Petition for Writ of Certiorari — Robert Lehmann, Petitioner v. Scott Kernan, Secretary, California Department of Corrections and Rehabilitation

No.

fl

N AL

5©

IN THE

SUPREME COURT OF THE UNITED STATES

FILED

144Y 28 219

O 17F!CE CFT E

CLER<

' OIJT

ROBERT LEHMANN,

Petitioner

V.

THE STATE OF CALIFORNIA,

Respondent

On a Petition for Writ of Certiorari

to the 9th Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Robert Lehmann, No. AM8847

California Men's Colony

P.O. Box 8103

San Luis Obispo, CA 93409-8103

Petitioner, In Pro Se

Questions Presented

With the advancement of scientific testing methods of

biological evidence, is the "bad faith" exception to the

failure to preserve evidence carved out by this Court in

Arizona v. Youngblood, 488 U.S. 51(1988) now

unreasonable and should it be revisited and modified to

reflect scientific advances, in particular in light of Mr.

Justice Stevens' Concurrence (at 60-61) and the Mr.

Justice Blackmun's Dissent?

Was Trial Counsel's failure to obtain or otherwise request

blood and urine samples for independent defense testing

ineffective for Strickland v. Washington, 466 US 668

(1984) purposes?

Were the 25 recorded instances of prosecutorial

misconduct, when taken together, sufficient to deny

Petitioner a Fair Trial?

Was there sufficient cumulative error to deny the

petitioner a Fair Trial?

11

List of Parties

All parties appear in the caption of the case on the Cover Page.

111

Table of Contents

Opinions Below

1

Jurisdiction..........................................................1

Constitutional & Statutory Provisions Involved .......2

Statement of the Case ...........................................2

Reasons for Granting the Writ ...............................4

Question 1 ....................................................4

Question2 ...................................................12

Question3 ...................................................14

Question 4 ...................................................16

Conclusion...........................................................18

.

Index to Appendices

Appendix A:

Magistrate's Report and Recommendation

US District Court, Central District of California

No. 8:16-cv-00490-JVS-AGR, April 4, 2018

Appendix B:

Unpublished Opinion

California Court of Appeals, 3rd District, Div. 3,

No. G047629, September 17, 2014

Appendix C:

Denial of COA, Denial of Reconsideration

9th Circuit Court of Appeals

No. 18-55711

iv

Table of Authorities Cited

Cases

Arizona v. Youngblood, 488 U.S. 51......................9, 10, 11, 12

Brady v. Maryland, 373 U. S. 83 .........................10

Brecht v. Abrahamson, 507 U.S. 619 ...................17

Calforniay. Trombetta, 467 U.S. 479 ..................4, 5

Chambers v. Mississippi, 410 US 284 ..................16

Daniels v. Williams, 474 U.S. 327 ........................4

District Attorney's Office v. Osborne, 557 U.S. 52.. .4

Donnelly v. DeChristoforo, 416 US 637..................15, 17

Hamdiv. Rumsfeld, 542 U.S. 507, 530 .................4

Illinois v. Fisher, 540 U.S. 544..............................8, 9

Little v. Streater, 452 U. S. 1 ...............................10

Pane v. Runnels, 505 F. 3d 922 ..........................16, 17

Smith v. Phillips, 455 US 209 ..............................14

Strickland v. Washington, 466 US 668 .................12, 13

Thomas v. Hubbard, 273 F. 3d 1164 ....................17

United States v. Agurs, 427 U. S. 97 .....................10

United States v. Frederick, 78 F.3d 1370 ..............16

US v. Pelullo, 399 F. 3d 197 .................................5

Wiggins v. Smith, 539 US 510 ..............................13

V

US Constitution

5th Amendment ...................................................2

14th Amendment .................................................2, 4

Statutes and Rules

28 Usc §2254 ...................................................2, 17

28USC1254...................................................1

vi

In the Supreme Court of the United States

Petition for Writ of Certiorari

Petitioner Robert Lehmann respectfully prays that a writ of

certiorari issue to review the judgment below.

Opinions Below

The ruling of the Ninth Circuit Court of Appeals appears at

Appendix C and is unpublished.

The Magistrate's Report and Recommendation denying the

Petition for Writ of Habeas Corpus by a Person in State Custody is

attached as Appendix A and is unpublished.

Jurisdiction

The Ninth Circuit Court of Appeals denied the Application for

Certificate of Appealability on February 27, 2019. Mr. Lehmann

moved the court to reconsider the denial and that Motion for

Reconsideration was denied on May 23, 2019.

Jurisdiction of this Court is invoked under 28 USC §1254(l).

1

Constitutional and Statutory Provisions Involved

This case invokes the 5th and 14th Amendments (Due Process

clauses) to the US Constitution, as well as 28 USC §2254 (Petition

for Writ of Habeas Corpus by a Person in State Custody.

Statement of the Case

Petitioner Robert Lehmann respectfully refers this court to

the Magistrate's Report and Recommendation attached hereto as

Appendix A for a Statement of the Case.

Mr. Lehmann now petitions this Court for Review of the

denial of his Petition for Writ of Habeas Corpus by a person in

State Custody (28 USC §2254). The decisions of the courts below

were contrary to clearly established Precedents of this Court and

this Court should grant Certiorari.

Mr. Lehmann asserts that his right to a fundamentally fair

trial was denied by the government's failure to preserve

-

potentially exculpatory evidence that, had it been preserved and

made available for testing by the defense, could have changed or

reduced the charges of conviction in kind or degree.

Mr. Lehmann further asserts that his trial counsel was

ineffective for failure to obtain or otherwise request blood and

urine samples from the People; that the 25 recorded incidents of

prosecutorial misconduct so infected the trial that the trial was

rendered unfair; and that there was sufficient cumulative error to

deny Mr. Lehmann a fair trial.

3

Reasons for Granting the Petition

Question 1

A. Denial of the Right to Present a Complete Defense

The right to the preservation of evidence or its production at

trial stems from the individual's right to procedural due process as

guaranteed by the Fifth and Fourteenth Amendments of the

federal Constitution. (See California v. Trombetta 467 U.S. 479,

485 (1984) ["Under the Due Process Clause of the Fourteenth

Amendment, criminal prosecutions must comport with prevailing

notions of fundamental fairness."].) Procedural due process just

means that if you are going to deprive someone of their life,

liberty, or property, you have to do it in way that it is fair: "No

State shall

...

deprive any person of life, liberty, or property,

without due process of law.' U.S. Const., Amdt. 14, § 1; accord

Amdt. 5. This Clause imposes procedural limitations on a State's

power to take away protected entitlements." (District Attorney's

Office for Third Judicial Dist. v. Osborne 557 U.S. 52, 67 (2009);

see also Hamdi v. Rumsfeld 542 U.S. 507, 530 (2004) ["Procedural

due process rules are meant to protect persons not from the

deprivation, but from the mistaken or unjustified deprivation of

life, liberty, or property"]; Daniels v. Williams 474 U.S. 327, 337

12

(1986) [The Due Process Clause of the Fourteenth Amendment

contains "a guarantee of fair procedure, sometimes referred to as

'procedural due process': the State may not

...

imprison

...

a

defendant without giving him a fair trial") (Stevens, J.,

concurring)].).

In the instant matter, Mr. Lehmann has been denied

procedural due process. Mr. Lehmann had overdosed on a

combination of clonazepam, a prescription medication and beer.

"The side effects of such a high dose might cause someone to

commit an act he or she otherwise would not choose to do because

he or she cannot control his or her urges or feelings. A person

experiencing the side effects of an overdose of clonazepam could be

aware of his or her actions, and be aware he or she was wrong, but

still be unable to overcome the urge to act." (Appendix A at 11).

Expert Testimony revealed that routine drug tests, like those

that would be conducted in a hospital emergency room, cannot

detect clonazepam in blood or urine and that a specific test is

required (Appendix A at 11).

Neighbors and paramedics on the scene of the offense herein

told responders that Mr. Lehmann was variously groggy, lethargic

and slow to respond (Appendix A at 8). Mr. Lehmann was

transported to the Hoag Hospital emergency room, where he was

examined by ER staff. A routine urine tested positive for

amphetamines, which was among the medications Mr. Lehmann

--

was prescribed for ADHD. The urine test did not show evidence of

clonazepam use.

Mr. Lehmann had all the symptoms of an overdose on

clonazepam, however. Witnesses and treating paramedics all

observed and testified to obvious signs of significant impairment

in the Mr. Lehmann. The urine and blood samples were not

retained for further testing, despite paramedics and hospital staff

having full knowledge that the Mr. Lehmann had overdosed on his

prescription medication (Appendix A, at 3, 7-11). The blood and

urine were material evidence that should have played a

significant role in the Mr. Lehmann's defense.

For evidence to be expected to play a significant role in the

defendant's case, it "must both possess an exculpatory value that

was apparent before the evidence was destroyed and be of such a

nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means." (California v.

Trombetta (1984) 467 U.S. 479, 488-489).

US v. Pelullo 399 F. 3d 197 (3rd Cir. 2005), is instructive.

Pelullo held that when prosecutors mislead defense counsel as to

the importance of evidence and defense counsel ceases efforts to

obtain evidence for trial, procedural due process is nullified. In

the instant matter, the prosecutor alleged from the outset of the

case that there was no apparent value to the blood and urine

samples. These types of evidentiary decisions are not the sole

31

province of the prosecutor. The prosecutor intentionally misled

defense counsel into believing that the blood and urine samples

were not valuable pieces of evidence and that the blood and urine

evidence was not extant during pretrial discovery.

The blood and urine evidence was clearly and unmistakably

material

and an incomparable source of evidence to demonstrate

-

the Mr. Lehmann's blackout that led to the offenses herein. There

is no mere probability that the evidence was exculpatory. Rather,

the evidence, if it had been subjected to the crucible of adversarial

testing, would have been undeniably exculpatory.

To determine the bad-faith failure to preserve the evidence,

one only has to rely on common sense. For routine urine drug

screens, like the EMIT test, 30mL of urine is collected. For the

EMIT test, approximately 7mL or urine is used. Thus, 23mL of

urine remained. The remaining sample was material and

comparable evidence could not be obtained. The remaining 23mL

of urine could have been, and well should have been preserved.

For blood, between 70mL and 100mL are collected in a

vacutainer. For a typical Gas Chromatography

Mass

-

Spectrometry (GC/MS) blood test for substances, about 20mL are

typically used, leaving between 50mL and 80mL. That remaining

blood was material to the guilt or innocence of the Mr. Lehmann

and should have been preserved.

7

Testimony elicited at trial demonstrated with no uncertainty that

clonazepam required specific and additional tests. Hoag Hospital

staff and the arresting officers were well aware of Mr. Lehmann's

overdose. The lack of a positive test for clonazepam should have

put clinical staff, at the very least, on notice that additional drug

screening tests were necessary. Common sense urges no other

conclusion than a bad-faith destruction of evidence.

The District Court's findings that the failure to preserve

claim was speculative must fail. Mr. Lehmann has been denied

his constitutional right to present a defense. The People failed to

preserve material evidence that was clearly and undeniably

exculpatory (Illinois v. Fisher, 540 U.S. 544 (2004)).

Fisher is distinguishable from Mr. Lehmann's case. In

Fisher, this Court held that the evidence, had it been preserved,

would have been subjected to a fifth test that may have

exonerated the defendant.

In the instant matter, there were no multiple tests of the

blood and urine samples

but there should have been. Rather,

-

there was one incomplete test, the EMIT test, that could not ever

have shown Mr. Lehmann had overdosed on clonazepam. The

results from the EMIT test conducted in the hospital ER did not

comport with the symptoms exhibited by Mr. Lehmann. Any

competent investigator should have seized upon this fact and

['I

M

directed that blood and urine be preserved as part of the

investigation.

Because of this failure to preserve blood and urine evidence

for later testing, Mr. Lehmann was denied a' meaningful

opportunity to present a complete defense.

B. The Bad Faith Exception Cannot Be Reasonably Applied

in Light of Advances in Scientific Testing and the

Younblood Dissent

Arizona v. Youngblood, 488 U.S. 51 (1988) carves out a rule

that requires a court to show that the government acted in bad

faith when failing to preserve evidence. This Court held "unless a

criminal defendant can show bad faith on the part of the police,

failure to preserve potentially useful evidence does not constitute

a denial of due process of law."

To this rule, Mr. Justice Stevens concurred in the outcome

but not in what he termed over-broad reasoning. "In my opinion,

there may well be cases in which the defendant is unable to prove

that the State acted in bad faith but in which the loss or

destruction of evidence is nonetheless so critical to the defense as

to make a criminal trial fundamentally unfair." (id at 61). Mr.

Justice Stevens reiterated his fundamental disagreement with the

scope of the bad-faith exception in Fisher, supra at 549.

The three dissenters to Youngblood also found that this

Court's reasoning was unduly restrictive to procedural due

process. The dissent noted that previous access-to-evidence cases,

Brady v. Maryland, 373 U. S. 83 (1963), and United States v.

Agurs, 427 U. S. 97 (1976), did not require "that government

actions that deny a defendant access to material evidence be taken

in bad faith in order to violate due process." (Youngblood, supra,

at 63).

In Little v. Streater, 452 U. S. 1 (1981), this Court held that

scientific advances in paternity testing bolstered the probative

value of DNA paternity tests (Streater at 8 ["effectiveness of the

[tests] attests the probative value of blood test evidence in

paternity cases."). This Court found that, because of further

testing that may or may not have been conducted or available,

there was a 90% probability that wrongly accused men could have

paternity negated.

In the instant matter, there was clear evidence that the

EMIT-type test did not have any probative value as to the

presence of clonazepam in Mr. Lehmann's blood and that further

probative tests would be necessary. Mr. Lehmann was denied

such access to the necessary tests

tests that would have shown a

-

significant level of clonazepam metabolites that would trigger

walking blackouts and other symptoms of overdose

10

--

because the

People failed to preserve blood and urine samples that clearly and

unmistakably had probative value.

The EMIT-type test is not capable of testing for clonazepam.

Further testing was required to ascertain a complete diagnosis.

Further testing was not done because the People failed to preserve

evidence that had probative value. Mr. Justice Stevens'

Youngblood concurrence and Fisher dissent likely envisioned a

scenario such as this.

The Youngblood dissent noted that failure to preserve such

blood and urine evidence was detrimental to the defense. "[T]he

State's conduct has deprived the defendant, and the courts, of the

opportunity to determine with certainty the import of this

evidence: it has 'interfere [d] with the accused's ability to present a

defense by imposing on him a requirement which the

government's own actions have rendered impossible to fulfill." (id

at 68-69). Simply put, it is not the province of law enforcement to

determine what is and is not reliable and admissible evidence.

That is squarely the province of the courts. It is not unreasonable

to require law enforcement to recognize the importance of such

tests and their probative value, whether for or contrary to, the

issue and degree of guilt (id at 70) and to ensure that law

enforcement preserves evidence that has probative value.

Mr. Justice Blackmun, writing for the Youngblood dissent,

noted that the majority left the good-faith/bad-faith demarcation

11

"for another day." (id at 66-67). Today is that day. This Court

should grant Certiorari.

Question 2

The Strickland v. Washington, 466 US 668 (1984) is well

settled. A person seeking federal habeas relief for counsel's

ineffectiveness must allege that counsel's conduct fell below an

objective standard of reasonableness based on prevailing

professional norms and that the conduct complained of must have

had a prejudicial effect on the outcome of the proceedings.

Mr. Lehmann raises five claims of ineffective assistance of

counsel at trial. Among them, Mr. Lehmann asserts counsel failed

to ascertain the location of blood and urine samples and to request

them for independent testing. The District Court calls this claim

speculative, alleging that there was no evidence to suggest that

the samples existed (Appendix A, p. 55). However, as

demonstrated is Question 1, supra, it is clear that there was a

more-than-great likelihood that samples existed and were either

suppressed or destroyed in bad faith.

Mr. Lehmann further asserts that trial counsel was not up to

professional par by virtue of counsel's son's impending surgery.

Trial counsel admitted that he would not be available for trial

prep because of this. It is evident from trial counsel's failure to

12

call additional witnesses who could testify to a wide range of

relevant facts, as well as counsel's grievously deficient use of

expert witnesses and cross-examination of prosecution witnesses

that he was ill-prepared for a trial of this magnitude.

In Wiggins v. Smith, 539 US 510 (2003), this Court held that

failure to investigate or prepare for trial that results from

inattention rather than a reasonable strategic decision is

unreasonable professional conduct. "The [] evidence counsel

failed to discover and present in this case is powerful." (id at 534).

The evidence and testimony that trial counsel failed to adduce

because of inattention undeniably prejudiced Mr. Lehmann.

As a result of the failure to preserve evidence, supra, there

were gaping holes in the evidence that need to be bolstered or

clarified by witnesses in order to off-set the lack of blood and urine

evidence available. Had counsel been suitably prepared for the

trial, he could have elicited testimony that would have set shown

Mr. Lehmann's state of mind and his medical status at the time of

the offenses.

Instead, counsel skirted over the issue and conducted a

disjointed line of questioning that was woefully incomplete.

While Strickland analysis disfavors speculative analysis, there is

necessarily some speculation required to determine prejudice.

Here, counsel was admittedly not able to spend time on trial

preparation because of personal issues. That failure to adequately

13

prepare for the trial resulted in clear prejudice. Mr. Lehmann

was suffering from the ill effects of an overdose of prescription

medication, yet, trial counsel failed to adduce, either in pre-trail

preparation or through testimony at trial, the actual effects of the

overdose on the Mr. Lehmann.

Trial counsel's questioning of expert witness Dr. Predescu,

was unreasonably limited and did not result in testimony that

correlated with the facts of this case. Trial counsel failed to call

other witness to buttress or add to Dr. Predescu's testimony.

State of mind and level of consciousness was undeniably a critical

part of the Mr. Lehmann's defense. Because of counsel's failure to

adequately prepare for trial, this avenue of defense was

prejudicially foreclosed.

Coupled with the prosecutorial misconduct and cumulative

error, infra, it clear that Mr. Lehmann suffered significant

prejudice that resulted in a fundamentally unfair trial.

Question 3

It is well settled that "the touchstone of due process analysis

in cases of alleged prosecutorial misconduct is the fairness of the

trial, not the culpability of the prosecutor." (Smith v. Phillips, 455

US 209 (1982)). In the instant matter, the District Court records

14

more than 25 different instances of prosecutorial misconduct as

alleged by Mr. Lehmann (Appendix A, pp. 24-48).

The District Court analyzes each in turn and determines

that each act of alleged misconduct did not infect the trial with

unfairness or that the inference drawn from the conduct was not

fundamentally unfair (Appendix A, pp. 24-48). This may be true

when each instance is viewed in isolation from the other.

But when presented with the cumulative effect of the

misconduct, a clear pattern emerges. As held by Smith, the

fairness of the trial, as a whole, is the primary concern. As

demonstrated by the litany of misconduct in this matter, it is clear

that the prosecutor had one objective: to demonize Mr. Lehmann

in such a way as to assure a verdict favorable to the People.

This Court has held that a bright-line rule defining what is

or is not misconduct is not achievable (Donnelly v. DeChristoforo,

416 US 637, 645 (1974)). Rather, each case must be reviewed to

determine if the conduct, taken as a whole, results in misconduct

sufficient to undermine the fairness of the trial. To reach this

end, the District Court's item-by-item approval of the copious

amounts of misconduct is error.

The District Court applied an improper standard to

determine if the misconduct altered the outcome of the

proceedings. The Court below found there was no cumulative

error because there was no clear statement of false evidence.

15

This, however, is not the legal standard. The standard is defined

by Smith and Donnelly, looking to the case as a whole and the

effect the prosecutorial misconduct had upon the verdict.

Cumulative error applies where, "although no single trial error

examined in isolation is sufficiently prejudicial to warrant

reversal, the cumulative effect of multiple errors may still

prejudice a defendant." (United States v. Frederick, 78 F.3d 1370,

1381 (9th Cir.1996)).

Question 4

When a trial is infected with repeated errors, including

errors that, standing alone would not entitle a person to relief,

Constitutional Due Process is necessarily implicated (Chambers v.

Mississippi, 410 US 284 (1973)). In the instant matter, the

District Court conducted an issue-by-issue review of the errors

asserted by Mr. Lehmann, rather than a cumulative and holistic

view of the case (Pane v. Runnels, 505 F. 3d 922 (9th Cir. 2007)

(cites omitted)). Because "the [cumulative] impact of these errors

is devastating to one's confidence in the reliability of the verdict,"

(Pane v. Runnels, supra 505 F. 3d at 926) this court should

reverse the District Court's denial of the petition.

This matter contains countless errors that can be, and have

been, written off as individual errors not effecting the outcome of

16

the trial. This isolationist approach to the facts of the case is

erroneous. The District Court erred in failing to assess the errors

complained of in the §2254 petition as whole and to examine them

under the lens of the verdict.

"Under traditional due process principles, cumulative error

warrants habeas relief only where the errors have "so infected the

trial with unfairness as to make the resulting conviction a denial

of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974). Such "infection" occurs where the combined effect of the

errors had a "substantial and injurious effect or influence on the

jury's verdict." (Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

(internal quotations omitted);' see also Thomas v. Hubbard, 273 F.

3d 1164, 1179-81 (9th Cir. 2001) (noting similarity between

Donnelly and Brecht standards and concluding that "a Donnelly

violation necessarily meets the requirements of Brecht"). In

simpler terms, where the combined effect of individually harmless

errors renders a criminal defense "far less persuasive than it

might [otherwise] have been," the resulting conviction violates due

process." (Pane v. Runnels, supra, 505 F 3d at 927).

17

Conclusion

Based on the above, the record in this matter and the

attached Appendices, Petitioner Robert Lehmann respectfully

prays this Court issue a Writ of Certiorari.

Respectfully Submitted,

Date: May 27, 2019

Ro tLehmann

Petitioner

In Pro Se