Frando v. Gore

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 DANIEL FRANDO, Case No.: 21-cv-01434-JLS-KSC

12 Petitioner,

REPORT AND

13 v. RECOMMENDATION FOR

ORDER DENYING PETITION

14 BILL GORE, et al.,

FOR HABEAS CORPUS

15 Respondents.

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[Doc. No. 1]

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18 On August 11, 2021, petitioner Daniel Frando (“Frando” or “petitioner”), a state

19 prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

20 § 2254 challenging his conviction in the San Diego Superior Court for transportation of a

21 controlled substance, cocaine, for sale (the “Petition” or “Pet.”). Doc. No. 1. The Petition

22 raises four grounds for relief: (1) that the Border Patrol’s detention of petitioner was not

23 based on “particularized facts” as is necessary for reasonable suspicion under the Fourth

24 Amendment, and as such the trial court’s denial of petitioner’s motion to suppress evidence

25 gathered during this stop was error; (2) that there was insufficient evidence to support

26 petitioner’s conviction; (3) that the trial court’s erroneous admission of expert evidence

27 deprived petitioner of a fair trial in violation of his right to Due Process; and (4) that

28 petitioner was deprived of his constitutional right to a fair trial due to prosecutorial

1 misconduct. Pet. at 6-9. Respondents answered the petition (the “Answer”). Doc. No. 13.

2 Petitioner has not filed a traverse.

3 The Court has reviewed the Petition, respondents’ Answer and supporting

4 Memorandum of Points and Authorities, and the Lodgments submitted by respondents,

5 including the state court record, and hereby submits this Report and Recommendation to

6 United States District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b) and Civil

7 Local Rules 72.1(d) and HC.2. The Court has considered the arguments of the parties, the

8 applicable law, and the record before it, and, for the reasons stated below,

9 RECOMMENDS that the District Court DENY the Petition.

10 I. FACTUAL BACKGROUND

11 In reviewing a federal petition for writ of habeas corpus, federal courts defer to state

12 court findings of fact and presume them to be correct. See 28 U.S.C. § 2254(e)(1); see also

13 Parke v. Raley, 506 U.S. 20, 35–36 (1992) (holding findings of historical fact, including

14 inferences properly drawn from such facts, are entitled to statutory presumption of

15 correctness). The California Court of Appeal’s unpublished decision denying petitioner’s

16 direct appeal in Case No. D075481 sets forth the following summary of the facts:

17 Border Patrol Agent Oliver O. has patrolled the San Clemente station and

immigration checkpoint for over seven years. His duties include inspecting

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that stretch of the I-5 freeway for behavior suggesting individuals are violating

19 United States immigration laws or engaging in criminal activity. That stretch

of freeway is known as a high-narcotics trafficking area, as it connects Mexico

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to the interior of the United States. While on roving patrol, Agent O. and his

21 partner were in a marked border patrol vehicle parked just north of the

checkpoint. His attention was drawn to Frando’s vehicle because of the

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“nervous” behavior Frando displayed when he noticed the agents’ marked

23 vehicle. After he noticed the agents, Frando immediately placed his hands on

the “ten and two” position of the steering wheel, with his arms “fully

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extended” and “stiffened.” Frando’s behavior was noteworthy because, in the

25 officer’s experience, it was similar to behavior he had witnessed in connection

with previous narcotics arrests and drug seizures. The agents pulled their

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1 marked vehicle onto the freeway to further observe Frando. Frando slowed

his speed, and as soon as the agents pulled behind him, he changed lanes in a

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manner the agent perceived to be unsafe, squeezing himself between two cars

3 where there was very little room and forcing the vehicle behind him to brake.

The agents moved behind Frando, who repeatedly checked his mirrors to

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observe the border patrol vehicle, causing his vehicle to drift between lanes.

5 The agents conducted a vehicle records check which indicated the vehicle had

not crossed the border that day and had not previously been stopped on

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suspicion of smuggling. Frando began to “shake” and “bob” his head and tap

7 his fingers, while his hands remained at the “ten and two” position. The agent

described this behavior as “noteworthy” because he had seen other detainees

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and suspects behaving similarly. Based on Frando’s behavior, the agents

9 decided to pull him over (about five miles north of the checkpoint).

10 Frando presented a California identification card and told the agents he was

11 traveling from San Diego to Los Angeles to “show a friend a house,” but he

was unable to tell the agents where the house was or his friend’s name. Frando

12 consented to a search of his vehicle. The agents discovered two suitcases in

13 the vehicle’s trunk; inside the bags were 33 individually wrapped bundles

containing a total net weight of approximately 33 kilograms of cocaine.

14 Frando was arrested under suspicion of transporting cocaine for sale.

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A detective on the border crime suppression team within the narcotics and

16 gang division of the San Diego County Sheriff’s Department interviewed

Frando. Frando told the detective he was separated from his wife and living

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in his car. After being advised of his rights, Frando told the detective he had

18 never driven drugs before. Frando said he had agreed to drive a woman to Los

Angeles for his acquaintance Alex, who promised to give him $800 for the

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job. When the agent laughed—apparently expressing skepticism at the idea of

20 getting paid $800 for driving someone—Frando acknowledged he “knew it

wasn’t, like, legit.” Frando further stated, “I had no idea, I mean I knew there

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was something bad about those damn bags. Stupid, stupid, stupid.” He then

22 explained the events that unfolded. When he arrived to pick the woman up, he

was directed to back into the garage. A woman was there with her child, and

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there was also a man with tattoos. They closed the garage door, loaded two

24 bags into his trunk, and directed that one bag should be delivered to “address

A,” while the other bag should be delivered to “address C.” They told him he

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would not get the actual address until after he passed the border patrol

26 checkpoint. Frando said the woman was supposed to go with him and he did

not know why that changed. After the detective told Frando he was

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transporting “almost a million dollars of drugs,” Frando offered to cooperate

28 with law enforcement by continuing the delivery so the agents could discover

1 the destination location, stating, “I had no idea that that’s what it is. I mean I

thought it would just be, you know, I kind of knew, but I had no idea it was ...

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shit.” The detective advised Frando that cooperating in that manner was “too

3 dangerous.”

4 The detective testified as an expert at trial, opining that the street value of 33

5 kilograms of cocaine ranged from $1.3 to $2.6 million. Based on his training

and experience, he did not think a first-time drug courier would be given such

6 an extensive amount of cocaine. To prevent the possibility of theft, a drug

7 trafficking organization would typically vet an employee by providing the

employee with smaller amounts of drugs or different tasks until the employee

8 demonstrated his trustworthiness and reliability.

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Frando testified in his own defense at trial. He acknowledged he thought it

10 was “strange” to be paid $800 to drive a woman to Los Angeles but claimed

he “wasn’t under the impression that [he] was doing anything illegal.” Alex

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was a friend of Frando’s good friend Joel, and Alex had contacted Frando

12 attempting to reach Joel. Because Joel was out of the country, Alex asked if

Frando would drive a woman to Los Angeles. Frando agreed. When he arrived

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at a townhouse to pick the woman up, he was directed to back into the garage.

14 He saw a little girl inside, and a woman and a man were there. They closed

the garage and loaded a pair of bags into the trunk. He was told there was a

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change of plans, and he should call to receive the addresses to deliver the bags

16 after he passed the border patrol checkpoint. He admitted he felt

“uncomfortable,” but felt perhaps a family needed his help to bring the bags

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to Los Angeles.

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Frando claimed he told the agents he was going to Los Angeles to show a

19 house because he had a restricted driver’s license allowing him to drive only

20 between home and work. He feared losing his car or his license for driving in

violation of the restriction. After the agents searched his trunk, they told him

21 he was being arrested for drug trafficking. He stated that he “should have

22 known there was something wrong” with the job he was being asked to do but

insisted he did not know there were 30 kilograms of cocaine in his car.

23 However, on cross-examination, he admitted part of the reason he suspected

24 “something was wrong” was because he knew that “Alex runs drugs to Joel,”

and Joel had told him he “engage[d] in these unsavory jobs, these driving jobs

25 for Alex.”

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27 Doc. No. 14-12 at 2-6. The Court notes that petitioner does not challenge the findings of

28 fact in the underlying proceedings.

1 II. PROCEDURAL HISTORY

2 On November 6, 2018, the jury found petitioner guilty of the crime of transportation

3 of a controlled substance, cocaine, for sale.2 Doc. No. 14-6 at 4-5. The jury also found two

4 enhancing allegations true: that the weight of the controlled substance was 57 grams or

5 more of a substance containing cocaine,3 and that the substance containing cocaine

6 exceeded 20 kilograms by weight.4 Id. at 5. On January 28, 2019, the trial court sentenced

7 petitioner to eight years in custody and ten years’ supervised probation, for a total sentence

8 of 18 years. Doc. No. 14-7 at 15.

9 Petitioner filed a Notice of Appeal on March 4, 2019. Doc. No. 14-8 at 11. In his

10 opening brief on appeal, filed August 11, 2019, petitioner challenged his conviction on four

11 grounds: (1) his detention by the Border Patrol agents was not based on a reasonable

12 suspicion and therefore violated the Fourth Amendment; (2) there was insufficient

13 evidence to support the conviction; (3) the trial court erroneously admitted Detective

14 Bedingfield’s opinion testimony; and (4) the prosecutor’s misconduct deprived him of a

15 fair trial. See generally id. at 19-63. The California Court of Appeal denied petitioner’s

16 appeal on May 27, 2020. See generally Doc. No. 14-12.

17 Petitioner sought review from the California Supreme Court on July 4, 2020. See

18 generally Doc. No. 14-13. The California Supreme Court summarily denied the petition

19 for review on August 12, 2020. Doc. No. 14-14.

20 Petitioner sought relief in this Court by Petition dated August 11, 2021. See

21 generally Doc. No. 1. In support of his Petition for issuance of a writ of habeas corpus,

22 petitioner raises the same arguments he raised before the state Court of Appeal and

23 Supreme Court.

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2 Cal. Health & Safety Code § 11352(a).

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3 Cal. Penal Code § 1203.073(b)(1) (repealed effective January 1, 2022).

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1 III. STANDARD OF REVIEW

2 Federal habeas corpus relief is available only to those who are in custody in violation

3 of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). The Supreme Court

4 has repeatedly emphasized that because “it is not the province of a federal habeas court to

5 reexamine state-court determinations on state law questions,” a writ of habeas corpus may

6 not issue “for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (collecting

7 cases). To determine whether petitioner is entitled to habeas corpus relief, the Court

8 reviews the Petition according to the provisions of the Antiterrorism and Effective Death

9 Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under

10 AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the

11 merits by the state court unless that adjudication: (1) resulted in a decision that was contrary

12 to, or involved an unreasonable application of, clearly established federal law, as

13 determined by the Supreme Court of the United States; or (2) resulted in a decision that

14 was based on an unreasonable determination of the facts in light of the evidence presented

15 at the State court proceedings.5 28 U.S.C. § 2254(d)(1)&(2); see also Early v. Packer, 537

16 U.S. 3, 11 (2002).

17 This standard is highly deferential and “difficult to meet.” Harrington v. Richter,

18 562 U.S. 86, 100 (2011). The Court must determine whether the state court’s application

19 of Supreme Court precedent was “objectively unreasonable, not merely wrong; even ‘clear

20 error’ will not suffice.” See Robertson, 849 F.3d at 1182. In other words, the “question” on

21 habeas review “ʻis not whether a federal court believes the state court’s determination …

22 was incorrect but whether that determination was unreasonable – a substantially higher

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25 5 “Clearly established federal law is limited to ‘the holdings, as opposed to the dicta, of the [Supreme]

Court’s decisions’ [citation], and ʻ[c]ircuit precedent cannot refine or sharpen a general principle of

26 Supreme Court jurisprudence into a specific legal rule that [the Supreme Court] has not announced.’”

Robertson v. Pinchon, 849 F.3d 1173, 1182 (9th Cir. 2017) (citations omitted) (alterations in the original).

27 Therefore, a lack of controlling Supreme Court precedent can preclude habeas corpus relief. See Wright

v. Van Patten, 552 U.S. 120, 126 (2008).

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1 threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citation omitted); see also

2 Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (holding federal habeas relief cannot be

3 granted simply because a reviewing court concludes the state court decision is erroneous

4 or incorrect based on its own independent judgment). Habeas relief is available under

5 § 2254(d)(1) only when “there is no possibility fair-minded jurists could disagree that the

6 state court’s decision conflicts with Supreme Court precedents.” Harrington, 562 U.S. at

7 101. These requirements “reflect a ‘presumption that state courts know and follow the

8 law,’” and a corresponding “ʻdemand[] that state-court decisions be given the benefit of

9 the doubt.’” Robertson, 849 F.3d at 1182-83 (citations omitted).

10 The Court is “limited” in its review “to the record that was before the state court that

11 adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).

12 Furthermore, the Court “employs a ‘look through’ presumption,” meaning that it presumes

13 the “last reasoned opinion” provides the reason for a higher court’s summary denial of a

14 claim. See Wilson v. Sellers, __ U.S. __, 138 S.Ct. 1188, 1194 (2018) (citations omitted).

15 Because the California Supreme Court denied the petitioner’s appeal without comment,

16 see Doc. No. 14-14, this Court will “look through” to the California Court of Appeal’s

17 decision when evaluating the state court’s reasoning and application of federal law.

18 IV. DISCUSSION

19 As noted, petitioner asserts four separate grounds for habeas relief: (1) the Border

20 Patrol’s stop violated the Fourth Amendment, and that the subsequent search of his vehicle

21 was therefore also unconstitutional, and all evidence gathered during the stop should have

22 been excluded at trial; (2) there was insufficient evidence to support petitioner’s

23 conviction; (3) the trial court’s erroneous admission of expert evidence deprived petitioner

24 of a fair trial; and (4) petitioner was deprived of his constitutional right to a fair trial due to

25 prosecutorial misconduct. See Pet. at 6-9. Petitioner seeks to have his conviction

26 “reversed.” Id. at 6. The Court addresses each of petitioner’s arguments in support of the

27 issuance of a writ of habeas corpus below.

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1 A. Ground One: Unreasonable Stop and Search

2 As a first ground for habeas corpus relief, petitioner asserts that the Border Patrol

3 agents’ decision to detain him based on a “hunch” was not lawful, because the Fourth

4 Amendment requires “reasonable suspicion” based on “particularized facts” to justify a

5 such a stop. Pet. at 6. Petitioner further asserts that because the initial traffic stop violated

6 the Fourth Amendment, the subsequent search of his vehicle was also unlawful, and all

7 evidence from that search should have been suppressed at trial. Id.

8 Respondents counter that petitioner’s Fourth Amendment claims are not cognizable

9 on federal habeas review, because petitioner had a fair opportunity to litigate the claim in

10 state court. Doc. No. 13-1 at 13. Respondents note that petitioner moved to suppress the

11 evidence at trial and argued both to the Court of Appeal and the California Supreme Court

12 that the trial court’s denial of his motion was in error. Id. at 14. Respondents further argue

13 that even if the Court were to consider this claim, the trial court’s determination that the

14 Border Patrol’s detention did not violate the Fourth Amendment was not erroneous because

15 “[t]he border patrol agent properly cited specific, articulable facts which demonstrate a

16 reasonable suspicion that [petitioner] was engaged in illegal activity.” Id. at 15.

17 Federal habeas corpus relief is not available “on the ground that evidence obtained

18 in an unconstitutional search or seizure was introduced at [a petitioner’s] trial” where the

19 petitioner had “an opportunity for full and fair litigation of a Fourth Amendment claim” in

20 the state proceedings. Stone v. Powell, 428 U.S. 465, 494 (1976). Furthermore, the Ninth

21 Circuit has determined that California’s statutory provisions allowing a criminal defendant

22 to move for the suppression of evidence obtained through unreasonable search and seizure

23 provides the required “full and fair” opportunity to litigate a Fourth Amendment claim.

24 See Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990) (finding habeas petitioner had the

25 “opportunity” to litigate his claim because “[u]nder California law, a defendant can move

26 to suppress evidence on the basis that it was obtained in violation of the [F]ourth

27 [A]mendment”). The Court observes that petitioner moved in the trial court to suppress the

28 evidence gathered during the Border Patrol’s stop, and challenged the denial of that motion

1 in his appeals both the Court of Appeal and the California Supreme Court. See Doc. No.

2 14-8 at 19-31; Doc. No. 14-13 at 8-10. Petitioner has not raised grounds for review by this

3 Court beyond the trial court’s decision on his motion to suppress evidence. See Pet. at 6

4 (“The trial court’s denial of the motion to suppress evidence was in error.”). Therefore, the

5 Court finds petitioner had a full and fair opportunity to litigate his Fourth-Amendment

6 claim, and therefore that this claim is not cognizable on federal habeas review.

7 Moreover, even if the Court were to reach the merits of petitioner’s allegation that

8 the Border Patrol agents’ stop and subsequent search violated the Fourth Amendment, the

9 Court finds petitioner would not be entitled to relief. Petitioner does not address the

10 standard of federal habeas review and does not identify any federal precedent inconsistent

11 with the Court of Appeal’s decision. The Supreme Court has recently reiterated that its

12 “precedents … permit[] an officer to initiate a brief investigative traffic stop when he has

13 ‘a particularized and objective basis for suspecting the particular person stopped of

14 criminal activity.’” Kansas v. Glover, __ U.S. __, 140 S.Ct. 1183, 1187 (2020) (citations

15 omitted). The Supreme Court also explained that “the level of suspicion” required under

16 these precedents “‘is obviously less than is necessary for probable cause.’” Id. (citation

17 omitted). Under Supreme Court jurisprudence, “nervous, evasive behavior is a pertinent

18 factor in determining reasonable suspicion,” Illinois v. Wardlow, 528 U.S. 119, 125 (2000),

19 and law enforcement officers are “entitled” to draw on their “specialized training” and

20 experience. U.S. v. Arvizu, 534 U.S. 266, 276 (2002), overruled in part on other grounds

21 by Davis v. Washington, 547 U.S. 813 (2006). In light of these precedents, the Court cannot

22 find that the denial of petitioner’s motion to suppress, and the subsequent affirmance of

23 that decision by the Court of Appeal, are contrary to federal law.

24 For the foregoing reasons, the Court recommends the petition be DENIED as to the

25 first ground for relief.

26 B. Ground Two: Insufficient Evidence to Support Conviction

27 As a second ground for habeas corpus relief, petitioner asserts that there was

28 insufficient evidence to support his conviction, because he denied that he knew there were

1 drugs in the suitcases he transported. Pet. at 7. Petitioner states that although he suspected

2 that the task of transporting the suitcases across the border “might not be ‘legit,’” he

3 nevertheless did not know what was inside the suitcases, and the only evidence of his

4 knowledge adduced at trial was “speculative.” Id.

5 Respondents state that petitioner bears the heavy burden of demonstrating that “no

6 ‘rational trier of fact could have found the essential elements of the crime beyond a

7 reasonable doubt.’” Doc. No. 13-1 at 16 (citing Jackson v. Virginia, 443 U.S. 307, 317

8 (1979)). Respondents argue that petitioner cannot meet that burden here, because

9 circumstantial evidence supported the reasonable inference that petitioner “knew he was

10 transporting illegal contraband.” Id. at 18-19. Respondents further contend that the Court

11 of Appeal did not unreasonably apply Jackson or any other Supreme Court precedent in

12 finding there was sufficient evidence to support petitioner’s conviction. Id.

13 “Jackson claims face a high bar in federal habeas corpus proceedings because they

14 face two layers of judicial deference.” See Coleman v. Johnson, 556 U.S. 650, 651 (2012).

15 First, when there has been a conviction, the court asks “whether, after viewing the evidence

16 in the light most favorable to the prosecution, any rational trier of fact could have found

17 the essential elements of the crime beyond a reasonable doubt.” See Jackson, 443 U.S. at

18 319; see also McDaniel v. Brown, 558 U.S. 120, 133 (2010). The court “must presume –

19 even if it does not affirmatively appear in the record – that the trier of fact resolved any

20 such conflicts in favor of the prosecution, and must defer to that resolution.” See Jackson,

21 443 U.S. at 326. Second, the court must determine whether the state court decision was

22 objectively unreasonable when applying Jackson. See Coleman, 556 U.S. at 651.

23 Regarding the first layer, “[i]nsufficient evidence claims are reviewed by looking at

24 the elements of the offense under state law.” See Emery v. Clark, 643 F.3d 1210, 1214

25 (2011). In California, it is unlawful for an individual to transport, offer to transport, or

26 import any controlled substance, such as cocaine, into the state. See Cal. Health & Saf.

27 Code §1152(a). The prosecution must prove: “(1) the defendant transported for sale a

28 controlled substance; (2) the defendant knew of its presence; (3) the defendant knew of the

1 substance’s nature or character as a controlled substance; (4) the controlled substance

2 transported was transported for sale; (5) the transported substance was cocaine; and (6) the

3 controlled substance was in a usable amount.” See Cal. Crim. No. 2300; see also People v.

4 Meza, 38 Cal. App. 4th 1741, 1746 (1995). Every element must be proved beyond a

5 reasonable doubt. See Jackson, 443 U.S. at 315.

6 Petitioner argues that elements two and three were not proved by the prosecution

7 because although he testified that he agreed to transport the suitcases, he did not know what

8 was in the suitcases. Pet. at 7. However, although petitioner testified to that effect, the jury

9 was entitled to believe or disbelieve petitioner’s testimony. See Jackson, 443 U.S. at 326.

10 It is not this Court’s function to assess petitioner’s credibility or to opine as to how the jury

11 should have weighed his testimony. See United States v. Nevils, 598 F.3d 1158, 1170 (9th

12 Cir. 2010); see also United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972) (“It is

13 not our function to reweigh the evidence and pass on the credibility of the witnesses.”).

14 Assuming the jury disbelieved petitioner’s testimony and reviewing the record as a

15 whole, the Court of Appeal concluded that “there was sufficient circumstantial evidence

16 for the jury to infer Frando was aware of the presence and illegal character of the

17 contraband he was transporting.” Doc. No. 14-2 at 17. The Court of Appeal specifically

18 identified the following evidence supporting the jury’s finding that petitioner knowingly

19 transported the cocaine: (1) petitioner’s “suspicious, evasive behavior” in response to

20 seeing the border patrol agents; (2) petitioner’s false statements to the agents during his

21 detention; (3) petitioner’s admissions that he “knew there was something bad about those

22 damn bags … I kind of knew”; (4) that petitioner was paid $800 by someone petitioner

23 knew to be involved in transporting drugs; (5) petitioner’s admission that events before and

24 during the transaction made him “uncomfortable”; and (6) expert testimony that

25 “unknowing drug couriers would not be trusted with such an extensive amount of

26 narcotics.” Id. at 18-20. The Court of Appeal noted that petitioner testified that he was

27 unaware that the bags contained drugs and offered benign explanations for his behavior

28 when stopped, but “the jury did not find his testimony credible.” Id. at 20.

1 The Court concludes that the California Court of Appeals reasonably applied

2 Jackson. Accordingly, and for the foregoing reasons, the Court recommends the petition

3 be DENIED as to the second ground for relief.

4 C. Ground Three: Admission of Opinion Evidence

5 As a third ground for habeas corpus relief, petitioner asserts that “the trial court erred

6 in admitting [Detective Bedingfield’s] expert testimony without a proper foundation.” Pet.

7 at 8. Petitioner explains that Detective Bedingfield testified at trial over his counsel’s

8 objection that a first-time courier would not have been tasked with transporting 33

9 kilograms of cocaine (the amount of drugs found in petitioner’s car) because drug running

10 organizations “usually try employees out” by giving them small amounts of drugs to

11 transport “before trusting the courier with a large shipment.” Id. at 8. The trial court

12 overruled counsel’s objection that this testimony lacked foundation and was speculative.

13 Id. Petitioner contends that this “error” violated his “federal and state right to constitutional

14 due process.” Id.

15 Respondents counter that petitioner’s claim that the trial court made an incorrect

16 evidentiary ruling “present[s] only issues of state law” and “is not cognizable on federal

17 habeas review.” Doc. No. 13-1 at 25. Moreover, respondents argue, even if the state court’s

18 evidentiary ruling were subject to review by this Court, there is no “clearly established

19 federal law” regarding whether the admission of “irrelevant or overtly prejudicial

20 evidence” deprives a defendant of due process. Id. at 26. The Court of Appeal found that

21 “there was sufficient foundation” for Detective Bedingfield’s testimony “based on his

22 experience, training and education,” and that the trial court did not abuse its discretion by

23 admitting it. Doc. No. 14-12 at 23-24.

24 “Federal habeas courts do not review questions of state evidentiary law.” Briceno v.

25 Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009). Thus, to the extent petitioner’s claim

26 challenges the state court’s application of state evidentiary law, respondents are correct

27 that such a claim is not cognizable in federal habeas corpus. Doc. No. 13-1 at 26. Even if

28 this Court “‘belie[ved] that the trial judge incorrectly interpreted the California Evidence

1 Code in ruling’ on the admissibility of evidence,” it is not within the Court’s power to

2 vacate petitioner’s conviction based on that belief. Briceno, 555 F.3d at 1077 (citing Estelle

3 v. McGuire, 502 U.S. 62, 67-68 (1991)).

4 To the extent petitioner’s claim asserts a federal due process violation, the Court

5 finds that petitioner has failed to show that federal habeas relief is warranted. Petitioner

6 does not identify, and the Court has not found, any Supreme Court precedent indicating

7 that the erroneous admission of evidence per se constitutes a due process violation

8 sufficient to warrant issuance of a writ. Absent such a holding, this Court cannot conclude

9 the California Court of Appeal’s ruling was contrary to, or an unreasonable application of,

10 clearly established federal law. See Wright, 552 U.S. at 126.

11 The erroneous admission of evidence may warrant habeas relief if – and only if – “it

12 results in the denial of a fundamentally fair trial in violation of the right to due process.”

13 Briceno, 555 F.3d at 1077 (citing Estelle, 502 U.S. at 67-68). This “inquiry” necessarily

14 “requires” the Court “to examine the alleged constitutional violation ‘in light of the

15 evidence as a whole’ at a petitioner’s trial.” Gimenez v. Ochoa, 821 F.3d 1136, 1145 (9th

16 Cir. 2016). Here, the Court of Appeal reasonably found that any error in the admission of

17 the detective’s opinion testimony was harmless, since there was ample other evidence –

18 including petitioner’s own statements – from which the jury could conclude that petitioner

19 knowingly transported the cocaine. Doc. No. 14-12 at 27-28. Considering the totality of

20 the evidence at trial, petitioner has not persuaded the Court that the admission of Detective

21 Bedingfield’s testimony “undermined the fundamental fairness of the entire trial,’” or that

22 “but for” its admission, “ʻno reasonable factfinder’ would have found him guilty.”

23 Gimenez, 821 F.3d at 1145 (citations omitted). The Court therefore finds petitioner has not

24 established that the admission of Detective Bedingfield’s testimony, even if erroneous,

25 deprived him of a fundamentally fair trial.

26 For the foregoing reasons, the Court recommends the petition be DENIED as to the

27 third ground for relief.

28 ///

1 D. Ground Four: Prosecutorial Misconduct

2 As a fourth ground for relief, petitioner asserts that he was “deprived of [his]

3 constitutional right to a fair trial” due to “multiple instances of prosecutorial misconduct.”

4 Pet. at 9. Petitioner states that “during closing argument, the prosecutor made

5 misstatements of the law, and misstated the facts or argued matters outside the evidence

6 based on his own opinion,” and that “the cumulative effect of this misconduct was to

7 deprive [Petitioner] of a fair trial, in violation of [his] federal due process right[s]” under

8 the Fifth, Sixth and Fourteenth Amendments.6 Id.

9 Respondents argue that petitioner cannot state a claim for habeas relief, because he

10 cannot show that the prosecutor’s actions were so pervasive as to render petitioner’s

11 conviction a denial of due process. Doc. No. 13-1 at 28. As to the specific misconduct

12 alleged, respondents state that the prosecutor made “fair” arguments and did not “misstate”

13 or unfairly characterize the evidence during closing remarks. Id. at 29-30. Respondents

14 further argue that even if some of the prosecutor’s “isolated” remarks “went too far,” any

15 error was harmless considering the other evidence at trial and the curative instructions

16 given by the trial court. Id. at 31.

17 “Review for prosecutorial misconduct claims on a writ of habeas corpus is ‘the

18 narrow one of due process, and not the broad exercise of supervisory power.’” Jones v.

19 Ryan, 691 F.3d 1093, 1102 (9th Cir. 2012), cert. denied, 133 S. Ct. 2831 (2013) (quoting

20 Darden v. Wainwright, 477 U.S. 168, 181 (1986)). To be entitled to relief on this basis, the

21

22

6 Petitioner does not identify the offending “misstatements” in his Petition. See Pet. at 9. However, by

23 reference to the Court of Appeal’s opinion and the briefing in the state appellate courts, the Court discerns

that the claim of prosecutorial misconduct is based on the following remarks by the prosecutor during

24

closing argument: (1) three references to “reasonableness” or a “reasonable interpretation of the evidence,”

25 which petitioner argued to the Court of Appeal misstated the law and “trie[d] to shift the burden of proof

to the defendant” (see Doc. No. 14-8 at 56; Doc. No. 14-12 at 32); (2) a statement that petitioner’s friend

26 Joel was “a regular drug trafficker,” for which petitioner claimed the prosecutor was “making up facts”

(see Doc. No. 14-8 at 55-56; Doc. No. 14-12 at 34) and (3) the prosecutor’s statement, in response to the

27 defense’s argument that “experienced drug traffickers don’t consent to a search of their car,” that “it’s

done all the time,” which petitioner also argued was a statement of facts not in evidence (see Doc. No. 14-

28

1 “alleged misconduct must have ‘so infected the trial with unfairness as to make the

2 resulting conviction a denial of due process.’” Id. (citation omitted). Stated otherwise, the

3 Court will grant habeas relief because of an “ʻ[i]mproper comment’” by the prosecutor

4 “ʻonly if it appears that the comment may possibly have affected the verdict.’” Turner v.

5 Calderon, 281 F.3d 851, 868 (9th Cir. 2002). Thus, a claim of prosecutorial misconduct is

6 evaluated not as an isolated event but in the context of the trial as a whole. Id.

7 1. Alleged misstatement of law

8 Petitioner asserts that the prosecutor “misstate[d] the law” during closing argument

9 by telling the jury that petitioner knew there were drugs in the suitcases he was transporting

10 because:

11 His only connection to Alex is through his friend Joel, the drug trafficker and

… he’s saying, I don’t know what’s in these bags. You know that’s not true.

12

You don’t need hindsight. You just need to be reasonable. And that’s your

13 standard. Reasonableness.

***

14

The reasonable interpretation of the evidence is that someone took a job

15 moving drugs north. … There’s one reasonable interpretation of the evidence.

16 Doc. No. 14-5 at 82-83, 86; see also Doc. No. 14-8 at 56. Petitioner argued to the Court of

17 Appeal, and appears to argue here, that these statements misrepresented the prosecution’s

18 burden of proof, and prejudiced him. Id. at 58-59; see also Pet. at 9.

19 The Court disagrees, and finds that the state Court of Appeal reasonably concluded

20 that “it was clear the prosecutor was discussing the ‘reasonable interpretation of the

21 evidence,’ which was largely circumstantial.” Doc. No. 14-12 at 33. The Court also

22 observes that the jury received clear instructions at the end of the trial that the State was

23 required to prove the elements of the crime with which petitioner was charged beyond a

24 reasonable doubt. See Doc. No. 14-5 at 40, 41, 43, 44. The trial judge also instructed the

25 jury that petitioner’s knowledge could be proven by circumstantial evidence if the jury was

26 persuaded that “the only reasonable conclusion supported by the circumstantial evidence

27 is that the defendant had that required intent and mental state.” Id. at 44; see also id. at 43,

28 44 (instructing jury to “reject unreasonable interpretations” of the evidence). The

1 prosecutor’s remarks were consistent with these instructions to the jury. The Court is not

2 persuaded that the prosecutor’s remarks, viewed in the context of the entire trial, misled

3 the jury as to the applicable burden of proof. See U.S. v. Robinson, 485 U.S. 25, 33 (1988)

4 (noting that a “prosecutorial comment must be examined in context …”). The Court

5 therefore cannot conclude that the remarks caused such pervasive unfairness that petitioner

6 was deprived of his right to due process.

7 2. Alleged statements of facts not in evidence

8 Petitioner also complains that the prosecutor “misstated the facts or argued matters

9 outside the evidence” during closing argument. Pet. at 9. Referring to petitioner’s brief to

10 the state appellate court, it appears that first such complained-of statement of “matters

11 outside the evidence” was the prosecutor’s statement, in support of a finding that petitioner

12 knowingly transported the cocaine, that petitioner “[was] working for Alex who he only

13 knows through his best friend, the drug trafficker … think about that for a second. His best

14 friend is a regular drug trafficker.” Doc. No. 14-5 at 82. Petitioner’s counsel objected, and

15 the trial court admonished the jury:

16

Again, ladies and gentlemen, I mentioned to you before; the comments of the

17 attorneys is not evidence. It’s your job to determine what the facts are based

18 solely on the evidence that’s been admitted in this case.

19 Id. The prosecutor then continued with the closing argument. Id.

20 The Court finds that these statements by the prosecutor do not entitle petitioner to

21 habeas corpus relief. In making this determination, the Court has considered “(1) whether

22 the prosecutor’s comments manipulated or misstated the evidence; (2) whether the trial

23 court gave a curative instruction; and (3) the weight of the evidence against [petitioner].”

24 Tak Sun Tan v. Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005) (citation omitted). The Court

25 agrees with the Court of Appeal that the prosecutor’s statement did not manipulate or

26 misstate the evidence, but instead was a “fair comment” based on “reasonable inferences

27 … or deductions” from the evidence at trial. Doc. No. 14-12 at 34. Following these

28 remarks, the trial judge immediately reminded the jury – and instructed them throughout

1 the proceedings – that the comments of the attorneys were not evidence. See Doc. No. 14-

2 4 at 13; Doc. No 14-5 at 41, 82. The Court “presume[s]” that the jurors “follow[ed] the

3 trial court’s instructions absent extraordinary situations.” Tak Sun Tan, 413 F.3d at 1115.

4 Furthermore, as discussed above, the evidence of petitioner’s guilt, including his own

5 testimony, was robust. For these reasons, the Court finds the prosecutor’s characterization

6 of petitioner’s friend as a “regular drug trafficker” did not “infect[] the trial” with

7 unfairness. Jones, 691 F.3d at 1102.

8 Petitioner also claims prosecutorial misconduct based on the prosecutor’s statement,

9 rebutting petitioner’s claim that “experienced drug traffickers don’t consent to a search of

10 their car” that such a statement was “just not true” and that “it’s done all the time” to “give

11 the driver of the car the ability to say … I have nothing to hide.” See Doc. No. 14-5 at 81-

12 82. The trial court overruled petitioner’s counsel’s objection to these statements. Id.

13 The Court finds that the Court of Appeal reasonably concluded that this remark was

14 improper but harmless. See Doc. No. 14-5 at 81-82. “While the government may not

15 ‘suggest that information not in evidence supports its case,’ [citation], prosecutorial

16 misconduct violates due process only if evidence is presented which ‘taken as a whole’

17 gives a jury a ‘false impression.’” Downs v. Hoyt, 232 F.3d 1031, 1038 (9th Cir. 2000)

18 (finding “no clear error” from prosecutor’s improper but “passing” remarks during closing

19 argument) (citations omitted). Considering that the prosecutor’s statement was brief, the

20 trial court’s repeated instructions to the jury that the attorneys’ statements were not

21 evidence, and the weight of other evidence of petitioner’s guilt, the Court cannot conclude

22 that the prosecutor’s statement that drug traffickers “consent all the time,” see Doc. No.

23 14-5 at 81, gave the jury a false impression or affected the verdict. See Darden, 477 U.S.

24 at 182 (finding habeas relief not warranted based on prosecutor’s improper comments

25 where “the weight of the evidence against petitioner was heavy” and the trial court

26 “instructed the jurors several times that their decision was to be made on the basis of the

27 evidence alone”).

28 ///

1 Based on the foregoing, the Court agrees with the state courts that there was no

2 || fundamental unfairness to petitioner — and therefore, no due process violation — due to the

3 || prosecutor’s remarks during closing argument. Accordingly, the Court finds that petitioner

4 not entitled to habeas relief based on the alleged prosecutorial misconduct and

5 recommends that the Petition be DENIED on the fourth ground for relief. ’

6 V. CONCLUSION and RECOMMENDATION

7 For the reasons stated below, the Court finds that petitioner has not shown that the

8 court’s determination of any of his claims was decision was contrary to, or involved

9 || an unreasonable application of, clearly established federal law. Therefore, IT IS □□□□□□

10 || RECOMMENDED that the Court issue an Order: 1) approving and adopting this Report

11 Recommendation; and 2) directing that Judgment be entered DENYING the Petition

12 || for Writ of Habeas Corpus.

13 IT IS HEREBY ORDERED that any reply to the objections shall be filed with the

14 || Court and served on all parties no later than thirty (30) days from the date this Report and

15 ||Recommendation is filed. The parties are advised that failure to file objections within the

16 specified time may waive the right to raise those objections on appeal of the Court’s order.

17 || See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153,

18 || 1156 (9th Cir. 1991).

19 |} IT ISSO ORDERED.

20 Dated: January 21, 2022 i, )

21 Milica a

Hor. Karen S. Crawford

22 United States Magistrate Judge

23

24

25

26

7 Because the Court finds on the merits of the argument that the alleged misconduct does not provide a

27 || basis for relief, it does not reach petitioner’s “alternative” argument that “if an objection was required to

3g ||preserve any of these instances of misconduct, defense counsel rendered ineffective assistance by failing

to object.” See Pet. at 9.