Petition for Writ of Certiorari — Joseph Flowers, Petitioner v. F. Foulk, Warden

Supreme Court briefAug 23, 2019

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No.___________

________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________

JOSEPH FLOWERS

Petitioner

F. FOULK, Warden,

Respondent

________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

________________________

PETITION FOR WRIT OF CERTIORARI

________________________

Stephanie Adraktas

Attorney for Petitioner

2625 Alcatraz Avenue, #233

Berkeley, CA 94705

(415) 699-1507

CJA Appointed Counsel for Petitioner

QUESTIONS PRESENTED

Flowers was convicted of robbery, kidnapping and burglary based on an incident where

two men robbed a massage parlor that had a history of prostitution. The only issue at trial was

whether Flowers was correctly identified as one of the perpetrators. The questions presented are:

Under the clearly established rule in Strickland v. Washingon, 466 U.S. 668 (1984),

was Flowers’s trial counsel prejudicially ineffective when he failed to present evidence of

Flowers’s alibi at trial? Relatedly, has Flowers presented sufficient proof of actual innocence as

either a stand alone claim under Herrera v. Collins, 506 U.S. 390 (1993), and/or as a gateway to

overcome any procedural default under Schlup v. Delo, 513 U.S. 298(1995)?

Did the trial court violate Flowers’s right to due process when it denied his motion

for a mistrial on grounds that a prosecution witness told the jury that, at the time of the charged

incident, he was a parolee at large?

Should the courts below have issued a certificate of appealability as to the following

claims:

Whether the district court erroneously dismissed as procedurally defaulted

Flowers’s claim that his right to counsel was violated because he had been denied an opportunity

for meaningful confidential visits with his trial attorney?

B. Whether the trial prosecutor violated Flowers’s right to due process of law

under Brady v. Maryland, 373 U.S. 83 (1963), when he failed to fully disclose impeachment

evidence concerning one of the prosecutor’s most important witnesses?

TABLE OF CONTENTS

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

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

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Christmas Eve Robbery at a Massage Parlor in San Rafael. . . . . . . . . . . . . . . 4

The Letter Sent to Chen With Her Checkbook. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Testimony of Douglas Patterson and Fernando Guerrero. . . . . . . . . . . . . . . . . . . . 7

Massage Parlor Witness Wei Chen Misidentified a Stranger as Wendy Zhang, Her

Co-Worker Who Was Taken From The Robbery Scene in a Car with

the Robber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Expert Testimony Concerning Eye Witness Identification .. . . . . . . . . . . . . . . . . . 9

REASONS FOR GRANTING THE PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

This Court Should Grant Certiorari Because the Ninth Circuit’s Decision Is In

Conflict With This Court’s Precedents Concerning The Effective Assistance of

Trial Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

This Court Should Grant Certiorari to Provide Guidance to the Lower Courts

Concerning the Actual Innocence Gateway for Otherwise Procedurally Defaulted

Claims and to Establish Whether A Habeas Petitioner May Obtain Relief Based

on a “Freestanding” Claim of Actual Innocence .. . . . . . . . . . . . . . . . . . . . . . . . . 10

Certiorari Should Be Granted Because The Ninth Circuit’s Decision is in Conflict

With This Court’s Precedents Concerning the Right to a Fair Trial. . . . . . . . . . . 11

This Court Should Grant Certiorari and Grant a Certificate of Appealability As to

Flowers’s Claim That He Was Denied His Right to Counsel When Jail Officials

Evesdropped On His Attorney Client Meetings.. . . . . . . . . . . . . . . . . . . . . . . . . . 12

This Court Should Grant Certiorari and Grant a Certificate of Appealability As to

Flowers’s Claim That The Prosecutor Prejudicially Withheld Brady Material

Because the Ninth Circuit’s Decision is Contrary to this Court’s Precedents

Concerning a Criminal Defendant’s Right to Pre Trial Disclosure of Exculpatory

Evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

This Court Should Reverse the District Court Decision Denying Flowers’s Claims

Related to His Actual Innocence .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II.

Flowers’s Claim That His Trial Counsel Was Ineffective For Failing To Present

Evidence of His Alibi.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

The Clearly Established Right to Effective Assistance of Counsel . . . . . 16

The Ineffective Assistance of Counsel Claim Was Exhausted And Not

Procedurally Barred. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Because Identity of the Second Robber Was The Most Important Contested

Issue at Trial, Flowers Was Prejudiced When His Trial Counsel Failed to

Call Witnesses Who Would Have Testified That Flowers Was At a Family

Christmas Eve Party at the Time of the Robberies. . . . . . . . . . . . . . . . . . 18

In the Alternative, This Court Should Remand This Claim For An

Evidentiary Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

In the Alternative, This Court Should Grant Relief Based on Actual Innocence

Under Herrera v. Collins. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

The District Court Should Have Excused Any Procedural Defaults on Grounds

That Flowers Has Shown Sufficient Evidence of Actual Innocence Under Schlup v.

Delo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

The Trial Court Violated Flowers’s Right to Due Process When It Failed To Grant a

Mistrial After a Witness Referred to Flowers as a Parolee At Large. . . . . . . . . . . . . . . . 22

Facts in Support of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

The Clearly Established Right to a Fundamentally Fair Trial. . . . . . . . . . . . . . . . 23

The Court of Appeal Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

The AEDPA Does Not Bar Relief On This Claim Because The

Court of Appeal Failed to Adjudicate the Constitutional Question.. . . . . . . . . . 24

Holton’s Testimony Was Prejudicial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

UNCERTIFIED ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

II.

Flowers’s Claim That His Right to Counsel Was Violated Because He Was Not Permitted

Confidential Jail Visits With His Lawyer Should Not Have Been Dismissed As

Procedurally Defaulted.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

The Marin County Jail Failed to Provide Flowers With Meaningful Confidential

Visits With Counsel Because Jail Staff And Other Inmates Could Hear The

Conversations Between Attorneys and Their Clients In The Attorney Client

Meeting Room . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Because Flowers Included New Evidence Outside the Appellate Record to Support

His Claim Filed in the California Supreme Court The Superior Court’s Dixon Bar

Did Not Apply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

The Prosecutor Committed Prejudicial Misconduct When He Failed to Disclose

Impeachment Evidence Concerning Prosecution Witness

Wei Chen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

The Prosecutor’s Disclosure of Wei Chen’s Criminal History Was Incomplete.. 32

Flowers Should Receive a New Trial Because The Undisclosed Impeachment

Information Was Material to the Outcome of

His Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

TABLE OF AUTHORITIES

Federal Cases

Alberni v. McDaniel, 458 F.3d 860 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Alcala v. Woodford, 334 F.3d 862 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Almendarez–Torres v. United States, 523 U.S. 224, 235 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . 26

Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . 18

Bowen v. Giurbino, 305 F.Supp.2d 1131 (C.D.Cal. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Brady v. Maryland, 373 U.S. 83 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35

Brown v. Myers, 137 F.3d 1154 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Bryant v. Scott, 28 F.3d 1411 (5th Cir.1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Dowling v. United States, 493 U.S. 342(1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Estelle v. McGuire, 502 U.S. 62 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Foster v. Wolfenbarger, 687 F.3d 702 (6th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Hardy v. Chappell, 832 F.3d 1128 (9th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Herrera v. Collins, 506 U.S. 390 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Holley v. Yarborough, 568 F.3d 1091 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

In re Davis, 557 U.S. 952, 130 S.Ct. 1, 1-2 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Jammal v. Van de Kamp, 926 F.2d 918 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Johnson v. Williams, 133 S.Ct. 1088 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Kimmelman v. Morrison, 477 U.S. 365 (1986) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Kyles v. Whitley, 514 U.S. 419 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Lonegan v. Hasty, 436 F.Supp.2d 419 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Maleng v. Cook, 490 U.S. 488 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Murdaugh v. Ryan, 724 F.3d 1104 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Powell v. Alabama, 287 U.S. 45 (1932). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Schlup v. Delo, 513 U.S. 298 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 21

Smith v. Baldwin, 510 F.3d 1127 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Strickland v. Washington, 466 U.S. 668 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16, 17, 19

United States v. Agurs, 427 U.S. 97 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

United States v. Bagley, 473 U.S. 667 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

United States v. Cronic, 466 U.S. 648 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Wiggins v. Smith, 539 U.S. 510, 523 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Wilson v. Sellers, ___ U.S. ___138 S. Ct. 1188 (2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

Wolff v. McDonnell, 418 U.S. 539 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

State Cases

Case v. Andrews, 603 P.2d 623 (1979) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

In re Dixon, 41 Cal.2d 756 (1953).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

People v. Lopez, 42 Cal. 4th 960, 972 (Cal. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

People v. Tulare County Superior Court, 129 Cal.App.4th 324 (2005). . . . . . . . . . . . . . . . . . . . 28

State v. Walker, 804 N.W.2d 284 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Statutes

28 U.S.C. § 2254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 15, 28, 29, 30

No.___________

________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________

JOSEPH FLOWERS

Petitioner,

F. FOULK

Warden,

Respondent

________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

________________________

PETITION FOR WRIT OF CERTIORARI

________________________

Petitioner, Joseph Flowers, respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The Ninth Circuit Court of Appeals affirmed the district court’s order denying habeas

relief in an unpublished memorandum decision. App. 1. 1 The opinion and judgment of the

“App.” refers to the Appendix attached to this petition. “ER” refers to the Appellant’s

Excerpts of Record filed in the Court of Appeals for the Ninth Circuit simultaneously with the

Appellant’s Opening Brief on Appeal. “CR” refers to the docket number of the Court of Appeals

docket and “DCR” refers to the docket number of the federal district court docket.

district court denying Flowers’s habeas corpus petition are unreported. App. 6, 8. The California

Court of Appeal affirmed the conviction and sentence in an unpublished decision. App. 59. The

California Supreme Court denied review in an unpublished decision. App. 58.

JURISDICTION

The final judgment of the Court of Appeals was entered on May 29, 2019. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

In pertinent part, the Sixth Amendment to the United States Constitution provides “In all

criminal prosecutions, the accused shall enjoy the right . . .”to have “the assistance of counsel”

for his defense.

Section 1 of the Fourteenth Amendment to the United States Constitution provides in

pertinent part: “No state shall . . . deprive any person of life, liberty or property without due

process of law.” Additionally, the Sixth Amendment guarantees that, “[i]n all criminal

prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defense.”

STATEMENT OF THE CASE

State Court Proceedings

On July 30, 2009, Flowers and co-defendant Douglas Patterson were charged by amended

information, filed in Marin County Superior Court, with three counts of robbery (Cal. Penal Code

§ 211)(Counts 1-3), one count of kidnapping for robbery (Cal. Penal Code 209(b)(1))(Count 4),

and one count of commercial burglary (Cal. Penal Code § 459)(Count 6). As to counts 1-4, the

information alleged that Flowers had personally used a firearm pursuant to California Penal Code

§ 12022.53(b).

On the first day of trial, co-defendant Patterson entered a guilty plea and agreed to testify

against Flowers. 6 RT 246. On May 11, 2010, Flowers was found guilty of all of the charged

counts and the jury found the firearm allegations to be true. 2 CT 372-384. On August 11, 2010,

the trial court sentenced Flowers to a determinate prison term of 29 years and four months and to

a consecutive term of life in prison. 12 RT 959-962; 2 CT 418-423, 427-430.

On June 15, 2012, the California Court of Appeal affirmed the judgment and sentence.1

ER 54. Flowers’s petition for review was denied by the California Supreme Court on August 22,

2012. 1 ER 53. Flowers’s petition for a writ of habeas corpus filed in the Marin County Superior

Court was denied on December 18, 2012. 1 ER 51. The California Court of Appeal denied his

petition for a writ of habeas corpus on May 23, 2013. 1 ER 50. The California Supreme Court

denied Flower’s petition for a writ of habeas corpus on April 9, 2014. 1 ER 49.

Federal Court Proceedings

Flowers timely filed a petition for writ of habeas corpus in the district court on February

7, 2014. CR 1. After a stay was granted, an amended petition was filed on August 22, 2014. CR

32. On March 9, 2016, the district court granted the respondent’s motion to dismiss some claims

on grounds that they were procedurally defaulted.1 ER 24. On September 1, 2017, the district

court denied the remaining claims on the merits. On the same date, the district court issued a

certificate of appealability. 1 ER 2.

On May 29, 2019, the Ninth Circuit Court of Appeals issued a memorandum decision

affirming the decision of the district court and denying Flowers’s request to expand the certificate

of appealability. App. 1, 2.

STATEMENT OF FACTS

The Christmas Eve Robbery at a Massage Parlor in San Rafael

The primary issue at trial was whether Flowers was correctly identified as the person who

committed an armed robbery and kidnapping with co-defendant Douglas Patterson on Christmas

Eve, 2008. On that date, Patterson and another man robbed the New Day Health Center, a

massage parlor in San Rafael. Wei Chen, Wendy Zhang and Lin Juan Chen (known as “Lily”)

were working at the time. 8 RT 592. A video surveillance system recorded part of the incident,

including footage where Patterson could be seen. RT 221-222, 330, 392, 512. The second robber

could not be identified based on the videotape. RT 824, CT 96, CT 156-157, 160-161.

Wei Chen, testified that at about 6 p.m. on December 24, 2008, a “Hispanic” man

(Patterson) came in and asked how much he would have to pay for a massage. Patterson also

asked how many women were working there that night. RT 954. Patterson walked out and

returned immediately, followed by a black man who was about 6 foot 3 inches tall and who was

wearing a black beanie hat. RT 751.

According to Chen, Lilli Juan walked up to the two men and greeted them. Patterson then

sat on a sofa in the waiting area. RT 597. The black man then grabbed Juan by her hair and

pointed a gun at her head. He told Juan to take him to the back of the massage parlor where the

money was. RT 595-596. Chen identified Flowers as the black male robber. RT 595.

Chen testified that she saw Flowers take Juan into the back room. He came out and

grabbed Chen by the hair, pointed a gun at her head, pulled her into the back room and said “Go

get money for me.” RT 597-598. He also took money out of Chen’s purse and grabbed some bags

that belonged to Zhang and Juan. RT 599-600.

According to Chen, Flowers then grabbed Zhang and demanded money. Zhang argued

that he had already taken money from her bag. RT 600. Flowers then grabbed Zhang by the hair

and dragged her toward the front door. His gun was pointed at Zhang’s head. He said “don’t

come out” and then he and Patterson dragged Zhang out the front door. RT 600-601. Chen

denied that Flowers had exposed his penis during the robbery. RT 615.

Xiu He, the massage parlor manager, had been watching the robbery from her home

based surveillance system. 6 RT 325. She saw a black man and a Hispanic man inside the

massage parlor. The black man was holding a firearm. She also saw Zhang, Chen and Juan

kneeling on the floor in front of the two men. She called the police. RT 325. She also denied that

the New Day Health Center was a “house of prostitution.” RT 350-351. She testified that the

women who gave massages there did not exchange sex for money. RT 351.

San Rafael Police Officer Edward Chiu arrived at the massage parlor at about 6:25 p.m.

He looked at the videotape of the incident, which corroborated the three women’s statements

about the robbery. 6 RT 267-268.

Shortly afterward, Zhang called the massage parlor and spoke to Xiu He. RT 268-269.

Zhang said that the robbers drove her to Point Richmond and then released her. Zhang had been

rescued by a man who saw her walking down the street in the rain wearing only a night gown. RT

299, 301.

About two weeks after the incident, Chen identified Flowers in a photo line up as the

black man who had robbed the massage parlor with Patterson and who had abducted Zhang. 8

RT 630. Chen also identified co-defendant Patterson as the Hispanic male who came into the

massage parlor with Flowers. 8 RT 629.

The Letter Sent To Chen With Her Checkbook

About a week after the robbery, Chen received in the mail an envelope with her

checkbook and a letter that said she should deposit $10,000 in a bank account. RT 216, 603; Exh.

21. A crossed out phone number on the letter was associated with co-defendant Patterson. RT

456.

A fingerprint on the outside of the envelope matched Flowers’s left ring fingerprint. RT

552. According to San Rafael Police Detective Lisa Holton, the print matched Flowers’s right

ring finger. 8 RT 631.

Testimony of Douglas Patterson and Fernando Guerrero

If convicted of all of the charged counts, Patterson was facing the possibility of a life

term. RT 462. On the first day of trial, Patterson entered guilty pleas to a reduced charge of one

count of second degree robbery and one count of acting as an accessory after the fact to one count

of armed robbery. RT 370. In exchange for his plea and his testimony against Flowers, Patterson

believed that he would receive a sentence of about three years and eight months in prison. RT

371.

Patterson testified that he had known Flowers for three or four years. RT 372. On

Christmas Eve, 2008, Patterson and Flowers borrowed a Honda Element from Patterson’s

roommate, Fernando Guerrero, and drove to San Rafael. RT 375. When Flowers took over

driving the car, he took Patterson to the New Day Health Center. Patterson did not know that

Flowers intended to commit a robbery. RT 411, 417, 421, 428. 2

Prior to trial, Patterson had told an investigating officer that Flowers had asked him to go to San

Rafael so that they could interview some women to work as prostitutes for Flowers. RT 514; 7

RT 417.

Patterson went inside and asked how much it would cost to get a massage. He then

realized he had left his wallet in the car, so he went back outside. RT 380. After he came back

inside with Flowers, Patterson sat on a couch in the waiting room. RT 381. According to

Patterson, Flowers told Chen he had something to show her and he exposed his penis. RT 381.

Flowers suddenly pulled out a gun and forced the three women to sit on the floor. He

grabbed Chen by the hair and pulled her into the back room. Then, he came back holding two or

three purses in his other hand. RT 382-383. He took money out of the purses and then dragged

one of the other women to the back room. Flowers was saying “Where is the money?” Flowers

grabbed Chen again and dragged her to the back room. RT 384.

When Flowers came back with Chen, he pointed his gun at all three of the women and

demanded to know where the rest of the money was. RT 386. Flowers told Patterson to go

outside and get in the car. Flowers then came out of the massage parlor with Zhang and forced

her into the car. RT 387.

While they were on the Richmond bridge, Zhang opened one of the back seat windows.

Flowers “attacked” her and the rear window shattered. RT 389. They released Zhang in Point

Richmond RT 391. Patterson then dropped Flowers off in San Leandro. RT 450.

About a week later, Patterson learned that he was wanted for robbery and that there was a

photograph of him at the New Day Health Center on the front page of the local newspaper. RT

452. Patterson called his cousin, who was a City of San Mateo Police Officer, and told him what

had occurred. On January 6, 2009, Patterson turned himself in at the Santa Clara County Sheriff’s

office. RT 458. He spoke to a police detective and identified Flowers as the person who had

committed the robbery. RT 488.

On cross examination, Patterson admitted that when he entered the New Day Health

Center he understood that it was a house of prostitution. 7 RT 424.

Patterson’s roommate, Fernando Guerrero, testified that he had loaned his car, a black

Honda Element, to Patterson and Flowers. When the car was returned, the rear passenger side

window was missing. RT 255-257.

Wei Chen Misidentified a Stranger as Wendy Zhang, Her Co-Worker Who

Was Taken From The Robbery Scene in a Car with the Robbers

Jonathan Madarang, an Inspector with the Marin County District Attorney’s Office,

testified as a defense witness. RT 738. Madarang testified that, on April 30, 2010, he had

obtained a photograph of a woman named Wendy Zhang. He showed the photograph to

prosecution witnesses Wei Chen and Xiu He, and a woman named Nilda Hernandez who was a

victim/witness advocate for the Marin County District Attorney’s Office. RT 739-740. All three

of the witnesses told Madarang that the woman in the photograph was the same Wendy Zhang

who had been robbed and kidnapped from the New Day Health Center. RT 741-742.

Madarang later discovered that she was not in fact the person who had been robbed at the

New Day Health Center. RT 742. According to Maderang, the woman in the photo looked “very

similar” to the Wendy Zhang in the surveillance video of the charged incident. RT 743-744.

Expert Testimony Concerning Eye Witness Identification

Dr. Deborah Davis, a psychology professor, testified as a defense expert on the subject of

eyewitness identification. RT 668. Dr. Davis explained that in incidents involving a weapon,

witnesses perform “more poorly at identifying the person holding it” than a person who does not

have a weapon. RT 683. Studies have shown that people who experience traumatic events are

less likely to “pick the right guy” or to identify the right person than others. RT 691. Moreover,

cross racial identifications are more inaccurate than same race identifications. RT 684.

Finally, Dr. Davis testified that witnesses who are asked to identify a perpetrator in a line

up show high rates of false identification when the line up does not include a photograph of the

perpetrator. RT 698-699. It is not unusual to have 70 to 80 percent of people in that situation

choose the wrong person out of the line up because they assume that the perpetrator must be

among the individuals on display. RT 699-700. The likelihood of a false identification in that

situation can be reduced if the witnesses are admonished (as Chen was in this case) that the

perpetrator may or may not be included in the line up. RT 698-699. However, even with such an

admonition, “you still get very high rates of choosing even if the right person isn’t there.” RT

699.

REASONS FOR GRANTING THE PETITION

This Court Should Grant Certiorari Because the Ninth Circuit’s Decision Is

In Conflict With This Court’s Precedents Concerning The Effective

Assistance of Trial Counsel

The Ninth Circuit’s memorandum decision holds that petitioner procedurally defaulted

his ineffective assistance of counsel claim related to his trial counsel’s failure to present alibi

evidence that would have demonstrated his actual innocence. App. at p. 3. The decision is

contrary to this Court’s decisions in Strickland v. Washington, 466 U.S. 668 (1984) and its

progeny, which set forth the elements of a claim of ineffective assistance of trial counsel.

Petitioner, who raised his claim pro se, plainly stated that his attorney was prejudicially

ineffective because he failed to present the alibi evidence at trial. Certiorari should be granted

because the Ninth Circuit’s decision is contrary to Strickland.

This Court Should Grant Certiorari to Provide Guidance to the Lower

Courts Concerning the Actual Innocence Gateway for Otherwise

Procedurally Defaulted Claims and to Establish Whether A Habeas

Petitioner May Obtain Relief Based on a “Freestanding” Claim of Actual

Innocence

Certiorari should be granted because the The Ninth Circuit’s decision in this case is in

conflict with the Seventh Circuit decision in Arnold v. Dittman, 901 F.3d 830 (7th Cir. 2018),

where the Court remanded the case for an evidentiary hearing concerning the credibility of the

evidence of the petitioner’s innocence, which was the complaining witness’s recantation of his

trial testimony. In this case, the Ninth Circuit held that the single declaration of an alibi witness

was insufficient to meet “Schlup’s high standard.” App. 3. That holding is in conflict with

Arnold, which remanded the case for a hearing as to the credibility of the witness. Certiorari

should be granted to resolve the conflict between this case and Arnold.

As in this case, the petitioner in Arnold sought to excuse a procedural default on grounds

of actual innocence and also to pursue a claim of actual innocence as a freestanding substantive

claim. Accordingly, in both cases, the allegations of actual innocence are doing “double duty” in

both as a gateway to habeas review of otherwise procedurally defaulted claims and as a

substantive basis for granting the writ. Arnold at p. 835; See Perrone v. United States, 889 F.3d

898, 903 (7th Cir. 2018).

To date, an assertion of actual innocence based on evidence post-dating a conviction has

not been held to present a viable claim of constitutional error. See Herrera v. Collins, 506 U.S.

390, 400–02, 113 S.Ct. 853, 860–61, 122 L.Ed.2d 203 (1993). This Court in Herrera assumed

without deciding that the Eighth Amendment precludes the execution of a person who has

demonstrated his actual innocence. Id. at 417, 113 S.Ct. at 869; see also id. at 419, 113 S.Ct. at

870 (O'Connor, J., concurring); id. at 429, 113 S.Ct. at 875 (White, J., concurring in the

judgment). But his Court has not yet indicated that an actual innocence claim could, standing

alone, support the issuance of a writ in a non-capital case. See McQuiggin, 569 U.S. at 392, 133

S.Ct. at 1931 (“We have not resolved whether a prisoner may be entitled to habeas relief based

on a freestanding claim of actual innocence.”);

In this case certiorari should also be granted to guide the lower courts as to whether a

habeas petitioner may obtain relief based on a “free standing” claim of actual innocence.

Certiorari Should Be Granted Because The Ninth Circuit’s Decision is in

Conflict With This Court’s Precedents Concerning the Right to a Fair Trial

The Ninth Circuit decision in this case holds that the Supreme Court “has not clearly

held” that the trial court’s admission of prior bad acts evidence violates due process. App. 4

citing Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Certiorari should be granted to

decide this important question of federal law that has not been, but should be settled by this

Court.

Here, the trial court admitted testimony at trial that petitioner was a “parolee at large”

which made his trial fundamentally unfair as it invited the jury to speculate about petitioner’s

criminal history. The Ninth Circuit’s decision reasoned, incorrectly, that petitioner was not

prejudiced because there was a curative instruction, no details were presented and the evidence

against him was strong. In fact, as set forth in more detail below, this was a weak case, where the

primary identification testimony was given by a co-defendant who received substantial benefits

in exchange for his testimony. Certiorari should be granted to guide the lower courts as to the

constitutional standards for the admission of prior bad acts evidence at trial.

This Court Should Grant Certiorari and Grant a Certificate of Appealability

As to Flowers’s Claim That He Was Denied His Right to Counsel When Jail

Officials Evesdropped On His Attorney Client Meetings

Without analysis, the Ninth Circuit denied Flowers’s request for a certificate of

appealability as to his claim that he was denied his right to counsel when jail officials

evesdropped on his meetings with his trial counsel. App. 2. Certiorari should be granted to clarify

the standard that applies when government officials intrude on or record conversations between

incarcerated pre-trial detainees and their lawyers and to establish that such intrusions on the

attorney client relationship are prejudicial per se. See United States v. Cronic, 466 U.S. 648

(1984); Powell v. Alabama, 287 U.S. 45 (1932); Daniels v. Woodford, 428 F.3d 1181 (9th Cir.

2005). Specifically, when a prisoner’s communications with his counsel are chilled to the extent

that he cannot speak in confidence with his lawyer, he is constructively denied the right to

counsel as if he has no counsel at all. Id.

In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), this Court

held that prison officials may open an inmate’s legal mail in his presence because “the inmate’s

presence insures that prison officials will not read the mail,” and therefore would not “chill

[attorney-client] communications.” Id. at 577, 94 S.Ct. 2963 (emphasis added). This Court noted,

however, that “the constitutional status of the rights asserted ... is far from clear,” Id. at 575, 94

S.Ct. 2963.

Certiorari should be granted in this case because the Marin County Jail’s practice of

recording attorney client conversations chilled petitioner’s communications with his counsel such

that he was not able to adequate prepare for petitioner’s trial. The Ninth Circuit has recognized

that intrusion into their confidential communications by government lawyers can chill attorney

client communications because prisoners have a legitimate concern that the prosecution will

thereby learn of the prisoner’s legal strategy. See Gomez v. Vernon, 255 F.3d 1118, 1123–24 (9th

Cir. 2001). Moreover, the Marin County Jail’s practice of intentionally recording attorney client

communications is not unique. The practice has been described and condemned in several other

published decisions. See Lonegan v. Hasty, 436 F.Supp.2d 419, 423 (2012) (OIG report stated

that inmate meetings with counsel were routinely recorded); State v. Walker, 804 N.W.2d 284,

296-296 (2011) (video surveillance of attorney client meetings violated arrestee’s right to

confidential visits with counsel); Case v. Andrews, 603 P.2d 623, 626 (1979) (county jail policy

of monitoring attorney client meetings violated constitutional right to counsel). This case is an

appropriate vehicle to address the issue because the jail’s practice of recording attorney client

conversations was confirmed by numerous witnesses and apparently uncontested. ER 131-145.

Accordingly, the issue as to whether such recordings violate the Sixth Amendment and whether

the intrusion should be prejudicial per se is squarely presented.

This Court Should Grant Certiorari and Grant a Certificate of Appealability

As to Flowers’s Claim That The Prosecutor Prejudicially Withheld Brady

Material Because the Ninth Circuit’s Decision is Contrary to this Court’s

Precedents Concerning a Criminal Defendant’s Right to Pre Trial Disclosure

of Exculpatory Evidence

Without analysis, the Ninth Circuit denied petitioner’s claim that the prosecution violated

his right to due process of law under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963), when it failed to disclose to him prior to trial records that would have established

that the state’s complaining witness, Wei Chen, had been arrested for and engaged in

prostitution. During the trial, Chen did not admit that she was a prostitute. As set forth in more

detail below, the information was material to Flower’s defense and should have been disclosed to

him before Chen testified at trial.

This Court should grant certiorari and grant a certificate of appealability because the

Ninth Circuit’s order declining to issue the certificate is contrary to this Court’s decisions in

Brady, Kyles v. Whitley and their progeny, which hold that prosecutors have an affirmative duty

“to disclose [Brady] evidence ... even though there has been no request [for the evidence] by the

accused,” which may include evidence known only to police. Strickler v. Greene, 527 U.S. 263,

280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Kyles, 514 U.S. at 438, 115 S.Ct. 1555.

In this case, the prosecutor argued that he did not have a police report establishing what

had occurred during Chen’s arrest and there was no evidence that the New Day Health Center

was operating as a house of prostitution. However, the prosecutor could have discovered that

information if he had sought to obtain it. To comply with Brady, prosecutors must “learn of any

favorable evidence known to the others acting on the government’s behalf ..., including the

police.’’ Strickler, 527 U.S. at 281, 119 S.Ct. 1936 (internal quotation marks omitted) (quoting

Kyles, 514 U.S. at 437, 115 S.Ct. 1555). Because the Ninth Circuit’s decision in this case is

contrary to Brady, this Court should grant certiorari and grant a certificate of appealability.

ARGUMENT

This Court Should Reverse the District Court Decision Denying Flowers's

Claims Related to His Actual Innocence

Flowers’s Claim That New Alibi Evidence Establishes His Actual Innocence

Flowers’s California Supreme Court and federal habeas corpus petitions allege that, upon

his arrival at the Marin County Jail in January, 2009, Flowers told his attorney that at the time of

the charged incident he “was at 2016 109th Avenue in Oakland.” 3 ER 224-227; CR 25, ECF

page 24. Flowers attached Exhibit G to his petition, which is the declaration of Claudette

Winston. 2 ER 127; 3 ER 224-227; CR 25, ECF page 24. 3

After jury selection and before the opening statements at trial, defense counsel told the

court that he had just received from Flowers a list of people to subpoena. 2 ER 128-129. Trial

counsel asked that the jury be discharged and that the trial be continued so that he could

investigate the alibi that Flowers had provided to him. The trial judge replied that Flowers had

been “pretty steady” in providing “writings” to the court and counsel. The judge said “I don’t

imagine that will ever change, so now is the time for trial.” The motion to continue was denied. 2

ER 129.

Trial counsel did not present any alibi witnesses at trial. He argued in closing that there

was reasonable doubt as to the identification of Flowers as the person who robbed the massage

parlor and kidnapped Zhang. 2 ER 93-94.

After his sentencing, on November 8, 2011, Flowers obtained a declaration from

Claudette Winston. 2 ER 126. Her declaration states that on Christmas Eve, 2008, (the date of

Flowers alleged that his pre-trial communications with his counsel were obstructed because the

jail where he was confined did not allow confidential attorney client visits. 2 ER 134 (declaration

of defense counsel Jon Rankin stating that Flowers had declined visits with him and his

investigator because the visiting room was equipped with speakers and recording devices and

that his conversations with Flowers in that area could be overheard); 2 ER 137 (declaration of

Joseph Flowers concerning evesdropping in jail attorney client visiting room; 2 ER 130, 132

(declarations of other inmates verifying that attorney client visiting rooms were not private).

the charged incident), Flowers was at 2619 109th Avenue with her, Mack Wood Fox, Arthur

Cregett, his wife and children, and other family members. Winston stated that she did not recall

the exact time that Flowers arrived, but that it was “sometime before sundown” on Christmas

Eve and that he “did not leave until sometime during the afternoon on Christmas Day.” 2 ER

127. Winston stated that she had discussed the incident with the people named in the declaration

and that she personally remembered those events because it was a long standing family tradition

to spend Christmas Eve and Christmas morning together. 2 ER 127.

The Clearly Established Right to Effective Assistance of Trial Counsel

A claim of ineffective assistance of trial counsel requires proof that: (1) counsel's

performance was objectively unreasonable and (2) but for counsel's errors there is a “reasonable

probability that the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 689 (1984).

When, as in this case, counsel has failed to present exculpatory evidence, the court must

“focus on whether the investigation supporting counsel's decision not to introduce [exculpatory

evidence] was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 523 (2003). An attorney who

fails to introduce evidence “that would have raised a reasonable doubt at trial renders deficient

performance.”’ Lord v. Wood, 184 F.3d 1083, 1092 (9th Cir. 1999). Strickland instructs:

. . . [C]ounsel has a duty to make reasonable investigations or to

make a reasonable decision that makes particular investigations

unnecessary. In any ineffectiveness case, a particular decision not

to investigate must be directly assessed for reasonableness in all

the circumstances, applying a heavy measure of deference to

counsel's judgments.

466 U.S. at 690-91.

The duty to investigate derives from counsel's basic function, which is “to make the

adversarial testing process work in the particular case. ” Kimmelman v. Morrison, 477 U.S. 365,

384 (1986) (quoting Strickland, 466 U.S. at 690). This duty includes the obligation to

investigate all witnesses who may have information concerning the client's guilt or innocence.

Bryant v. Scott, 28 F.3d 1411, 1419 (5th Cir.1994).

The Ineffective Assistance of Counsel Claim Was Exhausted And Not

Procedurally Barred

The district court denied Flowers’s ineffective assistance of counsel sub- claim on

grounds that it was a “new claim” and therefore procedurally defaulted:

In his traverse, Petitioner construes this claim as an ineffective

assistance of counsel claim, asserting in essence that his attorney

failed to investigate his potential alibi. Petitioner did not raise this

argument in support of his ineffective assistance of counsel claim,

part of which Petitioner withdrew and the remainder of which the

Court dismissed on September 6, 2016, as procedurally defaulted.

The Court declines to consider this argument as a new claim for

ineffective assistance of counsel. The new claim, like claims 1(b)

and (c) would be procedurally defaulted under Clark. (Citations

omitted).

1 ER 15.

The district court’s decision should be reversed, because Flowers’s claim that his

counsel had failed to present evidence at trial of his actual innocence (i.e, his alibi witnesses)

was plainly not a new, unexhausted or procedurally defaulted claim. Flowers’s California

Supreme Court and district court petitions clearly assert that his trial counsel was ineffective

because he failed to present evidence of alibi witnesses, even though Flowers told his attorney

about them prior to trial. 3 ER 224-227; CR 25, ECF page 24. The points and authorities

submitted in support of Flowers’s claim in the California Supreme Court petition and the federal

petition argue that “the denial of rights to effective assistance of counsel is hereby raised.” Id.

Flowers also requested an evidentiary hearing concerning “the Denial of Rights of Counsel” in

his “inabilities to defend against said charges.” Id.

Moreover, because Flowers filed his petitions pro se, they must be construed liberally.

Maleng v. Cook, 490 U.S. 488, 493 (1989); Balistreri v. Pacifica Police Dept., 901 F.2d 696,

699 (9th Cir. 1988) (“This court recognizes that it has a duty to ensure that pro se litigants do

not lose their right to a hearing on the merits of their claim due to ignorance of technical

procedural requirements.”) Accordingly, there was no procedural default. For all of these

reasons, the district court decision that the claim was procedurally barred must be reversed.

Because Identity of the Second Robber Was The Most Important Issue at

Trial, Defense Counsel Was Prejudicially Ineffective When He Failed to

Call Witnesses Who Would Have Testified That Flowers Was At a Family

Christmas Eve Party at the Time of the Robberies

In this case, it is undisputable that the identification of Flowers as the second robber was

the most important issue at his trial. E.g, 2 ER 76, 79 (portions of prosecutor’s closing argument

concerning identity). Accordingly, evidence that Flowers was at a family Christmas Eve

gathering at the time of the charged offense, such that he could not have been the man who

robbed the massage parlor and kidnapped Wendy Zhang, was critical to Flowers’s’ defense.

Moreover, Flowers told his trial counsel about the alibi witnesses when he was

incarcerated at the Marin County Jail and also after jury selection, before the first trial witnesses

testified. 3 ER 224-227; CR 25, ECF page 24, 2 ER 128. Trial counsel acknowledged that the

alibi evidence was important to Flowers’s identity defense. 2 ER 128. No reasonable defense

attorney under the circumstances would have failed to interview the witnesses and present their

testimony.

Accordingly, the state court unreasonably applied Strickland when it denied Flowers’s

claim without comment or citation to authority.1 ER 49. Trial counsel’s failure to call the alibi

witnesses was clearly deficient and the AEDPA standard of review should not apply. Foster v.

Wolfenbarger, 687 F.3d 702, 708-710 (6th Cir. 2012); see Brown v. Myers, 137 F.3d 1154, 1158

(9th Cir. 1998)

Under Strickland, a petitioner can show prejudice if "there is a reasonable probability

that, but for the counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland, at 694. A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Id; Hardy v. Chappell, 832 F.3d 1128 (9th Cir. 2016).

Here, only two witnesses testified that Flowers was the robber: massage parlor employee

Wei Chen and co-defendant Douglas Patterson. Patterson’s testimony must be viewed with

caution because he received an extraordinary deal in exchange for his testimony against

Flowers. Rather than spend the rest of his life in prison, Patterson was permitted to enter guilty

pleas to reduced charges and he expected to receive a sentence of approximately three years and

eight months. RT 370-371, 406.

Moreover, the evidence against Flowers was otherwise flawed. Wei Chen, who

identified Flowers as the robber, misidentified a stranger as Wendy Zheng, Chen’s co-worker

who she said was forced to leave the New Day Health Center with the robbers. If Chen could

not reliably identify Zheng, a woman who was working with her for hours that evening, how

could she have reliably identified the robber, whom she saw for only a few minutes?

Patterson’s testimony was also so inconsistent with Chen’s that neither could be believed

beyond a reasonable doubt. Patterson told the jury that Flowers had exposed his penis to Chen

during the charged incident. RT 381-382. Chen insisted that did not happen. RT 615. Patterson

also said that he had never been to the New Day Health Center before the charged incident. RT

459, 472. Chen told police that she recognized Patterson because he had been in the massage

parlor before. RT 614.

Finally, the declaration of Claudette Winston clearly establishes that she would have

testified that Flowers was with her and other family and friends on Christmas Eve, at the time of

the charged incident. Under all of these circumstances, there was a reasonable probability that at

least one juror would have entertained a reasonable doubt that Flowers was the second robber.

For all of these reasons, trial counsel’s failure to present the alibi witnesses was prejudicial and

this Court should grant the writ.

In the Alternative, This Court Should Grant Relief Based on Actual

Innocence Under Herrera v. Collins

Should the Court find that Flowers’s ineffective assistance of counsel claim is not

cognizable, it should grant relief based on the evidence of his actual innocence. Although this

Court has not explicitly held that a freestanding claim of actual innocence may be raised in a

non-capital habeas case under 28 U.S.C. § 2254, its decisions clearly establish that incarceration

of an innocent person violates the Due Process Clause. See In re Davis, 557 U.S. 952, 130 S.Ct.

1, 1-2 (2009); Herrera v. Collins, 506 U.S. 390, 418-20 (1993) (O'Connor, J.

concurring)(assuming without deciding that constitutional claim could be made if prisoner could

“make an exceptionally strong showing of actual innocence”).

In this case, for the reasons stated in sections above, Flowers’s alibi evidence (II ER 126)

provides the necessary showing of actual innocence to support relief under the more demanding

Herrera standard.

The District Court Should Have Excused Any Procedural Defaults on

Grounds That Flowers Has Shown Sufficient Evidence of Actual Innocence

Under Schlup v. Delo

“Actual innocence” may also be asserted as a “procedural gateway” for an otherwise

procedurally defaulted claim under Schlup v. Delo, 513 U.S. 298 (1995). A claim of actual

innocence under Schlup is “not itself a constitutional claim, but instead a gateway through

which a habeas petitioner must pass to have his otherwise barred constitutional claims

considered on the merits.” Schlup, 513 U.S. at 314-15; Smith v. Baldwin, 510 F.3d 1127, 1139

(9th Cir. 2007). To satisfy the Schlup standard, the petitioner must show that “it is more likely

than not that no reasonable juror would have convicted him in light of the new evidence.”

Schlup at p. 327.

Here, the district court held that Flowers could not satisfy the Schlup standard because

the Winston declaration was not from a disinterested party and the declaration “must be

considered in light of the proof of guilt at trial.” 1 ER 15. However, Winston’s close

relationship with Flowers did not necessarily diminish the value of her potential trial testimony.

Family members who testify as defense witnesses are not necessarily dismissed as incredible.

Even a witness with a natural bias may raise a reasonable doubt at trial.

In Ramonez v. Berghuis, 490 F.3d 482, 488-89 (6th Cir. 2007) the Sixth Circuit found it

reasonably likely that a jury would acquit if they had heard the testimony of the defendant's son,

stepson, and an acquaintance whose recollections were inconsistent with the prosecution's

theory of the case, even when substantial "inconsistenc[ies]" clouded their testimony. Ramonez,

490 F.3d at 485, 489-91. In this case, because the charged incident took place on Christmas Eve,

the only witnesses who could have testified to Flowers’s whereabouts were the friends and

family members who were celebrating the holiday with him. For all of these reasons, Flowers

has provided sufficient evidence of actual innocence to excuse his procedural defaults. This

Court should remand this case to the district court to consider the defaulted claims on the merits.

II.

The Trial Court Violated Flowers’s Right to Due Process When It Failed To

Grant a Mistrial After a Witness Referred to Flowers as a Parolee At Large

Facts in Support of Claim

Prior to trial, the trial court held that “any reference” to Flowers being on parole or in

custody was excluded. 2 ER 123. Moreover, the court ordered that the parties admonish their

witnesses concerning the court’s ruling. 2 ER 124.

Prosecution witness San Rafael Police Detective Christine Holton testified concerning

the circumstances surrounding the preparation of the photographic line up that was displayed to

Wei Chen. The prosecutor asked Holton why she had selected a particular photograph of

Flowers for the line up and Holton replied that she did not want to “hesitate” to get the

information about the incident before the public “for a public safety reason that we have a

parolee at large who is possibly still armed in public.” 2 ER 121.

The trial court admonished the jury to “disregard the portion of the answer that referred

to the term parolee.” The court also told the jury “Don’t be biased by it or make any inferences

from it. It’s not part of this case and has no bearing on your consideration of the issues here.

Disregard that in its entirety.” 2 ER 121.

Outside the presence of the jury, defense counsel made a motion for a mistrial. 2 ER

116. Counsel argued that the prosecutor had been ordered to instruct his witnesses concerning

the pre-trial rulings. Defense counsel argued that you could not “unring” the bell and the jury

had been tainted by the improper reference to Flowers’s parole status. 2 ER 116.

The prosecutor admitted that he had not mentioned to Detective Holton the court’s

ruling that she should not state that Flowers was a parolee at large. He did not think the issue

was going to come up. 2 ER 117.

The trial court denied the motion for a mistrial. The court found that because Holton did

not provide any details concerning Flowers’s prior conviction and because the court had

admonished the jury to disregard the information, there was no prejudice. 2 ER 117-118.

The Clearly Established Right to a Fundamentally Fair Trial

The Due Process Clause guarantees that a criminal trial must be fundamentally fair.

Estelle v. McGuire, 502 U.S. 62, 70 (1991) quoting Spencer v. Texas, 385 U.S. 559, 563-64

(1967). The erroneous admission of inflammatory evidence at trial may violates a defendant’s

constitutional right to due process. Dowling v. United States, 493 U.S. 342, 352 (1990); Alberni

v. McDaniel, 458 F.3d 860, 863-867 (9th Cir. 2006); Holley v. Yarborough, 568 F.3d 1091, 1101

(9th Cir. 2009); Alcala v. Woodford, 334 F.3d 862, 887 (9th Cir. 2003).

The petitioner must show that the challenged evidence was irrelevant and that the

“erroneously admitted evidence was of a type that necessarily prevents a fair trial.” McKinney v.

Rees, 993 F.2d 1378, 1384 (9th Cir. 1993). Admission of inflammatory evidence violates due

process if there are no permissible inferences that can be drawn from it. Id citing Jammal v. Van

de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).

The Court of Appeal Opinion

The California Court of Appeal held that it need not “address whether prosecutorial

misconduct occurred” when Holton referred to Flowers as a “parolee at large.” 1 ER 60. The

Court held that “no matter the answer to that question, the passing comment by Holton was cured

by instruction and not prejudicial.” 1 ER 60. The Court of Appeal held that “the surveillance

tapes, the testimony from Chen and Patterson, and the fingerprint evidence strongly support the

jury’s verdict and link defendant with the charged crimes. 1 ER 60.The Court of Appeal also

“presumed” that the trial court’s admonition about Holton’s testimony “avoided prejudice.” 1 ER

61.

The AEDPA Does Not Bar Relief On This Claim Because The

Court of Appeal Failed to Adjudicate the Constitutional Question

When a state court denies a petition without expressly rejecting a particular federal claim,

a federal habeas court must presume that the claim was adjudicated on the merits. However,

when it is clear that the state court overlooked the federal claim, AEDPA deference does not

apply. Johnson v. Williams, 133 S.Ct. 1088, 1094-97 (2013).

Here, the Court of Appeal’s analysis of the trial court order denying Flowers’s motion for

a mistrial overlooked his federal due process challenge to that evidence. The Court of Appeal

bypassed Flower’s due process claim and ruled only on whether the evidence was prejudicial

under state law. As in Murdaugh v. Ryan, 724 F.3d 1104, 1121 (9th Cir. 2013) the state court in

this case simply did not analyze the federal due process issue in its otherwise thorough opinion. I

ER 60-61. Accordingly, Flowers has overcome the presumption that the claim was adjudicated

on the merits and AEDPA deference does not apply to his claim that the trial court violated his

right to due process when it failed to grant a mistrial due to Holton’s reference to him as a

parolee at large.

The Court of Appeal Opinion also unreasonably determined the facts under 28 U.S.C. §

2254(d)(2) when it: (1) found that the testimony about Flowers’s status as a parolee at large was

only a “passing” reference and (2) found that Holton’s testimony on that subject, which portrayed

Flowers as a violent and dangerous criminal, was not prejudicial.

When Detective Holton described Flowers as a “parolee at large” she was responding to

questions from the prosecutor about why she had selected a photograph of Flowers to include in

a photographic array. 2 ER 120-121. Detective Holton testified that the reason for her urgency in

creating the photo array was that Flowers was a danger to the public:

. . . I didn’t want to hesitate in getting this information out to the

public for a public safety reason that we have a parolee at large

who is possibly still armed in public. I felt that there was an

urgency in releasing that to the media.

2 ER 121.

Contrary to the Court of Appeal’s Opinion, Holton’s reference to Flowers’s parole status

was not made “in passing.” The point she sought to make was that she had to act quickly because

Flowers was a dangerous criminal who was “possibly still armed.” Her statement about his

parole status was the highlight of her testimony on that point, because it exposed Flowers’s prior

criminal record and the fact that he was “wanted” by law enforcement. She bolstered the sense of

alarm created by that information by pointing out that he was “possibly still armed.” For all of

these reasons, the Court of Appeal’s conclusion that Detective Holton only referred to Flowers’s

parole status in “passing” was an unreasonable determination of fact under 28 U.S.C. 2254(d)(2)

and this Court should review the claim de novo.

Holton’s Testimony Was Prejudicial

As this Court has repeatedly recognized, “the introduction of evidence of a defendant's

prior crimes risks significant prejudice.” Almendarez–Torres v. United States, 523 U.S. 224, 235

(1998); see also Spencer v. Texas, 385 U.S. 554, 560 (1967)(prior crimes evidence “is generally

recognized to have potentiality for prejudice”).

In this case, the information about Flowers’s parole status had been expressly excluded by

the trial court prior to trial because it was irrelevant and unduly prejudicial. The primary disputed

issue at trial was whether Flowers was correctly identified as the person who robbed the New

Day Health Center and kidnapped Zhang. Holton’s testimony that Flowers was a “parolee at

large” who was a danger to the public must have influenced the jury’s decision to convict him of

the charged counts based on her opinion that he was a danger to the community. See Bowen v.

Giurbino, 305 F.Supp.2d 1131, 1142-1144 (C.D.Cal. 2004)(granting habeas corpus relief where

prosecutor repeatedly mentioned defendant’s prior convictions for similar offenses during trial).

Although the trial court instructed the jury to disregard the evidence, the presumption that

the jurors followed the instruction is overcome by the probability that the jury could not have

possibly disregarded Holton’s testimony. Moreover, the statement that Flowers was a “parolee at

large” who was a danger to the public because he was “possibly still armed” was so alarming on

its face that no reasonable juror could have disregarded it. For all of these reasons, the error was

prejudicial and this Court should grant certiorari and grant the writ.

UNCERTIFIED ISSUES

Flowers’s Claim That His Right to Counsel Was Violated Because He Was

Not Permitted Confidential Jail Visits With His Lawyer Should Not Have

Been Dismissed As Procedurally Defaulted

The Marin County Jail Failed to Provide Flowers With Meaningful

Confidential Visits With Counsel Because Jail Staff And Other

Inmates Could Hear The Conversations Between Attorneys and Their

Clients In The Attorney Client Meeting Room

Prior to Flowers’s trial, on November 20, 2009, his counsel filed a motion with the Marin

County Superior Court titled “Motion to Dismiss for Illegal Survillance and Visual or Video or

Audio Invasion.” CT 490. 4 On December 8, 2009, the trial court held a hearing on the issue. 2

ER 145. During the hearing, Flowers’s counsel, Mr. Jon Rankin, argued that he was not able to

conduct confidential attorney client meetings with Flowers because the rooms where attorney

client visits were held in the jail were not private. 2 ER 145.

Rankin stated that “the situation” was “something we’ve all known about and we’ve all

just kind of put up with because we figured there was, you know, nothing we could do about it.”

2 ER 147. He described how correctional officers and inmates were able to hear attorney client

conversations. 2 ER 145-148. Rankin said that he and Flowers had “never, ever, had a discussion

between the two of us that wasn’t overheard by somebody.” 2 ER 148.

Rankin argued that the jail staff could not remedy the situation because that would be

“really expensive and really time consuming.” He asked the trial judge to dismiss the case. 2 ER

148.

The trial judge commented that he had become aware of the situation at Flowers’s

preliminary hearing and that he had told Flowers to file a noticed motion so that the court could

address it. 2 ER 150. The court also stated that it was “evident” that the interview room was not

“perfectly soundproof.” The court credited Rankin’s statement that he had been told verbatim

what he had said to another client by an inmate at the jail. 2 ER 154.

The motion was included in the “Confidential” documents section of the Clerk’s Transcript on

appeal. The records lodged in the district court contain an index that includes the motion but do

not appear to contain a copy of the motion.

However, the court found that Flowers’s statement that he was not able to discuss his case

with Rankin was “not completely believable.” 2 ER 155-156. The court found that a “reasonable

resolution” would be to allow Flowers to have an opportunity to meet with Rankin in a place

where the conversation would be “completely private.” The Court also found that there was no

violation of the Sixth Amendment. 2 ER 156. At the conclusion of the hearing, the trial court

ordered that Flowers be allowed a confidential conversation with his counsel. 2 ER 167-168.

On October 25, 2012, Flowers filed a petition for a writ of habeas corpus in the Marin

County Superior Court, alleging, among other claims, that his right to counsel under the Sixth

and Fourteenth Amendments was violated because he had been denied the opportunity for

meaningful and confidential attorney client meetings prior to trial. CR 49, Exhibit 3. On

December 18, 2012, the Marin County Superior Court issued a reasoned decision denying the

claim. The Superior Court held that “all of petitioner’s complaints, excluding his post-conviction

complaints, are issues that could have been raised on appeal.” 1 ER 52 citing People v. Tulare

County Superior Court, 129 Cal.App.4th 324 (2005). The Superior Court also found that Flowers

had failed to establish a “prima facie” case for relief. 1 ER 52.

On September 25, 2013, Flowers filed a habeas corpus petition in the California Supreme

Court. The petition again asserted that Flowers’s right to counsel had been violated because

Flowers had been denied an opportunity for meaningful and confidential conversations with his

counsel. 3 ER 189. However, the California Supreme Court petition included additional evidence

in support of Flowers’s claim. Flowers attached the declaration of Robert Scarbrough, a person

who had been incarcerated at the Marin County jail at the same time as Flowers. Scarbrough

stated in his declaration that his cell had been located next door to one of the attorney visiting

rooms. Scarbrough said he was able to hear conversations taking place in the attorney client

visiting room from his cell. He heard conversations that took place between Flowers and his

attorney. 2 ER 131.

Flowers’s claim also included a new declaration from his attorney, Jon Rankin. Rankin’s

declaration states that he knew that the attorney visitation rooms “permitted” others to hear his

confidential conversations with his clients. Rankin said that Flowers had repeatedly declined

visits citing his right against self incrimination and that he had refused to provide details

concerning his defense from the pre-trial stages and through jury trial. 2 ER 135. Flowers had

been worried that co-defendant Douglas Patterson was evesdropping on his conversations with

Rankin. 2 ER 135. On December 18, 2013, the California Supreme Court denied the petition

without comment or citation to authority. 1 ER 49.

On February 7, 2014, Flowers raised the same claim in his petition for a writ of habeas

corpus filed in the district court. CR 1. On August 22, 2014, the district court granted leave to file

consolidated amended petitions. CR 32. On March 18, 2015, the respondent moved to dismiss

Flowers’s claim that he was denied meaningful confidential visits with counsel on grounds that it

was procedurally defaulted. The respondent argued that the California Supreme Court’s silent

denial of the claim adopted the Superior Court’s decision dismissing the claim under the doctrine

set forth in In re Dixon, 41 Cal.2d 756, 759 (1953). CR 49, pp. 6-7, that the claim could have

been but was not raised on appeal.

The district court agreed with the respondent. It applied the Ylst “look through”

presumption and presumed that the California Supreme Court order denying the claim was based

on the same ground (the Dixon procedural bar) as the order of the Marin County Superior Court.

On March 9, 2016, the district court dismissed the claim on grounds that it was procedurally

barred. 1 ER 36-39.

As set forth in more detail below, the district court erred when it dismissed the claim as

procedurally barred, because the claim filed in the California Supreme Court relied on new

evidence, the declarations of Rankin and Scarborough, that were not presented in the Superior

Court petition. The declarations are strong evidence that the California Supreme Court did not

deny the claim on the same grounds as the Superior Court. Moreover, because the California

Supreme Court claim relied on evidence outside the record on appeal, the Dixon bar could not

apply. Accordingly, Flowers’s claim should be remanded to the district court for a decision on

the merits.

Because Flowers Included New Evidence Outside the Appellate Record to

Support His Claim Filed in the California Supreme Court The Superior

Court’s Dixon Bar Did Not Apply

Ordinarily, where, as here, a state supreme court has denied a claim summarily, a federal

habeas court “should ‘look through’ the unexplained decision to the last reasoned state-court

decision that does provide a rationale. It should then presume that the later unexplained decision

adopted the same reasoning.” Wilson v. Sellers, ___ U.S. ___138 S. Ct. 1188, 1192 (2018).

However, this presumption is rebuttable. Id. Specifically, the presumption may be rebutted by

“showing that the unexplained affirmance relied or most likely did rely on different grounds than

the lower state court’s decision, such as alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the record it reviewed.” Id.

Here, the Court should find that the “look through” presumption has been rebutted. New

evidence can transform a previously filed claim into a new one if the new evidence “substantially

improved” the “evidentiary posture” of the claim. Dickens v. Ryan, 740 F.3d 1302, 1320 (9th Cir.

2014) (en banc). Here, when Flowers filed his final state habeas corpus petition in the California

Supreme Court, he included new evidence (the declarations of Rankin and Scarbrough) that had

not been included in his Superior Court petition and that were not part of the state court record on

appeal. Therefore, the claim filed in the California Supreme Court was not the same claim

presented to the Superior Court and the “look through” presumption does not apply. Wilson, 138

S. Ct. at 1192.

Moreover, on this record, the Dixon bar plainly did not apply to Flowers’s new claim. The

Superior Court rejected Flowers’s claim under Dixon, which can bar a claim that should have

been but was not raised on direct appeal. In re Dixon, 41 Cal.2d 756 (1953).

Under California law, claims that rely on evidence that is outside the appellate record

must be raised by way of a petition for a writ of habeas corpus. See, e.g., People v. Lopez, 42

Cal. 4th 960, 972 (Cal. 2008). Because Flowers’s new claim filed in the California Supreme

Court relied on evidence outside the appellate record, it was properly raised by way of a petition

for a writ of habeas corpus and the Dixon bar does not apply.

II.

The Prosecutor Committed Prejudicial Misconduct When He Failed to

Disclose Impeachment Evidence Concerning Prosecution Witness Wei Chen

The Prosecutor’s Disclosure of Wei Chen’s Criminal History Was

Incomplete

Prior to trial, the prosecutor disclosed to defense counsel that Wei Chen, the only trial

witness who was a victim of the charged offenses, had suffered a “law enforcement contact” for a

charge of California Penal Code § 647(b) on February 6, 2009. 2 ER 179. Under that section, it is

a misdemeanor to solicit, agree to engage in or engage in an act of prostitution. Cal. Penal Code §

647(b).

The prosecutor’s trial brief describing his disclosure states “Case dismissed on June 16,

2009.” The brief also states that it was “the People’s position that “this misdemeanor law

enforcement contact” was “not an offense involving moral turpitude.” 2 ER 179. The prosecutor

argued that the incident could not be used to impeach Chen and that it was irrelevant. 2 ER 179.

Outside the presence of the jury, the trial court held a hearing on the prosecutor’s request

to prevent defense counsel from questioning Chen about the incident. The trial judge pointed out

that, at the preliminary hearing, the New Day Health Center witnesses would not admit that

“there was anything unusual going on” there and that the evidence of Chen’s “contact” with law

enforcement for prostitution might supply a good faith basis to believe “Ms. Chen’s done

something like this before.” 2 ER 175.

The prosecutor conceded that he would “agree” with the court “if we had some evidence

about the circumstances of the arrest” and “had it happened in Marin close in time to this

incident.” The prosecutor stated that he did not have a police report concerning the incident. 2

ER 176. The prosecutor said there was no evidence that the New Day Health Center was

involved in prostitution. 2 ER 176.

The trial judge replied:

One might suspect based on the evidence simply that their wearing negligees at

midnight on Christmas Eve, that was going on. I would call that evidence of that

potential fact.

2 ER 176.

The prosecutor replied: That being said, there is no evidence [Chen] was actually arrested

and charged with a crime involving moral turpitude. He clarified “I believe there was an offense

charged though.” 2 ER 176. However he then, again, referred to the matter as a “law

enforcement contact.” 2 ER 177.

The trial judge ruled that, whether or not the incident was a crime of moral turpitude, it

would be admissible at trial because he expected Chen would deny that she was engaging in

prostitution at the New Day Health Center on the date of the charged incident. 2 ER 177-178.

The judge held that, ordinarily, without a police report, counsel could not ask good faith

questions about the circumstances of a prior incident. The judge held that defense counsel could

frame his questions in terms of the statutory elements of the crimes that could be charged under

California Penal Code § 647(b). 2 ER 178.

During cross examination, Chen denied that the black male robber had exposed his penis

to her during the incident. RT 615. According to co-defendant Patterson, Flowers told Chen he

had something to show her and he exposed his penis. He asked Chen if she liked it and she said

“yes” and got down on her knees. RT 381. Defense counsel did not ask Chen any questions

concerning her previous law enforcement “contact” for prostitution. RT 612-621, 625-628.

Flowers’s habeas petition alleges that by way of independent post conviction

investigation, he learned that Wei Chen had in fact been charged with one count of prostitution

pursuant to Cal. Penal Code § 647(b) and one count of the infraction of performing or engaging

in the practice of massage without a permit or license to do so, pursuant to 6-32.030 of the Santa

Rosa City Code. Attached to his petition, Flowers included a copy of the misdemeanor complaint

filed against Chen in Sonoma County Superior Court on March 30, 2009. 2 ER 170. According

to the records obtained from the court file, Chen was referred to a diversion program. 2 ER 172.

On October 20, 2009, the Office of Diversion Services recommended that the case be dismissed.

2 ER 174.

Flowers also presented in his habeas petition a July, 2013, declaration of his trial counsel,

Jon Rankin. The declaration states that, as to the misdemeanor and infraction charges against

Wei Chen, “although the state attorney has denied any charges were filed or investigated and/or

police reports existed, under Brady clauses appellant requested criminal background information

of any moral turpitude crimes of testifying state witnesses. If such information exists it should

have been disclosed.” 2 ER 136.

Flowers Should Receive a New Trial Because The Undisclosed

Impeachment Information Was Material to the Outcome of His Trial

Flowers’s claim of prosecutorial misconduct arises under Brady v. Maryland, 373 U.S. 83

(1963), and its progeny. In Brady, the Supreme Court held that “suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the evidence is

material either to guilt or punishment, irrespective of the good faith or bad faith of the

prosecution.” Id. at 87.

Three elements must be established to prove a Brady violation. First, the evidence at issue

must be favorable to the accused, because it is either exculpatory or impeachment material. See

United States v. Bagley, 473 U.S. 667, 676 (1985). Second, the evidence must have been

suppressed by the State, either willfully or inadvertently. See United States v. Agurs, 427 U.S. 97,

110 (1976). Third, prejudice must result from the failure to disclose the evidence. See Bagley,

473 U.S. at 678.

The State's duty to disclose is affirmative; it applies “even though there has been no

request by the accused.” Agurs, at 107. To satisfy its duty, the State must disclose evidence

known to the prosecutor as well as evidence “ ‘known only to police investigators and not to the

prosecutor.’ ” Kyles v. Whitley, 514 U.S. 419, 438 (1995). Therefore, the prosecutor has an

obligation “to learn of any favorable evidence known to the others acting on the government's

behalf in [the] case, including the police.” Kyles, 514 U.S. at 437.

Suppressed evidence is prejudicial if it was “material” for Brady purposes. Comstock v.

Humphries, 786 F.3d 701, 710 (9th Cir. 2015). Evidence is “material if it could undermine

confidence in the verdict, i.e., if the evidence had been disclosed, there was a reasonable

probability of a different result. Id; Bagley, 473 U.S. at 676; Agurs, 427 U.S. at 111-112. The

withheld evidence must be analyzed “in the context of the entire record.” Agurs, 427 U.S. at 112.

Here, the withheld evidence, which consisted of the filed complaint against Chen and the

underlying information that supported the charge (which has never been disclosed) was material

for Brady purposes. Even if the trial prosecutor did not have that evidence at the time of trial, he

had an obligation to learn about it and to provide it to defense counsel. Moreover, Chen was the

only one of the three victims to testify at Flowers’s trial. Accordingly, the credibility of her

testimony was crucial to the prosecutor’s case against Flowers.

As the trial judge himself pointed out, Chen had not admitted engaging in prostitution.

Co-defendant Patterson testified that Flowers had exposed his penis during the robbery, asked

Chen if she liked and that she said “yes” and got down on her knees. If true, Chen’s response

supported defense counsel’s theory that she worked as a prostitute and that the New Day Health

Center was a brothel.

Chen had denied that Flowers exposed his penis during the incident. Defense counsel

could have questioned her with the withheld evidence that she had been charged with prostitution

and that she had engaged in the practice of massage without a license.

The fact that the victims were engaged in an illegal business, if proved at trial, would

have been particularly material to Flowers’s defense as to the kidnapping count. Defense counsel

argued that Wendy Zhang, who did not testify at trial, may have gone with the robbers willingly

as she told the woman who assisted her after the robbery not to call the police. RT 300.

Moreover, Zhang had begun working at the massage parlor on the same date of the charged

incident and defense counsel argued that she may have been a participant on a theory that it was

an “inside job.” 2 ER 87-88. For all of these reasons, the suppressed evidence of Wei Chen’s

criminal history was material to Flowers’s defense. This Court should issue a certificate of

appealability and grant the writ.

CONCLUSION

For the reasons stated above, this Court should grant certiorari and grant the writ.

Dated: August ___, 2019.

Respectfully submitted,

/s/ Stephanie M. Adraktas

_______________________

Stephanie M. Adraktas, #215323

Attorney For Joseph Flowers

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.