Petition for Writ of Certiorari — Rowan Brooks, Petitioner v. Scott Frauenheim, Warden

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APPENDIX

Case: 17-17307, 06/22/2018, ID: 10919028, DktEntry: 3, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

JUN 22 2018

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

ROWAN BROOKS,

Petitioner-Appellant,

JAMES A. YATES, Warden,

Respondent-Appellee.

No.

17-17307

U.S. COURT OF APPEALS

D.C. No.

1:11-cv-01315-LJO-JLT

Eastern District of California,

Fresno

ORDER

Before: PAEZ and RAWLINSON, Circuit Judges.

The request for a certificate of appealability (Docket Entry No. 2) 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.

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROWAN BROOKS,

Petitioner,

ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS (Doc. No. 77)

ORDER DENYING PETITION FOR WRIT

OF HABEAS CORPUS

No. 1:11-cv-01315-LJO-JLT (HC)

ORDER DIRECTING CLERK OF COURT

TO ENTER JUDGMENT AND CLOSE

CASE

JAMES YATES,

Respondent.

ORDER DECLINING TO ISSUE

CERTIFICATE OF APPEALABILITY

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254. On August 24, 2017, the Magistrate Judge assigned to the case issued

Findings and Recommendation to deny the petition on its merits. (Doc. No. 77.) This Findings

and Recommendation was served upon all parties and contained notice that any objections were

to be filed within twenty-one days from the date of service of that order. On October 11, 2017,

Petitioner filed objections to the Magistrate Judge’s Findings and Recommendations. (Doc. No.

80.) Respondent filed a reply to objections on October 19, 2017. (Doc. No. 81.)

Petitioner faults the Magistrate Judge for reciting and relying upon the factual summary

set forth by the California Fifth District Court of Appeals in its opinion on direct appeal.

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However, most of the claims set forth in the petition were raised and rejected on direct appeal,

and as to those claims, the appellate court provided the last reasoned decision. Petitioner claims

the Magistrate Judge erred by presuming correct the factual findings of the appellate court

pursuant to 28 U.S.C. § 2254(e)(1). This was not error. See, e.g., Atwood v. Ryan, 870 F.3d

1033, 1039 (9th Cir. 2017) (“Because the facts as found by the [state court] are presumed correct,

28 U.S.C. § 2254(e)(1), the … background relies on the state court's determination of factual

issues”).

Petitioner asserts that by reciting the statement of facts of the appellate court, the

Magistrate Judge failed to conduct an independent review of the record. There is no indication

that the Magistrate Judge failed to do so. In fact, in discussing the standard of review, the

Magistrate Judge stated that in or der to determine whether habeas relief is available, the Court

must “independently review the record.” (Doc. No. 77 at 10.) The Magistrate Judge addressed

those claims that were first raised on state habeas review, set forth the facts and analysis of the

state court, and analyzed the claims. Petitioner complains that the Magistrate Judge relied only on

the appellate court opinion whereas the Kern County Superior Court provided the last reasoned

decision. The Magistrate Judge did not ignore the reasoning of the superior court. In the

Findings and Recommendation, the Magistrate Judge correctly noted that Petitioner presented

claims first to the appellate court and then later again to the superior court. (Doc. No. 77 at 12.)

The Magistrate Judge noted that the superior court, by referring to the appellate court opinion and

citing In re Waltreus, 62 Cal. 2d 218, 225 (1965), implicitly found that any new evidence did not

affect the appellate court’s opinion. The Magistrate Judge then conducted a full review of the

claim citing evidence that was presented to the state courts.

Petitioner complains that the Magistrate Judge ignored the Traverse “which clarified and

focused the issues” and instead “plodded through the uncounseled habeas petition.” (Pet.’s

Objections, p. 8.) Counseled or not, the habeas petition is the operative pleading; its function is

to, inter alia, “specify all the grounds for relief” and “state the facts supporting each ground.”

Rule 2(c) of the Rules Governing Section 2254 Cases. The Magistrate Judge properly reviewed

the grounds as they were set forth in the petition. To the extent the Traverse added new issues

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going well beyond the scope of the petition, which it did (for instance, Petitioner claimed defense

counsel rendered ineffective assistance by failing to call Dr. Volk as a witness), this was

improper. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (“A Traverse is not

the proper pleading to raise additional grounds for relief”). If Petitioner desired to add new

claims, he could have moved to amend before filing his Traverse.

Petitioner also alleges that the Magistrate Judge ignored certain evidence presented in the

Traverse. However, the Magistrate Judge properly confined review under 28 U.S.C. § 2254 to

the evidence that was before the state court, and correctly did not consider evidence that was

presented for the first time on federal habeas review. Cullen v. Pinholster, 563 U.S. 170, 181

(2011).

Petitioner claims the state court’s factual findings were an unreasonable determination of

the facts. However, the Court finds that reasonable jurists could disagree on whether the state

court’s factual findings were reasonable in light of the record before the court. In attacking Dr.

Wagner’s testimony, Petitioner refers to the autopsy report and Dr. Volk’s findings. Petitioner

essentially claims that if Dr. Wagner’s findings are contradicted or not reflected in the autopsy

report or in Dr. Volk’s subsequent declarations, then Dr. Wagner’s findings must be false.

However, as discussed by the Magistrate Judge, Petitioner did not establish that Dr. Wagner’s

findings were false. Petitioner argues extensively over Dr. Wagner’s findings concerning

petechiae in the eyes that he stated he had viewed in 12 recut histological slides. Dr. Volk stated

that he never made slides from the eye and the organ was not removed during the autopsy he

conducted. From this, Petitioner maintains that Dr. Wagner could not possibly have viewed

recuts if the organ had never been removed. However, this merely establishes that Dr. Volk was

not the author of the slides. It does not prove that Dr. Wagner could not have viewed any slides

of the eye. As pointed out by the Magistrate Judge, Dr. Dollinger conducted a second

examination on the body subsequent to Dr. Volk. At most, the disparities between Dr. Volk’s and

Dr. Wagner’s review of the evidence and conclusions were merely a difference of opinion. In

sum, the Court finds Petitioner has not shown that the state court’s factual findings were so

clearly incorrect that it would not be debatable among reasonable jurists.

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a

de novo review of the case. Having carefully reviewed the entire file, including Petitioner's

objections and Respondent’s reply, the Court concludes that the Magistrate Judge’s Findings and

Recommendation is supported by the record and proper analysis. With respect to the claims

presented in the petition, Petitioner fails to demonstrate that the state court rejections of those

claims were contrary to, or an unreasonable application of Supreme Court precedent. In addition,

the state court rejections were not based on an unreasonable determination of the facts in light of

the evidence presented in the state proceedings.

In addition, the Court declines to issue a certificate of appealability. A state prisoner

seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of

his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537

U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of

appealability is 28 U.S.C. § 2253, which provides as follows:

(a)

In a habeas corpus proceeding or a proceeding under section 2255 before a district

judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit

in which the proceeding is held.

(b)

There shall be no right of appeal from a final order in a proceeding to test the

validity of a warrant to remove to another district or place for commitment or trial a person

charged with a criminal offense against the United States, or to test the validity of such person's

detention pending removal proceedings.

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may

not be taken to the court of appeals from—

(A) the final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has

made a substantial showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate which specific issue

or issues satisfy the showing required by paragraph (2).

If a court denies a petitioner’s petition, the court may only issue a certificate of

appealability when a petitioner makes a substantial showing of the denial of a constitutional right.

28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that

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“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.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting

Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

In the present case, the Court finds that Petitioner has not made the required substantial

showing of the denial of a constitutional right to justify the issuance of a certificate of

appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not

entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to

proceed further. Thus, the Court DECLINES to issue a certificate of appealability.

Accordingly, the Court orders as follows:

The Findings and Recommendations, filed August 24, 2017 (Doc. No. 77), is

ADOPTED IN FULL;

The petition for writ of habeas corpus is DENIED WITH PREJUDICE;

The Clerk of Court is DIRECTED to ENTER JUDGMENT and close the file; and,

The Court DECLINES to issue a certificate of appealability.

This order terminates the action in its entirety.

IT IS SO ORDERED.

Dated:

October 30, 2017

/s/ Lawrence J. O’Neill _____

UNITED STATES CHIEF DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROWAN BROOKS,

Petitioner,

JAMES YATES,

Respondent.

No. 1:11-cv-01315-LJO-JLT (HC)

FINDINGS AND RECOMMENDATION

TO DENY PETITION FOR WRIT OF

HABEAS CORPUS

[TWENTY-ONE DAY OBJECTION

DEADLINE]

Petitioner is currently serving a sentence of 25 years-to-life for his conviction of first

degree murder of his wife, Estella Fern Fox. Petitioner brings this habeas petition claiming

violations of his constitutional rights. As discussed below, the Court finds the claims to be

without merit and recommends the petition be DENIED.

PROCEDURAL HISTORY

Petitioner was convicted in the Kern County Superior Court on April 4, 2006, of first

degree murder (Cal. Penal Code § 187). (Doc. 54-8 at 1.1) On August 8, 2006, he was sentenced

to an indeterminate term of 25 years-to-life. (Doc. 54-8 at 1.)

Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth

DCA”). The Fifth DCA affirmed judgment on July 29, 2008, in a reasoned decision. People v.

All citations are to ECF pagination.

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Brooks, 2008 WL 2897093 (Cal. Ct. App. 2008). He then filed a petition for review in the

California Supreme Court. (Doc. 54-8 at 92.) The petition was summarily denied without

comment or citation to authority on November 12, 2008. (Doc. 54-8 at 92.)

Petitioner filed a habeas petition in the Fifth DCA on July 24, 2008. (Doc. 54-8 at 93.)

The petition was denied without prejudice to the petitioner first presenting the claim of ineffective

assistance of counsel to the trial court; as to other issues, the court denied them for failing to

present them on appeal, citing In re Walker, 10 Cal.3d 764, 773 (1974). (Doc. 54-8 at 93.)

Petitioner next filed a habeas petition in the Kern County Superior Court on August 27,

2009. (Doc. 54-8 at 4.) The Kern County Superior Court denied the petition in a reasoned

decision on October 30, 2009. (Doc. 54-8 at 3-8.) He submitted additional evidence to the court

on January 11, 2010, and the court denied by addendum order on April 12, 2010. (Doc. 54-8 at

2.)

On December 18, 2009, Petitioner filed a habeas petition in the Fifth DCA. (Doc. 54-9 at

2.) The petition was summarily denied without comment on June 17, 2010. (Doc. 54-9 at 1.) He

then filed a habeas petition in the California Supreme Court on June 28, 2010, and the petition

was summarily denied on August 11, 2010. (Doc. 54-10 at 1-2.)

The original petition in this case was filed on August 9, 2011. (Doc. 1.) On November

28, 2016, upon being granted leave by the Court, Petitioner filed a First Amended Petition, on

which this action now proceeds. (Docs. 64, 65.) Respondent filed an answer on February 9,

2017. (Doc. 72). Petitioner filed a traverse to Respondent’s answer on April 8, 2017. (Doc. 76.)

II.

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the Fifth DCA’s unpublished decision2:

Defendant married Fern on December 31, 1986. In the beginning they had a good

marriage that included an intimate sexual relationship. Over the years, Fern

experienced depression and their sexual intimacy ceased. Beginning in 2004, they

slept in separate beds. Defendant was a social worker and Fern helped him in his

office. Fern died on August 16, 2004.

The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1).

Therefore, the Court will rely on the Fifth DCA’s summary of the facts. Moses v. Payne, 555 F.3d 742, 746 (9th Cir.

2009).

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Defendant's daughter from a prior marriage, Jinee Brooks, testified at trial. She is a

registered nurse. Defendant was at a holiday party at Jinee's home in December of

2003. Fern was also there, but she was sitting in another room reading. Defendant

asked Jinee and her nursing friends how they would kill someone if they were

going to do it. Jinee said she would use potassium or succynicholine. Defendant

asked why she chose those two chemicals and how one would obtain the

chemicals. Jinee explained that she, as a nurse, could not obtain potassium.

Defendant said that he could obtain it. Defendant then asked about giving nicotine

to someone to kill them. Jinee explained that it would be difficult to kill someone

with nicotine and the nicotine could be traced.

Debbie Coleman had known defendant for several years. She was a social worker

for child protective services. She had met defendant when she was one of his

clients in his counseling practice. Later she asked him to teach her cognitive

therapy. They became friends and in March of 2004 began a sexual relationship.

They had sex every day at his office or her apartment.

Defendant told Coleman he was going to ask Fern for a divorce. He showed

Coleman the divorce papers he had typed up. Although defendant and Coleman

had not discussed marriage prior to Fern's death, they had determined that after the

divorce they would see where their relationship as a couple would lead. Defendant

told Coleman he asked Fern for a divorce but she did not want a divorce. Coleman

expressed to defendant her desire to spend more time together. Defendant and

Coleman had sexual relations at his office on August 14, 2004.

Bobby Scrivner is Fern's daughter from a prior marriage. She testified that she was

close to her mother. She had problems with Fern marrying defendant and she did

not like him. She saw her mother frequently even though she did not want to

associate with defendant. Over the course of time, she became more accepting of

defendant because her mother was content.

On the evening of August 14, 2004, Fern and defendant went out to dinner with

Bobby and her husband Stan to celebrate Stan's birthday. Fern was subdued at

dinner and said she did not feel well. Fern normally finished her dinner but she

was unable to do so on this evening. Conversation at the dinner table was forced,

which was unusual. Fern and Bobby had previously discussed that defendant and

Fern might go to Las Vegas for Christmas that year. During dinner Bobby asked

Fern about the progress of the Las Vegas plans. Fern looked at defendant in a

“funny” way and put her head down. She said she did not think they were going to

be able to do that this year. Fern never told Bobby anything about a divorce. When

they left the restaurant, Fern kissed Bobby and told her she loved her. Bobby was

shocked because they did not usually openly express their affection toward one

another. This was the last time Bobby saw her mother alive.

At approximately 3 a.m. on August 16, 2004, paramedics were called to

defendant's home. Defendant opened the door and directed paramedic Adam

Steele to the bedroom. Defendant said that Fern did not want cardio pulmonary

resuscitation (CPR) performed; Steele asked defendant for the proper paperwork.

Defendant was very calm and collected. Steele determined that no lifesaving

procedures would be attempted because Fern was clearly dead.

Fire Captain Jeff McEntire testified that Fern had been dead at least a couple of

hours. Defendant told McEntire that it had been several hours since he talked to

Fern and he had been up watching the Olympics on television. Defendant

continued to watch the Olympics, and offered coffee to the personnel in his home.

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McEntire remembered this call quite well because of this and because defendant

did not seem to be bothered by his wife's death.

Police officer Christopher Johnson was called to the scene to investigate the death.

He asked defendant what had happened. Defendant told him he got up at 2:45 to

use the restroom. He checked on Fern and found her dead in her bed, face down.

Defendant told Johnson that Fern had been feeling ill the evening before but she

was not suicidal. Johnson saw marks on the left side of Fern's neck but he did not

think they were assaultive wounds. He asked defendant about the marks and

defendant said that Fern had fallen several times. Defendant asked Johnson several

times if the mortuary could come out and told Johnson that Fern wanted to be

cremated. Defendant questioned why Johnson was taking pictures and why he had

called the coroner's office. Defendant's demeanor was strange, but Johnson

recognized that everyone reacts differently to these types of situations.

Fern's body was transported to the coroner's office and put into refrigeration.

Defendant called Bobby at approximately 6 a.m. and told her Fern had died

“apparently of a heart attack.” Bobby went to defendant's, arriving at

approximately 7:15 with her daughter and husband Stan. Bobby asked what had

happened. Defendant said that Fern was having chest pains and not feeling well all

day on August 15. He offered to take her to the emergency room but she would not

go. She tried to get up and fell and hit the dresser. Defendant said that is why Fern

had marks on her neck.

Defendant was not crying or emotional. Fern's will and living will were on the

counter; Fern had executed do-not-resuscitate orders. Defendant remarked that he

wondered if they would have to go to court. Defendant said he had a dental

appointment and an appointment at the Social Security office. Bobby felt that

defendant did not want her there. She left with her husband and daughter. Before

leaving, Bobby told defendant she wanted to see her mother before she was

cremated. Defendant said he would make the arrangements. Coleman called

defendant before 8 a.m. He told Coleman that Fern had died and Bobby was

currently at his apartment.

Defendant called the owner of the funeral home and arranged to meet him at the

funeral home. Defendant met the owner at 8:30 a.m. Defendant kept his

appointment for his routine teeth cleaning. He told the dental assistant that his wife

had died that morning, yet his demeanor was ordinary.

Dr. Thomas Volk began the autopsy of Fern at approximately 1:25 p .m. on

August 16, 2004. Dr. Volk had finished with Fern's external examination and

began his internal examination by investigating her head. He noted injury to her

head and stopped the autopsy. His assistant contacted her supervisor and the police

department was called to participate in the autopsy.

After police personnel arrived, Dr. Volk continued the autopsy. Pictures and

various samples were taken during the autopsy. Dr. Volk listed cardiac arrhythmia

of minutes' duration due to aspiration of vomitus as the primary cause of death. He

listed blunt force injuries at the hands of another as a contributing factor. Dr. Volk

did not testify at trial.

In the late afternoon of August 16, 2004, after the autopsy was completed,

defendant agreed to come to the police station for an interview. After the officers

had asked defendant some questions, he was asked if he would agree to let them

take scrapings from his fingernails. Defendant agreed to let them take scrapings.

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When the officers left the room, defendant began methodically cleaning under

each fingernail with his mouth. Defendant was not aware that there was a video

camera in the room.

Coleman went to defendant's apartment the evening of August 16, 2004, unaware

that he was at the police station. Officers were at the apartment conducting a

search. An officer asked her what her relationship was with Coleman and she said

they were just friends. She was interviewed at the police station on August 23,

2004, and at that time told the police that she had been having an affair with

defendant.

After the interview, defendant was arrested but released the next morning.

Coleman picked him up from jail. Defendant called Bobby on August 18, 2004,

and said he needed to meet her and Stan at the bank. He said they needed to set

matters up so that Bobby could take care of finances concerning Fern because he

expected to be rearrested. Bobby had previously called the banks on August 17,

2004, after she learned of defendant's arrest and had them freeze all of Fern's bank

accounts. Bobby told defendant that she thought freezing of accounts was a routine

thing. Defendant was unable to remove any money from Fern's accounts at this

time. Defendant gave Bobby some of Fern's personal belongings. Included in the

box of belongings were journals written by Fern. The journals from 2003 and 2004

were not among the belongings.

Defendant and Coleman went out of town together on August 20, 2004. They went

away together again the next weekend. They began living together in November of

2004 and were married on July 10, 2005. Defendant was not rearrested until

August 25, 2005.

Defendant consulted an attorney in February of 2005 regarding Fern's estate. Also

in February defendant went to the credit union and closed several accounts. He

received $49,937.40.

During the search of defendant's apartment, officers removed a computer. On

November 16, 2004, Detective Allan Abney conducted a forensic evidence search

on the computer. He found evidence of several searches conducted on the

computer that were of interest. The following searches were conducted: (1)

“murder” (May 29, 2004), (2) “killing humans” (June 18, 2004), (3) “respiratory

arrest” (July 2, 2004), (4) “Nicotine acid purchase” (July 9, 2004), (5) “chemicals

that cause heart attacks” (July 23, 2004), (6) “causes of instant heart attack” (July

23, 2004), (7) “lethal dose levels” (July 25, 2004), and (8) “lethal doses of

chemicals” (Aug. 14, 2004). In addition, defendant accessed a chapter from a

textbook titled “Fast Poisoning.” Detective Abney was not able to determine if the

site results from the search were accessed, although on most of the searches more

than one result page was viewed.

Dr. Glen Wagner, the chief medical examiner for San Diego County, was

contacted by Detective Charles Church and asked to review the coroner's report, as

well as the photographs, toxicology reports, and histological slides of tissues

collected during the autopsy. Because Fern was cremated after the autopsy, Dr.

Wagner was not able to examine her body.

Dr. Wagner began with the photographs showing the external injuries to Fern's

body. He described bruising to Fern's left eye and discoloration below the left eye

and on the left forehead. In addition, she had an area of discoloration over her right

forehead. She had bruising of her lips, particularly the lower lip on the left side.

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She had a bite mark to the front of her tongue and multiple and extensive injuries

to her tongue in association with teeth as the objects causing the bruising. Fern had

a series of bruises over her right shoulder and bruises and scrapes over her left

shoulder. There was shadowing on the left jaw line, with additional bruising below

the collarbone to the left upper chest. Fern had discoloration on her left hand and a

laceration involving her thumb and three fingers. She had a large number of

abrasions that had a curvilinear appearance over her left shoulder and neck,

extending backward to the mid portion of her neck. The abrasions were patterned

and appeared to be fingernail scrapes. She had some injuries to the right side of her

neck and also had an ear bruise that extended towards her cheek.

Dr. Wagner then testified about internal injuries photographed during the autopsy.

He said that one photograph showed gastric contents in the area of the voice box

and larynx, but the amount was not extensive. Dr. Wagner saw discoloration on

both sides of the airway, in the voice box and larynx. The hyoid bone, which sits

directly above the larynx, was intact. This bone is very sensitive to any kind of

pressure and is oftentimes fractured in cases of neck compression. Although Dr.

Volk described no injuries to the hyoid and photographed no injuries in this area,

Dr. Wagner saw injuries to the larynx in the photograph and interpreted them as

having arisen from compression of this portion of the airway. Dr. Wagner saw

bruising on the muscle of the scalp immediately above the right ear. There was

bruising to the back right side of the brain, a common injury in falls.

Dr. Wagner testified that Fern's heart showed no gross evidence of disease, defect,

or trauma and there was no evidence of a heart attack or heart injury. Dr. Volk

found nothing wrong with the heart.

Dr. Wagner testified that Dr. Volk did a good job performing the autopsy, but Dr.

Wagner's opinion differed from that of Dr. Volk. Dr. Wagner differed from Dr.

Volk on the importance of vomitus in the airway. Dr. Wagner found the amount of

vomit to be small. The vomit was not in the lungs, and it did not appear the vomit

caused any blockage.

Dr. Wagner relied on hemorrhages in the brain and eye (petechiae in the eye). Dr.

Wagner testified that petechiae anywhere, but particularly in the face and

especially in the eyes, are a function of change in pressure. Petechiae are caused

when pressure is put on the blood vessels and the capillaries (the very smallest

vessels) rupture and cause pinpoint hemorrhages (petechiae). He testified “[i]n the

case of an eye, and in the case of perivascular hemorrhages in the brain with

evidence of trauma in the neck, there is a strong indication of an asphyxial

component to this injury, whether it's a ligature or hanging or a choking of some

fashion. But you have to cause a change in vascular pressures in order to cause

those blood vessels to hemorrhage and break or bleed.” These changes would not

be caused by a heart attack. Dr. Wagner testified that the eye petechiae were not

evident in the autopsy photographs but were present in Dr. Volk's microscopic

slides and in Dr. Volk's report.

It was Dr. Wagner's opinion that the blunt force injuries were inconsistent with

simple falls; the injuries were more consistent with a prolonged period of blunt

force injuries. Based on the character, location, and pattern of the injuries, he

found that they were more consistent with slaps, punches, and neck compression.

He found the combination of bruises and abrasions on the left side of the neck and

the contusions on the right side of the neck represented pressure being applied. It

was, however, unusual that the hyoid bone was not fractured, but the thyroid

cartilage right below the hyoid bone was fractured.

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The semicurved injuries to the back of the neck and shoulders contained a number

of semicircles that overlapped. The character of those injuries was most consistent

with fingernail scratches. The overlapping injuries indicated the person causing the

injuries was repositioning his or her hands. Some of the scratch marks were from

the victim trying to get a hand away from the neck or head.

Dr Wagner believed that the primary cause of death was “asphyxiation because of

the injuries to the neck, that the blunt-force injuries to the head and face, although

in and of themselves not fatal, speak to an assault and, therefore, an injury at the

hands of another; and that there is no underlying natural disease that I can find in

the autopsy or the slides that would be an alternative description.” The manner of

death was a homicide.

Defense

Several witnesses testified that they had never seen defendant act violently.

Defendant testified on his own behalf. He testified that he liked Fern but he wanted

to be free from their marriage. He was having an affair with Debbie Coleman. He

brought up the subject of divorce to Fern in August of 2004. She did not want a

divorce and defendant agreed to wait, although he was not going to change his

mind.

On August 15, 2004, defendant pulled out the divorce papers he had typed up.

Fern suggested they share their living arrangements. Defendant said no. Fern was

willing to go along with the divorce, although she was sad.

Fern had lost consciousness on several occasions prior to August 15, 2004. After

Fern and defendant spoke about the divorce on August 15, 2004, Fern went into

the kitchen to microwave some dinner. She called out to him, as she had collapsed

on the floor in the kitchen. This was not unusual, except this time Fern was in pain.

Defendant helped Fern to her feet, putting his hands under her armpits. He walked

her into the bedroom. Fern did not want to go to the emergency room. Defendant

got her a cold washcloth for her face and gave her a bucket because she felt sick.

Fern got in bed. Defendant watched the Olympics on television in the other room.

He checked on her every 10 or 15 minutes and took her to the bathroom several

times while she attempted to throw up.

At 11 p.m. Fern got up by herself; all of a sudden her legs collapsed. Defendant

tried to grab her by the shoulders but his hands slipped off. Her head slipped

towards the dresser and defendant's hands ended up around her neck. He grabbed

her to keep her from hitting her head on the dresser. He got behind her and helped

her up. She sat on the bed and then he helped her to the bathroom. She fell down

again. She went to the bathroom and then back to bed. Defendant returned to

watching the Olympics. He returned to the bedroom and the same thing happened

again; this time he caught her around the mouth.

Defendant went to bed around midnight. He asked Fern if she wanted to go to the

emergency room and she firmly told him no. Defendant got up about 3 a.m. to go

to the bathroom. It looked like Fern was not breathing. He checked her and she

was cold to the touch. He called 911.

He said he was not completely honest during his interview with police when he

told them he did not know how Fern got injuries to her neck. He explained that he

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was embarrassed that his hands had gotten around her neck. Defendant had no

explanation for why he cleaned out his fingernails with his teeth at the police

station.

Forensic pathologist Silvia Comparini studied the evidence from the autopsy. She

interpreted the evidence much differently from Dr. Wagner. It was her opinion that

Dr. Volk was correct that the cause of death was cardiac arrhythmia due to

aspiration of vomitus. She would have added that Fern suffered moderate to severe

fat in her right ventricle. The other injuries to Fern were consistent with having

occurred from falls or being helped.

The court admitted portions of a tape made during a session between Fern and

Hans King, a channeler, on August 14, 2004. During this session Fern and King

discussed Fern and defendant's relationship. Fern said she still wanted the

relationship. She said defendant told her he wanted a divorce. She said that their

relationship had been nonsexual for years. She told King that a few weeks earlier

defendant said he wanted to talk and said he wanted a divorce. She said it was a

surprise because defendant was her best friend. She asked him if there was

anything they could do about it or work on it, but he said he did not think so.

Defendant told her he was very unhappy and he did not love her anymore. One

evening, she asked defendant what if she said no to the divorce. He looked at her

“funny” and did not answer. She said she wanted better reasons for why he wanted

a divorce. Fern told King that her friendship relationship with defendant has

always been perfect and beautiful. King advised Fern to tell defendant that she

would like to know his reasons for a divorce and to say to him that she loves and

honors him so much that she will give him a divorce if that is what he really wants.

Fern told King that she asked defendant if they could share the house.

Brooks, 2008 WL 2897093, at *1–7.

III.

DISCUSSION

Relief by way of a petition for writ of habeas corpus extends to a person in custody

pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or

treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,

529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as

guaranteed by the United States Constitution. The challenged conviction arises out of the Kern

County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. §

2254(a); 28 U.S.C.§ 2241(d).

Jurisdiction

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its

enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases

filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA

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and is therefore governed by its provisions.

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless

the petitioner can show that the state court’s adjudication of his claim: (1) 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.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003);

Williams, 529 U.S. at 412-413.

Legal Standard of Review

A state court decision is “contrary to” clearly established federal law “if it applies a rule

that contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set

of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a

different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-

406).

In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that

an “unreasonable application” of federal law is an objective test that turns on “whether it is

possible that fairminded jurists could disagree” that the state court decision meets the standards

set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable

application of federal law is different from an incorrect application of federal law.’” Cullen v.

Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from

a federal court “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 of fairminded disagreement.” Harrington, 562 U.S. at 103.

The second prong pertains to state court decisions based on factual findings. Davis v.

Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)).

Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the

petitioner’s claims “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.” Wiggins v. Smith, 539

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U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s

factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable

among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-

1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

To determine whether habeas relief is available under § 2254(d), the federal court looks to

the last reasoned state court decision as the basis of the state court’s decision. See Ylst v.

Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.

2004). “[A]lthough we independently review the record, we still defer to the state court’s

ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

The prejudicial impact of any constitutional error is assessed by asking whether the error

had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)

(holding that the Brecht standard applies whether or not the state court recognized the error and

reviewed it for harmlessness).

Review of Claims

The instant petition presents the following grounds for relief: 1) The conviction was

obtained by false evidence, and the prosecution allowed the false evidence to be introduced; 2)

There was insufficient evidence of premeditation and deliberation; 3) The prosecutor committed

misconduct by improperly conducting voir dire, making improper arguments, violating in limine

orders, conducting improper cross-examination, falsely accusing the petitioner of a crime, and

suppressing exculpatory evidence; 4) Defense counsel rendered ineffective assistance by

inadequately arguing for admission of Dr. Volk’s autopsy report, failing to object to multiple

misstatements of facts and evidence by the prosecution, and failing to present available medical

evidence on the decedent’s health concerning her alleged heart problem; 5) Appellate counsel

rendered ineffective assistance by failing to raise certain issues; and 6) The trial court was biased

against Petitioner and committed numerous errors. (Doc. 64 at 5-34.) The Court notes that

Petitioner also raises a claim of actual innocence (Doc. 64 at 5), but the issue was rejected by the

Court and subsequently by the Ninth Circuit. (Docs. 31, 43.)

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1. False Evidence

Petitioner first claims that his conviction was obtained by false evidence. This claim was

raised on direct appeal in the state courts. In the last reasoned decision, the Fifth DCA denied the

claim as follows:

Again in laundry-list fashion defendant cites a plethora of areas in the transcript

where he claims the prosecutor committed deliberate misconduct by the use of

deceptive or reprehensible methods.

“A defendant's conviction will not be reversed for prosecutorial misconduct,

however, unless it is reasonably probably that a result more favorable to the

defendant would have been reached without the misconduct. [Citation.] Also, a

claim of prosecutorial misconduct is not preserved for appeal if defendant fails to

object and seek an admonition if an objection and jury admonition would have

cured the injury. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.)

“‘Under well-established principles of due process, the prosecution cannot present

evidence it knows is false and must correct any falsity of which it is aware in the

evidence it presents....’ [Citation.]” (People v. Harrison (2005) 35 Cal.4th 208,

242.) It is also misconduct “for a prosecutor to violate a court ruling by eliciting or

attempting to elicit inadmissible evidence in violation of a court order.” (People v.

Crew, supra, 31 Cal.4th at p. 839.)

Defendant contends the prosecutor permitted Dr. Wagner, the pathologist, to

misrepresent the contents of Dr. Volk's report and misrepresent evidence regarding

the microscopic slides, and also argued the misrepresented evidence in his closing

argument. In particular, defendant claims Dr. Wagner misrepresented Dr. Volk's

report when he testified that Volk had noted seeing petechiae in the eyes. In

addition, defendant claims there was no microscopic slide of the eye; thus Dr.

Wagner could not have viewed the slide and seen petechiae. He asserts that Dr.

Wagner misrepresented an injury to Fern's brain that was not described in the

report. Defendant contends that Dr. Wagner's testimony on these points was

simply wrong and the prosecution did nothing to correct the error.

Although defendant claims to have objected to some of this testimony at trial, he

has not shown where he objected and/or that the objection was one of prosecutorial

misconduct. His failure to pinpoint his objections here, and/or to have made the

objections on the ground now asserted at trial waives the issue. In addition, we

note that Dr. Wagner is an expert and is allowed to independently interpret the

autopsy report and microscopic slides. It was not established at trial that there was

no slide made of the eye. The autopsy report is very general under “microscopic

evaluation.” Also, on cross-examination of Dr. Wagner and on examination of the

defense expert, there was a great deal of questioning and testimony surrounding

the presence and/or location of petechiae. As our previous discussion regarding

petechiae demonstrates, the notation in Dr. Volk's report regarding petechiae in the

area of the eye could only be interpreted by an expert. We cannot say that the

People misrepresented the report or that the report demonstrates that there was no

microscopic slide of the eye reviewed by Dr. Wagner.

Dr. Wagner testified that in exhibit 14, a picture of the brain, he saw a bruise to the

back right side of the brain and such an injury is common in falls. Dr. Wagner, as

an expert, was able to interpret the photographs as he saw fit. That he saw

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something different from Dr. Volk does not make any representation by the People

adopting Dr. Wagner's conclusion a misrepresentation, and certainly not an

intentional misrepresentation. On one occasion, the People and the defense expert

engaged in a disagreement regarding another hemorrhage, with the People calling

it on the brain and the expert saying it was not on the brain. The People conceded

inappropriately using the word “brain” during questioning while Dr. Volk did not

use the term “on the brain.”

Defendant has not shown that proper objections were made, or that if an objection

had been made that an admonition would not have cleared up the problem.

Defendant has also not shown that the prosecution presented evidence it knew was

false.

Brooks, 2008 WL 2897093, at *35–36.

Petitioner raised the claim again on state habeas. The Kern County Superior Court

rejected the claim noting that “[t]he appellate court found no use of false testimony by the People

to warrant reversal” and that “Petitioner points to no other witnesses who recanted their testimony

claiming fabrication.” (Doc. 54-8 at 6.) The court, citing In re Waltreus, 62 Cal.2d 218, 225

(1965), implicitly found that any new evidence presented did not affect the Fifth DCA’s

resolution of the claim. See In re Robbins, 18 Cal.4th 770, 814 n.34 (1998) (“When a petitioner

attempts to avoid the bars of . . . Waltreus, supra, 62 Cal.2d 218, by relying upon an exhibit (in

the form of a declaration or other information) from outside the appellate record, we nevertheless

apply the bar if the exhibit contains nothing of substance not already in the appellate record”).

Petitioner raised the claim in a second habeas petition to the Kern County Superior Court, and the

state court denied it by referring to its previous ruling and its “factual and legal analysis.” (Doc.

71-14 at 2.)

a. Legal Standard

“[A] conviction obtained by the knowing use of perjured testimony is fundamentally

unfair, and must be set aside if there is any reasonable likelihood that the false testimony could

have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976); Napue

v. Illinois, 360 U.S. 264 (1959). So must a conviction obtained by the presentation of false

evidence. See United States v. Bagley, 473 U.S. 667, 678-80 nn.8-9 (1985). In Napue, the

Supreme Court held that the knowing use of false testimony to obtain a conviction violates due

process regardless of whether the prosecutor solicited the false testimony or merely allowed it to

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go uncorrected when it appeared. Id. at 269. The Court explained that the principle that a State

may not knowingly use false testimony to obtain a conviction - even false testimony that goes

only to the credibility of the witness - is “implicit in any concept of ordered liberty.” Id. In order

to prevail on such a due process claim, “the petitioner must show that (1) the testimony (or

evidence) was actually false, (2) the prosecution knew or should have known that the testimony

was actually false, and (3) the false testimony was material.” United States v. Zuno–Arce, 339

F.3d 886, 889 (9th Cir. 2003), cert. denied, 540 U.S. 1208 (2004). Nevertheless, simple

inconsistencies in testimony are insufficient to establish that a prosecutor knowingly permitted

the admission of false testimony. United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir.1995).

“Discrepancies in . . . testimony . . . could as easily flow from errors in recollection as from lies.”

Id.

b. Analysis

Dr. Wagner testified that he viewed microscopic slides taken from the victim’s body by

Dr. Volk. Specifically, Dr. Wagner stated that from “[Dr. Volk’s] slides and his report,” he

located “hemorrhages in the [victim’s] eye.” (Doc. 54-2 at 130.)

In actuality, Dr. Volk’s report noted petechiae in an area near the eye and on the face, but

the report did not mention petechiae in the eye itself. In addition, Dr. Volk did not create slides

from the victim’s eye. Based on this, Petitioner contends Dr. Wagner provided false evidence,

and the prosecutor knowingly elicited false evidence when Dr. Wagner so testified. Petitioner

further argues this false evidence was significant because the foundation for Dr. Wagner’s

conclusion that the victim died as a result of homicide was his viewing petechiae in the victim’s

eye.

Based on Dr. Volk’s declaration that he had not made microscopic slides of the eyes, and

that he had not noted petechiae in the eyes but near the eyes, Petitioner made a prima facie

showing that Dr. Wagner erred when he stated that he had viewed Dr. Volk’s microscopic slides

and report from which he located petechiae in the eyes. However, he has not shown that Dr.

Wagner knowingly relied on false evidence thereby arriving at an erroneous conclusion. At most,

Petitioner has shown that Dr. Wagner mistakenly interpreted Dr. Volk’s report and attributed the

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creation of the slides to Dr. Volk. Moreover, there is no evidence that the prosecution knowingly

elicited false testimony from Dr. Wagner. As noted by Respondent, attorneys may properly rely

on the opinions provided by expert witnesses. Stokley v. Ryan, 659 F.3d 802, 813 n.8 (9th Cir.

2011); Sims v. Brown, 425 F.3d 560, 585–86 (9th Cir. 2005). Absent some proof that the

prosecution knew or must have known Dr. Wagner was testifying falsely, Petitioner’s claim

against the prosecution must fail.

Moreover, Petitioner has not shown that Dr. Wagner relied on false evidence in arriving at

his conclusions. On cross-examination, Dr. Wagner was questioned concerning his viewing of

certain items that Dr. Volk did not note in his autopsy. (Doc. 54-2 at 149.) Defense counsel

asked him whether he had seen petechiae in the eyes in the photographs. (Doc. 54-2 at 171.) Dr.

Wagner responded that he was not certain whether he read or it saw it, and he was not certain if

there were photographs of the eye. (Doc. 54-2 at 171.) Significantly, when Dr. Wagner was

questioned again concerning the slides, he stated that he had received “12 recut histological

slides” of tissue. (Doc. 54-2 at 150, 186 (emphasis added).) He thus made clear that he did not

view the original slides created by Dr. Volk, but rather “recuts” of tissue that were made later,

and he assumed that these recuts used at trial were “pretty close to” or “similar to” whatever

“slides [Dr. Volk] has.” (Doc. 54-2 at 186.) Thus, the error Dr. Wagner initially made regarding

the source of the slides was cured since it was now clear that Dr. Volk was not the author of those

slides. Dr. Dollinger had conducted a second autopsy after Dr. Volk; obviously, he could have

been the source of these recuts. (Doc. 54-6 at 213-14.) Because of this, the state court could

reasonably have determined that Petitioner failed to make a prima facie showing that the

prosecution relied on false testimony.

In addition, Dr. Wagner did not rely only on petechiae in the victim’s eye in arriving at his

conclusions. His determination was also based on perivascular hemorrhaging, i.e., “bleeding

around the blood vessels,” in the brain, and cerebral edema. (Doc. 54-2 at 128, 136.) Dr. Wagner

stated that both of these conditions indicated an increase in pressure in blood vessels and a

deprivation of oxygenation for some period of time, which could not have been caused by a heart

attack as Dr. Volk concluded. (Doc. No. 54-2 at 128, 136.) He further stated that “[p]etechia

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anywhere, but particularly in the face and especially the eyes, are a function of change in

pressure.” (Doc. 54-2 at 129.) Where petechiae are found in conjunction with perivascular

hemorrhages in the brain and trauma in the neck, there is a strong indication of asphyxiation.

(Doc. 54-2 at 129.) There was evidence in the record of petechiae in the eyes from Dr. Wagner’s

examination, and petechiae near the victim’s eye and in the victim’s face from Dr. Volk’s

autopsy. (Doc. 16 at 51; Doc. 54-2 at 129-30.)

He also relied on evidence of “areas of discoloration” in the trachea. (Doc. 54-2 at 124.)

Significantly, Dr. Wagner noted that Dr. Volk did not describe any lesions in the trachea, but Dr.

Wagner interpreted the discoloration “as partial fractures of the larynx” which would indicate

trauma to the neck. (Doc. 54-2 at 124.) In addition, Dr. Wagner noted that the injuries evident in

the trachea corresponded to the external bruising located on the victim’s neck, which further

added credibility to the findings of trauma to the trachea. (Doc. 54-2 at 198-199.)

Further, Dr. Wagner noted evidence of multiple injuries to the head and shoulders which,

while not fatal, were a contributing factor. (Doc. 54-2 at 125.) He noted areas of discoloration on

the forehead which he characterized as injuries but were not noted as such by Dr. Volk. (Doc. 54-

2 at 181-82.) He noted that blunt-force injuries to the right side of the forehead, around the right

ear, around the left eye, about the mouth, and about the neck and shoulders are inconsistent with

accidental falls, but significantly, pointed to a third party inflicting damage. (Doc. 54-2 at 131-

33.) This conclusion was further substantiated by the series of semi-circular point contusions to

the neck and shoulders that would indicate someone attempting to asphyxiate the victim. (Doc.

54-2 at 132-33.) Dr. Wagner concluded that “the primary cause of death [wa]s asphyxiation

because of the injuries to the neck, that the blunt-force injuries to the head and face, although in

and of themselves not fatal, speak to an assault and, therefore, an injury at the hands of another.”

(Doc. 54-2 at 137-38.)

Ultimately, Dr. Wagner concluded that “the manner of death must be homicide.” (Doc.

54-2 at 142.) He reached this conclusion based on the significant trauma to the victim by blunt-

force injuries and the evidence of asphyxia, which in combination could not have been caused by

a fall or something the victim did to herself, but must have been by the hands of another. (Doc.

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54-2 at 143-44.) Further, Dr. Wagner found that “it would be a homicide even if there was

evidence of a heart attack or respiratory failure from other causes.” (Doc. 54-2 at 144.)

Petitioner fails to show that Dr. Wagner’s conclusions were based on false evidence or

that the prosecution knowingly relied on false testimony. Dr. Wagner’s opinions were simply

different from Dr. Volk’s and were matters left to be resolved by the jury. United States v.

Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (stating two conflicting versions of evidence

presented to jury are within province of jury to decide).

Furthermore, there was no prejudice. This was not a case where Dr. Wagner and Dr. Volk

both viewed microscopic slides of the eye, and Dr. Wagner testified that he and Dr. Volk were in

agreement that the slides showed petechiae, while in truth Dr. Volk did not report seeing

petechiae. Rather, according to his statement, Dr. Volk did not create any microscopic slides of

eye tissue and did not view any slides of the eye. (Doc. 64 at 59-60.) Based on his recollection,

Dr. Volk did not recall observing any petechiae in the victim’s eyes. (Doc. 64 at 59-60.) Had the

jury been so informed, there is no reasonable probability that the outcome would have been

different. Dr. Volk stated he never viewed any slides of the victim’s eyes, so his statement that he

had not viewed petechiae in the eye slides would have been of no consequence. Dr. Wagner

testified to what he saw in the eye slides. His initial mistake in crediting Dr. Volk for the creation

of the slides was harmless beyond a reasonable doubt.

In addition, there was overwhelming evidence of Petitioner’s guilt apart from the medical

evidence. Prior to the homicide, Petitioner had repeatedly conducted internet searches for ways

to kill without detection. He searched such subjects as “lethal doses of chemicals,” “fast

poisoning,” “lethal dose levels,” “causes of instant heart attacks,” “chemicals that cause heart

attacks,” “nicotine acid purchase,” “respiratory arrest,” “killing humans,” and “murder.” (Doc.

54-3 at 212-220.) At a party, Petitioner had come up to his medical professional daughter and her

medical professional friends and asked them, “Hey, if you were going to kill somebody, how

would you do it?” (Doc. 54-4 at 42.) The daughter responded that she would inject either

potassium or Succynicholine. (Doc. 54-4 at 42-43.) Petitioner asked why she chose those two

chemicals and she explained how the chemicals would cause death. (Doc. 54-4 at 44.) Petitioner

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then asked how she would obtain these chemicals. (Doc. 54-4 at 44.) The daughter explained

that she couldn’t obtain it, and Petitioner responded that he could. (Doc. 54-4 at 45.) The

daughter stated that she couldn’t understand how he could obtain it if she as a medical

professional could not, but Petitioner stated, “No, I could get it.” (Doc. 54-4 at 45.) Petitioner

then inquired about other chemicals to use for killing, such as nicotine. (Doc. 54-4 at 46.)

Petitioner also admitted lying to the police investigators. (Doc. 54-5 at 214.) During the

9-1-1 call, Petitioner advised that he had not seen the victim since earlier the prior evening. (Doc.

54-5 at 150.) At trial, he admitted he had been with the victim all evening rendering her aid until

she went to sleep around midnight. (Doc. 54-5 at 150-151.) He had told investigators that the

victim had fallen and impacted the dresser in the bedroom, but on cross-examination he admitted

that was a lie. (Doc. 54-5 at 212-14.) He also testified that he was at his residence from noon to

4:00 p.m. the prior day discussing divorce with the victim. (Doc. 54-5 at 154.) He stated that the

entire four hours, without a break, were consumed with discussions about divorce and the

property that needed to be distributed. (Doc. 54-5 at 158.) Later, when confronted with

cellphone records of calls made by him between 1:30 and 3:15 p.m., including one to the victim,

he admitted he had left the residence during that time. (Doc. 54-5 at 159-62, 208-11.) And when

confronted with statements he made to investigators that contradicted his trial testimony, he

admitted to lying to the investigators on numerous occasions. (Doc. 54-5 at 196-207.)

Petitioner also demonstrated a consciousness of guilt when he explained to the victim’s

daughter the manner in which she had died. Petitioner stated that the victim had fallen and hit the

dresser, which at trial he stated was a lie. (Doc. 54-3 at 46; Doc. 54-5 at 212-14.) He then told

her that this was the reason she has marks on her neck, but demonstrated with his hand that she

had been choked. (Doc. 54-3 at 46-47, 93-94.)

Also damaging was when investigators asked if they could take fingernail scrapings of

Petitioner as evidence and then left the room, Petitioner was surreptitiously videotaped

methodically cleaning under each fingernail with his teeth. (Doc. 54-5 at 214-15; Doc. 54-4 at

154; Doc. 71-11 at 2.)

For the foregoing reasons, a rational factfinder could determine that Dr. Wagner did not

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provide false testimony, or that the prosecution knowingly allowed false evidence to be submitted

to the jury. Further, in light of the overwhelming nonmedical evidence against Petitioner, any

error in Dr. Wagner attributing the creation and viewing of microscopic slides of the eye to Dr.

Volk was harmless beyond a reasonable doubt. The claim should be denied.

2. Insufficient Evidence

Petitioner next argues that the evidence was insufficient to support the finding of

premeditation and deliberation. This claim was raised on appeal. In the last reasoned decision,

the Fifth DCA rejected the claim as follows:

Defendant argues the evidence is insufficient to support a finding of premeditation

and deliberation. In particular, he contends the manner of the killing suggests an

impulsive killing. He asserts there was no evidence of planning activity,

dismissing the internet searches and party talk as an academic interest and having

no relationship to the way Fern was killed. He claims the evidence of motive was

weak because, although he was unhappy in his marriage, he expressed his wish for

a divorce to Fern and would not have done so if he were going to kill her to avoid

paying alimony.

“In addressing a challenge to the sufficiency of the evidence supporting a

conviction, the reviewing court must examine the whole record in the light most

favorable to the judgment to determine whether it discloses substantial evidence—

evidence that is reasonable, credible and of solid value—such that a reasonable

trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]

The appellate court presumes in support of the judgment the existence of every

fact the trier could reasonably deduce from the evidence. [Citations.] The same

standard applies when the conviction rests primarily on circumstantial evidence.

[Citation.] Although it is the jury's duty to acquit a defendant if it finds the

circumstantial evidence susceptible of two reasonable interpretations, one of which

suggests guilt and the other innocence, it is the jury, not the appellate court that

must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]

‘“If the circumstances reasonably justify the trier of fact's findings, the opinion of

the reviewing court that the circumstances might also reasonably be reconciled

with a contrary finding does not warrant a reversal of the judgment.”’” (People v.

Kraft (2000) 23 Cal.4th 978, 1053–1054.)

“In making our determination, we focus on the whole record, not isolated bits of

evidence. [Citation.] We do not reweigh the evidence; the credibility of witnesses

and the weight to be accorded to the evidence are matters exclusively within the

province of the trier of fact. [Citation.] We will not reverse unless it clearly

appears that on no hypothesis whatever is there sufficient substantial evidence to

support the jury's verdict. [Citations.]” (People v. Upsher (2007) 155 Cal.App.4th

1311, 1321–1322.)

Defendant's argument focuses on the framework set forth in People v. Anderson

(1968) 70 Cal.2d 15 for evaluating whether there is substantial evidence to sustain

findings of premeditation and deliberation. In Anderson, the California Supreme

Court “described three categories of evidence recurring in those cases: planning,

motive, and manner of killing. [Citations.] The Anderson decision stated:

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‘Analysis of the cases will show that this court sustains verdicts of first degree

murder typically when there is evidence of all three types and otherwise requires at

least extremely strong evidence of [planning] or evidence of [motive] in

conjunction with [evidence of] either [planning] or [manner of killing].’

[Citations.] Since Anderson, we have emphasized that its guidelines are descriptive

and neither normative nor exhaustive, and that reviewing courts need not accord

them any particular weight. [Citations.]” (People v. Halvorsen (2007) 42 Cal.4th

379, 419–420, brackets in original except those indicating citations.)

The evidence here supports the jury's verdict of first degree murder. For several

months, defendant had been researching methods to kill, as evidenced by the

computer searches and his discussion with his daughter about killing someone.

This was clear evidence of planning. Fern was strangled. Strangling someone takes

a significant period of time and is an exacting method of causing death. In

addition, the manner in which defendant killed her, leaving fewer traces than usual

for a strangling, suggests he utilized methods that aided in covering up the

strangling. Defendant had a motive to kill Fern. He was having an affair with

Debbie Coleman and he wanted a divorce from Fern. Fern did not want a divorce.

In addition, although Fern did not have abundant assets, she did have some assets.

Also, Fern's only income was a meager check from Social Security. Defendant was

the main breadwinner. If he divorced Fern, he would most likely have had to pay

spousal support. We note that there was no evidence of a struggle in the apartment

where Fern died, thus suggesting that the two were not engaged in a fight that led

to the killing. All of the above is sufficient to find that defendant made a calculated

judgment to kill Fern and to support his conviction for first degree murder.

Brooks, 2008 WL 2897093, at *7–8.

a. Legal Standard

The law on sufficiency of the evidence is clearly established by the United States Supreme

Court. Pursuant to the United States Supreme Court’s holding in Jackson v. Virginia, 443 U.S.

307 (1979), the test on habeas review to determine whether a factual finding is fairly supported by

the record is as follows: “[W]hether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson, 443 U.S. at 319; see also Lewis v. Jeffers, 497 U.S. 764, 781

(1990). Thus, only if “no rational trier of fact” could have found proof of guilt beyond a

reasonable doubt will a petitioner be entitled to habeas relief. Jackson, 443 U.S. at 324.

Sufficiency claims are judged by the elements defined by state law. Id. at 324, n. 16.

If confronted by a record that supports conflicting inferences, a federal habeas court “must

presume–even if it does not affirmatively appear in the record–that the trier of fact resolved any

such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326.

Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a

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conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995).

After the enactment of the AEDPA, a federal habeas court must apply the standards of

Jackson with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.

2005). In applying the AEDPA’s deferential standard of review, this Court must presume the

correctness of the state court’s factual findings. 28 U.S.C. § 2254(e)(1); Kuhlmann v. Wilson,

477 U.S. 436, 459 (1986).

In Cavazos v. Smith, 565 U.S. 1 (2011), the United States Supreme Court further

explained the highly deferential standard of review in habeas proceedings, by noting that Jackson

makes clear that it is the responsibility of the jury - not the court - to decide what

conclusions should be drawn from evidence admitted at trial. A reviewing court

may set aside the jury's verdict on the ground of insufficient evidence only if no

rational trier of fact could have agreed with the jury. What is more, a federal court

may not overturn a state court decision rejecting a sufficiency of the evidence

challenge simply because the federal court disagrees with the state court. The

federal court instead may do so only if the state court decision was “objectively

unreasonable.”

Because rational people can sometimes disagree, the inevitable consequence of

this settled law is that judges will sometimes encounter convictions that they

believe to be mistaken, but that they must nonetheless uphold.

Id. at 3-4.

b. Analysis

In this case, the state court applied the Jackson standard; therefore, the only question is

whether the state court’s application was objectively unreasonable. Id.

There was substantial evidence from which a jury could find the elements of

premeditation and deliberation. Petitioner’s internet searches for methods of killing as well as his

inquiries with his medical professional daughter and friends were clear evidence of planning.

There was also a motive to kill the victim. Petitioner wanted a divorce and the victim did not.

The victim had few assets and Petitioner was the main source of income for the couple. In the

event of divorce, Petitioner would have had to pay spousal support. There was no evidence of

struggle and the victim was killed by strangulation. This suggests the killing was deliberate and

not the result of a fight. From all of the above, a reasonable factfinder could have determined that

there was sufficient evidence of premeditation and deliberation. The claim should be rejected.

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Petitioner next contends that the prosecutor committed misconduct by improperly

conducting voir dire, making improper arguments, violating in limine orders, conducting

improper cross-examination, falsely accusing the petitioner of a crime, and suppressing

exculpatory evidence.

Prosecutorial Misconduct

This claim was also raised and rejected by the Fifth DCA on direct review, as follows:

Again in laundry-list fashion defendant cites a plethora of areas in the transcript

where he claims the prosecutor committed deliberate misconduct by the use of

deceptive or reprehensible methods.

….

Next, defendant argues the prosecution asked questions so obviously improper that

they could not have been asked in good faith and cites a long list of such

“obviously improper tactics.” As examples, defendant cites to the People asking

prospective jurors, during jury selection, if anyone had cheated on a spouse (a

defense objection was immediately sustained), asking prospective jurors if they

think a person that cheats on a spouse is an honest person (claimed improper

attempts to get the jury to prejudge the case), asking sarcastic questions to

Coleman (the court told the prosecutor to change her attitude), asking questions

that were insulting to Dr. Comparini, and asking questions about the defendant's

demeanor after Fern's death (claimed as eliciting evidence in violation of an in

limine ruling). In none of these instances has defendant shown that an objection

based on prosecutorial misconduct was made. He has waived any claim of error.

Finally defendant contends the prosecutor repeatedly misstated facts and referred

to facts not in evidence in her closing argument. Again, defendant has failed to

show where he objected based on prosecutorial misconduct to the argument of the

prosecutor. In addition, “[a]ssuming (which we do not) that the prosecutor's

argument was improper, it clearly appears, from a review of the entire record, that

the argument was harmless, and that no prejudice was (or can be) demonstrated.”

(People v. Adanandus (2007) 157 Cal.App.4th 496, 514.)

Additionally, the jury was instructed that statements made by the attorneys during

trial are not evidence, thus reducing the chance that the jury relied on any improper

statement of facts by the prosecution. (People v. Boyette (2002) 29 Cal.4th 381,

453.) Also, the jury was informed that it must determine the facts from the

evidence received at trial and not from any other source.

Defendant has failed to demonstrate that any prosecutorial misconduct that

occurred was prejudicial. Defendant has forfeited the right to raise any

prosecutorial misconduct that he did not object to. Even if the prosecutor engaged

in misconduct, a review of the entire record demonstrates the trial was not so

fundamentally unfair so as to trigger the Chapman (Chapman v. California (1967)

386 U.S. 18.) standard of prejudicial error. (People v. Adanandus, supra, 157

Cal.4th at p. 515.)

Brooks, 2008 WL 2897093, at *35–36.

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a. Procedural Default

As an initial matter, the Court notes that the state court determined that many of

Petitioner’s allegations of prosecutorial misconduct were procedurally barred because no

contemporaneous objection was made at trial.

A federal court will not review a claim of federal constitutional error raised by a state

habeas petitioner if the state court determination of the same issue “rests on a state law ground

that is independent of the federal question and adequate to support the judgment.” Coleman v.

Thompson, 501 U.S. 722, 729 (1991). This rule also applies when the state court's determination

is based on the petitioner's failure to comply with procedural requirements, so long as the

procedural rule is an adequate and independent basis for the denial of relief. Id. at 730. For the

bar to be “adequate,” it must be “clear, consistently applied, and well-established at the time of

the [ ] purported default.” Fields v. Calderon, 125 F.3d 757, 762 (9th Cir. 1997). For the bar to

be “independent,” it must not be “interwoven with the federal law.” Michigan v. Long, 463 U.S.

1032, 1040-41 (1983). If an issue is procedurally defaulted, a federal court may not consider it

unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.

In Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir. 2002), the Ninth Circuit held that

California's contemporaneous objection doctrine is clear, well-established, and has been

consistently applied when a party has failed to make any objection to the admission of evidence.

In Vansickel v. White, 166 F.3d 953 (9th Cir. 1999), the Ninth Circuit held that the

contemporaneous objection bar is an adequate and independent state procedural rule. In this case,

Petitioner did not object to the prosecutor’s voir dire questions, her alleged improprieties in

questioning witnesses, her questions concerning Petitioner’s demeanor after the victim’s death,

and her alleged misstatement of facts and reference to facts not in evidence during closing

argument. Further, Petitioner has not demonstrated cause for the default or actual prejudice

resulting therefrom. Thus, these claims are procedurally defaulted and should be dismissed.

///

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b. Legal Standard

A petitioner is entitled to habeas corpus relief if the prosecutor’s misconduct “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 (1974). To constitute a due process violation, the prosecutorial

misconduct must be “of sufficient significance to result in the denial of the defendant’s right to a

fair trial.” Greer v. Miller, 485 U.S. 756, 765 (1987) (quoting United States v. Bagley, 473 U.S.

667 (1985)). Any claim of prosecutorial misconduct must be reviewed within the context of the

entire trial. Id. at 765-66; United States v. Weitzenhoff, 35 F.3d 1275, 1291 (9th Cir. 1994). The

court must keep in mind that “[t]he touchstone of due process analysis in cases of alleged

prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor” and “the

aim of due process is not punishment of society for the misdeeds of the prosecutor but avoidance

of an unfair trial to the accused.” Smith v. Phillips, 455 U.S. 209, 219 (1982). If prosecutorial

misconduct is established, and it was constitutional error, the error must be evaluated pursuant to

the harmless error test set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). See Thompson,

74 F.3d at 1577 (Only if constitutional error is established “would we have to decide whether the

constitutional error was harmless.”).

c. Analysis

In addition to being procedurally barred, the claims of prosecutorial misconduct are

without merit. Petitioner cites numerous instances where he contends the prosecutor acted

inappropriately, whether in conducting voir dire, questioning witnesses, violating pretrial orders,

or making arguments without foundation or based on false evidence. Petitioner fails to show how

any of these instances prejudiced him to the level of a constitutional violation.

Petitioner faults counsel for asking questions during voir dire about adultery. No

prejudice could have occurred since it was beyond dispute at trial that Petitioner was having an

affair with Ms. Coleman prior to the homicide. As to his questioning of witnesses, the trial court

is well equipped to deal with counsel’s courtroom conduct. Where counsel’s behavior runs afoul

of the rules of court, opposing counsel may object or the trial court may admonish counsel. In

this case, defense counsel did not object to most of the instances the petitioner cited, and where he

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did, the trial court found counsel’s actions were either appropriate, or it took ameliorative action.

With respect to counsel’s alleged violations of in limine orders, there is no Supreme Court

authority which holds that violating a pretrial order also violates the petitioner’s constitutional

rights. Again, it is the trial court’s task to determine whether counsel’s actions are permissible.

To the extent that a trial court alters its pretrial orders, there is no Supreme Court authority which

holds this to be a constitutional violation. As to counsel’s arguments made without foundation or

concerning false evidence, it is the jury’s task to determine whether counsel’s arguments were

supported by the evidence. The jury was instructed that nothing counsel said was evidence, and

they were only to consider the evidence elicited from witnesses. (Doc. 71-5 at 21.) The jury is

presumed to follow its instructions, and in this case, there is no indication the jury failed to do so.

From the record, a fairminded jurist could conclude that none of the prosecutor’s actions

could reasonably be seen as “infect[ing] the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly, 416 U.S. at 643.

Ineffective Assistance of Counsel

Petitioner argues that defense counsel rendered ineffective assistance by inadequately

arguing for admission of Dr. Volk’s autopsy report, failing to object to multiple misstatements of

facts and evidence by the prosecution, and failing to present available medical evidence on the

decedent’s health concerning her alleged heart problem.

This claim was raised on state habeas review. In the last reasoned decision, the Kern

County Superior Court rejected the claim as follows:

Petitioner contends that his counsel was ineffective due to the above-mentioned

errors, and that ineffectiveness caused prejudice to him resulting in the guilty

verdict.

To prevail on a claim of ineffectiveness of counsel, petitioner must show that

counsel's representation fell below professional norms, that is, but for that

ineffectiveness, there would be a probability of a change in the outcome.

(Strickland v. Washington (1984) 466 U.S. 668, 694.) The claim must be grounded

in reality, and not a figment of petitioner's imagination. (In re Avena (1996) 12

Cal.4th 694, 727; In re Sixta (1989) 48 Cal.3d 1247, 1257.)

...

[¶] . . . . The appellate court found no error by the court's refusal to admit Dr.

Volk's version of the autopsy report. Had Dr. Volk testified, his opinion of blunt

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force trauma at the hands of another could be harmful to petitioner because it

could implicate him in his wife's death. The autopsy report is hearsay since official

records must have a proper foundation including authentication of the report.

Evidence Code section 1280 states in pertinent part: "evidence of a writing made

as a record of an act, condition, or event is not made inadmissible by the hearsay

rule when offered in any civil or criminal proceeding to prove the act, condition, or

event if all of the following applies: (a) The writing was made by and within the

scope of duty of a public employee, (b) The writing was made at or near the time

of the act, condition, or event, (c) The sources of information and method and time

of preparation were such as to indicate its trustworthiness. This means that Dr.

Volk had to take the stand and lay a foundation as to the autopsy and explain why

it was reliable. By doing so, Dr. Volk could be subject to cross-examination

including offering an explanation as to the cause of the blunt force trauma.

The appellate court independently reviewed the autopsy report and found there

was no prejudice caused to petitioner at the hands of his counsel. Where the

appellate court rules adversely against petitioner on a point of law, he is precluded

from raising it again in habeas corpus. (In re Waltreus (1965) 62 Cal.2d 218, 225.)

Petitioner's arguments over his representation were raised and rejected on appeal.

Petitioner presents no additional evidence to warrant reconsideration by this court.

(Id.) The 1999 medical reports of sinus conditions, depression, and heart ailments

were from 1999 and too remote to the present cause of death. Petitioner argues that

these conditions could have caused her death. This is speculation at best, and is

excludable under Evidence Code section 352 in that it would lead to confusion of

the issues and waste of time. The evidence simply does not support petitioner's

contention that she died of a heart attack and that she simply bumped up against a

dresser before falling into bed. There was no evidence of prolonged heart disease,

or excessive vomitus leading to strangulation.

(Doc. 54-8 at 5-6.)

a. Legal Standard

Effective assistance of counsel is guaranteed by the Due Process Clause of the Fourteenth

Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of

counsel are reviewed according to Strickland's two-pronged test. Miller v. Keeney, 882 F.2d

1428, 1433 (9th Cir. 1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986); see also

Penson v. Ohio, 488 U.S. 75(1988) (holding that where a defendant has been actually or

constructively denied the assistance of counsel altogether, the Strickland standard does not apply

and prejudice is presumed; the implication is that Strickland does apply where counsel is present

but ineffective).

To prevail, Petitioner must show two things. First, he must establish that counsel’s

deficient performance fell below an objective standard of reasonableness under prevailing

professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, Petitioner

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must establish that he suffered prejudice in that there was a reasonable probability that, but for

counsel’s unprofessional errors, he would have prevailed on appeal. Id. at 694. A “reasonable

probability” is a probability sufficient to undermine confidence in the outcome of the trial. Id.

The relevant inquiry is not what counsel could have done; rather, it is whether the choices made

by counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).

With the passage of the AEDPA, habeas relief may only be granted if the state-court

decision unreasonably applied this general Strickland standard for ineffective assistance.

Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Accordingly, the question “is not whether a

federal court believes the state court’s determination under the Strickland standard “was incorrect

but whether that determination was unreasonable–a substantially higher threshold.” Schriro v.

Landrigan, 550 U.S. 465, 473 (2007); Knowles, 556 U.S. at 123. In effect, the AEDPA standard

is “doubly deferential” because it requires that it be shown not only that the state court

determination was erroneous, but also that it was objectively unreasonable. Yarborough v.

Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a

state court has even more latitude to reasonably determine that a defendant has not satisfied that

standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule

application was unreasonable requires considering the rule’s specificity. The more general the

rule, the more leeway courts have in reaching outcomes in case-by-case determinations”).

b. Analysis

Petitioner first argues that counsel failed to continue to argue for the admissibility of Dr.

Volk’s autopsy report despite the trial court already twice having denied his request for its

admission. Petitioner argues that counsel should have argued to admit it under Cal. Evid. Code §

1280 as a business record. This claim fails because the state court determined on habeas review

that the report was inadmissible under state law as a business record under § 1280. This court is

bound by a state court’s interpretation of state law. Oxborrow v. Eikenberry, 877 F.2d 1395,

1399 (9th Cir. 1989). Counsel cannot be faulted for failing to make a frivolous argument. James

v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (trial counsel's failure to make a futile motion does not

constitute ineffective assistance of counsel).

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Petitioner also contends that counsel failed to make numerous objections to the

prosecutor’s arguments during summation. Petitioner states counsel objected to six of the

misstatements he noted but he failed to object to others that Petitioner characterized as based on

false evidence or having no evidentiary support. When he asked counsel why he wasn’t

objecting, counsel stated he would “look like a jackrabbit.”

Petitioner’s contention fails. He argues that the prosecution’s arguments constituted

“evidence that is prejudicial against the defense”; however as previously noted, the prosecution’s

arguments are not evidence at all. The trial court had advised the jury that the prosecution’s

arguments were not evidence, and that the jury could only consider testimony elicited from

witnesses as evidence. Whether an argument by the prosecutor was supported by evidence was a

determination for the jury. In addition, defense counsel made several objections, and [w]here an

objection previously has been made and overruled, repeated objections to the same subject matter

may simply draw the jury's attention to the complained-of argument or perhaps irritate or alienate

the jury.” Middleton v. Roper, 455 F.3d 838, 850 (8th Cir. 2006). Moreover, counsel has wide

latitude in determining the best strategy, particularly during closing arguments. Yarborough v.

Gentry, 540 U.S. 1, 5-6 (2003). Also, the Supreme Court has stated that “[w]hen counsel focuses

on some issues to the exclusion of others, there is a strong presumption that he did so for tactical

reasons rather than through sheer neglect.” Id. at 8. Thus, Petitioner fails to show that counsel

acted beyond the wide range of legitimate defense strategy when he chose not to object to certain

statements.

Finally, Petitioner complains that defense counsel failed to present the decedent’s medical

records. On habeas review, the state court determined that the medical logs were inadmissible

because they were too remote in time and would have led to “confusion of the issues and waste of

time.” There is no Supreme Court authority which would disallow a trial court’s use of these

grounds to exclude evidence. Further, Petitioner cannot show prejudice since this evidence would

have been inadmissible. Also, the evidence would not have assisted defense given its remoteness

in time.

For the above reasons, Petitioner fails to demonstrate that the state court application of

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Strickland was objectively unreasonable. The Court should deny the claim.

Petitioner also faults appellate counsel for failing to raise ineffective assistance of

Ineffective Assistance of Appellate Counsel

counsel claims concerning the prosecutor’s misstatements.

a. Legal Standard

In challenges to the effective assistance of appellate counsel, the same standards apply as

with claims of ineffective assistance of trial counsel. Smith v. Robbins, 528 U.S. 259, 285

(2000); Smith v. Murray, 477 U.S. 527 (1986). In Robbins, the United States Supreme Court

indicated that an appellate attorney filing a merits brief need not and should not raise every non-

frivolous claim. Robbins, 528 U.S. at 288. Rather, an attorney may select from among them in

order to maximize the likelihood of success on appeal. Id. As a result, there is no requirement

that an appellate attorney raise issues that are clearly untenable. Gustave v. United States, 627

F.2d 901, 906 (9th Cir. 1980); see also Gillhan v. Rodriguez, 551 F.2d 1182 (10th Cir. 1977).

Here, the Court has already concluded that trial counsel was not ineffective under the Sixth

Amendment. Therefore, it necessarily follows that appellate counsel could not have been

ineffective for failing to raise issues related to trial counsel’s incompetence.

Moreover, in California, issues of ineffective assistance of counsel are preferably brought

on habeas review in order to enable trial counsel the opportunity to explain the reasons for his or

her conduct. People v. Mendoza Tello, 15 Cal.4th 264, 266-67 (1997). Therefore, Petitioner fails

to show that the state court rejection of this claim was unreasonable. The claim should be denied.

Trial Court Bias and Error

Finally, Petitioner claims a multitude of errors by the trial court. He alleges the trial court:

“(1) did not maintain neutrality in decisions for admission of evidence; (2) did not grant a

mistrial/retrial for uncorrectable detrimental statement by witness Bobby Scrivner; (3)

implemented rigid controls on defense expert which were not implemented on prosecution expert

nor defense expert during direct examination; (4) admitted evidence that violated Miranda; (5)

denied instructions on lesser charges when there was evidence in trial to support these

instructions; (6) admitted evidence on how to kill someone with poison when it was not related to

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the crime charged in trial; (7) did not provide instructions on corpus delecti rule; and (8) refused

instructions on CALCRIM 356.” These claims were raised and rejected in the last reasoned state

decision by the Fifth DCA on direct review. The Court will address each claim in turn.

a. Audiotape Evidence and Log Notes

Petitioner alleges the trial court did not act in a neutral fashion when it denied the

admission of allegedly exculpatory evidence. He contends the trial court erred in failing to grant

the defense motion to admit evidence of an audiotape and the decedent’s log notes. This claim

was raised and rejected on direct review. In the last reasoned decision, the Fifth DCA stated:

Prior to trial, defendant filed a brief in support of the use of the entire Hans King

tape. He asserted the tape was relevant to the two issues underlying the case:

whether Fern died a natural death and whether defendant had a motive to kill her.

In particular, he claimed the tape was evidence that he and Fern had discussed a

divorce and the tape supported his theory that a divorce was discussed prior to

Fern's death. Also, defendant claimed the tape showed that Fern would agree to the

divorce, thus undermining a claim that he had a motive to murder her. In addition,

defendant argued the tape would corroborate the defense evidence that his

relationship with Fern had become platonic, thus explaining why he was having a

relationship with Debbie Coleman. In addition, defendant argued that the

explanation of the nature of the relationship between himself and Fern partially

explained his demeanor after Fern's death.

During trial, the court ruled tentatively that it was not going to allow the entire

tape into evidence. The court believed that most of the tape was irrelevant or

would not fall under a hearsay exception. Defendant argued that the tape was

relevant because Fern expressed her feelings toward him and discussed him in a

positive light. In addition, he argued the tape was relevant to show that he and Fern

did not have an intimate marriage. Defendant also claimed that the tape supported

his testimony that he and Fern discussed divorce the day before she died. In

addition, defendant asserted that showing Fern's emotional distress during the tape

supports his theory that stress and bad news could have triggered a heart attack.

The court found that Fern's statements on the tape were trustworthy and that the

tape itself was trustworthy and had not been altered in any way. The court found

portions of the tape to be irrelevant or hearsay. The court then went through the

transcript line by line, admitting portions and excluding portions.

The court said that the parties had gone over the transcript that would be provided

to the jury following the court's rulings as to what was admissible. The court stated

that the parties had stipulated that the transcript was admissible. The court said this

was done without waiving any objection.

Defendant testified that Hans King is a channeler—a person who hears messages

from people who have died and passes these messages on to the living. Fern had

sessions with King and defendant also had seen King before. King tape-records

these sessions. After Fern died, defendant found a tape of the August 14, 2004,

session between Fern and King.

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The clerk then read portions of the transcript of the session to the jury. This

included statements of Fern that she still wanted to continue the relationship. She

said defendant told her he wanted a divorce. She said that their relationship had

been nonsexual for years. She told King that a few weeks earlier defendant said he

wanted to talk and said he wanted a divorce. She said it was a surprise because

defendant was her best friend. She asked defendant if there was anything they

could do about it or work on it, but he said he did not think so. Defendant told her

he was very unhappy and he did not love her anymore. One evening, she asked

defendant what if she said no to the divorce. He looked at her in funny manner and

did not answer. She said she wanted better reasons for why he wanted a divorce.

Fern told King that her friendship relationship with defendant has always been

perfect and beautiful. King advised Fern to tell defendant that she would like to

know his reasons for a divorce and to say to him that she loves and honors him so

much that she would give him a divorce if that is what he really wants. Fern told

King that she asked defendant if they could share the house, with separate rooms.

Fern wanted to know why defendant would not go along with this if he had

nothing else to go to.

Defendant now claims the trial court erred in not admitting the entire tape into

evidence. He points to over 10 portions of the tape that should have been admitted.

He argues this evidence would have corroborated his testimony that he cared very

much about Fern, that he had no desire to see her dead, and that they had a calm

and rational discussion culminating in her agreeing to a divorce the day before she

died. He contends these portions of the tape that were erroneously excluded would

have caused the jury to give greater credence to his testimony. In his reply brief

defendant makes specific arguments as to each portion of the tape he now claims

should have been admitted but was not.

“Broadly speaking, an appellate court applies the abuse of discretion standard of

review to any ruling by a trial court on the admissibility of evidence. [Citations.]”

(People v. Waidla (2000) 22 Cal.4th 690, 717.) The trial court excluded portions of

the taped conversation here because they were irrelevant or, if relevant, did not fall

within the state-of-mind exception to the hearsay rule. Relevant evidence is

evidence that has any tendency in reason to prove a disputed material fact.

(Evid.Code, § 210.) Evidence Code section 1250 contains the state-of-mind

exception to the hearsay rule. It provides in pertinent part, “(a) Subject to Section

1252, evidence of a statement of the declarant's then existing state of mind,

emotion, or physical sensation (including a statement of intent, plan, motive,

design, mental feeling, pain, or bodily health) is not made inadmissible by the

hearsay rule when: [¶](1) The evidence is offered to prove the declarant's state of

mind, emotion, or physical sensation at that time or at any other time when it is

itself an issue in the action; or [¶](2) the evidence is offered to prove or explain

acts or conduct of the declarant.”

Evidence Code section 1252 states that evidence of a statement is inadmissible if it

is not trustworthy. The trial court found the taped statement to be trustworthy.

Defendant does not challenge this ruling on appeal.

As previously noted, the trial court went through the entire transcript of the tape

page by page and ruled specifically which portions it was admitting and which

portions it was excluding. During this review by the trial court the parties were

allowed to make specific objections and argue their position to the particular

decisions made by the trial court, and at times the court reversed its determination

based on the arguments of the parties.

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Evidence Code section 354 provides in pertinent part that “[a] verdict or finding

shall not be set aside, nor shall the judgment or decision based thereon be reversed,

by reason of the erroneous exclusion of evidence unless the court which passes

upon the effect of the error or errors is of the opinion that the error or errors

complained of resulted in a miscarriage of justice and it appears of record that: [¶]

(a) the substance, purpose, and relevance of the excluded evidence was made

known to the court by the questions asked, an offer of proof, or by any other

means.”

We find that to the extent defendant did not offer particularized reasons during the

hearing before the trial court for the admission and relevancy of the excluded

portions of the tape he has failed to preserve the issue for appeal. The transcript of

the tape was a 28–page document. A reading of the document demonstrates that,

while portions of the conversation were relevant and portions of the conversation

fell within the state-of-mind hearsay exception, not everything in the document

met these criteria for admission into evidence. Defendant thus could not rely on an

all-inclusive offer of relevancy and purpose for the entire document and was

required to make a proper showing for each particular subject area within the

document. This is particularly applicable when the trial court extended the

opportunity to make the proper showing during the time it meticulously went

through each page of the document.

As his first claim of erroneous exclusion defendant argues the trial court should

have admitted King's question to Fern asking her if defendant would be willing to

go with her to counseling. Fern responded that she had asked defendant if he

thought counseling would help and he said no. The court excluded this. Defendant

made no comment. Thus, he has waived the argument to this portion of the tape. In

any event, defendant's claim has no merit. Defendant argues that this portion of the

tape showed that defendant had an unequivocal intention to end the marriage

through divorce and did not have a secret plan to kill Fern. In addition, he claims it

corroborates that Fern agreed to a divorce on Sunday and that defendant had typed

up divorce papers prior to Fern's death.

The state-of-mind exception to the hearsay rule applies to the state of mind of the

declarant. Defendant's unequivocal intention to end the marriage does not fall

within the state-of-mind exception because he was not the declarant. Additionally,

it does not corroborate that Fern agreed to divorce; it shows the contrary—that she

wanted to go to counseling to save the marriage.

Defendant's next area of dispute with an excluded portion of the tape is the portion

when Fern says to King that defendant always buys her beautiful anniversary

cards. He had purchased one for their December 31, 2003, anniversary. Fern told

King that the card was beautiful and in the card defendant told her that he loved

her. She returned it to defendant because she did not feel that he loved her. The

court found this portion of the tape to be irrelevant. Defendant made no comment,

thus waiving the issue. Again, defendant's argument for inclusion made for the

first time in the reply brief would fail in any event. Defendant claims this evidence

would undermine the prosecution's theory that he did not care about Fern and

discussed killing her with his daughter that same month and also was relevant to

show that he did not deliberately kill Fern when he clearly cared enough to give

her a lovely card just a few months prior to her death. Again, the statements do not

fall within the state-of-mind exception because they involve defendant's state of

mind, not the declarant's.

The third claim applies to Fern's discussion that she thought defendant might have

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had an affair with Deborah Channel (not Debbie Coleman). Channel was a heroin

addict that Fern and defendant had been helping. Fern suspected that defendant

had an affair with her, and Channel had written defendant a love letter. Defendant

denied an affair, and Fern felt certain he was telling the truth. Fern said she would

take the divorce idea better if she knew it had to do with an affair with Channel.

Court and counsel engaged in a discussion regarding the admission of the portions

of the tape discussing Channel. The court found it was confusing because Fern

went back and forth during her discussion with King on whether or not she

believed defendant had an affair or not. In addition, the court found it to be

cumulative. Also, the court found it to be irrelevant as to Fern's state of mind. In

response defendant said that his arguments were clear and that the thrust of the

tape was that Fern had positive feelings for him. We fail to see how this portion of

the tape, which waffled back and forth on whether Fern believed defendant was

having an affair, demonstrated positive feelings for defendant. We agree with the

trial court that it was confusing. In addition, it was cumulative to the evidence the

court did admit from the tape demonstrating that Fern had positive feelings for

defendant. The trial court did not err in excluding this portion of the tape.

The fourth area of exclusion defendant claims was error is a long statement by

Fern to King regarding her discussions with defendant on ways to save their

marriage, and asking him for ways she could improve. The court found that this

was all irrelevant. In addition, the court cautioned defendant that this passage

demonstrated that Fern was not giving up on the marriage, and that would support

the People's case. Defendant did not make any argument on this ruling by the court

and has thus waived his objection to the exclusion.

Even if the issue was not waived, the exclusion was not error. Defendant contends

this evidence was relevant to show the respectful and noncontentious nature of the

relationship, as well as his lack of animosity toward Fern. He argues this portion of

the tape shows that he was not someone who became enraged or murderous when

Fern questioned his decision to divorce her, but treated her with courtesy and

respect. Again it is not defendant's state of mind that is looked at in determining if

the declaration meets the state-of-mind exception. In addition, sufficient portions

from the tape were admitted to show that the discussions between Fern and

defendant did not involve rage or murderous intent. This evidence was cumulative

to the other evidence. Defendant argues that calling this evidence cumulative is not

a reason to uphold the exclusion because the court's rulings were not made under

Evidence Code section 352. Defendant misses the point that if the evidence were

cumulative, whether ruled on this ground by the trial court or not, any error in

excluding it would be harmless.

After Fern discussed that she asked defendant for ways to improve their marriage,

King told her that her hands were tied because it was not in her hands anymore.

The following occurred:

“FERN: Yeah, I am damned if I do. And damned if I don't.

“HANS: And you can't stop him from getting a divorce, if he wants one.

“FERN: No?

“HANS: Nope. So, if it is contested divorce, then contest it. But he is not

happy. And Fern, to the best of my knowledge you are not happy either

with the way it is. So something needs to be done to shine some new light

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here. Just like you are trying to do now ah sometimes, when we are

depressed or we are not feeling well. We say and do things that in a

conscious mind we wouldn't do. I think you are both guilty of that. Okay.”

Defendant argued that this was relevant because it showed that King informed her

that she could not legally stop defendant from divorcing her and therefore aided

defendant's position that she agreed to the divorce the day before she was killed

and defendant thus had no reason to murder her. Defendant argued that you could

infer that she followed the advice of King and agreed to a divorce. The trial court

disagreed and said that you cannot tell what it means exactly and reading the

transcript in context the court thought it was inferable that Fern thought she could

work things out with defendant. The court admitted a later portion of the transcript

when King advises Fern to tell defendant she will agree to the divorce if that is

what he really wants. The court believed that this later discussion covered the

subject. We agree with the trial court that the portion of the excluded transcript

was ambiguous and cumulative.

The fifth area of exclusion was Fern's expression of concern about what defendant

would do if he were alone. She stated that he was a mess when he was alone

before they got together, and she feared he would not be able to function on his

own again. The court excluded this as irrelevant. Defendant did not object to the

court's exclusion of this evidence and has waived it. In any event, we reject

defendant's assertion that this was circumstantial evidence of the nature of their

friendship and the lack of animosity in their relationship. Again, we find this

evidence cumulative to the other evidence admitted. In addition, it could be argued

from this evidence that Fern was less likely to give defendant a divorce because

she was so concerned for him. Any error in excluding the evidence was harmless.

Defendant claims it was error to exclude King's advice to Fern to discuss looking

at the finances and how they were going to run the business. The court found this

was irrelevant. Defendant did not offer a reason for relevance at trial, other than

his general, overall reasoning; thus he has waived the issue. In addition, this was

not a statement by Fern; it was a statement by King. There was adequate evidence

from which the jury could infer that defendant and Fern discussed divorce the day

before she was murdered. The other portions of the tape admitted at trial clearly

demonstrate that Fern spent a great deal of time discussing with King the divorce

situation she was facing.

Next, defendant argues that the court erred in excluding Fern's statements about

planned trips to Big Bear and Las Vegas. The court found this discussion

irrelevant. Defendant offered no dispute to the court's ruling and has waived the

issue. We again reject defendant's argument that these incidental facts would have

shown the friendly nature of their relationship and he was prejudiced by their

exclusion. We additionally note that in discussing these trips Fern said that she

was hoping to hold the relationship together, including to the time of the Christmas

Las Vegas trip, and spending time together would give them this opportunity. This

undercuts the defense argument that Fern was resigned to a divorce and agreed to

it on Sunday. Defendant was not prejudiced by the exclusion of this evidence.

During her discussion with King, Fern commented that they had a 13–year–old

cat. She said she asked defendant, “What are you gonna do about Merlin [the cat]?

Are you gonna leave the baby? I mean you know I am not gonna give you the

baby.” The court found this was irrelevant. Defendant claims this demonstrates

that Fern was looking at the practical realities of a divorce and supports the

defense theory that she would consent to a divorce. Again, lack of objection

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waives the issue. In any event we read this passage quite differently. It shows that

Fern had one more reason to offer to defendant to not leave because he had

feelings for the cat and she was not going to let him take the cat if they divorced.

Defendant was not prejudiced by the exclusion of this portion of the transcript.

Fern discussed her health with King. She stated she had been having terrible sinus

problems. In addition, she said, “I get strangled real easy.” The court excluded that

testimony because it had no idea what was meant by the comment and it would

require pure speculation to come up with a meaning for what Fern said. Defendant

previously argued that this evidence was relevant to show that Fern gagged at

night and to support defendant's testimony that she did so. We agree with the trial

court that determining the meaning of the statement would require pure

speculation. Something that is purely speculative is not relevant. The trial court did

not err in excluding this evidence.

Brooks, 2008 WL 2897093, at *20–26.

The claim fails because there is no Supreme Court authority that squarely addresses

whether a discretionary decision to exclude evidence violates a defendant’s constitutional right to

present relevant evidence. Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009). For this

reason, Petitioner cannot show that the exclusion of portions of the audiotape violated his

constitutional rights, and habeas relief is unauthorized. Wright v. Van Patten, 552 U.S. 120, 125-

26 (2008).

Further, the state court reasonably determined that the excluded portions of the audiotape

were irrelevant, cumulative, or non-prejudicial. A fairminded jurist could conclude that none of

the highlighted portions would have aided Petitioner, and clearly would not have altered the

outcome of the trial.

b. Statement by Witness

Petitioner contends that witness Bobby Scrivner testified at one point that for several years

she thought Petitioner was a child molester. Defense counsel immediately objected and requested

a mistrial during a side bar conference. The court denied the motion for mistrial, but ordered the

statement stricken and admonished the jury to disregard the statement. Defense counsel

requested a mistrial again but the court denied. Petitioner contends that the trial court’s

admonishment could not cancel the negative effect of the statement and deprived him of a fair

trial.

This claim was also rejected on direct review as follows:

Fern's daughter, Bobby, testified for the prosecution. Bobby was asked about her

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(Bobby's) relationship with defendant. She replied, “I had problems with her

marrying Rowan [defendant]. I didn't want her to marry him. I never liked him,

didn't trust him. I thought for a lot of years that he was a child molester. I did not

want him around my daughter.”

Defendant immediately objected. A recess was taken. The court then admonished

the jury as follows: “Ladies and Gentlemen, when a witness is testifying, and if

they have a bias for or against the defendant or another witness, of course you

should consider that in determining whether or not the witness is credible. [¶] With

that, you are to absolutely disregard any comment that the witness thought the

defendant had inappropriate conduct with children or was a child molester. There

is absolutely, positively no evidence whatsoever the defendant ever molested any

child. [¶] Having said that, you are to disregard that, and I am to strike that from

the testimony. The witness' comments ... that she did not want him to marry her

mother, or that she didn't like him or didn't trust him, that is evidence you can use,

if you choose to, to differentiate whether or not this witness is credible or not. But

you are to disregard the other comment.”

Defendant made a motion for mistrial, asserting that this type of information

poisons the minds of jurors and you cannot unring the bell once something like

this has been said. The court denied the motion, finding that its admonition to the

jury cured any prejudice that may have resulted from Bobby's comment.

Defendant raised the same issue in his motion for new trial, claiming the remark

was so extremely damaging, inflammatory, and negative that an admonition by the

court could not cure the damage caused by the remark. Defense counsel argued

that the bell could not be unrung in this situation. The court denied the motion,

finding that the admonition that was given was sufficient.

Defendant now claims the trial court erred in denying the motion for mistrial and

motion for new trial based on Bobby's testimony that she thought defendant was a

child molester. Defendant argues that the evidence in this case was extremely close

and Bobby's testimony labeling defendant as a child molester was incurably

prejudicial.

“The issue here is whether the witness's comment was so incurably prejudicial that

a new trial was required. ‘A mistrial should be granted if the court is apprised of

prejudice that it judges incurable by admonition or instruction. [Citation.] Whether

a particular incident is incurably prejudicial is by its nature a speculative matter,

and the trial court is vested with considerable discretion in ruling on mistrial

motions.’ [Citation.] A witness's volunteered statement can, under some

circumstances, provide the basis for a finding of incurable prejudice. [Citations.]”

(People v. Ledesma (2006) 39 Cal.4th 641, 683.)

Although we recognize that being labeled a child molester can be a very damaging

statement, the comment by Bobby that she thought defendant was a child molester

was not incurably prejudicial. First, it was abundantly clear that Bobby did not

care for defendant for numerous reasons, including that she believed he had killed

her mother. Additionally, the content of Bobby's comment indicates that she had

thought he was a child molester, but she no longer thought he was. This is

certainly less prejudicial than if she had said that defendant was and is a child

molester. Most important, the trial court instructed the jury that, “[t]here is

absolutely, positively no evidence whatsoever the defendant every molested any

child.” Unlike cases where a witness inadvertently tells the jury something that is

derogatory to the defendant and also factually true (for example that defendant is

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on parole, or is an ex-convict, etc.) and the court is able to admonish the jury to

disregard the comment but unable to refute the truth of the statement, here, in

addition to telling the jury to disregard the comment, the court was able to inform

the jury that there was absolutely no factual basis to support the allegation made

by Bobby. Thus any prejudice from the comment was significantly weakened by

the court's admonition.

“It must be presumed that the jurors acted in accordance with the instruction and

disregarded the ... answer.” (People v. Cox (2003) 30 Cal.4th 916, 961.) A trial

court has considerable discretion in making an assessment of whether the

defendant will suffer prejudice that is incurable. (People v. Davis (2005) 36

Cal.4th 510, 554.) The trial court did not err in denying the motion for mistrial or

the motion for new trial.

Brooks, 2008 WL 2897093, at *19–20.

A criminal defendant has a due process right to be tried by “a panel of impartial,

‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 723 (1961); Jeffries v. Blodgett, 5 F.3d 1180,

1189 (9th Cir. 1993). However, “[h]abeas relief is usually warranted only if the alleged

constitutional errors had a ‘substantial and injurious effect or influence in determining the jury's

verdict.’” Jackson v. Brown, 513 F.3d 1057, 1069–70 (9th Cir. 2008) (quoting Brecht, 507 U.S.

at 637); see also Fry v. Pliler, 551 U.S. 112 (2007).

In this case, the Fifth DCA determined that any error was harmless. This court agrees. As

explained by the state appellate court, the trial court admonished the jury that there was

absolutely no evidence that the petitioner had ever molested a child. In addition, it was clear that

the witness was antagonistic and biased against the petitioner. Further, the witness stated that she

had previously thought he was a child molester, implying she no longer did. As stated by the

appellate court, this is substantially less damaging than a statement that the witness believed he

was and still is a child molester. Finally, the jury was instructed that the statement had been

stricken and they were to disregard it.

We normally presume that a jury will follow an instruction to disregard

inadmissible evidence inadvertently presented to it, unless there is an

“overwhelming probability” that the jury will be unable to follow the court's

instructions, Richardson v. Marsh, 481 U.S. 200, 208 (1987), and a strong

likelihood that the effect of the evidence would be “devastating” to the defendant,

Bruton v. United States, 391 U.S. 123, 136 (1968).

Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). Here, there is no reason to believe the jury did not

follow the curative instructions. Thus, the state court reasonably determined that the statement

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did not have had a substantial and injurious effect on the verdict. The claim should be rejected.

c. Treatment of Witnesses

In his next claim, Petitioner contends the trial court erred in the manner it treated

witnesses for the prosecution as compared to witnesses for the defense. He states the court placed

rigid controls on the defense expert whereas the court did not with the prosecution expert. He

contends that the biased treatment of the defense expert caused the expert’s opinion to be ignored.

Petitioner raised this claim on direct appeal. The Fifth DCA rejected it in a reasoned

decision, as follows:

Defendant cites a series of rulings and comments made during the testimony of his

expert pathologist, Dr. Comparini. He claims the trial court erred in refusing to

admonish jurors that the hearsay contained in the prosecutor's question could not

be considered for the truth, and asserts the trial court actually informed jurors that

experts could rely on such information. Next, he argues the trial court erred in

refusing to allow Dr. Comparini to say she had relied on Dr. Dollinger's opinion

(see pp. 44–45, post), and finally he cites a long series of exchanges between the

prosecution, Dr. Comparini, and the trial court and contends the trial court

improperly discredited her testimony and erred in not letting her explain her

answers.

a. Prosecutor's Questions About Reports Reviewed by Dr. Comparini

Dr. Comparini testified that she received materials to review in forming her

opinion. These materials included the autopsy report prepared by Dr. Volk, the

report of the coroner's investigation, documents from the crime laboratory, police

reports, a letter from Dr. Wagner, and medical records two or three inches thick.

Regarding her opinion that Fern died from cardiac arrhythmia and that Fern had

moderate to severe fat in her right ventricle, Dr. Comparini was questioned about

Fern's history of heart problems. She was asked if Fern's medical records indicated

there were abnormalities with her heart. Dr. Comparini said abnormalities of

Fern's heart were shown in the electrocardiograms and in her answers to doctors'

questions when she said she was dizzy and had heart palpitations.

During cross-examination by the prosecution, Dr. Comparini was asked if she had

reviewed the report of Deputy Coroner Jeff Cameron. She said that she had. The

following then occurred:

“Q. [Prosecutor] And so, I take it, that when you—you opined this morning

that the [electrocardiograms] or EKGs were abnormal, that you were aware

that Jeff Cameron had contacted Dr. Shiue, Ms. Fox's[ ] physician, and,

although she did have a history of anemia as you indicated, Dr. Shiue

indicated that she had no history of heart disease?

“MR. EYHERABIDE [Defense Counsel]: I'm going to object as double

hearsay.

“THE COURT: I think she's relied upon this; so overruled.

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“BY MS. GREEN [Prosecutor]:“Q. Specifically, just to expedite things,

the last—

“MR. EYHERABIDE: Objection.

“BY MS. GREEN:“Q. I'm referring to the last paragraph.

“MR. EYHERABIDE: I'd ask that we admonish the jury that the statement

is not being accepted for the truth.

“THE COURT: Well, an expert can rely upon other doctor's reports. And

so I will end up instructing you as to the value of that; so this expert can

rely upon the other doctors' reports. And then you'll be instructed further

upon that. I will leave it that way for now.”

Dr. Comparini said she could not and did not use the information from Fern's

treating physician in forming her opinion.

Defendant now claims the trial court erred in refusing the defense request for an

admonition that Dr. Shuie's statement to Mr. Cameron was not admissible for its

truth.

We disagree with defendant's characterization of his claim. The information

regarding Dr. Shuie and Mr. Cameron was contained within the prosecutor's

question. It was not an answer that was admitted into evidence. The jury was

instructed, “Nothing the attorneys say is evidence.... [T]heir questions are not

evidence.... [¶] The attorneys' questions are significant only if they helped you to

understand the witnesses' answers. [¶] Do not assume that something is true

because just one of the attorneys asked a question that suggested it was true.” The

jury was allowed to know that Dr. Comparini did not rely on the report of Fern's

treating physician in reaching her conclusions. The question was not evidence, and

the instruction to the jury made this clear. There was no error.

b. Exclusion of Testimony Regarding Reliance on Dr. Dollinger's Opinion

On direct examination, defense counsel asked Dr. Comparini if she knew Dr.

Dollinger. She said she did know him, he was a forensic pathologist, but he was

now dead. The People objected based on relevance and foundation grounds. An

unreported sidebar was held and the court struck all references to Dr. Dollinger.

At a later point the parties put the discussion of the Dr. Dollinger issue on the

record. Defense counsel read from the police report of Detective Church. In that

report Church stated he met with Dr. Dollinger. Dr. Dollinger had examined the

photographs and also examined Fern's remains and came to the same conclusion as

Dr. Volk. Defense counsel stated he was going to ask Dr. Comparini if she relied

on the opinion rendered by Dr. Dollinger, as noted in the report. The district

attorney stated that Dr. Dollinger did not prepare a report, that Dr. Dollinger was

dead, and that defense counsel did not articulate during the sidebar conference that

Dr. Dollinger actually examined Fern's body. Without a report prepared and

without the ability to question Dr. Dollinger, because he was dead at the time of

trial, the People argued that in such a situation the accuracy of the police report

might be questionable and that it would be inappropriate to ask Dr. Comparini

questions about Dr. Dollinger's opinion under these circumstances.

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The trial court agreed that one expert cannot simply testify what another expert has

said without some type of basis for it and the court did not see the basis here.

Defendant contends the trial court erred in disallowing questions of Dr. Comparini

regarding her reliance on Dr. Dollinger's opinion. He argues that experts may

testify to sources on which they base their opinion and thus the trial court erred.

Here we interpret the trial court's statement that it did not “see the basis here” as

agreement with the People when they pointed out that Dr. Dollinger's opinion was

contained in a police report and the reliability of that report on the subject of Dr.

Dollinger's opinion was questionable. “[T]he court may ‘“exclude from an expert's

testimony any hearsay matter whose irrelevance, unreliability, or potential for

prejudice outweighs its proper probative value.”’ [Citation.]” (People v. Catlin

(2001) 26 Cal.4th 81, 137.) Defendant offers no explanation now as to why the

trial court erred in excluding the evidence as unreliable.

We find the trial court did not err in excluding evidence that Dr. Comparini relied

on Dr. Dollinger's opinion since Dr. Dollinger was not available to be questioned,

there was no report made by Dr. Dollinger memorializing his opinion, and the

police report was not an adequately reliable source for Dr. Dollinger's opinion.

c. Trial Court's Rulings and Admonishments During Dr. Comparini's

Testimony

Quoting a long litany of passages from the cross-examination of Dr. Comparini,

defendant contends the trial court engaged in misconduct when it required Dr.

Comparini to give unqualified affirmative or negative answers and made

comments that the jury would perceive as indicating that the court did not believe

her testimony or that otherwise discredited her testimony.

Defendant cites McGuire v. Baird (1927) 9 Cal.2d 353 as support for his argument

that it is error for a trial court to require an expert witness to give unqualified

affirmative or negative answers. In McGuire, counsel for the plaintiff spent more

than half a day stating the hypothetical question. Defense counsel insisted that the

expert must answer the question with a yes or no answer. The trial court ordered

the witness to do so. The California Supreme Court stated it was in accord with the

Court of Appeal that found it was error to require a yes or no response and

additionally the defendant had agreed that it was error.

McGuire does not stand for the broad proposition that an expert witness may never

be asked questions that require a yes or no answer and defendant has not cited any

authority that supports such a position.

We have reviewed the reporter's transcript of the cross-examination of the expert

and reject defendant's argument that the trial court's comments to the expert were

misconduct. It is clear from the record that the defense expert witness, Dr.

Comparini, repeatedly attempted to answer questions in the manner that she

wished to and not in response to the call of the question. In addition, Dr.

Comparini had a very argumentative demeanor while being questioned by the

prosecution. The trial court did nothing more than attempt to control the

proceedings and have the witness answer the questions that were asked of her.

In any event, defendant waived the issue of judicial misconduct. Although he

objected to some of the questions asked by the prosecutor, he never raised a claim

of judicial misconduct in the trial court. “We determine the propriety of judicial

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comment on a case-by-case basis in light of its content and the circumstances in

which it occurs. [Citation.] To preserve the issue for review, a defendant must

make a timely objection. [Citation.]” (People v. Cash (2002) 28 Cal.4th 703, 730.)

Brooks, 2008 WL 2897093, at *27–30.

As previously noted, the Supreme Court has never squarely addressed “whether a court’s

exercise of discretion to exclude expert testimony violates a criminal defendant’s constitutional

right to present evidence.” Moses, 555 F.3d at 758. This is fatal to Petitioner’s claim that the

court erred in admitting evidence of Dr. Shiue’s statement to Dr. Cameron. Moreover, the

statement was not admitted into evidence. It was within the form of the prosecutor’s question,

and the jury instructions were clear that counsel’s questions were not evidence.

Likewise, there is no Supreme Court authority which would bar a trial court from

exercising discretion in disallowing expert testimony. As noted in the state court opinion, Dr.

Dollinger did not prepare a report and he was dead at the time of trial. The only source for Dr.

Dollinger’s opinion was contained in a police report. The trial court reasonably determined that

this was not an adequately reliable source. The state court reasonably found that the trial court

did not err in not permitting the defense expert to testify regarding her reliance on Dr. Dollinger’s

opinion.

Finally, the state court reasonably determined that there was no evidence of judicial bias

by the trial court. Due process demands that the trial judge be unbiased. In re Murchison, 349

U.S. 133, 136 (1955); Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). A judge is

unconstitutionally biased if he has a deep-seated favoritism or antagonism that makes fair

judgment impossible.” Mayberry v. Pennsylvania, 400 U.S. 455, 465-66 (1971). The Supreme

Court has held that “judicial rulings alone almost never constitute a valid basis for a bias or

partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). In this case, the Fifth

DCA correctly noted that the trial judge did nothing more than attempt to control the proceedings

and to have the witness answer the questions asked of her. There is no evidence of judicial bias

in the record.

Miranda violation

Petitioner contends that the admission of Petitioner’s videotaped statement, including the

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portion showing him cleaning his fingernails, violated his Miranda3 rights. He alleges he was

subjected to custodial interrogation and was never read his Miranda warnings prior to

questioning.

This claim was raised and rejected on direct review, as follows:

On the day of Fern's death defendant was interviewed at the police department.

The interview was being audio- and videotaped by a hidden camera. During the

interview detectives asked defendant if he would be willing to give fingernail

scrapings. He agreed to do so. When the officers left the interview room,

defendant began methodically cleaning the tip of each of his fingers with his

mouth.

Prior to trial, defendant filed a motion to exclude the admission of this videotape.

At the hearing on the motion, the People claimed they were not seeking to admit

any statements made by defendant during the interview, but were seeking only to

admit the video portion showing defendant sucking on his fingernails. They sought

to admit the evidence as proof of consciousness of guilt by defendant.

Defendant sought to exclude the evidence and argued that the interrogation at the

police department was conducted in violation of Miranda (Miranda v. Arizona

(1966) 384 U.S. 436) and the fingernail incident would not have occurred absent

the Miranda violation.

The People argued that the court need not decide the Miranda issue because the

fingernail incident was nontestimonial and thus admissible whether the

interrogation was in violation of Miranda or not. The court decided it would hold a

full evidentiary hearing to determine if defendant's Miranda rights were violated.

At the hearing, Bakersfield police officer Joseph Aldana testified that he was asked

to go to defendant's residence and to stand by and wait for two detectives. Aldana

went to defendant's residence. He was joined there by Officer Middleton. When he

arrived, he told defendant that they were there regarding the death of his wife and

that other detectives would be joining them shortly. Middleton and Aldana

remained at defendant's apartment for 20 to 30 minutes. During this time,

defendant was free to move about his apartment, but the officers kept an eye on

him.

Detective Church called Aldana and asked Aldana to see if defendant was willing

to come to the police station for an interview. Aldana asked defendant if he would

come to the police station regarding his wife's death. Defendant agreed to come to

the station. As they prepared for their departure from defendant's home, defendant

started to get his jacket. Aldana noticed that the pockets of the jacket were bulging.

For officer safety defendant was asked to remove things from his pockets and

leave the items at home.

Defendant asked to drive his own car to the police station. The officers told him

that they would give him a ride there and back. He replied, “That's fine.”

Defendant was searched prior to being placed in the patrol car to make sure he did

not have any weapons. Defendant was not handcuffed and was seated in the rear of

Miranda v. Arizona, 384 U.S. 436 (1986.)

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the patrol car. It took about 10 minutes to drive to the police station. The doors in

the back seat of the patrol car could not be opened by a back-seat passenger.

When they arrived at the police station, defendant was taken to an interview room

on the second floor. Middleton told defendant to have a seat and if he needed

anything detectives would be with him shortly. Defendant was in the interview

room for approximately 40 minutes before the interview. Defendant asked to use

the restroom. Middleton escorted him to the restroom and then back to the

interview room. Middleton testified that they do not typically allow civilians to

wander around on the second floor.

The interview was conducted in the interview room with Aldana and Detective

Church. The door to the room was partially open. Defendant was given something

to drink. Defendant was not aware that the room had a hidden camera and that the

interview was being taped.

Defendant testified to a somewhat different version of events. He said that while

the two officers were at his house they followed him wherever he went. When

defendant went to the bathroom, Middleton followed him and stood by the door.

Defendant wanted to make a telephone call but he was told he could wait until the

officers were done. When they began to leave for the police station, defendant

went to get his jacket. The officers wanted to see what defendant had in his

pockets. He started to empty the pockets of his jacket and Middleton said he would

empty the pockets for him. Middleton reached from behind defendant and emptied

the pockets for him. He was told to leave his jacket at home.

When defendant was asked if he would be willing to come to the police station for

an interview, he asked, “They can't get here?” The officers told him no, they

wanted to meet him halfway. Defendant said he would drive. He was told no, that

he would ride with the officers.

Defendant testified that Middleton stood by the door of the interview room until

Church and Aldana arrived. Middleton escorted him to the restroom, stood outside

the door, and escorted him back to the room. Defendant brought up the subject of a

lawyer three or four times during the interview. He did not know the interview was

being taped. Defendant felt trapped at the interview desk with two detectives

between him and the door. Although the door was not locked, defendant felt it was

not possible to leave.

On cross-examination defendant testified that he consented to go to the police

station, but he felt forced to go and did not feel he had a choice. He testified that at

the beginning of the interview there was a spirit of cooperation.

In addition to the above testimony, the trial court viewed the videotape. During the

beginning of the interview, Church was asking defendant general questions about

Fern's medical background, her family, and their neighborhood. Church then told

defendant that the coroner found some bruises on Fern and particularly focused on

bruising on her neck. Defendant explained that Fern fell down several times and he

helped her up. He said she hit the cabinet during one fall. Defendant explained that

he woke up and saw Fern lying face down, which was unusual for her. He rolled

her over and checked on her. She was dead and he called 911.

Church then told defendant that from the autopsy it appeared that Fern died while

she was on her back. Aldana then questioned defendant saying, “So what are we

supposed to think?” Church then informed defendant they would like to take

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scrapings from underneath his fingernails. Defendant said, “Okay.” Church told

him this was totally voluntary.

The following exchange took place:

“Brooks [defendant]: I don't know, the way this thing is going, I almost

think I need an attorney.

“Aldana: You do? How come?

“Brooks: Well, I, I don't know, I'm, I'm willing to cooperate.

“Aldana: We appreciate your cooperating.

“Brooks: UNINTELLIGIBLE do, but, part of the things is, uh, some of the

things you're saying there, I don't have answers to.

“Church: Well, that's why, that's why we're asking you.

“Aldana: Not everybody does.

“Brooks: hmm, hmm,

“Church: If I had the answers to everything, I certainly wouldn't be here.

“Brooks: Well, I don't think he would either, your job's to look for the

answers.

“Church: Well, you know, I'm trying to keep this low key and everything,

you know, do it with your cooperation, you know, things do happen. So,

you are willing to give the fingernail scrapings?

“Brooks: Hmm, hmm,

“.........................

“Church: Hey, is this Destinie, uh, this is Chuck. Can you take some

fingernail scrapings? Okay, we're up on the second floor. Room 233.

Alright, I'll meet you in the hallway.”

The officers left the interview room. During their absence defendant can be seen

methodically putting each finger in his mouth in a motion that looks like he is

cleaning each fingernail with his teeth.

The trial court found that defendant was not in custody at the time of the fingernail

incident. The court further found that, even if defendant was in custody, the

fingernail incident was admissible because it was nontestimonial. The court went

on to find that the interview became custodial at some point after the fingernail

incident. The court granted defendant's motion to exclude the statements made by

him during the interview because the People were not asking for admission of the

statements. The court denied defendant's motion to keep the jury from viewing the

videotape of the fingernail incident.

Defendant contends the trial court erred in admitting the videotape because it

violated his Miranda rights and also because his consent to the fingernail scrapings

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was a result of the officers' ignoring his request for counsel. Defendant goes on to

argue that the videotaping of the fingernail incident was testimonial because it was

communicative conduct. He contends the police used a psychological ploy

functionally equivalent to interrogation to elicit the communication (sucking on

the fingernails). Defendant claims the error requires reversal.

“We review independently a trial court's determinations as to whether coercive

police activity was present and whether the statement was voluntary. [Citation.]

We review the trial court's findings as to the circumstances surrounding the

confession, including the characteristics of the accused and the details of the

interrogation, for substantial evidence. [Citation.] ‘[T]o the extent the facts

conflict, we accept the version favorable to the People if supported by substantial

evidence.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1093.)

“After being taken into custody by police or otherwise deprived of his or her

freedom of action in any significant manner, a person must be given Miranda

warnings apprising the person of his or her right to remain silent, that any

statement the person makes may be used against the person and that the person has

the right to counsel, retained or appointed. [Citation.] Statements elicited in

noncompliance with this rule may not be admitted for certain purposes in a

criminal trial. [Citations.]” (In re Kenneth S. (2005) 133 Cal.App.4th 54, 63.)

“The due process [voluntariness] test takes into consideration ‘the totality of all the

surrounding circumstances—both the characteristics of the accused and the details

of the interrogation.’” (Dickerson v. United States (2000) 530 U.S. 428, 434.)

“Miranda made clear that the rule was only applicable to custodial interrogation,

which means, ‘questioning initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of his freedom of action in any

significant way.’ [Citation.] In determining whether an individual was in custody,

a court must examine all of the circumstances surrounding the interrogation, but

the ultimate inquiry is simply whether there was a ‘“formal arrest or restraint on

freedom of movement” of the degree associated with a formal arrest.’ [Citations.]”

(In re Kenneth S., supra, 133 Cal.App.4th at p. 64.)

We agree with the trial court that the interview of defendant, at least until the point

where he agreed to submit to having his fingernails scraped, was not a custodial

interrogation.

“Any interview of one suspected of a crime by a police officer will have coercive

aspects to it, simply by virtue of the fact that the police officer is part of a law

enforcement system which may ultimately cause the suspect to be charged with a

crime. But police officers are not required to administer Miranda warnings to

everyone whom they question. Nor is the requirement of warnings to be imposed

simply because the questioning takes place in the station house, or because the

questioned person is one whom the police suspect.” (Oregon v. Mathiason (1977)

429 U.S. 492, 495.)

Defendant voluntarily agreed to go to the police station for questioning. He agreed

that it was fine that he ride with Middleton rather than take his own car. Although

he was placed in the back of the patrol car and could not open the door by himself,

he was not handcuffed and the ride was a brief one. While officers conducted a

patdown search before placing defendant in the police car, this was only for officer

safety. Defendant was asked to empty his coat pockets for the same reason. At the

station the door to the interview room was open. Defendant was allowed to use the

restroom and was given a beverage to drink. Although he was accompanied by

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Aldana to the restroom, this was because he was in a restricted area of the police

station where civilians were not allowed to roam freely. (In re Kenneth S., supra,

133 Cal.App.4th at p. 65.) The questioning was very casual at the outset. The

questions became more focused on the circumstances surrounding Fern's death,

but were not particularly accusatorial at the time defendant was requested to

submit to fingernail scrapings. Defendant was an educated man with two master's

degrees. He was articulate. In his work as a counselor he had worked with police

officers before and had been a witness in cases before the courts. He commonly

interacted with police officers.

All of the above circumstances demonstrate under an objective standard that there

was no formal arrest or restraint of freedom of movement associated with a formal

arrest such that the interrogation was custodial and required Miranda warnings.

Because defendant was not in custody and Miranda warnings were not required,

we need not determine if the videotape showing him sucking on his fingernails

was testimonial or nontestimonial.

Defendant additionally argues that he made a request for counsel and once that

request is made all questioning must cease until counsel is provided. Because

defendant was not informed he had the right to counsel, because Miranda

warnings were not given, he contends this court cannot presume that he understood

he had the right to counsel. Defendant asserts that the interrogation proceeded in

violation of his right to counsel.

When an interviewee requests the assistance of counsel at any time during an

interview, “ ‘the interrogation must cease until an attorney is present.’” (Edwards

v. Arizona (1981) 451 U.S. 477, 485.) The court must determine if the accused

actually invoked his right to counsel.

“‘To avoid difficulties of proof and to provide guidance to officers conducting

interrogations, this is an objective inquiry. [Citation.] Invocation of the Miranda

right to counsel “requires, at a minimum, some statement that can reasonably be

construed to be an expression of a desire for the assistance of an attorney.”

[Citation.] But if a suspect makes a reference to an attorney that is ambiguous or

equivocal in that a reasonable officer in light of the circumstances would have

understood only that the suspect might be invoking the right to counsel, [the

comment does] not require the cessation of questioning. [Citations.] [¶] Rather, the

suspect must unambiguously request counsel. As we have observed, “a statement

either is such an assertion of the right to counsel or it is not.” [Citation.] Although

a suspect need not “speak with the discrimination of an Oxford don,” [citation], he

must articulate his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand the statement to

be a request for an attorney. If the statement fails to meet the requisite level of

clarity, [it is not required] that the officers stop questioning the suspect. [Citation.]’

[Citation.]” (People v. Simons (2007) 155 Cal.App.4th 948, 957.)

Defendant did not unequivocally request counsel. Defendant has not cited any

authority for the proposition that an equivocal request for counsel before being

advised of the right to counsel transforms the equivocal request into an

unequivocal request. The mention of counsel before being advised of Miranda

rights demonstrates a knowledge of the legal system. We fail to see how this

should alter our analysis.

The trial court did not err in admitting the videotape of the fingernail incident.

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Brooks, 2008 WL 2897093, at *8–13.

i. Legal Standard

The Fifth Amendment provides that “no person shall be compelled in any criminal case to

be a witness against himself.” A suspect subject to custodial interrogation has a Fifth

Amendment right to consult with an attorney, and the police must explain this right prior to

questioning. Miranda v. Arizona, 384 U.S. 436, 469–73 (1966). In Miranda, the United States

Supreme Court held that “[t]he prosecution may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the

use of procedural safeguards effective to secure the privilege against self-incrimination.” 384

U.S. at 444. To this end, custodial interrogation must be preceded by advice to the potential

defendant that he or she has the right to consult with a lawyer, the right to remain silent and that

anything stated can be used in evidence against him or her. Id. at 473–74. These procedural

requirements are designed “to protect people against the coercive nature of custodial

interrogations.” DeWeaver v. Runnels, 556 F.3d 995, 1000 (9th Cir. 2009).

“Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but

only in those types of situations in which the concerns that powered the decision are implicated.”

Berkemer v. McCarty, 468 U.S. 420, 437 (1984). Although “those types of situations” may vary,

they all share two essential elements: “custody and official interrogation.” Illinois v. Perkins, 496

U.S. 292, 296–97 (1990).

To determine whether an individual was in custody, a court must, after examining all of

the circumstances surrounding the interrogation, decide “whether there [was] a formal arrest or

restraint on freedom of movement of the degree associated with a formal arrest.” Stansbury v.

California, 511 U.S. 318, 322 (1994) (internal quotation marks omitted). The inquiry focuses on

the objective circumstances of the interrogation, not the subjective views of the officers or the

individual being questioned. Id. at 323. Thus, the court must determine whether “the officers

established a setting from which a reasonable person would believe that he or she was not free to

leave.” United States v. Beraun–Panez, 812 F.2d 578, 580 (9th Cir.), modified by 830 F.2d 127

(9th Cir.1987); see also U.S. v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001). The Ninth Circuit

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has noted the following factors to be relevant to deciding that question: “(1) the language used to

summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt;

(3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the

degree of pressure applied to detain the individual.” Hayden, 260 F.3d at 1066 (citing Beraun–

Panez, 812 F.2d at 580). “Other factors may also be pertinent to, and even dispositive of, the

ultimate determination whether a reasonable person would have believed he could freely walk

away from the interrogators; the Beraun–Panez/Hayden factors are simply ones that recur

frequently.” United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002).

Error in admitting statements obtained in violation of Miranda is deemed harmless for

purposes of federal habeas review unless the error “had substantial and injurious effect or

influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993);

Ghent v. Woodford, 279 F.3d 1121, 1126 (9th Cir. 2002).

ii.

Analysis

In this case, the Fifth DCA applied clearly established Supreme Court precedent.

Therefore, the question for this Court is whether that application was unreasonable. In light of

the record, a rational jurist could conclude that the state court determination that Petitioner was

not in custody at the time of the confession was reasonable.

In determining whether suspects are “in custody” for Miranda purposes, the Supreme

Court has considered whether they voluntarily approached or accompanied law officers

understanding that questioning would ensue. See California v. Beheler, 463 U.S. 1121, 1125

(1982) (per curiam) (holding that defendant was not in custody when he agreed to accompany

police to the station to answer questions and was allowed to leave immediately afterward);

Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (holding that defendant was not in custody when

he came to the station voluntarily and left “without hindrance” after 30 minutes of questioning).

The Ninth Circuit has also found that suspects were not in custody where the circumstances

included volunteering to answer law officers' questions. See, e.g., Hayden, 260 F.3d at 1066–67;

United States v. Hudgens, 798 F.2d 1234, 1236–37 (9th Cir.1986). Here, Petitioner voluntarily

accompanied the officers to the police station understanding that he would be answering

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questions. “If the police ask—not order—someone to speak to them and that person comes to the

police station, voluntarily, precisely to do so, the individual is likely to expect that he can end the

encounter.” Kim, 292 F.3d at 974-75.

However, “[i]f an individual voluntarily comes to the police station or another location

and, once there, the circumstances become such that a reasonable person would not feel free to

leave, the interrogation can become custodial.” Kim, 292 F.3d at 975. In this case, Petitioner was

not handcuffed and agreed to ride in the police car to the station. After arriving, he was led to an

interrogation room and the door to the room was left open. He was allowed to use the restroom

and he was provided a beverage. Initially, the questioning was very casual. Eventually the

questioning focused on the victim’s death, but at the time he was asked to provide fingernail

scrapings, they had not become accusatory. A rational jurist could conclude that the encounter

did not become so coercive that a reasonable person in Petitioner’s circumstances would not have

felt free to leave. See Hayden, 260 F.3d at 1066 (the defendant “was told explicitly that she was

free to leave at anytime,” her “ability to leave was [not] in any other way restrained,” and “the

duration of the interviews was [not] excessive[and] undue pressure was [not] exerted”); United

States v. Gregory, 891 F.2d 732, 735 (9th Cir.1989) (the defendant “consented to be interviewed .

. . and no coercion or force was used”); United States v. Hudgens, 798 F.2d 1234 (9th Cir. 1986)

(the defendant voluntarily entered a police car to talk to the police and the agents did not use

intimidating or coercive language during the interview). Thus, the state court determination that

he was not in custody at the time he was viewed cleaning his fingernails was reasonable.

Petitioner argues that his st

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