holding findings of historical fact, including inferences properly drawn from 6 these facts, are entitled to statutory presumption of correctness
How later courts described this case
- holding findings of historical fact, including inferences properly drawn from 6 these facts, are entitled to statutory presumption of correctness
- stating that “the failure to take futile 14 action can never be deficient performance”
- stating that “[t]he 8 admission of prior acts as propensity evidence encompasses both charged and uncharged 9 acts”
Written by the judges who cited it.
The opinion
1
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5
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 NATHAN RIVERA, Case No. 21-cv-01586-TWR (AGS)
12 Petitioner,
ORDER: 1) DENYING PETITION
13 v. FOR WRIT OF HABEAS
CORPUS; 2) DENYING
14 BRIAN CATES, Warden,
CERTIFICATE OF
15 Respondent. APPEALABILITY.
16
17 INTRODUCTION
18 Petitioner Nathan Rivera (“Rivera” or “Petitioner”), a state prisoner represented by
19 counsel, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
20 (“Petition” or “Pet,” see ECF No. 1.). The Court has read and considered the Petition and
21 the Memorandum of Points and Authorities in Support of the Petition (see ECF Nos. 1, 1-
22 2), the Answer and Memorandum of Points and Authorities in Support of the Answer (see
23 ECF Nos. 6, 6-1), the Traverse (see ECF No. 10), the lodgments and other documents filed
24 in this case, and the legal arguments presented by both parties. For the reasons discussed
25 below, the Court DENIES the Petition and DENIES a Certificate of Appealability.
26 / / /
27 / / /
28 / / /
1 FACTUAL BACKGROUND
2 This Court gives deference to state court findings of fact and presumes them to be
3 correct; Petitioner may rebut the presumption of correctness, but only by clear and
4 convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parle v. Fraley, 506 U.S. 20,
5 35–36 (1992) (holding findings of historical fact, including inferences properly drawn from
6 these facts, are entitled to statutory presumption of correctness). The state appellate court
7 recited the facts as follows:
8 Rivera dated the victim and lived with her. They often argued and their
neighbors heard many of their arguments. During one argument, Rivera broke
9
the victim’s nose. During another argument, a neighbor had to physically
10 intervene to prevent Rivera from attacking the victim. The victim told
neighbor D.J. she was “beside herself” because she had asked Rivera to leave
11
their home and he refused.
12
One afternoon, the victim went to neighbor T.W.’s home. Upset and
13
crying, the victim told T.W. she had awakened to Rivera having sex with her.
14 Then, when someone had knocked on the door of their home, Rivera put his
hand over her mouth and held a knife to her throat. The victim told T.W. she
15
was scared and wanted Rivera to leave.
16
The next morning, D.J. visited the victim in the victim’s home for about
17
15 minutes. D.J.’s boyfriend and Rivera were also present. The victim did not
18 have any visible injuries or blood on her face, but she was quiet and did not
seem like herself.
19
20 Later in the morning, T.W. saw Rivera trying to open the gate to the
property where their homes were located. When Rivera saw her, he stopped
21
what he was doing and ran to a nearby truck belonging to another neighbor.
22 The truck’s doors were unlocked, its engine was idling, and one of the victim
and Rivera’s two dogs was inside. Rivera got in the truck, “peeled out,”
23
“crashed right through the gate,” and sped away running over a bicycle that
24 had fallen out of the truck bed. The truck’s owner had not given Rivera
permission to drive the truck.
25
26 Remembering her conversation with the victim the prior afternoon,
T.W. suspected something was wrong and looked for the victim to make sure
27
the victim was safe. After repeatedly calling for the victim and the victim and
28 Rivera’s other dog, T.W. banged on the door to the victim’s home and tried
1 to open it, but it was locked. She then noticed the home had a newly broken
window. She stood on a large object and looked through the window into the
2
home. She saw the victim’s shoe hanging on the side of the bed and a wet
3 stain on the bed. She jumped through the window and grabbed the victim’s
shoe to see whether the victim was still alive. The victim “was laid stiff” and
4
had been “shoved in between the wall and the bed.” T.W. ran out of the
5 victim’s home and yelled for someone to call the police. D.J. call 911 and
firefighters quickly arrived.
6
7 A firefighter/paramedic found the victim squeezed in between the bed
and the wall. The victim was not breathing and did not have a pulse. Her face
8
was purple and she had lividity in her lower leg, which is a pooling of blood
9 indicating the blood had not been circulating for a while. The investigating
officer, a sheriff’s detective, saw a bloodstain on one of the corners of the
10
victim’s mattress. The detective also saw injuries on the victim’s face as well
11 as blood in [the] victim’s hair, on the left side of her face, and oozing from
her nose and mouth. In addition, the victim had moon-shaped abrasions on
12
both sides of her neck, which looked like fingernail marks and were consistent
13 with an attempt to keep something away from her neck.
14
The next day, a sheriff’s deputy found the truck Rivera used to flee.
15 Another sheriff’s deputy found Rivera approximately a mile and a half away
sitting on a guardrail of an embankment. He had his and the victim’s dogs
16
with him. He had scratches on his arms, hands, and torso as well as a bruise
17 on his lower stomach. His injuries were consistent with defense injuries
sustained by strangling another person who was fighting back.
18
19 Rivera’s DNA matched DNA on swabs of the victim’s neck and
fingernails. The victim’s DNA matched the DNA on swabs of Rivera’s right
20
hand.
21
A deputy medical examiner inspected the victim’s body at the crime
22
scene. He saw bruises and abrasions on the left side of her face, neck, and
23 body. He also saw abrasions on the right side of her nose, abrasions on both
sides of her chin, and bruises on both sides of her upper lip.
24
25 During the victim’s autopsy, the deputy medical examiner saw a bite
mark on the left side of the victim’s face and abrasions on her left eyebrow
26
and upper lip. Her scalp had extensive hemorrhage consistent with blunt force
27 trauma. She had petechial hemorrhages (ruptured and bleeding capillaries
caused by sustained external pressure) in her mouth, around her left eye, and
28
1 extending to her face and neck area. She also had significant hemorrhages in
her front neck muscles as well as a fracture in the hyoid bone and in the thyroid
2
cartilage of her neck.
3
The deputy medical examiner determined the manner of death was
4
homicide. He determined the cause of death was asphyxia due to strangulation
5 by external pressure to the victim’s neck area. According to him, it takes
approximately 10 to 20 seconds of at least intermittent pressure for a well-
6
nourished woman to lose consciousness from strangulation. It takes an
7 additional two to four minutes of pressure to cause death.
8
Toxicology tests showed the victim’s blood contained high levels of
9 methamphetamine. Although the presence of methamphetamine could have
hastened the victim’s death, methamphetamine did not cause her injuries or
10
her death.
11
12 (See Lodgment No. 17, ECF No. 7-17 at 4–7.)
13 PROCEDURAL BACKGROUND
14 On September 17, 2017, the San Diego County District Attorney’s Office filed an
15 Information charging Nathan Carmello Rivera with one count of murder, a violation of
16 California Penal Code § 187(a), and one count of auto theft, a violation of California
17 Vehicle Code § 10851(a). (See Lodgment No. 1, ECF No. 7-1 at 7–8.) The Information
18 also alleged that Rivera had previously been convicted of a serious felony, within the
19 meaning of California Penal Code §§ 667(a)(1), 668, and 1192.7(c), and had suffered two
20 prior “strike” convictions, within the meaning of California Penal Code §§ 667(b)–(i),
21 1170.12, and 668. See id. at 8. Following a jury trial, Rivera was convicted of first degree
22 murder and vehicle theft. (See Lodgment No. 9, ECF No. 7-9 at 7.) Rivera admitted he
23 had suffered the prior convictions as alleged. (See Lodgment No. 7, ECF No. 7-7 at 243–
24 48.)
25 Rivera appealed his conviction to the California Court of Appeal for the Fourth
26 Appellate District. (See Lodgment Nos. 12–14, 16, ECF Nos. 7-12–7-14, 7-16.) The
27 California appellate court affirmed Rivera’s murder conviction but concluded there was
28 insufficient evidence to support his felony conviction for auto theft. (See Lodgment No.
1 17, ECF No. 7-17.) The appellate court remanded the case “to allow the People an
2 opportunity to elect whether to retry Rivera for a felony violation of Vehicle Code section
3 10851(a) . . . or to accept the existing conviction’s reduction to a misdemeanor.” (See id.
4 at 23.)1 Upon remand, the San Diego District Attorney’s office declined to retry Rivera on
5 the auto theft charge. (See Lodgment No. 24, ECF No. 7-24 at 404-06.) Rivera’s petition
6 for review, which he filed in the California Supreme Court, was summarily denied. (See
7 Lodgment Nos. 18–19, ECF Nos. 7-18–7-19.) On September 15, 2020, Rivera filed a
8 petition for writ of habeas corpus in the California Court of Appeal, which was denied in a
9 written opinion. (See Lodgment Nos. 30–31, ECF Nos. 7-30–7-31.)2
10 Rivera filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C § 2254 and
11 a Memorandum in Support of Petition for Writ of Habeas Corpus in this Court on
12 September 8, 2021. (See ECF Nos. 1, 1-1.) Respondent filed an Answer and a
13 Memorandum of Points and Authorities in Support of the Answer on December 15, 2021.
14 (See ECF No. 6, 6-1.) Rivera filed a Traverse on February 22, 2022. (See ECF No. 10.)
15 ANALYSIS
16 Rivera raises three grounds in his Petition. First, he claims the state court’s
17 conclusion that sufficient evidence was presented to support his conviction for
18 premeditated murder was an unreasonable application of clearly established Supreme
19 Court law and was based on an unreasonable determination of the facts. (See Pet., ECF
20
21
1 The state appellate court also vacated Rivera’s sentence in order to permit the lower court
22
to consider “whether to exercise its recently acquired discretion to strike the punishment
23 for the prior serious felony conviction finding.” (See Lodgment No. 17, ECF No. 7-17 at
4.) The sentencing issues were not raised by Petitioner in his federal habeas Petition and
24
are therefore not before this Court. (See Pet., ECF No. 1; Pet’r’s Mem. of P. & A., ECF
25 No. 1-2.)
2 Respondent states that Rivera “sought habeas relief on a variety of claims in the trial court
26
and in the California Court of Appeal, all of which were denied and none of which appear
27 relevant to his current Petition,” (see Resp’t’s Mem. of P. & A., ECF No. 6-1 at 3), but has
provided only one of the state habeas corpus petitions Rivera filed in state court. (See
28
1 No. 1 at 6; Pet’r’s Mem. of P. & A., ECF No. 1-2 at 19–34.) Second, Rivera argues his
2 due process rights to a fair trial were violated by the introduction of testimony from
3 Rivera’s former girlfriend about violence he had committed against her. (See Pet., ECF
4 No. 1 at 7; Pet’r’s Mem. of P. & A., ECF No. 1-2 at 34–54.) And third, Rivera contends
5 trial counsel was ineffective for failing to renew her objection to the introduction of
6 evidence of Rivera’s prior domestic violence after one of the victims testified that no abuse
7 had occurred. (See Pet., ECF No. 1 at 8; Pet’r’s Mem. of P. & A., ECF No. 1-2 at 55–61.)
8 Respondent argues the state court’s denial of Rivera’s claims was neither contrary to, nor
9 an unreasonable application of, clearly established Supreme Court law, nor were they based
10 on an unreasonable determination of the facts. (See Resp’t’s Mem. of P. & A., ECF No.
11 6-1 at 6–11.)
12 I. Standard of Review
13 This Petition is governed by the provisions of the Antiterrorism and Effective Death
14 Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under
15 AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the
16 merits by the state court unless that adjudication, (1) resulted in a decision that was contrary
17 to, or involved an unreasonable application of clearly established federal law; or (2)
18 resulted in a decision that was based on an unreasonable determination of the facts in light
19 of the evidence presented at the state court proceeding. See 28 U.S.C. § 2254(d); Early v.
20 Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner’s habeas petition, a federal court
21 is not called upon to decide whether it agrees with the state court’s determination; rather,
22 the court applies an extraordinarily deferential review, inquiring only whether the state
23 court’s decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4
24 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).
25 A federal habeas court may grant relief under the “contrary to” clause if the state
26 court applied a rule different from the governing law set forth in Supreme Court cases, or,
27 if it decided a case differently than the Supreme Court on a set of materially
28 indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant
1 relief under the “unreasonable application” clause if the state court correctly identified the
2 governing legal principle from Supreme Court decisions, but unreasonably applied those
3 decisions to the facts of a particular case. See id. Additionally, the “unreasonable
4 application” clause requires that the state court decision be more than incorrect or
5 erroneous; to warrant habeas relief, the state court’s application of clearly established
6 federal law must be “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75
7 (2003). The Court may also grant relief if the state court’s decision was based on an
8 unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2).
9 Where there is no reasoned decision from the state’s highest court, the Court “looks
10 through” to the last reasoned state court decision and presumes it provides the basis for the
11 higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805–06
12 (1991). If the dispositive state court order does not “furnish a basis for its reasoning,”
13 federal habeas courts must conduct an independent review of the record to determine
14 whether the state court’s decision is contrary to, or an unreasonable application of, clearly
15 established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)
16 (overruled on other grounds by Andrade, 538 U.S. at 75–76); accord Himes v. Thompson,
17 336 F.3d 848, 853 (9th Cir. 2003). Clearly established federal law, for purposes of
18 § 2254(d), means “the governing principle or principles set forth by the Supreme Court at
19 the time the state court renders its decision.” Andrade, 538 U.S. at 72.
20 A. Sufficiency of Evidence
21 Rivera argues in his first argument that the state court’s conclusion that sufficient
22 evidence was presented to support his conviction for first degree murder was an
23 unreasonable application of clearly established Supreme Court law and was based on an
24 unreasonable determination of the facts. (See Pet., ECF No. 1 at 6; Pet’r’s Mem. of P. &
25 A., ECF No. 1-2 at 19–34; Traverse, ECF No. 10 at 5–8.) Specifically, Rivera contends
26 there was insufficient evidence of premeditation and deliberation because there was no
27 evidence of planning, motive, or preconceived design. (See Pet’r’s Mem. of P. & A., ECF
28 No. 1-2 at 19–34; Traverse, ECF No. 10 at 5–8.)
1 Rivera raised this claim in the Petition for Review he filed in the California Supreme
2 Court. (See Lodgment No. 18, ECF. No. 7-18.) The California Supreme Court summarily
3 denied Rivera’s petition for review. (See Lodgment No. 19, ECF No. 7-19.) Thus, this
4 Court must “look through” to the state appellate court’s opinion denying this claim as the
5 basis for its analysis. See Ylst, 501 U.S. at 805–06. That court wrote:
6 First degree murder includes any willful, deliberate, and premeditated
killing. (Pen. Cod § 189.) “In this context, ‘ “premeditated” means
7
“considered beforehand,” and “deliberate” means “formed or arrived at or
8 determined upon as a result of careful thought and weighing of considerations
for and against the proposed course of action.” ’ ” (People v. Jennings (2010)
9
50 Cal.4th 616, 645.) “ ‘ “An intentional killing is premeditated and deliberate
10 if it occurred as the result of preexisting thought and reflection rather than
unconsidered or rash impulse.” [Citation.] A reviewing court normally
11
considers three kinds of evidence to determine whether a finding of
12 premeditation and deliberation is adequately supported – preexisting motive,
planning activity, and manner of killing – but “[t]hese factors need not be
13
present in any particular combination to find substantial evidence of
14 premeditation and deliberation.” ’ ” (People v. Burney (2009) 47 Cal.4th 203,
235; accord, People v. Brady (2010) 50 Cal.4th 547, 561–562.)
15
16 Here, there was substantial evidence to support and the jury could have
reasonably found Rivera had a motive to kill the victim. Specifically, the jury
17
could have reasonably found Rivera wanted to kill the victim because she
18 wanted to end their relationship and have him leave their home. (See People
v. Pensinger (1991) 52 Cal.3d 1210, 1238 [“the incomprehensibility of the
19
motive does not mean that the jury could not reasonably infer that the
20 defendant entertained and acted on it”]; People v. Wright (1985) 39 Cal.3d
576, 593 [same].)
21
22 There was also substantial evidence to support and the jury could have
reasonably found Rivera had a preconceived design to kill from the manner
23
of the victim’s death – asphyxiation by strangulation. (See People v. Soloman
24 (2010) 49 Cal.4th 792, 815 [a jury could reasonably infer from the victim’s
death by asphyxiation that the defendant had time to consider the murderous
25
nature of his actions]; People v. Hovarter (2008) 44 Cal.4th 983, 1019–1020
26 [evidence the victim’s death by asphyxiation would have taken several
minutes supports a finding of deliberation because it shows the defendant had
27
ample time to consider the nature of his deadly act]; People v. Bonillas (1989)
28 48 Cal.3d 757, 792 [“Ligature strangulation is in its nature a deliberate act”].)
1 As there was substantial evidence of a motive to kill and a preconceived
design to kill, we conclude there was substantial evidence of premeditation
2
and deliberation to support’s Rivera’s first degree murder conviction. (People
3 v. Young (2005) 34 Cal.4th 1149, 1183 [a reviewing court will sustain a first
degree murder conviction where there is evidence of a motive to kill along
4
with evidence of either planning or a manner of killing indicating a
5 preconceived design to kill]; People v. Edwards (1991) 54 Cal.3d 787, 813–
814 [same]; see People v. Memro (1995) Cal.4th 786, 863–864 [method of
6
killing may be sufficient by itself to support a finding of premeditation and
7 deliberation].)
8 (See Lodgment No. 17, ECF No. 7-17 at 8–9.)
9 The Due Process Clause of the Constitution guarantees defendants the right to be
10 convicted only upon proof of every element of a crime beyond a reasonable doubt. See
11 Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005) (citing In re Winship, 397 U.S. 358,
12 364 (1970)). On federal habeas corpus review of a conviction on sufficiency of evidence
13 grounds, however, a petitioner “faces a heavy burden” to establish a due process violation.
14 See id. In assessing a sufficiency of the evidence claim, a state court must apply the
15 standard announced by the Supreme Court in Jackson v. Virginia, “whether, after viewing
16 the evidence in the light most favorable to the prosecution, any rational trier of fact could
17 have found the essential elements of the crime beyond a reasonable doubt.” See Jackson
18 v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Moreover, under AEDPA
19 “the standards of Jackson are applied ‘with an additional layer of deference,’ requiring the
20 federal court to determine ‘whether the decision of the [state court] reflected an
21 “unreasonable application of” Jackson . . . to the facts of this case.’” See Maquiz v.
22 Hedgpeth, 907 F.3d 1212, 1217 (9th Cir. 2018) (citing Juan H., 408 F.3d at 1274–75).
23 While circumstantial evidence can be sufficient to support a conviction,
24 “[s]peculation and conjecture cannot take the place of reasonable inferences and
25 evidence . . . .” See Juan H., 408 F.3d at 1279; see also Maquiz, 907 F.3d at 1217–18. A
26 federal habeas court must be “mindful of ‘the deference owed to the trier of fact and,
27 correspondingly, the sharply limited nature of constitutional sufficiency review.’” See
28 Juan H., 408 F.3d at 1274 (quoting Wright v. West, 505 U.S. 277, 296-97 (1992)).
1 Deference under AEDPA, however, “does not imply abandonment or abdication of judicial
2 review.” See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). In determining whether
3 sufficient evidence has been presented, the Court refers to the elements of the crime as
4 defined by state law. See Jackson, 443 U.S. at 324, n. 16; Juan H., 408 F.3d at 1276.
5 “First degree murder, like second degree murder, is the unlawful killing of a human
6 being with malice aforethought, but has the additional elements of willfulness,
7 premeditation, and deliberation which trigger a heightened penalty.” People v. Chiu, 59
8 Cal. 4th 155, 166 (2014), superseded by statute on other grounds as stated by People v.
9 Lewis, 11 Cal. 5th 952 (2021). “‘Deliberation’ refers to careful weighing of considerations
10 in forming a course of action; ‘premeditation’ means thought over in advance . . . . The
11 true test is not the duration of time as much as it is the extent of the reflection. Thoughts
12 may follow each other with great rapidity and cold, calculated judgment may be arrived at
13 quickly.” People v. Koontz, 27 Cal.4th 1041, 1080 (2002) (internal quotation marks and
14 citations omitted). Consistent with these definitions, the jury in Rivera’s case was
15 instructed as follows:
16 520. First or Second Degree Murder
With Malice Aforethought
17
(Pen. Code, § 187)
18
The defendant is charged in Count 1 with murder in violation of Penal Code
19
section 187.
20
To prove that the defendant is guilty of this crime, the People must prove
21
that:
22
1. The defendant committed an act that caused the death of another
23
person; AND
24
2. When the defendant acted, he had a state of mind called malice
25
aforethought.
26
There are two kinds of malice aforethought, express malice and implied
27
malice.
28
1 Proof of either is sufficient to establish the state of mind required for
murder.
2
3 The defendant acted with express malice if he unlawfully intended to kill. ·
4
The defendant acted with implied malice if:
5
1. He intentionally committed an act;
6
7 2. The natural and probable consequences of the act were dangerous
to human life;
8
9 3. At the time he acted, he knew his act was dangerous to human life;
AND
10
11 4. He deliberately acted with conscious disregard for human life.
12
Malice aforethought does not require hatred or ill will toward the victim. It is
13 a mental state that must be formed before the act that causes death is omitted.
It does not require deliberation or the passage of any particular period of time.
14
15 An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without the
16
act. A natural and probable consequence is one that a reasonable person
17 would know is likely to happen if nothing unusual intervenes. In deciding
whether a consequence is natural and probable, consider all of the
18
circumstances established by the evidence.
19
There may be more than one cause of death. An act causes death only if it is
20
a substantial factor in causing the death. A substantial factor is more than a
21 trivial or remote factor. However, it does not need to be the only factor that
causes the death.
22
23 If you decide that the defendant committed murder, it is murder of the second
degree, unless the People have proved beyond a reasonable doubt that it is
24
murder of the first degree as defined in CALCRIM No. 521.
25
. . . .
26
27 / / /
28 / / /
1 521. First Degree Murder (Pen. Code, § 189)
2
The defendant has been prosecuted for first degree murder under the theory
3 that the murder was willful, deliberate, and premeditated.
4
You may not find the defendant guilty of first degree murder unless all of you
5 agree that the People have proved that the defendant committed murder.
6
The defendant is guilty of first degree murder if the People have proved that
7 he acted willfully, deliberately, and with premeditation. The defendant acted
willfully if he intended to kill. The defendant acted deliberately if he carefully
8
weighed the considerations for and against his choice and, knowing the
9 consequences, decided to kill. The defendant acted with premeditation if he
decided to kill before completing the acts that caused death.
10
11 The length of time the person spends considering whether to kill does not
alone determine whether the killing is deliberate and premeditated. The
12
amount of time required for deliberation and premeditation may vary from
13 person to person and according to the circumstances. A decision to kill made
rashly, impulsively, or without careful consideration is not deliberate and
14
premeditated. On the other hand, a cold, calculated decision to kill can be
15 reached quickly. The test is the extent of the reflection, not the length of time.
16
The requirements for second degree murder based on express or implied
17 malice are explained in CALCRIM No. 520, First or Second Degree Murder
With Malice Aforethought.
18
19 The People have the burden of proving beyond a reasonable doubt that the
killing was first degree murder rather than a lesser crime. If the People have
20
not met this burden, you must find the defendant not guilty of first degree
21 murder and the murder is second degree murder.
22 (See Lodgment No. 1, ECF No. 7-1 at 139–41.)
23 Rivera had a history of violent behavior toward Hixon. Tamara Wheaton, Hixon
24 and Rivera’s neighbor, testified that Rivera had physically attacked Hixon before and had
25 to be stopped by other people. (See Lodgment No. 5, ECF No. 7-5 at 76.) The day before
26 the murder, Hixon told Wheaton she had awakened to Rivera having nonconsensual sex
27 with her and that when he heard others outside he put a knife to her throat and covered her
28 mouth. (See id. at 78.) Deanna Johnson, another neighbor, testified that during one
1 argument she heard between Rivera and Hixon, Hixon came out of their trailer with a
2 broken nose. (See id. at 136.) Both Wheaton and Johnson testified they witnessed
3 numerous arguments between Rivera and Hixon, that the frequency and intensity of the
4 arguments were escalating, and that Hixon wanted Rivera to leave but he refused to do so.
5 (See id. at 74–76, 137.) The coroner, Robert Stanley, testified Hixon had been strangled,
6 her hyoid bone had been broken, and there was damage to the muscles in her neck and
7 thyroid. (See Lodgment No. 7, ECF No. 7-7 at 148–52.) Hixon had also suffered blunt
8 force trauma to her head. (See id. at 153.) Stanley testified that pressure would have had
9 to have been applied to Hixon’s neck for ten to twenty seconds to render Hixon
10 unconscious and an additional two to four minutes in order to kill her. (See id. at 165.)
11 From this evidence, a rational trier of fact could have concluded that Rivera
12 responded to Hixon’s desire for him to move out with escalating violence and that when
13 he strangled Hixon he intended to kill her because he was angry that Hixon wanted to end
14 their relationship. Further, a rational jury could have concluded that Rivera had time to
15 reflect on what he was doing during the interval between when he rendered Hixon
16 unconscious and when he crushed her hyoid bone and chose to kill Hixon. Accordingly,
17 the Court concludes the state court’s denial of this claim was neither contrary to, nor an
18 unreasonable application of, clearly established Supreme Court law. See Bell, 535 U.S. at
19 694; 28 U.S.C. § 2254(d)(1).
20 Rivera also argues the state court’s denial of this claim was based on an unreasonable
21 determination of the facts because insufficient evidence was presented to establish
22 premeditation and deliberation. (See Pet’r’s Mem. of P. & A., ECF No. 1-2 at 22-23;
23 Traverse, ECF No. 10 at 5–8.) Specifically, he argues there was no evidence of planning,
24 motive, or “preconceived design to kill,” which he contends the prosecution was required
25 to show, citing People v. Anderson, 70 Cal. 2d 15, 25 (1968). (See Pet., ECF No. 1 at 6;
26 Pet’r’s Mem. of P & A., ECF No. 1-2 at 26-34.) “‘[A] state-court factual determination is
27 not unreasonable merely because the federal habeas court would have reached a different
28 conclusion in the first instance.’” Ochoa v. Davis, 16 F.4th 1314, 1325–26 (quoting Wood
1 v. Allen, 558 U.S. 290, 301 (2010)). A federal court can only conclude a factual finding is
2 unreasonable if it is “convinced that an appellate panel, applying the normal standards of
3 appellate review, could not reasonably conclude that the finding is supported by the
4 record.” See Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogation on other
5 grounds as recognized by Murray v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014).
6 While the California Supreme Court in Anderson identified evidence of planning,
7 motive, or “preconceived design to kill” as relevant to a determination of whether sufficient
8 evidence supported a finding of premeditation and deliberation, subsequent California
9 cases have explained that “[Anderson’s] guidelines are descriptive and neither normative
10 nor exhaustive, and that reviewing courts need not accord them any particular weight.” See
11 People v. Halvorsen, 42 Cal. 4th 379, 419–420 (2007). Given the evidence discussed
12 above – Rivera’s neighbors’ testimony regarding witnessing his escalating physical abuse
13 of Hixon, her desire for Rivera to move out and his refusal to do so, Hixon’s statement to
14 Wheaton the day before the murder that Rivera had nonconsensual sex with her, then put
15 a knife to her throat and covered her mouth when he heard people nearby, as well as coroner
16 Stanley’s testimony that Hixon had been strangled to death and that it would have taken
17 two to four minutes of pressure on her neck in order to kill her – the Court finds the state
18 appellate court reasonably concluded the trial record was sufficient to support a finding of
19 premeditation and deliberation. See Taylor, 366 F.3d at 1000. Moreover, federal habeas
20 corpus relief is not available for errors of state law. See Estelle v. McGuire, 502 U.S. 62,
21 75 (1991).
22 The state appellate court’s decision was not contrary to clearly established Supreme
23 Court law. Citing California law, the state court used the correct standard to evaluate
24 Rivera’s sufficiency of evidence claim when it identified the standard as “after viewing the
25 evidence in the light most favorable to the prosecution, any rational trier of fact could have
26 found the essential elements of the crime beyond a reasonable doubt.” (See Lodgment No.
27 J, ECF No. 7-17 at 8; Jackson, 443 U.S. at 419. Nor was the decision an unreasonable
28 application of clearly established Supreme Court law or based on an unreasonable
1 determination of the facts as discussed above. See Bell, 535 U.S. at 694. Rivera is not
2 entitled to relief as to this claim. See 28 U.S.C. § 2254(d)(1)–(2).
3 B. Admission of Prior Acts Testimony
4 Second, Rivera argues his due process right to a fair trial were violated when the
5 trial court admitted evidence that he had assaulted the mother of his children, Jennifer
6 Davidson, approximately nineteen years before the murder of Hixon. (See Pet., ECF No.
7 1 at 7; Pet’r’s Mem. of P. & A., ECF No. 1-2 at 34–54; Traverse, ECF No. 10 at 8–9.)
8 Respondent contends the state court’s denial of this claim was neither contrary to, nor an
9 unreasonable application of, clearly established Supreme Court law. (See Resp’t’s Mem.
10 of P. & A., ECF No. 6-1 at 7–9.)
11 Character evidence is generally inadmissible pursuant to California Evidence Code
12 § 1101. Cal. Evid. Code § 1101. The prosecutor in Rivera’s case sought to introduce
13 evidence of his prior domestic violence against Davidson and a former girlfriend, Shannon
14 Gohlich, pursuant to California Evidence Code § 1109 which provides that “in a criminal
15 action in which the defendant is accused of an offense involving domestic violence,
16 evidence of the defendant’s commission of other domestic violence is not made
17 inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”3
18 Cal. Evid. Code § 1109(a). If the “acts occur[ed] more than 10 years before the charged
19 offense [they are] inadmissible under this section, unless the court determines that the
20 admission of this evidence is in the interest of justice.” Cal. Evid. Code § 1109(e).
21 The assaults on Davidson occurred in 1998 and the assaults on Gohlich occurred in
22 2005. (See Lodgment No. 4, ECF No. 7-4 at 15–18.) After determining the evidence was
23 not more prejudicial than probative and that the introduction of the evidence was in the
24 interest of justice, the trial judge permitted some of the evidence to be introduced. (See
25
26
3 California Evidence Code § 352 provides: “The court in its discretion may exclude
27 evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
28
1 id.) In particular, the judge reasoned that the assaults against Gohlich were more recent,
2 which in turn made the older assaults against Davidson more relevant. (See Lodgment No.
3 6, ECF No. 7-6 at 58.) When the prosecutor told the judge she was having trouble
4 transporting Gohlich to the trial and that she may not testify, the judge noted that “part of
5 the rationale in which I found Ms. Davidson’s testimony not being stale or too old was the
6 fact that Ms. Gohlich was going to present an event in 2005,” and that her not testifying
7 “could affect that determination.” (See id.) Gohlich eventually did testify at trial, but
8 denied the abuse. (See Lodgment No. 7, ECF No. 7-7 at 23–31.) Only Davidson testified
9 that Rivera had assaulted her. (See id. at 32–59.)
10 Rivera raised this claim in the Petition for Review he filed in the California Supreme
11 Court. (See Lodgment No. 18, ECF. No. 7-18.) The California Supreme Court summarily
12 denied Rivera’s petition for review. (See Lodgment No. 19, ECF No. 7-19.) Thus, this
13 Court must “look through” to the state appellate court’s opinion denying this claim as the
14 basis for its analysis. See Ylst, 501 U.S. at 805–06. That court wrote:
15 “Character or propensity evidence, including evidence of a person’s
prior conduct, is generally inadmissible to prove the person’s conduct on a
16
specified occasion. ([Evid. Code,] § 1101, subd. (a); People v. Villatoro
17 (2012) 54 Cal.4th 1152, 1159.) However, ‘[t]he Legislature has . . . created
specific exceptions to the rule against admitting character evidence in cases
18
involving sexual offenses ([Evid. Cod.] § 1108, subd. (a)), and domestic
19 violence, elder or dependent abuse, and child abuse ([Evid. Code,] § 1109,
subd. (a)(1)–(3).’” (Disa, supra, 1 Cal.App.5th at p. 670.)
20
21 One of these specific exceptions is Evidence Code section 1109,
subdivision (a), which provides in pertinent part, “in a criminal action in
22
which the defendant is accused of an offense involving domestic violence,
23 evidence of the defendant’s commission of other domestic violence is not
made inadmissible by [Evidence Code] [s]ection 1101 if the evidence is not
24
25 inadmissible pursuant to [Evident Code] [s]ection 352.” “ ‘[T]he California
Legislature has determined the policy considerations favoring the exclusion
26
of uncharged domestic violence offense are outweighed in criminal domestic
27 violence cases by the policy considerations favoring the admission of such
evidence.’ ” (Brown, supra, 192 Cal.App.4th at p. 1232.)
28
1 i.
2
“Before admitting evidence under [Evidence Code] section 1109, the
3 trial court must exercise its discretion to determine whether the probative
value of the evidence is ‘substantially outweighed by the probability that its
4
admission will (a) necessitate undue consumption of time or (b) create
5 substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.’ ([Evid. Code,] § 352.)” (People v. Kerley (2018) 23
6
Cal.App.5th 513, 532 (Kerley).) While the record must affirmatively show the
7 court conducted the requisite weighing, the court is not required to expressly
do so, or to expressly state it has done so. (People v. Clair (1992) 2 Cal.4th
8
629, 660; People v. Mickey (1991) 54 Cal.3d 612, 656.) In this case, the record
9 affirmatively shows the court satisfied its obligation. Both parties extensively
briefed the point, Rivera’s counsel twice argued the point, and the court made
10
a conscious choice to admit part of the evidence and exclude part of it,
11 including the fact some of the incidents resulted in convictions. “[N]o more
was required.” (Clair, at p. 660; People v. Megown (2018) 28 Cal.App.5th
12
157, 164 (Megown).)
13
ii.
14
15 In determining whether the admission of evidence of prior acts of
domestic violence was unduly prejudicial, we consider “whether the prior acts
16
of domestic violence were more inflammatory than the charged conduct, the
17 possibility the jury might confuse the prior acts with the charged acts, how
recent were the prior acts, and whether the defendant had already been
18
convicted and punished for the prior offense(s).” (People v. Rucker (2005)
19 126 Cal.App.4th 1107, 1119.) Here, Rivera’s prior acts of domestic violence
were not more inflammatory than the charged offense, which included
20
strangling the victim and wedging her body between a bed and a wall. The
21 prior acts and the charged offense were also sufficiently distinct to preclude
the possibility the jury would confuse them.
22
23 Although the prior acts against his children’s mother occurred 20 to 23
years before the charged offense, evidence of acts occurring more than 10
24
years before the charged offense is admissible if the court determines
25 admission of the evidence is in the interest of justice. (Evid. Code, § 1109,
subd. (e).) “Remote prior conduct is, at least theoretically, less probative of
26
propensity than more recent misconduct. [Citation.] This is especially true if
27 the defendant has led a substantially blameless life in the interim ....” (People
v. Johnson (2010) 185 Cal.App.4th 520, 534.) Nonetheless, the statute
28
1 vests the courts with substantial discretion in setting an “interest of justice”
standard.’ [Citation.] ‘[T]he “interest of justice” exception is met where the
2
trial court engages in a balancing of factors for and against admission under
3 [Evidence Code] section 352 and concludes ... that the evidence was “more
probative than prejudicial.” ’ [Citation.]” Megown, supra, 28 Cal.App.5th at
4
p. 168.)
5
Here, the evidence of the prior acts of domestic violence against his
6
children’s mother remained probative of Rivera’s propensity for domestic
7 violence because this evidence, coupled with the evidence of the prior acts of
domestic violence against his former girlfriend, showed Rivera had a
8
consistent pattern of engaging in domestic violence and had not led a
9 blameless life between the domestic violence involving the mother of his
children and the domestic violence that occurred in this case. (See Kerley,
10
supra, 23 Cal.App.5th at p. 538.)
11
The fact Rivera’s former girlfriend ultimately denied the past incident
12
of domestic violence against her does not undermine the court’s decision to
13 admit evidence of the past incidents of domestic violence against his children's
mother. The court made its decision before the former girlfriend testified, the
14
parties did not dispute the incident against the former girlfriend actually
15 occurred (Rivera was convicted as a result of it), and Rivera has not supplied
any authority indicating the court had an obligation to sua sponte reconsider
16
its decision to allow evidence of Rivera’s past acts of domestic violence
17 against his children’s mother in light of the former girlfriend’s testimony.
18 (See Lodgment No. 17, ECF No. 7-17 at 15–17.)
19 As Respondent notes, there is no clearly established Supreme Court law which holds
20 that character or “propensity” evidence is inadmissible or violates due process. See Kipp
21 v. Davis, 971 F.3d 939, 951–52, n.8 (9th Cir. 2020). Indeed, the Supreme Court expressly
22 reserved deciding that issue in Estelle v. McGuire, 502 U.S. 62, 75, n.5 (1991). See Mejia
23 v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008); Alberni v. McDaniel, 458 F.3d 860, 864
24 (9th Cir. 2006). As the Ninth Circuit has noted:
25 The Supreme Court has made very few rulings regarding the admission
of evidence as a violation of due process. Although the Court has been clear
26
that a writ should be issued when constitutional errors have rendered the trial
27 fundamentally unfair, [citation omitted], it has not yet made a clear ruling that
admission of irrelevant or overtly prejudicial evidence constitutes a due
28
1 “clearly established Federal law,” we cannot conclude that the state court’s
ruling was an “unreasonable application.”
2
3 Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citing Williams v. Taylor, 529
4 U.S. 362, 375 (2000), Carey v. Musladin, 549 U.S. 70, 77 (2006)).
5 In fact, Ninth Circuit precedent “squarely forecloses” the claim that admission of
6 propensity evidence violates due process. See Mejia, 534 F.3d at 1046; see also Chavarria
7 v. Hamlet, 472 Fed. Appx. 749, 750 (9th Cir. 2012); Greel v. Martel, 472 Fed. Appx. 503,
8 504 (9th Cir. 2012).4 Thus, because there is no clearly established Supreme Court law
9 holding the admission of propensity evidence violates due process, the state court’s
10 rejection of this claim was neither contrary to, nor an unreasonable application of, clearly
11 established Supreme Court law. See Musladin, 549 U.S. at 77.
12 Moreover, there was no error in admitting the evidence under general due process
13 principles. In order to establish that an evidentiary ruling violated his due process rights,
14 Rivera must show “there are no permissible inferences the jury may [have] draw[n] from
15 the evidence.” See Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998) (emphasis in
16 original). Evidence of Rivera’s prior physical assaults on the mother of his children was
17 undeniably relevant to the jury’s decision as to whether he strangled Hixon accidentally or
18 intentionally. The prior uncharged conduct helped establish the necessary intent to convict
19 Rivera of the crimes.
20 For the foregoing reasons, the state court’s denial of this claim was neither contrary
21 to, nor an unreasonable application of, clearly established Supreme Court law. See 28
22 U.S.C. § 2254(d); Yarborough, 540 U.S. at 4. Nor was it based on an unreasonable
23 determination of the facts. See 28 U.S.C. § 2254(d)(2). Rivera is not entitled to relief as
24 to this claim.
25 / / /
26
27 4 Pursuant to Ninth Circuit Rule 36-3(c), “Unpublished decisions and orders of [the Ninth
Circuit] issued on or after January 1, 2007 may be cited to the courts of this circuit in
28
1 C. Ineffective Assistance of Counsel
2 Finally, Rivera argues that his trial counsel was ineffective because she failed to
3 renew her objection to the admission of Davidson’s testimony after Gohlich testified she
4 had not been assaulted by Rivera. (See Pet., ECF No. 1 at 8; Pet’r’s Mem. of P. & A., ECF
5 No. 1-2 at 55–61; Traverse, ECF No. 10 at 9–10.) He contends that because the judge’s
6 decision to admit Davidson’s testimony about Rivera’s assaults, despite the fact that, they
7 had occurred in 1998 was based in large part on Gohlich’s testimony about being assaulted
8 by Rivera in 2005, counsel should have argued that Davidson’s testimony was no longer
9 admissible pursuant to California Evidence Code § 1109. (See id.) Respondent argues the
10 state court’s denial of this claim was neither contrary to, nor an unreasonable application
11 of, clearly established Supreme Court law. (See Resp’t’s Mem. of P. & A., ECF No. 9–
12 10.)
13 Rivera raised this claim in the Petition for Review he filed in the California Supreme
14 Court. (See Lodgment No. 18, ECF. No. 7-18.) The California Supreme Court summarily
15 denied Rivera’s petition for review. (See Lodgment No. 19, ECF No. 7-19.) Thus, this
16 Court must “look through” to the state appellate court’s opinion denying this claim as the
17 basis for its analysis. See Ylst, 501 U.S. at 805–06. That court wrote:
18 Rivera also has not established his counsel was ineffective for failing
to renew her objections to this evidence. “To establish ineffective assistance
19
of counsel, ‘ “ ‘a defendant must first show counsel’s performance was
20 “deficient” because [counsel’s] “representation fell below an objective
standard of reasonableness . . . under prevailing professional norms.” ’ ” ’
21
[Citation.] ‘ “[T]here is a ‘strong presumption that counsel’s conduct falls
22 within the wide range of reasonable professional assistance.’ ” ’ [Citation.] ‘In
the usual case, where counsel’s trial tactics or strategic reasons for challenged
23
decisions do not appear on the record, we will not find ineffective assistance
24 of counsel on appeal unless there could be no conceivable reason for counsel’s
acts or omissions.’ [Citation.]” (People v. Nguyen (2015) 61 Cal.4th 1015,
25
1051.)
26
Here, there is a conceivable tactical reason for counsel’s actions. Had
27
counsel relied on the former girlfriend’s denial of domestic violence to renew
28 her objection and asked the court to exclude evidence of Rivera’s past acts of
1 domestic violence against his children’s mother, the prosecutor likely would
have countered with a request to admit evidence the incident against the
2
former girlfriend resulted in a conviction. The court likely would have simply
3 left its ruling unchanged since the parties did not dispute the incident against
the former girlfriend actually occurred. However, had the court allowed
4
evidence of the conviction to counter the former girlfriend’s denials, this
5 outcome would have been worse for Rivera. Thus, his counsel could have
reasonably decided the best course for Rivera was not to renew the objection.
6
7 (See Lodgment No. 17, ECF No. 7-17 at 17–18.)
8 To establish ineffective assistance of counsel, a petitioner must first show his
9 attorney’s representation fell below an objective standard of reasonableness. See
10 Strickland v. Washington, 466 U.S. 668, 688 (1984). “This requires showing that counsel
11 made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
12 defendant by the Sixth Amendment.” Id. at 687. He must also show he was prejudiced by
13 counsel’s errors. See id. at 694. Prejudice can be demonstrated by showing “there is a
14 reasonable probability that, but for counsel’s unprofessional errors, the result of the
15 proceeding would have been different.” See id.; see also Fretwell v. Lockhart, 506 U.S.
16 364, 372 (1993). “The likelihood of a different result must be substantial, not just
17 conceivable.” Harrington, 562 U.S. at 112.
18 Further, Strickland requires “[j]udicial scrutiny of counsel’s performance . . . be
19 highly deferential.” See Strickland, 466 U.S. at 689. There is a “strong presumption that
20 counsel’s conduct falls within a wide range of reasonable professional assistance.” See id.
21 at 686–87. On federal habeas review, “[t]he question ‘is not whether a federal court
22 believes the state court’s determination’ under the Strickland standard ‘was incorrect but
23 whether that determination was unreasonable—a substantially higher threshold.’” See
24 Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S.
25 465, 473 (2007)). The Court need not address both the deficiency prong and the prejudice
26 prong if the defendant fails to make a sufficient showing of either one. See Strickland, 466
27 U.S. at 697.
28 The trial record indicates that Rivera suffered a conviction as the result of his assault
1 on Gohlich. (See Lodgment No. 4, ECF No. 7-4 at 18.) Thus, any objection by Rivera’s
2 trial counsel to the admission of Davidson’s testimony would have been futile because the
3 prosecution would have likely been able to successfully argue for the admission of Rivera’s
4 conviction for his assault on Gohlich. See People v. Merchant, 40 Cal. App. 5th 1179,
5 1194–95 (2019) (finding a conviction for false imprisonment of his girlfriend qualified as
6 a prior act of domestic violence and was admissible pursuant to California Evidence Code
7 § 1109); People v. Brown 192 Cal. App. 4th 1212, 1233 (2011) (stating that “[t]he
8 admission of prior acts as propensity evidence encompasses both charged and uncharged
9 acts”) (citing People v. Falsetta, 21 Cal. 4th 903, 917–918 (1999); People v. Brown, 77
10 Cal. App. 4th 1324, 1332–1334 (2011); People v. Garcia, 89 Cal. App. 4th 1321, 1331–
11 1332 (2001)). Counsel is not required to make futile objections in order to be competent,
12 and thus Rivera has not established the deficient performance prong of Strickland. See
13 Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (stating that “the failure to take futile
14 action can never be deficient performance”); Rowland v. Chappell, 902 F. Supp. 2d 1296,
15 1328–29 (N.D. Cal. 2012); Trevino v. Evans, 521 F. Supp. 2d 1104, 1111 (S.D. Cal. 2007);
16 Gordon v. Lizarraga, 859 Fed. Appx. 177, 179 (Jun. 28, 2021).5
17 For the same reasons, Rivera has not established he was prejudiced by any error by
18 counsel. See Strickland, 466 U.S. at 694. Even if counsel had objected, the evidence of
19 Rivera’s assault on Gohlich would have likely been admitted. Accordingly, the state court
20 denial of this claim was neither contrary to, nor an unreasonable application of, clearly
21 established Supreme Court law. See 28 U.S.C. § 2254(d); Yarborough, 540 U.S. at 4. Nor
22 was it based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2).
23 Rivera is not entitled to relief as to this claim.
24 / / /
25 / / /
26
27
28
5 See footnote 4.
1 CONCLUSION
2 For the foregoing reasons, the Court DENIES the Petition. 28 U.S.C. § 2254
3 ||requires the District Court to “issue or deny a certificate of appealability when it enters a
4 || final order adverse to the applicant.” See Rule 11, 28 U.S.C. foll. § 2254. A certificate of
5 || appealability will issue when the petitioner makes a “substantial showing of the denial of
6 ||a constitutional right.” See 28 U.S.C. § 2253; Pham v. Terhune, 400 F.3d 740, 742 (9th
7 || Cir. 2005). A “substantial showing” requires a demonstration that “‘reasonable jurists
8 || would find the district court’s assessment of the constitutional claims debatable or wrong.””
9 || See Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 2002) (quoting Slack v. McDaniel, 529
10 || U.S. 473, 484 (2000)). Here, the Court concludes that reasonable jurists could not find the
11 constitutional claims debatable, and therefore a certificate of appealability is DENIED.
12 IT IS SO ORDERED.
13 Dated: May 17, 2022 TSS 12, fo
14 Honorable Todd W. Robinson
15 United States District Judge
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