Petition for Writ of Certiorari — Paul Edward Duran, Petitioner v. Kathleen Allison, Secretary, California Department of Corrections and Rehabilitation

Supreme Court briefAug 14, 2020

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UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

MAY 15 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

PAUL EDWARD DURAN,

Petitioner-Appellant,

MATTHEW CATE, Sec. of Corn,

No.

19-55304

D.C. No. 2:16-cv-02666-AG-FFM

Central District of California,

Los Angeles

ORDER

Respondent-Appellee.

Before:

CANBY and CALLAHAN, Circuit Judges.

Appellant's petition for rehearing en banc (Docket Entry No. 13) is

construed as a motion for reconsideration with suggestion for rehearing en banc.

So construed, the motion is denied. See 9th Cir. R. 27-10; Gen. Ord. § 6.11.

No further filings shall be entertained in this closed case.

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

FEB 11 2020

MOLLY C. DWYER, CLERK

U S. COURT OF APPEALS

PAUL EDWARD DURAN,

Petitioner-Appellant,

MATTHEW CATE, Sec. of Corn,

No.

19-55304

D.C. No. 2:16-cv-02666-AG-FFM

Central District of California,

Los Angeles

ORDER

Respondent-Appellee.

Before:

LEAVY and MILLER, Circuit Judges.

The request for a certificate of appealability (Docket Entry Nos. 5 and 6) is

denied because appellant has not shown that “jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.”‘ Slack v. McDaniel, 529 U.S. 473, 484

(2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41

(2012); Miller-El v. Cockrell, 537 U.S'. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED.

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FILED

UNITED STATES COURT OF APPEALS

MAR 20 2020

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U S. COURT OF APPEALS

PAUL EDWARD DURAN,

Petitioner-Appellant,

MATTHEW CATE, Sec. of Corr.,

No.

19-55304

D.C. No. 2:16-cv-02666-AG-FFM

Central District of California,

Los Angeles

ORDER

Respondent-Appellee.

Before:

CLIFTON and NGUYEN, Circuit Judges.

Appellant’s motion for an extension of time to file a motion for

reconsideration (Docket Entry No. 10) is granted. Any motion for reconsideration

is due by April 20, 2020.

Case 2:16-cv-02666-AG-FFM Document 71 Filed 02/28/19 Page 1 of 1 Page ID #:3646

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

10 PAUL EDWARD DURAN,

Petitioner,

Case No. CV 16-2666 AG (FFM)

ORDER ACCEPTING FINDINGS,

CONCLUSIONS AND

RECOMMENDATIONS OF

UNITED STATES MAGISTRATE JUDGE

13 MATTHEW CATE,

Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire record in this

17 action, the Report and Recommendation of United States Magistrate Judge (“Report”)

18 (Docket No. 68), and the objections to the Report. Good cause appearing, the Court

19 concurs with and accepts the findings of fact, conclusions of law, and recommendations

20 contained in the Report after having made a de novo determination of the portions to

21 which objections were directed.

IT IS ORDERED that judgment be entered dismissing the Petition with prejudice.

24 DATED: February 28, 2019

ANDREW J. GUILFORD

United States District Judge

Case 2:16-cv-02666-AG-FFM Document 73 Filed 02/28/19 Page 1 of 2 PagelD#:3648

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

10 PAUL EDWARD DURAN,

Petitioner,

No. CV 16-2666 AG (FFM)

ORDER DENYING CERTIFICATE OF

APPEALABILITY

13 MATTHEW CATE,

Respondent.

Rule 11(a) of the Rules Governing § 2254 Actions provides:

(a) Certificate of Appealability. The district court must issue

or deny a certificate of appealability when it enters a final

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

the court may direct the parties to submit arguments on

whether a certificate should issue. If the court issues a

certificate, the court must state the specific issue or issues that

satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the

court denies a certificate, the parties may not appeal the denial

but may seek a certificate from the court of appeals under

Federal Rule of Appellate Procedure 22. A motion to

reconsider a denial does not extend the time to appeal.

28 III

Case 2:16-cv-02666-AG-FFM Document 73 Filed 02/28/19 Page 2 of 2 Page ID #:3649

Here, given the Court’s ruling on settled legal issues, the Court does not require

2 any arguments from the parties on whether a certificate of appealability (“COA”) should

issue.

Under 28 U.S.C. § 2253(c)(2), a COA may issue “only if the applicant has made a

5 substantial showing of the denial of a constitutional right.” Here, the Court dismissed

6 the petition on the merits. Thus, the Court’s determination of whether a COA should

7 issue here is governed by Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L. Ed.

8 2d 542 (2000), where the Supreme Court held that the showing required to satisfy

9 section 2253(c) after a habeas petition is denied on the merits is as follows:

The petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims

debatable or wrong.

13 529 U.S. at 484.

Here, the Court finds that reasonable jurists would not find the district court’s

15 decision debatable or wrong.

Accordingly, a COA is not appropriate with respect to the judgment entered

17 herein and is DENIED.

19 Dated: February 28, 2019

ANDREW J. GUILFORD

United States District Judge

Presented by:

IS/ FREDERICK F. MUMM

FREDERICK F.MUMM

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

PAUL EDWARD DURAN

No. CV 16-2666-AG (FFM)

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE

JUDGE

Petitioner,

MATTHEW CATE,

Respondent.

This Report and Recommendation is submitted to the Honorable Andrew J.

Guilford, United States District Judge, pursuant to 28 U.S.C. § 636 and General

Order 05-07 of the United States District Court for the Central District of

California. For the reasons discussed below, it is recommended that the First

Amended Petition be denied and the action be dismissed with prejudice.

I. PROCEEDINGS

Petitioner, Paul Edward Duran, a state prisoner in the custody of the

California Department of Corrections, filed a Petition for Writ of Habeas Corpus

by a Person in State Custody pursuant to 28 U.S.C. § 2254 on April 19, 2016. On

August 8, 2016, Respondent filed an answer to the Petition. That same date,

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Petitioner sought leave to amend the Petition by adding one exhausted claim and

seven unexhausted claims. The undersigned determined that Petitioner was

entitled to amend his Petition as a matter of course and permitted Petitioner to file

a First Amended Petition (“FAP”).

Petitioner subsequently requested that the undersigned stay these

proceedings under Rhines v. Weber, 544 U.S. 269, 274-75, 125 S. Ct. 1528, 161

L. Ed. 2d 440 (2005), and sought to add a ninth claim. Because Respondent did

not oppose Petitioner’s request to stay, the undersigned granted that request. The

undersigned, however, denied Petitioner’s request to amend the FAP because the

proposed ninth claim was “indisputably frivolous and without merit,” and, thus,

amendment would have been futile. (Docket No. 21.)

Petitioner then returned to state court to exhaust the seven unexhausted

claims that he asserted in his FAP. He eventually notified the undersigned that he

had, in fact, exhausted his previously unexhausted claims, and the undersigned,

therefore, lifted the stay in this matter.1 Petitioner subsequently filed a motion for

leave to amend the FAP. The motion, however, was denied because Petitioner

engaged in an unjustified, undue delay in asserting each of the proposed new

grounds for relief and because amendment would have been futile, as each of the

proposed new grounds for relief was meritless.

Thereafter, on.September 11, 2018, Respondent filed a return to the FAP.

On October 22, 2018, Petitioner filed a traverse,

Respondent contends that the majority of the grounds for relief that Petitioner

asserts in his FAP remain unexhausted. The undersigned, however, need not reach

that argument because, as explained herein, each of the allegedly unexhausted

grounds for relief clearly fails on its merits. See Cassett v. Stewart, 406 F.3d 614,

623-24 (9th Cir. 2005) (district court may dismiss unexhausted ground for relief

where it is “perfectly clear” that petitioner has not raised colorable federal ground

for relief).

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The matter, thus, stands submitted and ready for decision.

II. PROCEDURAL HISTORY

A Los Angeles County Superior Court jury convicted Petitioner of

carjacking, attempted carjacking, and attempted second degree robbery. The trial

court, subsequently, found that Petitioner had suffered a prior strike conviction.

Petitioner, thereafter, was sentenced to a state prison term of twenty-one years.

Petitioner appealed his conviction. On June 10, 2015, the California Court

of Appeal filed an unpublished opinion in which it affirmed the judgment .

Petitioner then filed a petition for review in the California Supreme Court, which

denied the petition without comment on August 26, 2015.

Petitioner then initiated this action. After obtaining an order staying this

action (see supra), Petitioner filed a series of state-court collateral attacks to his

conviction and sentence, the last of which was denied on June 21, 2017.

III. FACTUAL BACKGROUND

The following facts were taken verbatim from the California Court of

Appeal’s opinion affirming Petitioner’s conviction:

On the afternoon of July 21, 2013, as Melinda McLeod was parking her car

near her home, [Petitioner] approached her from behind, punched her in the back,

took her car keys and got into her vehicle and drove off. After [Petitioner] was

apprehended later that evening, McLeod identified him at a field show-up and

also identified him at trial.™ She testified that when he assaulted her, [Petitioner]

had been “kind of greasy and sweaty,” and his long hair (pulled back during trial)

was “down and sweaty.” McLeod also noticed [Petitioner] had “blocks of dark

tattoos” on his forehead. She could not identify them at the time because

[Petitioner] was dirty and sweaty, and she was afraid. She reported the incident

to the police. Later that day, [Petitioner] led police on a pursuit weaving in and

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out of traffic and into oncoming traffic. The officers ultimately abandoned the

vehicle pursuit, deeming it too dangerous in light of the amount of pedestrian

traffic. One officer involved in that pursuit testified he saw “666” tattooed across

[Petitioner’s] forehead, although he did not call that information in nor include it

in a report.

McLeod testified that, on a scale of 1 -to10, her degree of certainty that [Petitioner]

was the man who assaulted her was a “10.

At about 8:00 p.m. on July 21, 2013, Glenda Cerrato had just parked her

car. She left the front driver’s side door open and opened the rear door to get her

four year old out of the car. Just then, [Petitioner] drove toward Cerrato at a high

rate of speed, parked the vehicle and got out. He sat in the driver’s seat of

Cerrato’s car screaming at her to give him her keys. Cerrato grabbed her child

and ran inside her home. [Petitioner] ran away. At trial, Cerrato identified

[Petitioner] as the man who tried to take her keys. Cerrato testified that at the

time he tried to take her keys, [Petitioner’s] face was dirty and sweaty, his hair

was all over his face, and he had “something big” tattooed on his forehead.

Cerrato identified [Petitioner] later that evening during a field show-up.

Next, [Petitioner] approached Benjamin Hakimfar and demanded the keys

as Hakimfar approached his car. Hakimfar made up a story, telling [Petitioner]

the car was not his, but that he lived across the street and would bring his own car

over. [Petitioner] agreed; Hakimfar called 911 as he left the scene. Hakimfar,

who testified at trial that he was “positive” [Petitioner] had been the man he

encountered, described him at the time of their July 21, 2103, encounter as having

long dirty hair and “a lot of tattoos” on his face. He could not specify what the

tattoos were.

Later on the evening of July 21, 2013, [Petitioner] approached Ramon

Orozco as Orozco was removing an item from the trunk of his car. [Petitioner]

tried to take Orozco’s keys, slapped Orozco’s face and ran off. Orozco ran after

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[Petitioner], signaling [Petitioner’s] location to a helicopter overhead. As Orozco

rounded the comer, [Petitioner] punched him in the face. When the police arrived

at the scene they found [Petitioner] — very sweaty and dirty, with long greasy hair

— hiding in the bushes. One of the apprehending officers testified that

[Petitioner] had tattoos on his face but that he could not make out the details of

the tattoos at first because [Petitioner] was so dirty. Orozco testified that he saw

tattoos on [Petitioner’s] forehead, and that his long hair was loose at the time of

their encounter. Orozco identified [Petitioner] both at the scene and in court as

the man who stmck him and tried to take his keys. [Petitioner’s] defense,

explored by cross-examining prosecution witnesses, was that this was a case of

mistaken identity and he was not the person who committed the crimes alleged

against him. This contention was based on the fact that [Petitioner] has the digits

“666” prominently tattooed on his forehead and no complaining witness included

that information in his or her description to the police. After he was apprehended

and given his Miranda rights, [Petitioner] told one officer: “I took the car. I took

the car from the old lady.”

(Lodged Doc. No. 7 at 3-4 (footnote omitted).)

IV. PETITIONER’S CLAIMS

The trial court violated Petitioner’s rights under the Fourth

Amendment by refusing to suppress evidence obtained as the result of an illegal

search and seizure.

Petitioner did not voluntarily, knowingly, and intelligently waive his

right to counsel at trial because the trial court did not re-advise him of the dangers

of representing himself after the prosecution amended the information in a

manner that increased Petitioner’s criminal exposure.

Petitioner was incompetent at trial and lacked the mental capacity to

exercise his right to self-representation.

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The prosecutor violated Petitioner’s right to due process and a fair

trial by withholding exculpatory evidence.

Trial counsel deprived Petitioner of his Sixth Amendment right to

effective assistance of counsel by failing to challenge the pre-trial identifications

of Petitioner.

Petitioner was deprived of his right to effective assistance of counsel

on appeal because his appellate counsel failed to assert several meritorious

arguments on appeal and, instead, filed a no-merits brief, pursuant to People v.

Wende, 25 Cal. 3d 436, 441-42, 158 Cal. Rptr. 839, 600 P.2d 1071 (1979).

The prosecution violated Petitioner’s constitutional rights under

clearly established Supreme Court authority by failing to arraign him within

forty-eight hours of his arrest.

The trial judge engaged injudicial misconduct by quashing

Petitioner’s subpoena duces tecum that was directed at uncovering information

that would have been beneficial to Petitioner’s defense and appeal.

V. STANDARD OF REVIEW

The standard of review applicable to Petitioner’s claims herein is set forth

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

Penalty Act of 1996 (“AEDPA”) (Pub. L. No. 104-132, 110 Stat. 1214 (1996)).

See 28 U.S.C. § 2254(d); see also Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct.

2059, 138 L. Ed. 2d 481 (1997). Under AEDPA, a federal court may not grant

habeas relief on a claim adjudicated on its merits in state court unless that

adjudication “resulted in a decision that was contrary to, or involved an

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

Supreme Court of the United States,” or “resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented in

III

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the State court proceeding.”2 28 U.S.C. § 2254(d); see Williams v. Taylor, 529

U.S. 362, 402, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).

The phrase “clearly established Federal law” means “the governing legal

principle or principles set forth by the Supreme Court at the time the state court

renders its decision.”3 Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166,

155 L. Ed. 2d 144 (2003). However, a state court need not cite the controlling

Supreme Court cases in its own decision, “so long as neither the reasoning nor the

result of the state-court decision contradicts” relevant Supreme Court precedent

which may pertain to a particular claim for relief. Early v. Packer, 537 U.S. 3, 8,

123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam).

A state court decision is “contrary to” clearly established federal law if the

decision applies a rule that contradicts the governing Supreme Court law or

reaches a result that differs from a result the Supreme Court reached on

“materially indistinguishable” facts. Williams, 529 U.S. at 405-06. A decision

involves an “unreasonable application” of federal law if “the state court identifies

the correct governing legal principle from [Supreme Court] decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.

A federal habeas court may not overrule a state court decision based on the

federal court’s independent determination that the state court’s application of

2 In addition, under 28 U.S.C. § 2254(e)(1), factual determinations by a state

court “shall be presumed to be correct” unless the petitioner rebuts the

presumption “by clear and convincing evidence.”

3 Under AEDPA, the only definitive source of clearly established federal law is

set forth in a holding (as opposed to dicta) of the Supreme Court. See Williams,

529 U.S. at 412; see also Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S.

Ct. 2140, 158 L. Ed. 2d 938 (2004). Thus, while circuit law may be “persuasive

authority” in analyzing whether a state court decision was an unreasonable

application of Supreme Court law, “only the Supreme Court’s holdings are

binding on the state courts and only those holdings need be reasonably applied.”

Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

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governing law was incorrect, erroneous, or even “clear error.” Lockyer, 538 U.S.

at 75. Rather, a decision may be rejected only if the state court’s application of

Supreme Court law was “objectively unreasonable.” Id.

The standard of unreasonableness that applies in determining the

“unreasonable application” of federal law under Section 2254(d)(1) also applies

in determining the “unreasonable determination of facts in light of the evidence”

under Section 2254(d)(2). Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004).

Accordingly, “a federal court may not second-guess a state court’s fact-finding

process unless, after review of the state-court record, it determines that the state

court was not merely wrong, but actually unreasonable.” Id.

Where more than one state court has adjudicated the petitioner’s claims, the

federal habeas court analyzes the last reasoned decision. Barker v. Fleming, 423

F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803,

111S. Ct. 2590, 115 L. Ed. 2d 706 (1991) for presumption that later unexplained

orders, upholding judgment or rejecting same claim, rest upon same ground as the

prior order). Thus, a federal habeas court looks through ambiguous or

unexplained state court decisions to the last reasoned decision in order to

determine whether that decision was contrary to or an unreasonable application of

clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir.

2003).

VI. DISCUSSION

The Fourth Amendment Claims

Petitioner raises two separate grounds for relief that implicate his rights

under the Fourth Amendment. First, he contends that the trial court violated his

rights under the Fourth Amendment by refusing to suppress evidence obtained as

the result of an illegal search and seizure. Specifically, he appears to contend that

some or all of the. evidence gathered against him should have been excluded

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because that evidence was obtained as a result of, and tainted by, an unduly

suggestive photographic line-up that police used to secure an eyewitness’s

positive identification of Petitioner. According to Petitioner, law enforcement

somehow violated his Fourth Amendment rights by using the photographic line

up to obtain the positive identification. As such, any evidence derived from that

purported Fourth Amendment violation should have been excluded, just as the

trial court excluded the sole pre-trial identification obtained through use of the

photographic line-up. Second, Petitioner contends that the prosecution violated

clearly established Supreme Court authority by failing to arraign him within

forty-eight hours of his arrest. As explained below, Petitioner’s Fourth

Amendment claims are not cognizable on federal habeas review.

A state prisoner may not invoke a Fourth Amendment ground for relief on

federal habeas review if the prisoner had the opportunity for “full and fair”

consideration of the claim in state court. Stone v. Powell, 428 U.S. 465, 494, 96

S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). “The relevant inquiry is whether

petitioner had the opportunity to litigate his claim, not whether he did in fact do

so or even whether the claim was correctly decided.” Ortiz-Sandoval v. Gomez,

81 F.3d 891, 899 (9th Cir. 1996). The Ninth Circuit has stated that even if the

state court’s determination of the Fourth Amendment issues results in an incorrect

decision, federal habeas corpus actions shall not provide a remedy so long as the

petitioner was afforded a full and fair opportunity to litigate the issues in state

court. See Locks v. Summer, 703 F.2d 403, 408 (9th Cir. 1983).

California provides criminal defendants with a full and fair opportunity to

litigate Fourth Amendment claims through the procedures of California Penal

Code section 1538.5. Section 1538.5 permits a defendant to move to suppress

evidence on the ground that it was obtained in violation of the Fourth

Amendment. See Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990); see

also Locks, 703 F.2d at 408 (9th Cir. 1983); Mack v. Cupp, 564 F.2d 898, 901

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(9th Cir. 1977). Petitioner had the opportunity in state court to assert any

supposed Fourth Amendment violation arising from law enforcement’s use of the

photographic line-up and the purported delay in his arraignment.4 Accordingly,

he cannot maintain any Fourth Amendment challenge in this Court.5

Regardless, no Fourth Amendment violation occurred. Although Petitioner

maintains that the photographic line-up in some way violated his Fourth

Amendment rights, the admission of a witness’s pre-trial identification obtained

by using an impermissibly suggestive identification procedure violates the

accused’s Fifth Amendment right to due process. Simmons v. United States, 390

U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).

Moreover, even assuming that the use of the photographic line-up

somehow violated Petitioner’s rights under the Fourth Amendment, Petitioner

4 Petitioner’s claim of pre-arraignment delay implicates the Fourth Amendment,

15 which requires a determination of probable cause before or promptly after a

16 defendant’s arrest. Gerstein v. Pugh, 420 U.S. 103, 124-25, 95 S. Ct. 854, 43 L.

Ed. 2d 54 (1975); see also County ofRiverside v. McLaughlin, 500 U.S. 44, 56,

111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991) (holding in civil rights action that Fourth

Amendment requires judicial probable cause determinations to be made within

forty-eight hours of warrantless arrest, absent extraordinary circumstances).

5 Moreover, in his proposed claim, Petitioner appears to contend that he had a

constitutional right to have any and all evidence derived from the purported Fourth

21 Amendment violation excluded. But, as the Supreme Court has made clear, the

22 Constitution provides for no such right. See United States v. Calandra, 414 U.S.

23 338, 348, 94 S. Ct. 613, 620, 38 L. Ed. 2d 561 (1974) (explaining that

exclusionary rule is “a judicially created remedy designed to safeguard Fourth

24 Amendment rights generally through its deterrent effect, rather than a personal

25 constitutional right of the party aggrieved”); see also Bretz v. Crist, 546 F.2d

1336, 1341 (9th Cir. 1976) (noting that Stone's holding barring Fourth

26 Amendment challenges on federal habeas review where petitioner had full and fair

27 opportunity to contest admission of illegally obtained evidence in state court

“confirms that the exclusionary rule, while constitutionally inspired, is not

28 constitutionally required”).

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points to no evidence that was admitted at trial that could be considered fruit of

the purportedly improper photographic line-up. The photographic line-up was

excluded from trial, and the witness who viewed the photographic line-up (a

witness who was not one of Petitioner’s victims) did not testify. Although each

of Petitioner’s victims identified him as the culprit, the victims did not identify

him from a photographic line-up. Rather, they identified him at various field

show-ups. The photographic line-up had no impact on those identifications or on

any other evidence that was admitted against Petitioner.

Petitioner’s claim that a Fourth Amendment violation occurred in

connection with his arraignment is equally meritless. As the superior court noted

in rejecting this claim, Petitioner was arrested on December 3, 2013 and was

arraigned the next day, on December 4, 2013. In other words, he was arraigned

well-within forty-eight hours of his arrest.

Accordingly, Petitioner is not entitled to habeas relief with respect to either

of his Fourth Amendment claims.

Petitioner asserts two separate grounds for relief in relation to his decision

The Faretta6 Claims

to waive his right to counsel and, instead, represent himself at trial. First, he

contends that the trial court erred in failing to re-advise him of his right to

counsel after the prosecution amended the information against him to add an

allegation that he had suffered a prior strike conviction. Noting that this

amendment increased his criminal exposure, Petitioner maintains that he would

have opted to have counsel represent him if, in the face of the amendment, the

trial court had re-advised him of the dangers of representing himself.

Second, Petitioner contends that his initial waiver of his right to counsel

was involuntary because he was incompetent to stand trial and lacked the

6 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

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requisite mental capacity to exercise his right to self-representation. In support of

this contention, Petitioner asserts that, in 2004, he was diagnosed with

schizophrenia and that, in 2010, he suffered a head injury. Consequently,

according to Petitioner, he was not competent in 2014 to waive his right to

counsel.

Petitioner raised both of these claims before the Los Angeles County

Superior Court. The superior court rejected both claims on their respective

merits. First, the superior court noted that no authority existed for the proposition

that the prosecution’s amending of the information obligated the trial court to re

advise Petitioner of his right to counsel. Further, the superior court observed that,

in fact, the trial court advised Petitioner about the amended information and its

consequences, and Petitioner unequivocally stated that he understood those

consequences and wanted to proceed to trial. Citing these facts, the superior

court concluded that Petitioner’s contention that the trial court somehow failed to

inform Petitioner regarding the sentencing enhancement was “wholly without

merit.” (Lodged Doc. No. 11 at 7.)

Second, the superior court found that there was no evidence to support

Petitioner’s contention that he lacked the requisite mental capacity to waive his

right to counsel. In doing so, the superior court noted that Petitioner never

informed the trial court about his purported mental health history. Rather, he

signed a Faretta form setting forth his education (which included college) and

stating that he understood the charges against him, as well as the mens rea

requirements to prove the charged crimes. The superior court also recounted that

Petitioner had conducted himself “appropriately during the trial” and that he had

successfully moved to suppress a victim’s pre-trial identification of Petitioner as

the culprit of the charged crimes. {Id. at 8.) Finally, the superior court cited the

lack of any evidence to substantiate Petitioner’s claim that he was mentally

incompetent when he waived his right to counsel. As explained below, the

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superior court did not commit constitutional error in rejecting either of

Petitioner’s Faretta claims.

Factual Background

The Los Angeles Superior Court set forth the relevant facts underlying

Petitioner’s waiver of his right to counsel:

[Petitioner] made his Faretta motion on March 6, 2014,

before the Honorable Dennis J. Landin. [Petitioner]

completed a four-page form that advised him of his

rights and detailed the “dangers and disadvantages to

self-representation.” [Petitioner] initialed each box on

the form. One box said, “I understand that it is the

advice and recommendation of this Court that I do not

represent myself and that I accept court-appointed

counsel.” After [Petitioner] initialed and signed the

form, Judge Landin read the form to [Petitioner] in its

entirety. Among other warnings, Judge Landin told

[Petitioner] that, if he wished to represent himself, he

would not be able later to claim that he made a mistake

or that he received ineffective assistance of counsel.

Judge Mader [told] [Petitioner] about his increased

exposure when the People filed the amended information

on March 19, 2014. [Petitioner] insisted he wanted to go

to trial nevertheless. The transcript is attached to this

memorandum opinion. Judge Mader told [Petitioner],

“Mr. [Petitioner], what they have done is they have

added a strike at the end of the information, it’ss a strike

stri

that apparently occurred out of state in New Mexico in

-./Ann 5’ rr”

j rn

2000.

The court^then arraigned

[Petitioner]1 (HI the

amended information. Judge Mader then asked

[Petitioner] if there was “anything [he] want[ed] to say

about the new information/ [Petitioner] answered, “No,

your honor.” He then made a motion to dismiss the case

under Penal Code section 1385 for “lack of evidence.

Judge Mader denied that motion, then offered to

bifurcate [Petitioner’s] trial on the allegation of the prior

strike. The court then told [Petitioner], “Now, I want

you to understand that by adding a prior conviction it

changes what your maximum exposure is in going to

trial. Judge Mader asked the prosecutor, “What, Ms.

Sumabat-Graff, is his maximum exposure?” The

prosecutor answered that, after the addition of the strike

allegation, [Petitioner’s] possible exposure was about 23

to 27 years. Judge Mader told [Petitioner], ‘’So that’s

what the exposure is, sir. The People yesterday offered

you five years.” [Petitioner] responded, “Your honor,

there’s a constitutional violation involved in this case.”

The court said, “Sir, I don’t think you’re really grasping

5 t

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what’s going on here.” [Petitioner] responded, “I

understand exactly whaf s going on. That doesn’t —

we’re proceeding with the trial, your honor. I’m ready to

pick a jury.” The district attorney then said. “For the

record, your honor, I did the calculations. Actually, 32

years] is his exposure right now.” Judge Mader tola

[Petitioner]: “So the maximum is 32 years, sir. You

understand that, and you still want to go to trial?”

[Petitioner] answered, “Yes, your honor, I do.”

(Lodged Doc. No. 11 at 4-7.)

Federal Legal Standard and Analysis

(a)

Re-advisement of Right to Counsel

If Petitioner merely claims that the trial court erred in applying California

law regarding whether he had a right to be re-advised of his right to counsel, that

claim is not cognizable on federal habeas review. See Estelle v. McGuire, 502

U.S. 62, 68, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991) (“In conducting

habeas review, a federal court is limited to deciding whether a conviction violated

the Constitution, laws or treaties of the United States.”).

To the extent that Petitioner has alleged a Sixth Amendment violation, that

claim, likewise, fails. A defendant in a criminal action has a constitutional right

to be represented by counsel. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct.

2525, 2527, 45 L. Ed. 2d 562 (1975). “[T]he Supreme Court has also recognized

that a defendant has the reciprocal constitutional right to ‘proceed without

counsel when he voluntarily and intelligently elects to do so.” John-Charles v.

California, 646 F.3d 1243, 1248 (9th Cir. 2011) (quoting Faretta, 422 U.S. at

807).

The United States Supreme Court, however, has never held that a defendant

who is advised of his right to counsel and waives that right is entitled to

subsequently be re-advised of the right to counsel. Indeed, the Ninth Circuit has

observed the lack of Supreme Court precedent on that precise issue. See Becker

v. Martel, 472 F. App’x. 823, 824 (9th Cir. April 30, 2012) (noting that Supreme

Court “has not squarely addressed whether a substantial change in circumstances

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requires re-advisal of the right to counsel”); see also John-Charles, 646 F.3d at

1248-50 (noting lack of “clearly established Supreme Court precedent governing

a self-represented defendant’s request for reappointment of counsel after the

defendant has made a valid Faretta waiver of the right to counsel”).

Consequently, the Los Angeles County Superior Court’s rejection of Petitioner’s

claim could neither have been contrary to, nor an unreasonable application of,

clearly established federal law as determined by the Supreme Court. See Lopez v.

Smith,__U.S.__ ,135 S. Ct. 1,4, 190 L. Ed. 2d 1 (2014); Carey v. Musladin, 549

U.S. 70, 77, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006) (where Supreme Court

precedent gives no clear answer to question presented, “it cannot be said that the

state court ‘unreasonably] applied] clearly established Federal law’”).

Moreover, even under the de novo standard of review, Petitioner is not

entitled to relief. In the Ninth Circuit, “[a] competent election by the defendant to

represent himself and to decline the assistance of counsel once made before the

court carries forward through all further proceedings in that case unless

appointment of counsel for subsequent proceedings is expressly requested by the

defendant or there are circumstances which suggest that the waiver was limited to

a particular stage of the proceedings.” United States v. Springer, 51 F.3d 861,

864-65 (9th Cir. 1995). “[A] properly conducted Faretta colloquy need not be

renewed in subsequent proceedings unless intervening events substantially

change the circumstances existing at the time of the initial colloquy.” United

States v. Hantzis, 625 F.3d 575, 580-81 (9th Cir. 2010) (citing Springer, 51 F.3d

at 864-65); see also White v. United States, 354 F.2d 22, 23 (9th Cir. 1965) (no

Sixth Amendment violation where defendant was not advised of right to counsel

at re-sentencing after obtaining habeas relief where defendant previously had

provided valid Faretta waiver and did not indicate at re-sentencing that he wished

to withdraw that waiver).

III

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This precedent forecloses Petitioner’s challenge to the trial court’s failure

to re-advise him of his right to counsel. Although the prosecutor filed an

amended information after Petitioner opted to represent himself, that amendment

did not substantially change the circumstances existing at the time that Petitioner

exercised his right to represent himself. On the contrary, the only difference

between the original information and the amended information was that the

amended information alleged that Petitioner had suffered a prior serious felony

conviction within the meaning of the Three Strikes law, whereas the original

information contained no such allegation. As such, even under the Ninth

Circuit’s standard, Petitioner was not entitled at any point after opting to

represent himself to be re-advised of his right to counsel.

Regardless, there is no reason to believe that Petitioner would have elected

to invoke his right to counsel had he been re-advised of that right after the

prosecution amended the information. The record is clear that the trial court

advised Petitioner about the amended information and explained that, as a result

of the amendment, Petitioner faced a greater prison sentence than he did under the

original information. When the trial court asked Petitioner if he wished to say

anything about the amended information, Petitioner responded that he did not.

What is more, when the trial court expressed concern that Petitioner had not

grasped the disparity between his maximum potential sentence (which was thirty-

two years) and his potential sentence if he pleaded guilty (which was five years),

Petitioner cut off the trial court, insisting that he “understood] exactly what [was]

going on” and announced that he wished to “proceed[] with trial.” Given these

facts, there is no reason to believe that Petitioner would have relinquished his pro

per status if the trial court had attempted to re-advise him about the pitfalls of

representing himself at trial.

III

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(b)

Petitioner’s Competency

The mental competency standard for a criminal defendant waiving the right

to counsel is the same standard applicable for a criminal defendant’s competency

to stand trial and plead guilty. Moran v. Godinez, 509 U.S. 389, 399, 113 S. Ct.

2680, 125 L. Ed. 2d 321 (1993). For each, the standard for competence is

whether a defendant has a reasonable degree of rational understanding and has a

rational as well as factual understanding of the proceedings against him. Id.

Determining whether a criminal defendant is competent to waive his right

to counsel does not require inquiry into the defendant’s “technical legal

knowledge.” Id. Rather, as the Supreme Court has recognized, “the competence

that is required of a defendant seeking to waive his right to counsel is the

competence to waive the right, not the competence to represent himself.” Id.

Here, as the state superior court noted, there is no evidence in the record to

suggest that Petitioner was mentally incompetent to waive his right to counsel.

Aside from the fact that Petitioner failed to inform the trial court of his mental

health history, the mental health history that exists is limited to a 2004 diagnosis

and a head injury in 2010. However, “[n]ot all people who have a mental

problem are rendered by it legally incompetent.” Bouchillon v. Collins, 907 F.2d

589, 593 (5th Cir. 1990) (“We venture to guess that if every accused were to be

adjudged incompetent who was rendered depressed or apathetic at finding himself

incarcerated and indicted on felony charges, few would ever be tried”).

Moreover, Petitioner’s 2004 diagnosis fails to show that Petitioner was

experiencing any particular symptoms approximately ten years later. The same is

true regarding his 2010 head injury. The undersigned further notes that

Petitioner, when pressed by his appellate counsel on the issue of Petitioner’s

competence to waive counsel, was unable to provide any evidence suggesting that

he was incompetent to waive his right to counsel during the relevant time period.

0See Lodged Doc. 11 at 8 n.9.)

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For the foregoing reasons, the state superior court’s rejection of this claim

was neither an unreasonable application of, nor contrary to, clearly established

federal law as determined by the Supreme Court. The undersigned also notes

that, even under a de novo standard of review, Petitioner’s claim would fail

because, as discussed above, he has provided no evidence to show that he was

mentally incompetent to waive his right to counsel. Accordingly, he is not

entitled to habeas relief with repect to either of his Faretta claims.

In his third ground for relief, Petitioner contends that the prosecutor

The Prosecutor’s Discovery Obligations

violated Petitioner’s right to due process and a fair trial by withholding

exculpatory evidence. Although the nature of Petitioner’s claim is somewhat

unclear, he appears to seek information regarding why criminal charges were not

filed against him when he was first arrested. Accordingly, some factual

background is required. Petitioner was arrested on July 23, 2013, in connection

with the crimes underlying his conviction; however, he was not charged. Instead,

he was released the same day. Subsequently, on August 23, 2013, the district

attorney filed a felony complaint against Petitioner, and a superior court judge

signed a warrant for Petitioner’s arrest. He was arrested several months later on

December 3, 2013, and arraigned the next day.

In this action, Petitioner faults the prosecution for withholding information

regarding why the district attorney’s office issued a “district attorney’s reject on

July 24, 2013.” (FAP at 22.) According to Petitioner, the purportedly withheld

information would have shown that the witnesses who identified Petitioner were

unsure about their identifications and gave conflicting accounts regarding

whether Petitioner was the culprit. The Los Angeles County Superior Court

rejected this claim on the merits. As explained below, the superior court did not

commit constitutional error in doing so.

III

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The Due Process Clause requires the prosecution to disclose any evidence

that is material either to guilt or to punishment. Pennsylvania v. Ritchie, 480 U.S.

39, 57, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987); Brady v. Maryland, 373 U.S. 83,

87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). A Brady violation occurs when the

prosecution fails to disclose evidence that is “favorable to an accused” and

“material either to guilt or punishment.” Brady, 373 U.S. at 87. The due process

clause obligates the prosecution to disclose material exculpatory evidence on its

own motion regardless of whether there is a defense request. Kyles v. Whitley,

514 U.S. 419, 433, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).

Evidence is “favorable” if it is either exculpatory or impeachment

evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed.

2d 481 (1985). Evidence is “material ” “if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would

have been different.” Id. at 682 (observing a “reasonable probability” is a

probability sufficient to undermine confidence in the outcome of the case); see

Kyles, 514 U.S. at 436 (finding that, once error has been established, the error

necessarily had “substantial and injurious effect or influence in determining the

jury’s verdict”) (citing Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct.

1710, 123 L. Ed. 2d 353 (1993).

Here, Petitioner’s Brady claim fails for a variety of reasons. As an initial

matter, there is no reason to believe that a “district attorney reject” exists. To be

sure, charges were not filed against Petitioner for approximately one month after

his initial arrest. But that fact does not dictate that the district attorney’s office

issued some kind of memorandum “rejecting” filing charges against Petitioner

when he was first arrested.

Moreover, even assuming such a “district attorney reject” exists, there is no

reason to believe that it contained information that was exculpatory to Petitioner.

Although Petitioner asserts that the supposed “district attorney reject” would

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undermine the witness identifications of Petitioner, he provides no evidence

whatsoever to substantiate that assertion. See James v. Borg, 24 F.3d 20, 26 (9th

Cir. 1994) (“Conclusory allegations which are not supported by a statement of

specific facts do not warrant habeas relief.”); Jones v. Gomez, 66 F.3d 199, 205

(9th Cir. 1995) (habeas relief not warranted where claims for relief are

unsupported by facts). What is more, there is no reason to believe that any such

evidence exists. On the contrary, each of the victims positively identified

Petitioner as the culprit. And, all of the victims were certain of their respective

identifications. Further, after Petitioner was arrested, he corroborated at least one

of the victim’s accounts by stating, “I took the car. I took the car from the old

lady.” (Lodged Doc. No. 7 at 4.)

Accordingly, the state superior court’s rejection of this ground for relief

was neither an unreasonable application of, nor contrary to, clearly established

federal law as determined by the Supreme Court. 7, 8

Petitioner contends that both his trial counsel and his appellate counsel

The Performance of Trial Counsel and Appellate Counsel

failed to provide him with the effective assistance of counsel guaranteed by the

Fifth and Sixth Amendments. First, Petitioner faults his trial counsel for failing

to challenge several pre-trial witness identifications of Petitioner. Specifically,

Petitioner believes that counsel should have challenged McLeod’s identification

7 The undersigned also notes that Petitioner’s Brady claim would fail under the

de novo standard of review for the reasons explained above.

8 In a separate ground for relief, Petitioner contends that his appellate counsel

erred by failing to assert on appeal that the prosecution committed misconduct by

withholding information regarding the purported July 24, 2013 district attorney

reject. And, in yet another ground for relief, Petitioner asserts that the trial court,

committed misconduct by quashing a subpoena directed at obtaining information

about the supposed district attorney reject. Those claims fail for the reasons stated

above.

c &se 2:16-CV-02666-AG-FFM

Document 68 Filed 01/25/19 Page 21 of 28 Page ID #:3563

of Petitioner because she identified Petitioner in a field show-up. That procedure,

according to Petitioner, was flawed because McLeod’s description of the culprit

did not match Petitioner, who bears a prominent tattoo on his forehead. Thus, by

using a field show-up, where Petitioner was the only possible suspect, law

enforcement effectively ensured that McLeod would identify Petitioner, even

though his appearance did not match her description of the culprit.

Petitioner also faults trial counsel for failing at the preliminary hearing to

challenge the procedure that law enforcement used to obtain positive

identifications of Petitioner from third party witnesses to Petitioner’s crimes.

According to Petitioner, law enforcement used an impermissibly suggestive

photographic line-up in obtaining those identifications. Citing the fact that he,

himself, successfully moved to exclude the identifications resulting from the

photographic line-ups at trial, Petitioner concludes that counsel, likewise, should

have moved to exclude the identifications.

Petitioner, furthermore, contends that he was deprived of his right to

effective assistance of counsel on appeal because his appellate counsel failed to

assert several meritorious arguments on appeal and, instead, filed a no-merits

brief, pursuant to People v. Wende, 25 Cal. 3d 436, 441-42, 158 Cal. Rptr. 839,

600 P.2d 1071 (1979). According to Petitioner, appellate counsel should have

asserted the following claims of error of appeal: (1) Petitioner’s waiver of counsel

was invalid because, when he waived counsel, he did not know that the

prosecution would amend its information to add a prior strike allegation;9 (2)

Petitioner was deprived of his right to present oral argument in support of his

motion for new trial; (3) the bench warrant for Petitioner’s arrest was invalid

9 Petitioner also maintains that appellate counsel should have raised a claim of

prosecutorial misconduct based on the prosecution’s purported breach of an

agreement not to seek a prison sentence of more than eleven years and four

months.

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because it was based on inadmissible identification evidence;10 and (4) trial

counsel erred in failing to challenge several pre-trial witness identifications of

Petitioner.

The Los Angeles County Superior Court rejected each of the foregoing

allegations of attorney error. As explained below, the superior court did not

commit constitutional error in doing so.

The standards for assessing the performance of trial and appellate counsel

are the same. Evitts v. Lucey, 469 U.S. 387, 395-99, 105 S. Ct. 830, 83 L. Ed. 2d

821 (1985); Cockett v. Ray, 333 F.3d 938, 944 (9th Cir. 2003). As to each

allegation of error, petitioner bears the burden of establishing both components of

the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). Under the first prong of that test, the petitioner

must prove that his attorney's representation fell below an objective standard of

reasonableness. Id. at 687-88. To establish deficient performance, the petitioner

must show his counsel “made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687;

Williams v. Taylor, 529 U.S. 362, 391, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).

In reviewing trial counsel’s performance, however, courts “strongly presume[]

[that counsel] rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690;

Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003). Only

if counsel’s acts and omissions, examined within the context of all the

surrounding circumstances, were outside the “wide range” of professionally

competent assistance, will petitioner meet this initial burden. Kimmelman v.

10 Petitioner also faults appellate counsel for failing to argue that the prosecution

committed misconduct by relying on impermissible eyewitness identification

procedures in obtaining the bench warrant and admitting certain witness

identification testimony at trial.

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Morrison, 477 U.S. 365, 386, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986);

Strickland, 466 U.S. at 690.

Under the second part of Strickland's two-prong test, the petitioner must

show that he was prejudiced by demonstrating a reasonable probability that, but

for his counsel’s errors, the result would have been different. 466 U.S. at 694.

The errors must not merely undermine confidence in the outcome of the trial or

the appeal, but must result in a proceeding that was fundamentally unfair.

Williams, 529 U.S. at 393 n.17; Lockhart, 506 U.S. at 369. The petitioner must

prove both deficient performance and prejudice. A court need not, however,

determine whether counsel's performance was deficient before determining

whether the petitioner suffered prejudice as the result of the alleged deficiencies.

Strickland, 466 U.S. at 697.

Trial Counsel

Petitioner cannot satisfy either prong of the Strickland test with regards to

his allegations of trial counsel error. First, there was nothing improper about law

enforcement’s use of a field show-up to obtain McLeod’s positive identification

of Petitioner. Courts have routinely refused to find anything impermissibly

suggestive when police have used procedures similar to those used in Petitioner’s

case. See United States v. Meyer, 359 F.3d 820, 824-25 (6th Cir. 2004) (witness’s

pre-trial identifications of defendant as man who robbed him were not

impermissibly suggestive, as would require suppression of witness’s in-court

identification, even though witness was shown single photograph of defendant);

Herrera v. Collins, 904 F.2d 944, 947-48 & 947 n.2 (5th Cir. 1990) (holding that

pretrial identification based on single photograph of defendant was admissible

where no substantial likelihood of misidentification existed).

Indeed, both the Supreme Court and the Ninth Circuit have recognized that

one person field show-ups, without more, do not violate due process. Neil v.

Biggers, 409 U.S. 188, 198-99, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972) (stating

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that results of one-person field show-up identification was admissible, even

though police did not exhaust available avenues to secure multi-person line-up

before presenting defendant at field line-up); Stovall v. Denno, 388 U.S. 293, 302,

87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), overr’d on other grounds by Griffith v.

Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987); United States v.

Kessler, 692 F.2d 584, 585 (9th Cir. 1982) (“[S]how-ups are not objectionable

unless the procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.”); United States v. Kessler,

692 F.2d 584, 585-86 (9th Cir. 1982) (stating that “show-up is a permissible

means of identification without requiring a showing of exigency”).

Moreover, even if the field show-up at issue, here, was unduly suggestive,

the resulting identification evidence would not have been excluded. See Manson

v. Brathwaite, 432 U.S. 98, 113-14, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977);

Biggers, 409 U.S. at 199-200. In determining whether an identification obtained

by an unduly suggestive procedure is admissible, courts consider the following

factors: (1) the witness’s opportunity to observe the individual at the time of the

crime; (2) the degree of attention focused on the individual by the witness; (3) the

accuracy of the witness’s description of the individual prior to the challenged

procedure; (4) the level of certainty demonstrated by the witness during the

challenged procedure; and (5) the elapsed time between the crime and the

identification procedure. Biggers, 409 U.S. at 199-200.

Here, the relevant factors favored admission of McLeod’s identification.

McLeod was positive that Petitioner was the person who punched her and stole

her car. Although she did not identify the precise nature of Petitioner’s tattoo on

his forehead, she nevertheless noticed that he had “blocks of dark tattoos” on his

forehead. And, she immediately identified Petitioner at the field show-up. What

is more, she identified Petitioner on the same day on which the crime occurred.

More importantly, Petitioner effectively confessed to stealing McLeod’s car.

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Indeed, when he was arrested, he stated, “I took the car. I took the car from the

old lady. »9ii Thus, there was no basis to challenge McLeod’s identification and,

consequently, counsel could not have performed unreasonably in failing to do so.

See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d

305 (1986); Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (counsel’s

failure to raise meritless argument does not constitute ineffective assistance).

Second, assuming counsel erred in failing to challenge the identifications

obtained through law enforcement’s use of photographic six-packs, Petitioner can

show no resulting prejudice. Representing himself, Petitioner successfully moved

the trial court to exclude the identifications obtained through use of the

photographic six-packs. Thus, they had no impact on the trial proceedings or the

jury’s verdict.

Accordingly, Petitioner is not entitled to habeas relief with respect to either

of his allegations of trial counsel error.12

Appellate Counsel

None of Petitioner’s allegations of error on appellate counsel’s part

warrants habeas relief. First, as explained above, there was no basis upon which

to challenge Petitioner’s competence to waive his right to counsel, and, moreover,

he was not entitled to be re-advised of his right to counsel after the prosecution

amended the information to add a prior strike allegation. {See supra) Further,

11 When sentencing Petitioner, the trial court noted that McLeod was an “elderly

woman.” (Lodged Doc. No. 11 at 3 n.5.)

12 Petitioner also contends that his appellate counsel erred in failing to assert on

appeal a claim that trial counsel erred in failing to challenge the pre-trial witness

identifications of Petitioner. In addition, Petitioner maintains that appellate

counsel erred in failing to argue that the prosecution committed misconduct by

relying on impermissibly suggestive identification eyewitness procedures to

introduce certain witness identification testimony at trial. Those claims fails for

the reasons stated above.

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contrary to Petitioner’s allegations, the prosecution did not breach any agreement

not to amend the information to seek a longer prison sentence than that set forth

in the original information because no such agreement existed.

Second, Petitioner suffered no prejudice from counsel’s failure to assert

that Petitioner was deprived of his right to present oral argument in support of his

motion for new trial. The Supreme Court has never recognized a constitutional

right to present oral arguments in connection with a new trial motion. Indeed,

other than the right to orally deliver final argument or summation, the Supreme

Court has declined to imply the existence of “a constitutional right to oral

argument at any stage of the trial or appellate process.” Herring v. New York, 422

U.S. 853, 863 n.13, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1974). Further, Petitioner

does not identify any argument he would have made orally that would have

persuaded the trial court to grant his motion for new trial. As such, his claim fails

as wholly conclusory. See Borg, 24 F.3d at 26; Jones, 66 F.3d at 205 {supra).

Third, there is no merit to Petitioner’s claim that the bench warrant for his

arrest was invalid. All three victims identified Petitioner as the person who

carjacked, or attempted to carjack, them. Moreover, Petitioner confessed to

stealing one of the victim’s car. Thus, irrespective of the identifications that were

excluded due to the purportedly impermissibly suggestive photographic line-ups,

there was ample probable cause to support Petitioner’s arrest.13

In short, Petitioner’s allegations of attorney error are meritless.

Consequently, the superior court’s rejection of Petitioner’s allegations of attorney

III

In addition, Petitioner maintains that appellate counsel erred in failing to argue

that the prosecution committed misconduct by relying on impermissibly

suggestive eyewitness identification procedures in obtaining the bench warrant

against him. That claim fails for the reasons stated above.

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error was neither an unreasonable application of, nor contrary to, clearly

established federal law as determined by the Supreme Court.14

VII. RECOMMENDATION

The Magistrate Judge therefore recommends that the Court issue an order:

(1) approving and adopting this Report and Recommendation; and (2) directing

that judgment be entered denying the First Amended Petition on the merits with

prejudice.

DATED: January 25, 2019

/S/ FREDERICK F. MUMM

FREDERICK F. MUMM

United States Magistrate Judge

14 The undersigned also notes that Petitioner’s allegations of attorney error would

fail under the de novo standard of review for the reasons explained above.

Cfese 2:16-cv-02666-AG-FFM Document 68 Filed 01/25/19 Page 28 of 28 Page ID #:35T0

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals,

but are subject to the right of any party to timely file Objections as provided in

the Local Rules Governing the Duties of the Magistrate Judges, and review by the

District Judge whose initials appear in the docket number. No Notice of Appeal

pursuant to the Federal Rules of Appellate Procedure should be filed until entry

of the Judgment of the District Court.

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.