Petition for Writ of Certiorari — Michael Moran, Petitioner v. California

No. ________

In the

Supreme Court of the United States

_____________________

MICHAEL MORAN,

Petitioner,

v.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

Robert Joseph. Beles

Paul Gilruth McCarthy

1 Kaiser Plaza, Suite 2300

Oakland, California 94612-3642

Tel. No. (510) 836-0100

Fax No. (510) 832-3690

California Bar no. 41993

California Bar no. 139497

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

Could a jurist of reason find that the state court unreasonably

applied clearly established federal law in determining that

admission of petitioner's in-custody statements in the absence

of Miranda advisements did not deprive petitioner of due

process of law under the Fifth and Fourteenth Amendments?

Could a jurist of reason find that the state court unreasonably

applied clearly established federal law in determining that the

trial court's exclusion of evidence did not violate petitioner's

right to present a defense under the Fifth, Sixth and

Fourteenth Amendments?

Could a jurist of reason find that the state court unreasonably

applied clearly established federal law in determining that

prosecutorial misconduct in voir dire and closing argument did

not violate petitioner's right to a fair trial and right to counsel

under the Fifth, Sixth and Fourteenth Amendments?

Could a jurist of reason find that even if none of these errors

were prejudicial in themselves, the cumulative effect of these

error deprived petitioner of a fair trial under the Fourteenth

Amendment?

i

LIST OF ALL PARTIES

Petitioner

MICHAEL MORAN.

Respondent

PEOPLE OF THE STATE OF CALIFORNIA.

ii

TABLE OF CONTENTS AND TABLE OF AUTHORITIES

Table of Contents

section

page number

Questions Presented for Review. . . . . . . . . . . . . . . . . . . . . . . i

List of all parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents and Table of Authorities. . . . . . . . . . . . . iii

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Citations of the Official and Unofficial Reports of the Opinions

and Orders Entered in the Case by Courts or Administrative

Agencies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Basis for Jurisdiction in the Supreme Court. . . . . . . . . . . . 1

Constitutional Provisions and Statutes Involved.. . . . . . . . . 1

1. United States Constitution.. . . . . . . . . . . . . . . . . . . 1

2. Federal statutes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

3. Federal court rules.. . . . . . . . . . . . . . . . . . . . . . . . . . 2

4. State statutes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

iii

section

page number

Statement of the Case... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. Specification of Stage in the Proceedings in

Which the Federal Questions Sought to Be

Reviewed Were Raised, the Manner of Raising

Them, and the Way in Which They Were Passed

On.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . 5

a. Prosecution case.. . . . . . . . . . . . . . . . . . . . . . 5

i. Counts 1-5: Jessica Doe.. . . . . . . . . . . 5

ii. Count 6: Andrea Doe... . . . . . . . . . . . 7

b. Defense case.. . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. Standard for granting a certificate of

appealability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2. A jurist of reason could find that the state

court unreasonably applied clearly established

federal law in determining that admission of

petitioner's in-custody statements in the absence

of Miranda advisements did not deprive

petitioner of due process of law under the Fifth

and Fourteenth Amendments.. . . . . . . . . . . . . . . . . . 13

iv

section

page number

a. Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

b. The trial court should have excluded

petitioner’s statements.. . . . . . . . . . . . . . . . . . 14

c. The error was prejudicial.. . . . . . . . . . . . . . 15

3. A jurist of reason could find that the state

court unreasonably applied clearly established

federal law in determining that the trial court's

exclusion of evidence did not violate petitioner's

right to present a defense under the Fifth, Sixth

and Fourteenth Amendments.. . . . . . . . . . . . . . . . . . 16

a. Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

b. The trial court should have admitted

the evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . 17

c. The error was prejudicial.. . . . . . . . . . . . . . 18

4. A jurist of reason could find that the state

court unreasonably applied clearly established

federal law in determining that prosecutorial

misconduct in voir dire and closing argument did

not violate petitioner's right to a fair trial and

right to counsel under the Fifth, Sixth and

Fourteenth Amendments.. . . . . . . . . . . . . . . . . . . . . . 19

a. Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

v

section

page number

b. The prosecutor’s vouching and attacks

on the defense function was misconduct

depriving petitioner of a fair trial.. . . . . . . . . 20

c. Defense counsel’s failure to object to

misconduct during closing was ineffective.

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5. A jurist of reason could find that even if none

of these errors were prejudicial in themselves,

the cumulative effect deprived petitioner of a fair

trial under the Fourteenth Amendment.. . . . . . . . . 21

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

APPENDIX — OPINIONS, ORDERS, FINDINGS OF FACT, AND

CONCLUSIONS OF LAW, WHETHER WRITTEN OR ORALLY GIVEN

AND TRANSCRIBED, ENTERED IN CONJUNCTION WITH THE

JUDGMENT SOUGHT TO BE REVIEWED.. . . . . . . . . . . . . . . . . 23

1. Ninth Circuit order denying application for

certificate of appealability.. . . . . . . . . . . . . . . . . . . . . 23

2. District Court opinion dismissing habeas

corpus petition.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

3. California Supreme Court order denying

petition for review.. . . . . . . . . . . . . . . . . . . . . . . . . . . 76

4. California Court of Appeal opinion. . . . . . . . . . . . 76

vi

Table of Authorities

cases

page number

Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246,

113 L. Ed. 2d 302 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383,

77 L. Ed. 2d 1090 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983). . . . . . . . . . 20

Chambers v. Mississippi, 410 U.S. 284,

93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). . . . . . . . . . . . . . 17, 21

Chapman v. California (1967) 386 U.S. 18,

87 S. Ct. 824, 17 L. Ed. 2d 705 (1967.)åÉ. . . . . . . . . 15, 18, 20

Darden v. Wainwright (1986) 477 U.S. 168,

106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). . . . . . . . . . . . . . . . 20

Delaware v. Van Arsdall (1986) 475 U.S. 673,

106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)Ñ. . . . . . . . . . . 17, 18

Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L.

Ed. 2d 431 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Fowler v. Sacramento County Sheriff’s

Department, 421 F.3d 1027 (9th Cir. 2005).. . . . . . . . . . . . . . 17

Lawson v. Borg, 60 F.3d 608 (9th Cir. 1995) . . . . . . . . . . . . . 15

vii

cases

page number

Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029,

154 L. Ed. 2d 931 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,

16 L. Ed. 2d 694 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013,

135 L. Ed. 2d 361 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480,

102 L. Ed. 2d 513 (1988) . 480, 102 L. Ed. . . . . . . . . . . 17, 18

Parle v. Runnels, 505 F.3d 922 (9th Cir. 2007). . . . . . . . . . . 21

Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 6

4 L. Ed. 2d 297 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595,

146 L. Ed. 2d 542 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . 21

Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078,

124 L. Ed. 2d 182 (1993.) 182. . . . . . . . . . . . . . . . . . . . . . . . 16

Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930,

56 L. Ed. 2d 468 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Brown, 720 F.2d 1059 (9th Cir. 1983). . . . . 20

viii

cases

page number

United States v. Valle-Valdez, 554 F.2d 911 (9th Cir. 1977). . 20

statutes

page number

28 U.S.C. section 1254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

California Evidence Code section 402. . . . . . . . . . . . . . . . . . . 2

California Evidence Code section 1103(a)(1). . . . . . . . . . . . 17

California Penal Code section 261. . . . . . . . . . . . . . . . . . . . . . 3

California Penal Code section 261(a)(2). . . . . . . . . . . . . . . . . 4

California Penal Code section 288.5. . . . . . . . . . . . . . . . . . 3, 4

California Penal Code section 288a (renumbered to 287). . . 3

California Penal Code section 288a(c)(2). . . . . . . . . . . . . . . . 4

California Penal Code section 31. . . . . . . . . . . . . . . . . . . . . . . 2

Stats 2018 ch 423 § 49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Supreme Court Rule 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

United States Constitution,

Fifth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 1, 13

ix

statutes

page number

United States Constitution,

Fourteenth Amendment. . . . . . . . . . . . . . . i, 1, 5, 3, 15,19, 21

United States Constitution,

Sixth Amendment. . . . . . . . . . . . . . . . . . . . . i, 1, 16, 17, 19-21

x

CITATIONS OF THE OFFICIAL AND UNOFFICIAL REPORTS

OF THE OPINIONS AND ORDERS ENTERED IN THE

CASE BY COURTS OR ADMINISTRATIVE AGENCIES.

None of the orders and opinions were published. They

are attached as an appendix.

BASIS FOR JURISDICTION IN THE SUPREME COURT.

1. Date of entry of order sought to be reviewed: January

10, 2019

2. Date of any order respecting rehearing: none.

3. Statutory provision believed to confer on this Court

jurisdiction to review on a writ of certiorari the judgment or

order in question: 28 U.S.C. section 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED.

1. United States Constitution.

Fifth Amendment: No person shall . . . . be compelled in any

criminal case to be a witness against himself, nor be deprived

of . . . liberty. . . without due process of law . . . .

Sixth Amendment: In all criminal prosecutions, the accused

shall enjoy the right to a . . . trial, by . . . jury . . .

Fourteenth Amendment. . . . No State shall . . . deprive

any person of . . . liberty . . . without due process of law. . .

.

1

2. Federal statutes.

28 U.S.C. section 1254(1): Cases in the courts of appeals

may be reviewed by the Supreme Court . . . (1) By writ of

certiorari granted upon the petition of any party to any civil or

criminal case, before or after rendition of judgment or

decree . . . .

28 U.S.C. section 2244: (c) “In a habeas corpus proceeding

brought in behalf of a person in custody pursuant to the

judgment of a State court, a prior judgment of the Supreme

Court of the United States on an appeal or review by a writ of

certiorari at the instance of the prisoner of the decision of such

State court, shall be conclusive as to all issues of fact or law

with respect to an asserted denial of a Federal right which

constitutes ground for discharge in a habeas corpus

proceeding.”

3. Federal court rules.

Supreme Court Rule 13. Review on Certiorari: . . . a

petition for a writ of certiorari to review a judgment in any

case, civil or criminal, entered by . . . a United States court of

appeals (including the United States Court of Appeals for the

Armed Forces) is timely when it is filed with the Clerk of this

Court within 90 days after entry of the judgment . . . .

4. State statutes.

California Evidence Code section 1103: (a) In a criminal

action, evidence of the character or a trait of character (in the

form of an opinion, evidence of reputation, or evidence of

2

specific instances of conduct) of the victim of the crime for

which the defendant is being prosecuted is not made

inadmissible by Section 1101 if the evidence is: (1) Offered by

the defendant to prove conduct of the victim in conformity

with the character or trait of character . . . .

California Penal Code section 261: (a) Rape is an act of

sexual intercourse accomplished with a person not the spouse

of the perpetrator, under any of the following circumstances:

. . . . (2) Where it is accomplished against a person’s will by

means of force, violence, duress, menace, or fear of immediate

and unlawful bodily injury on the person or another.

California Penal Code section 288a (renumbered to

287): (a) Oral copulation is the act of copulating the mouth of

one person with the sexual organ or anus of another

person . . . . (c)(2) (A) Any person who commits an act of oral

copulation when the act is accomplished against the victim’s

will by means of force, violence, duress, menace, or fear of

immediate and unlawful bodily injury on the victim or another

person shall be punished by imprisonment in the state prison

for three, six, or eight years . . . .

California Penal Code section 288.5: (a) Any person who

either resides in the same home with the minor child or has

recurring access to the child, who over a period of time, not

less than three months in duration, engages in three or more

acts of substantial sexual conduct with a child under the age of

14 years at the time of the commission of the offense, as

defined in subdivision (b) of Section 1203.066, or three or more

acts of lewd or lascivious conduct, as defined in Section 288,

with a child under the age of 14 years at the time of the

3

commission of the offense is guilty of the offense of continuous

sexual abuse of a child and shall be punished by imprisonment

in the state prison for a term of 6, 12, or 16 years.

Stats 2018 ch 423 § 49: Section 288a of the Penal Code is

amended and renumbered to read: 287.

STATEMENT OF THE CASE.

1. Specification of Stage in the Proceedings

in Which the Federal Questions Sought to

Be Reviewed Were Raised, the Manner of

Raising Them, and the Way in Which They

Were Passed On.

On July 7, 2010, following a jury trial in the Alameda County

Superior Court, petitioner was convicted of forcible rape,

California Penal Code section 261(a)(2), and forcible oral

copulation, California Penal Code section 288a(c)(2) involving

an adult female “Jessica”, and continuous sexual abuse of a

minor, California Penal Code section 288.5 involving a 12 year

old female, “Andrea.” Petitioner received two consecutive

sentences of 15 years to life, plus an additional sentence of 6

years.

Petitioner pursued a timely direct appeal of his convictions. On

November 28, 2012, the Court of Appeal affirmed the

convictions in a written opinion. (A130327.) OnMarch 13,

2013, the California Supreme Court summarily denied his

petition for review by order. (S207780.)

Petitioner filed a timely petition for writ of habeas corpus in

4

the United States District Court for the Northern District of

California. On March 31, 2018, the district court dismissed the

petition and denied a certificate of appealability.

(5:14-cv-02641-EJD.) On January 10, 2019, the United States

Court of Appeals for the Ninth Circuit denied petitioner’s

application for a certificate of appealability. (18-15869.)

This petition for writ of certiorari is filed within 90 days of the

Ninth Circuit’s denial of a certificate of appealability and is

timely under Supreme Court Rule 13.

2. Statement of Facts.

a. Prosecution case.

i. Counts 1-5: Jessica Doe.

18 year old Jessica had lived in the Baywood Apartments in

Hayward, California, for six years. (2RT. 236, 288.) Melissa

Moran and petitioner lived two apartments away. (2RT.

290-291, 294.) Jessica visited Melissa every other day to play

with Melissa’s three children or use the Morans’ Xbox and

computer. (2RT. 293-294.) Jessica was friendly with Melissa’s

12 year old daughter, Andrea. (2RT. 297, 355-356.)

On May 23, 2008, Jessica went to petitioner’s house to visit.

(2RT. 303.) Melissa told Jessica that she was going to a Jackin-the-Box restaurant and asked if Jessica wanted to go or

have anything brought back. (2RT. 304.) Jessica said she did

not want to go. (2RT. 305.) Melissa and her children left

Jessica with petitioner. (2RT. 306-307.)

5

Jessica said that petitioner then pushed her on the bed, held

her wrists, and told her that if she tried to stop him he was

going to hurt her. (2RT. 311, 314.) Petitioner pulled Jessica’s

bra off and started kissing her breasts. (2RT. 317.) He then

took off her slacks and her nylons and her underwear at the

same time. (2RT. 321.) He put his fingers in her vagina, which

hurt. She screamed loudly. (2RT. 323, 325.) He moved his two

fingers in and out about five times. (2RT. 324.) Petitioner then

put his penis in her vagina, which hurt. It moved, but it did

not come out. (2RT. 327.) Jessica did not know if he ejaculated

inside of her. (2RT. 330.) Jessica thought petitioner looked

mad. He told Jessical to perform oral sex on him and she did.

(2RT. 330-331.)

Jessica heard a sound like the front door opening. Petitioner

then left. (2RT. 332.) Jessica dressed and went home. (2RT.

332-333.) When she used the bathroom, she noticed blood on

the toilet paper. (2RT. 334.)

Jessica told her mother, Karen, that petitioner had raped her.

(2RT. 334-335.) She and Karen went to the Morans’ house and

told Melissa (2RT. 336-337.) They then went home and called

the police. (2RT. 339.) Then they went to Highland Hospital,

where a staffer conducted a sex assault examination. (2RT.

340,341; 3RT. 595.)

Lydia Trepes, a neighbor in the same apartment building,

testified that during that evening, she heard screaming and a

door slam, and saw a woman crying. (3RT. 626.)

Officer Michael Carpenter interviewed petitioner “to get his

side of the story.” (3RT. 528.) During the interview, petitioner

6

told Carpenter: “I made a mistake,” and said he was sorry a

couple of times. (3RT. 534.)

Joshua Luftig, a physician’s assistant at the hospital,

conducted a sex assault exam. (3RT. 574-575.) Luftig did not

document whether there was blood on the toilet paper and

didn’t see any blood (3RT. 600-601.) Luftig documented a

hymen transection at the three to four o’clock position, a moist

accretion at the vestibule at the six o’clock position, and two

tears at the posterior fourchette. (3RT. 595.) He took swabs of

Jessica’s breasts, lips, and neck for DNA testing. (3RT.

609-610.) Luftig found no visible injuries to Jessica’s body,

wrists, or ankles. (3RT. 610.)

ii. Count 6: Andrea Doe.

12-year old Andrea Doe lived with petitioner in Hayward,

California along with her mother, Melissa, and her brothers

and sisters. (2RT. 447.) When Andrea was eight or nine,

petitioner tried to put his private in her private. (2RT. 452453.) There was a second time but Andrea did not remember

when. (2RT. 454-455.) There was a third occasion when

petitioner again tried to put his private in her private. (2RT.

456-457.) On another occasion, petitioner tried to put his

private in her butt, but did not succeed (2RT. 459-460.) The

final occasion was about a week or two before petitioner was

arrested.(2RT. 458.) All incidents had occurred on different

days, and at least three months passed between the first and

last incidents. (2RT. 458.)

Andrea reported what petitioner did to her about a week or six

days after petitioner got arrested for allegedly raping Jessica.

7

(2RT. 461.) She did not tell her mother everything, but finally

told her aunt Laura. (2RT. 462; 3RT. 556.)

After her mother Melissa married petitioner, Andrea became

reacquainted with her natural father, James and learned that

she had other brothers and sisters. (2RT. 465-466.) She visited

James in Mandioca, California, and liked it. (2RT. 466-467.)

Melissa would yell at her and call her names. (2RT. 297, 356,

468.) James did not do that. (2RT. 468.)

Andrea was close friends with Jessica. They talked about boys.

Jessica said she would always be there for her if something

happened. (2RT. 469.) Andrea had occasionally seen some

X-rated stuff on TV. (2RT. 490.)

b. Defense case.

In June 2002, Melissa and petitioner lived at Melissa’s friend’s

house for a month. Melissa’s son Josh then went to live with

a former coworker and Andrea went to live with her father,

James. (3RT. 638.) After a few weeks with her father, Andrea

went to live with Melissa’s coworker, Carla Sanders. (3RT.

640.) Andrea lived with Sanders from August 2002 to

November 2002 and went back to live with James. (3RT. 641.)

When Melissa was pregnant with Andrea, Melissa was addicted

to drugs. (3RT. 639.) When she and petitioner moved to

Hayward, they met Jessica.(3RT. 646.) Petitioner was working

full time and would come home around 6 p.m. (3RT. 646-647.)

Jessica would come over a lot and Melissa and Jessica would be

on the computers (3RT. 647.)

8

Jessica did not have much interaction with petitioner. (3RT.

649-650.) Jessica knew that Melissa had boyfriends over the

house for sex while petitioner was at work. (3RT. 650.)

Melissa had a friend name Rose Rivera (3RT. 650.) Sometimes

Rivera took Andrea over to her house. Rivera had teenage

children. (3RT. 651.)

On May 23, 2008, Jessica came to the apartment. (3RT. 651.)

Melissa took the other children to Jack-in-the-Box (3RT. 652)

and asked Jessica if she wanted to go, but she said no. The

round-trip going to Jack-in-the-Box and returning took 15 to

17 minutes. (3RT. 653.) Jessica left, then returned with her

mother Karen about 20 to 30 minutes later. Karen then

accused petitioner of raping Jessica. (3RT. 655-656.) (3RT.

656.) About 20 to 30 minutes after Karen and Jessica left, the

police arrived and arrested petitioner. (3RT. 658.)

Melissa admitted calling Andrea names including “bitch”

frequently. She had hit her. (3RT. 662.) Petitioner never

abused Andrea. (3RT. 663.) Andrea was known to exaggerate

or fabricate.(3RT. 663-664.)

Melissa asked Andrea if petitioner had ever done anything to

her. (3RT. 660.) Before the arrest she never had any reason to

be worried about Andrea been molested by petitioner. (3RT.

661.) Andrea said no, nothing happened. Melissa asked her two

more times. Finally, Andrea told Melissa that petitioner had

kissed her like boyfriend/girlfriend, but that was all. (3RT.

665-666.) Melissa called police the next day. (3RT. 667.) An

officer spoke with Andrea for about 15 minutes and told

Melissa that the police were not going to do anything but if she

9

heard anything else they should call (3RT. 669.)

A few days later, Andrea told Melissa that she had more to tell.

(3RT. 700.) Melissa had seen Andrea and Jessica talking in the

complex after petitioner was arrested. Before that, Andrea and

Jessica had hardly ever talked to each other. (3RT. 701.)

Melissa called Andrea’s aunt Laura who came over on

Thursday. Laura and Andrea went into a room together. (3RT.

670-671.) Laura then told Melissa to call the police. (3RT. 672.)

After this, petitioner’s children Lina and Jessie went to live

with Ruben and Teresa Reyez. Melissa’s son Josh went to live

with Laura. Andrea now lives with her dad, James. (3RT. 673.)

Three weeks after the alleged rape, Melissa asked Jessica what

happened. (3RT. 676.) Jessica said she was sitting on the chair

by the computer. Petitioner told her to stand up, attacked her,

and threw her on the bed. Jessica remarked that if petitioner

was going to rape somebody, he should at least know how to

make it feel good. (3RT. 677.) Jessica was talking normally and

did not seem upset. (3RT. 679.)

Rose Rivera testified that she had known petitioner since 1999

(3RT. 703), and had known Andrea since she was about five.

(3RT. 704.) Rivera never saw any kind of behavior on the part

of Andrea that caused her concern about Andrea’s relationship

with petitioner. (3RT. 705.) Rivera, however, saw Melissa

being abusive physically and verbally and emotionally to

Andrea. (3RT. 706.) Rivera had reported Melissa’s behavior to

Child Protective Services. (3RT. 707.)

10

A week after petitioner had been arrested, Andrea came over

to see Rivera and they talked about the allegations. (3RT.

710-711.) Andrea described what had allegedly happened,

while giggling and laughing.(3RT. 711.) Andrea also told

Rivera that she had seen Melissa and petitioner naked when

she walked into their bedroom. (3RT. 712.)

Rivera testified that Andrea clung to adults for a lot of

attention. (3RT. 712.) During a party, Andrea wanted to play

games and sit on the lap of a man who was there, hugging and

clinging to him. (3RT. 713.)

Teresa Reyez, petitioner’s mother, testified that petitioner,

Melissa, and Andrea had lived with her. (3RT. 716-717.)

Andrea lied sometimes about going to school. Melissa was not

nice to Andrea and would sometimes takes Jesse and Lina and

leave Andrea behind. (3RT. 718.) Andrea lacked attention and

would try to get attention. (3RT. 721.)

Officer Rodney Johnson collected four or five articles of

clothing at the scene, including pantyhose, an undershirt, a

casual top, and pants. (4RT. 736-737.) These are the items that

Jessica said she was wearing. (4RT. 740.) The officer didn’t

notice any damage to the clothing. (4RT. 741.)

ARGUMENT

1. Standard for granting a

certificate of appealability.

In Slack v. McDaniel, 529 U.S. 473, 482, 120 S. Ct. 1595, 146

L. Ed. 2d 542 (2000), this court held that a petitioner must

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make a “substantial showing of the denial of a constitutional

right” with respect to each issue sought to be appealed. Slack

adopted the standard of Barefoot v. Estelle, 463 U.S. 880, 103

S. Ct. 3383, 77 L. Ed. 2d 1090 (1983) that a habeas corpus

petitioner can meet the requisite standard by establishing one

of the following:

“. . . that the issues are debatable among jurists

of reason; that a court could resolve the issues [in

a different manner]; or that the questions are

adequate to deserve encouragement to proceed

further.”

Barefoot v. Estelle, 463 U.S. at 893; Miller-El v. Cockrell, 537

U.S. 322, 336, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003).

In Miller-El v. Cockrell, 537 U.S. at 337-338, the Supreme

Court held that “a claim can be debatable even though every

jurist of reason might agree, after the COA has been granted

and the case has received full consideration, that petitioner

will not prevail.”

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2. A jurist of reason could find that the state

court unreasonably applied clearly established

federal law in determining that admission of

petitioner's in-custody statements in the

absence of Miranda advisements did not

deprive petitioner of due process of law under

the Fifth and Fourteenth Amendments.

a. Facts.

During a hearing outside the presence of the jury, Officer

Carpenter was one of five uniformed officers who opened the

door of petitioner’s home (1RT. 142, 169) and told petitioner

to come outside to talk. Petitioner said “I know why you are

here” and said that he knew they were coming. (1RT. pp. 143144.)

They walked 20-25 feet away to a parking lot and stopped on

the sidewalk, remaining there for 10-15 minutes. (1RT. 148.)

Petitioner was not free to leave. (1RT. 174.)

Petitioner then said: “I made a mistake.” “I’m sorry.”

Carpenter asked, “What happened?” (1RT. 145.) Petitioner

said “I kissed her.” Carpenter asked whether they had sexual

intercourse and petitioner said no. Carpenter asked if it was

the first time petitioner had ever kissed her. Petitioner said he

just kissed her on the cheek and he gave her a friendly hug.

Petitioner was very cooperative, emotional, and crying. (1RT.

146.)

Petitioner testified that the officers had ordered him him to

come out of his house because they needed to talk to him. They

13

ordered petitioner to sit on the curb on the walkway. (1RT.

189.) They were in uniform with sidearms. (1RT. 190.)

Petitioner did not feel free to leave. Carpenter asked petitioner

what happened between him and “Jessica” before he advised

petitione of his rights, and petitioner made statements. (1RT.

190.)

The court ruled that the statements “I know why you are

here,” “I made a mistake” and “I’m sorry” were volunteered.

(1RT. 212-213.) The statements to the questions after that

were ruled custodial interrogation and excluded. (1RT.

214-215.)

b. The trial court should have

excluded petitioner’s statements.

In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.

2d 694 (1966), the United States Supreme Court held that a

suspect may not be subjected to custodial interrogation unless

he knowingly and intelligently waives his right to a remain

silent, to the presence of an attorney, and to appointed counsel

if he is indigent. Interrogation is “any words or actions on the

part of the police that the police should know are reasonably

likely to elicit an incriminating response.” Rhode Island v.

Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).

The inquiry “focuses primarily upon the perceptions of the

suspect, rather than the intent of the police.” Rhode Island v.

Innis, 446 U.S. at 301. An interview can be “interrogation”

even when the police do not use express questioning. Rhode

Island v. Innis, id. However, if a suspect in custody voluntarily

makes statements not in response to police questions or

conduct, those statements are admissible. Miranda v Arizona,

14

384 U.S. at 478.

Except for the initial “I know why you are here”, petitioner

made his statements in response to the officers directing him

to talk to them. (1RT. 171.) Petitioner testified that Carpenter

asked what had happened between him and Jessica prior to

being advised of his rights, and made his statements in

response. (1RT. 190.)

The situation contrasts with that in Rhode Island v. Innis,

where a suspect in the back of a patrol car overheard two

officers talking about the possible location of a gun and

volunteered that he knew where it was. Here, the officers told

petitioner to “come outside and talk.”

c. The error was prejudicial.

A confession is the most damaging evidence that can be

admitted against a defendant. Arizona v. Fulminante, 499 U.S.

279, 296, 311, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).

Improper admission requires reversal unless the confession’s

admission was harmless beyond a reasonable doubt. Chapman

v. California (1967) 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d

705 (1967.)

This was not a close case. Jury deliberations lasted about three

and a half days (2CT. 370, 373, 375), and the jury was

deadlocked on three counts. (2CT. 383, 394.) The evidentiary

part of the trial lasted only a little longer. (2CT. 353-354,

362-363.) See Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995)

(nine hours of deliberations “deemed protracted.”) Such

lengthy deliberations, and the incomplete verdict, showed that

15

the jurors likely found some deficiency in the government’s

case. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078,

2081, 124 L. Ed. 2d 182 (1993.) The jury also requested 87

pages of testimony by the sex abuse examiner and victim read

back. The prosecutor relied heavily on the statements during

closing.. (4RT. 825.)

3. A jurist of reason could find that the

state court unreasonably applied clearly

established federal law in determining

that the trial court's exclusion of

evidence did not violate petitioner's right

to present a defense under the Fifth,

Sixth and Fourteenth Amendments.

a. Facts.

In 2007, Andrea claimed that when she was sleeping, a

Hispanic teenager with spiky hair, wearing striped pants, and

chewing “white gum”, came into her room and started kissing

her. The lights were off in her room, which was completely

dark. The responding officer reported that Andrea’s mom

didn’t see or hear any strangers in the house, that Andrea’s

bedroom window was latched from the inside, and that a

partly-open sliding door had no pry marks. Andrea had

described the incident “as if she was acting out a movie.” She

admitted that she’d seen a movie called “Faces of Death,” had

worried about people wandering on the street outside the

apartment, and that it all “could have been just a dream”.

Andrea’s mom told the officer that Andrea has “exaggerated

stories before.” (2CT. 339-341.) 11 months later, another

officer tried to follow up on this case, but Andrea was

16

unavailable to view a lineup of a suspect. (Exhibit A, pp. 9-10.)

The defense sought admission of the evidence under California

Evidence Code section 1103(a)(1). (2CT. 341.) The court barred

the evidence, finding that it wasn’t clear that Andrea had

fabricated the incident. (2RT. 427-428.)

b. The trial court should have

admitted the evidence.

“[A] criminal defendant states a violation of the [Sixth

Amendment] Confrontation Clause by showing that he was

prohibited from engaging in otherwise appropriate

cross-examination designed to show a prototypical form of bias

on the part of the witness, and thereby to expose to the jury

the facts from which jurors ... could appropriately draw

inferences relating to the reliability of the witness.” Delaware

v. Van Arsdall (1986) 475 U.S. 673, 678-79, 106 S. Ct. 1431, 89

L. Ed. 2d 674 (1986).It is sufficient that a jury “might

reasonably” have questioned the witness’s reliability or

credibility in light of the cross-examination. Delaware v. Van

Arsdall, 475 U.S. at 680, see also Olden v. Kentucky, 488 U.S.

227, 232, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988) (per curiam.)

Denial of defense cross-examination can violate the Sixth

Amendment despite contrary state evidence rules. Olden v.

Kentucky, 488 U.S. at 232, Chambers v. Mississippi, 410 U.S.

284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).

Where a trial turns on “a credibility contest between” the

accuser and defendant, exclusion of evidence impeaching the

accuser is not harmless. Fowler v. Sacramento County Sheriff’s

17

Department, 421 F.3d 1027, 1042 (9th Cir. 2005), citing Olden

v. Kentucky, 488 U.S. at 232-33.

c. The error was prejudicial.

“The constitutionally improper denial of a defendant’s

opportunity to impeach a witness for bias, like other

Confrontation Clause errors, is subject to Chapman

harmless-error analysis.” Delaware v. Van Arsdall, 475 U.S. at

684.

Here, no physical corroborating evidence existed. Only when

Andrea was repeatedly questioned did she accuse petitioner.

(3RT. 665-666.) Andrea’s mom Melissa had seen Andrea and

Jessica talking in the apartment complex before Andrea she

talked to the police. (2RT. 474-476.) The jury and asked that

the testimony regarding this be reread. (2CT. 378.)

Andrea also had a motive to lie. She wanted to live with her

father (2RT. 467) because Melissa regularly yelled at her.

(2RT. 297, 356, 3RT. 662, 706-707.) Andrea had also treated

her accusations as a joke, laughing when she described them.

(3RT. 711.) Andrea admitted previously seeing pornography on

TV. (2RT. 490.)

Both Melissa and Rivera testified that they never saw any kind

of behavior on the part of Andrea that caused them concern

about her relationship with petitioner. (3RT. 661, 706.) Melissa

had been molested as a child and she would be familiar with

the signs. (3RT. 661.) Andrea never appeared to be afraid to be

alone with petitioner. (3RT. 662.)

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4. A jurist of reason could find that the

state court unreasonably applied clearly

established federal law in determining

that prosecutorial misconduct in voir

dire and closing argument did not violate

petitioner's right to a fair trial and right

to counsel under the Fifth, Sixth and

Fourteenth Amendments.

a. Facts.

During voir dire, the prosecutor told the jury “I will never try

to trick you. I will always be straightforward with you.” (ART

12:8-10.) The defense asked for an admonition that the jury

disregard the prosecutor’s arguing his own credibility. (ART

43.) The court agreed that the prosecutor seemed to be selfvouching, but wouldn’t give an admonition. (ART 43.)

Later in voir dire the prosecutor asked the protective jurors to

think about the most embarrassing thing that ever happened

to them and to imagine having to explain that to 12 strangers.

(ART 17:20-25.) Defense counsel objected that this was

improper argument and the court sustained the objection.

(ART 17.) The prosecutor then asked “do you think it would be

difficult for a child to sit on the stand and talk about

something that’s embarrassing?” (ART 18:1-3.) Defense

counsel again objected, but the court overruled it. (ART 18.)

In closing, the prosecutor also vouched for his case by using

the phrases, “What do we know?” “How do we know?” “How

do we know?” (4RT. 812:24, 812:27, 816:19, emphasis added.)

19

In rebuttal, the prosecutor repeatedly described defense

counsel’s argument about inconsistent statements, failure to

present DNA evidence, and reasonable doubt as “the

okie-doke . . . . a sleight-of-hand” and asked the jury not to

“fall for the okie-doke,” (4RT. 852:12-853:13), mentioning the

phrase “okie-doke” about ten times. (4RT. 853:17-18, 25,

854:28, 855:14, 857:26, 860:1, 27, 860:26-27.

The prosecutor also gave his personal opinion of defense

witness Rivera, saying “I think her testimony is suspect.”

(4RT. 858.)

b. The prosecutor’s vouching and attacks

on the defense function was misconduct

depriving petitioner of a fair trial.

Prosecutorial attacks on the defense function burdened

petitioner’s Sixth Amendment right to counsel and Fourteenth

Amendment due process right. Bruno v. Rushen, 721 F.2d

1193, 1195 (9th Cir. 1983). citing Chapman v. California, 386

U.S. at 24 and United States v. Valle-Valdez, 554 F.2d 911, 915

n. 5-8 (9th Cir. 1977).

“Vouching” suggests to the jury that “evidence not presented

to the jury, but known to the prosecutor, supports the witness’

testimony. United States v. Brown, 720 F.2d 1059, 1073 (9th

Cir. 1983).

Pervasive improper remarks by a prosecutor can so infect the

trial with unfairness as to make the resulting conviction a

denial of due process. Darden v. Wainwright (1986) 477 U.S.

168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986).

20

c. Defense counsel’s failure to object to

misconduct during closing was ineffective.

Defense counsel objected to the comments in voir dire related

to vouching, but the court, but didn’t object to the vouching

and other misconduct in the closing argument.

A defendant has a right under the Sixth Amendment to the

United States Constitution to the effective assistance of

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

684-688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Defense

counsel’s failure to object to the misconduct during closing

argument was ineffective.

5. A jurist of reason could find that even

if none of these errors were prejudicial

in themselves, the cumulative effect

deprived petitioner of a fair trial under

the Fourteenth Amendment.

State law errors that might not be so prejudicial as to amount

to a deprivation of due process when considered alone may

cumulatively produce a trial setting that is fundamentally

unfair. Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007),

citing Chambers v. Mississippi, 410 U.S. 294, 298, 302-03, 93

S. Ct. 1038, 35 L. Ed. 2d 297 (1973.) Montana v. Egelhoff, 518

U.S. 37, 53, 116 S. Ct. 2013, 135 L. Ed. 2d 361 (1996), Taylor

v. Kentucky, 436 U.S. 478, 487 n.15, 98 S. Ct. 1930, 56 L. Ed.

2d 468 (1978). Cumulative error warrants relief “where the

errors have ‘so infected the trial with unfairness as to make

the resulting conviction a denial of due process.’” Donnelly v.

DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed. 2d

21

431 (1974).

CONCLUSION

For these reasons, this court should grant certiorari.

Dated: Oakland, California, Tuesday, April 2, 2019.

______________________________________

Robert Joseph. Beles

Paul Gilruth McCarthy

Attorneys for Petitioner MICHAEL MORAN

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