Petition for Writ of Certiorari — Timothy Joseph McGhee, Petitioner v. Ron Davis, Warden

No. ____________

IN THE

TIMOTHY MCGHEE,

Petitioner,

v.

RON DAVIS, WARDEN,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

HILARY POTASHNER

Federal Public Defender

CELESTE BACCHI

Celeste_Bacchi@fd.org

Deputy Federal Public Defender

ANDREA A. YAMSUAN*

Andrea_Yamsuan@fd.org

Research and Writing Specialist

321 East 2nd Street

Los Angeles, California 90012-4202

Telephone: (213) 894-2854

Facsimile: (213) 894-0081

Attorneys for Petitioner

*Counsel of Record

QUESTION PRESENTED

(1) Defense attorneys must conduct reasonable investigations. Out of twentyone potential witnesses, trial counsel only interviewed McGhee and his friend. In

his motion for continuance, which the court denied, counsel wrote, “[McGhee]

cannot be effectively represented by me” unless he conducted more interviews. Posttrial evidence shows counsel had located witnesses, but forgot to prepare some

paperwork to access them. Should the Ninth Circuit have granted a certificate of

appealability (“COA”) on McGhee’s ineffective assistance of counsel claim?

(2) Federal courts should not defer to state court decisions based on

unreasonable findings of fact. The state court denied McGhee’s IAC claim, finding

the witness declarations not credible, though it never ordered briefing or a hearing.

In federal habeas, the district court also refused a hearing, found the state court

findings reasonable, and denied the petition. Should the Ninth Circuit have granted

a COA and issued a remand to the district court for a hearing?

i

TABLE OF CONTENTS

Page

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 2

STATEMENT OF THE CASE....................................................................................... 3

A.

Trial .......................................................................................................... 3

1.

Prosecution case............................................................................. 3

2.

Defense case ................................................................................... 5

3.

Sentence ......................................................................................... 8

B.

Direct appeal and state habeas proceedings ........................................... 8

C.

Federal habeas proceedings ..................................................................... 9

1.

District court proceedings ............................................................. 9

2.

Exhaustion proceedings ................................................................ 9

3.

Post-Stay district court proceedings ........................................... 10

4.

Ninth circuit proceedings ............................................................ 11

REASONS FOR GRANTING THE WRIT .................................................................. 11

A.

The Ninth Circuit failed to adhere to this Court’s rule that the

standard for granting a motion for certificate of appealability is

low. .......................................................................................................... 11

1.

It is debatable whether counsel conducted an unreasonable

pre-trial investigation.................................................................. 12

2.

It is debatable whether McGhee satisfies the Strickland

prejudice standard ....................................................................... 13

ii

TABLE OF CONTENTS

Page

B.

The Ninth Circuit’s COA denial, in effect, sanctions the lower

courts’ failure to provide McGhee with a meaningful opportunity

for habeas review.................................................................................... 16

1.

The state court here abdicated its responsibility to be the

principal forum for asserting constitutional challenges to

state convictions. ......................................................................... 16

2.

The federal court deferred to the state court’s decision even

though the state court unreasonably determined facts. ............ 18

CONCLUSION............................................................................................................. 21

CERTIFICATE OF SERVICE ..................................................................................... 22

iii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Brumfield v. Cain,

135 S. Ct. 2269 (2015) ...................................................................................... 18, 19

Buck v. Davis,

137 S.Ct. 759, 774 (2017) ....................................................................................... 11

California v. Green,

399 U.S. 149 (1970) ................................................................................................ 18

Harrington v. Richter,

562 U.S. 86 (2011) ............................................................................................ 16, 18

Strickland v. Washington,

466 U.S. 668 (1984) .................................................................................... 12, 13, 15

United States v. 1998 BMW “I” Convertible,

235 F.3d 397 (8th Cir. 2000) .................................................................................. 18

United States v. Thoms,

684 F.3d 893 (9th Cir. 2012) .................................................................................. 18

State Cases

People v. Duvall,

9 Cal. 4th 464 (1995) .............................................................................................. 16

Federal Statutes

18 U.S.C. § 3006 ....................................................................................................... 1, 22

28 U.S.C. § 1254 ............................................................................................................. 2

28 U.S.C. § 2253 ............................................................................................................. 2

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

State Statutes

California Penal Code § 69 ............................................................................................ 3

California Penal Code § 182 .......................................................................................... 3

California Penal Code § 245 .............................................................................. 3, 4, 6, 7

iv

TABLE OF AUTHORITIES

Page(s)

Constitutional Authorities

United States Constitution Sixth Amendment ............................................................ 2

Miscellaneous

Matthew Seligman, Note: Harrington’s Wake: Unanswered Questions

on AEDPA’s Application to Summary Dispositions,

64 Stan. L. Rev. 469, 506 (2012) .............................................................................................17

Stephen J. Perrello and Albert N. Delzeit, Perspective:

Habeas Corpus in San Diego Superior Court (1991-1993):

An Empirical Study, 19 T. Jefferson L. Rev. 283, 283 (1997) .................................... 17

v

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Timothy McGhee (“McGhee”) petitions this Court for a writ of certiorari to

review the order of the United States Court of Appeals for the Ninth Circuit

denying a COA in his case.

OPINIONS BELOW

McGhee attaches the Ninth Circuit’s COA Order as Appendix B; the order

denying a motion for reconsideration as Appendix A; the district court’s entry of

judgment as Appendix E; the district court’s order adopting the magistrate judge’s

report and recommendation as Appendix D; the magistrate judge’s report and

recommendation to dismiss the petition as Appendix F; and the district court’s

denial of a COA as Appendix C.

The California Supreme Court summarily denied McGhee’s petition for writ

of habeas corpus. (Appendix “App.” G.) The California Court of Appeal denied the

petition as untimely. (App. H.) The Los Angeles Superior Court denied the petition

on the merits in a reasoned memorandum of decision. (App. I.)

JURISDICTION

McGhee is in state custody at the California State Prison in San Quentin,

California. He filed a habeas corpus petition under 28 U.S.C. § 2254 challenging the

1

constitutionality of his conviction and sentence. The district court denied the

petition with prejudice on the merits. (App. D, F.) The Ninth Circuit denied a COA

in McGhee v. Chappell, Case No. 17-56688, on May 31, 2018 (App. B) and denied

McGhee’s motion for reconsideration on June 25, 2018 (App. A). This Court has

jurisdiction under 28 U.S.C. § 1254(1). This petition is filed within 90 days after the

entry of judgment pursuant to Supreme Court Rule 13.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. Const. Amend. VI

The Sixth Amendment to the United States Constitution provides, in

pertinent part: “[I]n all criminal prosecutions, the accused shall enjoy the right . . .

to have the Assistance of Counsel for his defense.”

Title 28 U.S.C. § 2253(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.

2

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

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

Title 28 U.S.C. § 2254(d)

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

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim—

(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.

STATEMENT OF THE CASE

A.

Trial

McGhee’s challenged conviction and sentence arise from a jailhouse riot that

happened in January 2005 in Los Angeles County Men’s Central Jail (“MCJ”), while

McGhee awaited trial for capital murder. (RT 1582.)

1.

Prosecution case

The prosecution charged McGhee with conspiracy to commit assault, (Cal. Pen.

Code § 182(a)(1)), conspiracy to commit vandalism (Cal. Pen. Code § 182(a)(1)),

three counts of unlawful resistance of executive officers in the performance of their

duties (Cal. Pen. Code § 69), and two counts of assault by means likely to produce

great bodily injury (Cal. Pen. Code § 245(a)(1)). At trial, the prosecution called Los

3

Angeles County Sheriff’s Deputies Raul Ibarra, Joseph Morales, Alfredo Alvarez,

Thomas Wilson, John Coleman, Hector Beltran, Gordon McMullen, Richard

Thompsen, and Mark Yzabal to testify.

On January 7, Deputy Ibarra noticed that inmate Gonzalez looked drunk. (RT

651.) Because his intoxication posed a “safety hazard,” (RT 652) Deputies Ibarra,

Argueta, Taylor, and Orosco decided to “use[] a ruse” to remove Gonzalez from his

cell. (RT 655.) Deputy Ibarra told Gonzalez that he had a visitor, handcuffed him and

began walking him down the row. (RT 656.) As Gonzalez passed by McGhee’s cell,

McGhee said he didn’t give Gonzalez permission to go to a visit. (RT 659-60.)

Gonzalez apologized and attempted to go back to his cell. (Id.) Deputy Ibarra grabbed

Gonzalez and dragged him off the row. (RT 661.) While dragging Gonzalez, McGhee

yelled, “Dale gas la juras,” which Deputy Ibarra understood to be an order to

inmates to throw liquid, like urine and bleach, at the deputies. (RT 661, 703.)

Deputy Ibarra opined that the inmates obeyed McGhee because the inmates

considered him a “shot caller,” an inmate that gives orders to other inmates on the

row. (RT 644, 696.) The inmates threw apples, oranges and liquids that smelled like

urine and bleach at the deputies. (RT 662-63.) After Deputy Ibarra removed

Gonzalez from the row, Ibarra went to the pipe chase, an area behind the cells,

where he could hear McGhee and neighboring inmate Gerardo Reyes talking. (RT

668-669.) Deputy Ibarra heard McGhee tell Reyes that if he jumped on the sink, it

would break into pieces they could throw at deputies, and Reyes agreed. (RT 672,

678, 721, 734.) As he left the row, he heard the sound of glass or porcelain hitting

4

the ground. (RT 672-75.) Inmates, including McGhee, threw pieces of porcelain at

the deputies. (RT 675-79.)

Deputies Morales and McMullen began their shifts several hours after the

Gonzalez incident. (RT 736, 738.) Deputy Morales testified that when they entered

the 3300 module, the inmates continually threw pieces of porcelain at them. (RT

738-39, 742-43.) Numerous pieces of porcelain hit them. (RT 1214, 1217-18, 1230,

2157-58, 2195-96, 2202.)

Thereafter, the deputies assembled an Emergency Response Team (“ERT”),

which consisted of fifteen deputies wearing riot gear and carrying weapons to

forcibly remove inmates from their cells. (RT 777-79; 5 RT 934, 1206.) Members of

the ERT deployed multiple pepper bombs into cells where inmates were throwing

porcelain or were refusing to be handcuffed. (RT 783, 786; RT 938, 973.) The

deputies gave McGhee a chance to voluntarily exit his cell, but McGhee slammed

his mattress against the bars of his cell and shouted profanities. (RT 944, 947.) The

ERT shot at least thirty pepper balls into McGhee’s cell. (RT 976.)

One deputy videotaped the ERT’s removal of inmates; the video captured an

image of an arm coming out of McGhee’s cell throwing porcelain. (RT 780-82.)

2.

Defense case

McGhee and Gonzalez testified for the defense. Gonzalez testified that on

January 7, 2005, Deputy Ibarra informed him that he had a visitor. (RT 1275-76.)

While walking down the row, Deputy Ibarra mentioned that Gonzales had an

attorney pass. (RT 1550.) Gonzalez turned around to return to his cell, noting that

didn’t have an attorney. (RT 1550.) Deputy Ibarra grabbed Gonzalez around the

5

neck and began choking him. (RT 1551.) Then he dragged Gonzalez backward,

kicking him and hitting him with his free hand. (RT 1551-1552.) Once off the row,

Ibarra and other deputies beat and kicked him, then sprayed him with mace until

he passed out. (RT 1286-91, 1321, 1327-31, 1337-42.) Gonzalez denied needing or

requesting McGhee’s permission to go to a legal visit. (RT 1285-86.)

McGhee testified that the Los Angeles County Sheriff’s Department deputies

beat and threatened him at MCJ. (See, e.g., RT 1531-33 (McGhee beaten by deputy);

RT 1535 (McGhee threatened when he asked why deputy was beating another

inmate); RT 1536 (McGhee threatened when he requested a pair of boxer shorts).)

Once, McGhee saw a deputy shock an emotionally distraught inmate with a taser.

(RT 1533-34.) When McGhee complained about this mistreatment to American Civil

Liberties Union (ACLU) staff, deputies retaliated by removing everything from his

cell but his mattress. (RT 1596.) After that, McGhee made no further complaints

against the deputies. (Id.)

When Deputy Ibarra started dragging a drunk Gonzalez down the row,

McGhee and other prisoners on the row began to yell at him. (RT 1552-1553.) As he

watched his friend get “pummeled” by Ibarra, McGhee threw a milk carton and

apple in Deputy Ibarra’s direction while yelling at him to get off Gonzalez. (Id.)

Deputy Ibarra then put Gonzalez in a chokehold and dragged him off of the tier,

into the sally port area, where deputies Ibarra, Orosco and Taylor kicked and

stomped on Gonzalez, who remained on the floor with his hands cuffed. (RT 12861287, 1557.) The prisoners, including McGhee, yelled at the deputies, and some

6

threw objects toward the sally port area. (Id.) In response to the inmates’ conduct,

one of the deputies yelled, “You guys fucked up. Now you guys are going to get

fucked up, and we’re going to drag you out and fuck you up.” (RT 1557-58.) One of

the deputies began spraying pepper spray into the cells closest to the sally port area

and said, “How do you like that? That’s just the beginning. There’s more to come.”

(RT 1560.) McGhee heard the sound of sinks breaking in the cells near the sally

port. (RT 1563-1564.) McGhee then kicked his own sink, which broke apart. (Id.)

McGhee threw pieces of the sink straight out of his cell at the wall in front of him.

(RT 1563.)

When the ERT came to McGhee’s cell, they ordered McGhee to submit to

handcuffs. (Id.) McGhee used his mattress as a shield against the pepper spray

dousing the row and his cell. (RT 1576.) When McGhee attempted to come out from

behind his mattress, deputies sprayed him with pepper spray, making it impossible

for him to breathe. (Id.) The ERT then forced McGhee to the ground, cuffed his

hands behind his back, and dragged him off the tier. (RT 1577-78.)

McGhee said the inmates’ behavior on January 7, 2005 had been a

spontaneous reaction to the abuse that they were witnessing. As the situation

escalated, with the deputies making threats and shooting pepper spray, he felt it

necessary to barricade himself in his cell until a neutral negotiator could be brought

in to diffuse the conflict peacefully. (RT 1560-64, 1573-77.)

A jury found McGhee guilty of conspiracy to commit assault, conspiracy to

commit vandalism, three counts of unlawful resistance of executive officers in the

7

performance of their duties, and two counts of assault by means likely to produce

great bodily injury. The jury acquitted McGhee of one assault count.

3.

Sentence

The Court sentenced McGhee under California’s Three Strikes Law to three

consecutive terms of 25 years to life, for a total sentence of 75 years to life. (RT

3309-10.)

B.

Direct appeal and state habeas proceedings

The California Court of Appeal affirmed McGhee’s conviction and sentence on

appeal and the California Supreme Court denied McGhee’s petition for review.

Thereafter, McGhee, pro se, filed habeas petitions in the Los Angeles County

Superior Court, California Court of Appeal, and California Supreme Court in which

he alleged, in pertinent part, that he was denied the effective assistance of counsel.

McGhee alleged that there were at least 21 inmates incarcerated in the same

module as him during the incident who could have testified in his case. Prior to

trial, McGhee’s attorney told the court that he located some of those witnesses and

asked his investigator to interview them but “that was not done.” Later, trial

counsel told the court his investigator could not interview the witnesses without

their dates of birth and sought to subpoena that information. But the prosecutor

pointed out he had already turned that information over. The court refused to give

trial counsel any more time to look for witnesses and ordered the trial to begin.

McGhee argued that because of trial counsel’s ineffectiveness, he had to “go[] to trial

without supporting witnesses” and was prejudiced as a result. He did not present

any declarations in support of his claim.

8

C.

Federal habeas proceedings

1.

District court proceedings

McGhee timely filed his district court petition pro se. (App. J, Dkt. 1.) Upon

McGhee’s motion, the court appointed the Office of the Federal Public Defender

(“FPD”) to represent McGhee in his federal habeas proceedings. (App. J, Dkt. 33.)

The FPD interviewed and obtained the declarations of five inmate-witnesses who

were on the row during the riot, as well as trial counsel’s investigator, Robert Royce.

(App. O-T.) Royce revealed that contrary to trial counsel’s representations to the

court, the reason he did not interview potential witnesses was because counsel,

despite being reminded several times, neglected to write a letter of authorization for

Royce allowing him access to the prisons where the inmate-witnesses lived. (App. T,

¶ 7-8.) McGhee asked for a stay, arguing that the new evidence created a

substantially stronger, and therefore new claim of ineffective assistance of counsel

(“IAC”). (App. J, Dkt. 79.) The court granted the motion for a stay. (App. J, Dkt. 86.)

2.

Exhaustion proceedings

McGhee filed his exhaustion petition in Los Angeles Superior Court. Less

than two months later, without ordering informal briefing, the court issued a

memorandum denying the IAC claim on the merits. (App. I.) The Court made some

credibility findings against the proposed witnesses based on their declarations

alone:

-

The court could not confirm whether the inmates were in a position to

observe everything that happened that day;

-

Reyes’s statement seemed “unauthentic”; and

9

-

The witnesses’s declarations “raises a specter of whether the statements .

. . were specifically designed for the purpose of achieving a certain

outcome.”

(App. I at 188, 190-191.) The court also surmised that trial counsel made a strategic

reason not to call the witnesses because the witnesses would not appear credible.

(App. I at 189.) Based on these findings, the court denied McGhee’s IAC claims.

(App. I at 192-93.)

McGhee then filed a petition in the California Court of Appeal, which denied

McGhee’s petition as untimely, and in the California Supreme Court, which

summarily denied the petition. (Appendix G, H.)

3.

Post-Stay district court proceedings

The district court allowed McGhee to amend his petition to include the new

evidence and new arguments in support of his IAC claim. (App. J, Dkt. 98.) After

briefing, the magistrate judge recommended denying the petition. (App. F at 168.)

The magistrate judge found that the Los Angeles Superior Court, which rendered

the last reasoned decision on the IAC claim, “reasonably determined” that the new

evidence “would not have produced a substantial likelihood of a different trial

outcome.” (App. F at 131.) Like the Los Angeles County Superior Court, the district

court questioned whether McGhee or the witnesses themselves manipulated the

inmate declarations to obtain a particular result. (App. F at 136.) The district court

adopted the magistrate judge’s findings and entered judgment against McGhee; it

did not grant a COA on any claim. (App. C, D.)

10

4.

Ninth circuit proceedings

McGhee sought a COA in the Ninth Circuit on his IAC claim. In addition to

briefing why he was entitled to relief on the record, McGhee also argued that the

Ninth Circuit should at least remand the proceedings for an evidentiary hearing on

the claim, particularly because the state court did not grant a hearing. The Ninth

Circuit denied McGhee’s motion, finding that he hadn’t made “‘a substantial

showing of the denial of a constitutional right.’” (App. B.) The Ninth Circuit also

denied McGhee’s Motion to Reconsider. (App. A.)

REASONS FOR GRANTING THE WRIT

A.

The Ninth Circuit failed to adhere to this Court’s rule that the standard

for granting a motion for certificate of appealability is low.

Supreme Court Rule 10(c) provides that this Court may grant the writ in a

case where the United States court of appeals has “decided an important federal

question in a way that conflicts with relevant decisions of this Court.” Here, the

Ninth Circuit’s denial of McGhee’s COA motion conflicts with this Court’s rule in

Buck v. Davis that a court of appeals should ask “‘only if the District Court’s

decision was debatable’” at the COA stage. 137 S.Ct. 759, 774 (2017) (citing Miller-

El v. Cockrell, 537 U.S., 322, 327 (2003)). McGhee showed that his claim is

debatable. Further, the issue presents an “important” federal question to McGhee

because his convictions in the instant served as a factor in aggravation in McGhee’s

later-held capital penalty retrial. Thus the Ninth Circuit’s denial of a COA calls for

the exercise of this Court’s supervisory power.

11

1.

It is debatable whether counsel conducted an unreasonable pretrial investigation.

In his petition, McGhee alleged that counsel was unreasonable because he:

(1) failed to interview percipient witnesses to the charged offenses; (2) failed to

obtain reports and other information showing that the particular deputies involved

in the riot regularly used excessive force against inmates; and (3) misled the trial

court during a motion for continuance in stating that his investigator could not

locate witnesses, when, in fact, counsel simply forgot to seek a court order and

prepare a request to the California Department of Correction, which the

investigator needed to conduct his witness interviews.

Defense counsel has a “duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.” Strickland

v. Washington, 466 U.S. 668, 690-91 (1984). McGhee’s trial counsel here abdicated

his duty to investigate or make a reasonable decision not to investigate. The state

charged McGhee with offenses arising from a jailhouse riot in which many inmates

were witnesses and participants, including Daniel Hines, Erick Morales, Gerardo

Reyes, Timothy Trujillo, and Jay Reddix. (App. O-T.) Counsel’s investigator Robert

Royce had a list with those inmate witnesses’ names and others, and had identified

their locations. (App. T at 422-24 .) Counsel himself possessed a report prepared

the night of the riot containing the names, dates of birth, booking numbers, and

addresses of twenty-one inmates allegedly involved in the riot. (App. U.) Royce

asked counsel to request a court order for a prison visit and to prepare a written

request for the California Department of Corrections (“CDC”), authorizing Royce, a

12

non-attorney, to visit the witnesses on counsel’s behalf. (App. T, ¶ 6.) Despite Royce

making multiple requests, trial counsel never requested a court order and did not

prepare the request to the CDC. (Id.) Ultimately, the investigator only interviewed

one inmate, Gonzalez, who was removed from the row before the riot fully broke

out—and thus was not present during most of the incidents that formed the basis

for the prosecution’s case against McGhee. (App. T, ¶ 10.)

On the eve of trial, counsel asked the court for a continuance because he had

not yet located and interviewed potential witnesses. (App. L at 225, 228.) To justify

the delay, counsel lied and said his investigator could not locate them because he

did not have the witnesses’ dates of birth. (Id.) The court denied the request for a

continuance, reasoning that if counsel could not find witnesses by then, he would

not benefit from further time. (App. L at 229.) Counsel, by his own admission, had

no strategy behind not interviewing the witnesses before trial. In his motion for

continuance, he wrote, “the Defendant cannot be effectively represented by me,

without such investigation being completed as I am informed and thus believe that

these witnesses will aid in the defense of this case. (App. N at 177.) At a hearing on

his motion for a continuance, counsel said, “the Defendant cannot be effectively

represented by me, without such investigation being completed.” (App. K at 211.)

On these facts, it is debatable whether counsel was ineffective.

2.

It is debatable whether McGhee satisfies the Strickland prejudice

standard

It is debatable whether there is a reasonable probability that but for counsel’s

omissions, “the result of the proceeding would have been different.” Strickland, 466

13

U.S. at 695. In closing, the prosecutor effectively quashed any attempts by the

defense to establish any self-defense or deputy misconduct arguments through

McGhee’s testimony by likening McGhee to a lying “used car salesm[a]n.” (App. M

at 255, 273.) The prosecutor also urged the jury to disregard Gonzalez’s testimony,

arguing that Gonzalez testified favorably for the defense because he and McGhee

were “boyhood” friends. (App. M at 364.) The prosecution’s attacks on McGhee and

Gonzalez’s credibility effectively obliterated any hope of a defense. Had defense

counsel presented the testimony of other inmate witnesses with no self-interest or

prior relationship with McGhee (App. O-T), the jury would still have been left with

evidence to credit the defense’s theories.

The witnesses that trial counsel failed to interview would have corroborated

McGhee’s testimony and supported the defense theory that McGhee’s conduct

during the riot was not the product of a conspiracy. They would have said that they

began throwing things spontaneously, after seeing how the deputies were treating

Gonzalez—not because McGhee told them to. (See, e.g. App. O, ¶ 2; App. P, ¶ 3;

App. Q, ¶ 5.) They would have also testified, contrary to the prosecution’s witnesses,

that McGhee was not a shotcaller on the row. (App. O, ¶ 3; App. P, ¶ 3; App. Q, ¶ 6;

App. S, ¶ 7.) Regarding the assault charges, they would have provided further

corroboration of McGhee’s and Gonzalez’s testimony that the guards used excessive

force against Gonzalez. (See, e.g. App. Q, ¶¶ 3-4.) And McGhee would not have been

alone at trial testifying that the deputies were using excessive force during the cell

extraction process. (See, e.g., App. R, ¶ 6 (stating that deputies gratuitously shot

14

pepper balls at inmates); App. S, ¶ 4 (stating that “[b]ased on prior experience,” he

believed the deputies would beat him once removed from the cell).) Because the

testimony of other percipient inmate witnesses would have provided the jury with a

much more balanced picture of the evidence for and against McGhee, it is debatable

whether he has satisfied prong two of Strickland.

It is also debatable whether trial counsel’s misrepresentation to the trial

court about his investigator’s inability to locate witnesses prejudiced McGhee.

Neither the superior court nor the district court considered the prejudicial impact of

counsel’s misrepresentation. As a result of counsel’s misrepresentations, the trial

court denied counsel’s request for a continuance, noting that if counsel was unable

to even locate witnesses after several months of looking, he was not likely to benefit

from additional time. (App. L at 229.) The court also denied as baseless McGhee’s

Marsden motion based on counsel’s failure to interview percipient inmate witnesses.

(Id.) And the court denied McGhee’s Faretta motion, which McGhee raised to

attempt to salvage what was left of his defense. (App. L at 233.) Had counsel

honestly told the court he had located witnesses but needed a court order and

additional time to send his investigator up to the prison with a letter of

authorization, there is a reasonable probability of a different outcome.

For these reasons, it is debatable whether counsel rendered deficient

performance that prejudiced the case. And that the Ninth Circuit denied McGhee’s

motion for a COA shows that it has applied the incorrect standard for granting

COAs. Thus this Court should grant the writ.

15

B.

The Ninth Circuit’s COA denial, in effect, sanctions the lower courts’

failure to provide McGhee with a meaningful opportunity for habeas

review.

Supreme Court Rule 10(a) provides that this Court may grant the writ in

cases where a United States court of appeals has sanctioned a departure by lower

courts from the “accepted and usual course of judicial proceedings.” The § 2254(d)

framework presumes that the state court will fulfill its role as the “principal forum

for asserting constitutional challenges to state convictions.” Harrington v. Richter,

562 U.S. 86, 103 (2011). Thus federal courts should generally review state court

decisions with deference. However, § 2254(d) provides that when the state court

acts unreasonably, federal courts owe no deference to its decisions. Here, the Los

Angeles County Superior Court departed from the accepted and usual course of

habeas proceedings by failing to grant an evidentiary hearing. And though the

superior court drew unreasonable credibility findings from a cold record, the district

court deferred to those findings and denied McGhee’s petition. By denying a COA in

this case, the Ninth Circuit effectively sanctioned the California Superior Court’s

and federal district court’s departure from the accepted and usual course of judicial

proceedings in habeas cases as provided in § 2254(d). Thus this Court should grant

the writ.

1.

The state court here abdicated its responsibility to be the

principal forum for asserting constitutional challenges to state

convictions.

In California, courts may hold an evidentiary hearing “after considering the

return and the traverse” and “the court finds material facts in dispute.” People v.

Duvall, 9 Cal. 4th 464 (1995). But here, both the Los Angeles Superior Court and

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the California Court of Appeal did not order Respondent to file a return and denied

McGhee’s petitions on their faces. By refusing to order briefing, the courts

effectively inoculated themselves from finding factual disputes in the briefs that

would compel them to order an evidentiary hearing. The California Supreme Court

ordered informal briefing, but did not order an evidentiary hearing, even though

there were material facts in dispute.

That the California courts here uniformly denied McGhee an opportunity to

develop the facts in his support of his IAC claim is not unusual. California courts

regularly dispose of habeas cases with summary dispositions without allowing fact

development. One study of habeas petitions filed by death row inmates in San Diego

Superior Court over a two-year period found that judges ordered evidentiary

hearings in just six out of 312 cases. Stephen J. Perrello and Albert N. Delzeit,

Perspective: Habeas Corpus in San Diego Superior Court (1991-1993): An Empirical

Study, 19 T. Jefferson L. Rev. 283, 283 (1997). Another survey of both capital and

noncapital habeas petitions filed in the California courts of appeal between 2006

and 2009 found that of the 29,226 petitions filed, courts summarily denied 97.43

percent of the cases without an evidentiary hearing. Matthew Seligman, Note:

Harrington’s Wake: Unanswered Questions on AEDPA’s Application to Summary

Dispositions, 64 Stan. L. Rev. 469, 506 (2012). These statistics strongly suggest

California courts are not consistently providing petitioners with a meaningful forum

to litigate extra-record claims of constitutional error.

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The § 2254(d) framework requires the state court to function as the “principal

forum for asserting constitutional challenges to state convictions.” Richter, 562 U.S.

at 103. Part of the role involves making findings of fact. United States v. Thoms,

684 F.3d 893, 906 (9th Cir. 2012) (“In the business of judging, there is nothing more

important than getting the facts right.”) But “judges simply cannot decide whether

a witness is telling the truth on the basis of a paper record and must observe the

witnesses’ demeanor to best ascertain their veracity.” United States v. 1998 BMW

“I” Convertible, 235 F.3d 397, 400 (8th Cir. 2000). When facts are in dispute, live

testimony is the best means of ensuring the “accuracy and integrity of the

factfinding process.” Thoms, 684 F.3d. at 903; California v. Green, 399 U.S. 149, 158

(1970) (noting that live testimony “forces a witness to submit to cross examination,

the ‘greatest legal engine ever invented for the discovery of truth.’”). When a state

court refuses to give petitioners an opportunity to develop facts and engage in

meaningful fact finding processes with respect to potentially meritorious claims, it

neglects its role as the “principal forum” for litigating habeas claims.

2.

The federal court deferred to the state court’s decision even

though the state court unreasonably determined facts.

Generally, federal habeas courts must “accord the state trial court

substantial deference.” Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015). Yet “‘[e]ven

in the context of federal habeas, deference does not imply abandonment or

abdication of judicial review,’ and does not by definition preclude relief.” Id. And §

2254(d) explicitly provides that in certain situations, state court decisions are not

entitled to any deference whatsoever. § 2254(d)(1), (2). In Brumfield v. Cain, for

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example, this Court affirmed that a state court may be unreasonable under

§ 2254(d)(2) when it denies an extra-record claim without affording the petitioner

an evidentiary hearing or other mechanism for fact development. 135 S. Ct. 2269,

2277 (2015).

The superior court’s analysis of McGhee’s IAC claim here embodies the

§ (d)(2) error described in Brumfield. In its order, the superior court made numerous

findings of fact, even though it never ordered an evidentiary hearing or some other

fact-finding process. The court found Reyes’s declaration to be “unauthentic.” (App. I

at 189.) It speculated that the information in the witness declarations was

manipulated to achieve a particular outcome in the litigation. (App. I at 190-91.)

And the court supposed that trial counsel made a strategic reason to not interview

to the witnesses because he didn’t think the witnesses were credible. (App. I at 189.)

The court’s credibility findings were speculative. And its finding about trial

counsel’s decision not to interview witnesses plainly conflicts with the record: In his

written motion for continuance and during the hearing on the motion, counsel

explicitly said he would not be acting effectively if he did not interview the

witnesses. (App. K at 211; App. N at 405.) The court made still other findings of fact

contradicted by the record. First, the court found that the witnesses likely would not

have testified because they would be afraid of being prosecuted for the riot

themselves, or in the alternative, would have retained lawyers who would have

advised them not to testify. (App. I at 189.) This outcome would have been

impossible, given that the statute of limitations had completely run by the time the

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case went to trial. And the court placed far too much emphasis on the fact that the

video caught McGhee throwing porcelain. (App. I at 189-90.) The video was taken

only while the ERT conducted cell extractions; most of the charges arise from events

that happened before that. Because the state court erroneously denied McGhee an

opportunity to develop the facts in support of his IAC claim and made plainly

erroneous findings of fact, the state court acted unreasonably under § 2254(d)(2)

and the federal court erred in reviewing the state court decision with deference.

Every petitioner is entitled to at least one full opportunity to seek collateral

review. But here, McGhee did not receive a full opportunity in the state court to

develop a potentially meritorious claim. Meaningful review in this case is

particularly important because the jailhouse riot conviction was later used as an

aggravating factor at McGhee’s capital penalty retrial. In this situation, federal

courts must take care to ensure that the petitioner has an opportunity to develop

their claims in federal court. Yet the district court here reviewed the state court

decision with deference, and the Ninth Circuit rubber-stamped the district court’s

denial of the petition. It effectively sanctioned the lower courts denying McGhee one

full opportunity for habeas review. Thus this Court should grant the writ.

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