Petition for Writ of Certiorari — William French Anderson, Petitioner v. Dean Borders, Warden

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------WILLIAM FRENCH ANDERSON,

Petitioner,

v.

DEAN BORDERS, WARDEN,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------DOUGLAS W. OTTO, ESQ.

Counsel of Record

444 West Ocean Boulevard, Suite 940

Long Beach, California 90802

Phone: (562) 491-1191

Email: doug@dwottolaw.com

DENNIS A. FISCHER, ESQ.

JOHN M. BISHOP, ESQ.

825 Wilshire Boulevard, #717

Santa Monica, California 90401

Phone: (310) 451-4815

Email: dennisafischer@gmail.com

Counsel for Petitioner

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether this court should resolve the longstanding conflict among the Circuits as to whether findings

by a state court without affording a habeas petitioner

an evidentiary hearing result in an “unreasonable determination of the facts” not entitled to deference by a

federal court under 28 U.S.C. § 2254(d)(2).

ii

LIST OF PARTIES

All parties are named in the case caption. Dean

Borders is substituted for Tim Perez as Warden, California Institute for Men, Chino, California. Fed.R.Civ.P.

25(d).

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

i

LIST OF PARTIES .................................................

ii

PETITION FOR A WRIT OF CERTIORARI .........

1

OPINIONS BELOW ...............................................

1

JURISDICTION .....................................................

2

RELEVANT CONSTITUTIONAL PROVISIONS ....

2

STATEMENT OF THE CASE ................................

2

1. Background ..................................................

3

2.

Underlying Facts..........................................

5

3.

Post-Appeal Decisions Below.......................

7

A. California Habeas Corpus .....................

7

B. Federal Habeas Corpus .........................

10

REASONS FOR GRANTING THE PETITION .....

11

CONCLUSION .......................................................

18

TABLE OF APPENDICES

Order (Denying Certificate of Appealability),

U.S. Court of Appeals for the Ninth Circuit,

William French Anderson v. Tim Perez, Warden,

Case No. 17-55130, filed October 19, 2017 ...... App. 1

Order (Denying Certificate of Appealability),

U.S. District Court, Central District of California, William French Anderson v. Tim Perez,

Warden, Case No. CV 14-09463 R (AFM), filed

January 24, 2017 .............................................. App. 2

iv

TABLE OF CONTENTS – Continued

Page

William French Anderson v. Tim Perez, Warden,

U.S. District Court, Central District of California, Case No. CV 14-09463 R (AFM), signed

January 24, 2017, Order Accepting Findings

and Recommendations of U.S. Magistrate

Judge, 2017 WL 379400 ................................... App. 4

William French Anderson v. Tim Perez, Warden,

U.S. District Court, Central District of California, Case No. CV 14-09463 R (AFM), signed

November 8, 2016, Report and Recommendation of U.S. Magistrate Judge, 2016 WL

8078147 ............................................................ App. 6

In re William French Anderson, on Habeas

Corpus, California Court of Appeal, Second

District, Division 3, Case No. B232746, filed

September 5, 2013, Unpublished Opinion, 2013

WL 4759680 ................................................. App. 115

Order (Denying Reconsideration of the Certificate of Appealability), U.S. Court of Appeals

for the Ninth Circuit, William French Anderson v. Tim Perez, Warden, Case No. 17-55130,

filed November 28, 2017 .............................. App. 156

v

TABLE OF AUTHORITIES

Page

CASES

Bader v. Warden, New Hampshire State Prison,

488 F.3d 483 (1st Cir. 2007) ....................................15

Bryan v. Mullin, 335 F.3d 1207 (10th Cir. 2003)........16

California v. Green, 399 U.S. 149 (1970) ....................13

Fahy v. Horn, 516 F.3d 169 (3d Cir. 2008) ..................16

Hurles v. Ryan, 752 F.3d 768 (9th Cir. 2014) ....... 12, 16

Lambert v. Blackwell, 387 F.3d 210 (3d Cir. 2004) ....... 16

Landers v. Warden, Atty. Gen. of Alabama, 776

F.3d 1288 (11th Cir. 2015) .......................................16

Marshall v. Lonberger, 459 U.S. 422 (1983) ...............15

Mayes v. Gibson, 210 F.3d 1284 (10th Cir. 2000) .......16

Miller v. Champion, 161 F.3d 1249 (10th Cir.

1998) ........................................................................16

Miller-El v. Cockrell, 537 U.S. 322 (2003)......... 5, 11, 17

People v. Anderson, 208 Cal.App.4th 851, 144

Cal.Rptr.3d 606 (2012) ..............................................7

Strickland v. Washington, 466 U.S. 668 (1984) ............7

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) .........16

Teti v. Bender, 507 F.3d 50 (1st Cir. 2007)..................15

Tharpe v. Sellers, 583 U.S. ___, 138 S.Ct. 545

(2018) .......................................................................17

Tomlin v. Myers, 30 F.3d 1235 (9th Cir. 1994) ...........14

United States v. Oregon Medical Society, 343

U.S. 326 (1952) ........................................................15

vi

TABLE OF AUTHORITIES – Continued

Page

Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001)...... 15, 16

Weaver v. Palmateer, 455 F.3d 958 (9th Cir. 2006)........ 14

Williams v. Taylor, 529 U.S. 420 (2000)......................17

CONSTITUTIONS

United States Constitution

Sixth Amendment ............................................. 2, 3, 4, 7

Fourteenth Amendment ...............................................2

STATUTES

28 U.S.C. § 1254(1) ........................................................2

28 U.S.C. § 2253(c)(2) ..................................................17

28 U.S.C. § 2254 .................................................. passim

28 U.S.C. § 2254(d) .......................................... 10, 11, 15

28 U.S.C. § 2254(d)(2) ................................. 3, 11, 12, 16

28 U.S.C. § 2254(e)(2) ..................................................17

Antiterrorism and Effective Death Penalty Act

of 1996 ............................................................. passim

California Penal Code § 288(a).....................................7

California Penal Code § 288.5(a)..................................7

Sixth Amendment to the U.S. Constitution ..... 2, 3, 4, 7

RULES

Federal Rules of Civil Procedure, Rule 25(d).............. ii

Supreme Court Rule 16.1 ...........................................18

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner William French Anderson respectfully

petitions for a writ of certiorari to the United States

Court of Appeals for the Ninth Circuit to review its

judgment against him in William French Anderson

v. Tim Perez (17-55130). That judgment denied petitioner’s motion for reconsideration of the Ninth Circuit’s denial of a certificate of appealability.

------------------------------------------------------------------

OPINIONS BELOW

The opinions in this case are not published. The

district court’s ORDER ACCEPTING FINDINGS AND

RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE in Anderson v. Perez (CV 14-09463

R (AFM)) is available at 2017 WL 379400. App. 4-5. The

REPORT AND RECOMMENDATION OF UNITED

STATES MAGISTRATE JUDGE is found at 2016 WL

8078147. App. 6-114. The opinion of the California

Court of Appeal in In re Anderson (B232746) is available at 2013 WL 4759680. App. 115-155.

Also appended are the following orders: Order of

the Ninth Circuit Court of Appeals denying a certificate of appealability, App. 1; the district court’s order

denying a certificate of appealability, App. 2-3; and the

Ninth Circuit’s order denying reconsideration of the

certificate of appealability, App. 156.

------------------------------------------------------------------

2

JURISDICTION

The district court’s ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED

STATES MAGISTRATE JUDGE, dismissing the action with prejudice, was filed January 24, 2017. The

order of the district court denying a certificate of appealability was filed that same date. The order by the

Ninth Circuit Court of Appeals denying petitioner’s request for a certificate of appealability was filed October

19, 2017, and the Ninth Circuit’s order denying reconsideration of that request was filed November 28, 2017.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

------------------------------------------------------------------

RELEVANT CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the United States Constitution provides in relevant part: “In all criminal

prosecutions, the accused shall enjoy the right . . . to

have the Assistance of Counsel for his defence.”

The Fourteenth Amendment to the United States

Constitution provides in relevant part: “ . . . [N]or shall

any State deprive any person of life, liberty, or property,

without due process of law. . . . ”

------------------------------------------------------------------

STATEMENT OF THE CASE

In this case governed by the Antiterrorism and

Effective Death Penalty Act of 1996, 28 U.S.C. § 2254

(AEDPA), the United States Court of Appeals for the

3

Ninth Circuit denied a certificate of appealability

(COA) after the district court rejected petitioner’s habeas corpus claim based on ineffective assistance of

counsel. The district court deferred to findings of fact

made by the California Court of Appeal, even though

that court had denied petitioner an evidentiary hearing to fully and fairly present his claim. Petitioner

maintained that the state court made an unreasonable

determination of the facts, 28 U.S.C. § 2254(d)(2), because its findings were based on judicial conjecture

without the benefit of an evidentiary hearing to resolve

the complex scientific issues presented in this case.

1. Background

The centerpiece of the prosecution’s case against

petitioner William French Anderson was a questioned

audio recording of a pretextual meeting arranged

by law enforcement between petitioner and a young

woman whom he subsequently was charged with sexually molesting. When petitioner first read a transcript

of the recording the prosecution intended to introduce

against him, he reported to his defense attorney that

it was incomplete and did not accurately reflect the

actual conversation. The recording was played for the

jury nonetheless, and argued as demonstrating petitioner’s guilt.

While his convictions were pending on appeal, petitioner also filed a petition for writ of habeas corpus

in the California Court of Appeal. Petitioner’s claim,

based on the Sixth Amendment, maintained his trial

4

attorney rendered ineffective assistance by failing to

fully investigate evidence of mishandling or tampering

with the recording. Petitioner supported this claim

with declarations by several renowned experts who, after individually conducting exacting examinations of

the recording, each determined that during its transfer

from the digital recorder, the recording had been substantially altered from the original. A brief filed by

amicus curiae experts attested to the inherent difficulties in authenticating digital recordings such as the

one at issue. Petitioner asked the state court to afford

him an evidentiary hearing and consider the scientific

evidence substantiating his Sixth Amendment claim.1

California opposed petitioner’s claim, but presented no expert evaluations of the recording to dispute the defense experts’ findings; the prosecution

offered only declarations by the detectives involved,

who denied any misfeasance in handling the recording

while transferring it from the digital recorder. In refusing petitioner’s insistent requests for an evidentiary

hearing to resolve the manifest factual conflicts between the state’s and petitioner’s positions, the California Court of Appeal simply found petitioner’s

showing “not credible” and on that basis rejected his

ineffective-counsel claim.

In its denial of petitioner’s timely petition for writ

of habeas corpus, the district court echoed and deferred

1

Additional claims were raised in petitioner’s state habeas

corpus petition, and by his pro se habeas petition in federal district court, that are not at issue in this petition.

5

to the California Court of Appeal’s conclusion. Notwithstanding the state court’s refusal to conduct an

evidentiary hearing, the district court held that “petitioner’s claim of ineffective assistance of counsel did

not result in a decision that was based on unreasonable determination of the facts in light of the evidence

presented in the state court habeas proceeding.” App.

39. In short, “the Court is unable to overturn the California Court of Appeal’s adverse credibility determination.” Id.

The Circuits are divided over whether state court

findings unsupported by an evidentiary hearing are

entitled to AEDPA deference. Although it therefore is

clear that “jurists of reason could disagree” with the

district court’s disposition of petitioner’s constitutional

claim, Miller-El v. Cockrell, 537 U.S. 322, 338 (2003),

the court declined to issue a COA, as did the Ninth Circuit Court of Appeals.

2. Underlying Facts

As of June 2004, petitioner, William French Anderson, was a distinguished professor at the University of

Southern California, Keck School of Medicine, a renowned leader in the developing field of gene therapy,

and a highly-respected figure in American medicine.

He had been married for more than 40 years to Dr.

Kathryn Anderson, Chief of Surgery at Children’s Hospital in Los Angeles. The Andersons did not have children of their own, but over the years petitioner acted

as mentor to aspiring young people, two of whom

6

testified at his trial regarding the profoundly positive

effect that his mentoring had on their lives.

However, in June 2004, another of petitioner’s

mentees, “Y.,” went to the authorities with a different

tale. Y., then 17 years old, under the guidance of her

mother who was formerly a director of one of petitioner’s medical research laboratories, and also assisted by her mother’s attorney from a large Los

Angeles law firm, told the Los Angeles County Sheriff

that petitioner had molested her from 1997 through

2002. No forensic or other independent evidence corroborated these allegations. Testifying before the jury,

Y. related petitioner’s course of conduct toward her

largely in general terms rather than detailing specific

sexual acts.

The strongest evidence supporting the prosecution’s

case was a surreptitiously-recorded conversation between petitioner and Y. at the South Pasadena Library

on July 1, 2004, arranged by sheriff ’s detectives using

a digital recording device they supplied to Y. Although

the prosecutor repeatedly characterized what petitioner said to Y. during their meeting as a confession,

petitioner – testifying in his own defense – presented

a sharply different account. Petitioner explained that

Y.’s unanticipated confrontational manner at first terrified him, then made him feel she was manipulating

him, perhaps as a prelude to an extortion demand. Her

accusations caused him to say anything that would

placate her for the moment and bring the encounter

swiftly to an end. Once Y. had left, he stayed near the

library for several minutes trying to comprehend what

7

had happened. Several days after this meeting, petitioner was interviewed by detectives and he was arrested in late July.

The jury found petitioner guilty of continuous sexual abuse of a child under the age of 14 years, Cal. Pen.

Code § 288.5(a), and three counts of committing lewd

acts on a child under the age of 14 years, id., § 288(a).

On direct appeal, the California Court of Appeal affirmed his convictions and sentence to 14 years imprisonment. People v. Anderson, 208 Cal.App.4th 851, 144

Cal.Rptr.3d 606 (2012). The California Supreme Court

denied review, and this Court denied a petition for writ

of certiorari on April 1, 2013. Anderson v. California,

No. 12-1001.

3. Post-Appeal Decisions Below

A. California Habeas Corpus

Along with his direct appeal, petitioner sought

habeas corpus relief in the California Court of Appeal

on the ground that his trial attorney, Barry Tarlow, rendered ineffective assistance under the Sixth Amendment

by failing to fully investigate petitioner’s contention

that the all-important recording of the library conversation had been altered or become corrupted. See

Strickland v. Washington, 466 U.S. 668, 694 (1984). As

recited in the Court of Appeal’s subsequent decision,

after petitioner read the transcript Tarlow received

from the prosecution, petitioner informed Tarlow it

was inaccurate and incomplete, and did not fairly reflect his entire conversation with Y. App. 119.

8

As petitioner explained to Tarlow, the transcript

contained a time disparity of two or three minutes between the 12 minutes of recorded conversation and the

lead detective’s case log indicating the meeting consumed about 14 minutes. Petitioner emphasized that

two or three minutes of conversation were missing

from the beginning of the recording. In longhand, he

wrote out his best recollection of the missing initial

portion of the conversation: Y. accused petitioner of molesting her; he denied it; and Y. then asserted, “[b]ut

you did ruin my life,” referring to petitioner’s relentlessly pressing her to excel in sports and academics.

Petitioner faxed his description of the omitted conversation to Tarlow. Prior to hearing the actual recorded

conversation, petitioner had remembered the conversation as being much briefer than it turned out to be,

only about three minutes long. App. 119-125.

Tarlow retained an audio expert, John Russ, to examine the recording. Following his examination, Russ

explained that detection of digital editing is technically

difficult, and his efforts had not revealed evidence of

alteration. But that did not end the inquiry as far as

Russ was concerned; he suggested counsel pursue supplemental types of analysis better suited to detecting

digital editing, by “an expert with more specialized

knowledge in digital recording issues.” App. 126-133,

146, 148-149. Tarlow, however, failed to investigate

Russ’s suggestion, leaving unchallenged the accuracy

and completeness of the recording prepared by the

prosecution.

9

The California Court of Appeal acknowledged petitioner had submitted in support of his claim the declarations of four experts who examined the recording

after petitioner’s trial. Yi Xu, Ph.D., an associate professor at University College London who specialized in

“speech prosody,” discovered anomalies in the recording incompatible with the limitations of human vocalization. Curtis Crowe, an expert in analysis of digital

recordings, found further anomalies and electronic

spikes, and noted recorded footfalls that had been

made on a hard concrete surface, not the grass surface

where the conversation had occurred according to the

detectives present nearby. Crowe also observed an

aberrational “58.3 hz signal” that could not be reconciled with the environment where the conversation

occurred. Craig Schick, an electronics engineer, also

noted the 58.3 hz signal, and concluded it indicated the

tape had been “edited” in a laboratory or office. App.

133-136. Schick “asserted with certainty the recording

had been ‘adulterated.’ ” Similarly, Crowe explained

that the anomalies he observed “provide a stronger basis for inference that the recording has been altered.”

Still another expert, Catalin Grigoras, Ph.D., found

three “counter” anomalies indicating audio data was

missing from the recording. Id. at 135-137.

The State’s response did not counter with experts

of its own, but instead submitted declarations by the detectives involved with the recording and its subsequent

handling. The detectives denied the data on the recording had been mishandled or tampered with, but did not

claim expertise in the areas addressed by petitioner’s

10

experts. App. 137-140. Refusing to grant an evidentiary hearing to resolve the factual conflicts between

the State and petitioner, id. at 143, the California

Court of Appeal found petitioner’s factual showing not

credible and denied the petition; the California Supreme Court summarily denied his petition for review.

B. Federal Habeas Corpus

Following conclusion of the California proceedings, petitioner filed a timely pro se petition for writ of

habeas corpus in the United States District Court for

the Central District of California, once again requesting an evidentiary hearing. The district court, again

without the benefit of an evidentiary hearing, rejected

petitioner’s contention that “[c]ounsel was ineffective

for failing to investigate an alteration to the recording

of the library confrontation.” App. 10. Reasoning that

it was required by 28 U.S.C. § 2254(d) to afford “a presumption of correctness” to the California court’s credibility determination, the district court found itself

“unable to overturn the California Court of Appeal’s

adverse credibility determination.” App. 38-39. Thus,

the district court concluded the California court’s determination “did not result in a decision that was

based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding.” Id. at 39.

The district court declined to issue a COA, as did

the Ninth Circuit Court of Appeals. App. 1-3.

------------------------------------------------------------------

11

REASONS FOR GRANTING THE PETITION

The District Court’s rejection of petitioner’s ineffective assistance of counsel claim depended entirely

on its blind acceptance of the California court’s determination that the factual basis of his claim was not

credible. Yet, there remained a substantial factual dispute whose resolution on “credibility” grounds necessitated an evidentiary hearing at the state court level.

Whether such a hearing is required before the federal

courts may defer to state court findings in applying

28 U.S.C. § 2254(d)(2) has triggered a three-way split

among the Circuits.

Section 2254(d) authorizes a federal court to grant

a petition for writ of habeas corpus on a claim “adjudicated on the merits in State court proceedings” when

“the adjudication of the claim . . . (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” A fair reading of that language suggests an evidentiary hearing is a necessity to

adjudicate the claim. Yet, the district court deferred

entirely to the California Court of Appeal’s findings

made without any hearing at all. Then, apparently in

the belief that no “jurists of reason could disagree”

with the district court’s view, the Ninth Circuit refused

to issue a COA. See Miller-El v. Cockrell, 537 U.S. 322,

327 (2003). This approach, perhaps explained by the

lack of guidance from this Court, is at odds with the

importance Ninth Circuit cases attach to evidentiary

12

hearings. See Hurles v. Ryan, 752 F.3d 768, 790-791

(9th Cir. 2014).

The district court had no warrant to defer to the

State court’s adverse credibility determination in

these circumstances when petitioner was not afforded

a full and fair opportunity to establish that diligent investigation by his trial counsel would have revealed

persuasive evidence undermining the recording’s integrity. This proposition should have a broad reach, for

28 U.S.C. § 2254 seemingly applies to adjudication “on

the merits of any claim” subject to (d)(2). Simply put,

petitioner presented declarations of several experts

who had examined the recording and whose conclusions supported his claim. Yet, the State presented no

experts to rebut the opinions of those proffered by the

defense – content merely to submit declarations by the

detectives involved with the recording. But in denying

improper handling or tampering with the digital recording, the detectives posed the issue of their own

credibility whose resolution required more than simply

dismissing petitioner’s claim as being (as the State

court variously phrased it) “not credible” or “incredible.” Despite the likelihood that at an evidentiary hearing the State’s inability to undermine the undisputed

views of petitioner’s experts would have resulted in a

favorable ruling, the California Court of Appeal refused to refer the matter for an evidentiary hearing, on

the ground that would constitute “an idle act.” App.

120-121, 140-143.

Construing the “adjudication on the merits” provision as incorporating an evidentiary hearing requirement

13

is consistent with several principles. It is only at a

hearing, one where both petitioner’s experts and the

State’s detectives (and possibly other witnesses) testified, that the conflicting facts on which their conclusions

depended would be subjected to cross-examination –

“the ‘greatest legal engine ever invented for the discovery of truth,’ ” California v. Green, 399 U.S. 149, 158

(1970) – by the opposing sides. Moreover, experts attempting to authenticate digital information such as

was recorded on the device law enforcement utilized

here, faced considerable difficulties as discussed in

the AMENDED APPLICATION TO FILE AMICUS

BRIEF REGARDING DIGITAL AUTHENTICATION,

filed in the California Court of Appeal by a team of experts in this field led by the renowned George L. Paul.

The concerns addressed by the amicus brief suggest

the problem presented to the California habeas court

was not susceptible to resolution through declarations,

but required thorough and exacting inquiry through

an evidentiary hearing.2

An additional factor the California Court of Appeal

thought important, and stressed in finding petitioner’s

2

One area of concern is the Los Angeles County Sheriff ’s

determination, as a matter of “internal policy,” not to follow the

procedure recommended by the recording device’s manufacturer

for the transfer of the digitally recorded data. App. 133. Amicus

curiae described the manufacturer’s recommended procedure

as “technologically simple, and requires no third party involvement. It does require that the individual or entity follow a clear

protocol that minimizes the possibility of alteration.” AMENDED

APPLICATION TO FILE AMICUS BRIEF REGARDING DIGITAL AUTHENTICATION, 12-13 (n. omitted).

14

claim not credible, was his explanation for not questioning the accuracy of the recording in his trial testimony. The court declared: “[Petitioner’s] claim that, on

advice of counsel, he failed to mention substantial unrecorded conversation that supported his position is

not worthy of belief.” App. 142 (fn. omitted). Yet, petitioner’s “claim” was made solely through the declaration of his trial counsel, Mr. Tarlow, who recalled

advising petitioner that for him to challenge the accuracy or completeness of the recording in his testimony

would undermine his credibility, in the absence of evidence corroborating such a challenge. Cal. H.C. Pet.,

Exh. B., 5-7. This contested basis for the Court of Appeal’s adverse credibility determination was itself suspect, without actual testimony. It also should have

been resolved by means of an evidentiary hearing, not

dismissed by judicial fiat.

The district court’s treatment of this problem betrays a fundamental misunderstanding of the principle underlying AEDPA deference. The court relied on

Ninth Circuit decisions indicating that “[a] state court’s

credibility determination must be afforded a presumption of correctness,” but excised such pronouncements

from their context. The cited decisions addressed state

court findings as to witnesses’ credibility based on their

testimony at an evidentiary hearing (or other post-trial

proceedings) where live testimony was presented. App.

37 (citing Tomlin v. Myers, 30 F.3d 1235, 1242 (9th Cir.

1994), and Weaver v. Palmateer, 455 F.3d 958, 964 (9th

Cir. 2006)).

15

The district court also cited, App. 37-38, but misapprehended, this Court’s decision in Marshall v. Lonberger, 459 U.S. 422 (1983), which pronounced: “28

U.S.C. § 2254(d) gives federal habeas courts no license

to redetermine credibility of witnesses whose demeanor

has been observed by the state trial court, but not by

them.” Id. at 434 (emphasis added). The Lonberger

court explained its underlying rationale by quoting an

earlier decision: “ ‘ “Face to face with living witnesses

the original trier of the facts holds a position of advantage from which appellate judges are excluded. In

doubtful cases the exercise of his power of observation

often proves the most accurate method of ascertaining

the truth. . . . How can we say the judge is wrong? We

never saw the witnesses. . . .” ’ ” Id. (quoting United

States v. Oregon Medical Society, 343 U.S. 326, 339

(1952)). This reasoning does not apply when the state

court itself “never saw the witnesses.”

The district court’s reliance on inapposite authority reflects the absence thus far of a clearer rule in this

Court’s decisions. That such guidance is sorely needed

is evident from the Circuit split on this issue. On

the one hand, the Fifth Circuit position, as set out in

Valdez v. Cockrell, 274 F.3d 941, 948 (5th Cir. 2001),

concludes that “a full and fair hearing is not a prerequisite to the application of AEDPA’s deferential

framework.” The First Circuit also adheres to that understanding of section 2254(d). See Bader v. Warden,

New Hampshire State Prison, 488 F.3d 483, 486, n. 5

(1st Cir. 2007); accord Teti v. Bender, 507 F.3d 50, 61

(1st Cir. 2007) (noting the “debate” among the Circuits

16

on this matter). The Valdez court’s reading of 28 U.S.C.

§ 2254(d)(2) is also followed by the Eleventh Circuit.

See Landers v. Warden, Atty. Gen. of Ala., 776 F.3d

1288, 1298 (11th Cir. 2015).

On the other hand, at least two Circuits take the

opposite view. The Tenth Circuit declined to follow Valdez in Bryan v. Mullin, 335 F.3d 1207, 1216 (10th Cir.

2003) (en banc), quoting its earlier decision in Miller v.

Champion, 161 F.3d 1249, 1253 (10th Cir. 1998): “ ‘ . . .

[w]e note that because the state court did not hold any

evidentiary hearing, we are in the same position to

evaluate the factual record as it was. Accordingly, to

the extent the state court’s dismissal of [petitioner’s ineffective assistance claim] was based on its own factual

findings, we need not afford those findings any deference’ ” (brackets in Bryan). In accord is Mayes v. Gibson, 210 F.3d 1284, 1289 (10th Cir. 2000).

Somewhat ironically given the district court’s reasoning in petitioner’s case, the Ninth Circuit is among

those that reject the Valdez approach. In Hurles v.

Ryan, supra, 752 F.3d at 790-791, the Ninth Circuit

recognized: “ ‘If, for example, a state court makes evidentiary findings without holding a hearing and giving

petitioner an opportunity to present evidence, such

findings clearly result in an unreasonable determination of the facts’ ” (quoting Taylor v. Maddox, 366 F.3d

992, 1001 (9th Cir. 2004)). The Third Circuit appears to

take an intermediate position. See Fahy v. Horn, 516

F.3d 169, 183 & n. 15 (3d Cir. 2008); Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004) (noting that “a

17

comprehensive interpretation of AEDPA’s factual review

scheme has yet to emerge from the federal courts”).3

The Court of Appeals erred by denying a COA in

petitioner’s case because “[a]t the very least, jurists of

reason could debate,” Tharpe v. Sellers, 583 U.S. ___,

138 S.Ct. 545, 546 (2018) (per curiam), whether the district court erred by deferring to the State court’s findings made without an evidentiary hearing. That this is

so is evident simply because judges in different Circuits continue to debate the question. To obtain a COA,

a petitioner need not “prove, before the issuance of a

COA, that some jurists would grant the petition for habeas corpus.” Miller-El v. Cockrell, supra, 537 U.S. at

338. Instead, a petitioner “need only demonstrate ‘a

substantial showing of the denial of a constitutional

right.’ 28 U.S.C. § 2253(c)(2).” Id. at 327. That standard

is satisfied, Miller-El explained, “by demonstrating

that jurists of reason could disagree with the district

court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.”

Id. Whether the district court erred in resolving the

contested factual issues in this case without the benefit

of an evidentiary hearing, at any level, is an issue on

which jurists of reason could, and do, continually disagree. Petitioner’s case affords the Court a perfect

3

Petitioner’s failure to develop the factual basis for his claim

in the State court proceedings was not due to any lack of diligence

on his part, 28 U.S.C. § 2254(e)(2), for he sought “an evidentiary

hearing in state court in the manner prescribed by state law.” Williams v. Taylor, 529 U.S. 420, 437 (2000).

18

vehicle with which to resolve the longstanding conflict

and differing views of the Circuits and pronounce a

clear rule on this important question under AEDPA.

Alternatively, this Court may order a summary

disposition on the merits under Supreme Court Rule 16.1,

granting certiorari, vacating the Ninth Circuit’s judgment and remanding this matter with instructions to

issue a COA, thereby allowing the Court of Appeals to

address the underlying issue in the first instance.

------------------------------------------------------------------

CONCLUSION

For the foregoing reasons, the petition for certiorari should be granted.

Respectfully submitted,

DOUGLAS W. OTTO, ESQ.

Counsel of Record

444 West Ocean Boulevard, Suite 940

Long Beach, California 90802

Phone: (562) 491-1191

Email: doug@dwottolaw.com

DENNIS A. FISCHER, ESQ.

JOHN M. BISHOP, ESQ.

825 Wilshire Boulevard, #717

Santa Monica, California 90401

Phone: (310) 451-4815

Email: dennisafischer@gmail.com

February 26, 2018