# Huynh v. Lizarraga

> District Court, S.D. California · March 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10640014

## Case

- **Court:** District Court, S.D. California
- **Decided:** March 20, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10640014

## How later opinions describe it (automated extraction)

- holding that a claim is “substantial” if the petitioner can show that claim has some merit.”
- 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

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
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),
25
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
26
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.
25
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.
7
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. |
28

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”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10640014. Public record. Not legal advice.