness identification
1 that Dr. Malpass had referred to in his testimony, followed up on those studies for years
2 by reading reports, and had “form[ed] an opinion . . .that [was] biased in the favor of the
3 defense.” Lodgment No. 7, Vol. 6 at 877–80. The trial court told the juror that bias did
4 not mean merely resolving a difference in the evidence, but rather that he could no longer
5 be fair. Id. at 879. It then asked the juror if he was biased against the prosecution. Id.
6 The juror responded affirmatively, further stating that he would “feel very bad” if forced
7 to render a verdict. Id.
8 In looking to the juror’s statements, the Court reasonably concludes that he had
9 formed a solid opinion at the close of the prosecution’s case and, due to his participation
10 in some of the studies cited by Dr. Malpass regarding the unreliability of eyewitness
11 testimony, later felt “guilty” about his opinion in light of Dr. Malpass’s testimony,
12 Lodgment No. 7, Vol. 6 at 878, this Court fails to see how additional inquiry would have
13 changed the juror’s opinion. The juror stated if he continued to participate in the trial, he
14 would “constantly be questioning [himself] whether or not [he] made the right decision.”
15 Id. at 879. Given the juror’s statements about his strongly held opinions regarding
16 eyewitness testimony and Dr. Malpass’s testimony, as well as the juror’s own belief that
17 he was biased against the prosecution, it was not unreasonable for the state appellate
18 court to find the trial court’s inquiry into the juror’s bias was sufficient.
19 Furthermore, this Court cannot say the state court’s decision finding the juror was
20 biased was an unreasonable determination of the facts. Because the juror maintained his
21 position even after the trial court made certain the juror understood what bias meant, no
22 further inquiry was necessary. These facts support a conclusion by the state court that
23 Juror No. 8 could not “lay aside his impression or opinion and render a verdict based on
24 the evidence presented in court,” Irwin, 366 U.S. at 723, and that his beliefs or opinions
25 “would prevent or substantially impair the performance of his duties as a juror in
26 accordance with his instructions and his oath,” Wainwright v. Witt, 469 U.S. 412, 433.
27 Beyond the fact that the claim regarding the removal of Juror No. 8 is procedurally
28 barred, the state court’s denial of this claim was neither contrary to, nor an unreasonable
1 application of, clearly established Supreme Court law. 28 U.S.C. § 2254(d)(2). Nor was
2 it based on an unreasonable determination of the facts in light of the evidence presented
3 in the state court proceeding. Id. Therefore, Petitioner’s claim must fail, and habeas
4 relief on this ground is DENIED.
5 B. Ineffective Assistance of Counsel (grounds two and three)
6 Petitioner argues that he received ineffective assistance of trial counsel for two
7 reasons: (1) counsel did not present available alibi evidence which would have supported
8 Petitioner’s mistaken identity defense, Pet., Dkt. No. 1-2 at 6–19; Traverse, Dkt. No. 20-1
9 at 20–23; and (2) counsel failed to object to the removal of Juror No. 8, Pet., Dkt. No. 1-2
10 at 19–23; Traverse, Dkt. No. 20-1 at 23–24.
11 In order to establish that his trial counsel was ineffective under Strickland, a
12 challenger must show: (1) his trial counsel’s performance was deficient; and, (2) trial
13 counsel’s deficient performance prejudiced his defense. Strickland v. Washington, 466
14 U.S. 668 (1984); see also Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (citing
15 Strickland, 466 U.S. at 688, 694). In other words, a petitioner must demonstrate that his
16 “counsel made errors so serious . . . that counsel’s representation fell below an objective
17 standard of reasonableness” under prevailing professional norms. See Strickland, 466
18 U.S. at 687-88. See also Williams v. Taylor, 529 U.S. 362, 363 (2000) (stating it is
19 beyond question that Strickland constitutes “clearly established” precedent governing
20 ineffective assistance of counsel claims.
21 When delving into this inquiry, counsel is strongly presumed to have rendered
22 adequate assistance and used reasonable professional judgment when making decisions.
23 Id. at 690. Ninth Circuit precedent further makes clear that “[r]eview of counsel’s
24 performance is highly deferential and there is a strong presumption that counsel’s
25 conduct fell within the wide range of reasonable representation.” Hensley v. Crist, 67
26 F.3d 181, 184 (9th Cir. 1995). And “even under de novo review, the standard for judging
27 counsel's representation is a most deferential one.” Harrington v. Richter, 562 U.S. 86,
28 105 (2011) (emphasis omitted). This review is conducted from counsel’s perspective at
1 the time of the alleged error, in light of the totality of circumstances. Kimmelman v.
2 Morrison, 477 U.S. 365, 381 (1986).
3 To establish prejudice, defendant must show “there is a reasonable probability that,
4 but for counsel’s unprofessional errors, the result of the proceeding would have been
5 different. A reasonable probability is a probability sufficient to undermine confidence in
6 the outcome.” Strickland, 466 U.S. at 694. That counsel’s errors “‘had some
7 conceivable effect on the outcome’” is not enough. Harrington, 562 U.S. at 104 (quoting
8 Strickland, 466 U.S. at 693). Further, Strickland requires “[j]udicial scrutiny of counsel’s
9 performance . . . be highly deferential.” Id. at 689. There is a “strong presumption that
10 counsel’s conduct falls within a wide range of reasonable professional assistance.” Id. at
11 686–87. The Court need not address both the deficiency prong and the prejudice prong if
12 the defendant fails to make a sufficient showing of either one. Id. at 697.
13 1. Failure to Call Alibi Witnesses
14 Petitioner argues counsel should have called three witnesses—two of Grey’s
15 sisters, Coquise and Chikia Flournoy, and the sisters’ friend of many years, Justice
16 Williams—to establish that Petitioner was at his mother’s home caring for his daughter at
17 the time of the shooting. Pet., Dkt. No. 1-2 at 13–19; Traverse, Dkt. No. 20-1 at 21–23.
18 According to Petitioner, these witnesses, in conjunction with Dr. Malpass’s testimony
19 regarding the unreliability of eyewitness testimony, would have bolstered his contention
20 at trial that he was the victim of mistaken identification. Pet., Dkt. No. 1-2 at 13–19;
21 Traverse, Dkt. No. 20-1 at 21–23. Petitioner attached declarations from the three
22 witnesses to the petition for a writ of habeas corpus he filed in the California Supreme
23 Court as Exhibits E, F, and G as support for his claim. Pet’rs Lodgment No. 1, Dkt. No.
24 2-1 at 81–83.
25 The Magistrate Judge found that trial counsel reasonably concluded none of the
26 proposed witnesses would have been helpful to the defense and may have even been
27 detrimental. Dkt. No. 22 at 19. Not only could the witnesses not provide a strong alibi
28 for Petitioner, but also, on cross examination, the prosecutor would have exposed their
1 connections to Bennett and Velasquez and their motivation for testifying in Petitioner’s
2 favor. Id. Moreover, the Magistrate Judge found there was no reasonable probability the
3 result of Petitioner’s trial would have been different had the witnesses testified. Id. In
4 response to the Magistrate Judge’s Report, Petitioner concedes that while it is true the
5 witnesses could not conclusively establish where Petitioner was at the date and time of
6 the shooting, they nevertheless would have offered meaningful testimony about the
7 events not long before the shooting. Dkt. No. 23 at 5. Had counsel presented the
8 testimony of the three alibi witnesses, Petitioner argues, there is a reasonable probability
9 that the outcome of the trial would have been different. Id.
10 The Court agrees with the Magistrate Judge’s Report. Specifically, the Court finds
11 that none of the witnesses could provide exculpatory testimony. In addition, it is unlikely
12 that the jury would have given their testimony much weight in light of their relationships
13 to Petitioner and the biases which would have been exposed on cross examination. As
14 such, the Court finds that Petitioner cannot demonstrate that trial counsel’s failure to call
15 alibi witnesses fell below an objective standard of reasonableness. Moreover, the record
16 does not suggest the declarations were significant to the outcome of the trial so as to have
17 prejudiced the defense. Thus, the Court finds that Petitioner’s counsel acted in a manner
18 that reasonably satisfies Strickland’s deferential standard. Harrington, 562 U.S. at 105.
19 Even if counsel’s actions “fell below an objective standard of reasonableness,” Petitioner
20 does not show the “deficient performance prejudiced the defense.” Strickland 466 U.S. at
21 687–88.
22 For the foregoing reasons, the state court’s denial of this claim was neither
23 contrary to, nor an unreasonable application of, clearly established Supreme Court law.
24 28 U.S.C. § 2254(d)(2). Nor was it based on an unreasonable determination of the facts
25 in light of the evidence presented in the state court proceeding. Id. Therefore, the Court
26 will DENY habeas relief on this ground.
27 2. Failure to Object to the Removal of Juror No. 8
28
1 Petitioner claims counsel was ineffective for failing to object to the removal of
2 Juror No. 8. Pet., Dkt. No. 1-2 at 19–23. The Magistrate Judge found it was reasonable
3 for counsel to conclude that any objection to the removal of Juror No. 8 would have been
4 unsuccessful and, in any event, Petitioner did not establish he was prejudiced by
5 counsel’s failure to object. Dkt. No. 22 at 19–20. In his objection, Petitioner contends
6 otherwise: had counsel argued lack of bias of Juror No. 8, there is a reasonable
7 probability the judge would not have excused the juror. Dkt. No. 23 at 6.
8 In order to merit habeas relief under the AEDPA, Petitioner must show that the
9 state court’s ruling that counsel was not ineffective constituted an unreasonable
10 application of Strickland. 28 U.S.C. § 2254(d)(1). As discussed above, the removal of
11 the juror was proper under California law. The juror stated he “form[ed] an opinion . . .
12 that [was] biased in favor of the defense” due to his participation in some of the studies
13 cited by Dr. Malpass regarding the unreliability of eyewitness testimony. Lodgment No.
14 7, Vol. 6 at 877–878. The juror stated if he were forced to render a verdict, he would
15 “constantly be questioning [himself] whether or not [he] made the right decision.” Id. at
16 879. In light of these facts, it was reasonable for the California Supreme Court to
17 summarily deny Petitioner’s ineffective assistance of counsel claim. Counsel reasonably
18 concluded that any objection to the removal of the juror would have been unsuccessful.
19 Strickland, 466 U.S. at 688 (“The proper measure of attorney performance . . . [is]
20 reasonableness under prevailing professional norms.”).
21 Even if counsel’s performance was deficient when he failed to object to the
22 removal of Juror No. 8, Petitioner has not established he was prejudiced by counsel’s
23 failure to do so. Following the questioning of Juror No. 8, the trial judge stated, “I think
24 in view of what he’s saying, that I should excuse him. Do I do that with your – over your
25 objection?” Lodgment No. 7, Vol. 6 at 881. Counsel responded that he would submit on
26 the issue. Id. Here, the trial judge clearly indicated he would excuse Juror No. 8 even if
27 counsel had objected. Thus, the record does not support Petitioner’s assertion that but for
28
1 the counsel’s failure to object to the removal of the juror, there is a reasonable probability
2 the judge would not have excused him.
3 For the foregoing reasons, the state court’s denial of Petitioner’s ineffective
4 assistance of counsel claim for failure to object to the removal of the juror was neither
5 contrary to, nor an unreasonable application of, clearly established Supreme Court law.
6 28 U.S.C. § 2254(d)(2). Nor was it based on an unreasonable determination of the facts
7 in light of the evidence presented in the state court proceeding. Id. Therefore, habeas
8 relief on this ground is DENIED.
9 C. Refusal to Give Jury Instruction on Eyewitness Identification (ground
10 four)
11 Petitioner’s last claim relates to the trial court’s refusal to give an instruction on
12 eyewitness testimony. Specifically, Petitioner asked the trial judge to give a modified
13 version of CALCRIM No. 315 to inform the jury they should view the eyewitness
14 testimony with caution. Pet., Dkt. No. 1-2 at 23; Traverse, Dkt. No. 20-1 at 25–26.
15 Respondent contends the claim is unexhausted because Petitioner did not alert the state
16 court to the federal constitutional basis for his claim. P. & A. Supp. Answer, Dkt. No.
17 14-1 at 17. Respondent also argues the claim should nevertheless be rejected as
18 meritless. Id. The Magistrate Judge found that although Petitioner in his state court
19 filings did not explicitly state that failure to give the requested instruction violated his
20 federal constitutional rights, the claim is technically exhausted. Dkt. No. 22 at 21.
21 However, the Magistrate Judge concluded the claim, although exhausted, was
22 procedurally defaulted and that Petitioner fails to overcome the default. Id. at 21–22. In
23 any event, the Magistrate Judge notes, Petitioner’s claim fails on the merits. Id. at 22.
24 1. Procedural Default
25 “[I]f a claim is unexhausted but [independent and adequate] state procedural rules
26 would now bar consideration of the claim, it is technically exhausted but will be deemed
27 procedurally defaulted unless the petitioner can show cause and prejudice.” Cooper v.
28 Neven, 641 F.3d 322, 327 (9th Cir. 2011); Coleman, 501 U.S. 722, 735, n. (1991). The
1 procedural bar of In re Dixon, 41 Cal. 756, 759 (1953) (a defendant cannot raise a claim
2 in a habeas corpus petition that he could have, but did not, raise on appeal), and
3 California’s timeliness rule, as explained in In re Robbins, 18 Cal. 4th 770, 780 (1998),
4 have both been deemed independent and adequate state procedural bars. Johnson v. Lee,
5 __ U.S. __, 136 S. Ct. 1802, 1805 (2016) (per curiam); Walker v. Martin, 562 U.S. 307,
6 317 (2011). To overcome the procedural default, Petitioner must establish cause and
7 prejudice or that a fundamental miscarriage of justice has occurred. Coleman, 501 U.S.
8 at 750.
9 As discussed above in section, “cause” for the purposes of procedural default
10 constitutes some “objective factor” that precluded Petitioner from raising this claim in
11 state court, such as interference by state officials or constitutionally ineffective counsel.
12 McClesky, 499 U.S. at 493–94. Prejudice means “actual harm resulting from the alleged
13 error.” Vickers, 144 F.3d at 617. The “miscarriage of justice” exception requires a
14 petitioner to show that “a constitutional violation has probably resulted in one who is
15 actually [and factually] innocent.” Schlup, 513 U.S. at 327; Wood, 130 F.3d at 379
16 (“actual innocence” means factual innocence, not simply legal insufficiency).
17 Petitioner does not allege any objective factor that precluded him from raising the
18 federal aspect of his jury instruction claim in state court, and thus he has not established
19 cause for the default. Nor has Petitioner shown he was prejudiced by the imposition of
20 the procedural bar because the claim fails on the merits, as discussed below. Also,
21 because Petitioner has not presented sufficient evidence to establish he is actually
22 innocent of the charges for which he was convicted, Petitioner fails to establish that a
23 fundamental miscarriage of justice would occur if the claim is not addressed. See
24 Coleman, 501 U.S. at 750; Schlup, 513 U.S. at 327. Therefore, the procedurally
25 defaulted claim is not excused.
26 2. Merits
27 Even if Petitioner’s claim regarding trial court’s refusal to give a modified jury
28 instruction was not procedurally defaulted, the claim still fails on the merits.
1 Instructional error can form the basis for federal habeas corpus relief only if it is shown
2 that “‘the ailing instruction by itself so infected the entire trial that the resulting
3 conviction violates due process.’” Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir.
4 2001) (citing Cupp v. Naughten, 414 U.S. 141, 146 (1973)); see also Henderson, 431
5 U.S. at 154. The allegedly erroneous jury instruction cannot be judged in isolation,
6 however. Estelle v. McGuire, 502 U.S. 62, 72 (1991). Rather, it must be considered in
7 the context of the instructions as a whole and the trial record. Id.
8 “An omission, or an incomplete instruction, is less likely to be prejudicial than a
9 misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977). “The
10 significance of the omission of such an instruction may be evaluated by comparison with
11 the instructions that were given.” Id. at 156.
12 The trial court gave the jury a modified version of CALCRIM No. 315 which
13 addresses eyewitness testimony. It instructed the jury as follows:
14 You have heard eyewitness testimony identifying the defendant. Each
of you alone must evaluate the credibility of the witnesses. As with any
15
other witness, you must decide whether an eyewitness gave truthful and
16 accurate testimony. Consider the possibility that a witness made an honest
but mistaken identification.
17
18 In evaluating identification testimony, consider all of the evidence,
including but not limited to the following questions:
19
20 • Did the eyewitness know or have contact with the defendant
before the event?
21
• How well could the witness see the perpetrator?
22
• What were the circumstances affecting the witness’s ability to
23 observe, such as lighting, weather conditions, obstructions,
distance between the witness and the perpetrator at the time of
24
the observation, and duration of observation?
25 • How closely was the witness paying attention?
26 • Was the witness under stress when he or she made the
observation?
27
• Did the witness give a description and how does that
28 description compare to the defendant?
1 • How much time passed between the event and the time when
the witness identified the defendant?
2
• Was the witness ever asked to pick the perpetrator out of a
3 group?
4 • Did the witness ever fail to identify the defendant?
5 • Did the witness ever change his or her mind about the
identification?
6
• Are the witness and the defendant of different races?
7 • Was the witness able to accurately identify other participants in
8 the crime?
• Was the witness able to identify the defendant in a
9
photographic or physical lineup?
10 • What was the construction and presentation of the lineup shown
11 to the witness?
• Were there any other circumstances affecting the witness’s
12
ability to make an accurate identification?
13
14 The People have the burden of proving beyond a reasonable doubt
that it was the defendant who committed the crime. If the People have not
15 met this burden, you must find the defendant not guilty.
16
17 Lodgment No. 8, Vol. 2 at 379–80.
18 Defense counsel requested the trial judge add the following language to the
19 instruction: “You must view eyewitness testimony with caution and evaluate it carefully.”
20 Lodgment No. 7, Vol. 7 at 990. The trial judge declined to do so because he believed the
21 requested instruction to be argumentative and thus properly belonging in the arguments
22 of counsel to the jury rather than in instructions. Id. at 992. Furthermore, the judge
23 believed CALCRIM No. 301, which cautions the jury to carefully review all the evidence
24 when a fact is proven by only one witness, sufficiently addressed trial counsel’s concern.
25 Id. at 990.
26 In considering the jury instructions as a whole, as the Court is required to do under
27 Estelle, this Court cannot find that the failure to give Petitioner’s requested instruction
28 addition “so infected the entire trial that the resulting conviction violates due process.”
1 Murtishaw, 255 F.3d at 971; Henderson, 431 U.S. at 154. In his objection, Petitioner
2 argues the omission of the cautionary language had a substantial and injurious effect or
3 influence in determining the jury’s verdict. Dkt. No. 23 at 7. However, the jury was
4 already instructed on the factors affecting the reliability of an eyewitness identification
5 with CALCRIM No. 315. Lodgment No. 8, Vol. 2 at 379–80. The trial court also
6 instructed the jurors with CALCRIM No. 301, which cautioned the jury that they should
7 carefully review all of the evidence before concluding that the testimony of only one
8 witness proves a fact. Lodgment No. 7, Vol. 7 at 1050. Moreover, the jury heard
9 testimony from the defense expert, Mr. Malpass, about the problems with eyewitness
10 identifications in general and the identification in Petitioner’s particular case. Lodgment
11 No. 7, Vol. 6 at 853, 858–99. And finally, the defense counsel focused the jury’s
12 attention on these issues during closing argument. Lodgment No. 7, Vol. 7 at 1136–50.
13 As such, the Court finds that the given instructions, Dr. Malpass’s expert testimony, and
14 the argument of defense counsel collectively addressed the issues relevant to the
15 reliability of eyewitness identification and more than properly informed the jurors of their
16 duty to carefully consider the evidence. An additional cautionary instruction on
17 eyewitness evidence would be redundant and perhaps even argumentative.
18 As such, the trial court’s refusal to give Petitioner’s requested instruction regarding
19 eyewitness identification did not infect the trial with unfairness so as to violate due
20 process. Accordingly, this Court finds Petitioner’s claim inappropriate for habeas relief.
21 D. Evidentiary Hearing
22 The Magistrate Judge concluded Petitioner is not entitled to an evidentiary hearing.
23 Dkt. No. 22 at 26. Petitioner did not contend otherwise in his objection. Evidentiary
24 hearings in § 2254 cases are governed by AEDPA, which “substantially restricts the
25 district court’s discretion to grant an evidentiary hearing.” Baja v. Ducharme, 187 F.3d
26 1075, 1077 (9th Cir. 1999). The provisions of 28 U.S.C. § 2254(e)(2) control this
27 decision:
28
1 (2) If the applicant has failed to develop the factual basis of a claim in
State court proceedings the court shall not hold an evidentiary hearing on the
2
claim unless the applicant shows that –
3 (A) the claim relies on –
(i) a new rule of constitutional law, made
4
retroactive to cases on collateral review by the
5 Supreme Court, that was previously unavailable;
or
6
(ii) a factual predicate that could not have
7 been previously discovered through the exercise of
due diligence; and
8
(B) the facts underlying the claim would be sufficient to
9 establish by clear and convincing evidence that but for the
constitutional error, no reasonable factfinder would have found
10
the applicant guilty of the underlying offense.
11
12 28 U.S.C. § 2254(e)(2).
13 In order to determine whether to grant an evidentiary hearing, the court must first
14 “determine whether a factual basis exists in the record to support the petitioner’s claim.”
15 Insyxiengmay v. Morgan, 403 F.3d 657, 669 (9th Cir. 2005) (citing Baja, 187 F.3d at
16 1078). If not, the court must “ascertain whether the petitioner has ‘failed to develop the
17 factual basis of the claim in State court.’” Id. at 669–70. A failure to develop the factual
18 basis of a claim in state court implies “some lack of diligence, or some greater fault,
19 attributable to the prisoner or the prisoner’s counsel.” See Williams v. Taylor, 529 U.S.
20 420, 432 (2000). The Supreme Court has said that “[d]iligence will require in the usual
21 case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the
22 manner prescribed by state law.” Id. at 437.
23 Petitioner is limited to the facts presented to the state court. Cullen v. Pinholster,
24 563 U.S. 170 (2011). In Pinholster, the Supreme Court held that where habeas claims
25 have been decided on their merits in state court, a federal court’s review must be confined
26 to the record that was before the state court. Id. at 181–82. Petitioner can only proceed
27 to develop additional evidence in federal court if either § 2254(d)(1) or (d)(2) is first
28 satisfied. See Sully v. Ayers, 725 F.3d 1057, 1076 (9th Cir. 2013) (stating “an evidentiary
1 || hearing is pointless once the district court has determined that § 2254(d) precludes habeas
2 ||relief’ and citing Pinholster, 563 U.S. at 203, n. 20). Here, for all the reasons discussed
3 || above, Petitioner fails to overcome § 2254(d)’s limitation on habeas relief. Accordingly,
4 || this Court DENIES Petitioner’s request for an evidentiary hearing.
5 IV. CERTIFICATE OF APPEALABILITY
6 Rule 11 of the Federal Rules Governing § 2254 Cases provides that “[t]he district
7 court must issue or deny a certificate of appealability when it enters a final order adverse
8 ||to the applicant.” A certificate of appealability should be issued only where the petition
9 || presents “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
10 2253(c)(2). A certificate of appealability “should issue when the prisoner shows . . . that
11 jurists of reason would find it debatable whether the petition states a valid claim of the
12 || denial of a constitutional right and that jurists of reason would find it debatable whether
13 || the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
14 (2000).
15 The Court concludes that Petitioner has not made a substantial showing of the
16 denial of a constitutional right, and that jurists of reason would not find it debatable
17 || whether the district court was correct in its procedural ruling. See id. Accordingly, the
18 Court DENIES a certificate of appealability.
19 CONCLUSION
20 For the reasons set forth above, the Court ADOPTS the Magistrate Judge’s Report
21 |}and Recommendation, DENIES Petitioner’s request for an evidentiary hearing,
22 || OVERRULES Petitioner’s objections, DENIES the petition for a writ of habeas corpus,
23 DENIES a certificate of appealability.
24 IT IS SO ORDERED.
25 ||Dated: October 15, 2019 <=
27 United States District Judge
28