# Allen v. Schuyler

> District Court, N.D. California · October 2, 2025

URL: https://www.frixlaw.com/law-library/cases/11166680

## Case

- **Full name:** Melvin Allen v. Charles Schuyler
- **Court:** District Court, N.D. California
- **Decided:** October 2, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11166680. Public record. Not legal advice.