Petition for Writ of Certiorari — Steven Anthony Alvarez, Petitioner v. M. Eliot Spearman, Warden

Supreme Court briefJun 28, 2018

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAR 302018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

STEVEN ANTHONY ALVAREZ,

Petitioner-Appellant,

M. ELIOT SPEARMAN,

No. 17-56306

D.C. No. 2:16-cv-0497-AFM

Central District of California,

Los Angeles

ORDER

Respondent-Appellee.

Before: CLIFTON and CHRISTEN, Circuit Judges.

The request for a certificate of appealability (Docket Entry No. 4) is denied

because appellant has not made a "substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537

U.S. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

STEVEN ANTHONY ALVAREZ

Petitioner,

Case No. CV 16-08497 AFM

ORDER RE CERTIFICATE OF

APPEALABILITY

M.E.SPEARMAN,

Respondent.

Rule 11 of the Rules Governing Section 2254 Cases in the United States

District Courts reads as follows:

(a) Certificate of Appealability.

The district court must

issue or deny a certificate of appealability when it enters a final order

adverse to the applicant. Before entering the final order, the court may

direct the pal-ties to submit arguments on whether a certificate should

issue. If the court issues a certificate, the court must state the specific

issue or issues that satisfy the showing required by 28 U.S.0

§ 2253(c)(2). If the court denies a certificate, the parties may not

appeal the denial but may seek a certificate from the court of appeals

under Federal Rule of Appellate Procedure 22. A motion to reconsider

a denial does not extend the timeto appeal.

(b)

Time to Appeal. Federal Rule of Appellate Procedure

4(a) governs the time to appeal an order entered under these rules. A

timely notice of appeal must be filed even if the district court issues a

certificate of appealability.

Under 28 U.S.C. § 2253(c)(2), a Certificate of Appealability may issue "only

if the applicant has made a substantial showing of the denial of a constitutional

right." The Supreme Court has held that this standard means a showing that

"reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further." See Slack v. McDaniel,

529 U.S. 473, 483-84, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (internal quotation

marks omitted).

Here, after duly considering Petitioner's contentions in support of the claims

alleged in the Petition, the Court finds that Petitioner has not satisfied the

requirements for a Certificate of Appealability. Accordingly, a Certificate is

DENIED.

DATED: July 18, 2017

ALEXANDER F. MacKINNON

UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

1. STEVEN ANTHONY ALVAREZ,

Petitioner,

Case No. CV 16-08497 AFM

DECISION AND ORDER DENYING

PETITION FOR WRIT OF HABEAS

CORPUS (28 U.S.C. § 2254)

M.E. SPEARMAN,

Respondent.

INTRODUCTION

On November 15, 2016, petitioner filed a Petition for Writ of Habeas Corpus

by a Person in State Custody (28 U.S.C. § 2254). The Petition raises twelve

grounds for federal habeas relief directed to petitioner's convictions of crimes

arising from an incident of domestic abuse.

The parties have consented to the jurisdiction of the undersigned Magistrate

Judge under 28 U.S.C. § 636(c). On March 3, 2017, respondent filed an Answer.

On June 13, 2017, petitioner filed a Traverse. Thus, this matter is ready for

decision.

For the reasons discussed below, the Petition is denied, and this action is

dismissed with prejudice.

PROCEDURAL BACKGROUND

On August 6, 2014, a Los Angeles County Superior Court jury convicted

petitioner of willful infliction of corporal injury on a cohabitant, misdemeanor

assault, and false imprisonment. The jury also found true an allegation that

petitioner personally inflicted great bodily injury. In a bifurcated proceeding, the

trial court found allegations relating to petitioner's prior convictions to be true.

Petitioner was sentenced to state prison for 20 years and 4 months. (4 Reporter's

Transcript ["RT"] 1204-05, 1836; 2 Clerk's Transcript ["CT"] 272-75, 399.)

Petitioner appealed, raising a single claim of sentencing error. (Respondent's

notice of lodging, Lodgment 3.)

December 17, 2015, the California Court of Appeal agreed with petitioner that there

was insufficient evidence to support a prior-prison-term allegation and modified his

sentence accordingly. (Lodgment 9.) Petitioner was resentenced to state prison for

19 years and 4 months. (Lodgment 10 at 28-29.)

In an unpublished decision issued on

Petitioner also litigated multiple habeas petitions in the state courts. On

March 18, 2015, petitioner filed a habeas petition in the Los Angeles County

Superior Court. (Lodgment 11.) It was denied on March 23, 2015. (Lodgment

12.) On May 23, 2016, petitioner filed another habeas petition in the Los Angeles

County Superior Court. (Lodgment 13.) It was denied on June 7, 2016.

(Lodgment 14.) On June 23, 2016, petitioner filed a habeas petition in the

California Court of Appeal. (Lodgment 15.) It was denied on July 8, 2016.

(Lodgment 16.) On August 5, 2016, petitioner filed a habeas petition in the

California Supreme Court. (Lodgment 17.) It was denied on October 12, 2016.

(Lodgment 18.)

Petitioner filed this Petition on November 15, 2016.

SUMMARY OF THE TRIAL EVIDENCE

The California Court of Appeal's opinion on direct appeal did not include a

summary of the evidence presented at petitioner's trial. Accordingly, the following

summary is based on the Court's review of the trial record.

Petitioner was convicted of crimes based on his attack on Blanca Doe, his

girlfriend. On January 27, 2014, the date of the attack, petitioner and Blanca had

been dating for approximately two and a half years and were living together in an

apartment in Pomona. (2 RT 325.)

On that day, Blanca became angry because she saw photographs on

petitioner's phone depicting another woman (the mother of petitioner's seven-year-

1.1

old child) engaging in lewd behavior. (2 RT 330-31.) Blanca had been drinking

alcohol. (2 RT 334.) She confronted petitioner about the photographs. (2 RT 331-

32.)

Petitioner attacked her violently. He "all of a sudden hit her" and then

"threw her around like a rag doll in the kitchen." (3 RT 806, 813.) Blanca's face

was bleeding from a gash over her left eye. Petitioner dragged Blanca by her hair

toward the shower, where he punched and kicked her some more. (3 RT 814.)

While Blanca was still in the shower, petitioner phoned his mother, Irene

Alvarez, to come to the apartment to help them. (3 RT 815.) Irene arrived and

tried to help Blanca by applying pressure to the wound on her face.

Blanca's neighbors called 911 because they had heard screaming coming

from the apartment. (2 CT 208, 226.) When police knocked on the apartment door,

petitioner answered it and claimed that no one else was inside. (3 RT 793-94.)

Officer James Suess, one of the responding officers, had earlier heard a shriek, so

he asked petitioner to step outside while the officers checked inside the apartment.

(3 RT 795.) Petitioner became belligerent and started screaming profanities. (3 RT

795-97.)

Inside the apartment, Officer Suess saw Blanca and Irene.. Irene was holding

a bloody towel. (3 RT 798.) Blanca had blood on her face and seemed grateful for

Officer Suess's presence. (3 RT 799-99.)

Meanwhile, petitioner was outside, yelling and screaming. (3 RT 800.)

Because Officer Suess did not have a recording device, he called Sergeant Baker,

who arrived at the scene with a dashcarm recorder. (3 RT 801.) The dashcam

recorder captured an audio recording of the events leading to petitioner's arret. (2

RT 210-24.)

Blanca received emergency medical treatment for her injuries, which

included a bleeding gash over her left eye and bruises on her body. (2 RT 340, 365;

3 R 810.)

Blanca told Officer Suess that petitioner had violently attacked her. (3 RT

806-07, 813-14.) Blanca told a social worker at the hospital that petitioner had

attacked her two or three times before. (3 RT 678-79.)

One week after the attack, Blanca and petitioner reconciled. (2 RI 399.)

Blanca's goal was to resume their relationship. (2 RI 400.)

During trial, Blanca testified that her injuries ultirnately were caused by a slip

and fall. She became dizzy, lost her balance, slipped on a rug, fell forward, and hit

her head on a cabinet door. (2 RT 336-40.) The cabinet door caused the gash on

her head, and the bruises were caused by the fall. (2 RI 340.) According to

Blanca, petitioner was never angry during the encounter, but only upset and

disappointed with Blanca. (2 RT 346.) Blanca, however, was irate with petitioner

23,

because she suspected his infidelity. (2 RT 366-68.) She never accused petitioner

of assaulting her, but if she did, she falsely accused him out of anger and

vindictiveness. (2 RT 373.)

I/I

PETITIONER'S CLAIMS

Petitioner's constitutional rights were violated by the suppression of

exculpatory evidence from Blanca Doe's medical record. (Petition [ECF No. 1] at

9.)

an audio recording of petitioner at the time of his arrest. (ECF No. 1 at 10.)

Jurors were biased because they had scheduling conflicts. (ECF No. 1

Trial counsel was ineffective for failing to investigate the validity of

petitioner's prior "strike" conviction. (ECF No. 1 at 15.)

at 14.)

The prosecutor misstated the evidence and presented false evidence.

(ECF No. 1 at 13.)

Trial counsel was ineffective for failing to present a defense and call

favorable witnesses. (ECF No. 1 at 12.).

The trial court erred in admitting portions of Blanca Doe's medical

record. (ECF No. 1 at 11.)

Trial counsel was ineffective for failing to object to the admission of

The trial court committed multiple sentencing errors. (ECF No. 1 at

16.)

The prosecutor withheld and destroyed exculpatory evidence from the

audio recording of petitioner at the time of his arrest. (ECF No. 1 at 17, 19.)

10. The evidence presented at trial was insufficient to support petitioner's

convictions. (ECF No. 1 a 18.)

11. Appellate counsel was ineffective for failing to investigate the records

on appeal, failing to raise the claims raised in this Petition, and failing to consult

with petitioner. (ECF No. 1 at 20.)

12. The California Court of Appeal abused its discretion in denying

petitioner's state habeas petition. (ECF No. 1 at 21.)

STANDARD OF REVIEW

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

Death Penalty Act of 1996 ("AEDPA"):

"An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim--(I) resulted in

a decision that was contrary to, or involved an unreasonable

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

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

was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding."

Under the AEDPA, the "clearly established Federal law" that controls federal

habeas review of state court decisions consists of holdings (as opposed to dicta) of

Supreme Court decisions "as of the time of the relevant state-court decision."

Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Carey v. Musladin, 549 U.S.

70, 74 (2006).

Although a particular state court decision may be both "contrary to" and "an

unreasonable application of' controlling Supreme Court law, the two phrases have

distinct meanings: See Williams, 529 U.S. at 391, 413. A state court decision is

"contrary to" clearly established federal law if the decision either, applies a rule that

contradicts the governing Supreme Court law, or reaches a result that differs from

the result the Supreme Court reached on "materially indistinguishable" facts. See

Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); Williams, 529 U.S. at 405-06.

When a state court decision adjudicating a claim is contrary to controlling Supreme

Court law, the reviewing federal habeas court is "unconstrained by § 2254(d)(1)."

See Williams, 529 U.S. at 406. However, the state court need not cite or even be

aware of the controlling Supreme Court cases, "so long as neither the reasoning nor

the result of the state-court decision contradicts them." See Earl)', 537 U.S. at 8.

State court decisions that are not "contrary to" Supreme Court law may be set

aside on federal habeas review only "if they are not merely erroneous, but 'an

unreasonable application' of clearly established federal law, or based on 'an

unreasonable determination of the facts." See Early, 537 U.S. at 11 (citing 28

U.S.C. § 2254(d)) (emphasis added). A state-court decision that correctly identified

the governing legal rule may be rejected if it unreasonably applied the rule to the

facts of a particular case. See Williams, 529 U.S. at 406-10, 413 (e.g., the rejected

decision may state the Strickland standard correctly but apply it unreasonably);

Woodford v. Visciotti, 537 U.S. 19, 24-27 (2002) (per curiam). However, to obtain

federal habeas relief for such an "unreasonable application," a petitioner fnust show

that the state court's application of Supreme Court law was "objectively

unreasonable."

"unreasonable application" is different from an erroneous or incorrect one. See

Williams, 529 U.S. at 409-10; Visciotti, 537 U.S. at 25; Bell v. Cone, 535 U.S. 685,

699 (2002). Moreover, review of state court decisions under § 2254(d)(1) "is

limited to the record that was before the state court that adjudicated the claim on the

merits." See Cullen v. Pinhoister, 563 U.S. 170, 180 (2011).

Visciotti, 537 U.S. at 24-27; Williams, 529 U.S. at 413.

As the Supreme Court explained in Harrington v. Richter, 562 U.S. 86, 102

(2011):

"Under § 2254(d), a habeas court must, determine what arguments or

theories supported or, as here [i.e., where there was no reasoned state-

court decision], could have supported, the state court's decision; and

then it must ask whether it is possible fairminded jurists could disagree

that those arguments or theories are inconsistent with the holding in a

prior decision of this Court."

Furthermore, "[a]s a condition for obtaining habeas corpus from a federal court, a

WIA

state prisoner must show that the state court's ruling on the claim being presented in

federal court was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded

disagreement." Richter, 562 U.S. at 103.

Petitioner's claims in Grounds One to Eleven were rejected by the California

Court of Appeal in a briefly-reasoned decision denying his habeas petition.

(Lodgments 15 and 16.) These claims then were presented in petitioner's habeas

petition in the California Supreme Court, which denied the petition without

comment or citation of authority. (Lodgments 17 and 18.) Thus, the California

Court of Appeal's decision constitutes the relevant state court adjudication on the

merits for purposes of the AEDPA standard of review for Grounds One to Eleven.

See Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) (noting that federal

courts look through summary denials to the last reasoned decision, whether those

denials are on the merits or of discretionary review).

Petitioner's remaining claim in Ground Twelve was rejected by the

California Supreme Court when it denied petitioner's habeas petition without

comment or citation of authority. (Lodgments 17 and 18.). Thus, the California

Supreme Court's decision constitutes the relevant state court adjudication on the

merits for purposes of the AEDPA standard of review for Ground Twelve.

DISCUSSION

Respondent, argues that several of petitioner's claims are procedurally

defaulted because the California Court of Appeal rejected them on collateral review

under the "Dixon rule," meaning that petitioner failed to raise the claims on direct

appeal when he had the opportunity to do so. (Answer Mem. at 10-11; Lodgment

16 at 1.) However, consideration of this issue would require the Court to conduct a

detailed analysis as to whether petitioner had demonstrated cause and prejudice for

each of the defaulted claims, based on appellate counsel's alleged ineffectiveness

for failing to raise the defaulted claims as issues on direct appeal. Because it would

be simpler to review all of petitioner's claims on the merits, the Court elects to

resolve them solely on that basis. See La,nbrix v. Singletary, 520 U.S. 518, 525

(1997); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).

For purposes of the discussion below, petitioner's claims have been

reordered to correspond to the approximate chronology of his criminal proceeding.

A. Alleged suppression of exculpatory evidence (Grounds One and Nine).

In Grounds One and Nine, petitioner claims that exculpatory evidence was

withheld from the defense. (ECF No. 1 at 9, 17, 19.)

Legal standard.

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that

"the suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution." In

Giglio v. United States, 405 U.S. 150, 154 (1972), the Supreme Court extended the

Brady rule to impeachment evidence, if the reliability of the witness may be

determinative of the defendant's guilt or innocence. The obligation extends to

favorable evidence regardless of whether it was requested by the defense. See

Kyles v. Whitley, 514 U.S. 419, 433 (1995); Carriger v. Stewart, 132 F.3d 463, 479

(9th Cir. 1997). A Brady violation has three components: "The evidence at issue

must be favorable to the accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the State, either willfully

or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S.

263, 281-82 (1999); Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir. 2008).

Evidence from the victim's medical record (Ground One).

In Ground One, petitioner claims that his right to exculpatory evidence was

violated by the admission of a redacted portion of Blanca Doe's medical record of

her hospitalization from the attack. (ECF No. 1 at 9.)

During trial, the prosecutor introduced 5 pages from Blanca's medical record,

which totaled 148 pages. (4 RI 929-35; Petition Exhibit A at 78-84.) The selected

pages, in which Blanca told hospital workers that petitioner had assaulted her, were

introduced to impeach Blanca's trial testimony that her injuries were caused by a

slip and fall. (4 RI 930.) Petitioner's trial counsel objected to the selective

.introduction of the evidence, arguing that the jury should see more of Blanca's

medical record. (4 RT 933.) The trial court responded that "you can use whatever

medical record that are in the subpoenaed documents that you wish." (4 RT 935.)

Trial counsel responded "okay." (Id.)

Petitioner claims that the remaining parts' of Blanca's medical record would

have contradicted the prosecutor's theory of an assault. (ECF No. 1 at 9.)

According to petitioner, the "undisclosed" record would have shown that Blanca's

injuries were caused by her sinus problem, her brain tumor, and a metal plate in her

head. (Traverse at 9.) The California Court of Appeal rejected petitioner's Brady

claim, concluding that petitioner had "failed to demonstrate that material evidence

was not disclosed at trial." (Lodgment 16 at 1.)

The Court of Appeal's rejection of this claim was not objectively

unreasonable. Petitioner has not shown that the medical evidence at issue was

suppressed by the prosecution, as required by Brady. To the contrary, petitioner's

trial counsel was aware of Blanca's medical record in its entirety and had reviewed

its contents. (4 RT 934.) If Blanca's medical record said what petitioner claims,

trial counsel was not prevented from presenting it. Petitioner therefore cannot show

Brady error. See United States v. Bracy, 67 F.3d 1421, 1428 (9th Cir. 1995)

26 (defendant can-not show suppression of Brady material where government made

requisite disclosure to the defense) (citing cases).

Petitioner further claims that this alleged error was compounded by the trial

court and trial counsel: The trial court "allowed" the prosecutor to suppress the

exculpatory medical evidence, and trial counsel failed to object to the redaction.

(ECF No. 1 at 9.) To the contrary, the trial court did not allow any Brady error

because there was no suppression of exculpatory evidence. And trial counsel did in

fact object to the redaction, but was overruled and given the opportunity to

introduce any portions of Blanca's medical record as part of the defense. (4 RT

935.)

In sum, the California Court of Appeal's rejection of this claim did not result

in a decision that was contrary to, or involved an unreasonable application of,

clearly established federal law.

In Ground Nine, petitioner claims that exculpatory evidence from the

Evidence from the audiotape of petitioner's arrest (Ground Nine).

audiotape of his arrest was withheld and destroyed. (ECF No. 1 at 17, 19.)

The prosecutor introduced an audiotape of petitioner's arrest taken from

Sergeant Baker's dashcam recorder. (2 CT 210-24.) According to petitioner, a

second recording was secretly made by Officer Suess and would have shown that

the arresting officers used excessive force on petitioner and arrested him in bad

faith. (ECF No. at 17, 19.) Petitioner's allegation that such evidence was created

and then was "withheld and destroyed" is based on an inference he draws from the

trial testimony of Officer Suess, one of the arresting officers. Officer Suess

testified that he and his partner lacked any recording device when they first arrived

at the crime scene. (4 RT 907; Petition Exhibit A at 70.) But a few minutes later,

another officer, Sergeant Baker, arrived at the crime scene in a vehicle equipped

with a dashcam recorder. (4 RT 914.) The officers used Sergeant Baker's dashcam

recorder to make an audio recording of the events leading to petitioner's arrest. (3

RT 801.) Officer Suess testified about how the microphone on a dashcam recorder

A:.

worked: "I have a pouch, mine's not in the case as of now, but there's a

Pil

microphone that sits in there." (4 RT 916; Petition Exhibit A at 75.) Apparently,

petitioner is inferring from this "I have a pouch" testimony that Officer Suess

admitted that he personally made his own recording of petitioner's arrest and never

disclosed it. (ECF No. 1 at 17, 19.)

The California Court of Appeal rejected petitioner's Brady claim, concluding

that there was not "any indication that material evidence in the case was

deliberately destroyed in bad faith." (Lodgment 16 at 1.)

The Court of Appeal's rejection of this claim was not objectively

unreasonable. Petitioner's premise that Officer Suess secretly made another

recording of petitioner's arrest is based on an unreasonable inference from the

record. Officer Suess' s testimony does not permit any reasonable inference that he

admitted to secretly recording petitioner's arrest. When Officer Sues testified that

"I have a pouch," he was testifying about how dashcam recorders work in general,

not about any particular methods he employed in this case. (4 RT 916.) Petitioner

has adduced no credible evidence of the existence of a second audio recording.

In sum, the California Court of Appeal's rejection of this claim did not result

in a decision that was contrary to, or involved an unreasonable application of,

clearly established federal law; nor was it based on an unreasonable determination

of the facts in light of the evidence presented in the state court proceeding.

Allegedly erroneous admission of evidence (Ground Three).

In Ground Three, petitioner claims that the trial court erred in admitting

portions of Blanca Doe's medical record. (ECF No. 1 at 11.)

As noted, the prosecutor presented a redacted portion of Blanca's medical

record in which Blanca told hospital staff that petitioner had assaulted her.

Petitioner claims that this evidence lacked "foundation" and consisted of "hearsay"

because the physician who wrote the medical record was not called to testify. (ECF

No. 1 at 11.)

State-law evidentiary claim.

Petitioner's claim that the medical record lacked foundation under

California's evidentiary rules is not cognizable on federal habeas review.

Johnson v. Sublett, 63 F.3d 926, 931 (9th Cir. 1998) (challenge to admissibility of

evidence on state-law foundational grounds raises no federal habeas issue) (citing

Estelle v. McGuire, 502 U.S. 62, 68 (1991)); see also Jaininal v. Van de Kamp, 926

F.2d 918, 919 (9th Cir. 1990 (federal habeas courts do not review questions of state

evidence law); Windham v. Merkie, 163 F.3d 1092, 1103 (9th Cir. 1998) (same).

See

Confrontation Clause claim.

Petitioner's related claim that the medical record consisted of hearsay,

because the authoring physician did not appear at trial, appears to be a claim that

his federal constitutional right of confrontation was violated.

In Crawford v. Washington, 541 U.S. 36, 54 (2004), the Supreme Court held

that the Confrontation Clause bars the "admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination." But "non-

testimonial statements do not implicate the Confrontation Clause." Moses i'. Payne,

555 F.3d 742, 754 (9th Cir. 2009) (citing Whorton v. Bockting, 549 U.S. 406, 420

(2007)). In Williams v. Illinois, 567 U.S. 50, 82 (2012), a plurality of Justices

discussed two characteristics of testimonial statements: (1) they involve out-of-

court statements having the primary purpose of accusing a targeted individual of

engaging in criminal conduct; and (2) they involve formalized statements such as

affidavits, depositions, prior testimony, or confessions.

Petitioner has not clearly identified what statements from Blanca's medical

record were erroneously admitted in violation of the Confrontation Clause, but any

possible construction of petitioner's claim does not raise a constitutional issue. To

the extent that petitioner is challenging the admission of Blanca's own statements to

her physicians (Traverse at 23), no confrontation error could have occurred in this

regard because Blanca appeared at trial and was cross-examined by the defense. To

the extent that petitioner is challenging the admission of any statements made by a

non-testifying physician (ECF No. 1 at 11), petitioner has not identified what those

statements were. Nothing in the record suggests that the jury saw a statement by a

physician that was inculpatory of petitioner. And as a general matter, statements

from medical records are not considered testimonial because, by their nature, they

are usually generated for purposes of diagnosis and treatment, rather than for the-

primary purpose of proving some fact in a future criminal prosecution.

See

Michigan v. Bryant, 562 U.S. 344, 362 n.9 (2011); see also Moses, 555 F.3d at 755

(statements from medical record made for purposes of diagnosis and treatment,

rather than to inculpate petitioner, were non-testimonial). Nor was there anything

in the statecourt record to indicate that the portion of Blanca's medical record

introduced into evidence had the requisite formality of an affidavit, deposition,

prior testimony, or confession.

Thomas, J.); Bullconiing v. New Mexico, 564 U.S. 647, 664-65 (2011); Melendez-

Diaz v. Massachusetts, 557 U.S. 305, 310 (2009).

See Williams, 567 U.S. at 111 (conc. op. of

In sum, petitioner has not met his burden of showing that the admission of a

portion of Blanca's medical record raised an issue under the Confrontation Clause.

Accordingly, the California Court of Appeal's rejection of this claim did not result

in a decision that was contrary to, or involved an unreasonable application of,

clearly established federal law.

Alleged insufficiency of the evidence (Ground Ten).

In Ground Ten, petitioner claims that the evidence presented at trial was

insufficient to support his convictions. (ECF No. 1 at 18.)

I/I

The Due Process Clause of the Fourteenth Amendment protects a criminal

defendant from conviction "except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged." In re Winship, 397

U.S. 358, 364 (1970); accord Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.

2005). Thus, a state prisoner who alleges that the evidence introduced at trial was

insufficient to support the jury's findings states a cognizable federal habeas claim.

Legal standard.

See Herrera v. Collins, 506 U.S. 390, 401-02 (1993). But the prisoner faces a

"heavy burden" to prevail on such a claim. See Juan H., 408 F.3d at 1274, 1275

n.13. Under Jackson v. Virginia, 443 U.S. 307, 319 (1979) (italics in original), the

question is whether "any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt."

When determining the sufficiency of the evidence, a reviewing court makes

no determination of the facts in the ordinary sense of resolving factual disputes.

See Sarausad v. Porter, 479 F.3d 671, 678 (9th Cir.), vacated in part, 503 F.3d 822

(9th Cir. 2007), rev'd on other grds, 555 U.S. 179 (2009). Rather, the reviewing

court "must respect the province of the jury to determine the credibility of

witnesses, resolve evidentiary conflicts, and draw reasonable inferences from

proven facts by assuming that the jury resolved all conflicts in a manner that

supports the verdict." See Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995);

see also Jackson, 443 U.S. at 319, 324, 326. Thus, in determining the sufficiency

of the evidence, "the assessment of the credibility of witnesses is generally beyond

the scope of review." See Schlup v. Delo, 513 U.S. 298, 330, 115 S. Ct. 851, 130

L. Ed. 2d 808 (1995); see also United States v. Lindsey, 634 F.3d 541, 552 (9th Cir.

2011); Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) ("A jury's credibility

determinations are.

entitled to near-total deference under Jackson.").

Moreover, while "mere suspicion or speculation cannot be the basis for the

creation of logical inferences," see Maass, 45 F.3d at 1358 (citation omitted),

"'[c]ircumstantial evidence can be used to prove any fact, including facts from

which another fact is to be inferred, and is not to be distinguished from testimonial

evidence insofar as the jury's fact-finding function is concerned," Payne v. Borg,

982 F.2d 335, 339 (9th Cir. 1992) (citation omitted). Furthermore, "to establish

sufficient evidence, the prosecution need not affirmatively 'rule out every

hypothesis except that of guilt." Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir.

2000) (en banc) (quoting Wright v. West, 505 U.S. 277, 296 (1992) (plurality

opinion)).

A state court's resolution of an insufficiency of the evidence claim'.is

evaluated under 28 U.S.C. § 2254(d)(1), not § 2254(d)(2). See Emery v. Clark, 643

F.3d 1210, 1213-14 (9th Cir. 2011) ("When we undertake collateral review of a

state court decision rejecting a claim of insufficiency of the evidence pursuant to 28

U.S.C. § 2254(d)(i),

contrary to or reflected an unreasonable application of Jackson to the facts of a

particular case."); see also Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013)

("The pivotal question, then, is whether the California Court of Appeal

unreasonably applied Jackson in affirming Petitioner's conviction for second-

degree murder."); Boyer v, Belleque, 659 F.3d 957, 965 (9th Cir. 2011) ("[T]he

state court's application of the Jackson standard must be 'objectively unreasonable'

to warrant habeas relief for a state court prisoner."); Juan H., 408 F.3d at 1275

("[W]e must ask whether the decision of the California Court of Appeal reflected an

'unreasonable application of' Jackson and Winship to the facts of this case.") (citing

28 U.S.C. § 2254(d)(1)).

we ask only whether the state court's decision was

Finally, in adjudicating an insufficiency of the evidence claim, a federal

habeas court "look[s] to [state] law only to establish the elements of [the crime] and

then turn[s] to the federal question of whether the [state court] was objectively

unreasonable in concluding that sufficient evidence supported [the conviction]."

See Juan H., 408 F.3d at 1278 n.14 (citing Jackson, 443 U.S. at 324 n.16); Chein v.

Shuinsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc) ("The Jackson standard must

be applied with explicit reference to the substantive elements of the criminal

offense as defined by state law.") (internal quotation marks omitted).

Petitioner was convicted of three offenses: willful infliction of corporal

injury on a cohabitant, misdemeanor assault, and false imprisonment. The jury also

found true an allegation that petitioner personally inflicted great bodily injury

during the commission of offense of willful infliction of corporal injury. It would

not have been objectively unreasonable for the California Court of Appeal to

conclude that sufficient evidence supported each of the jury's findings.

Analysis.

Willful infliction of corporal injury (Cal. Penal Code § 273.5(a)) is

committed when a direct application of force by the defendant upon the victim

causes injury. People v. Jackson, 77 Cal. App. 4th 574, 578 (2000). Evidence was

presented that petitioner punched Blanca Doe, threw her around like a "rag doll" in

the kitchen, and dragged her by the hair toward the shower, where he punched and

kicked her. (3 RT 806-07, 813-14.) A reasonable jury could conclude that

petitioner willfully inflicted corporal injury on a cohabitant.

Any person "who personally inflicts great bodily injury under circumstances

involving domestic violence in the commission of a felony or attempted felony" is

subject to an additional and consecutive term of three, four, or five years. Cal.

Penal Code § 12022.7(e). Great bodily injury is "a significant or substantial

physical injury." See Cal. Penal Code § 12022.7(f). "Proof that a victim's bodily

injury is 'great'

12022.7

injury, the resulting pain, or the medical care required to treat or repair the injury."

People v. Cross, 45 Cal. 4th 58, 66 (2008). "In order to constitute significant or

substantial injury, the damage need not be permanent." People v. Harvey, 7 Cal.

that is, significant or substantial within the meaning of section

is commonly established by evidence of the severity of the victim's

App. 4th 823, 827 (1992). The types of injuries that can constitute great bodily

injury include, for example, burns, abrasions, cuts, and bruises. See Harvey, 7 Cal.

App. 4th at 827-28; People v. Escobar (1992) 3 Cal. 4th 740, 744, 752 (1992)

(en banc). Evidence was presented that Blanca suffered a deep cut over her left eye

and bruises on her face and body. (3 RT 776, 798, 814, 820, 824-25.) She required

emergency medical treatment, including seven sutures on her face. (2 RT 365, 435;

4 RT 948.) A reasonable jury could conclude that petitioner personally inflicted

great bodily injury.

Assault is an unlawful attempt, coupled with a present ability, to commit a

violent injury on the person of another. Cal. Penal Code § 240. "Assault requires

the willful commission of an act that by its nature will probably and directly result

in injury to another (i.e., a battery), and with the knowledge of the facts sufficient to

establish that the act by its nature will probably and directly result in such injury.'

People v. Miceli, 104 Cal. App. 4th 256, 269 (2002). Evidence was presented that

petitioner punched Blanca, threw her around like a "rag doll" in the kitchen, and

dragged her by the hair toward the shower, where he punched and kicked her. (3

RT 806-07, 813-14.) A reasonable jury could conclude that petitioner committed

an assault. Eventually, however, petitioner's sentence for this offense was stayed

under Cal. Penal Code § 654, which prohibits multiple punishments for the same

acts. (4 RT 1836.)

False imprisonment is the unlawful violation of the personal liberty of

another. Cal. Penal Code § 236. False imprisonment is a felony if effected by

violence, menace, fraud, or deceit. People v. Dominquez, 180 Cal. App. 4th 1351,

1356-57 (2010) (citing Cal. Penal Code § 237(a)). Evidence was presented that

petitioner dragged Blanca into the shower and then punched and kicked her in order

to keep her there when she tried to get out. (3 RT 814, 820-21.) Blanca told Office

Suess that petitioner ordered her to stay in the shower and that she obeyed him in

order to avoid another beating. (3 RT 821-22.) A reasonable jury could conclude

that petitioner committed false imprisonment.

Petitioner claims that the evidence was insufficient to support his convictions

primarily because Blanca changed her story after reconciling with petitioner and

claimed that she slipped and fell. The jury, however, made a credibility

determination about Blanca's various accounts, and the Court has no basis to revisit

that determination. See Bruce, 376 F.3d at 957. A reasonable jury could find that

Blanca's initial account of an attack

such as the 911 calls, the officer's testimony, and the evidence of her injuries

was more credible than her post-reconciliation account of a slip and fall. Moreover,

the Court must presume that any conflicting inferences that could be drawn from

Blanca's testimony were resolved by the jury in favor of the prosecution. See

Jackson, 443 U.S. at 326; see also Cavazos V. Smith, 565 U.S. 1, 7 (2011) (rejecting

insufficiency-of-the-evidence claim where the jury "was presented with competing

views of how [the victim] died" and credited the prosecutor's theory).

which was consistent with other evidence

In sum, the California Court of Appeal's rejection of this claim did not

involve an unreasonable application of the Jackson standard.

Trial counsel's alleged ineffectiveness during trial (Grounds Two and

Four).

In Grounds Two and Four, petitioner claims that his trial counsel was

ineffective in various respects during trial. (ECF No. I at 10, 12.)

In Strickland v. Washington, 466 U.S. 668, 694 (1984), the Supreme Court

held that there are two components to an ineffective assistance of counsel claim:

"deficient performance" and "prejudice." "Deficient performance" in this context

means unreasonable representation falling below professional norms prevailing at

the time of trial.

Legal standard.

See Strickland, 466 U.S. at 688-89. To show "deficient

IWO

performance," petitioner must overcome a "strong presumption" that his lawyer

"rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment." Id. at 690. Further, petitioner "must identify

the acts or omissions of counsel that are alleged not to have been the result of

reasonable professional judgment." Id. The Court must then "determine whether,

in light of all the circumstances, the identified acts or omissions were outside the

range of professionally competent assistance."

Strickland recognized that "it is all too easy for a court, examining counsel's

defense after it has proved unsuccessful, to conclude that a particular act or

omission of counsel was unreasonable." Id. at 689. Accordingly, to overturn the

strong presumption of adequate assistance, petitioner must demonstrate that "the

challenged action cannot reasonably be considered sound trial strategy under the

circumstances of the case." See Lord v. Wood, 184 F.3d 1083, 1085 (9th Cir.

1999).

Id.

The Supreme Court in

To meet his burden of showing the distinctive kind of "prejudice" required

by Strickland, petitioner must affirmatively "show that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome." See Strickland, 466 U.S. at 694; see also

Richter, 562 U.S. at 111 ("In assessing prejudice under Strickland, the question is

not whether a court can be certain counsel's performance had no effect on the

outcome or whether it is possible a reasonable doubt might have been established if

counsel acted differently."); Lockhart v. Fret-well, 506 U.S. 364, 372 (1993) (noting

that the "prejudice" component "focuses on the question whether counsel's

deficient performance renders the result of the trial unreliable or the proceeding

fundamentally unfair")

Moreover, it is unnecessary to address both Strickland requirements if the

petitioner makes an insufficient showing on one. See Strickland, 466 U.S. at 697

•

("If it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice,

796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test

obviates the need to consider the other."); Williams v. Calderon, 52 F.3d 1465,

1.470 and n.3 (9th Cir, 1995) (disposing of an ineffective assistance of counsel

claim without reaching the issue of deficient performance because petitioner failed

to make the requisite showing of prejudice).

that course should be followed."); Rios v. Rocha, 299 F.3d

In Richter, the Supreme Court reiterated that the AEDPA requires an

additional level of deference if state court has rejected an ineffective assistance of

counsel claim. "The pivotal question is whether the state court's application of the

Strickland standard was unreasonable. This is different from asking whether

defense counsel's performance fell below Strickland's standard." See Richter, 562

U.S. at 101. As the Supreme Court further observed (id. at 105):

"Surmounting Strickland's high bar is never an easy task.'

Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 1485, 176

L. Ed. 2d 284 (2010). An ineffective-assistance claim can function as

a way to escape rules of waiver and forfeiture and raise issues not

presented at trial, and so the Strickland standard must be applied with

scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity

of the very adversary process the right to counsel is meant to serve.

Strickland, 466 U.S., at 689-690, 104 S. Ct. 2052. Even under de novo

review, the standard for judging counsel's representation is a most

deferential one. Unlike a later reviewing court, the attorney observed

the relevant proceedings, knew of materials outside the record, and

interacted with the client, with opposing counsel, and with the judge.

It is 'all too tempting' to 'second-guess counsel's assistance after

conviction or adverse sentence.' Id., at 689, 104 S. Ct. 2052; see also

Bell v. Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d 914

(2002); Lockhart v. Fretweli, 506 U.S. 364, 372, 113 S. Ct. 838, 122

L. Ed. 2d 180 (1993). The question is whether an attorney's

representation amounted to incompetence under 'prevailing

professional norms,' not whether it deviated from best practices or

most common custom. Strickland, 466 U.S., at 690, 104 S .Ct. 2052.

"Establishing that a state court's application of Strickland was

unreasonable under § 2254(d) is all the more difficult. The standards

created by Strickland and § 2254(d) are both 'highly deferential,' id.,

at 689, 104 S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117

S. Ct. 2059, 138 L. Ed. 2d 481 (1997), and when the two apply in

•11

tandem, review is 'doubly' so, Knowles, 556 U.S., at

1420. The Strickland standard is a general one, so the range of

reasonable applications is substantial. 556 U.S., at 123, 129 S. Ct. at

1420. Federal habeas courts must guard against the danger of equating

unreasonableness under Strickland with unreasonableness under

§ 2254(d). When § 2254(d) applies, the question is not whether

counsel's actions were reasonable. The question is whether there is

any reasonable argument that counsel satisfied Strickland's deferential

standard."

129 S. Ct. at

In Ground Two, petitioner claims that his trial counsel was ineffective for

failing to object to the admission of the audio recording of his arrest under Miranda

v. Arizona, 384 U.S. 436 (1966). The audio recording of the events leading to

petitioner's arrest was captured, as noted, from Sergeant Baker's dashcam recorder.

(2 CT 210-24.)

Failure to object to the audio recording (Ground Two).

A motion by trial counsel under Miranda would have been meritorious if trial

counsel could have shown that statements were elicited from petitioner as a result

of custodial interrogation without a Miranda warning. An officer's obligation to

give Miranda warnings to a suspect applies if the person is subjected to "either

express questioning or its functional equivalent." See Rhode Island v. Innis, 446

U.S. 291, 300-01 (1980). in other words, "interrogation" for purposes of Miranda

refers not only to express questioning, but also to any words or actions on the part

of the police officers that "they should have known were reasonably likely to elicit

an incriminating response." See id. at 301 (italics in original); Pennsylvania v.

Muniz, 496 U.S. 582, 600-01 (1990) (plurality opinion).

Petitioner has not identified any particular self-incriminating statements

captured on the audio recording that were elicited in violation of Miranda, but he

appears to be challenging the statements highlighted by the prosecutor in her

closing argument. The prosecutor highlighted three types of statements petitioner

made on the audio recording. First, petitioner could be heard complaining of police

brutality, leading to him screaming and throwing a fit. (4 RT 10 11-12; see also 2

CT 218.) Second, petitioner could be heard calling the victim derogatory names

such as "bitch," "puta," "thief," and "liar." (4 RT 1012; see also 2 CT 215, 216.)

Third, petitioner could be heard claiming that he had acted in self-defense. (4 RT

1013; see also 2 CT 216.)

None of these three types of statements by petitioner was protected by

Miranda because none of them was the product of express questioning or its

equivalent. Rather, petitioner made each' of the statements spontaneously and

voluntarily, without any prompting by the officers. See Miranda, 384 U.S. at 478

(voluntary statements are not subject to Miranda warnings). Accordingly, trial

counsel would have had no grounds to bring a motion under Miranda.

In sum, it would not have been objectively unreasonable for the California

Court of Appeal to reject this claim because petitioner had failed to show deficient

performance and prejudice under the Strickland standard.

Failure to present a defense and call favorable witnesses (Ground

Four).

In Ground Four, petitioner claims that his trial counsel was ineffective in

several other respects in conducting petitioner's defense at trial.

As discussed

below, the California Court of Appeal's rejection of this claim, for failure to show

both deficient performance and prejudice under the Strickland standard, was not

objectively unreasonable.

Petitioner claims that his trial counsel was ineffective for failing to impeach'

Officer Suess about the destruction of the secret audio recording of petitioner's

arrest and about the alteration of photographs of Blanca's injuries. Neither of these

iH claims has any basis in the record. The record does not permit a reasonable

inference that Officer Suess secretly made his own audio recording of petitioner's

arrest, as discussed above. Likewise, the record does not permit a reasonable

inference that the government altered photographs of Blanca's injuries. In any

event, before trial began, during a brief period when petitioner was representing

himself, petitioner did bring a motion to exclude the prosecutor's photographs of

Blanca, but his motion was denied. (2 RT C-9 to C-12; Petition Exhibit A at 26-

29.) Any further objection by trial counsel on this point therefore would have been

futile. See James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (trial counsel cannot be

ineffective for failing to bring a motion that had already been denied). Moreover,

the photographs were not the only evidence of Blanca's injuries: The jury heard

testimony 'that Blanca's wounds led to severe bleeding and required emergency

medical treatment. Accordingly, there was no reasonable probability that, but for

trial counsel's failure to move to exclude the photographs, the trial court would

have granted the motion as meritorious and the result of the trial would have been

different.

Petitioner similarly claims that his trial counsel was ineffective for failing to

object to any of the prosecutor's exhibits. (4 RT 952; Petition Exhibit A at 88.)

Petitioner's failure to clearly identify what exhibits should have been excluded,

apart from the photographs of Blanca's injuries, is sufficient for the Court to find

that the California Court of Appeal's rejection of this claim was not objectively

unreasonable.

(rejecting ineffective assistance claim where petitioner makes only a "cursory and

vague" claim and "does not allege what specific facts or information" counsel

should have pursued).

See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011)

Petitioner claims that. his trial counsel was ineffective for failing to present an

expert witness who could have contradicted the prosecutor's theory that- petitioner

attacked Blanca. As support, petitioner cites a report prepared for the defense by

Dr. Ryan O'Connor in June 2014, approximately five months after the attack.

(ECF No. 1 at 25-27; Petition Exhibit A at 2-4.) Upon reviewing Blanca's court

and medical records, Dr. O'Connor concluded that Blanca's facial laceration could

have been caused either by an attack or by an accidental slip and fall. (Id.)

To the extent that petitioner is contending that trial counsel should have

called Dr. O'Connor as an expert witness for the defense, he has shown neither

deficient performance nor prejudice. The central issue at trial of what caused

Blanca's injuries was not resolved through medical experts. Dr. O'Connor's

opinion was inconclusive about the cause of Blanca's laceration. Similarly, the

prosecutor presented no expert medical evidence (4 RT 1080) and in particular,

presented no expert medical opinion that Blanca's laceration was intentionally

inflicted. The only medical evidence presented at trial was five pages of Blanca's

medical records, introduced for the sole purpose of impeaching her credibility with

her prior inconsistent statements about the cause of her injuries. (4 RT 929-35.)

Indeed, the jury's finding as to the cause of Blanca's injuries depended on the jury's

credibility determination of the eyewitnesses, including Blanca herself.

Dr. O'Connor's neutral opinion would have added nothing in that regard.

Petitioner claims that his trial counsel was ineffective for failing to present a

defense of self-defense. When he was arrested, petitioner told the arresting officers

that Blanca had attacked him first. (2 CT 216-17.) A defense of self-defense built

on this flimsy evidence, however, would have conflicted with the defense that trial

counsel actually chose to present at trial: a defense of reasonable doubt, based on

Blanca's own trial testimony that she accused petitioner of assault only because she

was angry with him and that her injuries were in fact caused by a slip and fall. Trial

counsel had a reasonable basis to select this defense because it was based on the

victim's own trial testimony. In comparison, trial counsel's only evidence for a

defense of self-defense would have been petitioner's self-serving statements and

possibly the testimony of his mother. Trial counsel's failure to present a defense of

self-defense was not unreasonable under these circumstances.

Calderon, 163 F.3d 1073, 1082 (9th Cir. 1998) (once trial counsel reasonably

selects a defense, he has no obligation to pursue a conflicting defense); Turk v.

White, 116 F.3d 1264, 1167 (9th Cir. 1997) (same).

See Bean v.

In sum, it would not have been objectively unreasonable for the California

1,6

Court of Appeal to reject each of petitioner's claims of ineffective assistance of trial

counsel, before and during trial, on the grounds that petitioner had failed to show

deficient performance and prejudice.

Prosecutor's alleged misconduct (Ground Five).

In Ground Five, petitioner claims that the prosecutor committed misconduct

by misstating the evidence and presenting false evidence. (ECF No. I at 13.)

Federal habeas review of prosecutorial misconduct claims is limited to the

narrow issue of whether the alleged misconduct violated due process. See Donnelly

v. DeChristoforo, 416 U.S. 637, 642 (1974); Thompson v. Borg, 74 F.3d 1571, 1, 576

(9th Cir. 1996). Misconduct is reviewed in light of the entire trial record, and relief

Legal standard.

001

will be granted only if the misconduct by itself so infected the trial with unfairness

as to make the resulting conviction a denial of due process. See Donnelly, 416 U.S.

at 639-43; see also Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of

due process analysis in cases of alleged prosecutorial misconduct is the fairness of

the trial, not the culpability of the prosecutor"). Under Darden v. Wainwright, 477

U.S. 168, 181-83 (1986), the first issue is whether the prosecutor's remarks or

conduct were improper; if so, the next question is whether such remarks or conduct

infected the trial with unfairness. See Tak Sun Tan v. Runnels, 413 F.3d 1101, 1112

(9th Cm 2005). In the absence of misconduct by the prosecutor, the Court need not

reach the issue of whether the conduct in question infected the trial with unfairness.

See id.

Petitioner claims that the prosecutor committed misconduct in several broad

instances. (ECF No. 1 at 13.) For the following reasons, however, it would not

have been objectively unreasonable for the California Court of Appeal to reject

each of these claims because the prosecutor's alleged acts or statements did not

Analysis.

I constitute misconduct.

Petitioner claims that the prosecutor misled the jury into thinking that Blanca

had sought a protective order against petitioner. Although a protective order was in

fact issued, Blanca testified that she did not request it. (3 RT 665-66.) In fact,

shortly after it was issued, Blanca unsuccessfully tried to have the protective order

modified. (Petition Exhibit A at 7; ECF No. 1 at 30.) At trial, the protective order

was admitted as evidence over the defense's objection. (4 RT 955.) The trial court

ruled that it was admissible to impeach Blanca: She disregarded the protective

order by continuing to communicate with petitioner, thereby showing her bias

against the government. (Id.) At the sentencing hearing, Blanca again pointed out

WE that she had not requested the protective order. (4 RT 1830-31.)

Contrary to petitioner's characterization of the prosecutor's actions and

statements, the prosecutor did not mislead the jury into thinking that Blanca had

sought the protective order. The jury heard Blanca testify, that she did not request

it. (3 RT 665-66.) Although the prosecutor did mention in her closing argument

that Blanca had violated a protective order, she did not suggest that it was Blanca

who had requested it in the first instance. (4 RT 1004-05.) Accordingly, the

prosecutor did not cOmmit misconduct by misleading the jury about the

circumstances of the protective order.

Petitioner also claims that the prosecutor misstated the evidence about

Blanca's blood from her injuries. In her opening statement, the prosecutor said that

•11

Blanca "bled a lot" from the injury to her face and that petitioner dragged Blanca by

her hair to the shower. (2 RT 303; Petition Exhibit A at 34.) In her closing

statement, the prosecutor repeatedly said that there was "blood everywhere" from

the "gash" on Blanca's head and that petitioner dragged Blanca by her hair into the

bathroom. (4 RT 1006, 1085; Petition Exhibit A at 113.) According to petitioner,

no evidence supported the prosecutor's statements that "there was blood

everywhere," that "there was a bloody rag," and that petitioner dragged Blanca by

the hair across a "rug full of blood."

Contrary to petitioner's characterization of the evidence, witnesses testified

that they saw a lot of blood on the day of the incident. Blanca testified that her cut

bled "tremendously" and that there was blood "everywhere," including her

clothing, the floor, and the kitchen cabinet. (2 RT 340, 341.) Irene Alvarez

testified that the towel she used to help Blanca had blood on it. (3 RT 716.)

Officer Suess testified that Irene Alvarez was holding a towel with "blood all over

it" and that Blanca had "blood running down her face." (3 RT 798.) Officer Suess

also testified that Blanca said petitioner dragged her by the hair toward the shower.

(3 RT 814.) In light of all this testimony, the prosecutor did not commit

misconduct by overstating the evidence about the blood resulting from Blanca's

injuries.

Petitioner further claims that the prosecutor made several other false or

misleading statements. As discussed below, each of petitioner's claims is belied by

the record, with the single exception of a minor misstatement by the prosecutor.

Petitioner points out that the prosecutor made a misstatement about his

conviction. The prosecutor wrote in a sentencing memorandum that petitioner had

committed assault with force likely to produce great bodily injury. (2 CT 329.)

This was a misstatement because petitioner in fact had been convicted of only

misdemeanor assault. (2 CT 273-74.) But the error could have had no effect on

any subsequent proceeding because the sentencing court was well-aware of

petitioner's conviction of the lesser offense. (4 RT 1501, 1801, 1836.)

Petitioner, also claims that the prosecutor's closing argument contained

misstatements. Contrary to petitioner's claims, the prosecutor's statements were

permissible inferences from the evidence or directly supported by the evidence.

The prosecutor stated that petitioner had manipulated Blanca. (4 RT 1818, 1819.)

This was a permissible inference from the evidence, which reflected that Blanca

changed her account of the incident after reconciling with. petitioner. (2 RT 399.)

The prosecutor stated that petitioner threw Blanca around like a rag doll and

dragged her by her hair. (4 RT 1005, 1006.) These statements were supported by

the evidence. (3 RT 806, 813-814.) The prosecutor stated that petitioner had

complained about police brutality. (4 RI 1011.) This statement was supported by

the evidence. (3 RT 800; 2 CT 218.)

Petitioner also claims that the prosecutor made misstatements about

petitioner's criminal history for purposes of sentencing, but this claim also is belied

by the record. Petitioner claims that the prosecutor falsely said petitioner had been

arrested for robbery and rape, but the prosecutor made no such statement.

Petitioner claims that the prosecutor falsely said at the sentencing hearing that he

had violated his parole, but the prosecutor's statement Was supported by petitioner's

probation report. (4 RT 1835; Sealed Lodgment 19 at 8, 13).

In sum, none of the instances identified by petitioner amounted to

prosecutorial misconduct. The California Court of Appeal's rejection of this claim

did not result in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law.

Alleged juror Bias (Ground Six).

In Ground Six, petitioner claims that his right to an impartial jury was

violated because some, of the jurors had scheduling conflicts. (ECF No. 1 at 14.)

A criminal defendant has a Sixth Amendment right to a "fair trial by a panel

of impartial, 'indifferent' jurors." Irwin v. Dowd, 366 U.S. 717, 722 (1961); Dyer

v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998). If only one juror is unduly biased

or prejudiced or improperly influenced, the criminal defendant is denied his Sixth

Amendment right to an impartial panel." United States v. Hendrix, 549 F.2d 1225,

1227 (9th Cir. 1977); Dyer, 151 F.3d at 973.

On the day that deliberations began, the jurors sent the trial court a note

stating in part, "Some jurors are unavailable tomorrow." (4 RT 1100; 2 CT 228.)

The trial court addressed the jurors about their scheduling issues. (4 RT 1102-03.)

One juror said that her childcare was going to be "maxed out." (4 RT 1103.) Two

jurors each had doctor's appointments the next morning. (4 RT 1103-04.) One

juror had to go to back to work the next day, so she was given a note for her

employer. (4 RT 1105.) In order to accommodate the jurors' scheduling issues, the

trial court recessed deliberations until 1:30 the next day. (4 RT 1105.)

The jurors returned to court the next day at 1:30. (4 RT 1201.) When this

afternoon session began, the trial court answered an unrelated question (about the

definition of the word "likely") and had the jurors resume deliberations. (4 RT

1201-02.) An hour later, they reached a verdict. (4 RT 1203-05; 2 CT 284.)

Petitioner points to the duration of the deliberations, apparently to argue that

the jurors' scheduling conflicts caused them to rush to judgment. (ECF No. 1 at

14.) But the length of a jury's deliberations, by itself, does not prove juror bias.

See United States v. Anderson, 561 F.2d 1301, 1303 (9th Cir. 1977) ("There is no

established rule that any specified time is required to reach unanimity."); United

States v. Caro-Quintero, 769 F. Supp. 1564, 1582 (C.D. Cal. 1991) ("A rushed

verdict is not necessarily prejudicial to defendant."); United States v. Aguilera, 625

F.3d 482, 487 (8th Cir. 2010) ("We agree with other circuits that brief jury

deliberation alone is not a sufficient basis for a new trial."); see also Marx v.

Hartford Acc. & Indein. Co., 321 F.2d 70, 71 (5th Cir. 1963) ("We cannot hold an

hour-glass over the jury. If the evidence is sufficient to support the verdict, the

length of time the jury deliberates is immaterial.")

This was not a complex case, and the evidence was not voluminous. It was

not suspicious under these circumstances that the jury took 1 hour to reach its

verdict. See Wall v. United States, 384 F.2d 758, 762 (10th Cir. 1967) (finding no

irregularity where jury took 1 hour to deliberate after 8 days of trial); United States

v. Brotherton, 427 F.2d 1286, 1289 (8th Cir. 1970) (same where jury deliberated for

5 to 7 minutes); Ki,nes v. United States, 242 F.2d 99, 100 (5th Cir. 1957) (same

where jury deliberated for 20 minutes).

Petitioner also apparently is arguing that the jurors' scheduling conflicts

caused them to make inconsistent findings. (ECF No. 1 at 14.) The alleged

inconsistency is about the issue of great bodily injury: The jury found in Count 2

that petitioner was not guilty of felony assault with force likely to produce great

bodily injury, yet it also found with respect to Count 1 that petitioner personally

inflicted great bodily injury. (2 CT 272-73.) These findings were not inconsistent.

The jury's focus of Count 2 was "on the force used, not the injury actually

inflicted." See People v. Johnson, 244 Cal. App. 4th 384, 396 n.8 (2016). Thus,

the jury's finding in Count 2 did not constitute any implied findings with respect- to

the great-bodily-injury enhancement for Count 1. See id. ("The jury's acquittals on

the assault charges do not constitute implied findings with respect to the nature and

severity of the injuries inflicted.").

And in any event, even if the jury's findings in this regard were inconsistent,

they would afford no basis for federal habeas relief. See Ferriz v. Giurbino, 543

F.3d 990, 992 (9th Cir. 2005) ("The Supreme Court has made it clear that

inconsistent verdicts may stand when one of those verdicts is a conviction and the

other an acquittal.") (citing United States v. Powell, 469 U.S. 57, 65 (1984), and

Dunn v. United States, 284 U.S. 390, 393 (1932)).

In sum, petitioner has not shown that either the jurors' scheduling issues or

their eventual verdicts demonstrated an absence of impartiality. It therefore would

not have been objectively unreasonable for the California Court of Appeal to reject

petitioner's juror-bias claim.

Trial counsel's alleged ineffectiveness at sentencing (Ground Seven).

In Ground Seven, petitioner claims that his trial counsel was ineffective at

sentencing by failing to investigate the validity of petitioner's prior strike

conviction and failing to inform the trial court that the strike allegation was invalid.

(ECFNo. 1 at 15.)

The prosecutor alleged that petitioner had a prior strike conviction based on a

1991 conviction for attempted murder (Case No. KA005302). (2 CT 335; 4 RT

1504.) '.Petitioner committed the attempted murder, which was gang-related, when

he was 17 years old. (4 RT 1803, 1805.) The trial court found beyond a reasonable

doubt that the strike allegation was true. (4 RT 1523.) Later, at the sentencing

hearing, trial counsel brought a motion to strike the prior conviction under People v.

Superior Court (Roinero), 13 Cal. 4th 497 (1996). (4 RT 1802; 2 CT 320-27.) In

her Romero argument, trial counsel emphasized petitioner's youth and

susceptibility to gang influence at the time of the offense, as well as petitioner's

later attempts to avoid gangs and straighten out his life. (4 RT 1802-07.) The trial

court denied the Romero motion. (4 RT 1823.)

Petitioner contends that his prior conviction for attempted murder was not a

strike conviction because he was sentenced to the California Youth Authority, was

paroled in 1997, never violated his parole, and was regularly audited on parole.

(ECF No. 1 at 15.) According to petitioner, his trial counsel was ineffective for

failing to argue these facts when she brought a motion to strike the allegation under

People v. Superior Court (Romero), 13 Cal. 4th 497 (1996). (ECF No. 1 at 15; 2

CT 320-27.)

It is unclear whether petitioner is claiming that trial counsel should have

disputed the truth of the strike allegation or should have argued more forcefully for

the Romero motion. Neither claim, however, demonstrates that trial'counsel was

ineffective for purposes of sentencing.

Petitioner's prior conviction for attempted murder constituted a strike

conviction under California law. See Cal. Penal Code §§ 667.5 (c)(12) (attempted

murder), 1192.7(c)(9) (attempted murder). Petitioner's alleged commitment at the

California Youth Authority would have made no difference. Although the record is

unclear as to whether petitioner is correct in asserting that he served a term of

confinement in the California Youth Authority (4 RI 1802, 1806), it would have

made no difference under the Three Strikes Law even if he were correct on this

point. See People v. Daniels, 51 Cal. App. 4th 520, 522 (1996), as modified (Jan. 6,

1997) (felony conviction that was expunged upon defendant's honorable discharge

from the California Youth Authority could still later count as a strike under the

Three Strikes Law); People v. Franklin., 57 Cal. App; 4th 68, 73 (1997) (Three

Strikes law applied even though defendant subsequently received a general

discharge from the Youth Authority). Accordingly, any argument by trial counsel

on this basis as an attempt to challenge the truth of strike allegation would have

been meritless. The failure to make a futile or meritless argument does not

constitute ineffective assistance of counsel. See, e.g., Rupe v. Wood, 93 F.3d 1434,

1445 (9th Cir. 1996); James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994); Morrison i'.

Estelle, 981 R2d 425, 429 (9th Cir. 1992); Shah v. United States, 878 F.2d 1156,

1162 (9th Cir. 1989).

Moreover, petitioner's allegedly successful completion of his term of

commitment at the California Youth Authority would not have added any force to

the Romnero argument that trial counsel in fact made. For purposes of submitting a

Roniero motion, an attorney "should investigate a defendant's 'background,

character, and prospects,' and then relay those findings to the court." Daire v.

Lattimore, 818 F.3d 454, 463 (9th Cir. 2016) (quoting People v. Thinimes, 138 Cal.

App. 4th 1207, 1213 (2006)). Trial counsel did so here, in both her written motion

and oral argument. (2 CT 320-27; 4 RT 1802-07.) In particular, trial counsel

argued at length about petitioner's personal circumstances at the time he committed

the attempted murder, including his youth, his chaotic family situation, and his

vulnerability to gang influence. (4 RT 1802-04.) Trial counsel also pointed out

that petitioner had left the gang and was trying to straighten out his life. (4 RT

1806-07.) Petitioner's argument about his successful completion of his term of

commitment at the California Youth Authority is of the same nature as the

arguments that trial counsel already made and that the trial court rejected. It

therefore would not have been objectively unreasonable for the California Court of

Appeal to conclude that trial counsel had met her obligations for purposes of the

Romero motion. See Daire, 818 F.3d at 463 ("Given the litany of mitigating factors

presented at sentencing, it was reasonable for the state court to conclude that

counsel had satisfied her constitutional obligation to [petitioner].").

In sum, it would not have been objectively unreasonable for the California

Court of Appeal to reject this claim because petitioner had failed to show deficient

performance and prejudice under the Strickland standard.

Trial court's alleged sentencing errors (Ground Eight).

In Ground Eight, petitioner claims that the trial court committed multiple

sentencing errors. (ECF No. 1 at 16.)

At the initial sentencing hearing, the trial Court sentenced petitioner to 20

years and 4 months, calculated as follows (4 RT 1834-36):

•

8 years for Count 1, willful infliction of corporal injury (Cal. Penal

Code § 273.5(a)), consisting of the high term of 4 years doubled to

8 years under the Three Strikes Law; plus

Penal Code § 667(a)); plus

•

1 year for petitioner's prior prison term (Cal. Penal Code

§ 667.5(b)); plus

•

5 years for petitioner's prior conviction for a serious felony (Cal.

5 years for the enhancement as to Count 1 for personal infliction of

great bodily injury (Cal. Penal Code § 12022.7(e)); plus

•

1 year and 4 months for Count 3, false imprisonment (Cal. Penal

Code § 236), consisting of one-third of the middle term of 2 years

doubled to 1 year and 4 months under the Three Strikes Law.

Petitioner also was sentenced to 6 months in county jail for Count 2,

misdemeanor assault, but that term was stayed under Cal. Penal Code § 654. (4RT

1836.) And eventually, petitioner's one-year enhancement for a prior prison term,

for his prior conviction of being a felon in possession of a firearm, was reversed on

appeal for insufficient evidence (specifically, because more than 5 years had

elapsed since his release from custody for that conviction and the commission of

the instant crimes). (Lodgment 9.) Thus, petitioner eventually was resentenced to

19 years and 4 months. (Lodgment 10 at 28-29.)

With respect to his eventual sentence, petitioner raises four additional

arguments of sentencing error. According to petitioner, the trial court erred by

(1) imposing an "aggravated sentence" for Count 1 when the evidence showed

mitigation or actual innocence, (2) imposing "consecutive sentence for an allege[d]

single act offense," (3) failing to stay the term for Count 3 under § 654, and

(4) imposing a 5-year enhancement for a prior serious felony conviction that was

"void" because he was found "not guilty" of the prior prison term allegation. (ECF

No. I at 16.)

Federal habeas relief only is available if the petitioner is contending that he is

8- in custody in violation of the Constitution or laws or treaties of the Unitëd States.

See 28 U.S.C. § 2254(a). Federal habeas relief is unavailable for alleged errors in

the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62,

67-68 (1991); Smith v. Phillips, 455 U.S. 209, 221 (1982). Each of 'petitioner's four

sentencing arguments raises only questions as to the interpretation and application

of state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (rejecting petitioner's

claim that a state court misapplied its own aggravating circumstance to the facts of

his case because "federal habeas corpus relief does not lie for errors of state law");

Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) ("The decision

whether to impose sentences concurrently or consecutively is a matter of state

criminal procedure and is not within the purview of federal habeas corpus."); Watts

v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (holding that sentencing error

claim under California Penal Code § 654 is not cognizable on federal habeas

review); Miller v. Vasquez, 868 F.2d 111-6, 1118-19 (9th Cir. 1989) (holding that

sentencing error claim as to whether a prior offense qualified as a "serious felony"

under § 667(a), for purposes of California's sentence enhancement provisions, is

not cognizable on federal habeas review).

Under the foregoing authorities, petitioner's sentencing-error claims are not

cognizable on federal habeas review.

I/I

Appellate counsel's alleged ineffectiveness (Ground Eleven).

In Ground Eleven, petitioner claims that his appellate counsel was ineffective

for failing to investigate the records on appeal, failing to raise the claims raised in

this Petition, and failing to consult with petitioner. (ECF No. 1 at 20.)

Claims of ineffective assistance of appellate counsel are reviewed under the

Strickland standard. Petitioner must show that the performance of appellate

counsel fell below an objective standard of reasonableness and that, for appellate

counsel's professional errors, there is a reasonable probability that petitioner would.

have prevailed on appeal. See Smith v. Robbins, 528 U.S. 259, 285 (2000).

Each of petitioner's proposed claims has been shown to be invalid for the

reasons discussed above. Petitioner therefore has failed to meet his burden of

showing a reasonable probability that he would have prevailed on appeal if his

appellate counsel had raised these issues. See Butcher v. Marquez, 758 E.2d 373,

378 (9th Cir. 1985) ("[Petitioner] claims as well that appellate counsel's failure to

argue the issues presented above constituted ineffective assistance of counsel. In

view of the fact that those claims have been shown to be invalid [petitioner] would

17.

not have gained anything by raising them.").

Moreover, many of petitioner's claims of ineffective assistance of trial

counsel would not have been proper issues on appeal because they were not based

on the appellate record.

("[B]ecause, in general, it is inappropriate for an appellate court to speculate as to

the existence or nonexistence of a tactical basis for a defense attorney's course of

conduct when the record on appeal does not illuminate the basis for the attorney's

challenged acts or omissions, a claim of ineffective assistance is more appropriately

made in a habeas corpus proceeding.")

See People v. Wilson, 3 Cal. 4th 926, 936 (1992)

In sum, the issues appellate counsel failed to raise lacked merit and in some

cases were not appropriate appellate issues. It therefore would not have been

objectively unreasonable for the California Court of Appeal to reject this claim on

the ground that neither Strickland prong was satisfied.

The California Court of Appeal's alleged abuse of discretion in denying

petitioner's habeas petition (Ground Twelve).

In Ground Twelve, petitioner claims that the California Court of Appeal

abused its discretion in denying petitioner's state habeas petition. (ECF No. 1 at

21.)

It is well-settled that claims of error in a state habeas proceeding are not

addressable through federal habeas corpus.. See Franzen V. Brinkman, 877 F.2d 26,

26 (9th Cir. 1989) (per curiam); Cooper v. Neven, 641 F.3d 322, 331 (9th Cir.

2011); Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998); Gerlaugh v. Stewart,

129 F.3d4027, 1045 (9th Cir. 1997); Villafuerte v. Stewart, ill F.3d 616; 632 n.7

(9th Cir. 1997). This is because federal habeas corpus is limited to an attack on a

prisoner's detention, and does not contemplate an attack on a state postconviction

proceeding collateral to that detention. See Franzen, 877 F.2d at 26 ("A habeas

petition must allege the petitioner's detention violates the constitution, a federal

statute, or a treaty."). To the extent that petitioner is challenging any procedures

from his state habeas proceeding, Ground Twelve does not raise a claim that is

cognizable on federal habeas review.

To the extent that petitioner is challenging the substance of the California

Court of Appeal's denial of his habeas petition on the merits, his claims are

meritless under the AEDPA standard of review for the reasons discussed above.

Petitioner therefore has not met his burden of showing that the Court of Appeal's

rejection of his claims was "so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for

fairminded disagreement." See Richter, 562 U.S. at 103.

I/I

MMS

ii K.

Petitioner's request for an eidentiary hearing.

Finally, petitioner requests an evidentiary hearing to resolve his claims.

(Traverse at 27.) The request is denied.

As noted above, the Supreme Court held in Pinhoister, 563 U.S. at 180, that

review of state court decisions under § 2254(d)(1) "is limited to the record that was

before the state court that adjudicated the claim on the merits." By its express

terms, § 2254(d)(2) restricts federal habeas review to the record that wasbefore the

state court. See also Pinhoister, 563 U.S. at 185 n.7 (noting that an unreasonable

determination of fact under § 2254(d)(2) must be unreasonable "in light of the

evidence presented in the State court proceeding," and stating that "[t]he additional

'clarity of § 2254(d)(2) on this point.. does not detract from our view that

§ 2254(d)(1) also is plainly limited to the state-court record."). Thus, federal courts

may not consider new evidence on claims adjudicated on the merits in state court

unless the petitioner first satisfies his burden under § 2254(d) and then satisfies his

burden under § 2254(e)(2). See Pinhoister, 563 U.S. at 181-85; Holland v. Jackson,

542 U.S. 649, 652-53 (2004). Accordingly, the Court's findings above that petitioner

is not entitled to federal habeas relief under the AEDPA standard of review for any

Of his claims are dispositive of petitioner's request for an evidentiary hearing.

1) 1I]3I 1

IT THEREFORE IS ORDERED that (1) the Petition is denied;

(2) petitioner's request for an evidentiary hearing is denied; and (3) this action is

dismissed with prejudice.

DATED: July 18, 2017

ALEXANDER F. MacKINNON

UNITED STATES MAGISTRATE JUDGE

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