“Several cases find the erroneous admission . . . of evidence harmless because 18 of the overwhelming evidence of the guilt of the defendant.”
How later courts described this case
- “Several cases find the erroneous admission . . . of evidence harmless because 18 of the overwhelming evidence of the guilt of the defendant.”
- “Under the law of this circuit, the failure of a state trial court to instruct on 21 lesser included offenses in a non-capital case does not present a federal constitutional 22 question.”
- “Consistent with our decision in Ylst v. Nunnemaker, 501 U.S. 797, 806 28 (1991
Written by the judges who cited it.
The opinion
Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 1 of 29 Page ID #:1799
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
MUOI VAN DUONG, ) N O . C V 2 0 - 6 0 4 0 - K S
11
Petitioner, )
12 )
v. MEMORANDUM OPINION AND ORDER
)
13 )
14 STEW SHERMAN, Warden, )
)
15 Respondent. )
16 _________________________________ )
17
18 INTRODUCTION
19
20 On July 6, 2020, Petitioner, a California state prisoner proceeding pro se, filed a Petition
21 for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“the
22 Petition”). (Dkt. No. 1.) On August 2, 2021, Respondent filed an Answer to the Petition and
23 lodged the relevant state court records. (Dkt. Nos. 31-32.) On January 10, 2022, the Court
24 deemed the matter ready for submission because Petitioner had not filed a Reply. (Dkt. No.
25 45.) The parties have consented to the jurisdiction of the undersigned Magistrate Judge. (Dkt.
26 Nos. 2, 22, 26.) Briefing on this matter is now complete, and the matter is under submission
27 to the Court for decision.
28
1
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1 PRIOR PROCEEDINGS
2
3 On December 12, 2017, a Ventura County Superior Court jury convicted Petitioner of
4 resisting an executive officer with force or violence (California Penal Code (“Penal Code”)
5 § 69(a)). (2 Reporter’s Transcript (“RT”) 283-84; Clerk’s Transcript (“CT”) 114.) On the
6 same date, in a bifurcated trial, the jury found true the allegations that Petitioner had committed
7 two serious prior felonies (assault with a deadly weapon and making criminal threats) and that
8 he had served three prior prison terms (Penal Code §§ 245(a)(1), 422, 667(c)(1), 667(e)(1),
9 667.5(b)). (2 RT 323-25; CT 115-17.) On March 1, 2018, the trial court sentenced Petitioner
10 to seven years in state prison. (2 RT 334; CT 141, 143.)
11
12 Petitioner appealed the judgment of conviction. (Lodged Document (“Lodg.”) No. 4.)
13 On April 15, 2019, the California Court of Appeal issued an unpublished, reasoned opinion
14 affirming the judgment. (Lodg. No. 7.) On June 19, 2019, the California Supreme Court
15 summarily denied a Petition for Review. (Lodg. Nos. 8-9.)
16
17 On April 17, 2020, Petitioner filed a habeas petition with the Ventura County Superior
18 Court. (Lodg. No. 10 at 1.) On April 24, 2020, the Superior Court denied the habeas petition.
19 (Id.) On September 9, 2020, Petitioner filed another habeas petition with the Ventura County
20 Superior Court. (Id. at 3.) On September 14, 2020, the Superior Court denied the habeas
21 petition. (Id.)
22
23 Petitioner filed the instant Petition on July 6, 2020. (Dkt. No. 1.) On August 21, 2020,
24 the Court granted Petitioner’s request for a stay pursuant to Rhines v. Weber, 544 U.S. 269
25 (2005), so he could exhaust his unexhausted claims. (Dkt. No. 7.) On November 19, 2020,
26 Petitioner filed a habeas petition with the California Supreme Court. (Lodg. No. 11.) On
27 January 27, 2021, the California Supreme Court denied the habeas petition. (Lodg. No. 12.)
28 On February 12, 2021, the Court lifted the stay. (Dkt. No. 13.)
2
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1 SUMMARY OF THE EVIDENCE AT TRIAL
2
3 The following factual summary from the California Court of Appeal’s unpublished
4 decision on direct review is provided as background. See also 28 U.S.C. § 2254e(1) (“[A]
5 determination of a factual issue made by a State court shall be presumed to be correct” unless
6 rebutted by the petitioner by clear and convincing evidence).
7
8 On August 6, 2017, Oxnard police received a 911 call from [Petitioner’s]
9 brother Hai Duong, who said that [Petitioner] was outside and “broke . . . the door
10 . . . to the house.” Asked to explain [Petitioner’s] conduct, Hai Duong replied,
11 “he do drugs.” He identified [Petitioner] as “Timmy Duong.”
12
13 Officers Hayley Bracken, David McAlpine and Jamie Toney went to Hai
14 Duong’s house in uniform, driving marked patrol cars. The dispatcher told them
15 that [Petitioner] was on parole, was subject to restraining orders, and had an
16 outstanding arrest warrant for a parole violation. Bracken testified that they had
17 a duty to take [Petitioner] into custody on the warrant. Also, she mistakenly
18 believed that the restraining orders applied to the address; the dispatcher did not
19 mention that the orders were unconnected to Hai Duong’s home.
20
21 Bracken saw no one at Hai Duong’s front door. She entered the side yard
22 through a partially open gate and saw [Petitioner], whom she knew from a prior
23 encounter as “Timmy.” The exchange between [Petitioner] and the officers was
24 captured on body cameras. McAlpine and Toney believed [Petitioner] was under
25 the influence of drugs because he was sweating, grinding his teeth, fidgeting and
26 had rapid speech.
27 ///
28 ///
3
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1 When Bracken asked [Petitioner] if she could talk to him, he demanded to
2 know who called the police. Without identifying the caller, she assured him that
3 someone called. [Petitioner] stated that his family was inside in the house, adding
4 “they’re chicken” and “they hide.”
5
6 McAlpine testified that [Petitioner], as a parolee, can be searched and
7 detained at any time and must cooperate with police. To gauge [Petitioner’s]
8 honesty and cooperation, McAlpine asked if he was on parole, which he denied.
9 McAlpine directed [Petitioner] to relinquish the cell phone in his hand and to
10 extend his wrist. When McAlpine took hold of [Petitioner’s] left wrist to prevent
11 him from fleeing, he tried to jump and spin out of McAlpine’s grasp. McAlpine
12 described [Petitioner] as “extremely strong and resistant” to cooperating with a
13 parole search.
14
15 Bracken tried to gain control of [Petitioner’s] right arm. He hit his head
16 into her chin and mouth in a movement she and McAlpine described as a
17 “headbutt.” Toney grabbed [Petitioner’s] legs. They lowered [Petitioner] to the
18 ground and handcuffed him. Bracken had a swollen lip and a bruise inside her
19 mouth from the headbutt.
20
21 For safety reasons McAlpine did not tell [Petitioner] about the arrest
22 warrant before taking him into custody, to prevent him from devising a plan of
23 escape. After the scuffle, Toney told [Petitioner] about the warrant. He
24 demanded to see it. En route to the jail, [Petitioner] yelled that he “knocked
25 [Bracken] in [her] head, and that if [she] did not show him the warrant, he would
26 kick [her] in [her] head.” The recorded threat was played for the jury.
27
28 (Lodg. No. 7 at 2-4.)
4
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1 PETITIONER’S HABEAS CLAIMS
2
3 Petitioner presents the following grounds for federal habeas relief:
4
5 Ground One: There was no substantial evidence that Petitioner knew that the officers
6 were engaged in the lawful performance of their duty. (Dkt. No. 1 at 5.)1
7
8 Ground Two: The trial court prejudicially erred in not instructing sua sponte on assault
9 as a lesser-included offense. (Id. at 5-6.)
10
11 Ground Three: The trial court committed prejudicial error in admitting evidence
12 concerning the existence of two restraining orders against Petitioner. (Id. at 6.)
13
14 Ground Four: The arresting officers violated Petitioner’s rights under Miranda v.
15 Arizona, 384 U.S. 436 (1966). (Id.)
16
17 Ground Five: There were violations of due process and Brady v. Maryland, 373 U.S.
18 83 (1963), because the video evidence was inadequate, inaudible, and cut off. (Id.)
19
20 STANDARD OF REVIEW
21
22 I. The Antiterrorism And Effective Death Penalty Act.
23
24 Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
25 Penalty Act of 1996 (“AEDPA”), a state prisoner whose claim has been “adjudicated on the
26
27
1 The page numbers cited from the parties’ pleadings were automatically generated by the
28 Court’s electronic filing system.
5
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1 merits” cannot obtain federal habeas relief unless that adjudication: (1) resulted in a decision
2 that was contrary to, or involved an unreasonable application of, clearly established Federal
3 law, as determined by the Supreme Court of the United States; or (2) resulted in a decision
4 that was based on an unreasonable determination of the facts in light of the evidence presented
5 in the State court proceeding.
6
7 For the purposes of Section 2254(d), “clearly established Federal law” refers to the
8 Supreme Court holdings in existence at the time of the state court decision in issue. Cullen v.
9 Pinholster, 563 U.S. 170, 182 (2011); see also Kernan v. Cuero, 138 S. Ct. 4, 9 (2017) (per
10 curiam) (“circuit precedent does not constitute clearly established federal law. . . . [n]or, of
11 course, do state-court decisions, treatises, or law review articles”) (internal quotation marks
12 and citations omitted). A Supreme Court precedent is not clearly established law under §
13 2254(d)(1) unless it “squarely addresses the issue” in the case before the state court or
14 establishes a legal principle that “clearly extends” to the case before the state court. Moses v.
15 Payne, 555 F.3d 742, 760 (9th Cir. 2009); see also Harrington v. Richter, 562 U.S. 86, 101
16 (2011) (it “‘is not an unreasonable application of clearly established Federal law for a state
17 court to decline to apply a specific legal rule that has not been squarely established by’” the
18 Supreme Court) (citation omitted).
19
20 A state court decision is “contrary to” clearly established federal law under Section
21 2254(d)(1) only if there is “a direct and irreconcilable conflict,” which occurs when the state
22 court either (1) arrived at a conclusion opposite to the one reached by the Supreme Court on a
23 question of law or (2) confronted a set of facts materially indistinguishable from a relevant
24 Supreme Court decision but reached an opposite result. Murray v. Schriro, 745 F.3d 984, 997
25 (9th Cir. 2014) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision
26 is an “unreasonable application” of clearly established federal law under Section 2254(d)(1)
27 if the state court’s application of Supreme Court precedent was “objectively unreasonable, not
28 merely wrong.” White v. Woodall, 572 U.S. 415, 419 (2014). The petitioner must establish
6
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1 that “there [can] be no ‘fairminded disagreement’” that the clearly established rule at issue
2 applies to the facts of the case. See id. at 1706-07 (internal citation omitted). Finally, a state
3 court’s decision is based on an unreasonable determination of the facts within the meaning of
4 28 U.S.C. § 2254(d)(2) when the federal court is “convinced that an appellate panel, applying
5 the normal standards of appellate review, could not reasonably conclude that the finding is
6 supported by the record before the state court.” Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir.)
7 (internal quotation marks omitted), cert. denied, 135 S. Ct. 710 (2014). So long as
8 “‘[r]easonable minds reviewing the record might disagree,’” the state court’s determination of
9 the facts is not unreasonable. See Brumfield v. Cain, 576 U.S. 305, 314 (2015).
10
11 AEDPA thus “erects a formidable barrier to federal habeas relief for prisoners whose
12 claims have been adjudicated in state court.” White v. Wheeler, 577 U.S. 73, 77 (2015) (per
13 curiam) (internal quotation marks and citation omitted). Petitioner carries the burden of proof.
14 See Pinholster, 563 U.S. at 181.
15
16 II. The State Court Decision On Petitioner’s Claim In Ground One Is Entitled To
17 AEDPA Deference.
18
19 Petitioner presented his claim in Ground One on appeal in the California Court of
20 Appeal (Lodg. No. 4 at 24-31), which rejected it in a reasoned opinion (Lodg. No. 7 at 5-12).
21 Petitioner then presented the claim in his Petition for Review with the California Supreme
22 Court (Lodg. No. 8 at 19-27), which summarily denied it (Lodg. No. 9). Thus, Section 2254(d)
23 applies, and the Court looks through the California Supreme Court’s summary denial to the
24 last reasoned decision – the decision of the California Court of Appeal on direct review – to
25 determine whether the state court’s adjudication of Petitioner’s claim in Ground One is
26 unreasonable or contrary to clearly established federal law. See Johnson v. Williams, 568 U.S.
27 289, 297 n.1 (2013) (“Consistent with our decision in Ylst v. Nunnemaker, 501 U.S. 797, 806
28 (1991), the Ninth Circuit ‘look[ed] through’ the California Supreme Court’s summary denial
7
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1 of [the petitioner’s] petition for review and examined the California Court of Appeal’s
2 opinion.”); see also, e.g., Jones v. Harrington, 829 F.3d 1128, 1136 (9th Cir. 2016) (looking
3 through California Supreme Court’s summary denial of a petition for review to the California
4 Court of Appeal’s decision on direct review).
5
6 III. Petitioner’s Remaining Claims In Grounds Two To Five Are Reviewed De Novo.
7
8 Petitioner presented his claims in Grounds Two and Three on appeal in the California
9 Court of Appeal (Lodg. No. 4 at 31-47), which rejected them in a reasoned opinion (Lodg. No.
10 7 at 6-9). Petitioner did not, however, raise these claims before the California Supreme Court,
11 either in his Petition for Review or his habeas petition. (Lodg. Nos. 8, 11.) Thus, Ground
12 Two and Three are unexhausted. Respondent argues that, despite Petitioner’s failure to
13 exhaust Grounds Two and Three before the California Supreme Court, the Court nonetheless
14 should apply deference under the AEDPA to the reasoned merits adjudication by the lower
15 state court, the California Court of Appeal. (Dkt. No. 31 at 21-22.) It is unnecessary to resolve
16 this argument. “In addressing the merits, we need not decide whether a claim ‘adjudicated on
17 the merits’ by a state [lower] court is subject to AEDPA deference under § 2254(d) if the
18 habeas petitioner failed to exhaust the claim fully in the state courts. Rather, we may ‘engag[e]
19 in de novo review when it is unclear whether AEDPA deference applies, because a habeas
20 petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de
21 novo review.’” Stevens v. Davis, 25 F.4th 1141, 1165 (9th Cir. 2022) (quoting Berghuis v.
22 Thompkins, 560 U.S. 370, 390 (2010)).
23
24 Petitioner presented his claims in Grounds Four and Five in his habeas petition with the
25 California Supreme Court (Lodg. No. 11 at 3, 7), which rejected it solely on procedural
26 grounds (Lodg. No. 12). Thus, Grounds Four and Five also are reviewed de novo. See Amado
27 v. Gonzalez, 758 F.3d 1119, 1130 (9th Cir. 2014) (“If the claim was not ‘adjudicated on the
28
8
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1 merits’ by the state court, the review is de novo.”) (quoting Pirtle v. Morgan, 313 F.3d 1160,
2 1167 (9th Cir. 2002).
3
4 DISCUSSION
5
6 Respondent raises the additional argument that Grounds Four and Five are procedurally
7 defaulted. (Dkt. No. 31 at 15, 23.) However, because it is more efficient to resolve these
8 claims on the merits, the Court elects to resolve them on that basis. See Lambrix v. Singletary,
9 520 U.S. 518, 525 (1997); Floyd v. Filson, 949 F.3d 1128, 1138 (9th Cir. 2020) (citing
10 Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)).
11
12 I. Habeas Relief Is Not Warranted For Petitioner’s Claim Of Insufficiency Of The
13 Evidence (Ground One).
14
15 In Ground One, Petitioner claims that there was no substantial evidence that he knew
16 the officers were engaged in the lawful performance of their duty (Dkt. No. 1 at 5), which is
17 an element of Petitioner’s crime of conviction of resisting an executive officer with force or
18 violence (Penal Code § 69(a)).
19
20 A. Legal Standard.
21
22 “[T]he Due Process Clause protects the accused against conviction except upon proof
23 beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
24 charged.” In re Winship, 397 U.S. 358, 364 (1970). When a habeas petitioner challenges the
25 sufficiency of the evidence supporting the jury’s verdict, “the relevant question is whether,
26 after viewing the evidence in the light most favorable to the prosecution, any rational trier of
27 fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
28 v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Jackson does not require that
9
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1 the prosecutor affirmatively “‘rule out every hypothesis except that of guilt.’” Wright v. West,
2 505 U.S. 277, 296 (1992) (citation omitted). Further, “‘[c]ircumstantial evidence and
3 inferences drawn from it may be sufficient to sustain a conviction.’” Walters v. Maass, 45
4 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted). When the factual record supports
5 conflicting inferences, the federal court must presume – even if it does not affirmatively appear
6 on the record – that the trier of fact resolved any such conflicts in favor of the prosecution and
7 defer to that resolution. Jackson, 443 U.S. at 326; McDaniel v. Brown, 558 U.S. 120, 133
8 (2010) (per curiam). Ultimately, for Petitioner’s claim to be successful, the jury’s finding
9 must be “so insupportable as to fall below the threshold of bare rationality.” Coleman v.
10 Johnson, 566 U.S. 650, 656 (2012) (per curiam).
11
12 When, as here, both Jackson and AEDPA apply to the same claim, the claim is reviewed
13 under a “twice-deferential standard.” Parker v. Matthews, 567 U.S. 37, 43 (2012) (per
14 curiam). Accordingly, this Court’s inquiry is limited to whether the California courts’
15 rejection of Petitioner’s insufficiency of the evidence claims was an objectively unreasonable
16 application of Jackson. See Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011); Juan H.
17 v. Allen, 408 F.3d 1262, 1275 n.13 (9th Cir. 2005).
18
19 B. Analysis.
20
21 The California Court of Appeal rejected Petitioner’s claim that the evidence was
22 insufficient to establish he knew the officers were performing their duties:
23
24 The jury was instructed that the prosecution must prove (1) [Petitioner]
25 unlawfully used force or violence to resist an officer; (2) when he acted, the officer
26 was performing a lawful duty; and (3) [Petitioner] knew the officer was
27 performing a duty. In summation, defense counsel conceded that the officers were
28 performing their lawful duty and [Petitioner] “absolutely willfully resisted.”
10
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1 [Petitioner] argues that “[t]here was no evidence to support the knowledge
2 element of the charged crime.” We disagree. Viewing the evidence in the light
3 most favorable to the verdict, any rational trier of fact could find, beyond a
4 reasonable doubt, that [Petitioner] knew the officers were performing their duties.
5 (People v. Holt (1997) 15 Cal.4th 619, 667 [standard of review].)
6
7 Section 69 “is designed to protect police officers against violent
8 interference with performance of their duties.” (People v. Martin (2005) 133
9 Cal.App.4th 776, 782.) The defendant must know the person being resisted is an
10 officer engaged in the performance of his or her duties. (People v. Hendrix (2013)
11 214 Cal.App.4th 216, 237.) The jury was instructed that “[t]he duties of a peace
12 officer include responding to calls for service, investigating crimes, enforcing
13 parole terms and conditions, and arresting persons for arrest warrants.”
14
15 Substantial evidence supports the jury’s implied finding that [Petitioner]
16 knew uniformed officers were investigating his attempts to break down his
17 brother’s door. The first thing he asked was “Who called you?” Bracken replied,
18 “Oh, I’m not sure yet. But they did call us.” Moments later, McAlpine asked
19 [Petitioner], “are you on parole?” The jury could find that when [Petitioner]
20 resisted arrest, he knew the officers were performing their duties in responding to
21 a service call and checking his parole status, satisfying the knowledge element of
22 section 69.
23
24 [Petitioner] argues that he was unaware the officers intended to arrest him
25 on a warrant. However, the testimony shows that police have safety reasons not
26 to mention an arrest warrant, to avoid giving the arrestee an opportunity to plan
27 an escape or attack upon the officers. It is especially true here, where [Petitioner]
28 was agitated, appeared to be under the influence of drugs, and acknowledged that
11
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1 family members were hiding from him in fear. It is enough that [Petitioner] knew
2 the officers entered the yard and detained him to carry out their duty to investigate
3 a citizen complaint about his violent behavior, even if he was unaware of the arrest
4 warrant. As a matter of public policy, a person who knows or should know that
5 he is being arrested by police has a duty “to refrain from using force or any weapon
6 to resist such arrest,” even if the arrest is unlawful. (§ 834a; People v. Richards
7 (2017) 18 Cal.App.5th 549, 564.)
8
9 (Lodg. No. 7 at 4-5.)
10
11 The California Court of Appeal’s rejection of Petitioner’s claim did not involve an
12 unreasonable application of “the already deferential Jackson standard.” Kyzar v. Ryan, 780
13 F.3d 940, 949 (9th Cir. 2015). The evidence presented at trial was sufficient for a rational jury
14 to find that Petitioner knew the officers were performing their duties. The officers told
15 Petitioner that “they did call us” (Supplemental Clerk’s Transcript (“Supp. CT”) 9, 31) and
16 asked Petitioner if he was on parole (Supp. CT 11, 32). From this evidence, a rational jury
17 could find that Petitioner knew the officers were performing their duties by responding to a
18 service call and by checking his parole status.
19
20 This evidence was not rendered insufficient by other evidence that, before head butting
21 Officer Bracken, Petitioner was unaware the officers intended to arrest him on a warrant.2 The
22 jury heard evidence that Petitioner, throughout the incident, repeatedly demanded to see an
23 arrest warrant (Supp. CT 5, 7; 1 RT 151, 164) or “paperwork” (Supp. CT 7, 20, 40), but that
24 the officers never showed him proof of the warrant (1 RT 124, 137). But Officers Bracken
25 and McAlpine gave multiple explanations for that action: they are not required to show a
26
27 2 It was only after Petitioner head butted Officer Bracken that Officer Toney told Petitioner
that Petitioner had a warrant (Supp. CT 15, 36) and would be taken to the station on that
28 warrant (Supp. CT 20, 40).
12
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1 warrant to an arrested person (1 RT 151), the warrant is not available until the person arrives
2 at the jail (1 RT 137-38), they may decline to tell a person about the warrant because of safety
3 issues (1 RT 138), and they did not want to give Petitioner a reason to prepare for an escape
4 or an assault (1 RT 145). But the fact that the officers did not give Petitioner information
5 about the warrant before Petitioner struck Officer Bracken did not mean that Petitioner lacked
6 actual knowledge, from other sources of information, that the officers were engaged in the
7 performance of their duties.
8
9 Under California law, “[r]equiring proof of actual knowledge does not mean that a
10 defendant can avoid culpability under Penal Code section 69 merely by asserting a belief that
11 an officer had no right to detain him.” In re A.L., 38 Cal. App. 5th 15, 22 (2019). “The trier
12 of fact is not required to accept the defendant’s version of events, particularly if it is at odds
13 with other evidence.” Id. Here, a rational jury was not required to accept Petitioner’s assertion
14 that he did not know the officers were performing their duties merely because of evidence that
15 they failed to give him information about the arrest warrant. Other evidence showed that the
16 officers gave Petitioner reasons independent of the warrant for detaining him, based on a
17 service call (Supp. CT 9, 31) and a parole status check (Supp. CT 11, 32). It was not
18 objectively unreasonable for the state court to conclude that this evidence was sufficient for a
19 rational jury to find that the knowledge element of the crime of conviction was proven beyond
20 a reasonable doubt. Thus, this claim is denied.
21
22 II. Habeas Relief Is Not Warranted For Petitioner’s Claim Of Instructional Error
23 (Ground Two).
24
25 In Ground Two, Petitioner claims that the trial court prejudicially erred in not instructing
26 sua sponte on assault as a lesser-included offense. (Id. at 5-6.)
27 ///
28 ///
13
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1 Respondent argues that this claim should be denied for multiple reasons: it is barred by
2 Teague v. Lane, 489 U.S. 288 (1989); it is not cognizable in a federal habeas proceeding; and,
3 in any event, it lacks merit. (Dkt. No. 31 at 27, 30-34.) Each argument is addressed in turn.
4
5 A. The Claim Is Barred by Teague.
6
7 Respondent first argues that relief for Ground Two is barred by the non-retroactivity
8 principle of Teague, 489 U.S. 288. (Dkt. No. 31 at 30-32.) Respondent specifically argues
9 that granting relief on this claim would require the announcement of “a new rule of
10 constitutional law . . . that a defendant’s right to present a defense in a noncapital criminal trial
11 includes the right to have the jury instructed on lesser-included offenses.” (Id. at 30.)
12
13 “[N]ew constitutional rules of criminal procedure will not be applicable to those cases
14 which have become final before the new rules are announced.” Teague, 489 U.S. at 310. “In
15 general . . . a case announces a new rule when it breaks new ground or imposes a new
16 obligation on the States or the Federal Government.” Id. at 301. “To put it differently, a case
17 announces a new rule if the result was not dictated by precedent existing at the time the
18 defendant’s conviction became final.” Id. (emphasis in original). Under Teague, there were
19 two narrow exceptions to its principle of non-retroactivity. Id. at 311-13. “The first, limited
20 exception is for new rules forbidding criminal punishment of certain primary conduct [and]
21 rules prohibiting a certain category of punishment for a class of defendant because of their
22 status or offense.” O’Dell v. Netherland, 521 U.S. 151, 157 (1997) (citation and internal
23 quotation marks omitted). The second exception is for “watershed rules of criminal procedure
24 implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. (citation
25 and internal quotation marks omitted). To determine whether a habeas petitioner is entitled to
26 the application of a particular rule under Teague, a federal habeas court is to perform a three-
27 step analysis: (1) determine the date on which the defendant’s conviction became final;
28
14
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1 (2) determine whether the rule is new; and (3) if the rule is new, determine whether the rule
2 nonetheless falls within one of the two narrow exceptions. Id. at 156-57.
3
4 When Petitioner’s conviction became final in 2019, no existing precedent dictated a
5 right to a jury instruction on lesser included offenses in non-capital cases. Moreover, the Ninth
6 Circuit had held that to extend federal habeas relief for such claims in non-capital cases would
7 create a new rule under Teague. See Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995),
8 overruled on other ground by Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999) (en banc).
9 Thus, federal habeas relief cannot be granted here unless the district court, in contravention of
10 Teague, were to announce and apply a new rule that was not dictated by existing precedent
11 when Petitioner’s conviction became final. See Greenawalt v. Ricketts, 943 F.2d 1020, 1024
12 (9th Cir. 1991) (“[Teague] applies equally to all levels of the federal judiciary; a new rule
13 announced by a district court can have no greater retroactive effect than one announced
14 directly by the Supreme Court.”).
15
16 Because Petitioner’s claim that he was entitled to an instruction on a lesser-included
17 offense would require the announcement of a new rule that “is unsupported by existing case
18 law, we must decide whether it falls within either of the two exceptions to the principle that
19 we cannot adopt and apply retroactively new federal constitutional rights in state prison habeas
20 corpus proceedings.” Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990). The first exception—
21 for the decriminalization of certain primary conduct or the prohibition of punishment for a
22 class of defendants—is inapplicable here. The primary conduct in this case is the knowing
23 resistance of an officer’s execution of duties with force or violence, “the prosecution of which
24 is, to put it mildly, not prohibited by the [new] rule”; nor would the new rule place “a
25 prohibition on the imposition of a particular punishment on a certain class of offenders.”
26 Butler v. McKellar, 494 U.S. 407, 415 (1990). The second exception—for a “watershed” rule
27 of criminal procedure—no longer exists. Edwards v. Vannoy, 141 S. Ct. 1547, 1560 (2021)
28 (holding that “[t]he watershed exception is moribund” and “must be regarded as retaining no
15
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1 vitality”) (citation and internal quotation marks omitted); see also Ochoa v. Davis, 16 F.4th
2 1314, 1338 (9th Cir. 2021) (noting that Vannoy eliminated the watershed exception). Because
3 neither exception is available, federal habeas relief for Petitioner’s claim of instructional error
4 is precluded by the non-retroactivity principle of Teague.
5
6 B. The Claim Is Not Cognizable.
7
8 Respondent next argues that relief is unavailable for Ground Two because it fails to state
9 a cognizable federal question. (Dkt. No. 31 at 32.)
10
11 A criminal defendant in a capital case has a federal constitutional right to have the jury
12 instructed on a lesser-included offense in certain instances. See Beck v. Alabama, 447 U.S.
13 625, 638 (1980). But in a non-capital criminal case, such as this case, a state trial court’s
14 failure to instruct a jury on a lesser-included offense is not cognizable as a claim on federal
15 habeas review. See Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984) (in a non-capital
16 case, the “[f]ailure of a state court to instruct on a lesser offense fails to present a federal
17 constitutional question and will not be considered in a habeas corpus proceeding.”) (quoting
18 James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976) (per curiam)); see also Solis v. Garcia, 219
19 F.3d 922, 929 (9th Cir. 2000) (per curiam) (same); Windham v. Merkle, 163 F.3d 1092, 1106
20 (9th Cir. 1998) (“Under the law of this circuit, the failure of a state trial court to instruct on
21 lesser included offenses in a non-capital case does not present a federal constitutional
22 question.”).
23
24 Although an exception may exist, such that a defendant in a non-capital case would be
25 “entitled to adequate instructions on his or her theory of defense,” Bashor, 730 F.2d at 1240,
26 such an exception would not apply here. Petitioner’s theory of defense was that he did not
27 purposefully or willfully strike Officer Bracken but, instead, was trying to get away and protect
28 himself during a stressful, fast-paced, physical interaction. (1 RT 82; 2 RT 222, 234.) This
16
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1 theory of defense is inconsistent with assault, which requires “that the defendant willfully or
2 purposefully attempted a violent injury or the least touching, i.e., any wrongful act committed
3 by means of physical force against the person of another.” People v. Golde, 163 Cal. App. 4th
4 101, 108 (2008) (citation and internal quotation marks omitted). Because Petitioner’s claim
5 of entitlement to the assault instruction did not implicate his theory of defense, his claim does
6 not raise a federal constitutional question.
7
8 C. The Claim Lacks Merit.
9
10 Respondent finally argues that, in any event, Petitioner’s claim of instructional error
11 lacks merit. (Dkt. No. 31 at 32-34.)
12
13 1. Legal Standard.
14
15 As noted, a criminal defendant in a capital case has a federal constitutional right to have
16 the jury instructed on a lesser-included offense in some instances. Beck, 447 U.S. at 638. The
17 “goal of the Beck rule . . . is to eliminate the distortion of the fact-finding process that is created
18 when the jury is forced into an all-or-nothing choice between capital murder and innocence.”
19 Schad v. Arizona, 501 U.S. 624, 646-47 (1991), abrogated on other ground as stated by
20 Vannoy, 141 S. Ct. at 1556 n.4; see also Turner v. Calderon, 281 F.3d 851, 886 (9th Cir. 2002)
21 (citing Villafuerte v. Stewart, 111 F.3d 616, 622-23 (9th Cir. 1997)).
22
23 But even in that context, “[d]ue process requires that a lesser included offense
24 instruction be given only when the evidence warrants such an instruction.” Hopper v. Evans,
25 456 U.S. 605, 611 (1982) (emphasis in original). No due process violation occurs from the
26 failure to instruct on a lesser-included offense when “the record does not support such an
27 instruction.” Carriger v. Lewis, 971 F.2d 329, 336 (9th Cir. 1992) (en banc); see also Ceja v.
28 Stewart, 97 F.3d 1246, 1254 (9th Cir. 1996); Solis, 219 F.3d at 929.
17
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1 2. Background.
2
3 Although this claim is reviewed de novo, the California Court of Appeal’s discussion of
4 the claim provides background:
5
6 Assault is a necessarily included lesser offense of section 69 if the defendant is
7 alleged to have resisted an officer with force or violence. (People v. Brown (2016)
8 245 Cal.App.4th 140, 153 (Brown).) Defense counsel did not request an assault
9 instruction; instead, the jury was instructed on the offense of resisting a peace
10 officer. (§ 148, subd. (a).)[2] We review de novo the court’s failure to give a
11 necessarily included offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584.)
12 [2] The jury was instructed that section 148 applies if (1) Bracken
13 was lawfully performing or attempting to perform her duties; (2)
14 [Petitioner] willfully resisted her performance of those duties; and
15 (3) he knew or reasonably should have known that she was a police
16 officer performing or attempting to perform her duties.
17
18 “[A] trial court is not required to instruct the jury on a necessarily included
19 offense ‘“when there is no evidence that the offense was less than that charged.”‘”
20 (People v. Smith (2013) 57 Cal.4th 232, 245, quoting People v. Breverman (1998)
21 19 Cal.4th 142, at p. 154.) We conclude that the court was not required to instruct
22 on assault because there is no evidence that the crime was less than the charged
23 offense.
24
25 The evidence established that [Petitioner] knew why the officers were
26 there. Hai Duong called 911, saying that [Petitioner] was trying to break down
27 the door. Officers were dispatched to investigate. [Petitioner] was not visible
28 from the street. The officers sought him out by passing through a gate into a side
18
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1 yard. He immediately asked who called them and was told they were there
2 because someone called for help. He was questioned about his parole status. No
3 reasonable juror could conclude that [Petitioner] was unaware the officers were
4 carrying out their duties when he resisted them with force or violence.
5
6 Though [Petitioner] may not have known about a warrant for his arrest, an
7 officer’s duties extend beyond executing arrest warrants, and the jury was so
8 instructed. It is of no moment if [Petitioner] was unsure whether they were
9 arresting him for making criminal threats, trespassing, or a parole violation.
10
11 [Petitioner] relies on Brown, supra, 245 Cal.App.4th 140. It does not assist
12 him. Brown fought with officers who wanted to cite him for riding a bicycle
13 without a light on the sidewalk while wearing headphones. He claimed the
14 officers attacked him without provocation while he was lying face down after
15 falling; the officers claimed that he attacked them. (Id. at pp. 146-147.) An assault
16 instruction was required because there were conflicting versions of the event that
17 could allow the jury to conclude “that Brown used excessive force or violence to
18 resist arrest only in response to the officers’ unreasonable force. Under that
19 scenario, Brown could have been found not guilty of the section 69 violation, but
20 still guilty of the lesser crime of assault.” (Id. at p. 154.)
21
22 No such ambiguity exists here. Body camera images show that officers
23 approached [Petitioner] and spoke to him calmly and respectfully. After a brief
24 discussion, McAlpine took appellant’s wrist. He responded by fighting McAlpine
25 and head butting Bracken, yet suffered no injury despite his unexpected violence.
26 His case is not analogous to Brown, in which the defendant and the officers
27 described different versions of their encounter and a jury could find that Brown
28 was trying to protect himself from an unprovoked beating. No jury could make
19
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1 such a finding here. Camera images show that [Petitioner] violently resisted a
2 concededly lawful arrest made without excessive force.
3
4 (Lodg. No. 7 at 6-8.)
5
6 3. Analysis.
7
8 Even assuming that the constitutional protections stated in the Beck rule could be
9 applicable to Petitioner’s non-capital case, he has not shown that the trial court’s failure to
10 instruct the jury on the lesser-included offense of assault was a due process violation. First,
11 the absence of an assault instruction did not implicate the central concern of the Beck rule,
12 because the jury was not left with an “all-or nothing choice” between guilt and innocence.
13 Schad, 501 U.S. at 646-67; Turner, 281 F.3d at 887; Villafuerte, 111 F.3d 623. Instead, the
14 jury was given the option to find Petitioner guilty of the lesser offense of resisting, obstructing,
15 or delaying a peace officer. (2 RT 207; CT 92.) Thus, “the all-or-nothing situation found
16 intolerable in Beck was not present here.” Villafuerte, 111 F.3d at 623.
17
18 Second, given that the jury was not forced into an “all or nothing” choice, the trial court
19 had no constitutional duty to give instructions on other offenses sua sponte. “Beck did not
20 hold that a trial judge must give a lesser offense jury instruction sua sponte.” Carriger, 971
21 F.2d at 335 (emphasis in original); see also Bashor, 730 F.2d at 1240 (no due process violation
22 from the state trial court’s failure to give a lesser included offense instruction where the
23 defense failed to request it and objected to it). In particular, under the circumstances here,
24 where the jury had the option of convicting Petitioner of the lesser-included offense of
25 resisting, obstructing, or delaying a peace officer, the trial court had no constitutional duty to
26 give the jury, sua sponte, the additional option of assault. See Murtishaw v. Woodford, 255
27 F.3d 926, 955 (9th Cir. 2001) (“Contrary to [Petitioner’s] argument, Beck does not require trial
28 courts to provide sua sponte instructions on each theory that could justify a lesser included
20
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1 offense. Rather, it merely requires courts to provide instructions on the lesser included
2 offenses, thus preventing the State from forcing juries to make an ‘all or nothing’ choice[.]”
3
4 Third, the evidence did not warrant an instruction on the lesser-included offense of
5 assault. See Carriger, 971 F.2d at 336; Ceja, 97 F.3d at 1254; Solis, 219 F.3d at 929. This
6 question turns on whether a conviction on the lesser included offense “was a rational
7 alternative based on all the evidence in the case.” Vickers v. Ricketts, 798 F.2d 369, 371 (9th
8 Cir. 1986). Here, Petitioner argued that a conviction for assault could have been an alternative
9 based on evidence that he resisted the officers without actual knowledge that they were
10 performing their lawful duties. (Lodg. No. 4 at 36-37.) But despite the evidence that Petitioner
11 did not know the officers were executing an arrest warrant (1 RT 124, 137), a jury would have
12 had to conclude that Petitioner nonetheless actually knew the officers were performing their
13 duties by responding to a service call (Supp. CT 9, 31) and by checking his parole status (Supp.
14 CT 11, 32). Because Petitioner’s evidence that he lacked actual knowledge was minimal in
15 light of all the evidence in the case, a conviction for the lesser-included offense of assault was
16 not a rational alternative. See Clabourne v. Lewis, 64 F.3d 1373, 1380 (9th Cir. 1995) (no due
17 process violation from the failure to instruct on a lesser-included offense for which the
18 evidence was “minimal,” such that the jury could not rationally have found the petitioner guilty
19 of only that offense). Because federal habeas relief also is unwarranted on the merits, this
20 claim is denied.
21
22 III. Habeas Relief Is Not Warranted For Petitioner’s Claim Of Evidentiary Error
23 (Ground Three).
24
25 In Ground Three, Petitioner claims that the trial court committed prejudicial error in
26 admitting evidence concerning the existence of two restraining orders against Petitioner. (Id.
27 at 6.)
28 ///
21
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1 A. Legal Standard.
2
3 “A federal habeas court, of course, cannot review questions of state evidence law. On
4 federal habeas review, we may consider only whether the petitioner’s conviction violated
5 constitutional norms.” Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999) (citing Jammal
6 v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991)). A federal court’s “review of evidentiary
7 rulings is confined to ‘determining whether the admission of evidence rendered the trial so
8 fundamentally unfair as to violate due process.’” Larson v. Palmateer, 515 F.3d 1057, 1066
9 (9th Cir. 2008) (quoting Windham, 163 F.3d at 1103). “Only if there are no permissible
10 inferences the jury may draw from the evidence can its admission violate due process. Even
11 then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’” Jammal, 926
12 F.2d at 920 (quoting Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986)). “Only
13 under such circumstances can it be inferred that the jury must have used the evidence for an
14 improper purpose.” Jammal, 926 F.2d at 920.
15
16 B. Background.
17
18 The jury heard evidence referencing the fact that Petitioner was the subject of two
19 restraining orders. (1 RT 87-88; Supp. CT 28.) It was never proven, however, that the
20 restraining orders were connected to the person who had called 911 or to that person’s house.
21 Although this claim is reviewed de novo, the California Court of Appeal’s discussion of the
22 claim provides background:
23
24 Citing Evidence Code section 352, [Petitioner] moved to exclude evidence
25 that he was the subject of two restraining orders, which were unconnected to Hai
26 Duong and his house. The court denied his motion. The court has broad discretion
27 to determine the admissibility of evidence; we review its ruling for abuse of
28 discretion. (People v. Riggs (2008) 44 Cal.4th 248, 289-290.)
22
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1 The restraining orders were not admitted into evidence. They were
2 mentioned in the dispatch to patrol officers, to show what information they had
3 and how it affected their actions. A dispatch recording is nontestimonial evidence
4 describing police actions. (People v. Mitchell (2005) 131 Cal.App.4th 1210,
5 1224-1225.) When Bracken responded to the service call, she believed
6 [Petitioner] was violating restraining orders by trying to force his way into a home.
7
8 The court was within the bounds of reason in ruling that the evidence was
9 not unduly prejudicial. (Evid. Code, § 352; People v. Orloff (2016) 2 Cal.App.5th
10 947, 956-957.) The court instructed the jury three times that matters discussed in
11 the dispatch recording, including the restraining orders, “is not being admitted to
12 prove that what’s actually said here is true. It’s being admitted because that’s the
13 information the police had when they went to the scene to explain why they did
14 what they did” and what the police “thought was going on at the time they went
15 to the residence.” We must presume the jury followed the instructions. (People
16 v. Gonzales (2011) 51 Cal.4th 894, 940.)
17
18 The evidence against [Petitioner] was overwhelming. It is highly
19 improbable that a more favorable outcome would have been achieved if the
20 restraining orders had not been mentioned. Hai Duong called 911 seeking police
21 assistance because [Petitioner] was trying to break down his door. Three officers
22 went to the Duong residence and encountered [Petitioner]; he knew that someone
23 called them. His unprovoked violence was filmed from three angles and shown
24 to the jury.
25
26 (Lodg. No. 7 at 8-9.)
27 ///
28 ///
23
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1 C. Analysis.
2
3 Petitioner has not shown that the jury’s exposure to evidence referring to the restraining
4 orders violated his right to due process. First, the jury could have drawn permissible inferences
5 from that evidence. See Kipp v. Davis, 971 F.3d 939, 956 (9th Cir. 2020) (“[W]e have found
6 no due process violation where there were permissible inferences that the jury could draw from
7 the challenged evidence.”) (emphasis in original) (collecting cases). Although the evidence
8 of the restraining orders were not proven to be connected to the officers’ service call on the
9 night of the incident, the evidence nonetheless helped explain why the officers acted as they
10 did during their encounter with Petitioner. Indeed, Officer Bracken testified that she believed
11 the restraining orders did relate to the residence to which the officers were making the service
12 call. (1 RT 103.) Thus, evidence of the restraining orders was “relevant to a fact of
13 consequence” (i.e., the officers’ actions) and did not “lead only to impermissible inferences
14 about [Petitioner’s] character.” Windham, 163 F.3d at 1104 (quoting McKinney v. Rees, 993
15 F.2d 1378, 1381 (9th Cir. 1993)).
16
17 Second, the trial court instructed the jury about the permissible inferences that could be
18 drawn from the evidence of the restraining orders. “In such cases, ‘we must rely on the jury
19 to sort [the inferences] out in light of the court’s instructions.’” Boyde v. Brown, 404 F.3d
20 1159, 1172 (9th Cir. 2005) (alteration in original) (quoting Jammal, 926 F.2d at 920).
21 Specifically, the trial court instructed the jury that “this evidence is not being admitted to prove
22 that what’s actually said here is true,” but, rather, was being admitted “because that’s the
23 information the police had when they went to the scene to explain why they did what they
24 did.” (1 RT 85.) The trial court subsequently instructed the jury on two more occasions that
25 evidence of the restraining orders were not being offered for their truth, but to explain why the
26 officers acted as they did. (1 RT 90, 105.) Finally, the jury was instructed that “certain
27 evidence was admitted for a limited purpose” and that it could “consider that evidence only
28 for that purpose and for no other.” (2 RT 203; CT 85.) “Because we must presume that the
24
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1 jury followed its instructions to consider only the permissible inference [from the evidence],
2 . . . admission of evidence about the [restraining orders] did not violate due process.” Boyde,
3 404 F.3d at 1173.
4
5 Third, “the properly admitted evidence of [Petitioner’s] guilt was substantial.” Correll
6 v. Stewart, 137 F.3d 1404, 1417 (9th Cir. 1998). The properly admitted evidence showed that
7 the police were called to the residence because Petitioner was trying to break down the door.
8 (Supp. CT 22-23.) When the officers arrived, they told Petitioner that someone had called
9 them (Supp. CT 9, 31) and asked him about his parole status (Supp. CT 11, 32), establishing
10 that Petitioner actually knew they were engaged in the performance of their duties. Petitioner
11 head butted Officer Bracken without provocation. (1 RT 110, 147; Supp. CT 12, 13, 33, 34.)
12 While he was being transported to jail, Petitioner admitted that he had knocked Officer
13 Bracken in the head. (Supp. CT 5.) Given this evidence, “it was highly improbable that the
14 error, if any, ‘had substantial and injurious effect or influence in determining the jury’s
15 verdict[.]’” Correll, 137 F.3d at 1417 (quoting McKinney, 993 F.2d at 1380 (quoting Brecht
16 v. Abrahamson, 507 U.S. 619, 623 (1993))); see also Ghent v. Woodford, 279 F.3d 1121, 1127
17 (9th Cir. 2002) (“Several cases find the erroneous admission . . . of evidence harmless because
18 of the overwhelming evidence of the guilt of the defendant.”). Thus, this claim is denied.
19
20 IV. Habeas Relief Is Not Warranted For Petitioner’s Miranda Claim (Ground Four).
21
22 In Ground Four, Petitioner claims that the arresting officers violated Petitioner’s rights
23 under Miranda v. Arizona, 384 U.S. 436 (1966). (Dkt. No. 1 at 6.)
24
25 A. Legal Standard.
26
27 “Miranda ‘determined that the Fifth and Fourteenth Amendments’ prohibition against
28 compelled self-incrimination required that custodial interrogation be preceded by advice to the
25
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1 putative defendant that he has the right to remain silent and the right to the presence of an
2 attorney.’” Robertson v. Pichon, 849 F.3d 1173, 1183 (9th Cir. 2017) (quoting Edwards v.
3 Arizona, 451 U.S. 477, 481-82 (1981) (citing Miranda, 384 U.S. at 479))). But “the special
4 procedural safeguards outlined in Miranda are required not where a suspect is simply taken
5 into custody, but rather where a suspect is subject to interrogation. ‘Interrogation,’ as
6 conceptualized in the Miranda opinion, must reflect a measure of compulsion above and
7 beyond that inherent in custody itself.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). The
8 term “interrogation” means “express questioning or its functional equivalent.” Id. at 300-01.
9 “Absent such interrogation, there would have been no infringement of the right[.]” Edwards,
10 451 U.S. at 486.
11
12 B. Analysis.
13
14 During a hearing on the admissibility of the audiotape of Officer Bracken’s transport of
15 Petitioner to the jail, Officer Bracken testified that Petitioner was under arrest at that time but
16 she did not give Petitioner Miranda warnings. (1 RT 26.) Officer Bracken also testified that
17 she did not ask Petitioner any questions or attempt to elicit any incriminating responses from
18 him. (Id.) During the ride, Petitioner stated that he wanted to see the arrest warrant and that
19 “I kick . . . your head” and “I knock your head.” (Supp. Ct. 5, 7.) The trial court allowed the
20 audiotape of these statements into evidence because, among other things, the statements were
21 not the subject of a custodial interrogation. (1 RT 46.)
22
23 As an initial matter, Petitioner’s Miranda claim is conclusory. “It is well-settled that
24 ‘[c]onclusory allegations which are not supported by a statement of specific facts do not
25 warrant habeas relief.’” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (alteration in
26 original) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)). Petitioner’s claim is “argued
27 in a single page, without reference to the record or any document.” Jones, 66 F.3d at 204
28
26
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1 (internal quotation marks omitted). Because Petitioner’s “conclusory allegations did not meet
2 the specificity requirement,” his claim may be denied on this ground. Id. at 205.
3
4 Even if Petitioner’s claim could be construed as challenging, under Miranda, the
5 admission of his audiotaped statements to Officer Bracken in the police car (Dkt. No. 1 at 6),
6 that claim is meritless. Petitioner’s statements, though made while he was in custody, were
7 volunteered rather than the product of an interrogation. See Innis, 446 U.S. at 302 (Miranda
8 did not apply to defendant’s volunteered statement made in a police car while under arrest);
9 Cox v. Del Papa, 542 F.3d 669, 675 (9th Cir. 2008) (Miranda did not apply to petitioner’s
10 spontaneous statements to police detectives during a ride from Arizona to Nevada; “Miranda
11 applies only ‘where a suspect in custody is subjected to interrogation.’”) (emphasis in original)
12 (quoting Innis, 446 U.S. at 300). Petitioner has never alleged that Officer Bracken subjected
13 him either to “express questioning or its functional equivalent.” Innis, 446 U.S. at 300-01.
14 Thus, this claim is denied.
15
16 V. Habeas Relief Is Not Warranted For Petitioner’s Due Process And Brady Claim
17 (Ground Five).
18
19 In Ground Five, Petitioner claims that there were violations of due process and Brady v.
20 Maryland, 373 U.S. 83 (1963), because the video evidence was inadequate, inaudible, and cut
21 off. (Dkt. No. 1 at 6.)
22
23 A. Legal Standard.
24
25 “Under Brady, prosecutors are responsible for disclosing ‘evidence that is both
26 favorable to the accused and material either to guilt or to punishment.’” Browning v. Baker,
27 875 F.3d 444, 459 (9th Cir. 2017) (quoting United States v. Bagley, 473 U.S. 667, 674 (1985)).
28 “To establish a Brady violation, [Petitioner] must show: ‘(1) the evidence at issue is favorable
27
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1 to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence
2 was suppressed by the government, regardless of whether the suppression was willful or
3 inadvertent; and (3) the evidence is material to the guilt or innocence of the defendant.’”
4 Sanders v. Cullen, 873 F.3d 778, 802 (9th Cir. 2017) (quoting United States v. Sedaghaty, 728
5 F.3d 885, 899 (9th Cir. 2013)).
6
7 B. Analysis.
8
9 Each of the three officers involved in arresting Petitioner took body camera video of the
10 incident. (1 RT 109, 141, 173.) However, Officer Bracken testified that she “muted the sound
11 on my body-worn camera once we had placed [Petitioner] inside the patrol unit to have a
12 conversation with the other officers that were on the scene.” (1 RT 117.) Officer Bracken
13 further testified that the video continued to record while the sound was turned off and that she
14 “turned the sound back on as I entered my patrol vehicle to transport [Petitioner] to County
15 Jail.” (Id.)
16
17 As an initial matter, Petitioner’s Brady claim is conclusory. Petitioner’s claim is “argued
18 in a single page, without reference to the record or any document.” Jones, 66 F.3d at 204
19 (internal quotation marks omitted). Because Petitioner’s “conclusory allegations did not meet
20 the specificity requirement,” his claim may be denied on this ground. Id. at 205.
21
22 Even if Petitioner’s claim could be construed as challenging, under Brady, the
23 “inadequate,” “inaudible,” or “cut off” portions of the video evidence (Dkt. No. 1 at 6), that
24 claim is meritless. Petitioner has failed to allege what was favorable and material from the
25 video evidence. Petitioner’s claim is speculative. See Runningeagle v. Ryan, 686 F.3d 758,
26 769-70 (9th Cir. 2012) (petitioner most do more than “merely speculate” that evidence was
27 favorable and material in order to state a Brady claim) (collecting cases including Wood v.
28 Bartholomew, 516 U.S. 1, 6, 8 (1995) (“[W]here, as in this case, a federal appellate court . . .
28
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1 || grants habeas relief on the basis of little more than speculation with slight support, the proper
2 || delicate balance between the federal courts and the States is upset to a degree that requires
3 || correction.”’)); see also Martinez v. Ryan, 926 F.3d 1215, 1228-29 (9th Cir. 2019) (“wholly
4 || speculative” contentions are insufficient to establish a Brady violation); Ayala v. Chappell,
5 || 829 F.3d 1081, 1110 (9th Cir. 2016) (“sparse allegations” are insufficient to establish a Brady
6 || violation). Moreover, Petitioner has failed to allege how any evidence was suppressed, in that
7 || he has failed to allege how the State impeded him from ascertaining video evidence that was
8 || supposedly favorable and material. See United States y. Aichele, 941 F.2d 761, 764 (9th Cir.
9 || 1991) (“Where, as here, a defendant has enough information to be able to ascertain the
10 || supposed Brady material on his own, there is no suppression by the government.”); see also
11 || United States v. Bond, 552 F.3d 1092, 1096 (9th Cir. 2009) (stating that the above passage
12 || from Aichele is binding precedent “at least in cases like Aichele where there was no
13 || government action to throw the defendant off the path of the alleged Brady information”).
14 || Thus, this claim is denied.
15
16 ORDER
17
18 For all of the foregoing reasons, IT IS ORDERED that the Petition is denied and that
19 || Judgment shall be entered dismissing this action with prejudice.
20
21 |} DATED: July 22, 2022
22 : ZL,
3 KAREN L. STEVENSON
24 UNITED STATES MAGISTRATE JUDGE
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