Opinion

1 O

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10

11 DAVID PAUL GUERRERO, ) ) Case No. 2:21-cv-00591-CAS-DFM

)

12 Plaintiff, ) ORDER ACCEPTING FINDINGS

)

13 ) AND RECOMMENDATIONS OF

v. ) UNITED STATES MAGISTRATE

14 ) JUDGE

)

15 THERESA CISNEROS, Acting Warden )

of California Substance Abuse )

16 Treatment Facility ) )

17 )

)

Defendant.

)

18

19

I. INTRODUCTION

20

On November 17, 2023, United States Magistrate Judge Maria A. Audero1

21

(the “Magistrate Judge”) issued a Report and Recommendation denying petitioner

22

David Paul Guerrero’s (“Petitioner”) petition for a writ of habeas corpus

23

(“Petition”). Dkt. 55 (“R&R”). On December 11, 2023, Petitioner, who is

24

25 1 On June 3, 2026, pursuant to the recommended procedure adopted by the Court

for the retirement of the Magistrate Judge, this case was transferred to the calendar

26

of Magistrate Judge Douglas F. McCormick for all further proceedings authorized

27 by statute, local rules, and general orders. Dkt. 60.

1 represented by counsel, filed his objections to the R&R. Dkt. 56 (“Objection” or

2 “Obj.”).

3 Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court

4 has reviewed the records and files herein, the R&R of the Magistrate Judge, and

5 Petitioner’s objections thereto. After having made a de novo determination of the

6 portions of the R&R to which Petitioner’s objections were directed, the Court

7 accepts the report, findings, and recommendations of the Magistrate Judge.

8 II. BACKGROUND

9 On April 14, 2017, Petitioner was convicted in state court on two counts of

10 first-degree murder. R&R at 2.

11 On July 18, 2017, after denying Petitioner’s motion for a new trial and

12 motion to strike the multiple murder special circumstance allegation, the trial court

13 sentenced Petitioner to state prison for two terms of life without the possibility of

14 parole, plus 50 years to life. Id. at 3.

15 Petitioner appealed his judgment of conviction. Id. In an unpublished

16 decision filed on July 23, 2019, the California Court of Appeal remanded for

17 resentencing to allow the trial court to exercise its discretion whether to strike the

18 personal and intentional discharge of a firearm enhancement, but otherwise

19 affirmed the judgments of conviction as to Petitioner and his codefendant Veyna.

20 Id. On October 30, 2019, the California Supreme Court summarily denied

21 Petitioner’s Petition for Review. Id. at 3-4.

22 On January 25, 2021, Petitioner filed a habeas petition in Los Angeles

23 County Superior Court. Id. at 4. On February 26, 2021, the Superior Court denied

24 that habeas petition. Id. On May 21, 2021, Petitioner filed a habeas petition in the

25 California Court of Appeal, which was denied on July 7, 2021. Id. On September

26 10, 2021, Petitioner filed a habeas petition in the California Supreme Court, which

27 was denied on November 23, 2021. Id.

1 On January 22, 2021, Petitioner filed a 28 U.S.C. § 2254 petition for writ of

2 habeas corpus, asserting thirteen claims for relief. Dkt. 1. Petitioner argues that

3 his constitutional rights were violated when (1) his trial counsel was ineffective for

4 failing to investigate Jose Ochoa’s guilt with respect to the Irving murder; (2) he

5 was not determined to be actually innocent of the crimes of which he was

6 convicted; (3) the trial court prejudicially erred in denying the Petitioner’s request

7 to dismiss or sever the Irving murder charge from the Ferguson murder charge; (4)

8 the trial court prejudicially erred in ordering Petitioner, in contravention of P.C.

9 § 1054.3, to provide the prosecution with his investigator’s name and report which

10 allowed the prosecution to call Petitioner’s investigator as a witness based on the

11 information obtained in the report; (5) the trial court prejudicially erred in

12 overruling Petitioner’s request to exclude evidence of additional murders

13 implicating Petitioner; (6) the trial court prejudicially erred in overruling

14 Petitioner’s request to strike Phyllis Hayes’ testimony that, based on the police

15 report, she saw a dark colored car; (7) the trial court prejudicially erred in

16 overruling Petitioner’s motion for a mistrial after the prosecution, in its opening

17 statement, told the jury that Dewan Ferguson saw Petitioner shoot Irving but did

18 not call Dewan as a witness after Petitioner, relying on the prosecution’s statement,

19 disclosed the prior murders Petitioner was accused of committing for which Dewan

20 gave untruthful statements to show that Dewan was not credible; (8) the trial court

21 prejudicially erred in overruling Petitioner’s objections to joinder, denying his

22 request for separate juries, and allowing into evidence against Petitioner Antonio

23 Jiminez’s testimony relating to Ricardo Veyna’s statements about the list: that it

24 was from Petitioner and was a hit list, and the gun purchase transaction; (9) the

25 trial court prejudicially erred in precluding Petitioner from presenting evidence of

26 another male driving a dark Lexus after the Irving shooting that supported

27 Petitioner’s defense; (10) the trial court prejudicially erred in its response to the

1 jury’s question and instruction on transferred intent; (11) the prosecutor engaged in

2 misconduct that led to the denial of Petitioner’s constitutional right to due process;

3 (12) the People failed to present sufficient evidence to support his conviction for

4 Irving’s murder; and (13) prejudicial effect of all above errors became cumulative.

5 Petition at 4-6.

6 On January 25, 2021, Petitioner filed a Motion for a Stay and Abeyance

7 pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Dkt. 5. On February 17, 2021,

8 respondent filed an opposition. Dkt. 9. On March 30, 2021, the Court granted the

9 Motion for a Stay and Abeyance, allowing Petitioner to return to state court to

10 exhaust claims. Dkt. 12. On December 3, 2021 (following the California Supreme

11 Court’s denial of Petitioner’s habeas petition, 12/22/21 Lodg. No. 13), Petitioner

12 moved to lift the stay. Dkt. 23. On December 8, 2021, the Court lifted the stay

13 and ordered Respondent to file a response to the petition. Dkt. 24.

14 On December 22, 2021, Respondent filed a Motion to Dismiss the Petition

15 on the grounds that Petitioner had failed to exhaust Ground One of the petition.

16 Dkt. 25. On January 28, 2022, Petitioner filed an Opposition to the Motion to

17 Dismiss. Dkt. 29. On March 7, 2022, the Court issued a Report and

18 Recommendation, recommending that the Motion to Dismiss be granted based on

19 Petitioner’s failure to exhaust Ground One and that the Petition be dismissed

20 without prejudice, unless Petitioner withdrew Ground One, or, in the alternative,

21 requested a stay in order to exhaust Ground One. Dkt. 31. On March 25, 2022,

22 Petitioner filed objections to the Report and Recommendation. Dkt. 32. On May

23 2, 2022 (following the Court’s overruling of the objections, dkt. 33), Petitioner

24 notified the Court of his decision to withdraw Ground One and to proceed with

25 Grounds Two through Thirteen. Dkt. 34. On May 10, 2022, the district court

26 accepted the Report and Recommendation and returned the case for further

27 proceedings as to Grounds Two through Thirteen. Dkt. 35.

1 On September 14, 2022 (pursuant to the Court’s May 19, 2022 Order

2 Requiring Response to Petition, dkt. 36), Respondent filed the Answer. Dkt. 47.

3 On October 20, 2022, Petitioner filed the Reply. Dkt. 51.

4 On November 3, 2023, Magistrate Judge Maria A. Audero issued the instant

5 R&R. Dkt. 53. Magistrate Judge Audero recommends that the Court deny the

6 petition and that this action be dismissed with prejudice. R&R at 2. On December

7 11, 2023, Petitioner filed his Objection. Dkt. 56. Because the facts at issue

8 regarding Petitioner’s claims are comprehensively set forth in the R&R, the Court

9 does not repeat them unless relevant to the Court’s decision. R&R at 6-21.

10 III. LEGAL STANDARD

11 “A judge of the court may accept, reject, or modify, in whole or in part, the

12 findings or recommendations made by the magistrate judge.” 28 U.S.C. §

13 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (stating “[t]he district judge must

14 determine de novo any part of the magistrate judge’s disposition that has been

15 properly objected to,” and “[t]he district judge may accept, reject, or modify the

16 recommended disposition; receive further evidence; or return the matter to the

17 magistrate judge with instructions”). Proper objections require “specific written

18 objections to the proposed findings and recommendations” of the magistrate judge.

19 Fed. R. Civ. P. 72(b)(2). “A judge of the court shall make a de novo determination

20 of those portions of the report or specified proposed findings or recommendations

21 to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also United States v.

22 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“The statute makes it clear that

23 the district judge must review the magistrate judge’s findings and

24 recommendations de novo if objection is made, but not otherwise.”). Where no

25 objection has been made, arguments challenging a finding are deemed waived.

26 See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with a

27 copy, any party may serve and file written objections to such proposed findings

1 and recommendations as provided by rules of court.”). Moreover, “[o]bjections to

2 a R&R are not a vehicle to relitigate the same arguments carefully considered and

3 rejected by the Magistrate Judge.” Chith v. Haynes, No. C18-5342 BHS, 2021 WL

4 4744596, at *1 (W.D. Wash. Oct. 12, 2021).

5 Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective

6 Death Penalty Act of 1996 (“AEDPA”), a state prisoner whose claim has been

7 “adjudicated on the merits” cannot obtain federal habeas relief unless that

8 adjudication: (1) resulted in a decision that was contrary to, or involved an

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

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

11 an unreasonable determination of the facts in light of the evidence presented in the

12 State court proceeding.

13 IV. DISCUSSION

14 In his Objection, Petitioner maintains that he is entitled to habeas relief as to

15 all twelve of his claims. See generally Obj.

16 The Court will address each claim in the order that Petitioner objected to

17 each of the Magistrate Judge’s findings. However, as an initial matter, the Court

18 notes that many of Petitioner’s arguments are addressed by the Magistrate Judge in

19 the R&R. The Court notes that “[o]bjections to a R&R are not a vehicle to

20 relitigate the same arguments carefully considered and rejected by the Magistrate

21 Judge.” Chith, 2021 WL 4744596, at *1.

22 A. Ground Two (Actual Innocence Claim)

23 In his second claim, Petitioner argues that he is actually innocent of the

24 crimes of which he was convicted. Petition at 58. In his Objection, Petitioner

25 contends that habeas relief is appropriate for his claim of actual innocence despite

26 the Magistrate Judge stating otherwise. R&R at 26; Obj. at 3. Petitioner argues

27 that United States Supreme Court precedent permits this challenge. Obj. at 3

1 (citing cases). Further, Petitioner argues that he has sufficiently established the

2 merits of this claim. Id.

3 The Court is not persuaded by this objection. First, the United States

4 Supreme Court has held that recognizing a sole actual innocence claim remains an

5 “open question.” Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557

6 U.S. 52, 71 (2009) (“Whether such a federal right exists is an open question.”). If

7 Supreme Court cases “give no clear answer to the question presented, . . . it cannot

8 be said that the state court unreasonably applied clearly established Federal law.”

9 Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam) (cleaned up).

10 In addition, the Ninth Circuit “ha[s] not resolved whether a freestanding

11 actual innocence claim is cognizable in a federal habeas corpus proceeding in the

12 non-capital context, although [it has] assumed that such a claim is viable.” Jones

13 v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014); see also Taylor v. Beard, 811 F.3d

14 326, 334 (9th Cir. 2016) (“It is still an open question as to whether a petitioner

15 ‘may be entitled to habeas relief based on a freestanding claim of actual

16 innocence.’”) (quoting McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)).

17 Assuming arguendo that a sole actual innocence claim is cognizable in a

18 federal habeas corpus proceeding, Petitioner’s claim fails to meet the evidentiary

19 standard to proceed. R&R at 30; See Schlup v. Delo, 513 U.S. 298, 324 (1995)

20 (“To be credible, [a claim of actual innocence] requires petitioner to support his

21 allegations of constitutional error with new reliable evidence—whether it be

22 exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

23 physical evidence—that was not presented at trial.”). The petitioner must go

24 beyond demonstrating doubt about his guilt and must affirmatively prove that he is

25 probably innocent. Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014).

26 Petitioner’s claim fails to meet the standard to proceed because the

27 speculation he provides about Jose Ochoa’s involvement is not “new reliable”

1 evidence that was not available during the trial. See Petition at 60; Schlup, 513

2 U.S. at 324. Therefore, Petitioner has not satisfied the requirement of showing

3 affirmatively that he was actually innocent of the Ferguson and Irving murders.

4 See Jones, 763 F.3d at 1251 (“Evidence that merely undercuts trial testimony or

5 casts doubt on the petitioner’s guilt, but does not affirmatively prove innocence, is

6 insufficient to merit relief on a freestanding claim of actual innocence.”) (citing

7 House v. Bell, 547 U.S. 518, 555 (2006)); Gimenez v. Ochoa, 821 F.3d 1136, 1146

8 (9th Cir. 2016) (finding that the petitioner’s “evidence falls far short of a

9 persuasive alibi, exculpatory physical evidence or a credible confession from

10 another suspect—all of which are types of new evidence that [the Ninth Circuit

11 has] suggested could meet th[e] demanding [actual innocence] standard.”); see also

12 Schlup, 513 U.S. at 324 (“[E]xperience has taught us that a substantial claim that

13 constitutional error has caused the conviction of an innocent person is extremely

14 rare.”).

15 Additionally, Petitioner has failed to show that “it is more likely than not

16 that no reasonable juror would have convicted him in light of the new evidence.”

17 Schlup, 513 U.S. at 327. Therefore, the California Supreme Court’s decision to

18 deny Petitioner’s actual innocence claim and habeas relief was not unreasonable.

19 B. Ground Twelve (Sufficiency of the Evidence Claim)

20 In his twelfth claim, Petitioner argues that the prosecution failed to present

21 sufficient evidence to support his conviction for Irving’s murder. Petition at 93.

22 Petitioner argues that the Magistrate Judge’s finding of evidence of motive in the

23 R&R falls well short of establishing guilt beyond a reasonable doubt. Obj. at 5-6.

24 Petitioner also argues that the witness testimony relied on by the Magistrate Judge

25 was wholly devoid of evidentiary weight. Id. at 6.

26 The Court is not persuaded by this objection. The Supreme Court set the

27 standard for reviewing sufficiency of evidence claims in Jackson v. Virginia, 443

1 U.S. 307, 319 (1979). Jackson states that when a habeas petitioner challenges the

2 sufficiency of the evidence supporting a jury’s verdict, “the relevant question is

3 whether, after viewing the evidence in the light most favorable to the prosecution,

4 any rational trier of fact could have found the essential elements of the crime

5 beyond a reasonable doubt.” Jackson, 443 U.S. at 319. Even when the record

6 supports conflicting inferences, the Court must presume that the jury resolved any

7 such conflicts in favor of the prosecution, and the Court must defer to that

8 resolution. Jackson, 443 U.S. at 326; see also McDaniel v. Brown, 558 U.S. 120,

9 133 (2010) (per curiam); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995)

10 (citation omitted) (the federal court “must respect the province of the jury to

11 determine the credibility of witnesses, resolve evidentiary conflicts, and draw

12 reasonable inferences from proven facts by assuming that the jury resolved all

13 conflicts in a manner that supports the verdict”). On federal habeas review, “we

14 ask only whether the state court’s decision was contrary to or reflected an

15 unreasonable application of Jackson to the facts of a particular case.” Emery v.

16 Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011) (per curiam) (citing Juan H. v.

17 Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005)).

18 The Court agrees with the Magistrate Judge that the Jackson standard was

19 satisfied. R&R at 37. Because the prosecution’s evidence in its case was

20 sufficient to allow any rational trier of fact to find the essential elements of the

21 crime beyond a reasonable doubt, Petitioner’s conviction as to the Irving murder is

22 supported and the Jackson standard was satisfied. Thus, habeas relief for this

23 claim is unwarranted.

24 C. Ground Three (Prejudicial Delay and Misjoinder Claims)

25 In his third claim, Petitioner argues that the denial of his request to dismiss

26 or sever the Irving murder charge from the Ferguson murder charge violated his

27 federal constitutional right to due process. Petition at 61. In response to the

1 Magistrate Judge’s finding that habeas relief is not warranted for his misjoinder

2 claim, R&R at 37, Petitioner argues that he was prejudiced by the delay in

3 prosecution and the joinder of the two murder charges, and that he successfully

4 pled his claims to warrant an evidentiary hearing. See Obj. at 7-9.

5 The Court is not persuaded by this objection. The Court agrees with the

6 Magistrate Judge that Petitioner has not shown the presence of actual prejudice due

7 to the pre-accusation delay. See United States v. Barken, 412 F.3d 1131, 1134 (9th

8 Cir. 2005) (a claim that a charging delay denied a defendant due process requires

9 proof of “actual, nonspeculative prejudice from the delay, meaning proof that

10 demonstrates exactly how the loss of evidence or witnesses was prejudicial.”)

11 (internal quotation marks and citation omitted); see also United States v. Ross, 123

12 F.3d 1181, 1185 (9th Cir. 1997) (“A defendant claiming preindictment delay

13 carries a ‘heavy burden’ of showing actual prejudice that is ‘definite and not

14 speculative.’”) (citations omitted).

15 The Court also agrees with the Magistrate Judge that the misjoinder claim is

16 not cognizable on federal habeas review. R&R at 47; See Estelle v. McGuire, 502

17 U.S. 62, 67-68, 71-72 (1991) (stating that “it is not the province of a federal habeas

18 court to reexamine state-court determinations on state-law questions”); Park v.

19 California, 202 F.3d 1146, 1149 (9th Cir. 2000) (finding that petitioner’s argument

20 that “under California law, the crimes should not have been consolidated because

21 evidence relevant to one set of counts would not have been admissible at a separate

22 trial on the other set of counts” was not a cognizable federal habeas claim); Stoot

23 v. Gipson, No. EDCV 11–1688–GHK (DTB), 2014 WL 1364903, at *8 (C.D. Cal.

24 Jan. 23, 2014) (“To the extent that petitioner is contending that the trial court

25 should not have joined the charges as a matter of state law, his claim is not

26 cognizable on federal habeas review.”), accepted, 2014 WL 1364908 (C.D. Cal.

27 Apr. 4, 2014).

1 The Supreme Court stated in a footnote that “misjoinder would rise to the

2 level of a constitutional violation only if it results in prejudice so great as to deny a

3 defendant his Fifth Amendment right to a fair trial[,]” United States v. Lane, 474

4 U.S. 438, 446 n.8 (1986), and the Ninth Circuit has held there is no clearly

5 established authority advanced by the Supreme Court that addresses a state court’s

6 failure to provide separate trials on distinct charges. Collins v. Runnels, 603 F.3d

7 1127, 1132 (9th Cir. 2010).

8 Finally, even if Petitioner’s misjoinder claim was cognizable, the Court finds

9 that the joinder of the two murder charges did not result in an unfair trial. R&R at

10 48. Petitioner has not shown that the joinder of the two murders “had a substantial

11 and injurious effect or influence in determining the jury’s verdict.” See Sandoval

12 v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000). The judge instructed the jury to

13 evaluate the two murder charges independently, and it is not apparent that the jury

14 conflated the evidence presented for both charges. See Bean v. Calderon, 163 F.3d

15 1073, 1085 (9th Cir. 1998) (“prejudice generally does not arise from joinder when

16 the evidence of each crime is simple and distinct, even in the absence of cross-

17 admissibility.”); see also Petition at 67 (Petitioner acknowledges the evidence

18 relevant to each murder was distinct).

19 Accordingly, habeas relief for this claim is unwarranted.

20 D. Ground Four (Discovery Claim)

21 In his fourth claim, Petitioner argues that the trial court prejudicially erred in

22 ordering Petitioner, in violation of P.C. § 1054.3, to share his investigator’s name

23 and report with the prosecution, which permitted the prosecution to call the

24 investigator as a witness because of the information acquired from the report.

25 Petition at 68. Petitioner argues that he is entitled to relief on this claim. Obj. at

26 10. However, Petitioner has not explained the connection between the trial court’s

27 order and his inability to present a defense. Specifically, as noted by the

1 Magistrate Judge, “Petitioner does not allege that he was prevented from

2 examining witnesses, introducing evidence, or presenting a particular defense.”

3 R&R at 55. Thus, Petitioner’s allegations regarding the trial court’s discovery

4 order do not constitute a claim of constitutional error warranting federal habeas

5 relief.

6 Further, the Court finds that a reasonable jury could have agreed with the

7 California Court of Appeal’s determination that the testimony from Petitioner’s

8 investigator was relatively insignificant; therefore, Petitioner has not shown that

9 the trial court’s discovery order had a substantial and injurious effect upon the jury

10 verdict. R&R at 55-56; see Padilla v. Terhune, 309 F.3d 614, 622 (9th Cir. 2002)

11 (concluding that “merely cumulative” evidence could not have had a “‘substantial

12 and injurious effect or influence in determining the jury verdict’”). As the

13 California Court of Appeal determined, the investigator’s testimony was “brief,

14 relatively insignificant and cumulative of testimony from [another witness].” R&R

15 at 53. Thus, even if the trial court’s discovery order created a claim of

16 constitutional error, which it does not, Petitioner still would not be entitled to

17 habeas relief because such error did not have a substantial and injurious effect

18 upon the verdict. Accordingly, Petitioner’s habeas relief for his discovery claim is

19 denied.

20 E. Grounds Five, Six, Eight, and Nine (Evidentiary Error Claims)

21 Petitioner asserts several evidentiary error claims regarding the trial court’s

22 admission of evidence related to four additional murders in which Petitioner was

23 implicated. Obj. at 11-14. A state court’s evidentiary errors are not cognizable on

24 federal habeas review unless the error “violated the Constitution, laws, or treaties

25 of the United States.” Estelle, 502 U.S. at 67-68; Rhoades v. Henry, 638 F.3d

26 1027, 1034 n.5 (9th Cir. 2011) (“[E]videntiary rulings based on state law cannot

27 form an independent basis for habeas relief.”); Whelchel v. Washington, 232 F.3d

1 1197, 1211 (9th Cir. 2000) (“Incorrect state court evidentiary rulings cannot serve

2 as a basis for habeas relief unless federal constitutional rights are affected.”)

3 (quoting Lincoln v. Sunn, 807 F.2d 805, 816 (9th Cir. 1987); Windham v. Merkle,

4 163 F.3d 1092, 1103 (9th Cir. 1998) (“We have no authority to review alleged

5 violations of a state’s evidentiary rules in a federal habeas proceeding.”). “The

6 admission of evidence does not provide a basis for habeas relief unless it rendered

7 the trial fundamentally unfair in violation of due process.” Holley v. Yarborough,

8 568 F.3d 1091, 1101 (9th Cir. 2009).

9 The Court agrees with the Magistrate Judge that there is not a clear federal

10 law that prevents the inclusion of evidence that details a petitioner’s prior crimes as

11 a violation of federal due process. R&R at 64; See Estelle, 502 U.S. at 75 n.5

12 (“[W]e express no opinion on whether a state law would violate the Due Process

13 Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to

14 commit a charged crime.”); see also Larson v. Palmateer, 515 F.3d 1057, 1066 (9th

15 Cir. 2008) (“The Supreme Court has expressly reserved the question of whether

16 using evidence of the defendant’s past crimes to show that he has a propensity for

17 criminal activity could ever violate due process.”); Alberni v. McDaniel, 458 F.3d

18 860, 866-67 (9th Cir. 2006) (declining to declare a constitutional principle relating

19 to the propriety of admitting character evidence as clearly established where the

20 Supreme Court “had expressly concluded the issue was an ‘open question’”);

21 Garceau v. Woodford, 275 F.3d 769, 774 (9th Cir. 2001) (acknowledging that the

22 “Supreme Court has never expressly held that it violates due process to admit other

23 crimes evidence for the purpose of showing conduct in conformity therewith.”),

24 rev’d on other grounds, 538 U.S. 202 (2003). Therefore, the trial court’s

25 admission of evidence relating to four other murders implicating Petitioner was

26 neither clearly unreasonable nor a per se violation of Petitioner’s right to due

27 process.

1 Moreover, Petitioner’s claim fails on the merits because the inclusion of

2 evidence does not violate due process if the evidence is related to a matter in the

3 case. See Estelle, 502 U.S. at 70; Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th

4 Cir. 1991) (“Only if there are no permissible inferences the jury may draw from the

5 evidence can its admission violate due process.”). The Court agrees with the Court

6 of Appeal that the evidence of the four other shooting deaths of Ferguson family

7 members was relevant to why two witnesses might have been reluctant to testify or

8 to positively identify Veyna as the shooter. R&R at 65; See Alvarenga v.

9 Montgomery, No. CV 16-04095-R (JDE), 2018 WL 3956730, at *6 (C.D. Cal.

10 Mar. 13, 2018) (finding that the evidence of a defendant’s prior bad act was

11 relevant to the credibility of a witness who testified reluctantly), accepted, 2018

12 WL 3954009 (C.D. Cal. Aug. 13, 2018).

13 Accordingly, federal habeas relief is not warranted for this claim.

14 F. Ground Eleven (Prosecutorial Misconduct Claim)

15 Petitioner objects to the Magistrate Judge’s conclusions that habeas relief is

16 not warranted for the following alleged prosecutorial misconduct: (1) the

17 prosecution’s use of Petitioner’s gang moniker “Evil” throughout the trial; (2) the

18 prosecution’s characterization of the prison kite as “code”; (3) the prosecution’s

19 voucher of their witnesses’ credibility during argument; (4) mention of a witness’s

20 observation of one of the shootings in opening statement when that witness was not

21 called to testify; and (5) the prosecution’s urging of the jury to send a message to

22 the community during closing statement. Obj. 14-16.

23 A prosecutor’s behavior can be classified as misconduct if it “so infected the

24 trial with unfairness as to make the resulting conviction a denial of due process.”

25 Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.

26 DeChristoforo, 416 U.S. 637, 643 (1974)); Wood v. Ryan, 693 F.3d 1104, 1113

27 (9th Cir. 2012). “[T]he touchstone of due process analysis in cases of alleged

1 prosecutorial misconduct is the fairness of the trial, not the culpability of the

2 prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). Elements of conducting

3 that analysis may include evaluating the type and extent of the misconduct, any

4 rebuttal by defense counsel, the specificity and timing of any curative instructions,

5 and the weight of the evidence. See Hein v. Sullivan, 601 F.3d 897, 914 (9th Cir.

6 2010). Even if due process was violated by the prosecutor, federal habeas relief is

7 not permitted unless the misconduct “had substantial and injurious effect or

8 influence in determining the jury’s verdict.” Shaw v. Terhune, 380 F.3d 473, 478

9 (9th Cir. 2004) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)); see

10 Rowland v. Chappell, 876 F.3d 1174, 1189 (9th Cir. 2017) (applying Brecht

11 harmless error analysis to a prosecutorial misconduct claim); Towery v. Schriro,

12 641 F.3d 300, 307 (9th Cir. 2010) (a “constitutional violation arising from

13 prosecutorial misconduct does not warrant habeas relief if the error is harmless”).

14 The Court finds that the prosecutor’s references to Petitioner’s gang moniker

15 were not inappropriate. See Jackson v. Ducart, No. CV 14-09062-JFW (DTB),

16 2016 WL 3456989, at *16 (C.D. Cal. Apr. 19, 2016) (“[P]etitioner’s gang

17 membership, including his gang moniker, was relevant to both motive and the gang

18 enhancement allegation. Further, the references to petitioner’s gang moniker was

19 relevant and proper for identification purposes as several of the witnesses referred

20 to petitioner by his gang moniker.”), accepted, 2016 WL 3456989 (C.D. Cal. June

21 21, 2016).

22 The Court agrees with the Magistrate Judge that the prosecutor’s comments

23 about “code” between Petitioner and Veyna were reasonable inferences that

24 resulted from evidence provided at trial. R&R at 90; See United States v.

25 Younger, 398 F.3d 1179, 1190 (9th Cir. 2005) (“It is not misconduct for the

26 prosecutor to argue reasonable inferences based on the record . . . .”); United States

27 v. McChristian, 47 F.3d 1499, 1507 (9th Cir. 1995) (“In fashioning closing

1 arguments, prosecutors are allowed reasonably wide latitude and are free to argue

2 reasonable inferences from the evidence.”) (citation and quotation marks omitted).

3 The Court also finds that the prosecutor did not engage in improper

4 vouching because the prosecutor did not provide “personal assurances of the

5 witness’s veracity.” United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)

6 (citations omitted).

7 The Court also finds that the prosecutor’s statement about Petitioner not

8 calling Dewan to testify during closing argument was not improper because the

9 prosecutor made it clear that Petitioner had no duty to call any witnesses and that

10 the burden of proof remained with the prosecution; thus, the prosecutor did not

11 impermissibly shift the burden of proof. See Cook v. Schriro, 538 F.3d 1000, 1020

12 (9th Cir. 2008) (“Prosecutors may comment on the failure of the defense to

13 produce evidence to support an affirmative defense so long as it does not directly

14 comment on the defendant’s failure to testify.”); United States v. Cabrera, 201 F.3d

15 1243, 1250 (9th Cir. 2000) (“The prosecutor’s comments did not shift the burden

16 of proof or persuasion. A prosecutor’s comment on a defendant’s failure to call a

17 witness does not shift the burden of proof, and is therefore permissible, so long as

18 the prosecutor does not violate the defendant’s Fifth Amendment rights by

19 commenting on the defendant’s failure to testify.”). Petitioner does not allege, and

20 the Court does not find, that the prosecutor’s closing argument included direct

21 statements on Petitioner’s failure to testify. See R&R at 93.

22 Finally, the Court finds that the prosecutor’s urging of the jury during

23 closing argument to send a message to the community was an acceptable request of

24 the jury to act as a conscience for the community. See People of Territory of

25 Guam v. Quichoco, 973 F.2d 723, 727 (9th Cir. 1992) (“Appeals to the jury to act

26 as a conscience of the community are not impermissible unless they are

27 specifically designed to inflame the jury.”); but see United States v. Koon, 34 F.3d

1 1416, 1443 (9th Cir. 1994) (“A prosecutor may not urge jurors to convict a

2 criminal defendant in order to protect community values, preserve civil order, or

3 deter future lawbreaking.”) (quoting United States v. Monaghan, 741 F.2d 1434,

4 1441 (D.C. Cir. 1984)).

5 Accordingly, habeas relief is not warranted for these claims.

6 G. Ground Seven (Mistrial Claim)

7 In Ground Seven, Petitioner claims he was denied his federal constitutional

8 right to due process when the trial court denied Petitioner’s motion for a mistrial

9 based on the prosecutor’s opening statement. Petition at 78. The Petitioner objects

10 to the Magistrate Judge’s conclusion that Petitioner’s claim is not cognizable on

11 federal habeas review. Obj. at 16.

12 The Court is not persuaded by this objection. The trial court’s denial of

13 Petitioner’s motion for a mistrial is not a cognizable claim for federal habeas relief.

14 See Gardea v. Madden, No. CV 20-3749 FLA (MRW), 2021 WL 6138274, at *6

15 (C.D. Cal. Oct. 18, 2021) (“The consideration of a mistrial motion is a question of

16 state law. And as such, it does not present a cognizable constitutional issue on

17 federal habeas review.”) (citations omitted), accepted, 2021 WL 6135755 (C.D.

18 Cal. Dec. 29, 2021); Smith v. Koenig, No. 2:19-cv-01650-PSG (AFM), 2020 WL

19 8474755, at *10 n.4 (C.D. Cal. Dec. 21, 2020) (“To the extent Petitioner’s claim

20 may be construed as a challenge to the trial court’s denial of his motion for a

21 mistrial, the claim does not raise a cognizable federal claim.”), accepted, 2021 WL

22 640024 (C.D. Cal. Feb. 17, 2021). Accordingly, Petitioner is not entitled to habeas

23 relief on his mistrial claim.

24 H. Ground Ten (Instructional Error Claim)

25 In Ground Ten, Petitioner argues that the trial court prejudicially erred in its

26 response to the jury’s question and instruction on transferred intent, in violation of

27 Petitioner’s federal constitutional right to due process. Petition at 87. Petitioner

1 objects to the Magistrate Judge’s finding that his claim is not cognizable on federal

2 habeas review. Obj. at 17.

3 The Court is not persuaded by this objection. Petitioner argued that the trial

4 court’s transferred intent instruction was not supported by the evidence presented.

5 See R&R at 103 (citing 13 RT 5105). But “[a]ny error in the state court’s

6 determination of whether state law allowed for an instruction in this case cannot

7 form the basis for federal habeas relief.” Menendez v. Terhune, 422 F.3d 1012,

8 1029 (citing Estelle, 502 U.S. at 67–68). Accordingly, habeas relief is not

9 warranted for Petitioner’s instructional error claim.

10 I. Ground Thirteen (Cumulative Error Claim)

11 In Ground Thirteen, Petitioner claims he was denied his federal

12 constitutional right to due process because of the cumulative effect of the alleged

13 trial errors. Petition at 98. In his Objection, Petitioner argues that he has

14 established the merits of his contentions and is therefore warranted relief. Obj. at

15 18.

16 “The cumulative error doctrine in habeas recognizes that, even if no single

17 error were prejudicial, where there are several substantial errors, their cumulative

18 effect may nevertheless be so prejudicial as to require reversal.” Parle v. Runnels,

19 387 F.3d 1030, 1045 (9th Cir. 2004) (citation and quotation marks omitted); accord

20 Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011); Davis v. Woodford, 384

21 F.3d 628, 654 (9th Cir. 2004). Habeas relief in instances of cumulative error is

22 permitted “when there is a ‘unique symmetry’ of otherwise harmless errors, such

23 that they amplify each other in relation to a key contested issue in the case.”

24 Ybarra, 656 F.3d at 1001 (quoting Parle, 505 F.3d at 933).

25 Because Petitioner has not demonstrated the state court proceedings had any

26 errors regarding evidentiary rulings or the prosecutor’s actions, Petitioner has not

27 shown any “unique symmetry of otherwise harmless errors” to warrant federal

1 || habeas relief. R&R at 107-08; See Fairbank v. Ayers, 650 F.3d 1243, 1257 (9th

2 2011) (‘[B]ecause we hold that none of [Petitioner’s] claims rise to the level

3 || of constitutional error, there is nothing to accumulate to a level of a constitutional

4 || violation.”) (citation and quotation marks omitted); Hayes v. Ayers, 632 F.3d 500,

5 || 524 (9th Cir. 2011) (“Because we conclude that no error of constitutional

6 || magnitude occurred, no cumulative prejudice is possible.”).

7 Accordingly, Petitioner’s cumulative error claim does not warrant federal

8 || habeas relief.

9 Vv. CONCLUSION

10 Having completed its review, the Court accepts the findings and

11 ||recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1)

12 Report and Recommendation is ACCEPTED; and (2) judgment shall be

13 || entered dismissing this action with prejudice. Petitioner’s petition for a writ of

14 || habeas corpus is DENIED.

15

16 Dated: August 10, 2026 Arb Fright

1 _

HONORABLE CHRISTINA A. SNYDER

19 UNITED STATES DISTRICT JUDGE

20

21

22

23

24

25

26

27

19