Allen v. Schuyler

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MELVIN ALLEN, Case No. 24-cv-00315-RFL (PR)

Petitioner,

ORDER DENYING PETITION FOR

v. WRIT OF HABEAS CORPUS

CHARLES SCHUYLER,

Respondent.

I. INTRODUCTION

Petitioner Melvin Allen seeks federal habeas relief under 28 U.S.C. § 2254 from his

California state conviction for murder. Allen has not carried his burden to show he is actually

innocent. Nor has he shown error. The prosecutor did not commit misconduct; trial counsel was

not ineffective for failing to object; and the trial court’s failure to instruct the jury regarding

spectator misconduct did not deprive Allen of a constitutionally fair trial. And, because there

were no errors, there was no cumulative error. The petition for habeas relief is DENIED.

II. BACKGROUND

In 2018, an Alameda County Superior Court jury found Allen guilty of first degree

murder (Cal. Penal Code § 187) and found true an allegation that he personally and intentionally

discharged a firearm in the commission of the offense (id. § 12022.53). (State Appellate

Opinion, Dkt. No. 15-13 at 3.) A sentence of 50 years to life in state prison was imposed. (Id.)

His attempts to overturn his conviction in state court were unsuccessful. This federal habeas

petition followed.

The facts of the crime were summarized by the state appellate court:

This case arises from the shooting death of Dominique Johnson on the night of

December 23, 2017. At [Allen]’s trial, the following evidence was presented.

Oakland Police Officer Daniel Breznick testified that on December 23, 2017,

around 10:25 p.m., he responded to a dispatch of a shooting on Brush Street

between San Pablo and West Grand Avenues in Oakland. He was familiar with

that area, where there is a freeway overpass, as well as a park and a tent

encampment in the triangle made by the three streets. When Breznick arrived at

the scene, there was a group of people standing over a person lying facedown in

the street. The person, who was unresponsive and had no pulse, had a single

gunshot wound to the center of his chest, with a possible exit wound on the right

side. Breznick performed CPR on the person until paramedics arrived at the

scene.

The parties stipulated that an autopsy of the victim, Dominique Johnson, revealed

that the cause of death was a single gunshot wound to the chest, with an entrance

wound mid-sternum and an exit wound on the right, lateral side of the back.

Oakland Police Sergeant Bradley Baker, a homicide detective who was assigned

to investigate the shooting, testified that he was called to the scene on the night of

December 23, 2017, where he observed an expended shell casing from a firearm,

a black, hooded sweatshirt, a white T-shirt, and apparent blood spatter at several

locations. The black sweatshirt was found at the corner of West Grand and Brush

and the blood spatter was located mid-block on West Grand between San Pablo

and Brush, moving along West Grand toward Brush Street.

Baker collected surveillance video footage from nearby businesses with cameras

and found that two cameras had captured the shooting from different angles.

Video footage from both cameras was played for the jury. Camera 2 showed the

intersection of West Grand and Brush, as well as the park area. Camera 7 showed

two figures in dark clothing walking from left to right, approximately 10:25 p.m.

The black sweatshirt appeared on the street corner less than a minute later. It had

been dropped by one of the two figures shown walking in the video.

Bonnie Cheng, an Oakland Police Department criminalist, testified as an expert

in the field of comparing DNA samples. The crime lab processed the black

sweatshirt related to the homicide of Johnson; samples taken from the front collar

and left cuff were fully tested for DNA. Cheng determined that the two samples

contained DNA mixtures of at least two individuals, including one major and one

minor contributor on the front collar. Cheng conducted a statistical analysis of

the DNA profile from the front collar and was able to determine that the major

donor’s profile would be expected to occur in the population approximately ‘once

in 2 nonillion’ (i.e., 30 zeroes following a 2) individuals. The frequency of the

DNA profile from the left cuff of the sweatshirt was ‘1 in 690 octillion’ (i.e., nine

zeroes following 690). Cheng compared a DNA sample taken from [Allen] with

the major donor from the front collar of the sweatshirt and found that his sample

was consistent with the sweatshirt sample. Cheng was unable to obtain a full

DNA profile of the minor donor.

These results indicated that [Allen] was most likely the ‘habitual wearer’ of the

sweatshirt. There was, however, no way to determine if he was the last person to

wear the sweatshirt before testing. The person who wears an article of clothing is

more likely to leave more DNA on it than someone who merely handled it briefly.

The DNA of Candace C. ([Allen]’s girlfriend) was not compared with any of the

DNA found on the sweatshirt.

Andre S., who testified that he would not be in the courtroom if he were not under

a court order to appear, had been part of the homeless community living near the

scene of the shooting for about five years. Andre had ‘heard of’ a woman named

Candace who hung around that area in December 2017. He did not know [Allen]

personally, but had seen him around and heard him called Melvin. On the night

of December 23, 2017, Andre was at a bus stop near the intersection of West

Grand and San Pablo in Oakland. From the bus stop, he was only partially able

to see the area of Brush and West Grand because there were bushes between him

and that area. He noticed a lot of police activity in the area and learned that

someone had been shot. Before the police arrived, he did not hear any yelling or

arguing coming from the area of West Grand and Brush. He had seen [Allen] in

the area earlier that day, but did not see him that night before the police showed

up.

Andre acknowledged being interviewed at Santa Rita Jail by Sergeant Baker on

February 1, 2018. After the prosecutor played portions of an audio recording of

the interview, Andre acknowledged that even before Baker explained why he was

there, Andre said, ‘this must be about Melvin and what’s her name.’ He also

acknowledged telling Baker that he was at the bus stop at San Pablo and West

Grand when he heard and saw ‘Mel and dude fighting.’ He testified that he told

Baker he had heard a sound that could have been either a shot or a car backfire.

He acknowledged hearing himself say ‘shot,’ but not ‘backfire,’ in the recording

of the interview played at trial.

Andre further testified that while he was at the bus stop that night, he heard voices,

but he could not remember if the voices were raised in argument. He did not see

any altercation from the bus stop because he was facing the wall with his back to

San Pablo, receiving oral copulation. He further testified that he told Baker he

heard a shot because he ‘wanted to impress him’ since he was in custody at the

time. Baker did not offer him any leniency, however. When the prosecutor asked

if he told Baker that when he heard the voices, ‘Mel, [Candace], and dude were

standing in the middle of the park on the West Grand side across from the storage

building,’ Andre responded, ‘I don’t remember my exact words, but I made up

something that night to impress the officer . . . ’ He no longer recalled if he told

Baker that those three people were the only ones he saw in the area.

After playing more of the audio recording of the February 1, 2018 interview with

Baker, Andre acknowledged that he ‘might have said’ that he had known Mel for

over a year. He also identified photos Baker had shown him as being of Mel and

Candace. When shown a map on which someone had circled an area in ‘the

middle of the curb line at West Grand in front of the park,’ Andre agreed that was

where he had indicated to Baker that Mel, Candace, and the other man were

standing when he saw them. Andre also acknowledged having an exchange

during the interview in which Baker asked, ‘Did she get mixed up with these two

when they were beefing,’ ‘to which he responded, ‘I don’t know. Somebody said

it might have been over her. I’m not sure. [¶] Question: Okay. But you didn’t

see her fighting with him or anything like that? [¶] Answer: No. [¶] Question:

Did you see any punches throwing between them [sic] or anything like that? [¶]

Answer: No.’

On cross-examination, Andre testified that people who live in tents in the area

near where the shooting took place sometimes borrow or steal each other’s

clothing. He had heard rumors about the shooting, including that police were

looking for witnesses, from late December 2017, until he went to jail in early

2018. That is why he assumed Baker had come to the jail to interview him about

Mel and his girlfriend. The night after the shooting, when he was approached by

an officer and asked about the incident, Andre said he did not see anything, which

was the truth. He agreed that his motive in telling Baker about rumors he had

heard about the killing was to give police the idea he knew something so that he

could maybe make a deal to get out of jail sooner and to make him look good

regarding his parole violation. Andre had previously testified under oath in this

matter in April 2018, and had said he did not see any portion of the altercation.

Other than hearing a backfire or a shot, he did not see anything connected with

this case due to his back being to San Pablo.

Candace testified that on December 23, 2017, she was living in a tent in Oakland,

in the area of West Grand, San Pablo, and Brush. Sometime before 10:00 p.m.,

just before she planned to leave for work, she was in the tent with her boyfriend,

[Allen], when the tent shook. [Allen] looked out the window of the tent, saw

someone leaving, and ‘screamed, ‘hey, who is that?’ ‘[Allen] then left the tent

and, after locking up the tent, Candace followed. When she caught up with

[Allen] about a half block from the tent, on 23rd Street between Brush and West,

[Allen] was ‘[e]xchanging words in a heated conversation,’ apparently with the

person who shook the tent. The two men agreed to fight, and [Allen] removed his

jacket and handed it to Candace. The jacket did not have a hood and opened in the

front. The fight lasted around three minutes and ended when the other man, who

[Allen] had pinned to the ground, said, ‘okay. I give,’ ‘and [Allen] let him get up.

Candace did not see any punches thrown during the fight; it was ‘[m]ore of a

wrestling match.’ She knew that [Allen] had wrestled in high school. She

believed she returned [Allen]’s jacket to him right after the fight.

Candace and [Allen] then started walking back to their tent. Candace glanced

over her shoulder and saw that the man [Allen] had fought with was trailing them.

When she told [Allen] that the man was following them, he turned around and

faced the man. As the man continued to follow them, she saw [Allen] walk

backwards from the corner of Brush into the park at West Grand and Brush.

Meanwhile, Candace started walking back to the tent. She had reached the

intersection of Brush and West Grand, about 40 feet away from [Allen], when she

heard a gunshot, apparently coming from the park. She turned around and saw

both [Allen] and the man in the park; they were about 15 feet apart. Candace saw

the man turn around and start walking back toward where the fight had taken place

near the intersection of 23rd and Brush. She could tell that he had been shot.

Candace ran toward [Allen] and said, ‘let’s move out of the way. Let’s get from

right here.’ They then left the area, walking up West Grand to Martin Luther King

Jr. Way. [Allen] was walking faster than she was, so he got ahead of her, but she

eventually caught up with him near the tent area. Lots of people surrounded them,

asking if they knew what had happened, since they were coming from the

direction of the gunshot.

Candace did not tell anyone anything. She and [Allen] never had a conversation

about what had happened that night. Where Candace comes from, people do not

discuss things like that. It is also frowned upon to talk to the police or testify in

court, and people who do so are sometimes called a snitch. She recognized some

of the people in the courtroom as being from the neighborhood. She knew the

majority of them, a few of whom were associates of [Allen].

Candace acknowledged that she was interviewed by Sergeant Baker on April 1,

2018, at the Oakland Police Department. She testified that she was not sure if she

told Baker that [Allen] had asked for his jacket as the victim approached because

she was under the influence of heroin when she spoke to Baker and she was

presently unclear as to exactly what she said that day. She had used heroin in the

police department bathroom just before the interview with Baker.1

The prosecutor then played portions of a DVD of the April 1, 2018 police

interview for the jury, and asked Candace questions related to each portion played.

Candace acknowledged that in the interview, contrary to her trial testimony, she

told Baker that [Allen] had said to her, ‘give me my jacket. Give me my jacket’

‘just before the shooting, and that, then, ‘all of a sudden, he turned around and

shot him.’ ‘In the interview, she had also responded twice in the negative when

Baker asked if [Allen] had said anything before shooting Johnson.2 Candace also

1 Candace testified that she was not intoxicated during her testimony at trial.

When the prosecutor noted she was having trouble staying awake, she said it

was because she was a heroin addict, and she had last used heroin the night

before.

2 Specifically, the interview transcript reflects that Candace told Baker that

confirmed at trial that she reviewed a map during the police interview and had

circled a portion of the map where she indicated that the shooting took place.

Candace further confirmed at trial that Baker had shown her a photo of [Allen]

during the interview and asked, ‘is this the same guy that you’d seen shot [sic]

Johnson here,’ ‘to which Candace had responded by nodding.3

Candace confirmed that at the end of the interview, after she had made all of the

statements in the portions of the interview shown to the jury, Baker showed her

the surveillance video from the night of the shooting. Candace testified that the

location shown in the video appeared to be the park at West Grand and Brush.

Candace recognized herself as one of two figures walking from left to right on the

screen; she was the person on the left closest to the intersection and the other

person, in darker clothing, was [Allen]. She testified that an exchange on the

corner shown in the video was her giving [Allen] his jacket. Candace testified

that a third person wearing a white shirt subsequently shown onscreen in the

surveillance video was the person who was shot.

On cross-examination, Candace testified that her eyesight is bad and it is hard for

her to see at night. In the area where the shooting occurred, some parts were dark

and some were well lit. She also testified that she was nodding off at the start of

the police interview with Baker because she was under the influence of heroin and

because it was after 1:00 in the morning. She was also frightened to be there

because Baker implied that she was involved somehow in the shooting. Candace

had initially denied that she was present or had seen anything. Baker had then

said he knew she was lying because the police had her on surveillance video, but

she continued to deny being present, saying she was on a date. Candace testified

on cross-examination that she only knew who was who on the surveillance video

[Allen] grabbed his ‘coat’ before rushing out of the tent after the victim had

shaken it, and that he took off the jacket just before the initial fight with the

victim and gave it to her to hold. Her statement is somewhat unclear about the

exact timing of [Allen]’s request for the jacket. For example, she stated that

when they got to the corner, [Allen] said, ‘Give me my jacket—give me my

jacket.’ She gave the jacket back to him while they were still walking and the

victim was following them. She said that after she gave [Allen] his jacket, he

did not say anything to the victim before shooting him. However, just before

they got to the location of the shooting, [Allen] asked the victim, ‘Why you

followin’ me?’’ The victim then said, ‘ ‘Let’s go again,’’—meaning he wanted

to fight again—and [Allen] said, ‘You just asked to get up.’ Candace further

told the officers, ‘So it was, like, yellin’ and then—then the gunshot, uh—just

everything just kinda, uh, that took place and everything just kinda chaotic right

there . . . .’ Candace believed the gun must have been wrapped up in [Allen]’s

jacket, which was folded up while she was holding it for him. The hoodie that

dropped on the ground at the corner also could have been wrapped up in

[Allen]’s jacket.

3 On cross-examination, Candace testified that she believed the nod she made at

that point was “from the heroin use.”

because Baker had told her. She also denied that anyone in the audience in the

courtroom had threatened her about testifying at trial or that anyone on the street

had called her a snitch.4

On redirect examination, Candace acknowledged that after the lunch break that

day, her testimony had ‘started to deviate drastically’ from what she had said to

Baker during the police interview, but she denied that something had happened

over the lunch break that made her want to tell a different story. Candace

acknowledged that the officers did not show her the surveillance video until the

very end of her interview. When the prosecutor asked how she had ‘describe[d]

everything that was eventually shown in that video to happen before seeing the

video,’ Candace responded, ‘Because that’s what transpired.’ She also

acknowledged that during the interview, every time the officers accused her of

lying when she told them she was not present at the shooting scene, the officers

were correct.

(Ans., State Appellate Opinion, Dkt. No. 15-13 at 3-12.)

As grounds for federal habeas relief, Allen claims (1) he is actually innocent; (2) trial

counsel rendered ineffective assistance; (3) there was prosecutorial misconduct; (4) the trial court

erred in failing to admonish the jury about spectator misconduct; and (5) there was cumulative

4 The following paragraph appears in the Westlaw version of the appellate

opinion and in the Answer, but not in the official version filed in this suit:

The relevant surveillance video footage from Camera 7, played for the jury at

trial, shows the following. First, two people Candace had identified as her and

appellant are visible walking in the street from left to right. When they reach the

sidewalk at the street corner, appellant reaches toward Candace as a man,

identified as Johnson, comes into view, walking briskly towards them from the

direction they had just come. Approximately ten seconds after appellant first

reaches for what appears to be a jacket that Candace has been holding, he turns

and starts to walk down the adjacent sidewalk, with Johnson, who by now is just

behind him, following. After taking three or four steps, appellant turns around

and walks backwards about six steps before stopping, dropping the jacket,

raising his arm, and pointing at Johnson from close range. Johnson immediately

turns around and bends over before walking a number of feet with his hand over

his chest, ultimately falling face down into the street. Meanwhile, appellant has

picked the jacket up off the ground and started walking away down the

sidewalk, along with Candace, who had been standing in the street nearby since

giving appellant the jacket.

People v. Allen, No. A155167, 2020 WL 3722944, at *5 (Cal. Ct. App. Jul 7,

2020).

error.

STANDARD OF REVIEW

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), this Court

may entertain a petition for writ of habeas corpus “in behalf of a person in custody pursuant to

the judgment of a State court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petition may not

be granted with respect to any claim that was adjudicated on the merits in state court unless the

state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the

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

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than [the] Court has on a set of materially

indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if

the state court identifies the correct governing legal principle from [the] Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal

habeas court may not issue the writ simply because that court concludes in its independent

judgment that the relevant state court decision applied clearly established federal law erroneously

or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A federal habeas

court making the “unreasonable application” inquiry should ask whether the state court’s

application of clearly established federal law was “objectively unreasonable.” Id. at 409.

III. DISCUSSION

A. Actual Innocence

Allen claims he is entitled to habeas relief because he is actually innocent of the crimes.

(Pet., Dkt. No. 1 at 7.) His evidentiary basis for this claim is the October 13, 2020 declaration of

alleged eyewitness Larry Greer. (Id., Dkt. No. 1-1 at 18-19.) This declaration was emailed to

Allen’s appellate attorney Lauren Dodge by Allen’s sister two years after the trial and three years

after the murder. (Ans., Dodge Decl., Dkt. No. 15-17 at 112.) In his declaration, Greer describes

a wrestling match between a man with dreadlocks (Johnson) and Allen, whom he referred to by

the nickname Dago, though Allen’s nickname is Melo:

In the declaration, Greer recounts witnessing a late-night altercation between a

man with dreadlocks and another man he referred to as ‘Dago.’ He indicates that

the man with the dreadlocks approached ‘Dago’ and threatened to kill him. As

the two men went to the ground in a wrestling match, Greer saw a gun in the pants

of the man with the dreadlocks, and saw ‘Dago’ take the gun and put it in his own

pants. Greer noticed a woman he called ‘Candence’ watching the altercation from

nearby.

(Id., Whitney Decl., Dkt. No. 15-17 at 115.) Greer “continued on his way” and “didn’t see what

happened next.” (Id., Greer Decl., Dkt. No. 15-17 at 122-123.)

Allen’s investigator, Scott Whitney, found Greer, who was “homeless and under the

influence of narcotics,” in late 2020. (Ans., Dodge Decl., Dkt. No. 15-17 at 112.) Greer

“acknowledged having written and signed the declaration” but “he had difficulty recollecting the

details of its contents.” (Id.) Whitney tried to interview him again a few days later, but Greer

said he was “drug sick” and could not talk. (Id.) Finally, Whitney tried to speak to Greer a third

time at his tent, but Greer said “he could not talk because his wife was in the hospital.” (Id.)

Whitney’s investigation was “discontinued after Whitney could not confirm the authenticity or

contents of Greer’s declaration due to Greer’s homelessness and addiction.” (Id.)

A year and a half later, on May 9, 2022, a second declaration from Greer, also dated

October 13, 2020, was delivered to Dodge. “The declaration was near-identical in

content to Greer’s first declaration except it substituted the name ‘Melo’ for ‘Dago.’ ” (Id. at

113.) The declaration was also notarized, with a second signature from Greer dated on April 20,

2022. (Id.) Whitney interviewed Greer by phone around August 12, 2022. (Id.) “Now housed

and sober, Mr. Greer confirmed to Whitney that he wrote the declaration, verified the truth of its

contents, and explained how and why he had decided to come forward.” (Id.)

Regarding the second declaration, Greer explained to Whitney that he thought he wrote

the second statement a few months earlier:

When it was explained to him that the second statement had the same date as the

first statement he wrote, he could not explain why that would be. As to the change

of name from ‘Dago’ to ‘Melo’, he stated that he did not know Melvin Allen well.

They both lived in the same encampment so Larry would see him around

occasionally. When he wrote the first statement he had it in his head that Melvin’s

street name was ‘Dago.’ So that is the name he used in the initial declaration.

When he was talking to Alysia, she used the name Melvin and that is when Larry

realized that the person he was calling ‘Dago’ in the declaration was actually

‘Melo.’ In his mind they were one and the same person.

(Id., Whitney Decl., Dkt. No. 15-17 at 117-118.)

“When asked if he was promised anything in exchange for writing the declaration he

stated, ‘No, I wish.’ ” (Id. at 118.) Greer said that he “came forward to write the statement

because he saw what happened and feels it is the right thing to do. He added that he saw a true

crime show once that was similar in that a person came forward after a man was convicted to tell

what they saw and helped the man overturn his conviction.” (Id.)

“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v.

United States, 523 U.S. 614, 623 (1998). “Actual innocence” is established when, in light of all

the evidence, “it is more likely than not that no reasonable juror would have convicted [the

petitioner],” id. (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)), or that “every juror

would have voted to acquit him,” Lee v. Lampert, 653 F.3d 929, 946 (9th Cir. 2011) (citing

Schlup, 513 U.S. at 327) (Kozinski, J. concurring). A petitioner can make a showing of “actual

innocence” by presenting the court with new evidence which raises a sufficient doubt as “to

undermine confidence in the result of the trial.” Schlup, 513 U.S. at 324. Schlup requires a

petitioner “to support his allegations of constitutional error with new reliable evidence—whether

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial.” Id. “Unexplained delay in presenting new evidence

bears on the determination whether the petitioner has made the requisite showing.” McQuiggen

v. Perkins, 569 U.S. 383, 399 (2013).

It is difficult to meet the Schlup standard. Affidavits from three witnesses indicating that

a person other than petitioner committed the murder were insufficient to meet the actual

innocence standard because such evidence had been available during the time of trial and was

“dubious.” McQuiggen, 569 U.S. at 389-390. Expert opinion evidence concerning the reliability

of some of the trial testimony, a police report about another man molesting the victim, and

evidence regarding two witnesses was insufficient to show that petitioner was innocent of the

crime of child molestation. Lee, 653 F.3d at 943-45. An accomplice’s recantations of his

statements to police that the petitioner killed the victim found insufficient to show “that every

reasonable juror would find it more likely than not that [accomplice] Edmonds, at long last, has

decided to tell the truth.” Smith v. Baldwin, 510 F.3d 1127, 1141-42 (9th Cir. 2007).

Also, freestanding claims of actual innocence are not cognizable on federal habeas

review. A federal habeas petitioner must tie his actual innocence claim to a constitutional error

in the underlying criminal proceedings. “Claims of actual innocence based on newly discovered

evidence have never been held to state a ground for federal habeas relief absent an independent

constitutional violation occurring in the underlying state criminal proceeding.” Herrera v.

Collins, 506 U.S. 390, 400 (1993). “[S]uch evidence must bear upon the constitutionality of the

applicant’s detention; the existence merely of newly discovered evidence relevant to the guilt of

a state prisoner is not a ground for relief on federal habeas corpus.” Townsend v. Sain, 372 U.S.

293, 317 (1963).

Allen raised his actual innocence claim to the state supreme court by way of a habeas

petition, which was summarily denied. (Pet., Dkt. No. 1-1 at 2; Dkt. No. 1-4 at 2.) When

presented with a state court decision that is unaccompanied by a rationale for its conclusions, a

federal court must conduct an independent review of the record to determine whether the state-

court decision is objectively unreasonable. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.

2000). This review is not de novo. “[W]here a state court’s decision is unaccompanied by an

explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable

basis for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011).

Habeas relief is not warranted here. As an initial matter, Allen’s actual innocence claim

is freestanding and therefore not cognizable on federal habeas review. He fails to tie his newly

discovered evidence to a constitutional violation occurring in the state criminal proceedings.

Herrera, 506 U.S. at 400.

Moreover, Greer’s declaration is not sufficiently reliable. It appeared quite late — three

years after the murder and two years after the trial. His explanation that he came forward with

this information because it was the right thing to do does not explain the years of delay.

Furthermore, when Whitney first questioned Greer, Greer “had difficulty recollecting the details

of its contents,” and he repeatedly declined to discuss the issue, possibly because of his drug

addiction. Though Greer later affirmed, when sober and clear-headed, the correctness of his

recollection, he still could not explain why the declaration, which he stated was written in 2022,

was dated with an October 2020 date. The declaration therefore does not qualify as “new

reliable evidence” such as a “trustworthy eyewitness account.” Schlup, 513 U.S. at 324.5

In addition, Greer’s declaration does not make it “more likely than not that no reasonable

juror would have convicted” Allen of first degree murder. Id. at 327-28. In closing argument,

the prosecution argued premeditation and deliberation based on the surveillance video and

Candace’s testimony, showing that Allen looked back and forth, asked for his jacket containing

the concealed gun, and then kept the gun concealed until the moment of the shooting. (Dkt. No.

15-9, at 17-18.) Greer’s declaration does not contradict that theory. Greer did not witness the

shooting. According to Greer, Allen took the gun from Johnson and put the weapon in his own

5 Allen’s request for an evidentiary hearing regarding his claim of actual innocence

is DENIED because he has not met Schlup’s requirement to present the court with

“new evidence which raises a sufficient doubt as to undermine confidence in the

result of the trial.” 513 U.S. at 324.

pants, at which point Greer walked away and did not see what happened next. Greer’s account is

therefore consistent with Allen moving the gun to his jacket prior to the shooting, keeping it

concealed, and shooting Johnson after he knew Johnson no longer posed a threat. Nor does

Greer’s account support imperfect self-defense or heat of passion, for the same reasons. In sum,

Allen has not met the burden required to show actual innocence. In its independent review, the

Court concludes that the state court’s denial of Allen’s claim was objectively reasonable and is

entitled to AEDPA deference. This claim is DENIED.

B. Ineffective Assistance of Counsel

Allen alleges that trial counsel rendered ineffective assistance by failing to (a) investigate

exculpatory witnesses; and (b) object to the prosecutor’s alleged misconduct during closing

argument. (Pet., Dkt. No. 1 at 7; Dkt. No. 1-1 at 30-34, 67-93.) Allen presented these claims on

collateral, not direct, review. Accordingly, the last reasoned decision is that of the state superior

court on his habeas petition.

To prevail on a claim of ineffectiveness of counsel, a petitioner must establish that (1)

counsel’s performance was deficient, i.e., that it fell below an “objective standard of

reasonableness” under prevailing professional norms, Strickland v. Washington, 466 U.S. 668,

687-688 (1984), and (2) he was prejudiced by counsel’s deficient performance, i.e., that “there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different,” id. at 694. When the defendant is challenging his conviction, the

appropriate question is “whether there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “The likelihood of a

different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86,

112 (citing Strickland, 466 U.S. at 693).

The standards of 28 U.S.C. § 2254(d) and Strickland are “highly deferential . . . and when

the two apply in tandem, review is doubly so.” Richter, 562 U.S. at 105 (quotation marks and

citations omitted). “The question [under § 2254(d) ] is not whether counsel’s actions were

reasonable. The question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id.

1. Investigation of Witnesses

According to trial counsel, “Allen was quite adamant that he was not present at the scene

of the shooting, and did not want me to pursue theories of voluntary manslaughter based on heat

of passion or imperfect self-defense.” (Pet., Bryden Declaration, Dkt. No. 1-2 at 4.) Despite

this, Allen alleges that trial counsel David Bryden should have investigated and obtained

statements from witnesses he contends would have provided evidence to support a self-defense

argument, or would have led the jury to believe he was guilty of voluntary manslaughter based

on a heat of passion or based on an imperfect self-defense theory. (Pet., Petition to the California

Supreme Court, Dkt. No. 1-1 at 30-33, 67-85.) Allen concedes his “insistence of pursuing a

defense that he was not present and did not commit the shooting,” but contends that nonetheless

“his counsel still had a duty to investigate these witnesses so that he could accurately and fully

counsel petitioner about his defense.” (Id. at 33.)

The witnesses Allen believes should have been interviewed were Kenneth Marbley,

Aiello Delane, and Christine Miller. Marbley, whose nickname is Seakou, had been interviewed

by policeman Sergeant Baker:

On January 12, 2018, Sergeant Baker recorded a telephone interview with

Kenneth Marbley, who was at the Qilombo on the night of the shooting. The

Qilombo is self-described as a ‘revolutionary social center’ and is located on

San Pablo Avenue across from where the shooting occurred. As Marbley was

leaving the Qilombo that evening, he observed his friend Johnson and another

man fighting in the street. As Marbley got closer, the larger man let Johnson up

and he heard Johnson say, ‘check my fade, check my fade again.’ The other

man said, ‘No leave me alone, leave me alone.’ Marbley’s friend also witnessed

the fight and its aftermath, and Marbley told Baker, ‘He heard [Johnson] say,

um, ‘catch my fade, catch my fade.’ And he heard dude say, ‘Back up or I’m

gonna pop you, back up or I’m gonna pop you.’ You know what I mean. That’s

when we heard the gun. I personally didn’t hear that.’

(Pet., Superior Court Order Denying Petition, Dkt. No. 1-3 at 147-148.) Marbley “was upset that

I had called him and asked how I found his phone number.” (Id., Oakland Police Department

Interview, Dkt. No. 1-2 at 39.) He stated he “hates the police, specifically the Oakland police.”

(Id.) “I asked Marbley if he would look at some photos to help identify the suspect. Marbley

refused, the interview was concluded.” (Id. at 40.)

Miller, who had had a child with Johnson, was also interviewed by Sergeant Baker:

Miller sent a text message to Baker which relayed a conversation with Aiello

Delane, who had been at the Qilombo the night of the shooting. The text stated

that while Delane was inside the club, ‘[Marbley] came in and told him [Johnson]

was outside fighting and they needed to break it up. That’s when they heard him

following the man saying ‘tryna catch my fade’ and the man responded ‘I’m

gonna shoot you’ and [Johnson] repeated it, and the man repeated his self again.

And then couple seconds after that he shot him.’

(Pet., Superior Court Order Denying Petition, Dkt. No. 1-3 at 148.) Miller said Marbley

(Seakou) had told her that he had seen Johnson fighting with Allen; that Johnson had followed

Allen and wanted to fight with him again; and that Allen turned around shot Johnson. (Ans.,

Dkt. No. 14-1 at 24.)

Bryden was appointed on March 20, 2018, to represent Allen. (Pet., Bryden Decl., Dkt.

No. 1-2 at 4.) On April 23, his request for funds to hire an investigator was approved, but on

May 25, Allen rescinded his time waiver, and on July 9, the jury trial commenced. (Id.) The

investigator Bryden had hired, Charlotte Webb, had been unable to find Candace or any other

potential witness. (Id.) Bryden did not ask Webb to contact Marbley, Miller or Delane. (Id.)

Though he does not remember why, he said he was focused on finding Candace. (Id.) He also

said that after Allen rescinded his time waiver, there was not much time to conduct an

investigation. (Id.)

The state superior court rejected Allen’s ineffective assistance claim. First, Allen had not

shown that “had Bryden conducted an investigation to Petitioner’s liking, he would have been

able to find these witnesses in the first place.” (Pet., Superior Court Order Denying Petition,

Dkt. No. 1-3 at 165.) An investigator’s declaration noted that “Delane no longer lived at his last

known address, and that Marbley relocated to the Stockton area and his last known phone

number went straight to a busy signal, suggesting it had been disconnected.” (Id.) Second, Allen

had not established that these witnesses, if they could have been found, “were willing and able to

testify had they been contacted by trial counsel,” much less that “they would have provided any

favorable information.” (Id.) “All anybody knows about what these witnesses said is relayed

through intermediaries, and are thus subject to distortion via the passage of time, memory, and

interpretation. Had these witnesses been contacted, there is a chance they might have denied

making the statements at all, or may have materially altered what was previously reported to

have been said.” (Id.) Third, even if the witnesses had been located and were willing to testify,

questions of credibility and the witnesses’ ability to perceive the events remain. (Id.) Fourth,

even if the court assumed that the “investigation would have uncovered evidence that Petitioner

warned Johnson that he was going to shoot him prior to shooting him, it is doubtful that evidence

would have countered the evidence of premeditation and deliberation”:

A person who warns someone that they are about to commit murder is not

somehow automatically absolved of premeditation and deliberation in the

commission thereof. It is unclear how this would have bolstered the scant

evidence, if any, that Petitioner acted in the heat of passion. Given all of the

evidence, it would also do little to support a claim of self-defense, imperfect or

otherwise. Again, there was not even a hint that Johnson was in possession of a

weapon throughout the encounter, including when Johnson approached Petitioner

again, when Petitioner pointed a gun at him, or when Petitioner then shot him in

the chest at close range. Considering this evidence, that Petitioner warned

Johnson before shooting him would do little to support a finding that he actually

feared that Johnson posed an imminent danger to life or great bodily injury that

must instantly be instantly dealt with. It would not dispense with the evidence of

planning activity and would not significantly alter the manner of killing.

(Id. at 166.)

Federal habeas relief is not warranted on this claim. Allen has not shown that Bryden’s

performance was deficient. Bryden’s investigation was reasonable in light of the information

about those witnesses and what they knew. He reviewed the police recordings of the witnesses,

and his investigator searched for but could not locate any potential witnesses. Also, to prevail on

an ineffective assistance claim based on a failure to investigate a witness, a petitioner must show

that the witness would have testified for the defense at trial. Allen v. Woodford, 395 F.3d 979,

1002 n.2 (9th Cir. 2005); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000). Allen has not met

his burden to make that showing. Also, Marbley said he did not want to be involved and that he

hated the police. Delane, who was the only person who heard Allen warn Johnson that he was

going to shoot him, could not be located and never gave a statement to police or investigators.

Furthermore, it would have been odd and damaging to introduce evidence of self-defense

in the face of Allen’s insistence on pursing a defense that he was not present and did not commit

the shooting. See Greenway v. Ryan, 856 F.3d 676, 682 (9th Cir. 2017) (presenting a mental

state “defense would have been counterproductive. Had counsel argued that Greenway acted

impulsively, counsel would have placed Greenway at the scene of the crimes and negated the

defense that he had not participated in the murders, a defense consistent with the physical

evidence.”) Also, the jury could have seen Allen’s warning Johnson that he would shoot him as

further evidence of premeditation and deliberation. “An attorney need not pursue an

investigation that would be fruitless, much less one that might be harmful to the defense.”

Richter, 562 U.S. at 108. In light of these concerns, Bryden’s decision not to pursue or present

such evidence was entirely reasonable.

Allen also has not shown prejudice. Marbley’s statements do not significantly change the

factual record. He did not hear Allen threaten to shoot Johnson, but rather repeated what his

friend allegedly heard. Also, it is doubtful that Allen’s proposed evidence would have countered

the evidence of premeditation and deliberation or established a credible self-defense argument.

There is no evidence that Johnson posed a threat to Allen. He was not armed, and Allen had

bested him in a physical fight. The jury saw recordings of Allen shooting Johnson, and of the

time before and after the shooting, and also heard the testimony of Candace and Andre. Also,

again, evidence of self-defense would place Allen at the scene and responsible for the shooting

and therefore would have contradicted his insistence that he was not at the scene and did not

shoot Johnson. On such a record, the state court’s rejection of Allen’s claim of ineffective

assistance for failing to investigate was reasonable, and is entitled to AEDPA deference. This

claim is DENIED.

2. Failure to Object to Closing Argument

Allen claims that trial counsel rendered ineffective assistance by failing to object to the

prosecutor’s alleged misconduct during closing argument. (Pet., Dkt. No. 1 ay 7.) As explained

below, the prosecutor did not commit misconduct. Because there was no misconduct, it would

have been pointless to offer an objection. It is both reasonable and not prejudicial for defense

counsel to forgo a meritless objection. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir.

2005). The state court’s rejection of Allen’s claim of ineffective assistance for failing to object

was reasonable, and is entitled to AEDPA deference. This claim is DENIED.

C. Prosecutorial Misconduct

Allen claims the prosecutor committed misconduct in his closing argument. (Pet., Dkt.

No. 1 at 7; Dkt. No. 1-1 at 34-37; 94-104.) According to Allen, the prosecutor contended that

Allen failed to warn Johnson and that he had concealed the gun, though the prosecutor knew or

had reason to know this was false because of the information provided by Candace, Miller, and

Marbley. (Id., Dkt. No. 1-1 at 34-36.) The state superior court summarized the facts as follows:

Here, Petitioner argues that the prosecutor’s theory of intent to kill and

premeditation and deliberation was based on Candace’s recorded pretrial

statement played for the jury that Petitioner ‘kept the gun concealed’ and that

Petitioner failed to warn Johnson before shooting him. By arguing that Petitioner

was silent before the shooting and intentionally concealed the gun, Petitioner

claims, the prosecutor misrepresented the evidence by failing to reference

Candace’s statements during that same interview that there was “yellin’ ” just

before the shooting. [¶] Petitioner further asserts that the prosecutor was also

aware of other witnesses who heard Petitioner, prior to shooting Johnson, warn

Johnson that he was armed and would shoot if Johnson did not back off.

. . . .

At trial, Candace testified that . . . she was twice asked whether Petitioner said

anything before shooting Johnson, and that both times she said that Petitioner did

not say anything. As Respondent persuasively argues in the informal response, a

further examination of this transcript indicates that Candace’s statement that there

was “yellin’ ” prior to the gunshot appears to refer to yelling that occurred after

the fight between Petitioner and Johnson, rather than yelling that occurred just

prior to the shooting.

(Pet., Dkt. No. 1-3 at 147, 151.)

Allen’s claim of prosecutorial misconduct was rejected by the state courts. The superior

court concluded that “Candace’s statement remains the most reliable evidence,” while the

information provided by Miller and Marbley was lacking and unreliable:

Nor can it be held that the evidence concerning Marbley and Miller at least gave

the prosecutor a very strong reason to doubt Candace’s statement. Aside from

Petitioner and Johnson, Candace was the closest witness to the murder. She

observed the entirety of the event, and her account was largely corroborated by

surveillance video. When the prosecutor asked how she had ‘describe[d]

everything that was eventually shown in that video to happen before seeing the

video,’ Candace responded, ‘Because that’s what transpired.’ It cannot be held

that a prosecutor must be restrained from arguing a fact from Candace’s statement

because there are a couple of vague multiple-hearsay statements from other

uninvestigated purported witnesses that were disclosed to the defense and not

introduced at trial.

(Id. at 155, 156.) Furthermore, there was no prejudice. Candace’s statements were corroborated

by other evidence and the superior court found it “difficult to imagine a different result should

the jury, evidentiary issues aside, were to somehow hear that someone told Marbley that he heard

Petitioner warn Johnson before shooting him, though Marbley did not hear that himself, or that

Delane spoke to Miller who then texted Baker that Delane heard Petitioner say, ‘I’m gonna shoot

you,’ prior to shooting.” (Id. at 156-157.)

A defendant’s due process rights are violated when a prosecutor’s comments during

closing argument “so infected the trial with unfairness as to make the resulting conviction a

denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation and internal

quotation omitted). Under Darden, the first issue is whether the prosecutor’s remarks were

improper; if so, the next question is whether such conduct infected the trial with unfairness. Tan

v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005).

Habeas relief is not warranted here because the state courts reasonably determined that

the prosecutor did not make any improper or intentionally false comments. The prosecutor’s

comments were based on the statements and testimony of the best surviving witness to the

events, Candace, who stated that Allen did not say anything to Johnson before shooting him.

The statements from the other witnesses were far too unreliable to plausibly contend that the

prosecutor knew or had reason to know that his arguments were false. Furthermore, there was no

prejudice. That Allen may have told Johnson that he would shoot him does not negate a finding

of premeditation or deliberation. It could in fact show premeditation and deliberation. The state

court’s rejection of Allen’s claim of prosecutorial misconduct was reasonable, and is entitled to

AEDPA deference. This claim is DENIED.

D. Spectator Misconduct

Allen claims that the trial court’s failure to admonish the jury about pervasive spectator

misconduct deprived him of his due process rights to a fair trial. (Pet., Dkt. No. 1 at 8; Dkt. No.

1-4 at 15-16, 41-45.) Allen claims that “[d]uring key testimony, numerous audience members

used threatening facial expressions and gestures to intimidate witnesses and jurors, prompting

the court to suspend proceedings three times.” (Id., Dkt. 1-4 at 41.) He notes that one juror

(Juror No. 35) was excused because she feared for her safety after recognizing two spectators she

thought were looking at her. (Id.) Allen also asserts that “[t]wo other jurors reported they were

inclined to believe [Candace’s] incriminatory out-of-court statements in lieu of her testimony

because she had been influenced by the spectator threats.” (Id.) As explained below, this claim

is both (1) procedurally defaulted, and (2) without merit.

The state appellate court, on direct review, summarized the facts:

At trial, Candace’s testimony differed in some ways from her statements during

her police interview with Baker. She claimed at trial that she did not remember

the details of the interview because she was under the influence of heroin at the

time and that, where she comes from, it is frowned upon to talk to the police or

testify in court and that people who do so can be called a snitch. She further

testified that she recognized some of the people in the courtroom as being from

the neighborhood and that she knew the majority of the people in the audience, a

few of whom were associates of appellant.

Over the course of the trial, the court responded to three instances of spectator

misconduct. During each episode, the court spoke to the audience in the

courtroom outside the presence of the jury.

First, just after Officer Breznick finished testifying, the court excused the jurors

for their morning recess. The court then asked counsel to stay in the courtroom

while it addressed the people in the audience. The court proceeded to tell

appellant’s sister what it said had already been pointed out to “everyone else, that

you can’t have any kind of communication whatsoever during court with the

defendant. Not suggesting that you did; I’m just giving you the rules of the court.

The law doesn’t allow anyone to communicate with anybody in custody, that

means no waving, no verbal or nonverbal communication.” The court then

addressed the relatives of the victim who were in the courtroom, expressing

condolences, but also stating that “this is [the] time and place to allow the criminal

justice system to do what it does. And so, just need cool heads, you know, and

can’t have any kind of outburst in the courtroom . . . I can’t allow that.”

Second, during the direct examination of Andre, the court asked the jury and

Andre to leave the courtroom and again addressed the audience. The court stated:

“You cannot continue [to] walk in and out, sit down willy-nilly. It’s distracting to

the court. And if it’s distracting to me, it could be distracting to this witness,

because I don’t know what your relationships are with one another, but I do know

that this man is going to testify with the ability of this jury to listen objectively to

what he has to say. And if you are distracting from the proceedings on this side

of the bench, then you are going to leave . . . I don’t want to see you

communicating with each other. I don’t want to see you talking to one another.

This is not musical chairs in this courtroom. And if you cannot do that, get out.”

Third, just after the start of the direct examination of Candace, the court directed

Candace and the jury to briefly leave the courtroom. It then asked a member of

the audience who she was and the audience member said she was Candace’s sister.

The court asked whether something was said to her while Candace was testifying,

and she responded that appellant’s sister had looked at her and she looked back at

appellant’s sister, who then asked “who I was looking at.” The court ordered

appellant’s sister out of the courtroom. The court again admonished the rest of the

audience that if anyone could not conduct themselves in an orderly manner, they

would be told to leave. It also stated: “It’s important for the fairness of this

process that this jury not see or hear anything that anyone may personally think

or believe about the proceedings.”

The prosecutor then made the request that, “besides the people here associated

with the victim or in support of [Candace], I would ask that everyone else be

moved to the defendant’s side of the audience” because “there’s a direct line of

sight to the witness stand from this side of the courtroom. I believe there’s been

a lot of misconduct that the court has already commented on going on directly in

her line of sight.” The court followed the prosecutor’s suggestion and told people

associated with the victim or Candace to sit on one side of the courtroom and

people associated with appellant to sit on the other side.

(Ans., State Appellate Opinion, Dkt. No. 15-13 at 32-34.)

Juror No. 35 told the court during a telephone call that she was concerned for her and

her mother’s safety. (Id. at 34.) She had recognized in the courtroom two men, both associated

with Allen. (Id.) The men lived near the area of the killing, which was near her mother’s

residence and near Juror No. 35’s hairdresser. (Id.) She feared “repercussions.” (Id.) The court

excused Juror No. 35 for good cause and replaced her with an alternate juror. (Id. at 35.)

1. Procedural Default

Respondent contends that Allen’s claim is procedurally defaulted. On direct appeal, the

state appellate court, citing People v. Hill, 3 Cal. 4th 959, 1000 (Cal. 1992), determined that

Allen had forfeited his claim that the trial court failed to admonish the jury because his attorney

had not made a contemporaneous objection and then asked for a curative instruction. (Ans.,

State Appellate Opinion, Dkt. No. 15-13 at 39.) Because the state supreme court summarily

denied review, it is presumed that it also imposed the same procedural bar. Ylst v. Nunnemaker,

501 U.S. 797, 803 (1991) (“[W]here, as here, the last reasoned opinion on the claim explicitly

imposes a procedural default, we will presume that a later decision rejecting the claim did not

silently disregard that bar and consider the merits.”)

Federal courts “will not review a question of federal law decided by a state court if the

decision of that court rests on a state law ground that is independent of the federal question and

adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). The state

carries the initial burden of adequately pleading “the existence of an independent and adequate

state procedural ground as an affirmative defense.” Bennett v. Mueller, 322 F.3d 573, 586 (9th

Cir. 2003). If the state meets this requirement, the burden then shifts to the petitioner “to place

that defense in issue,” which the petitioner may do “by asserting specific factual allegations that

demonstrate the inadequacy of the state procedure, including citation to authority demonstrating

inconsistent application of the rule.” Id.

As respondent points out, Allen’s claim is procedurally defaulted because he did not raise

a contemporaneous objection. Federal courts have recognized that California’s

contemporaneous objection rule constitutes a valid basis for procedural default. See Fairbank v.

Ayers, 650 F.3d 1243, 1256-57 (9th Cir. 2011). Respondent having met its burden, it is now

Allen’s burden to place the defense in issue by demonstrating the inadequacy of the state

procedure. The only discussion of procedural default appears in his Traverse:

Respondent argues, without citation to authority, that petitioner’s spectator

misconduct claim is procedurally defaulted because the state court determined

that the failure to object and request an admonishment in the trial court barred him

from raising the issue on appeal. Answer at p. 34. This is incorrect, as the state

Court of Appeal considered the issue on the merits on grounds that counsel

rendered ineffective assistance of counsel under the Sixth Amendment for failing

to object or request an admonishment.

(Traverse, Dkt. No. 21 at 20-21.) None of this suffices to place the defense at issue. The state

appellate court did declare that Allen had forfeited his spectator misconduct claim. That it ruled

on the merits of another claim is irrelevant to showing the inadequacy of the state rule.

Respondent therefore has shown that the claim is procedurally defaulted.

To overcome a claim of procedural default, a petitioner must establish either (1) cause

for the default, and prejudice, or (2) that failure to consider the defaulted claims will result in a

“fundamental miscarriage of justice.” Harris v. Reed, 489 U.S. 255, 262 (1989). To show cause

for a procedural default, the petitioner must “show that some objective factor external to the

defense impeded” his efforts to comply with the state procedural rule. Murray v. Carrier, 477

U.S. 478, 488 (1986). For cause to exist, the external impediment must have prevented the

petitioner from raising the claim. See McClesky v. Zant, 499 U.S. 467, 497 (1991). To show

prejudice, a petitioner bears “the burden of showing not merely that the errors at his trial

constituted a possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with errors of constitutional dimension.” White v. Lewis,

874 F.2d 599, 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)). If

the petitioner fails to show cause, the Court need not consider whether the petitioner suffered

actual prejudice. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982). To show a “fundamental

miscarriage of justice,” a petitioner must show that the constitutional error of which he

complains “has probably resulted in the conviction of one who is actually innocent.” Bousley v.

United States, 523 U.S. 614, 623 (1998) (citing Murray, 477 U.S. at 496).

The above passage from the Traverse, which is Allen’s only substantive discussion of

procedural default, does not show cause for the default or prejudice. Nor has Allen shown that a

failure to consider the claim will result in a fundamental miscarriage of justice. Furthermore, the

Court has already determined that he has not made a showing of actual innocence. This claim is

DENIED as procedurally defaulted.

2. Merits

Even if the claim were not procedurally defaulted, it would fail on the merits. A state

trial court’s refusal to give an instruction does not alone raise a ground cognizable in a federal

habeas corpus proceedings. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The

error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the

Fourteenth Amendment. See id. Furthermore, the omission of an instruction is less likely to be

prejudicial than a misstatement of the law. Walker v. Endell, 850 F.2d 470, 475 (9th Cir. 1987)

(citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). Thus, a petitioner whose claim involves

a failure to give a particular instruction, as opposed to an instruction that misstated the law, bears

an “especially heavy burden.” Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting

Henderson, 431 U.S. at 155).

Habeas relief is not warranted here. The trial court instructed the jury that it could base

its verdict only on the evidence presented at trial. A jury is presumed to follow its instructions.

Weeks v. Angelone, 528 U.S. 225, 234 (2000). Allen’s declaration regarding the jurors’ thought

processes is not admissible. Federal Rule of Evidence 606(b) prohibits the use of juror testimony

to impeach a verdict when that testimony relates to intrinsic matters, i.e., the internal, mental

processes by which the verdict was rendered. Tanner v. United States, 483 U.S. 107, 116-127

(1987). This leaves the evidence of glares and gestures. The glares and gestures were

insufficient to show that Allen was deprived of a fair trial, especially in light of Candace’s

original statements to the police (which were closer in time to the incident) and the extent to

which those statements matched the surveillance footage that she had not yet seen. This claim is

DENIED on the additional ground that it lacks merit.

E. Cumulative Error

Allen claims that the cumulation of the prosecutor’s and trial counsel’s errors so infected

the trial that he was denied his due process right to a fair trial. (Pet., Dkt. No. 1 at 7-8; Dkt. No.

1-1 at 37-39; 104-106.) This claim was rejected by the state appellate court: “Considering our

resolution of the issues raised on appeal, we find that none of the alleged errors, whether alone or

in combination, prejudiced him. Accordingly, there is no ground for reversal based on

cumulative error.” (Ans., State Appellate Opinion, Dkt. No. 15-13 at 45.) Allen also raised a

cumulative error claim in habeas petitions to the state appellate and supreme courts, which

summarily denied review. (Ans., Dkt. No. 13; Dkt. 1-4 at 2.)

In some cases, although no single trial error is sufficiently prejudicial to warrant reversal,

the cumulative effect of several errors may still prejudice a defendant so much that his

conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003).

Where there is no single constitutional error existing, nothing can accumulate to the level of a

constitutional violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (overruled

on other grounds).

Habeas relief is not warranted here. There has been no showing that the combined effect

of alleged errors “so infected the trial with unfairness as to make the resulting conviction a denial

of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). As discussed above,

Allen’s claims of prosecutorial misconduct, ineffective assistance, and the trial court’s failing to

issue an instruction lacked merit. Because there were no errors, there were no errors to

accumulate to infect the trial with unfairness. The state court’s rejection of this claim was

reasonable and is therefore entitled to AEDPA deference. This claim is DENIED.

CONCLUSION

The state court’s adjudication of Allen’s claims did not result in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal law, nor did it

result in a decision that were based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. Accordingly, the petition is DENIED.

A certificate of appealability will not issue. Reasonable jurists would not “find the

district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). Allen may seek a certificate of appealability from the Ninth Circuit

Court of Appeals.

The Clerk shall enter judgment in favor of Respondent, and close the file.

IT IS SO ORDERED.

Dated: October 2, 2025 Z z= =

RITA F. LIN

United States District Judge