Huynh v. Lizarraga

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 |} PHILONG HUYNH, Case No.: 15cv1924-BTM (AGS)

12 Petitioner,

13 lly. ORDER DENYING PETITION FOR A

WRIT OF HABEAS CORPUS AND

14 || J. LIZARRAGA, Warden, _ | ISSUING A LIMITED CERTIFICATE

15 Respondent. - OF APPEALABILITY

16

17 Philong Huynh is a California prisoner proceeding pro se and in forma pauperis with

18 Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254.! (ECF No. 1.)

19 ||He challenges his convictions in the San Diego County Superior Court for one count o

20 degree murder with special circumstances, and four counts of oral copulation and

21 sodomy of an intoxicated person, for which he was sentenced to life in prison without the

22 || possibility of parole plus ten years. (Id. at 1-2.) He alleges his federal constitutional rights

|| were violated because there is insufficient evidence to support the convictions (Claim 1),|

24 is actually innocent (Claim 2), he received ineffective assistance of counsel (Claim 3),

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26 Although this case was randomly referred to United States Magistrate Judge Andrew G.

27 ||Schopler pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a

4g || Report and Recommendation nor oral argument are necessary for the disposition of this

matter, See S.D. Cal. Civ.L.R. 71.1(d). .

I || was denied due process (Claim 4), and was subjected to an unreasonable search and seizure

2 ||(Claim 5). (Id. at 6-9; ECF No. 1-1 at 3-12.)

3 Respondent has filed an Answer (ECF No. 16), two Supplemental Answers (ECF

4 ||Nos. 21, 50), two notices of lodgment of the state court record (ECF Nos. 12, 17), and a

5 corrected notice of lodgment (ECF No. 83). Respondent argues habeas relief is unavailable

6 because: (1) the actual innocence and search and seizure claims are not cognizable on

7 || federal habeas and are without merit, (2) the due process claim is vague and conclusory,

8 (3) the state court adjudication of the insufficiency of the evidence claim on direct

9 || appeal, and of the ineffective assistance of counsel claim on state habeas, is neither contrary

10 nor involves an unreasonable application of, clearly established federal law. (ECF No.

11 |) 16-1 at 3-11; ECF No. 21 at 2-4; ECF No. 50 at 2-8.)

12 Petitioner has filed a Traverse (ECF No. 18), two Supplemental Traverses (ECF Nos.

13 ||30, 62), and seventeen Requests for Judicial Notice (ECF Nos. 10, 28, 37, 39, 41, 43, 47,

14 | 49, 53, 57, 63, 66, 72, 74, 76, 78, 89.) He also filed a Motion for Appointment of Counsel

is (ECF No. 32), a Motion for Discovery (ECF No. 65), and a Motion for an Evidentiary

16 ||Hearing (ECF No. 80), which were denied without prejudice to consideration of those

17 ||requests in this final Order. (ECF Nos. 45, 67, 75, 81.)

18 Procedural Background

19 In a five-count Information filed in the San Diego Superior Court on March 18, 201 0,

20 || Petitioner was charged with one count of murder (victim Williams), two counts of sodomy

21 an intoxicated person (victims Williams and Jeremiah), and two counts of oral

22 || copulation of an intoxicated person (victims Williams and Jeremiah). (ECF No. 17, Clerk’s

[“€T" | at44-46,)- ‘The murder charge contained two special circunistance allegations.|

24 the murder was committed during the commission or attempted commission of oral

25 |}copulation, and during the commission or attempted commission of sodomy. (Id.) On

26 || June 24, 2011, a jury found Petitioner guilty on all charges and returned true findings on

27 special circumstance allegations. (CT 726-31.) On August 12, 2011, he was

28 sentenced to life without the possibility of parole on the murder count, plus consecutive

1 || terms of eight years for sodomy of Jeremiah and two years for oral copulation of Jeremiah,

2 |; with sentences on the oral copulation and sodomy of Williams stayed. (CT 733.)

3 In his direct appeal, Petitioner claimed, as he does in claim one here, that insufficient

4 ||evidence supports the convictions as to Williams, and as he does in claim five here, that

5 ||the jury was improperly instructed, he was denied his right to confront witnesses, the sex

6 ||offenses were improperly allowed to be used as propensity evidence, and the cumulative

7 || effect of the errors was prejudicial. (ECF No. 12-2.) The state appellate court affirmed on

8 || December 20, 2012. (ECF No. 12-4.) The same claims were presented in a petition for

9 ||review filed in the California Supreme Court, which was summarily denied on April 11,

10 ||2013. (ECF Nos. 83-5, 83-6.) A petition for a writ of certiorari to the United States

11 ||Supreme Court was denied on October 7, 2013. (ECF Nos. 12-6 and 12-7.)

12 Petitioner constructively filed a habeas petition in the California Supreme Court on

13 ||December 16, 2014, presenting most of the claims raised here, including those already

14 denied on direct appeal.? (ECF No. 83-4.) That petition was denied on March 11, 2015,

15 || with an order which stated: “The petition for writ of habeas corpus is denied. (See People

16 Duvall (1995) 9 Cal.4th 464, 474; In re Lessard (1965) 62 Cal.2d 497, 503; In re

17 || Waltreus (1965) 62 Cal.2d 218, 225; In re Dixon (1953) 41 Cal.2d 756, 759; In re Swain

18 ||(1949) 34 Cal.2d 300, 304; In re Lindley (1947) 29 Cal.2d 709, 723.)” (ECF No. 12-10.)

19 II. Statute of Limitations

20 The Magistrate Judge issued an Order to Show Cause why this action should not be

21 ||dismissed as untimely, finding that although Petitioner filed a Petition in this Court in

22 || So.Dist.Ca Civil Case No. 14cv2452-BEN (RBB) on the last day of the one-year statute o

|} limitations identical to the Petition here, it was dismissed for failure to exhaust state court!

24 remedies, and the Petition here, filed after exhaustion, could not relate back to that Petition.

25 ||(ECF No. 67.) Respondent replied that it was error to have admitted in the Answer that

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27 Petitioner is entitled to the benefit of the “mailbox rule” which provides for constructive

28 filing of court documents as of the date they are submitted to the prison authorities for

mailing to the court. Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir. 2000).

I || this action is timely, and argued the Petition is untimely because it does not relate back to

2 || the original, timely Petition. (ECF No. 71.) Petitioner replied that Respondent has waived

3 ||the affirmative defense of timeliness by not raising it in the Answer and that equitable

4 || considerations render this action timely, and in any case the Court allowed him to amend

5 || his petition after exhausting state court remedies. (ECF No. 70.)

6 The one-year statute of limitations to file a federal habeas petition began to run on

7 || October 8, 2013, the day after the United States Supreme Court denied certiorari, and,

8 absent tolling, expired on October 7, 2014. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th

9 || Cir. 2001). Petitioner filed the instant Petition on August 24, 2015, after expiration of the

10 || limitations period. However, he constructively filed a federal habeas petition in this Court

11 || presenting the same claims on October 7, 2014, the last day of the limitations period. (See

12 |/So.Dist.Ca. Civil Case No. 14cv2452-BEN (RBB), Pet. [ECF No. 1] at 11.) When that

13 ||initial federal petition was filed, claims one and five had been denied on direct appeal in

14 state appellate and supreme courts, and state judicial remedies were exhausted as to

15 |/those claims. In that petition he stated he had raised those two claims on direct appeal in

16 state appellate and supreme courts (id. at 2-3, 9), but also checked the “no” boxes as to

17 |/all claims on the petition form where it asked if he had raised them in the California

18 ||Supreme Court. (Id. at 6-9.) That petition was dismissed for failure to allege exhaustion

19 || as to any claim, without prejudice to refile after exhaustion. (Id., order filed 10/22/14 [ECF

20 || No. 3] at 1-4.) A first amended petition with the same contradictory exhaustion allegations

21 || was dismissed for failure to allege exhaustion as to any claim, although it also alleged

22 ||claims one and five were exhausted. (Id., order filed 1/14/15 [ECF No. 7].) Petitioner was

granted leave to file a second amended petition by March 6, 2015 and informed that if hel

24 || failed to allege exhaustion by that time “this case will remain dismissed and Petitioner will

25 to file a new petition which will be given a new case number.” (Id. at 3.)

26 Petitioner presented the majority of his unexhausted claims in a habeas petition filed

27 ||in the California Supreme Court on December 16, 2014, which was denied on March 11,

28 (ECF No. 12-10; ECF No. 83-4.) Because the March 6, 2015 deadline to amend in

1 || the first case expired before his state exhaustion petition was denied on March 11, 2015,

2 did not file a second amended petition in the first case, but followed the directions of

3 ||the January 14, 2015 dismissal order and filed a new federal habeas case which was given

4 ||a new case number, the instant case. Petitioner argues the instant Petition relates back to

5 original timely petition due to excusable mistake, and any untimeliness or default can

6 ||be excused by equitable tolling, actual innocence, or due to ineffective assistance of

7 || appellate counsel. (ECF No. 1-1 at 8, 11; ECF No. 18 at 35; ECF No. 72 at 3.)

8 It was apparent from the face of the petition and first amended petition in the original

9 that Petitioner had timely initiated his federal habeas proceedings on the last day o

10 |; the one-year statute of limitations and had alleged exhaustion as to two of the five claims.

11 Court erred in dismissing it without allowing Petitioner to abandon the unexhausted

12 |/claims or considering whether a stay and abeyance was appropriate. See Rhines v. Weber,

13 U.S. 269, 277-78 (2005) (holding that when faced with a mixed petition a district court

14 should dismiss without prejudice to raise the claims after exhaustion, or, if that might result

15 Petitioner losing the opportunity to present his claims due to the operation of the one-

16 |) year statute of limitations, consider whether to exercise its discretion to stay the action and

17 the petition in abeyance during the exhaustion process.); Anthony, 236 F.3d at 574

18 ||(“This court has made clear that district courts must provide habeas litigants with the

19 || opportunity to amend their mixed petitions by striking unexhausted claims as an alternative

20 || to suffering dismissal.”) Respondent states in the Answer:

21 The Petition appears timely. 28 U.S.C. § 2244(d). Huynh indicates in

9 his current Petition that he previously filed a petition in the district court in

case number 14cv2452. Indeed, the district court’s docket indicates that

Huynh filed a petition in case 3:14cv2452 on October 14, 2014. (SeeLodg.

24 11.) Because the claims in the current Petition were also raised in the petition

filed on October 14, 2014, it appears the claims are timely.

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26 || (ECF No. 16 at 2.)

27 In response to the Order to Show Cause why this action should not be dismissed as

28 untimely, Respondent “agrees” with the Magistrate Judge that this action cannot relate back

I ||to the previously dismissed Petition in the prior federal case, states that it was “error” to

2 ||admit the Petition here is timely, and, without discussing the erroneous nature of this

3 ||Court’s dismissal of the prior case, argues the Petition here is untimely because relation

4 || back is unavailable. (ECF No. 71 at 2.) Petitioner contends he followed this Court’s order

5 || of dismissal in the prior case, argues Respondent should not be allowed to avoid the waiver

6 the affirmative defense of timeliness, and contends equitable considerations permit the

7 Court to find this action timely. (ECF No. 70 at 1-13.)

8 The Magistrate Judge and Respondent are both incorrect in stating that the claims in

9 ||this case, which are the same claims contained in the previously dismissed petition in the

10 || prior case, cannot relate back to the timely-filed petition in that prior case. Although there

I1 a general rule in the Ninth Circuit that new petitions in new cases cannot relate back to

12 || old petitions in dismissed actions where the district court did not retain jurisdiction over

13 || the dismissed action, see e.g. Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999), there

14 an exception for the case, as here, where the erroneous dismissal of the original action

15 || caused the new petition to be untimely. See Anthony, 236 F.3d at 574 (holding that district

16 |/courts have equitable powers to correct their own mistaken dismissal order and allow

17 ||relation back to a previously dismissed petition); Rasberry v. Garcia, 448 F.3d 1150, 1155

18 || (9th Cir. 2006) (“[I]n Anthony the district court exercised its equitable power to accept the

19 ||new petition nunc pro tunc to the date of the original habeas filing-the district court had

20 mistakenly dismissed the first petition, so it corrected the mistake by relating the second

21 petition back to the first. Anthony does not stand for the proposition that a second habeas

22 || petition can relate back to a previously dismissed first petition [where no such mistake

occurred], but merely endorsed the district court’s exercise of its equitable power to correct|

24 |ja mistake. Anthony does not extend beyond that context.”)

25 The Ninth Circuit, in a case which is not controlling because it was vacated when

26 ||that Court learned the petitioner had died prior to the date the opinion was filed, has

27 |\indicated that a district court faced with an erroneous dismissal should, if necessary to

28 having claims barred by the statute of limitations, reopen the prior case pursuant to

I |}Fed.R.Civ.P. 59(e) or 60(b) rather than rely on a relation back theory. See e.g. Griffey v.

2 Lindsey, 345 F.3d 1058, 1062-64 (9th Cir. 2003), vacated, 349 F.3d 1157 (9th Cir. 2003).

3 Although Griffey noted that relation back under Rule 15 is not permitted where the prior

4 ||case was dismissed and a final judgment entered, id. at 1062-63, no judgment, final or

5 ||otherwise, has been entered in the prior case here. See So.Dist.Ca Civil Case No.

6 || 14¢v2452-BEN (RBB) [ECF No. 7]. Accordingly, this Court may permit relation back as

7 equitable remedy for the mistaken dismissal of the prior case or entertain a motion to

8 ||reopen the prior case under Rule 59(e) or 60(b). The Court is inclined to grant relief to

9 ||remedy the erroneous dismissal of the prior case, and chooses to exercise its discretion to

10 find the Petition timely on the basis that it relates back to the prior, timely-filed petition in

11 ||So.Dist.Ca Civil Case No. 14cv2452-BEN (RBB), which was erroneously dismissed as

12 || containing only unexhausted claims.

13 Furthermore, even assuming relation back is unavailable, the Court finds that

14 || Respondent has waived the affirmative defense of statute of limitations by not raising it in

15 Answer, the first responsive pleading filed in this action. Morrison v. Mahoney, 399

16 1042, 1046 (9th Cir. 2005) (“Under the Federal Rules of Civil Procedure, a party,

17 || with limited exceptions, is required to raise every defense in its first responsive pleading,

18 defenses not so raised are deemed waived.”) The Supreme Court has held that the

19 || AEDPA statute of limitations is akin to an exhaustion requirement that could be waived by

20 State, and a district court has “discretion to correct the State’s error” in calculating the

21 |;statute of limitations provided the state has not strategically withheld or chosen to

22 ||relinquish the defense and petitioner is provided the opportunity to address the issue. Day

||v. McDonough, 547 U:S. 198, 202-05 (2006). Respondent, one and one-half years after|

24 || failing to raise the affirmative defense in the Answer, belatedly contends the waiver of the

25 ||defense “was error.” (ECF No. 71 at 2.) Respondent is not entitled to relief from the

26 || waiver because he provides no explanation for the “error” at all, nor disavows that it was a

27 || strategic choice to relinquish the defense in the Answer, and fails to address the erroneous

28 || dismissal of the first action or potential relief under Rules 59(e) & 60(b), but merely agrees

1 || with the Magistrate Judge’s conclusion that relation back is categorically unavailable in

2 ||this case. (Id.)

3 The Court finds the instant Petition is timely and VACATES the Order to Show

4 || Cause.

5 Evidence Presented at Trial

6 The following statement of facts is taken from the appellate court opinion on direct

7 || appeal, which was certified for publication as to the claims alleging insufficient evidence,

8 || failure to properly instruct on causation, refusal to instruct on second degree murder as a

9 lesser included offense of first degree felony murder, and the confrontation claim involving

10 non-examining nurse testifying as to the results of an examining nurse. People v. Huynh,

Cal.App.4th 285 (Cal.App.Ct. Dec. 20, 2012). The Court defers to state court findings

12 || of fact and presumes they are correct. Sumner v. Mata, 449 U.S. 539, 545-47 (1981).

13 Prosecution’s Case

14 In January 2008, Dane Williams, 23, started working for Hurley

15 International, a clothing company based in Orange County. By all accounts,

16 Williams was heterosexual. The company was taking part in an industry trade

convention in San Diego toward the end of the month. Williams drove a

17 company bus to San Diego on the Wednesday before the convention was to

18 start. On the night of January 25, a Friday, Williams went to nightclubs/bars

with his friends and coworkers in the Gaslamp district of downtown San

19 Diego. Brandon Guilmette, who was a longtime friend of Williams and a

20 Hurley coworker, left the group at 1:00 a.m. to return to the Marriott Hotel.

According to Guilmette, Williams had several cocktails, but was “pretty put

21 together still.” Others in the group also said that Williams appeared in control

99 of himself at that time despite his drinking.

However, about an hour later, a Hurley senior designer saw Williams _|

4 in front of the Marriott Hotel and he appeared “discombobulated” or

“(d)efinitely intoxicated.” About 2:20 a.m., a woman saw Williams, who was

25 alone and swaying, in front of the hotel. The woman, who did not know

2% Williams, said he appeared to be “drugged”; he was unbalanced and fell

facedown. When the woman attempted to assist him, Williams stood up,

27 leaned against a wall, and then staggered off. The woman said Williams was

28 unable to speak.

1 Williams did not return to his hotel room and did not show up for work

the next day.

3 Williams’s body, which was lying facedown and rolled in a blanket,

4 was found in an alley in the Mid-City area on Tuesday, January 29, about 6:30

a.m. Williams was wearing the same clothes he had been wearing the night

5 he disappeared, but his underwear and his watch were missing. Also, a beanie

6 cap was on top of Williams’s head; Williams had not been wearing the beanie

cap the night he disappeared.

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g Semen belonging to someone other than Williams was found on his

shirt. Dog hairs were on the blanket that was wrapped around Williams’s

9 body. A hair found on Williams’s shoe was not his. Carpet fibers were on

10 Williams’s clothing. Police saw tire tracks from a van next to the body.

11 On January 30, Deputy Medical Examiner Othon Mena, M.D.,

12 performed an autopsy on Williams. Williams had been dead for one to three

days before his body was found. The autopsy revealed lividity in Williams’s

13 upper chest area, and a “significant” amount of blood and fluid in Williams’s

14 lungs and airways. Williams’s lungs were congested and weighed twice their

normal weight, which can suggest cardiac death or death from asphyxiation.

15 However, there was no evidence of strangulation, no physical signs of

16 asphyxiation and no evidence of a cardiac event. The autopsy also disclosed

a 60 percent blockage of one of the main arteries leading to Williams’s heart,

17 but Dr. Mena opined that this narrowing alone was not the cause of Williams’s

18 death. There was no trauma to Williams’s anus or rectum. Toxicology tests

results showed a blood-alcohol level of between 0.17 percent and 0.21

19 percent. Williams’s blood also contained a therapeutic level (0.36 mg/L) of

20 diazepam, a benzodiazepine drug. [Footnote: The benzodiazepine class of

drugs is, like alcohol, a central nervous system depressant, commonly used as

21 a tranquilizer. Alcohol and benzodiazepines have an additive effect when

99 || used together. In addition to diazepam, another generic benzodiazepine is

clonazepam. Brand names for benzodiazepines include Rivotril, Klonopin,

and Valium.] Trace amounts of diazepam were also found in

7A Williams’s gastric contents. According to Mena, the levels of alcohol and

diazepam were insufficient to have caused Williams’s death, but played a role

25 in the death. (See fn. 2, ante.) [Footnote: The county’s chief medical

6 examiner, as well as experts called by both parties, agreed that although the

combination of diazepam and alcohol did not cause the death of Williams, it

27 played an important role. |

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1 Dr. Mena could not determine the cause or manner of Williams’s death

7 and listed them as “undetermined” in his autopsy report. [Footnote: Dr.

Mena’s testimony as well as that of experts called by each party will be further

3 addressed below in the Discussion portion of this opinion. (See pt. I., post.)]

4 At trial, Mena opined the most likely cause of death was asphyxiation by a

person or from the position Williams was in.

5

6 Williams’s death remained unresolved for 18 months.

7 On Saturday, June 6, 2009, Jeremiah R., a heterosexual Navy corpsman

8 who was recently assigned to Camp Pendleton, visited downtown San Diego.

[Footnote: Jeremiah testified at Huynh’s preliminary hearing in December

9 2009, but did not testify at Huynh’s trial. The preliminary hearing testimony

10 was videotaped and portions of the videotape were played for the jury. (See

pt. XI., post.)] While walking around the Gaslamp district, Jeremiah

11 encountered Huynh, who asked for a cigarette and introduced himself as

2 “Phil.” Huynh asked Jeremiah if he wanted to go to “strip clubs” and offered

to pay for a lap dance, but Jeremiah declined. When Huynh mentioned he had

13 a rental car and asked if Jeremiah wanted to go somewhere else, the corpsman

14 said he wanted to see the local beaches. Before arriving at Ocean Beach, :

Huynh bought two pint-size bottles of cognac at a liquor store. Jeremiah

15 consumed a pint of cognac while at Ocean Beach. Huynh told Jeremiah that

16 he had recently moved to San Diego after a divorce. Jeremiah assumed Huynh

was a heterosexual by the way he acted.

17

18 When Jeremiah mentioned he had a headache, Huynh gave him one or

two pills from a Tylenol bottle, which was inside the car. Huynh then drove

19 to Mission Beach with Jeremiah. Other than playing basketball at Mission

20 Beach, Jeremiah’s recollection of the rest of the night was hazy. He

remembered he felt intoxicated, but did not think it was from the cognac.

21

Jeremiah agreed to go to Mexico with Huynh, but had no recollection

of going to Mexico. Jeremiah believed he went to Mexico because a photo in

cell phone showed him standing under a “Mexico” sign on the Mexican

side of the border.

25 Jeremiah remembered going to Huynh’s residence, where he watched

television in the living room before “crash(ing)” on the bed in Huynh’s

bedroom; Jeremiah was fully clothed. When Huynh tried to wake him up,

27 Jeremiah said he wanted to go back to sleep. At the time, Jeremiah also heard

28 Huynh talking to someone else.

] The next day—Sunday, June 7—Jeremiah was back at Camp

Pendleton, but he did not recall how he arrived there, other than being on a

bus and hitting his nose when the bus driver made a quick stop. Jeremiah was

3 missing his underwear and his pocketknife. Jeremiah felt “strange” and

4 disoriented, and he was slurring his words. A supervising corpsman took

Jeremiah to the emergency room on the base. The emergency room doctor

5 ordered a drug screen, which came back positive for benzodiazepine. Because

6 he was concerned that Jeremiah might have been drugged by someone, the

doctor told the nursing staff to contact the San Diego Police Department.

7

8 On June 8, Jeremiah underwent a SART examination, which showed

(1) his anus had abrasions and lacerations, including two open wounds, and

9 (2) the end of the anal canal was red, which is not normal, and swollen, which

indicated trauma to the rectum. The SART nurse flossed Jeremiah’s teeth and

10

took swabs from his mouth, anus, rectum, penis and scrotum; these were

11 provided to the police, along with Jeremiah’s blood and urine samples.

2 A police forensic analyst ascertained that the scrotal, anal and rectal

13 swabs, as well as dental floss from Jeremiah’s mouth, contained semen that

14 did not belong to Jeremiah. Based on the semen, a DNA analyst generated a

DNA profile, which was placed in a law enforcement database. This DNA

15 profile matched the foreign DNA profile of the semen found on Williams’s

16 shirt 18 months earlier.

17 The level of clonazepam in Jeremiah’s blood was 33 nanograms per

18 milliliter. A therapeutic blood level of clonazepam is between 16 and 30

nanograms per milliliter. However, the metabolite (breakdown) of

19 clonazepam was 128 nanograms per milliliter. Therefore, if Jeremiah had

70 ingested the drug around midnight of June 6, the blood level of the drug would

have been about twice the level that was detected—an amount substantially

21 in excess of a high therapeutic dose.

22 Police used Jeremiah’s cell phone records to track down Huynh.

Jeremiah selected Huynh from a six-pack photographic lineup.

24 On September 10, police stopped and arrested Huynh as he was driving

25 an Infiniti that was registered to him. Police found prescriptions and receipts

26 from Mexico for Rivotril (see fn. 2, ante ) in Huynh’s wallet and a pill crusher

in a bag on the floor of the vehicle. Inside the side pocket of the driver’s side

27 door there were two prescription bottles of Viagra and one prescription bottle

28 of Ambien.

1 Police also searched the car of Huynh’s mother, a Subaru, which Huynh

> had been driving earlier that day. Police found Huynh’s pay stubs, mail,

receipts for diazepam and Abilify prescriptions, four Mexican pharmacy

3 receipts and prescriptions for Rivotril, which were purchased between March |

4 and October 2008. Also in the Subaru were bank statements, including one

showing a September 2008 withdrawal of money in Tijuana, and rental

5 documents of a Dodge minivan from Enterprise-Rent-A-Car dated January

6 28, 2008. Police also found a list of pornographic movie titles, including

“Straight Buddy Seduction,” “Straight Meat, Hung and Full of Cum,” and

7 “Straight Buddy Sex.”

8 Police searched the residence at 5360 1/2 Wightman Street, where

9 Huynh and his mother lived. In Huynh’s bedroom, police found a book about

10 homosexuality in the military and homosexuals who are interested in men in

the military. Also in the bedroom was a lockbox, which contained two

11 watches that did not belong to Huynh. In the kitchen, police also found 12

2 empty prescription bottles in Huynh’s name for, among other drugs, Viagra,

Levitra, clonazepam, and diazepam. The prescription bottle for diazepam

13 indicated the prescription was filled on January 25, 2008.

An FBI forensic computer expert examined a computer which police

15 confiscated from the Huynh residence. The expert found a Yahoo user profile

16 that had been set up as “I like str8 guys 2.” The expert also found numerous

craigslist postings from “Ph” using various e-mail addresses including

17 “dhuyhn20@cox.net.” One post read: “I work down at Adelita’s. I like

18 masculine guys. Come to TJ and see me some time. The beer is on me.” The

expert also found a response to a craigslist posting about Tijuana in which

19 “Phil” using an e-mail address of “dhuyhn20@cox.net,” wrote he would “pay

0 for everything, clubs, titty bars.” Some of the e-mails included photographs

of Huynh. In one of these photographs, there was a blanket similar to the one

21 in which Williams’s body was wrapped.

22 Police also found documents in the residence which indicated that

Huynh attended the Kirksville College of Osteopathic Medicine fortwo years.

74 Among the classes Huynh took there was a course in pharmacology, which

included the study of the benzodiazepine class of drugs. The chairman of the

25 pharmacology department at the college testified that students in the course

learned that benzodiazepines can create an “amnesia-like” state and can lead

to unconsciousness and loss of any ability to resist. Additionally, the

27 pharmacology students learned that if alcohol is ingested as well, these effects

28 are intensified.

1 After Huynh was arrested, police took a DNA swab from his mouth.

> The DNA was profiled and compared to the DNA evidence collected from

Williams and Jeremiah.

3

4 Huynh’s DNA was found on the sperm fraction of the DNA on

Williams’s shirt. The probability of someone at random matching that profile

5 is one in 990 quintillion Caucasians, one in 4.5 sextillion African-Americans

6 and one in 6.6 sextillion Hispanics. [Footnote: Probability statistics for DNA

comparisons are typically based on these three major racial groups. The

7 statistics for Asians would be lower, but not significantly.] Huynh’s DNA

g was found on the beanie cap. The probability of someone at random matching

that profile is one in 19 million Caucasians, one in 120 million African-

9 Americans and one in 110 million Hispanics. The DNA profile from a hair

10 found on Williams’s shoe matched the DNA profile of Huynh’s mother. DNA

analysis also showed that hairs found on the blanket which was wrapped

1] around Williams’s body belonged to Huynh’s dog. The probability of a

2 random dog’s DNA matching the DNA from the dog hairs on the blanket is

one in 2.4 trillion. Fibers found on Williams’s clothing matched the fibers of

13 the carpet located in Huynh’s residence.

Tire tracks found next to Williams’s body matched the tires, wheel base

15 and front wheel drive system of the Dodge minivan that Huynh had rented on

16 the day before Williams’s body was found. Fibers found on Williams’s

clothes matched the carpet fibers of the van that Huynh had rented.

17

18 Huynh’s DNA was found in the sperm fraction of the DNA collected

from Jeremiah’s penis, scrotum and anus. The probability of someone at

19 random matching that profile is one in 990 quintillion Caucasians, one in 4.5

20 sextillion African-Americans and one in 6.6 sextillion Hispanics, with a

slightly lower figure for Asians.

21

In 2006, an adult video company hired Huynh to perform computer

work for the company. Huynh told one of the company’s owners that he liked

“(y)oung, straight” men and wanted to have anal sex with them. Huynhalso

said he picked up young heterosexual men, many of whom were in the

military, offered to buy them drinks and prostitutes in Tijuana, took them to a

25 Tijuana bar to get them drunk, slipped pills into their drinks, brought them to

a hotel and had sex with them when they passed out.

27 In January 2011, representatives of the San Diego County District

28 Attorney flew to Chicago to interview Ryan R. in connection with the Huynh

case. Ryan, a San Diego native, had relocated to Chicago in 2009. In 2007,

1 Ryan, then 19 years old and a recent high school graduate, worked as a video

> editor for the same company that employed Huynh. The company also paid

Ryan to be filmed masturbating. Ryan and Huynh often had lunch together,

3 and Ryan believed Huynh to be a heterosexual like himself. Huynh frequently

4 invited Ryan to accompany him to Mexico and offered to pay for drinks and

girls. The two owners of the video company had warned Ryan that Huynh

5 liked to take young men to Tijuana, where he would get them drunk, “slip”

6 them drugs and then sexually assault them. But Ryan did not believe the □

owners. One night Ryan phoned Huynh because he was bored. Huynh

7 suggested they go to a “titty bar” in Tijuana, and Huynh took Ryan to a strip

g bar called “Purple Rain.” Huynh bought Ryan three or four beers and

suggested they rent a hotel room to use as their “home base.” Once in the

9 hotel room, Huynh placed a pill in a bottle of water and offered it to Ryan,

10 who at first declined to drink from the bottle. Because Ryan had “a guard up,”

he asked Huynh to drink from the bottle first. Ryan could not remember the

11 rest of the evening. He woke up the next morning facedown on a hotel bed

2 with his shirt off and his pants undone. Ryan felt “hung over,” but not like

one would feel from drinking too much alcohol. He also felt like he had been

13 sodomized. Ryan looked for Huynh, but could not find him.

4 Also, after Huynh’s arrest was reported in news media, three other

15 young men, all heterosexual, contacted police about their experiences with

16 Huynh.

17 In April 2008, Maksim I. was clubbing in downtown San Diego with

18 his wife and a friend. While his wife and friend were waiting in a line to get

into a nightclub, Maksim walked to a nearby store, where Huynh approached

19 him, and the two talked. Maksim returned to his wife and friend at the club.

20 After his wife left with her friends, Maksim and his friend went to another

bar. Huynh was at this bar. When the bar closed, Maksim and his friend went

21 outside, where they saw Huynh. The three of them started talking about

79 Mexico and Huynh’s offer to pay for the “girls.” Maksim and his friend

agreed to go with Huynh and the three went to Adelita’s in Tijuana. Maksim’s

‘friend was feeling ill and decided to go home. After Maksim drank beers,

he and Huynh went to a hotel room. Waiting in the hotel room for girls to

arrive, Maksim said he was thirsty and Huynh gave him a Sprite soft drink.

25 Maksim’s next memory was waking up in the hotel room at 4:00 p.m. the next

%6 day; the door to the room was open. Maksim’s debit card and watch were

missing. At trial, Maksim testified he felt numb, disoriented and confused.

27 Maksim also identified one of the watches from the box in Huynh’s residence

28 as the one he had been wearing that night.

1 On May 24, 2009, Fernando P., a 21-year-old sailor in the Navy, was

> drinking rum in the Gaslamp district when Huynh approached and started a

conversation. Huynh told Fernando he was divorced and was going to go to

3 strip clubs in Tijuana. Huynh invited Fernando to accompany him and offered

4 to pay for drinks and strippers. Fernando, who thought Huynh was interested

in women, accepted the invitation. At Adelita’s, Huynh bought beers.

5 Fernando soon began to feel strange and when he mentioned this, Huynh said

6 it was time to go to the hotel room because the girls were on the way. Huynh

repeatedly told Fernando to take a Viagra pill, and in the hotel room Huynh

7 attempted to force Fernando to do so. Fernando felt dizzy, weak .and

g nauseated, but pushed Huynh away and ran out of the hotel room. He ran until

he fell into a ditch. Fernando spent two days in a hospital in a coma; he had

9 arrived at the hospital shirtless.

10 On Friday, August 21, 2009, David G., a 25-year-old college student

11 who lived in downtown San Diego, was drunk when he went looking for some

12 late-night food. Huynh walked up to David and said, “Hey, what’s up?”

Huynh also said he wanted to go to Mexico and invited David to accompany

13 him, saying he would pay for everything. David agreed. At Adelita’s in

14 Tijuana, Huynh said he wanted Ecstasy and Viagra, but David said he did not

take drugs. At one point, Huynh went to the bar and returned with an open

15 beer bottle for David. Huynh then said he had a room and “girls” would

16 “come over.” After walking out of Adelita’s, David blacked out. He awoke

the next day in a hotel room. The door was ajar and David was fully clothed,

17 but had scratches on his arm and shoulder. David felt horrible, dizzy and

18 confused. At trial, David identified one of the watches that police found in

the box in Huynh’s residence as the watch he had been wearing on the night

19 he met Huynh.

20 Defense Case

21

About 2:00 a.m. on January 26, 2008, a coworker encountered Williams

near the Marriott Hotel. Williams, who was “pretty out of it,” suggested they

{| “do something.’” ~The coworker was tired and went to his hotel. [§] The — |

A defense also presented evidence that Williams’s body was left in the alley

between 9:00 p.m. and 10:00 p.m. on January 28, 2008.

25

6 Roger Miller, a DNA expert, testified the eight sperm cells found in

Williams’s anal swab were not significant because there was insufficient

27 genetic material to perform DNA testing. Miller also said the sperms cells

28 could belong to Williams because sperm is easily transferred. Miller added

he would expect to find sperm cells in 100 percent of men’s underwear. Miller

1 also discounted the notion that the sperm found in Williams’s anus belonged

> to Huynh simply because Huynh’s sperm was found on Williams’s shirt. [4]

Although sperm was found on David G.’s shirt, the DNA profile obtained

3 from the sperm matched David’s own DNA profile and excluded Huynh.

4 A physician from Sharp Chula Vista Medical Center testified that when

5 Fernando P. was brought to the hospital, his blood-alcohol level was 0.23

6 percent. Fernando P. was so intoxicated he had to be intubated and placed on

a ventilator. A toxicology screen did not reveal any drugs in his system.

7 The defense also presented the testimony of three pathology experts, which

g will be discussed below, (See fn. 4, ante.)

9 || People v. Huynh, 212 Cal.App.4th at 291-98.

10 PETITIONER’S CLAIMS *

11 (1) Insufficient evidence exists to support the murder conviction because the cause

12 || of death was never proven and recently discovered evidence points to a natural cause of

13 ||death, or to support the oral copulation and sodomy counts because there is no evidence

14 || linking Petitioner to those crimes, no evidence Williams was alive when sexually assaulted,

15 |}and no evidence he was orally or anally penetrated. (ECF No. 1 at 6; ECF No. 1-1 at 3-9.)

16 (2) Petitioner is actually innocent based on “diligently discovered scientific

17 || evidence presented herein [which] undermines the prosecution’s entire case and points to

18 || petitioner’s innocence.” (ECF No. 1 at 7; ECF No. 1-1 at 8.)

19 (3) Petitioner received ineffective assistance of trial counsel in violation of the Sixth

20 || Amendment due to: (a) a conflict arising from a hostile and uncommunicative relationship,

21 ||and (b) counsel’s failure to (i) request a change of venue, (ii) point out evidentiary

22 || discrepancies to the jury, (iii) request a jury instruction, (iv) present evidence of third party

23 ||guilt and improper handling of DNA testing samples, (v) object to inflammatory

24

25 ||? “The Supreme Court has instructed the federal courts to liberally construe the ‘inartful

% pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987),

quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982); see also Zichko v. Idaho, 247 F.3d

27 1020 (9th Cir. 2001) (holding that liberal construction of pro se prisoner habeas

petitions is especially important with regard to which claims are presented). The claims as

28 Peer

addressed herein is based on such a construction of the pro se Petition.

1 statements, and (vi) investigate Petitioner’s mental health for use at trial as a defense and

2 sentencing as mitigation. (ECF No. 1 at 8; ECF No. 1-1 at 3-5, 7-8, 11-12.)

3 (4) Petitioner’s right to due process under the Fifth and Fourteenth Amendments

4 || was violated by: (a) allowing the sex offenses to be used as propensity evidence, (b) jury

5 j/instructional errors, (c) a biased judge, (d) inability to confront witnesses, and (e) the

6 |)cumulative effect of the errors. (ECF No. 1 at 9; ECF No. 1-1 at 4, 6-12.)

7 (5) Petitioner’s right to be free from an unreasonable search and seizure under the

8 || Fourth Amendment was violated by a second, warrantless search of his home, during which

9 || the watches introduced against him were seized. (ECF No. 1 at 9; ECF No. 1-1 at 4, 6.) ©

10 DISCUSSION .

11 As set forth herein, the Court finds, as to those claims which were adjudicated on

12 |; the merits in state court, that federal habeas relief is not available because the state court

13 || adjudication is neither contrary to, nor an unreasonable application of, clearly established

14 || federal law, nor based on an unreasonable determination of the facts. As to the remaining

15 || claims, the Court finds, based on a de novo review, that habeas relief is unavailable because

|| Petitioner has not alleged facts which, if true, establish a federal constitutional violation.

17 ||The Court finds appointment of counsel, discovery, and an evidentiary hearing are

18 |} unwarranted, and issues a Certificate of Appealability limited to the claims set forth below

19 the conclusion. .

20

21 A. Standard of Review .

22 In order to obtain federal habeas relief with respect to a claim which was adjudicated

the merits in state court, a federal habeas petitioner must demonstrate that the state court}

24 || adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an

25 || unreasonable application of, clearly established Federal law, as determined by the Supreme

26 of the United States; or (2) resulted in a decision that was based on an unreasonable

27 || determination of the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C.A. § 2254(d) (West 2006). Even if § 2254(d) is satisfied, a petitioner must show

1 ||a federal constitutional violation occurred in order to obtain relief. Fry v. Pliler, 551 U.S.

2 119-22 (2007); Frantz v. Hazey, 533 F.3d 724, 735-36 (9th Cir. 2008) (en banc).

3 A state court’s decision may be “contrary to” clearly established Supreme Court

4 || precedent (1) “if the state court applies a rule that contradicts the governing law set forth

5 [the Court’s] cases” or (2) “if the state court confronts a set of facts that are materially

6 || indistinguishable from a decision of [the] Court and nevertheless arrives at a result different

7 || from [the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state

8 ||court decision may involve an “unreasonable application” of clearly established federal

9 |! law, “if the state court identifies the correct governing legal rule from this Court’s cases

10 unreasonably applies it to the facts of the particular state prisoner’s case.” Id. at 407.

11 || In order to satisfy § 2254(d)(2), the factual findings relied upon by the state court must be

12 objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

13 When a federal habeas court addresses a claim which has not been adjudicated on

14 |/the merits in state court, pre-AEDPA de novo review is required. Pirtle v. Morgan, 313

15 ||F.3d 1160, 1167-68 (9th Cir. 2002). Under such a review, “state court judgments of

16 || conviction and sentence carry a presumption of finality and legality and may be set aside

17 when a’state prisoner carries his burden of proving that (his) detention violates the

18 || fundamental liberties of the person, safeguarded against state action by the Federal

19 Constitution.” Hayes v. Brown, 399 F.3d 972, 978 (9th Cir, 2005) (en banc). The state

20 || court’s reasoning on any related claim must be considered. Frantz, 533 F.3d at 738

21 || (holding that where the reasoning of the state court is relevant, it must be part of a federal

22 habeas court’s consideration even under de novo review).

Be Claim Ome

24 Petitioner alleges in claim one, as he did on direct appeal, that his federal due process

25 were violated because insufficient evidence supports the murder conviction and the

26 copulation and sodomy of an intoxicated person convictions as to the murder victim.

27 ||(ECF No. 1 at 6; ECF No. I-I at 3-11, citing Jackson v. Virginia, 443 U.S. 319 (1979)

28 || (holding that the Fourteenth Amendment’s Due Process Clause is violated, and an applicant

1 |}is entitled to habeas corpus relief, “if it is found that upon the record evidence adduced at

2 ||the trial no rational trier of fact could have found proof of guilt beyond a reasonable

3 ||doubt.”).) Petitioner contends the state court applied a “reasonable probability” standard

4 || rather than proof beyond a reasonable doubt as to the element of death by criminal agency,

5 that a reasonable doubt exists as to whether he caused Williams’ death because the

6 || evidence shows Williams had a potentially fatal heart condition which can cause sudden

7 || death, and the jury’s finding he caused Williams’ death is “based on conjecture, guesswork,

8 || and unverifiable possibilities.” (ECF No. 1-1 at 3-11.) He alleges there was no evidence

9 || linking him to a sexual assault on Williams, no evidence Williams was alive when he was

10 |}sodomized or orally copulated, and no evidence Williams was orally or anally penetrated.

11 ||(Id.) In an aspect of this claim not presented to any state court, Petitioner claims that

12 || insufficient evidence was presented to support the oral copulation and sodomy convictions

13 ||involving Jeremiah. (Id. at 4.)

14 Respondent answers that the state court adjudication of claim one is neither contrary

15 nor an unreasonable application of, Jackson v. Virginia, because, despite the fact that

16 state appellate court applied a “reasonable probability” standard regarding proof o

17 ||death by criminal agency, viewing the evidence in the light most favorable to the

18 || prosecution and presuming the jury resolved any conflicting inferences against Petitioner,

19 rational jury could have found beyond a reasonable doubt that Petitioner was responsible

20 || for Williams’ death. (ECF No. 16-1 at 9-10.)

21 Petitioner presented this claim as it applies to the murder victim to the appellate court

22 direct appeal. (ECF No. 12-2 at 44-59.) The court denied the claim on the merits in a

written opinion published in part as to this claim. People v. Huynh, 212 Cal-App.4th at|

24 298-303. It was then presented to the state supreme court in a petition for review (ECF

25 12-9 at 15-22), which was denied with an order which stated: “The petition for review

26 denied.” (ECF No. 83-2, People v. Huynh, No. $208162, order at 1 (Apr. 10, 2013).)

27

28

1 The Court will apply the provisions of 28 U.S.C. § 2254(d) to the last reasoned

2 decision with respect to claim one, the state appellate court opinion.* Ylst v. Nunnemaker,

3 U.S. 797, 803-06 (1991) (“Where there has been one reasoned state judgment rejecting

4 ||a federal claim, later unexplained orders upholding that judgment or rejecting the same

5 ||claim [are presumed to] rest upon the same ground.”); Barker v. Fleming, 423 F.3d 1085,

6 | 1091 (9th Cir. 2005) (“When more than one state court has adjudicated a claim, we analyze

7 || the last reasoned decision.”) The state appellate court on direct appeal stated:

8 Huynh contends his murder conviction must be reversed because there

9 is insufficient proof of death by criminal agency. The contention is without

merit.

10

Because Huynh’s contention is based on conflicting medical evidence

presented at trial, we begin by relating the medical testimony in more detail.

12

3 In responding to hypothetical questions by the prosecution, Dr. Mena

said that a penis placed in a person’s mouth could make it more difficult to

14 breathe and could cause that person’s death if he or she had a 0.17 percent

15 blood-alcohol level and had ingested benzodiazepine as well. [Footnote: Dr.

Mena responded similarly when the prosecutor changed the hypothetical from

16 a penis in a person’s mouth to situations in which (1) the person is lying

17 facedown while being sodomized, (2) someone is sitting on the person’s chest,

or (3) the person’s neck is turned while he was being sexually assaulted.]

18 Mena also testified that if he had known that Huynh gave Williams

19 benzodiazepine and sexually assaulted Williams, he would have changed the

cause of death to “sudden death during or around the time of sexual assault

20 while intoxicated” and changed the manner of death to homicide.

21

22 Va After this claim was denied on direct appeal, Petitioner presented it in his state habeas

|| petition which was denied on procedural grounds. A claim denied on the merits on □□□□□□□

4 appeal and raised in a later state post-conviction proceeding and denied on procedural

grounds is not procedurally defaulted. See Koerner v. Grigas, 328 F.3d 1039, 1049-53 (9th

25 || Cir. 2003) (“A claim cannot be both previously litigated and procedurally defaulted.”) To

%6 the extent Petitioner relied on additional evidence in the state habeas petition not presented

on direct appeal, as seen below, the new evidence does not render it unexhausted. See

27 || Aiken y. Spalding, 841 F.2d 881, 884 n.3 (9th Cir. 1988) (holding that new facts may

28 render an exhausted claim unexhausted when it “places [the] claim in a significantly

different and stronger evidentiary posture that it had when presented in state court.”)

1 In addition to Dr. Mena’s testimony, the prosecution presented the

expert testimony of Jonathan Benumof, M.D., an anesthesiologist and

cardiovascular specialist who opined the cause of Williams’s death was an

3 “external obstruction to breathing.” [Footnote: Dr. Benumof is not a

4 pathologist and has not performed an autopsy other than in medical school.

Benumof testified he reviewed Dr. Mena’s report and his testimony at the

5 preliminary hearing, he did not, however, view any of the autopsy

6 photographs or slides.] Pointing to the excessive postmortem weight of

Williams’s lungs, Dr. Benumof concluded there was a “complete” obstruction

7 to breathing, which had caused “negative pressure pulmonary blood and

edema.” Benumof also opined the combination of alcohol and diazepam

contributed to Williams’s death by “hamper(ing) any effective opposition

9 (Williams) would have mounted” against the external obstruction to his

10 breathing. Benumof did not know what the obstruction to Williams’s

breathing was, but opined that a penis in his mouth could have caused such a

11 complete obstruction.

12 The defense presented the testimony of Glenn Wagner, M.D., the chief

13 medical examiner for San Diego County, and Christopher Swalwell, M.D., a

14 deputy medical examiner. Both doctors testified that there was a consensus

in the office that the cause and manner of Williams’s death were

15 “undetermined.” Further, the consensus did not change after prosecutors and

16 police provided the office with additional information, including the

prosecution’s theory that (1) Huynh had drugged Williams with

17 benzodiazepine and sexually assaulted him, and (2) Huynh’s DNA was found

18 on Williams.

19 Dr. Wagner also testified the medical examiner’s office is usually

20 disinclined to classify the cause and manner of death as “undetermined.”

Wagner said Williams’s death was one of those unusual cases where medical

21 examiners are unable to determine what happened despite a comprehensive

2 autopsy and attention to physical detail. [Footnote: In answering a

hypothetical posed by the prosecution, Dr. Wagner opined that if it were

established that Huynh gave Williams benzodiazepine and sexually assaulted □□ □

him, Wagner would agree with Dr. Mena the cause of death should be changed

to sudden death during sexual assault and the manner of death should be

25 changed to homicide.]

26 The defense also presented the expert testimony of Todd Grey, M.D.,

27 the chief medical examiner for Utah, who opined Dr. Mena did a thorough

28 examination of Williams’s body and provided a well-reasoned autopsy

opinion. Grey testified he agreed with Mena’s certification of the cause and

1 manner of Williams’s death as “undetermined.” Grey opined the 60 percent

occlusion of Williams’s coronary artery is rare for a 23-year-old person and

possibly played a role in the death. Grey said the blockage possibly caused

3 Williams’s death from a heart attack that could not be ascertained postmortem.

4 Grey said other possible causes of Williams’s death include a lethal seizure,

cardiac arrhythmia, suffocation and the combined effects of alcohol and

5 diazepam in his system leading to a suppression of respiration or a

6 “diminution of his drive to breathe.”

7 Dr. Grey also criticized Dr. Benumof’s opinion that Williams died from

g a total obstruction of his airways. Grey said congested lungs that are full of

fluid are present in other types of deaths. Grey testified a medical examiner

9 does not properly determine the cause of death based on the weight of the

10 decedent’s lungs and the fact they were congested because such findings do

not prove airway obstruction. Edema and frothy fluids can be present in “all

11 kinds of different situations and causes of death,” including “slow cardiac

deaths” and “respiratory depression.” Grey also criticized Benumof’s

methodology and opinion in part because Benumof offered his opinion before

13 reviewing any materials in the case, including the autopsy report.

Because all of the testifying pathologists and medical examiners (see

15 fn. 8, ante) agreed the manner and cause of Williams’s death were

16 “undetermined,” Huynh argues the prosecution failed to prove criminal

agency - that is, the criminal act of another was the cause of death. (See

17 People v. Ives (1941) 17 Cal.2d 459, 464.) The term “criminal agency” is

18 usually used in the context of establishing the corpus delicti. “‘The elements

of the corpus delicti are (1) the injury, loss or harm, and (2) the criminal

19 agency that has caused the injury, loss or harm.’” (People v. Kraft (2000) 23

20 Cal.4th 978, 1057.) “In a prosecution for murder, as in any other criminal

case, the corpus delicti - i.e., death caused by a criminal agency - must be

21 established independently of the extrajudicial statements, confessions or

9 admissions of the defendant.” (People v. Towler (1982) 31 Cal.3d 105, 115.)

[Footnote: In this regard, “(t)he purpose of the corpus delicti rule is to assure

that “the accused is not admitting to a crime that never occurred.” (People v.

4 Jones (1988) 17 Cal.4th 279, 301.) Accordingly, before a confession may be

introduced, the prosecution must introduce some corroborating evidence that

25 shows someone committed a crime. (People v. Ochoa (1998) 19 Cal.4th 353,

% 405.) The corpus delicti also serves another purpose. “‘(T)he corpus delicti

is a necessary element of the prosecution’s case in a criminal trial... . Thus,

27 a precondition to conviction is that the state prove that a ‘crime’ has been

28 committed - otherwise there could not possibly be guilt, either in the accused

or in anyone else.’” (Id. at p. 404, italics omitted.)] The corpus delicti of

1 murder consists of the death of the victim and a criminal agency as the cause

7 of that death. (People v. Small (1970) 7 Cal.App.3d 347, 354.)

3 It is undisputed that Williams died; hence, the only issue was whether

4 his death was caused by the criminal act of another. The standard of proof

required to show criminal agency is only a reasonable probability; in other

5 words, only a slight or prima facie showing that the criminal act of another

6 caused the death is necessary. (Matthews v. Superior Court (1988) 201

Cal.App.3d 385, 392.) “To meet the foundational test the prosecution need

7 not eliminate all inferences tending to show a noncriminal cause of death.

Rather, the foundation may be laid by the introduction of evidence which

creates a reasonable inference that the death could have been caused by a

9 criminal agency (citation), even in the presence of an equally plausible

10 noncriminal explanation of the event.” (People v. Jacobson (1965) 63 Cal.2d

319, 327.)

1] .

2 The corpus delicti may be proved by direct or circumstantial evidence

as well as by other acts evidence. (Matthews v. Superior Court, supra, 201

13 Cal.App.3d at p. 392.) In that regard, the fact that Williams’s body was found

14 in an alley wrapped in a blanket furnishes at least a prima facie showing of

criminal agency, inasmuch as the bodies of victims of accidental deaths

15 typically would not be disposed of in this manner. (People v. Kraft, supra, 23

16 Cal.4th at p. 1057.) An inference of criminal agency in connection with

Williams’s death is therefore reasonable. Likewise, one could reasonably

17 infer criminal agency by the other acts evidence - namely, that Huynh’s modus

18 operandi was to drug young, heterosexual males and then sexually assault

them. (Matthews v. Superior Court, supra, at pp. 392-393.) Other evidence

19 leading to a reasonable inference of criminal agency includes the semen in the

0 anus and mouth of Williams, a heterosexual; Huynh’s semen on Williams’s

shirt; hair from Huynh’s mother and dog on the body; the diazepam in

21 Williams’s body and the prescription receipts for the drug found in Huynh’s

9 car; Huynh having taken a college course on the effect of drugs, including

diazepam; and the tire tracks from Huynh’s rental van matching the tire tracks

‘found in the alley where the body was found.

24 Huynh argues that Dr. Benumof’s testimony should be disregarded

25 because he is not a forensic pathologist and his opinions were based on

%6 speculation, guesswork and conjecture. However, it is up to the jury - not an

appellate court - to determine what weight to give to the testimony of an expert

27 witness. (People v. Rittger (1960) 54 Cal.2d 720, 733.) Also, Huynh ignores

28 the hypothetical questions posed by the prosecution to Dr. Mena and Dr.

Wagner and the doctors’ answers. (See fn. 7 & accompanying text, fn. 9,

ante.) The hypothetical questions and answers were within the scope of

proper expert testimony. (People v. Sims (1993) 5 Cal.4th 405, 437.)

3 More significantly, we reject Huynh’s implicit notion that an

4 inconclusive autopsy necessarily results in a failure to establish criminal

agency, which is at the core of his argument. Case law shows Huynh is

5 mistaken.

6 In People v. Towler, supra, 31 Cal.3d at pages 112 and 113, the murder

7 victim was found on the banks of the Stanislaus River two months after he

8 disappeared. The deterioration of the victim’s body precluded the examining

doctors from determining the cause of death. (Jd. at p. 113.) The doctors

9 discounted the cause of death as being from a gunshot, stabbing or

10 strangulation, but were unable to exclude a drug overdose, suffocation or

drowning. (Ibid.) The defense presented evidence suggesting the victim

11 could have died accidently after using the drug PCP. (Jd. at pp. 113-114.)

2 Our Supreme Court rejected the defendant’s argument that without his

extrajudicial statements the evidence was insufficient to establish the victim’s

13 death was the result of a criminal agency. (Id. at pp. 115-117.) “Although the

14 medical testimony was inconclusive, there was a considerable amount of

additional evidence, exclusive of Towler’s statements, from which it was

15 reasonable to infer that Stone’s death could have been caused by a criminal

16 agency.” (/d. at pp. 115-116.) Among other things, the Supreme Court noted

the victim (1) was a police informant who associated with people involved in

17 illegal drug sales and some of them knew of or suspected his informant role;

18 (2) apparently was worried about his own safety as evidenced by his telling a

coworker to contact the police if he did not show up for work; (3) disappeared

19 suddenly without telling anyone where he was going; (4) apparently was taken

0 to the remote river location because he had no vehicle; and (5) was found in

the same new clothes he had obtained for his position of assistant manager of

21 a restaurant - an outfit he presumably would not wear for a camping trip to the

22 river. (/d. at p. 116.)

SAX of this evidence, of course, did not rule out the possibility that □□□□

Stone had died from noncriminal causes. As noted, however, the corpus

delicti rule is satisfied ‘by the introduction of evidence which creates a

25 reasonable inference that death could have been caused by a criminal agency

6 ... even in the presence of an equally plausible noncriminal explanation of

the event.’ (Citation.) We conclude that the evidence is sufficient to support

27 a reasonable inference that death could have been caused by a criminal

28 agency.” (People v. Towler, supra, 31 Cal.3d at p. 117.)

1 In People v. Jacobson, supra, 63 Cal.2d at page 327, the parties

presented conflicting medical evidence about whether the drowning death of

a 21-month-old child was accidental. Our Supreme Court found the conflict

3 in medical testimony did not rule out a finding of criminal agency. (Jbid.)

4 “With two possible contrary inferences before it, the court did not err in ruling

that a prima facie showing of corpus delicti had been made. To meet the

5 foundational test the prosecution need not eliminate all inferences tending to

6 show a noncriminal cause of death. Rather, the foundation may be laid by the

introduction of evidence which creates a reasonable inference that the death

7 could have been caused by a criminal agency (citation), even in the presence

of an equally plausible noncriminal explanation of the event.” (/bid.

g Pp

9 In People v. Johnson (1951) 105 Cal.App.2d 478, 483, the doctor who

10 performed the autopsy testified that the fatal gunshot wound could have been

self-inflicted because of the position of the entry of the projectile. The doctor

11 also testified that no visible powder burns were on the victim’s body. (/bid.)

12 Notwithstanding the inconclusive autopsy evidence on the cause and manner

of death, the appellate court found the testimony of a woman living in the

13 apartment directly below the victim’s apartment was sufficient to establish

14 criminal agency. (/d. at pp. 480, 484-485.) The woman testified that she

heard a scream and someone say: “‘“No Ernest, no, don’t, don’t”’ (-)

15 something to that effect.” (/d. at p. 480.) The witness continued: “‘. . . [heard

16 another scream and a thud.’” (/bid.) The appellate court noted: “The outcry,

identified as Mrs. Johnson’s, was strong circumstantial evidence of an assault

17 or threat of violence of sufficient gravity to evoke the screams and the

18 pleading cry followed by another scream, from which an inference of suicide

could not reasonably be drawn.” (/d. at p. 484.) “(T)he outcry and screams

19 ...(a)t the very least . . . showed ‘a reasonable probability’ that the criminal

20 act of another was the cause of death.” (/d. at p. 485.)

21 People v. Huynh, 212 Cal.App.4th at 298-303.

22 “[T]he Due Process Clause protects the accused against conviction except upon

|| proof beyond a reasonable doubt of every fact necessary to constitute the crime with which|

24 |\he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The Fourteenth Amendment’s

25 || Due Process Clause is violated, and an applicant is entitled to federal habeas corpus relief,

26 it is found that upon the record evidence adduced at the trial no rational trier of fact

27 ||could have found proof of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 324.

28 |; The Court must apply an additional layer of deference in applying the Jackson standard,

1 “must ask whether the decision of the California Court of Appeal reflected an

2 || ‘unreasonable application of Jackson and Winship to the facts of this case.” Juan H. v.

3 || Allen, 408 F.3d 1262, 1274 (9th Cir. 2005), quoting 28 U.S.C. § 2254(d)(1).

4 The evidence from which Petitioner’s jury could have drawn a reasonable inference

_ 3 ||that Williams died as a result of being sodomized or orally copulated by Petitioner while

6 || intoxicated included: (1) semen was found in Williams’ mouth and anus, and Petitioner’s

7 semen found on Williams’ shirt, despite Williams being a heterosexual, (2) Williams was

8 found without his watch and a watch which did not belong to Petitioner was recovered

9 from Petitioner’s bedroom, (3) diazepam was found in Williams’ blood, and Petitioner

10 || possessed diazepam and had taken a medical course regarding its effects, and (4) forensic

11 || evidence connected Petitioner to the clothing and cap Williams was wearing, the blanket

12 || in which his body was wrapped, and carpet fibers from a van Petitioner rented, which also

13 matched tire tracks near Williams’ body. In addition, there was evidence Petitioner had a

14 ||modus operandi of drugging and sexually assaulting young heterosexual men, consisting

15 || of: (1) his statement to his two employers that he enjoyed drugging young heterosexual

16 so he could sexually assault them, (2) pornographic material found in his car and)

17 || bedroom showing an interest in homosexual contact with heterosexual men, and internet

18 postings found on his computer offering to pay for trips to strip clubs with such men; (3)

19 || testimony from Ryan R. that he had been warned by Petitioner’s employers that Petitioner

20 || liked to take young men to Tijuana where he would drug them and have sex with them

21 || after they passed out, which happened to Ryan when he accompanied Petitioner to Tijuana;

22 (4) trial testimony from victim Jeremiah and three other young heterosexual men who

came forward with similar-stories-of encounters-with-Petitioner,one-of-whom-identified-

24 ||his missing watch as among those found in Petitioner’s bedroom.

25 || The jury could have reasonably inferred from that evidence that Petitioner drugged

26 || Williams, orally copulated or sodomized him, and disposed of his body after he died during

27 ||their encounter. However, Petitioner maintains that the evidence did not establish beyond

28 |/a reasonable doubt that he caused Williams’ death. Rather, he contends he can show

1 || Williams suffered from “a potentially fatal condition known as left ventricular hypertrophy

2 can cause arrhythmia and sudden death.” (ECF No. 1-1 at 3.)

3 Dr. Othon Mena, the Deputy San Diego County Medical Examiner who performed

4 || the autopsy on Williams, testified that he is required in every case to assign a manner of

5 death and a cause of death. (ECF No. 17, Reporter’s Tr. [“RT”] at 756-57.) He said there

6 ||are five manners of death, natural, homicide, accident, suicide and undetermined, and that

7 cause of death is the injury or disease which begins the sequence of events ultimately

8 |/resulting in death. (Id.) Although the way Williams’ body was found raised suspicions o

9 homicide, the body appeared free of conditions or injuries which might have caused death,

10 including the fact that Williams had a 60 percent blockage in one of the three main arteries

11 leading to his heart, and Dr. Mena said that at the time of the autopsy he considered both

12 manner of death and the cause of death to be undetermined. (RT 791-94.) At trial he

13 |} said he still considered the manner of death undetermined because he could not tell whether

14 || death was an accident or a homicide, but said if he knew it was true that Petitioner gave

15 || Williams benzodiazepine and sexually assaulted him he would find it to be a homicide.

16 ||(RT 829-30.) He opined that positional asphyxiation was the most likely cause of death,

17 || that the drugs and alcohol in Williams’ system played an important role in the asphyxiation

18 |/but neither the drugs and alcohol nor Williams’ heart condition by themselves caused

19 || death, and, in answering a hypothetical question, said that a penis in Williams’ mouth, or

20 |;having Williams’ face pushed down while being sodomized, could have caused

21 ||interference with his breathing sufficient to cause death. (RT 821-30.) Dr. Johnathan

22 Benumof, an anesthesiologist and professor at the University of California, San Diego

|| Medical Center, testified for the prosecution that in his opinion the only possible cause □□□

24 |} Williams’ death was an external obstruction to breathing which caused his lungs to fill with

25 || fluid creating a pulmonary edema that killed him within five minutes, that the combination

26 |/ of alcohol and drugs could not have caused the edema, and the benzodiazepine in Williams’

27 || blood prevented him from effectively struggling against the obstruction. (RT 1532, 1549,

28 || 1599.) Both he and Dr. Mena opined that the 60 percent blockage in Williams’ artery did

I |/not contribute to his death, and agreed that such a blockage is only clinically significant at

2 || 70-75 percent. (RT 792-94, 1542, 1553.) That testimony, and the evidence discussed

3 || above, including the fact that semen was found in Williams’ mouth and anus, is sufficient

4 || evidence from which a jury could draw a reasonable inference that Williams died while he

5 |; was being sodomized or orally copulated by Petitioner as a result of his inability to resist

6 breathe properly due to being drugged by Petitioner.

7 Petitioner contends he can show that Williams’ heart condition may have caused his

8 |/death. However, the jury was presented with evidence that Williams suffered from a pre-

9 || existing heart condition, in that one of the main arteries leading to his heart had a 60 percent

10 || blockage, which Dr. Mena and Dr. Benumof both opined did not contribute to his death.

11 || The defense presented testimony from Dr. Todd Grey, the Chief Medical Examiner for the

12 || State of Utah, who opined that Williams could have died of natural cardiac arrest, that the

13 || combined effects of alcohol and Valium in his system could have suppressed his respiration

14 || to the point of possibly causing death, and stated that he would have certified the cause o

15 || death as undetermined because he was unable to choose between possible causes of death.

16 3716-20.) Dr. Grey disagreed with Dr. Benumof’s opinion that a 60 percent arterial

17 || blockage is not clinically significant, and said that the 70-75 percent blockage threshold

18 ||considered by Dr. Benumof as clinically significant is actually critical, which means a

[9 || person is at risk for sudden death or heart attack at any time. (RT 3719-20.) Dr. Grey

20 disagreed with Dr. Benumof’s opinion that Williams died of an airway obstruction because

21 findings in asphyxia deaths are essentially nonspecific, meaning you can see those

22 || similar findings in other kinds of death,” and said that even though he could not rule out

asphyxia-as-a-cause-of death, he -noted-that there-are-many-potential-causes of asphyxia-|

24 ||(RT 3722-24.) The defense also called Dr. Glenn Wagner, the Chief San Diego County

25 Medical Examiner, who testified that his deputy, Dr. Mena, conducted a comprehensive

26 autopsy on Williams and initially assigned the manner of death and cause of death as

27 ||undetermined. (RT 3621-23.) Dr. Wagner opined that a possible cause of death was

28 || positional asphyxia, “a situation where someone might fall asleep and be positioned in a

1 || way where they cut off their own airway,” which can happen to an intoxicated person. (RT

2 ||3636-37.) The defense also called Dr. Christopher Swalwell, the longest serving Deputy

3 }|San Diego County Medical Examiner at the time of trial, who testified that he attended a

4 || meeting on July 14, 2010, where police authorities and prosecutors presented evidence to

5 ||himself, Dr. Wagner, and four other Deputy San Diego County Medical Examiners. (RT

6 2591-92.) The meeting was called to determine whether Dr. Mena’s finding that the cause

7 || of death was undetermined should be changed, and the consensus of opinion at the meeting

8 || was that it should not be changed. (RT 3593-94.) .

9 Defense counsel admitted during closing argument that the forensic evidence

10 || established that Williams died while he was with Petitioner, after which Petitioner wrapped

11 in a blanket, placed a cap on his head, and placed the body in a well-trafficked alley

12 ||near Petitioner’s home where he was sure it would soon be found. (RT 4017-18, 4059.)

13 || Counsel argued that Petitioner did not want to call attention to himself by calling the police,

14 because he is a killer but because of these other activities that we know [he] engages

15 which “only tells you the level or extent of his sexual addiction or his theft crimes and

16 || it tells you nothing about how Mr. Williams died,” and that the central question of the case

17 |; was what caused Williams’ death. (RT 4018-21.) Counsel pointed out that Williams was

18 || described as having shaky hands like an old man, was prone to headaches, had not been to

19 |}a doctor in at least seven years, was drunk before he met Petitioner that night, and the sperm

20 || found in his mouth and anus could have been his own, deposited when he was masturbated

21 || by Petitioner. (RT 4053-54, 4060.) Counsel argued that for three and a half years after

22 || Williams’ body was found, Dr. Mena steadfastly maintained his opinion that the cause of|

death-was-undetermined, as did-six other board-certified_forensic examiners inthe □□□□□□□□

24 ||examiner’s office, even in the face of strong prosecution pressure to blame Petitioner,

25 || which included the hiring of an outside anesthesiologist Dr. Benumof, who counsel argued

26 ||was unqualified to prescribe a cause of death. (RT 4025-35, 4048.) Defense counsel

27 |j argued that Dr. Mena changed his opinion as to the cause of death the day before trial to

28 ||‘‘a made-up cause of death designed to fit the charges in this case.” (RT 4029-30.)

1 Defense counsel concluded:

2 All the prosecution has in this case are possibilities. Even the testimony

3 of Dr. Mena that was quoted by the prosecutor was talking about possibilities.

Could Mr. Williams have died by suffocation during a sodomy, if sodomy

4 occurred? It is possible. Has it been proven? No. [§] Could he have died

5 by suffocation by a penis in his mouth, unlikely, but possible. Proven? No.

And possibilities, as you can see, leave reasonable doubt.

7 4035.)

8 Thus, the jury was presented with the theory Petitioner now relies on, that Williams

9 || died of a preexisting heart condition or some other undetermined cause and it is pure

10 |) speculation he died as a result of being orally copulated or sodomized. However, Petitioner

11 ||merely points to conflicting medical opinions as to the cause of death, as he did at trial, and

12 ||the jury has already resolved any conflicting inferences from that evidence against him,

13 ||See Jackson, 443 U.S. at 319, 324 (holding that federal habeas courts must consider the

14 || evidence “in the light most favorable to the prosecution,” and must respect the province of

15 ||the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw

16 ||reasonable inferences from proven facts by assuming the jury resolved all conflicts in a

17 ||manner that supports the verdict). As discussed below in the actual innocence claim,

18 || Petitioner presents articles from scientific publications along with trial evidence to argue

19 || Williams could have died of natural causes related to his heart condition or that his

20 ||pulmonary edema may have been triggered by something other than sexual assault.

21 || Although consideration of evidence not presented to the state court is beyond the scope of

22 ||review under 28 U.S.C. § 2254(d) as to claim one, Cullen v. Pinholster, 563 U.S. 170, 181

|/(2011), the vast majority of Petitioner’s “new” materials are either in the state court record|

24 |/or consist of articles from science journals predating trial, and in any case, as set forth

25 below, his scientific literature adds nothing to, and does not call into question, the medical

26 || opinions presented to the jury. With respect to this sufficiency of the evidence claim he is

27 ||not entitled to a reweighing of the evidence or a reexamination of the credibility of the

28 || witnesses, and competing inferences, however reasonable, do not support relief. See

1 || Coleman v. Johnson, 566 U.S. 650, 656 (2012) (“The jury in this case was convinced, and

2 only question under Jackson is whether that finding was so insupportable as to fall

3 || below the threshold of bare rationality. The state court of last review did not think so, and

4 ||that determination in turn is entitled to considerable deference under AEDPA, 28 U.S.C.

S |] § 2254(d).”); Schlup v. Delo, 513 U.S. 298, 330 (1995) (“under Jackson, the assessment of

6 |) the credibility of witnesses is generally beyond the scope of review.”)

7 Petitioner has failed to show that based on the “evidence adduced at the trial no

8 |/rational trier of fact could have found proof of guilt beyond a reasonable doubt” that he

9 || killed Williams by the criminal act of sodomy or oral copulation of an intoxicated person.

10 || Jackson, 443 U.S. at 324; see Coleman, 566 U.S. at 651 (“Jackson claims face a high bar

11 ||in federal habeas proceedings because they are subject to two layers of deference.”) The

12 additional layer of deference owed to the state court opinion under AEDPA requires this

13 |;Court to inquire whether “fairminded jurists could disagree” with the state court

14 || determination that a rational trier of fact could have found sufficient evidence to support

15 ||the conviction. Harrington v. Richter, 562 U.S. 86, 88 (2011), citing Yarborough v.

16 || Alvarado, 541 U.S. 652, 664 (2004). Sufficient evidence was presented in the state court

17 || to support the jury’s finding that Petitioner criminally caused Williams’ death, and the state

18 || court opinion does not reflect “an unreasonable application of Jackson and Winship to the

19 || facts of this case.” Juan H., 408 F.3d at 1274-75. Neither has Petitioner demonstrated that

20 || the state court adjudication involved an unreasonable determination of the facts in light o

21 evidence presented in the state court proceedings. Miller-El, 537 U.S. at 340.

22 Petitioner has also failed to support his claim that the state court lowered the burden

proof by applying a “reasonable probability” standard regarding proof of death by|

24 criminal agency. The jury received the following instructions:

25 A defendant in a criminal case is presumed to be innocent. This

6 presumption requires that the people prove a defendant guilty beyond a

reasonable doubt. Whenever I tell you the people must prove something, I

27 mean they must prove it beyond a reasonable doubt.

28 3895.)

To prove that the defendant is guilty of first-degree murder under [a

felony murder] theory, the people must prove that, one, the defendant

committed or attempted to commit sodomy of an intoxicated person in

3 violation of penal code section 286(i), or oral copulation of an intoxicated

4 person in violation of penal code section 288a(i); two, the defendant intended

to commit sodomy of an intoxicated person in violation of penal code section

5 286(i) or oral copulation of an intoxicated person in violation of penal code

6 section 288a(i); and three, while committing or attempting to commit sodomy

of an intoxicated person in violation of penal code section 286(i) or oral

7 copulation of an intoxicated person in violation of penal code section 288a(i),

the defendant caused the death of another person.

9 ||(RT 3912-13.)

10 Dane Williams may have suffered from an illness or physical condition

that made him more likely to die from an injury than the average person. The

fact that Dane Williams may have been more physically vulnerable is not a

12 defense to murder. If the defendant’s act was a substantial factor causing the

3 death, then the defendant is legally responsible for the death. [{] This is true

even if Dane Williams would have died in a short time as a result of other

14 causes or if another person of average health would not have died as a result

15 of the defendant’s actions. [{] If you have a reasonable doubt whether the

defendant’s act caused the death, you must find him not guilty.

16

17 || (RT 3915-16.)

18 Thus, the jury was instructed that the prosecution was required to prove beyond a

19 || reasonable doubt that Petitioner’s actions caused Williams’ death. Although the state court

20 ||found that death by criminal agency, or corpus delicti, requires a slight or prima facie

21 showing that a criminal act caused the death of the victim, the jury was instructed that the

22 || prosecution was required to prove beyond a reasonable doubt that Petitioner’s criminal act

of sodomy or oral copulation, or attempted sodomy or oral copulation, of an intoxicated]

24 ||person, caused Williams’ death. Because the jury was never instructed that any lesser

25 || burden applied to prove Williams died by a criminal act, or was asked to make such a

26 || finding, it is irrelevant for the purposes of the Jackson inquiry that a lesser threshold burden

27 || of proof to show corpus delicti exists under state law. See Coleman, 566 U.S. at 655

28 (“Under Jackson, federal courts must look to state law for the substantive elements of the

1 }|criminal offense; but the minimum amount of evidence that the Due Process Clause

2 ||requires to prove the offense is purely a matter of federal law.”)

3 Petitioner next contends insufficient evidence supports his convictions of sodomy

4 oral copulation of an intoxicated person regarding Williams, claiming there was no

5 evidence linking him to those crimes, no evidence Williams was alive when assaulted, and

6 evidence of oral or anal penetration. The state appellate court denied the claim:

7 Huynh contends the oral copulation and sodomy convictions involving ©

Williams were not supported by substantial evidence. Specifically, Huynh

points to a lack of evidence (1) linking Huynh to the semen found in

9 Williams’s mouth and anus, (2) showing Williams was alive when he was

10 sodomized and orally copulated, and (3) establishing the requisite penetration

of the anus or mouth of Williams. The contention is without merit.

11

12 Section 286, subdivision (i) criminalizes “an act of sodomy, where the

victim is prevented from resisting by an intoxicating or anesthetic substance,

13 or any controlled substance, and this condition was known, or reasonably

should have been known by the accused.” (/bid.) Section 288a, subdivision

14 a gg es

(i), criminalizes “an act of oral copulation, where the victim is prevented from

15 resisting by any intoxicating or anesthetic substance, or any controlled

16 substance, and this condition was known, or reasonably should have been

known by the accused.” (/bid.)

17

ig The standard of review for a sufficiency of the evidence claim is well

established. We review the entire record in the light most favorable to the

19 judgment to determine whether it contains substantial evidence - that is,

0 evidence that is reasonable, credible, and of solid value - from which a

reasonable trier of fact could find the defendant guilty beyond a reasonable

21 doubt. (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in

9 support of the judgment the existence of every fact that could reasonably be

deduced from the evidence. (People v. Kraft, supra, 23 Cal.4th at p. 1053.)

We ask whether, after viewing the evidence in the light most favorable to the

4 judgment, any rational trier of fact could have found the allegations to be true

beyond a reasonable doubt. (See Jackson v. Virginia (1979) 443 U.S. 307,

25 319.) Unless it is clearly demonstrated that “upon no hypothesis whatever is

2% there sufficient substantial evidence to support (the verdict of the jury),” we

will not reverse. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

27

28 Huynh is mistaken in arguing no evidence linked him to the sexual

assault crimes against Williams. The semen found on Williams’s shirt was

1 from Huynh. Moreover, there was additional circumstantial evidence linking

> Huynh to the sexual crimes. Huynh told his employer that he enjoyed

drugging young heterosexual men so he could sexually assault them.

3 Williams had diazepam in his blood; Huynh possessed diazepam and was

4 well-schooled on the effect of diazepam and other benzodiazepine drugs.

Forensic evidence connected Huynh to the clothing on the dead body as well

5 as the blanket in which the body was wrapped. The tire tracks near the body

6 matched the tires on a van Huynh had rented. In short, there was ample

evidence connecting Huynh to the sexual crimes against Williams.

7

The criminal offense of sodomy requires the victim to be alive at the

time of penetration. (People v. Ramirez (1990) 50 Cal.3d 1158, 1176.) Huynh

9 argues that oral copulation must also be committed on a live victim. We agree

10 based on the reasoning of the Ramirez court and the Legislature’s use of the

word “person” rather than “body” in both section 286, subdivision (a), which

11 defines sodomy, and section 288a, subdivision (a), which defines oral

12 copulation. [Footnote: The Attorney General acknowledges oral copulation

of an intoxicated person “reasonably requires that the victim be alive as he or

13 she must be intoxicated.”]

14 . We, however, disagree with Huynh’s argument there was insufficient

15 evidence Williams was alive at the time of the sexual assault, and the jury only

16 could have found Williams was alive on the basis of “speculation, guesswork

and conjecture.” Huynh writes: “In light of Williams’(s) severe alcohol

17 intoxication, and based on the absence of the (diazepam) metabolite in his

18 body, it is entirely probable that Williams died right after ingesting diazepam

and that any sexual acts took place after his death.” However, there was

19 diazepam metabolite in Williams’s body. Huynh’s comments also ignore

20 expert testimony presented by both parties that the combination of alcohol and

diazepam played a role in Williams’s death, but was not the cause of death by

21 itself. (See fn, 3 & accompanying text, ante.) Moreover, the record does not

9 contain evidence suggesting Huynh intended sexual conduct with a corpse or

practiced necrophilia. Rather, the record indicates that Huynh did not have

such an intent or practice. The other young men who testified about their □□□□□

4 encounters with Huynh apparently were drugged by appellant and woke up

confused and disoriented. Huynh’s modus operandi was to sexually assault

25 young men while they were knocked out by the combination of

% benzodiazepine drugs and alcohol - not to sexually assault them after they

were dead. “(I)n the absence of any evidence suggesting that the victim’s

27 assailant intended to have sexual conduct with a corpse (citation), we believe

28 that the jury could reasonably have inferred from the evidence that the

assailant engaged in sexual conduct with the victim while she was still alive

1 rather than after she was already dead. Under the applicable standard of

> review (citations), we conclude that a reasonable trier of fact could have found

the essential elements of sodomy beyond reasonable doubt.” (People v.

3 Ramirez, supra, 50 Cal.3d at pp. 1176-1177; see People v. Kraft, supra, 23

4 Cal.4th at pp. 1059-1060.)

5 As to Huynh’s argument on the insufficiency of the evidence of

penetration, we begin by noting that such an argument cannot legally apply to

6 gin by g g Pp

the oral copulation conviction. Penetration of the mouth or sexual organ is

7 not required for the crime of oral copulation. (People v. Dement (2011) 53

8 Cal.4th 1, 41-42.) Sodomy, on the other hand, requires penetration. (People

v. Martinez (1986) 188 Cal.App.3d 19, 23-25.) “Any sexual penetration,

9 however slight, is sufficient to complete the crime of sodomy.” (§ 286, subd.

10 (a).) Huynh relies chiefly on the autopsy finding that there was no sign of

trauma to the anus or rectum of Williams, but he ignores evidence that one of

11 the effects of benzodiazepine is to relax the muscles of the anus and rectum.

12 Dr. Mena, who performed the autopsy, testified that injury to the rectum and

anus during a sexual assault could be minimized if the person had ingested

13 benzodiazepine. Huynh also points to evidence he presented that sperm cells,

14 which are hardy and easily transferred, are almost always found in male

underwear. Huynh argues the eight sperm cells on the anal swab logically

15 could have been from Williams. However, there is no evidence that Williams

16 ejaculated around the time of his death. (People v. Kraft, supra, 23 Cal.4th at

p. 1059.) The record contains sufficient evidence from which a jury

17 reasonably could infer the requisite amount of penetration occurred.

18 || People v. Huynh, 212 Cal.App.4th at 303-05.

19 As to Petitioner’s first contention that insufficient evidence linked him to a sexual

20 assault on Williams, that evidence is reviewed above and is overwhelming. Petitioner has

21 || failed to show the denial of this aspect of his claim “reflected an unreasonable application

22 ||of Jackson and Winship to the facts of this case,” Juan H, 408 F.3d at 1274, or was based

an unreasonable determination of the facts. Miller-El, 537 U.S. at 340.

24 As to his contention that insufficient evidence was presented to show Williams was

25 penetrated anally or orally, the state court observed that under state law no penetration is

26 ||required for oral copulation. Federal habeas courts must analyze Jackson claims “with

27 ||explicit reference to the substantive elements of the criminal offense as defined by state

28 Jackson, 443 U.S. at 324 n.16; see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005)

1 (“We have repeatedly held that a state court’s interpretation of state law, including one

2 ||announced on direct appeal of the challenged conviction, binds a federal court sitting in

3 ||habeas corpus.”) The aspect of this claim challenging the oral copulation count fails on

4 ||that basis. The aspect of the claim challenging the sodomy count fails because under state

5 ||law only slight penetration is required, and there was sufficient evidence, in the form of

6 sperm found on Williams’ anus and testimony that benzodiazepine can relax the muscles

7 ||of the anus and rectum sufficiently to avoid injuries from penetration, that Petitioner

8 ||penetrated Williams’ anus, if even slightly. Even if Petitioner could point to other

9 |/reasonable inferences the jury could have drawn from the evidence, that is not sufficient to

10 ||satisfy 28 U.S.C. § 2254(d). See Coleman, 566 U.S. at 656 (“The jury in this case was

11 ||convinced, and the only question under Jackson is whether that finding was so

12 ||insupportable as to fall below the threshold of bare rationality.”)

13 Petitioner also challenges the sufficiency of the evidence that Williams was alive

14 || when he was sexually assaulted. As the state court observed, a great deal of evidence was

15 || presented that Petitioner’s “modus operandi was to sexually assault young men while they

16 || were knocked out by the combination of benzodiazepine drugs and alcohol - not to sexually

17 || assault them after they were dead.” Because overwhelming evidence was presented that

18 Petitioner drugged and sexually assaulted Williams, and had a proclivity for sexually

19 || assaulting young men like Williams while they were under the influence of drugs he gave

20 || them without their knowledge, but no evidence whatsoever that he sexually assaulted dead

21 || bodies, Petitioner has not shown that the state court opinion involves an unreasonable

22 || determination of the facts in light of the evidence presented in the state court proceedings,

|| or reflects “an unreasonable application of Jackson and Winship to the facts of this case.”|

24 || Juan H., 408 F.3d at 1274-75; Miller-El, 537 U.S. at 340.

25 The final aspect of claim one alleges there is insufficient evidence to support the

26 ||convictions for oral copulation of an intoxicated person and sodomy of an intoxicated

27 |jperson with respect to victim Jeremiah. (ECF No. 1-1 at 4.) This claim was never

28 || presented to any state court, but it is so lacking in merit as to allow the Court to deny it

I ||notwithstanding that failure. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of

2 ||habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to

3 || exhaust the remedies available in the courts of the State.”); see also Cassett v. Stewart, 406

4 || F.3d 614, 623-24 (9th Cir. 2005) (holding “that a federal court may deny an unexhausted

5 petition on the merits only when it is perfectly clear that the applicant does not raise even

6 ||a colorable federal claim.”)

7 Evidence supporting this conviction includes (a) Petitioner’s semen found in

8 ||Jeremiah’s mouth, anus and scrotum, (b) a photograph taken during Jeremiah’s SART

9 ||examination which showed significant injury to his anus, (c) nearly twice the therapeutic

10 || level of diazepam was found in Jeremiah’s system, (d) Petitioner had a modus operandi o

11 || drugging and raping young men like Jeremiah, and (e) Jeremiah testified at the preliminary

12 ||hearing, which was videotaped and played for the jury at trial, that immediately after

13 || Petitioner gave him what he thought was Tylenol he began feeling odd and experiencing

14 |/memory loss, and when he awoke he was missing his underwear and pocket knife.

15 || Although, as discussed in claim two, Petitioner challenges the forensic evidence supporting

16 || Jeremiah’s testimony, and contends in claim four he was denied his right to confront him

17 || at trial, Jeremiah’s testimony provided sufficient evidence to support the Jackson standard.

18 || See Tibbs v. Florida, 457 U.S. 31, 45 n. 21 (1982) (finding that eyewitness testimony alone

19 sufficient to satisfy the Jackson standard). Even if the gaps in Jeremiah’s memory caused

20 || his testimony alone to be insufficient, his testimony, along with the evidence of Petitioner’s

21 |)modus operandi of drugging and sexually assaulting men like Jeremiah, and the SART

22 || evidence, is sufficient to support the conviction for sodomy of an intoxicated person.

Habeas relief is denied-as □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□

24 C. Claim Two

25 Petitioner alleges in claim two that he is actually innocent based on “diligently

26 || discovered scientific evidence presented herein [which] undermines the prosecution’s

27 || entire case and points to petitioner’s innocence.” (ECF No. 1 at 7; ECF No. 1-1 at 6.) With

28 ||respect to Williams, that evidence consists of: (1) a 1973 medical journal article which

I || Petitioner argues shows diazepam metabolites are found within fifteen minutes of ingestion

2 ||rather than hours later as testified to at trial (ECF No. 1-1 at 13, 22-29), and the medical

3 ||}examiner’s pre-trial case notes showing the presence of diazepam without a metabolite in

4 || Williams’ blood (id. at 13-14, 41-42), which, along with failure of the autopsy report to

5 || find acidic compounds or acidosis in Williams’ blood (ECF No. 30 at 9; ECF No. 41 at 4),

6 || Petitioner contends shows Williams died almost instantly after ingesting diazepam before

7 |jany sexual assault could have occurred (ECF No. 18 at 2); (2) a 1974 report by the

8 || International Commission on Radiological Protection (ECF No. 1-1 at 14, 43-45), excerpts

9 || from medical journals dated 2014 regarding risk of sudden death in athletes, and comparing

10 || diseased hearts to athletes’ hearts (id. at 51-58; ECF No. 1-2 at 1-6), excerpts from medical

11 ||journal articles regarding left ventricular hypertrophy in hypertension, arrhythmia and

12 }|nephrosclerosis, dated 2013 (ECF No. 1-2 at 7-29), excerpts from a 1984 American Journal

13 || of Medicine article on hypertension and sudden death (id. at 30-34), a page of an undated

14 |/article on cerebral edema which Petitioner contends shows that brain swelling develops

15 || over a period of extended slow breathing often during seizures (id. at 35), and a 2000 article

16 |}from Forensic Science International regarding normal organ weights which Petitioner

17 |)contends shows brain weight alone is not indicative of brain swelling and asphyxia as

18 testified to at trial (ECF No. 39 at 2; ECF No. 43 at 20-25), all of which Petitioner contends,

19 when coupled with portions of Williams’ autopsy and toxicology reports, supports a

20 finding that Williams’ enlarged heart is indicative of a higher risk of spontaneous

21 j{arrhythmia and sudden cardiac death, possibly during a seizure (ECF No. 30 at 2, 9; ECF

22 ||No, 37 at 5; ECF No. 78 at 4; ECF No. 80 at 31); (3) portions of reports purportedly

|/showing samples were cut from Williams’ shirt for DNA analysis after DNA analysis was|

24 || performed, and dog hair fibers loose in the laboratory, which Petitioner contends raises

25 || questions regarding “good lab practices” (ECF No. 1-1 at 18; ECF No. 1-2 at 36-38); (4) a

26 || presentation by Dr. Benumof stating that obstructive sleep apnea can cause mild pulmonary

27 |}edema, which Petitioner contends contradicts Dr. Benumof’s trial testimony that sleep

28 || apnea could not have been a cause of death (ECF No. 43 at 3-4, 11-14); (5) excerpts from

1 2016 report on forensic science in criminal courts, which Petitioner contends shows that

2 ||mixed DNA from two people may lead to unreliable testing results, and that tire impression

3 |/evidence is problematic (ECF No. 78 at 3, 10-23); and (6) correspondence from the

4 || National Institute of Science and Technology confirming that carbon dioxide and lactic

5 can be measured by the methods used in Williams’ autopsy, in support of Petitioner’s

6 |jargument that the autopsy should have tested for those substances, as well as for “flight or

7 || fight” proteins released during stress, in order to support or refute the prosecution’s theory

8 || of the cause of death (ECF No. 74 at 1, 3; ECF No. 78 at 5-6; ECF No. 80 at 22).

9 The evidence presented to support the actual innocence claim as to Jeremiah consists

10 || of: (1) excerpts from Jeremiah’s emergency room notes showing the benzodiazepine found

11 his system when first tested the day after he met Petitioner was Alprazolam or Xanax

12 ||rather than Klonopin, which Petitioner contends should have been entered at trial to show

13 ||the discrepancy between it and the SART toxicology report used at trial showing Klonopin

14 Jeremiah’s blood two days later to show he used Klonopin after he met Petitioner (ECF

15 ||No. 1-1 at 19-20; ECF No. 1-2 at 42-43, 45; ECF No. 66 at 6); (2) excerpts from the

16 |/preliminary hearing testimony of Detective Velovich stating he was told by the SART

17 ||nurse that Jeremiah was alert and oriented during his examination and there were no drugs

18 alcohol found in his blood (ECF No. 66 at 1, 4), emergency room notes reporting

19 Jeremiah “does not think he was sexually assaulted” (ECF No. 1-2 at 44), and a patient

20 || history page indicating Jeremiah had not defecated for two days, which Petitioner contends

21 |}might cause a hard stool resulting in the anal tear attributed to sodomy (ECF No. I-1 at 20;

22 No. 1-2 at 46), all of which Petitioner argues refute the jury finding he was sexually

(3) reports from the DNA testing laboratories in this case showing ten}

24 || unidentified alleles not attributable to Petitioner or Jeremiah, which could be used to argue

25 possible third DNA contributor” to the sperm found in Jeremiah’s SART exam and

26 refute his claim of heterosexuality (ECF No. 1-1 at 19; ECF No. 1-2 at 39-41; ECF No. 18

27 6); (4) a drug reference report indicating clonazepam is a benzodiazepine derivative

28 || similar to diazepam (ECF No. 1-2 at 47), a2010 article from the Journal of Microbiological

1 || Methods regarding a method for determining metabolites (ECF No. 80 at 24-29), a medical

2 ||journal article regarding the pharmacokinetics of clonazepam, and two pages from an

3 undated article on that subject (ECF No. 1-2 at 48-54), all of which Petitioner contends

4 || shows Jeremiah’s metabolite concentration was high enough to show he was suffering from

5 || benzodiazepine withdrawal and was therefore a chronic user (ECF No. 1-1 at 21); and

6 excerpts from a 2004 article from the American Society for Pharmacology and

7 Experimental Therapeutics which Petitioner contends shows Jeremiah could not have been

8 || unconscious as a result of the level of diazepam in his blood (ECF No. 41 at 5-10), the

9 ||entirety of which he argues shows Jeremiah fabricated his allegations in order to avoid

10 || being discharged from the military for drug use and consensual homosexual conduct.

11 To the extent the actual innocence claim is not merely a restatement of claim one, it

12 || has never been presented to any state court. In this Court’s May 23, 2016 order, the Court

13 |;determined this claim is technically exhausted because state court remedies no longer

14 |/remain available, and that it is therefore procedurally defaulted. (ECF No. 35 at 5.) In that

15 order, the Court noted:

16 It is an open question whether a freestanding claim of actual innocence,

17 as opposed to its use as a gateway to avoid a procedural default, is cognizable

on federal habeas. See Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014)

18 (“We have not resolved whether a freestanding actual innocence claim is

19 cognizable in a federal habeas corpus proceedings in the non-capital context,

although we have assumed that such a claim is viable.”), citing McQuiggin v.

20 Perkins, 569 U.S. __, 133 S.Ct. 1924, 1931 (2013) (noting that it is, as yet,

2] unresolved whether a freestanding actual innocence claim is cognizable on

federal habeas) and Herrera _v. Collins, 506 U.S. 390, 417 (1993)

22 (acknowledging the possibility that a freestanding actual innocence claim

would exist in the capital context).

24 || (Id. at 4.)

25 Assuming a freestanding claim of actual innocence is cognizable on federal habeas,

26 is clear that Petitioner’s claim of actual innocence fails on the merits. The standard o

27 ||review for claims which are technically exhausted and procedurally defaulted is unclear.

28 || Slovik v. Yates, 556 F.3d 747, 751 n.4 (9th Cir. 2009). However, denial of the claim under

1 ||a de novo review assures a finding that Petitioner is not entitled to federal habeas relief

2 ||irrespective of any procedural default or failure to exhaust. See Berghuis v. Thompkins,

3 ||560 U.S. 370, 390 (2010) (holding that when the standard of review is unclear, a federal

4 || habeas court may conduct a de novo review to deny a petition “because a habeas petitioner

5 || will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo

6 || review.”)

7 In order to satisfy Schlup, Petitioner “must show that, in light of all the evidence,

8 ||including evidence not introduced at trial, ‘it is more likely than not that no reasonable

9 || juror would have found petitioner guilty beyond a reasonable doubt.’” Majoy v. Roe, 296

10 || F.3d 770, 775-76 (9th Cir. 2002), quoting Schlup, 513 U.S. at 327. This Court “must

11 |} consider all the evidence, old and new, incriminating and exculpatory, without regard to

12 || whether it would necessarily be admitted under rules of admissibility that would govern at

13 trial.” House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks omitted). “A

14 || petitioner need not show that he is ‘actually innocent’ of the crime he was convicted of

15 committing; instead, he must show that ‘“a court cannot have confidence in the outcome

16 || of the trial.”” Majoy, 296 F.3d at 776, quoting Carriger v. Stewart, 132 F.3d 463, 478 (9th

17 || Cir. 1997) (en banc), quoting Schlup, 513 U.S. at 316.

18 Here, Petitioner argues that his “newly discovered” evidence shows Williams might

19 |) not have died while Petitioner was in the act of orally copulating or sodomizing him while

20 ||he was intoxicated, as the jury found, because it shows that sudden cardiac arrhythmia,

21 ||possibly brought on by a seizure, may have been the cause of death, and it contradicts the

22 testimony of several doctors that positional asphyxia was the likely cause of death, in

particular Dr. Benumof’s testimony that it was the only possible cause of death. He also

24 ||contends it refutes the jury’s finding that he drugged and sexually assaulted Jeremiah

25 || because it shows Jeremiah initially denied being sexually assaulted, and was a chronic

26 || benzodiazepine user who may have lied in order to avoid being discharged from the Navy

27 || for drug use and consensual homosexual behavior. However, the “new evidence” consists

28 || of evidence produced for and at trial, and scientific articles, most of which were available

I |/to the medical community at the time of trial. Furthermore, Petitioner’s arguments were

2 ||presented at trial. As set forth above, the defense presented evidence that the Chief Medical

3 ||Examiner for the State of Utah, the Chief Medical Examiner for San Diego County, and

4 || five San Diego County Medical Examiners, all considered Williams’ cause of death as

5 undetermined even after they were presented with the prosecution’s evidence. The defense

6 ||doctors opined that Williams could have died of cardiac arrest, and that the combined

7 || effects of alcohol and diazepam in his system could have suppressed his respiration to the

8 || point of causing death, or he could have died by slumping over in a position which blocked

9 ||his airway due to being intoxicated. The defense also presented medical testimony that

10 |; Williams’ 60 percent arterial blockage could have caused or contributed to his death.

11 Dr. Mena testified that he found diazepam in Williams’ blood during the autopsy,

12 || that because there were higher levels of diazepam in the blood and only trace amounts in

13 |} gastric contents, it had been absorbed prior to death, and the absence of metabolites meant

14 at the time Williams died he had not had time to break down the diazepam into

15 ||metabolites. (RT 812-17.) Dr. Grey testified that metabolites of diazepam occur within “a

16 |;number of hours” of ingestion, and Williams could have died within hours of taking

17 diazepam. (RT 3781.) Even if Petitioner is correct that there is scientific literature showing

18 that the lack of metabolites of diazepam in Williams’ blood meant he died within fifteen

19 || minutes of ingesting the drug, he has not shown that fifteen minutes was not enough time

20 || for him to sexually assault Williams before he died. In sum, Petitioner’s actual innocence

21 claim is an attempt to reargue issues which were fully and fairly presented to the jury and

22 || decided against him, and his “newly discovered evidence” does not refute the testimony o

"|| the medical experts af trial regarding the cause of death, or establish Williams died so soon|

24 || after taking diazepam that Petitioner did not have time to sexually assault him.

25 In reviewing the “total record” the Court must make “a probabilistic determination

26 what reasonable, properly instructed jurors would do.” Schlup, 513 U.S. at 329.

27 court’s function is not to make an independent factual determination about what likely

28 || occurred, but rather to assess the likely impact of the evidence on reasonable jurors.” Bell,

1 US. at 538 (“[I]t bears repeating that the Schlup standard is demanding and permits

2 || review only in the extraordinary case.”) Petitioner has failed to support his contention that

3 {| Williams likely died in a manner not fully and fairly presented to the jury, and has not

4 || carried his burden of demonstrating that it is “more likely than not, in light of the new

5 evidence, no reasonable juror would find him guilty beyond a reasonable doubt.” Id.;

6 || Majoy, 296 F.3d at 778. Nor has he shown that this Court “cannot have confidence in the

7 |} outcome of the trial.” Schlup, 513 U.S. at 316. As discussed below in claim three, the

8 |}same is true regarding Jeremiah, as Petitioner challenges the DNA and blood testing

9 || evidence presented at trial but fails to show it refutes the evidence supporting the finding

10 || that he orally copulated and sodomized Jeremiah while he was intoxicated.

11 Based on a de novo review, the Court denies habeas relief on the actual innocence

12 claim to the extent it presents a freestanding constitutional claim.

13 D. Claim Three

14 Petitioner alleges in claim three that he received ineffective assistance of trial

15 {| counsel in violation of the Sixth Amendment due to: (a) a conflict arising from a hostile

16 ||and uncommunicative relationship with counsel, and (b) counsel’s failure to (i) request a

17 || change of venue, (ii) point out discrepancies in witness testimony to the jury, (iii) request

18 a jury instruction on the felony murder escape rule, (iv) present evidence of third party guilt

19 |}and contamination of laboratory samples, (v) object to inflammatory statements, and (vi)

20 ||investigate Petitioner’s diagnosis of schizophrenia for use at trial as a defense and at

21 sentencing as mitigation. (ECF No. 1 at 8; ECF No. 1-1 at 3-5, 7-8, 11-12.)

22 The ineffective assistance of counsel claim presented in Petitioner’s California

of the—allegations of ineffective|

24 |/assistance of counsel raised here, namely, that counsel failed to introduce a Navy

25 || toxicology report showing Jeremiah did not have clonazepam in his blood the day after he

26 Petitioner, and failed to challenge discrepancies between police reports and the

27 ||testimony of several trial witnesses, and between a laboratory technician’s preliminary

28 hearing testimony and a statement he made to defense counsel. (ECF No. 83-4 at 4.) That

1 || petition was denied with an order which stated: “The petition for writ of habeas corpus is

2 ||denied. (See People v. Duvall (1995) 9 Cal.4th 464, 474; In re Lessard (1965) 62 Cal.2d

3 ||497, 503; In re Waltreus (1965) 62 Cal.2d 218, 225; In re Dixon (1953) 41 Cal.2d 756,

4 || 759; In re Swain (1949) 34 Cal.2d 300, 304; In re Lindley (1947) 29 Cal.2d 709, 723.)”

5 (ECF No. 12-10 at 1.)

6 Respondent “assumes” the state supreme court applied the Duvall citation to the

7 || ineffective assistance of counsel claim presented in the state habeas petition, and contends

8 the Duvall citation means the state court denied the claim as meritless because it is

9 || vague and conclusory. (ECF No. 16-1 at 11.) Respondent argues that the denial on that

10 || basis is neither contrary to, nor involves an unreasonable application of, clearly established

11 || federal law which provides that Petitioner must show counsel did not provide reasonably

12 |}competent representation as well as prejudice arising from counsel’s errors, because

13 || Petitioner does not identify the alleged discrepancies or provide a declaration from counsel

14 || explaining why counsel did not seek to admit that evidence. (Id. at 11-13.)

15 Where a state court order invokes more than one state procedural bar to deny

16 || multiple claims but fails to specify which rule applies to which claim, as here, federal

17 || habeas review is not barred unless all of the cited state procedural bars are adequate to

18 |; support the judgment and independent of federal law. Washington v. Cambra, 208 F.3d

19 834 (9th Cir. 2000). The Waltreus, Duvall and Swain citations do not appear to be

20 || adequate and independent so as to support a procedural default. See Hill v. Roe, 321 F.3d

21 789 (9th Cir. 2003) (holding that Waltreus does not preclude federal habeas review),

22 citing Nunnemaker, 501 U.S. at 805 (noting that Waltreus provides that claims presented

direct review may not ordinarily be relitigated on habeas, and Swain provides that facts|

24 on in a habeas petition must be alleged with particularity); Seeboth v. Allenby, 789

25 1099, 1104 n.3 (9th Cir 2015) (“a citation to Duvall and Swain together constitutes

26 || dismissal without prejudice with leave to amend to plead required facts with particularity.”)

27 || Thus, it is unclear whether and to what extent the state court applied procedural bars to

28 || those aspects of claim three which were presented in the state habeas petition.

In addition, the majority of the ineffective assistance of counsel allegations

2 ||contained in the federal Petition are different than those presented in the state habeas

3 || petition and have never been presented to any state court. For the same reasons regarding

4 ||the actual innocence claim (see ECF No. 35 at 5), the aspects of the ineffective assistance

5 || of counsel claim which were not presented to the state court are technically exhausted and

6 || procedurally defaulted.

7 Because Petitioner argues that any default should be excused because his appellate

8 || attorney was ineffective in failing to raise this ineffective assistance of trial counsel claim

9 || (ECF No. 1-1 at 9), the Court would have to examine the merits of claim three to determine

10 he can overcome any procedural default. See Murray v. Carrier, 477 U.S. 478, 488

11 |/(1986) (“[I]f the procedural default is the result of ineffective assistance of counsel, the

12 Sixth Amendment itself requires that responsibility for the default be imputed to the

13 State.”) And because Petitioner proceeded pro se during his state habeas proceeding, he

14 ||can overcome a procedural default as to the ineffective assistance of trial counsel claim if

15 can establish it is a “substantial” claim. See Martinez v. Ryan, 566 U.S. 1, 17 (2012)

16 || (Where, under state law, claims of ineffective assistance of trial counsel must be raised in

17 initial-review collateral proceeding, a procedural default will not bar a federal habeas

18 from hearing a substantial claim of ineffective assistance at trial if, in the initial

19 ||review collateral proceeding, there was no counsel or counsel in that proceeding was

20 || ineffective.”) The Court must examine the merits of the ineffective assistance of counsel

21 |/claim in order to determine if it presents a “substantial” claim sufficient to excuse the

22 default. See id. at 14 (holding that a claim is “substantial” if the petitioner can show that

claim has some merit.”) The AEDPA limitation on expanding the record does not

24 in making that determination. See Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir.

25 ||2014) (en banc) (holding that a petitioner is “entitled to present evidence to demonstrate

26 ||that there is ‘prejudice,’ that is that petitioner’s claim is ‘substantial’ under Martinez.

27 || Therefore, a district court may take evidence to extent necessary to determine whether the

28 || petitioner’s claim of ineffective assistance of trial counsel is substantial under Martinez.”)

The Ninth Circuit has indicated that: “Procedural bar issues are not infrequently

2 ||more complex than the merits issues presented by the appeal, so it may well make sense in

3 || some instances to proceed to the merits if the result will be the same.” Franklin v. Johnson,

4 1/290 F.3d 1223, 1232 (9th Cir. 2002), citing Lambrix v. Singletary, 520 U.S. 518, 525

||(1997) (“We do not mean to suggest that the procedural-bar issue must invariably be

6 j|resolved first; only that it ordinarily should be.”) Because the ineffective assistance of

7 |/counsel claim clearly fails on the merits, the Court finds that the interests of judicial

8 economy is better served by denying it without determining to what extent it is procedurally

9 || defaulted, or whether Petitioner can excuse any default. Franklin, 290 F.3d at 1232.

10 In order to establish constitutionally ineffective assistance of counsel, Petitioner

11 show counsel’s performance was deficient, which “requires showing that counsel

12 ||made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

13 || defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

14 || He must also show counsel’s deficient performance prejudiced his defense, which requires

[5 || showing that “counsel’s errors were so serious as to deprive [Petitioner] of a fair trial, a

16 || trial whose result is reliable.” Id. To show prejudice, Petitioner need only demonstrate a

17 ||reasonable probability that the result of the proceeding would have been different absent

18 ||the error. Id. at 694. A reasonable probability is “a probability sufficient to undermine

19 || confidence in the outcome.” Id. Petitioner must establish both deficient performance and

20 || prejudice to establish ineffective assistance of counsel. Id. at 687.

21 “Representation is constitutionally ineffective only if it ‘so undermined the proper

22 || functioning of the adversarial process’ that the defendant was denied a fair trial.” Richter,

U.S. at 110, quoting Strickland, 466 U.S. at 686. “Surmounting Strickland’s high bar

24 never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). The Strickland

25 ||standard is “difficult to meet,” Richter, 562 U.S. at 105, and “highly deferential.”

26 || Pinholster, 563 U.S. at 181.

27

28

] Petitioner first alleges that he had a hostile and uncommunicative relationship with

2 |{his trial counsel which amounted to a conflict of interest:

3 In the beginning of petitioner’s representation, one of the defense

4 counsels chided and accused petitioner of “dumping Mr. Williams in an alley

like a piece of trash.” Relations were hostile from the very beginning. At one

5 point there was no communication at the trial table. Petitioner tried to pass a

6 note to the judge for help but the Bailiff told petitioner to give the note to his

defense counsels who then confiscated it. Petitioner then spoke up and asked

7 the Court if he could speak to the Court but the Court told him no and told

8 him to speak to his attorneys.

9 ||(ECF No, 1-1 at 8.)

10 The Sixth Amendment does not guarantee a defendant a “meaningful relationship”

|| with counsel. Morris v. Slappy, 461 U.S. 1, 13-14 (1983). However, if Petitioner was

12 || forced to go to trial with an attorney with whom there was a breakdown in communication

13 complete it prevented effective assistance of counsel, he can establish a Sixth

14 |}Amendment violation. Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007); see also

15 || Wood v. Georgia, 450 U.S. 261, 271 (1981) (holding that a criminal defendant is entitled

16 || under the Sixth Amendment to representation free from conflicts of interest). In order to

17 ||demonstrate a conflict of interest which rises to the level of a federal constitutional

18 violation, Petitioner must show that his trial counsel actively represented conflicting

19 ||interests and the conflict adversely affected counsel’s performance. Cuyler v. Sullivan,

20 U.S. 335, 350 (1980). Petitioner’s allegations of a hostile relationship and a single

21 instance of lack of communication are clearly insufficient to satisfy those standards.

22 Petitioner alleges counsel failed to request a change of venue based on “repeated,

salacious media coverage,” and argues that under state law he need not show prejudice

24 || because he was sentenced to life without parole. (ECF No. 1-1 at 12, citing Williams v.

25 || Superior Court, 34 Cal.3d 584 (1983) (holding that in determining whether a defendant

26 cannot receive a fair trial in a particular county, the court must examine “(1) the nature and

27 || extent of the publicity; (2) the size of the [county’s] population; (3) the nature and gravity

28 || of the offense; (4) the status of the victim and of the accused; and (5) whether political

1 ||overtones are present.”)). Petitioner has presented no evidence to support any of those

2 factors, but presents a conclusory allegation that the media coverage was “repeated” and

3 ||“salacious.” There is no basis to find that his attorney had grounds for making a motion

4 || for a change of venue, or that it would have been granted had he done so, and conclusory

5 |{allegations such as these are insufficient to prove counsel provided ineffective assistance.

6 Blackledge v. Allison, 431 U.S. 63, 74 (1977) (denying habeas relief on the basis that

7 || “presentation of conclusory allegations unsupported by specifics is subject to summary

8 |; dismissal, as are contentions that in the face of the record are wholly incredible.”); see also

9 ||James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (denying habeas relief as to ineffective

10 assistance of counsel claim on the basis that “[cJonclusory allegations which are not

11 supported by a statement of specific facts do not warrant habeas relief”)

12 Petitioner next alleges counsel was deficient in failing to point out to the jury

13 ||“discrepancies between police reports, prelim, and trial testimony of [David G.., Ryan R.]

14 Allison White or Kohler.” (ECF No. 1-1 at 4.) Although no allegations supporting

15 claim are contained in the Petition, Petitioner alleges in his Traverse that counsel

16 || should have pointed out to the jury that Allison Kohler-White said in her police statement

17 || that when she saw Williams on the night he disappeared she asked her friend Sara Morache

18 || whether she thought something was wrong with Williams, but that Morache’s police

19 || statement did not recount that question to her by Kohler-White. (ECF No. 18 at 8.) He

20 contends Kohler-White said Williams got up and walked away as soon as she went

21 || over to help him, but Shannon Munoz told the police that Kohler-White told her Williams

22 ||did not walk away for thirty minutes, and Petitioner contends that Kohler-White said

Williams-was-unable-to-speak-at-that time-but two-other-witnesses-testified-he □□□□ □□□

24 ||speak when they encountered him about the same time. (Id. at 8-9.) In light of the

25 || overwhelming evidence connecting Petitioner to Williams’ death, defense counsel’s failure

26 point out those minor discrepancies does not “undermine confidence in the outcome” of

27 || the trial. Strickland, 466 U.S. at 694.

28

] Petitioner contends Ryan R. said he went to Mexico only once with Petitioner, but

2 |j cell phone records could have shown they went to Mexico together twice, and counsel

3 || failed to subpoena the cell phone records. (ECF No. 18 at 6-7.) He contends counsel failed

4 ||to argue that sperm found on David G.’s shirt, which did not belong to David G. or

5 || Petitioner, was evidence that David was not a heterosexual as he claimed, and that counsel

6 || failed to point out inconsistencies: (a) in David’s description of the color and make of

7 Petitioner’ car, (b) in a statement where David said he was drinking at a club on Hancock

8 Street and took a cab downtown, and another statement where he said he was drinking

9 downtown and then walked around, and (c) when David said in one statement he left his

10 || watch in Petitioner’s car, and in another that he only noticed it missing when he woke up.

11 (Id. at 7-8.) Petitioner’s contention that pointing out minor discrepancies in the testimony

12 ||of two of the four men who came forward to testify at trial that Petitioner drugged and

13 || sexually assaulted them, would have weakened the evidence that he had a modus operandi

14 || of drugging and sexually assaulting such men, is without merit in light of the overwhelming

‘15 |/evidence of that modus operandi, which includes his own admission to one of his

16 employers that he had sex with young men whom he drugged. Petitioner has not shown

17 |leither that “counsel’s errors were so serious as to deprive him of a fair trial,” or “a

18 probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

19 || 687, 694.

20 Petitioner alleges counsel was deficient in failing to request jury instructions on the

21 felony murder escape rule. (ECF No. 1-1 at 4, citing People v. Wilkins, 56 Cal.4th 333

22 (2013) (holding that when a killing is committed during flight from a felony, the escape

provides that felony-murder liability continues throughout the flight until the killer

24 ||reaches a place of temporary safety).) Petitioner has shown no basis for this instruction,

25 ||merely arguing “that the jury could have concluded that petitioner had reached a place of

26 ||safety before the death, as no time of death was established.” (ECF No. 30 at 5.) He has

27 alleged facts which, if true, show his counsel was deficient in failing to request the

28 || instruction or that he was prejudiced by the failure to so instruct the jury. □

1 Petitioner alleges counsel was deficient in failing to present evidence that implicated

2 {another person, stating that: “According to police reports in discovery, Antonio Torres was

3 suspect who used breathing techniques to evade police lie detector test.” (ECF No. 1-1

4 || at 8.) He contends the DNA reports show ten unidentified alleles not attributable to him,

5 || which he argues could be used to argue “a possible third DNA contributor.” (Id. at 19;

6 No, 1-2 at 39-46.) The fact that the police interviewed a suspect and gave him a lie

7 || detector test in a case that went unsolved for 18 months, or that there were unidentified

8 |/alleles in DNA testing where undisputed forensic evidence tied Petitioner to Williams’

9 || body, does not establish sufficient support for presenting a third party defense at trial. See

10 || Perry v. Rushen, 713 F.2d 1447, 1449 (9th Cir. 1983) (evidence of third party culpability

11 inadmissible in a California criminal trial “if it simply affords a possible ground of

12 || suspicion against such person; rather, it must be coupled with substantial evidence tending

13 ||to directly connect that person with the actual commission of the offense.”)

14 Petitioner next alleges counsel was deficient in failing to present evidence o

15 ||contamination of laboratory samples, contending that reports regarding the handling o

16 || DNA evidence in this case raises questions regarding “good lab practices.” (ECF No. 1-1

17 |}at 18; ECF No. 1-2 at 36-38.) Petitioner sent a letter to the trial judge objecting to a

18 || proposed stipulation regarding police laboratory work, contending that San Diego Police

19 || Department Criminalist Sean Soriano stated in a March 2009 report that he cut samples for

20 || DNA testing from Williams’ shirt, but another report stated that the DNA testing on those

21 ||samples was done in January 2009. (CT 500-01.) The evidence Petitioner relies on to

22 a discrepancy is one page of the three-page report from Soriano dated March 10,

stating that-he-had impounded-the-cuttings,but-providing-no-indication-when-the}

24 |)samples were prepared (ECF No. 1-2 at 36), and one page of a four-page report dated

25 || January 20, 2009, stating that Williams’ DNA was found on a cutting from his shirt, but

26 || without stating what date the cutting was tested (id. at 37). Petitioner states that Soriano

27 clarified the issue at the preliminary hearing when he testified that he made the cuttings

28 || before they were tested, and that he prepared his report several months later. (ECF No. 18

1 18.) Petitioner was represented by two attorneys at trial, and stated in his letter to the

2 |\judge that both attorneys interviewed Soriano prior to the preliminary hearing. (CT 503-

- 3 ||03.) Petitioner alleges Soriano admitted to counsel during that interview that he made the

4 || cuttings in March after the J anuary testing, and counsel told Petitioner they would testify

5 trial in order to contradict Soriano, but did not do so. (Id.)

6 This claim is without merit because the only evidence Petitioner provides of a

7 || discrepancy between when the cuttings were prepared and when they were tested for DNA

8 |lare the portions of the reports which do not contain the dates of the cuttings or testing.

9 || Soriano was the first witness called by the defense and was asked about the procedures he

10 in making cuttings from Williams’ shirt for DNA analysis, but not about the dates he

11 |}made the cuttings. (RT 3559-60.) Even if there is some discrepancy in the reports, the

12 ||record shows it was investigated by defense counsel, and Petitioner has not shown his

13 counsel were unaware of the issue or failed in their representation of him by not testifying

14 |/at trial regarding what Soriano said to them prior to the preliminary hearing or otherwise

I5 revisiting the issue at trial. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (recognizing

16 strong presumption that counsel took actions “for tactical reasons rather than through

17 ||sheer neglect”), citing Strickland, 466 U.S. at 690 (holding that counsel should be “strongly

18 || presumed to have rendered adequate assistance and made all significant decisions in the

19 || exercise of reasonable professional judgment.”); Burt v. Titlow, 571 U.S. 12, 22-23 (2013)

20 (recognizing “that the burden to ‘show that counsel’s performance was deficient’ rests

21 squarely on the defendant, .. . It should go without saying that the absence of evidence

22 |}cannot overcome the ‘strong presumption that counsel’s conduct (fell) within the wide

of reasonable professional assistance.’”), quoting Strickland, 466 U-S. at 687, □□□□ □

(24 Petitioner next contends, as he does in his actual innocence claim, that counsel

25 ||should have pointed out a discrepancy in drug testing to argue Jeremiah had a motive to

26 || fabricate his allegations. Jeremiah testified that he met Petitioner on the evening of June

27 116, 2009, and asked Petitioner to stop somewhere to get something for a headache.

28 || Petitioner gave him a pill from a Tylenol bottle, after which he blacked out. (ECF No. 17-

1 ||5 at 20-28.) When he returned to base the next day he went to the base emergency room.

2 although he did not think he had been sexually assaulted, other people who heard his

3 story did, and he was referred for a SART examination which took place at 5:00 p.m. on

4 || June 8, 2009. (Id. at 43-46; RT 1120.) Jeremiah was tested for drugs on base on June 7,

5 2009, at 9:48 p.m., and according to a report submitted by Petitioner was found to have the

6 || benzodiazepine Alprazolam, also known as Xanax, in his system. (ECF No. 1-2 at 43.) A

7 || toxicologist from Biotox Laboratories testified at trial that Jeremiah’s blood and urine was

8 || taken about 6:00 p.m. on June 8, 2009, during the SART examination, that it tested positive

9 || for the benzodiazepine Klonopin, also called clonazepam, and, assuming he took the drug

10 about 42 hours earlier, late on the night of June 6, there would have been a higher than a

11 || therapeutic dose in his system at that time, potentially double that amount. (RT 1712-22.)

12 Petitioner contends the base emergency room notes state that Jeremiah denied: being

13 || sexually assaulted, and that the drug test at that time shows that the benzodiazepine found

14 his system on June 7 was Xanax rather than Klonopin, and that report should have been

15 entered at trial to show the discrepancy between it and the Biotox report used at trial which’

16 || found Klonopin in his system. (ECF No. 1-1 at 3-4, 19-20; ECF No. 1-2 at 42-43, 45; ECF

17 || No. 18 at 9-10; ECF No. 62 at 9; ECF No. 66 at 6.) He contends counsel should have

18 || presented this evidence to the jury to show Jeremiah denied he had been sexually assaulted

19 || when examined on base, and that he used Xanax several days before he met Petitioner and

20 || Klonopin after they met, in order to show he was a regular benzodiazepine user who had a

21 motive to fabricate allegations against Petitioner to explain his drug use and consensual

22 homosexual activity, both of which at the time could have resulted in his being discharged

the Navy. (ECF No. 1-1 at 5-6; ECF No. 41 at 2-4.) However, Jeremiah testified-he

24 || initially did not think he had been sexually assaulted, and Petitioner has not shown that the

25 ||Klonopin found in Jeremiah’s blood during the SART examination could not have come

26 || from Petitioner. Even if there is some discrepancy, in light of the overwhelming evidence

27 || of Petitioner’s modus operandi of drugging young heterosexual men with benzodiazepine

28 ||in order to rape them, counsel’s failure to point out to the jury that the base emergency

1 || room test revealed Xanax rather than Klonopin as the benzodiazepine found in Jeremiah’s

2 blood, in order to argue a motive to fabricate his allegations, did not constitute ineffective

3 ||assistance. See Strickland, 466 U.S. at 687, 694 (petitioner must show that “counsel’s

4 || errors were so serious as to deprive him of. . . a trial whose result is reliable .. . [and] a

5 || probability sufficient to undermine confidence in the outcome.”)

6 Petitioner alleges counsel failed “to object to inflammatory remarks.” (ECF No. 1-

7 || 1 at 12.) The only such remark identified is a comment by the trial judge about Petitioner

8 || that “he’s a character but he got no character.” (Id.) Petitioner provides no record citation,

9 not indicate the context of the remark, such as whether it was made in front of the

10 || jury, and, as discussed below in claim five, has not shown the judge was biased. This claim

11 || fails as conclusory. Blackledge, 431 U.S. at 74; James, 24 F.3d at 26.

12 In the final aspect of claim three presented in the Petition, Petitioner alleges counsel

13 || failed to investigate his mental condition in order to consider whether a mental health

14 || defense should have been presented at trial or for mitigation at sentencing, stating: “The

15 ||doctor who was commission by [the Social Security Administration] who diagnosed

16 || petitioner with schizophrenia was a practicing psychiatrist and could have been called to

17 testify.” (ECF No. 1-1 at 8, at 11.) However, he does not allege he made counsel or the

18 ||court aware he had been diagnosed with schizophrenia, and has not identified what effect

19 || his schizophrenia would have had at his trial or sentencing. “It is not enough ‘to show that

20 errors had some conceivable effect on the outcome of the proceeding.’” Richter, 562

21 ||US. at 104, quoting Strickland, 466 U.S. at 693; see also People v. Dillon, 34 Cal.3d 441,

22 ||477 (1983) (holding that first degree felony murder includes “a variety of unintended

from_re ckless-behavior,-or-ordinary-negli gence,or-pure-accident;it}

24 |jembraces both calculated conduct and acts committed in panic or rage, or under the

25 ||dominion of mental illness, drugs, or alcohol; and it condemns alike consequences that are

26 || highly probable, conceivably possible, or wholly unforeseeable.”)

27 Several aspects of claim three are presented for the first time in Petitioner’s Traverse,

28 ||and have never been presented to any state court. Petitioner argues that defense counsel

1 |jshould have challenged the tire track evidence on the basis that such evidence has been

2 ||shown to be unreliable, that the tire track expert also found the van Petitioner rented could

3 have make skid marks found near the body, and because the tire track expert was in

4 || fact a shoe print expert. (ECF No. 18 at 10-11.) He also claims that counsel should have

5 ||pointed out inconsistencies in statements from Petitioner’s employers who said he told

6 ||them he liked to drug and rape young men, and should have raised issues of their bias

7 {|against him (id. at 25-28), and that the cumulative effect of trial counsels’ errors is

8 ||prejudicial. (Id. at 16-17.)

9 As with the other minor inconsistencies in the witness testimony addressed above,

10 || Petitioner has not overcome the strong presumption that counsel’s failure to bring these

11 |/inconsistencies to the jury’s attention is deficient rather than a trial tactic, and, in light of

12 || the overwhelming evidence of his modus operandi and connecting him to Williams’ dead

13 || body, does not “undermine confidence in the outcome” of the trial. Strickland, 466 U.S.

14 694. As to his claim that the cumulative effect of counsel’s errors was prejudicial, “[i]t

IS || will generally be appropriate for a reviewing court to assess counsel’s overall performance

16 ||throughout the case in order to determine whether the ‘identified acts or omissions’

17 |}overcome the presumption that a counsel rendered reasonable professional assistance.”

18 || Kimmelman v. Morrison, 477 U.S. 365, 386 (1986), quoting Strickland, 466 U.S. at 689.

19 || A review of the actions by defense counsel in this case does not rebut that presumption.

20 Accordingly, based on a de novo review, the Court finds that the allegations in claim

21 three, even if true, do not demonstrate a violation of Petitioner’s Sixth Amendment right

22 the effective assistance of counsel. Habeas relief is denied as to claim three.

EB. Claim Four

24 Petitioner alleges in claim four that his rights to due process and a fair trial under the

25 and Fourteenth Amendments was violated by: (a) the use of his sex offenses to show

26 ||he possessed a propensity to commit the charged offenses, (b) inability to confront

27 Jeremiah at trial when a videotape of his preliminary hearing testimony was played in lieu

28 || of his appearance, and inability to confront Jeremiah’s SART nurse when a non-treating

1 ||nurse testified as to the SART findings, (c) jury instruction errors regarding causation,

2 || failure to instruct that intent to kill is an element of murder under the felony murder rule,

3 |/and failure to instruct on lesser included offenses of battery, second degree murder and

4 || manslaughter, (d) a biased judge, and (e) the cumulative effect of the errors. (ECF No. |

5 9; ECF No. 1-1 at 4, 6-12.) Respondent answers: “Respondent is unable to determine

6 ||the underlying basis of this claim, and a review of the habeas petition filed in the state

7 || supreme court does not indicate what the basis of the claim might be. Consequently, the

8 ||claim should be rejected as vague and conclusory.” (ECF No. 16-1 at 14.)

9 The first aspect of claim four alleges Petitioner was denied his federal constitutional

10 rights to due process and a fair trial because the jury was allowed to consider evidence of

11 bad character as propensity to commit sex offenses, in the form of “salacious details,

12 || without corroborating physical evidence, of partying and people waking up in hotels.”

13 ||(ECF No. t-1 at 6-7.) Petitioner alleged on direct appeal in both the appellate and supreme

14 || courts that: “The admission of charged sex acts to show a propensity to commit other

15 ||charged sex acts and to allow a jury to convict upon such evidence denies a criminal

16 defendant of his right to due process of law and a fair trial” under the Fifth and Fourteenth

17 {| Amendments. (ECF No. 12-2 at 83-85; ECF No. 12-9 at 36-38.)

18 The last reasoned state court opinion addressing this claim denied it on the basis that

19 || the California Supreme Court permits the use of charged offenses as propensity evidence.

20 No. 12-4, People v. Huynh, No. D060327, slip op. at 36-37, citing People v.

21 || Villatoro, 54 Cal.4th 1152, 1167-68 (2012) (“Whether an offense is charged or uncharged

22 ||in the current prosecution does not affect in any way its relevance as propensity

evidence.”))The Ninth Cireuit has-found-that-because the United States Supreme Court}

24 specifically reserved ruling on the issue regarding whether introduction of propensity

25 || evidence in a state trial could violate federal due process, and has denied certiorari at least

26 || four times on the issue since, there is no “clearly established federal law” on the issue,

27 || precluding habeas relief where 28 U.S.C. § 2254(d)(1) applies. Alberni v. McDaniel, 458

28 || F.3d 860, 866 (9th Cir. 2006). There is no basis to apply 28 U.S.C. § 2254(d)(2) to this

1 ||claim, which therefore does not provide a basis for federal habeas relief.

2 Petitioner next contends he was denied his Sixth Amendment right to confrontation

3 || when a non-treating nurse was allowed to testify as to the findings of Jeremiah’s SART

4 ||nurse. (ECF No. 1-1 at 4.) This claim was presented to the state appellate and supreme

5 ||courts on direct appeal. (ECF No. 12-2 at 104-19; ECF No. 12-9 at 30-36.) The last

6 |/reasoned state court decision addressing this claim is the state appellate court opinion:

7 Huynh contends the trial court violated his Sixth Amendment right to

8 confront witnesses by allowing a nurse to testify about Jeremiah’s sexual

assault examination conducted by another nurse. The contention is without

9 merit.

10 Background

1]

12 At the time of trial, Danella Kawachi, the registered nurse who

conducted a SART examination on Jeremiah on June 8, 2009, was unavailable

13 because she was awaiting a heart transplant. The trial court, over the objection

14 of Huynh, allowed the prosecution to present the testimony of Claire Nelli, a

registered nurse who was Kawachi’s supervisor and employer.

15

16 Nelli testified she and Kawachi are forensic nurses certified to perform

sexual assault examinations of victims and suspects. Nelli is the owner of one

17 of the SART facilities in San Diego and personally reviews all reports and

18 photographs taken during examinations in her facility. Nelli explained to the

jury how SART examinations are performed according to a state protocol,

19 which, among other things, calls for photographs to be taken to document the

0 nurse’s findings. During Nelli’s testimony, she reviewed two photographs

from the SART examination of Jeremiah’s anus and rectum and stated her

21 independent opinion - based on her experiences examining more than 1,000

2 anuses during the course of 2,000 SART examinations - that the photographs

showed significant trauma to the anus. Nelli did not describe to the jury

Kawachi’s findings and opinions regarding the examination and Jeremiah’s

injuries.

24

25 Legal Principles

26 In Crawford v. Washington (2004) 541 U.S. 36, 59 (Crawford), the

27 United States Supreme Court held that the Sixth Amendment’s confrontation

28 clause prohibits admission of out-of-court “(t)estimonal statements of

witnesses absent from trial (unless) the declarant is unavailable,” and “only

1 where the defendant has had a prior opportunity to cross-examine.” The

> Crawford court did not set forth “a comprehensive definition” of what

constitutes “testimonial evidence,” but held that “(w)hatever else the term

3 covers, it applies at a minimum to prior testimony at a preliminary hearing,

4 before a grand jury, or at a former trial; and to police interrogations.” (/d. □□

p. 68.) Elaborating to some degree, the Crawford court also stated the “core

5 class” of testimonial statements included “‘ex parte in-court testimony or its

6 functional equivalent - that is, material such as affidavits, custodial

examinations, prior testimony that the defendant was unable to cross-examine,

7 or similar pretrial statements that declarants would reasonably expect to be

g used prosecutorially,’ ... ‘extrajudicial statements ... contained in formalized

testimonial materials, such as affidavits, depositions, prior testimony, or

9 confessions,’ . . . ‘statements that were made under circumstances which

10 would lead an objective witness reasonably to believe that the statement

would be available for use at a later trial.’” (/d. at pp. 51-52, citations & italics

11 omitted.)

12 Subsequently, the high court addressed what constituted testimonial

13 statements in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305,

14 (Melendez-Diaz); Bullcoming v. New Mexico (2011) 564 U.S. __, 131 S.Ct.

2705 (Bullcoming); and Williams v. Illinois (2012) 567 U.S. __, 132 S.Ct.

15 2221 (Williams).

16 In Melendez—Diaz, supra, 557 U.S. at pages 308 through 309, a drug

17 case, the prosecution introduced “‘certificates of analysis’” prepared by

18 laboratory analysts who did not testi

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