Petition for Writ of Certiorari — Willie Tyrone Shipley, Petitioner v. D. Holbrook

Supreme Court briefOct 17, 2022

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UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

JUL 25 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

WILLIE TYRONE SHIPLEY

Petitioner-Appellant,

D. HOLBROOK,

No.

21-56386

D.C. No. 2:20-cv~02496-JAK-LAL

Central District of California,

Los Angeles

ORDER

Respondent-Appellee.

Before:

IKUTA and LEE, Circuit Judges.

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

because appellant has not made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537

U.S. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Petitioner,

Case No. LACV 20-2496-JAK (LAL)

WILLIE T. SHIPLEY, JR.,

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

D. HOLBROOK, Warden, CSP-CVSP,

Respondent.

This Report and Recommendation is submitted to the Honorable John A. Kronstadt,

United States District Judge, under the provisions of 28 U.S.C. § 636 and General Order 194 of

the United States District Court for the Central District of California.

PROCEEDINGS

On March 16, 2020, Willie T. Shipley, Jr. (“Petitioner”) filed a Petition for Writ of

Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). On

March 15, 2021, Respondent filed an Answer to the Petition.1 On April 8, 2021, Petitioner filed

a Traverse. Thus, this matter is ready for decision.

1 In the interim, the previously assigned magistrate judge granted Petitioner’s request to stay these proceedings

while he exhausted some of his claims in the state courts.

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II.

PROCEDURAL HISTORY

On September 20, 2016, Petitioner was convicted after a jury trial in the Los Angeles

County Superior Court of seven counts of forcible rape,2 two counts of sexual penetration by a

foreign object,3 one count of kidnapping to commit rape,4 one count of forcible oral copulation,5

and one count of first degree residential robbery.6 (Volume 2 Clerk’s Transcript (“CT”) at 457-

61, 484, 486, 488.) On November 10, 2016, the trial court sentenced Petitioner to a state prison

term of six years plus 125 years to life. (2 CT at 473-80, 484-507.)

Petitioner appealed his convictions to the California Court of Appeal. (Lodgments 14-

16.) On September 21, 2018, the California Court of Appeal affirmed the judgment. (Lodgment

3.)

Petitioner then filed a petition for review in the California Supreme Court. (Lodgment 4.)

On December 12, 2018, the California Supreme Court denied the petition. (Lodgment 5.)

Next, Petitioner filed a habeas corpus petition in the California Court of Appeal.

(Lodgment 6.) On September 5, 2019, the California Court of Appeal denied the petition.

(Lodgment 7.)

Then, Petitioner filed a habeas corpus petition in the California Supreme Court.

(Lodgment 8-9.) On February 11,2020, the California Supreme Court denied the petition.

(Lodgment 9.)

Finally, Petitioner filed a second habeas corpus petition in the California Supreme Court.

(Lodgment 17.) On January 20, 2021, the California Supreme Court denied the petition.

(Lodgment 18.)

///

2 Cal. Penal Code § 261(a)(2).

3 Cal. Penal Code § 289(a)(1).

4 Cal. Penal Code § 209(b)(1).

5 Cal. Penal Code § 288a(c)(2)(A).

6 Cal. Penal Code §211.

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III.

SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL

This Court has independently reviewed the state court record. Based on this review, this

Court adopts the factual discussion of the California Court of Appeal’s opinion on direct review

in this case as a fair and accurate summary of the evidence presented at trial:7

1. Prosecution Case

a. Victim Testimony

Monica F. met appellant at a gas station in April or May 2015. They

exchanged telephone numbers. A month later, appellant texted Monica to invite

her to a “big party” in Hollywood. When she and her friends arrived at the

location, there were only three people there, plus appellant. Monica sat and talked

with appellant by the pool, but when he exposed himself and attempted to kiss

her, she said “no” and that she did not want to “do that.” Later, under the guise of

showing her where the bathroom was, appellant led her to a bedroom, shut the

door, sat her down on the bed, threw himself on top of her and started kissing her

and touching her vaginal area. His fingers penetrated her. Monica again said she

did not want to have sex with him. Appellant lifted himself, took his shirt off and

slammed a gun down on a table near the bed. Monica said “no” again, but

became afraid when appellant reached in the direction of the gun. She closed her

eyes and felt appellant’s penis inside her. She told him to get off and managed to

push him off after several attempts. She told him he needed to use a condom.

When appellant left to find one, Monica went into the bathroom and discovered

her cell phone was dead. She went downstairs, but could not convince her friends

to leave. Monica ran up to the bedroom to retrieve her cell phone. Appellant

7 “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary .

.. Miller-El v. Cockrell. 537 U.S. 322,340, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (citing 28 U.S.C. §

2254(e)(1)). Thus, Ninth Circuit cases have presumed correct the factual summary set forth in an opinion of the

state appellate court under 28 U.S.C. §2254(e)(l). See, e.g.. Moses v. Payne, 555 F.3d 742, 746 n.l (9th Cir. 2009)

(citations omitted).

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followed her, again placed the gun on the bedside table, and forced her to have

intercourse, this time using a condom. When she told him to stop and tried to turn

away, he gestured toward the gun. Monica did not scream for help because she

was afraid appellant would hurt her friends. After ejaculating, appellant

unsuccessfully tried to force Monica to perform oral sex.

After sexually assaulting Monica, appellant accused her of taking money

from him and slammed the gun down on a counter. Later, when Monica and her

friends tried to leave, he blocked the doorway, pushed her and grabbed her purse.

Monica borrowed her friend’s phone to call 911. When Monica got her purse

back, after police arrived and arrested appellant, her cell phone and $90 were

missing.

Sendy C. testified that on July 19, 2014, she went to a bar in downtown

Los Angeles with her two cousins. She met appellant, and they danced. He

bought her a drink. When the bar was closing, she went with appellant and his

friends to a nearby pizza restaurant. Afterward, she got into appellant’s friend’s

car expecting to be taken back to the bar to meet her cousins. Instead, the driver

took her to appellant’s apartment. During the drive, Sendy repeatedly asked to be

dropped off. She called her boyfriend, but when she tried to talk, appellant

grabbed her phone and started acting angry. He told her to “shut up.” He also

prevented her from calling 911 by grabbing her phone. When appellant’s friend

parked near appellant’s apartment, Sendy tried to run. Appellant grabbed her and

Sendy, who was only four feet, eleven inches tall, became afraid. She went with

appellant inside his apartment. Once inside, she said “you don’t have to do this.”

Appellant pulled her pants and underwear down and put on a condom. Sendy ran

screaming to the door, but could not open it. Appellant told her to “shut up” and

put his hand over her mouth. He grabbed her and threw her on the floor. She

stopped screaming because she “didn’t want to die.” Appellant then put her on

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his bed face down, and put his penis in her vagina while she quietly cried.

Appellant stayed on top of her after he ejaculated. Sendy did not move because

she did not want to anger him. A short time later, appellant had intercourse with

her again.

At the preliminary hearing,[8] Graciela V. testified that she met appellant

in October 2010, when she was 21, on a street near her gym. She gave him her

telephone number and they called and texted each other in the weeks that

followed. On October 19, 2010, she called appellant because she was upset and

wanted to talk to someone, and went with him to his house. There were other

people in the house at the time. Graciela and appellant went to his room to

continue their conversation. Appellant suddenly became aggressive and grabbed

her. Graciela told him to stop and said she wanted to go home. Appellant pushed

her to the floor. She managed to get away from him and run to the door, but it

was locked. She screamed and pounded on it. Appellant told her to shut up,

called her “bitch” and “whore,” and pushed her down on the bed. She begged

him to stop. He forced her to perform oral sex on him. He pulled off her

sweatpants and put his fingers inside her vagina, before inserting his penis into

her vagina. She cried and repeatedly asked him to leave her alone. After he

finished, he continued to behave aggressively toward her; she was afraid he was

going to beat her but instead, he showed her some paperwork that he claimed

established he was disease free.

Officers Christian Olivos and Jose Vizcarra, who interviewed Graciela on

October 19, recalled she was shaken and crying. Shamsah Barolia, a nurse

practitioner, testified she conducted an examination of Graciela early in the

morning on October 20, 2010. Graciela told Barolia that appellant called her a

8 As discussed below, the prosecution team could not locate Graciela at the time of trial. The trial court ruled that

she was unavailable and allowed the prosecution to introduce her preliminary hearing testimony at trial.

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“bitch,” told her to “shut up,” forced her head to his penis, pulled down her

sweatpants, and put his penis inside of her.

Kassie M. testified that she met appellant at a gas station in Lakewood in

January 2009, when she was 22. They exchanged telephone numbers. Appellant

called and invited Kassie to a “get together” at his apartment. Appellant was

alone in his apartment when she arrived with her baby. After they bought and

drank some brandy, appellant followed her into the bathroom and started fondling

her. Kassie objected, telling him she was not there for that. But he pushed her

toward the mirror, pulled down her pants and put his penis in her vagina. After

appellant ejaculated, Kassie went to attend to her baby. She did not believe

appellant would let them leave. Later, appellant grabbed her by the hair, pushed

her down on a mattress and had intercourse with her again. Kassie started crying.

She did not fight because she was concerned about what might happen to her

baby. Kassie went to the police to report appellant’s conduct, but after appellant

called her, apologized and said he did not want his life ruined, she told the police

she wanted to drop the charges.9

b. Evidence of Uncharged Offense

Gloria Tatum testified that on October 26, 2006, Adrianna O., her

roommate, came home “shocked” and “in another world.” Adrianna said: “They

raped me.” Tatum asked “who?” Adrianna became teary and said “Junior.”

Tatum knew appellant as “Junior.” Tatum and her sister went to appellant’s

home, a block away, to confront him, but he did not answer the door. Tatum

called the police. The officers who responded, Brian Churchill and Christopher

Jongsomjit, testified and described Adrianna as “very upset” and crying.

9 All four women immediately told friends or family and law enforcement personnel that they had been raped by

appellant, and all underwent sexual assault examinations, which included taking swabs for forensic examination.

Appellant’s DNA was found on or inside all four women. Appellant told the nurse who swabbed him to obtain

DNA fortesting purposes that he “finger-banged” Graciela.

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Adrianna was taken for a rape exam. Page Courtemanche, the nurse practitioner

who examined Adrianna, testified that Adrianna was tearful and shaking. She had

abrasions and lacerations on her neck and arm, and tenderness in her hip.

Courtemanche took swabs of secretions on Adrianna’s body. The swabs were

tested and appellant’s DNA was found.

[2]. Defense Evidence

Appellant’s stepfather, Calvin Robinson, testified that in October 2010, he

was living with appellant. He recalled appellant coming home with a young

woman, introducing her, and taking her to his bedroom. The woman came

downstairs once to use the bathroom and then returned upstairs. Robinson heard

no yelling, door pounding or other commotion. Robinson testified that

appellant’s bedroom door had no locks or latches.

(Lodgment 3 at 3-8 (footnote omitted).)

IV.

PETITIONER’S CLAIMS

Petitioner raises the following claims for habeas corpus relief:

(1) The trial court violated Petitioner’s rights to due process and confront witnesses by

allowing the admission at trial of a victim’s preliminary hearing testimony;

(2) The trial court violated Petitioner’s rights to due process, a fair trial, and confront

witnesses by allowing the admission of evidence of an uncharged crime under

California Evidence Code section 1108;

(3) Petitioner’s trial counsel operated under a conflict of interest;

(4) Petitioner was denied his right to an impartial jury; and

(5) The trial court violated Petitioner’s right to self-representation by denying his motion

pursuant to People v Marsden.10

ill

10 2 Cal.3d 118(1970).

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STANDARD OF REVIEW

28 U.S.C. S 2254

The standard of review that applies to Petitioner’s claims is stated in 28 U.S.C. § 2254, as

amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):

(d)

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

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

adjudication of the claim—

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

(1)

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

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

Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.

28 U.S.C. § 2254(d). If these standards are difficult to meet, it is because they were meant to be.

As the United States Supreme Court stated in Harrington v. Richter.11 while the AEDPA “stops

short of imposing a complete bar on federal court relitigation of claims already rejected in state

proceedings[,]” habeas relief may be granted only “where there is no possibility fairminded

jurists could disagree that the state court’s decision conflicts” with United States Supreme Court

precedent. Further, a state court factual determination must be presumed correct unless rebutted

by clear and convincing evidence.12

Sources of “Clearly Established Federal Law”

According to Williams v. Tavlor.13 the law that controls federal habeas review of state

court decisions under the AEDPA consists of holdings (as opposed to dicta) of Supreme Court

11 562 U.S. 86, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624(2011).

12 28 U.S.C. § 2254(e)(1).

U 529 U.S. 362, 412, 120 S. Ct. 1495, 146, L. Ed. 2d 389 (2000).

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decisions “as of the time of the relevant state-court decision.” To determine what, if any,

“clearly established” United States Supreme Court law exists, a federal habeas court also may

examine decisions other than those of the United States Supreme Court.14 Ninth Circuit cases

“may be persuasive. ”15 A state court’s decision cannot be contrary to, or an unreasonable

application of, clearly established federal law, if no Supreme Court decision has provided a clear

holding relating to the legal issue the habeas petitioner raised in state court.16

Although a particular state court decision may be both “contrary to” and an

“unreasonable application of’ controlling Supreme Court law, the two phrases have distinct

meanings under Williams.

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

applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs

from the result the Supreme Court reached on “materially indistinguishable” facts.17 If a state

court decision denying a claim is “contrary to” controlling Supreme Court precedent, the

reviewing federal habeas court is “unconstrained by § 2254(d)(1). ”18 However, the state court

need not cite or even be aware of the controlling Supreme Court cases, “so long as neither the

reasoning nor the result of the state-court decision contradicts them. ”19

State court decisions that are not “contrary to” Supreme Court law may be set aside on

federal habeas review only “if they are not merely erroneous, but ‘an unreasonable application’

of clearly established federal law, or based on ‘an unreasonable determination of the facts. >”20

14 LaJoie v. Thompson. 217 F.3d 663, 669 n.6 (9th Cir. 2000).

15 Duhaime v. Ducharme. 200 F.3d 597, 600 (9th Cir. 1999).

16 Brewer v. Hall. 378 F.3d 952, 955 (9th Cir. 20041: see also Carev v. Musladin. 549 U.S. 70, 77, 127, S. Ct. 649,

649, 166 L. Ed. 2d 482 (2006) (in the absence of a Supreme Court holding regarding the prejudicial effect of

spectators’ courtroom conduct, the state court’s decision could not have been contrary to or an unreasonable

application of clearly established federal law).

1? Early v. Packer. 537 U.S. 3,8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam) (citing Williams. 529 U.S.

at 405-06).

18 Williams. 529 U.S. at 406.

19 Early, 537 U.S. at 8.

29 Id at 11 (citing 28 U.S.C. § 2254(d)).

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Accordingly, this Court may reject a state court decision that correctly identified the applicable

federal rule but unreasonably applied the rule to the facts of a particular case.2’ However, to

obtain federal habeas relief for such an “unreasonable application,” a petitioner must show that

the state court’s application of Supreme Court law was “objectively unreasonable” under

Woodford v. Visciotti.22 An “unreasonable application” is different from merely an incorrect

one. 23

Where, as here with respect to Claims One and Two, the California Supreme Court

denied the claim without comment, the state high court’s “silent” denial is considered to be “on

the merits” and to rest on the last reasoned decision on the claim.24 In the case of Claims One

and Two, this Court looks to the grounds the California Court of Appeal stated in its decision on

direct review.25

Where, as here with respect to Claims Three through Five, the state courts have supplied

no reasoned decision for denying the petitioner’s claim on the merits, this Court must perform an

“‘independent review of the record’ to ascertain whether the state court decision was objectively

unreasonable. »26

///

III

21 See Williams. 529 U.S. at 406-10,413.

22 537 U.S. 19, 27, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002).

23 Williams. 529 U.S. at 409-10.

24 See Ylst v. Nunnemaker. 501 U.S. 797, 803-06, 111 S. Ct. 2590, 115 L. Ed. 2d 706n99n: Wilson v. Sellers.

U.S.

138 S. Ct. 1188, 200 L. Ed. 2d 530 (2018).

25 See Robinson v. Ignacio. 360 F.3d 1044, 1055 (9th Cir. 2004) (federal habeas court reviews the “last reasoned

decision” by the state court) (citing Avila v. Galaza. 297 F.3d 911,918 (9th Cir. 2002)). To the extent Claims Four

and Five are unexhausted, as Respondent argues (Answer at 4 n.3, 21-23), this Court denies the claims on the merits

because Petitioner has failed to present even a colorable claim for relief. Cassett v. Stewart. 406 F.3d 614, 623-24 (9

Cir. 2005). Because the claims are unexhausted, this Court reviews them de novo. See Lewis v. Mavle. 391 F.3d

989,996 (9th Cir. 2004) (review is de novo when a state court has not reached the merits of an issue).

26 Himes v. Thompson. 336 F.3d 848, 853 (9th Cir. 2003) (citing Delgado v. Lewis. 223 F.3d 976, 981-82 (9th Cir.

2000)).

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VI.

DISCUSSION

Preliminary Hearing Testimony

In Claim One, Petitioner argues the trial court violated his rights to due process and

Background

confront witnesses by finding Graciela V. to be an unavailable witness and allowing the

prosecution to present her preliminary hearing testimony at trial. (Petition at 5.)

In its decision on direct review, the California Court of Appeal accurately detailed the

procedural history related to the trial court’s decision to allow the admission at trial of Graciela’s

preliminary hearing testimony, as follows:

Before the preliminary hearing testimony of Graciela V. was read into

evidence, the prosecution called Gregory Hernandez, a senior investigator for the

District Attorney’s office, to describe his efforts to locate her. Hernandez testified

that he attempted to find Graciela between August 23[, 2016, the day jury

selection began in Petitioner’s trial] and [August] 30, 2016. He went to her last

known address and was told by her brother-in-law that she was no longer living

there. Hernandez obtained Graciela’s cell phone number and spoke to her once

on the morning of August 23. She said she would not be coming to court, that she

wanted to get the incident “behind her,” that she did not believe testifying would

benefit her, and that Hernandez could not make her testify. After that

conversation, Hernandez called Graciela’s cell phone multiple times from

different numbers, but she did not answer his calls. After discovering the identity

of her boyfriend and his cell phone number and address, Hernandez called the

boyfriend and went to his home twice. The boyfriend did not respond to his calls;

Hernandez did not find him at his home address. Hernandez also attempted to

obtain information on Graciela or her whereabouts from multiple websites, and

left messages for her to contact him with multiple family members.

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After hearing this testimony, defense counsel contended the investigator

“threw in the towel too early.” The prosecutor observed that even had Graciela

been located, Code of Civil Procedure section 1219 prevented the court from

holding her in contempt for refusing to testify. The court took the matter under

submission.

Before the court ruled, the prosecution re-called Hernandez. Hernandez

testified that he had made additional attempts to contact Graciela that day

(September 7) and the previous day: calling her and her boyfriend’s numbers

again, speaking to her boyfriend’s father, going again to Graciela’s last-known

address and speaking to neighbors, who confirmed she no longer lived there.

Despite these efforts, Hernandez remained unable to locate Graciela. The court

found Graciela to be unavailable as a witness under Evidence Code section 240,

subdivision (a)(5) and found that the prosecution had exercised due diligence in

attempting to locate her and to induce her to come to court.

(Lodgment 3 at 8-10 (footnote omitted).)

In her preliminary hearing testimony, as read to Petitioner’s jury at trial, Graciela detailed

how she met Petitioner and how he ultimately forced her to orally copulate him, digitally

penetrated her, and raped her. (Volume 4 Reporter’s Transcript (“RT”) at 2753-2805.)

On appeal, the California Court of Appeal rejected Petitioner’s claim, finding the

prosecution team exercised due diligence in attempting to secure the presence of Graciela as a

witness at trial and, in light of the prosecution team’s inability to locate her, the trial court

properly admitted Graciela’s preliminary hearing testimony. (Lodgment 3 at 11-14.)

State Court Opinion

To the extent Petitioner argues the trial court violated Petitioner’s right to confront

Confrontation

witnesses, his claim does not warrant federal habeas relief.

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Legal Standard

The Confrontation Clause of the Sixth Amendment provides that, “[i]n all criminal

prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against

him.”27 In Crawford v. Washington.28 the United States Supreme Court established that the

admission of “testimonial” out-of-court statements is barred under the Confrontation Clause.29

However, the Supreme Court in Crawford recognized an exception to this rule where the witness

is “unavailable” and the defendant had a prior opportunity to cross-examine the witness.30 Thus,

where the witness is deemed unavailable, the Confrontation Clause typically is not violated by

the admission at trial of earlier preliminary hearing testimony where the witness testified under

oath before a judicial tribunal, the defendant was represented by counsel, and the defense had an

adequate opportunity for cross-examination.31

“[A] witness is not ‘unavailable’ for purposes of the ... confrontation requirement unless

the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. ”32

However, “the Sixth Amendment does not require the prosecution to exhaust every avenue of

inquiry, no matter how unpromising.”33

Moreover, where AEDPA’s deferential standard of review applies, a federal habeas court

may not overturn a state court’s decision on a question of a witness’s unavailability merely

because the federal court identifies additional steps that might have been taken to locate the

27 U.S. Const, amend. VI.

28 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

29 Id, at 50-53.

30 Id, at 53-59.

31 See California v. Green. 399 U.S. 149, 165, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) (finding that preliminary

hearing testimony, taken “under circumstances closely approximating those that surround the typical trial,” would

have been admissible if witness was unavailable).

32 Barber v. Page. 390 U.S. 719, 724-25,88 S. Ct. 1318,20 L. Ed. 2d 255 (1968).

33 Hardy v. Cross. 565 U.S. 65,71-72, 132 S. Ct. 490, 181 L. Ed. 2d 468 120111 (per curiam): see also Green. 399

U.S. at 188-89 n.22 (Harlan, J., concurring) (“[t]he lengths to which the prosecution must go to produce a witness

before it may offer evidence of an extra-judicial declaration is a question of reasonableness”; and “[a] good-faith

effort is, of course, necessary, and added expense or inconvenience is no excuse”; and “[i]t should also be open to

the accused to request a continuance if the unavailability is only temporary”).

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witness; rather, under AEDPA, if the state court decision was reasonable, it cannot be

disturbed.34 In this context, the Ninth Circuit has also noted that the “good faith” and

“reasonableness” of efforts to locate an unavailable witness “are terms that demand fact-

intensive, case-by-case analysis, not rigid rules.”35

Analysis

On the facts presented here, the state courts reasonably found that the prosecution team

made a good-faith effort to obtain Graciela’s presence at trial. Investigator Hernandez attempted

to locate Graciela at every location and through any contact person he could discover, but to no

avail. The Constitution requires no more. Under such circumstances, the admission of

Graciela’s earlier preliminary hearing testimony, at which time Graciela was subject to cross-

examination by Petitioner’s counsel, does not offend the Confrontation Clause.

To the extent Petitioner argues the admission of Graciela’s preliminary hearing testimony

Due Process

violated his right to due process, his claim still fails.

The United States Supreme Court “has not yet made a clear ruling that admission of

irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant

issuance of the writ.”36 “Absent such ‘clearly established Federal law,’ we cannot conclude that

the state court’s ruling was an ‘unreasonable application.’”37

Even under circuit precedent, the admission of evidence can violate due process “only

when there are no permissible inferences the jury may draw from the evidence.”38 Here,

Graciela’s preliminary hearing testimony detailing her sexual assault by Petitioner certainly

supported an inference that Petitioner committed the crimes charged against him with respect to

34 Hardv. 565 U.S. at 71-72.

35 Christian v. Rhode. 41 F.3d 461, 467 (9th Cir. 1994).

36 Holley v. Yarborough. 568 F.3d 1091, 1101 (9th Cir. 2009).

37 R

38 Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998) (original emphasis; citation and internal quotations

omitted): see also Estelle v. McGuire. 502 U.S. 62,70, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991).

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Graciela. Accordingly, even under circuit precedent, the admission of the evidence did not

violate due process.

Therefore, the state courts’ denial of Claim One was not contrary to or an unreasonable

application of clearly established federal law. Habeas relief is not warranted.

Uncharged Crime Evidence

In Claim Two, Petitioner argues the trial court violated his rights to due process, a fair

trial, and confront witnesses by admitting evidence of the uncharged rape of Adrianna under

California Evidence Code section 1108. (Petition at 5-6.)

Background

In its decision on appeal, the California Court of Appeal accurately detailed the

procedural history related to the trial court’s decision to admit the other crimes evidence under

Evidence Code section 1108, as follows:

Prior to trial, appellant moved under Evidence Code section 352 to

exclude evidence of... the 2006 incident involving Adrianna .... The court. . .

found the Adrianna incident to be “relevant as to intent,” and further found that its

“probative value outweigh[ed] any prejudice,” as it was “similar in its facts,

and ... not particularly inflammatory when compared to the charged crimes.”

The court specifically found the evidence admissible under Evidence Code

section 1108.

During the trial, the prosecution informed the court that Adrianna was

unavailable to testify, as she had gone to Mexico and was not responding to calls.

The defense objected to having Gloria Tatum relate Adrianna’s statements to her

that she had been raped by “Junior.” The court ruled that the statements were

admissible under Evidence Code section 1240 as spontaneous statements and as a

“fresh complaint.”

(Lodgment 3 at 14-15 (footnote omitted).)

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Tatum then testified that Adrianna had come home looking like she was in a state of

shock before tearing up and saying a man Tatum knew to be Petitioner raped Adrianna. (5 RT at

3609-13.) Tatum called the police and went to Petitioner’s apartment to confront him, but he did

not answer the door. (5 RT at 3613-15.) Tatum further testified that she saw the police talk to

Adrianna and she accompanied Adrianna to the hospital. (5 RT at 3615.)

Los Angeles Police Officers Brian Churchill and Christopher Jongsomjit testified that

they responded to the call for assistance, found Adrianna to be upset and crying, took Adrianna

for a rape examination, and booked the rape kit into evidence. (5 RT at 3356-66.)

Nurse practitioner Page Courtemanche testified that she conducted Adrianna’s sexual

assault examination, described the process of conducting the examination of Adrianna and

collecting specimens for forensic testing, and detailed her observations of Adrianna’s emotional

state and physical injuries as reflected in the examination report. (5 RT at 3392-93, 3403-09.)

The California Court of Appeal denied Petitioner’s claim on appeal, finding that the

State Court Opinion

evidence of the uncharged rape was admissible under state evidentiary rules and did not violate

federal confrontation principles because none of the witnesses to testify on the matter provided

any hearsay testimony. (Lodgment 3 at 14-20.)

To the extent Petitioner argues the admission of evidence of Adrianna’s rape through

Confrontation

other witnesses violated his right to confront witnesses against him, his claim fails. As the

United States Supreme Court explained in Crawford, the primary concern of the Confrontation

Clause is the admission of “testimonial hearsay.”39 Thus, the analysis of a Confrontation Clause

claim requires a preliminary determination as to whether a contested statement (1) is hearsay and

(2) is “testimonial” within the meaning of Crawford.

39 Crawford. 541 U.S. at 53 (“even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is

its primary object”).

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Here, except for Tatum’s testimony that Adrianna stated Petitioner raped her, the

testimony related to Adrianna was not hearsay. Hearsay is a statement made by a non-testifying

declarant that a party offers to prove the truth of the matter asserted in the statement.40 The

witnesses at issue here, however, testified to their own actions and observations following

Petitioner’s rape of Adrianna. They did not testify to any statements by a non-testifying

declarant.

As for Tatum’s testimony regarding Adrianna’s statement that Petitioner raped her,

Adrianna’s statement was not testimonial. Under the primary purpose test, statements are

testimonial: (1) “when they result from questioning, ‘the primary purpose of [which was] to

establish or prove past events potentially relevant to later criminal prosecution,”’ and (2) “when

written statements are ‘functionally identical to live, in-court testimony,’ ‘made for the purpose

of establishing or proving some fact’ at trial.”41 Adrianna’s statement to Tatum does not qualify

as testimonial under the primary purpose test because Adrianna did not make the statement to

anyone working with law enforcement42 and the circumstances of Adrianna’s statement

indicates she did not intend for it to be a solemn declaration made for the purposes of proving

any fact in a future trial.43

40 Fed. R. Evid. 801; Cal. Evid. Code § 1200.

•, 139 S. Ct. 1180,203 L.Ed.2d

U.S.

41 Lucero v. Holland. 902 F.3d 979, 989 (9th Cir. 2018), cert, denied,

216 (2019) (citations omitted): see Ohio v. Clark. 576 U.S. 237, 135 S. Ct. 2173, 2179, 192 L.Ed.2d 306 (2015)

(discussing primary purpose test).

42 See Giles v. California. 554 U.S. 353, 376, 128 S.Ct. 2678, 171 L.Ed.2d488 (2008) (“[statements to friends and

neighbors about abuse and intimidation” are not testimonial.); see also Schubert v. Warner. 605 F. App’x 688 (9th

Cir. 2015) (finding that statements to a family friend were non-testimonial and stating, “No Supreme Court authority

has held that statements made to someone other than law enforcement personnel are testimonial.”); Saechao v.

Oregon. 249 F. App’x 678, 679 (9th Cir. 2007) (a conversation “between two friends, without any active

participation by a government official” was non-testimonial).

43 See Michigan v. Brvant. 562 U.S. 344, 381, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) (“For an out-of-court

statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an

unconsidered or offhand remark; and [s]he must make the statement with the understanding that it may be used to

invoke the coercive machinery of the State against the accused .... That is what distinguishes a narrative told to a

friend over dinner from a statement to the police”) (Scalia, J., dissenting); see also United States v. Palamarchuk.

791 F. App’x 658, 662 (9th Cir. 2019) (“a conversation between friends over dinner” is non-testimonial); Lara v.

Allison. 617 F. App’x 769, 770 (9th Cir. 2015) (“statements [made] during an unprompted, informal conversation

between coworkers at their place of employment” are non-testimonial).

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Because the testimony regarding Petitioner’s rape of Adrianna did not contain testimonial

hearsay, its admission did not violate Petitioner’s confrontation rights as protected by Crawford.

Petitioner also fails to show the admission of evidence regarding his rape of Adrianna

Due Process

violated his due process rights.

The United States Supreme Court has never held that the admission of other bad acts

evidence to prove propensity violates a criminal defendant’s federal constitutional due process

right to a fair trial.44 In the absence of such “clearly established Federal law as determined by

the United States Supreme Court,” Petitioner is not entitled to federal habeas relief.45

Significantly, to the extent Ninth Circuit law addresses the constitutionality of evidentiary rules

allowing for the admission of evidence of other sex offenses committed by a defendant, the

Ninth Circuit has found such statutes permissible.46

Therefore, the state courts’ denial of Claim Two was not contrary to or an unreasonable

application of clearly established federal law. Habeas relief is not warranted.

Conflict

In Claim Three, Petitioner argues his trial counsel operated under a conflict of interest,

Background

alleging counsel had represented a prosecution witness. (Petition at 6.)

During a lunch break in trial on September 12, 2016, Petitioner’s trial counsel became

aware of a conflict. (5 RT at 3381-82.) Immediately upon return from the break, trial counsel

informed the trial court that a witness who had already testified at trial against Petitioner “is a

public defender client.” (5 RT at 3381-82.) Although Petitioner’s trial counsel did not disclose

44 See Estelle. 502 U.S. at 75 n.5 (“[W]e express no opinion on whether a state law would violate the Due Process

Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged crime”).

45 See Carev v. Musladin. 549 U.S. 70, 77, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006): Moses v. Pavne, 555 F.3d

742,758-59 (9th Cir. 2009); Larson v. Palmateer. 515 F.3d 1057, 1066 (9th Cir. 2008) (where the Supreme Court

has “expressly left [the] issue an ‘open question,’” habeas relief is unavailable).

46 United States v. LeMav. 260 F.3d 1018, 1026-27 (9th Cir. 2001) (rejecting due process challenge to analogous

federal statute).

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which prosecution witness was represented by the Public Defender’s Office, the trial court and

the prosecutor assumed it was Stephanie Hernandez, who had a misdemeanor conviction for

making a criminal threat. (5 RT at 3383-84, 3387.) The trial court further assumed Petitioner’s

trial counsel did not personally represent the witness in question and did not possess any

privileged information regarding the witness, as trial counsel had been unaware of the conflict

until after the witness testified at trial. (5 RT at 3386.) Given those circumstances, the trial court

denied trial counsel’s request to withdraw. (5 RT at 3386-87.)

Petitioner’s trial counsel then went in camera with the trial court to make a record, but the

trial court’s ruling remained the same. (5 RT at 3387-88.) Pursuant to the request of Petitioner’s

trial counsel, the trial court agreed to admonish the jury that Stephanie Hernandez was convicted

of misdemeanor criminal threats in 2014, that she had been placed on probation, and that she had

a pending court date for a violation of that probation. (5 RT at 3388-90.)

The Sixth Amendment right to counsel includes the right to be represented by counsel

with undivided loyalties.47 When notified of an actual or potential conflict of interest, “a trial

court has the obligation ‘either to appoint separate counsel or to take adequate steps to ascertain

whether the risk was too remote to warrant separate counsel.”48 “If the trial court fails to

undertake either of these duties, the defendant’s Sixth Amendment rights are violated.”49

Legal Standard

Moreover, to prove an ineffective assistance of counsel claim premised on an alleged

conflict of interest, a habeas petitioner must “establish that an actual conflict of interest adversely

affected his lawyer’s performance.”50 That is, a habeas petitioner “must demonstrate that his

47 Wood v. Georgia. 450 U.S. 261,271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); Campbell v. Rice. 408 F.3d

1166, 1170 (9th Cir. 2005) (en banc); Lewis v. Mavle, 391 F.3d 989, 995 (9th Cir. 2004).

48 Campbell, 408 F.3d at 1170 (quoting Holloway v. Arkansas. 435 U.S. 475, 484, 98 S. Ct. 1173, 55 L. Ed. 2d 426

(1978)).

49 Campbell. 408 F.3d at 1170; Holloway, 435 U.S. at 484.

50 Cuvier v. Sullivan. 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); Morris v. State of Cal.. 966 F.2d

448, 455 (9th Cir. 1991); see also Mickens v. Taylor. 535 U.S. 162, 172 n.5, 122 S. Ct. 1237, 152 L. Ed. 2d 291

(2002) (“[T]he Sullivan standard is not properly read as requiring inquiry into actual conflict as something separate

and apart from adverse effect. An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that

adversely affects counsel’s performance.”).

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attorney made a choice between possible alternative courses of action that impermissibly favored

an interest in competition with those of the client.”51 When a habeas petitioner “shows that a

conflict of interest actually affected the adequacy of his representation [,]” he “need not

demonstrate prejudice in order to obtain relief’; however, until the habeas petitioner “shows that

his counsel actively represented conflicting interests, he has not established the constitutional

predicate for his claim of ineffective assistance.”52 “An actual conflict must be proved through a

factual showing on the record.”53

Absent a showing that an alleged conflict adversely affected the trial counsel’s

performance, the mere fact that a different attorney from trial counsel’s office represented a

prosecution witness is insufficient to show an actual conflict.54

Here, the trial court considered the matter of the potential conflict, allowed Petitioner’s

trial counsel to make a record on the matter, and conclude, with the support of state precedent,

the risk presented by the alleged conflict was too remote to warrant removing counsel. The trial

court was not obligated to do anything more with respect to its consideration of the alleged

conflict.55

Analysis

Moreover, Petitioner has not alleged, let alone proven, that the alleged conflict had any

adverse impact on his trial counsel’s performance on Petitioner’s behalf. This is insufficient to

establish ineffective assistance as a result of the alleged conflict.56

Accordingly, habeas relief is not warranted on Claim Three.

III

51 McClure v. Thompson. 323 F.3d 1233, 1248 (9th Cir. 2003); Washington v. Lampert. 422 F.3d 864, 872 (9th

Cir. 2005); see also United States v. Wells. 394 F.3d 725, 733 (9th Cir. 2005) (“[T]o prove an adverse effect, the

defendant must show that ‘counsel was influenced in his basic strategic decisions' by loyalty to another [interest].”’)

(citation omitted).

52 Sullivan. 446 U.S. at 349-50; Washington. 422 F.3d at 872.

53 Morris, 966 F.2d at 455.

54 Clark v. Chappell. 936 F.3d 944, 986-87 (9th Cir. 2019).

55 Campbell. 408 F.3d at 1170.

56 Clark. 936 F.3d at 986-87.

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Impartial Jury

In Claim Four, Petitioner argues he was denied his right to a fair and impartial jury.

(Petition at 6.) Petitioner’s exact argument is unclear, although he appears to be complaining

about the jury selection process. Petitioner’s vague and conclusory claim does not warrant

habeas relief.57 Nevertheless, this Court has reviewed the record and finds no error with respect

to the fairness or impartiality of the jury.

Accordingly, habeas relief is not warranted on Claim Four.

Marsden/Faretta

Finally, in Claim Five, Petitioner argues the trial court violated his right to self

representation by refusing to consider his motions to substitute counsel made pursuant to People

v. Marsden.58 Petitioner’s claim invokes two distinct legal principles: the right to self

representation under Faretta v. California59 and the right to the effective assistance of counsel

under the Sixth Amendment.

Faretta

Background

Before trial, despite being represented by trial counsel, Petitioner attempted to file his

own motions. (2 RT at A-1 -A-2.) When the trial court asked Petitioner why he wanted to file

motions on his own rather than through his counsel, Petitioner stated he wanted to represent

himself. (2 RT at A-2.) The trial court then warned Petitioner of the dangerous of self

representation and provided him with the paperwork to make the election to represent himself.

(2 RT at A-2-A-4.) Petitioner filled out the paperwork and discussed it with the trial court. (2

RT at A-5.)

During his discussions with the trial court about his decision to represent himself,

Petitioner made complaints about his appointed counsel. (2 RT at A-7.) The trial court

57 See James v. Bore. 24 F.3d 20, 26 (9th Cir. 1994) (conclusory allegations lacking factual support do not provide

a sufficient basis for habeas corpus relief).

58 2 Cal.3d 118 (1970).

59 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

Case 2j20-cv-02496-JAK-LAL Document 43 Filed 06/21/21 Page 22 of 24 PagelD#:3395

explained to Petitioner that there was a difference between a request for self-representation and a

request to substitute counsel. (2 RT at A-7-A-8.) Petitioner stated that he understood and

wanted to proceed with self-representation. (2 RT at A-8-A-9.)

The trial court again warned Petitioner of the dangerous of self-representation. (2 RT at

A-9-A-12.) Petitioner indicated he understood and again stated his desire to represent himself.

(2 RT at A-9, A-12.) The trial court granted Petitioner’s request and relieved Petitioner’s trial

counsel. (2 RT at A-12.) Petitioner then again attempted to express complaints about his trial

counsel, but the trial court explained they were done discussing counsel because Petitioner had

elected to represent himself. (2 RT at A-14.)

After the parties discussed the motions Petitioner wished to file and began selecting court

dates to hear the various motions, Petitioner informed the trial court, “Your honor, you can let

[trial counsel] take over.. . . I’m sorry. You can just let him take over.” (2 RT at A-25.) The

trial court confirmed that is what Petitioner wanted to do, declared that Petitioner had abandoned

his right to represent himself, and reappointed the previously appointed trial counsel. (2 RT at

A-25.)

Analysis

In Faretta. the United States Supreme Court interpreted the right to counsel to encompass

“an independent constitutional right” of the accused to represent himself at trial, and thus waive

the right to counsel.60 However, even after invoking the right to self-representation, a defendant

may later withdraw the request and abandon his Faretta rights.61 This is exactly what Petitioner

did here. The trial court did not deny Petitioner’s Faretta rights. Rather, the trial court granted

Petitioner’s request to represent himself and only reappointed counsel after Petitioner

unequivocally abandoned his Faretta rights and asked that counsel represent him.

III

6014 at 806.

61 See Sandoval v. Calderon. 241 F.3d 765, 774-75 (9th Cir. 2000).

Case 2j20-cv-02496-JAK-LAL Document 43 Filed 06/21/21 Page 23 of 24 PagelD#:3396

Marsden

Legal Standard

The denial of a motion to substitute counsel implicates a defendant’s Sixth Amendment

right to counsel and is properly considered in federal habeas.62 The Ninth Circuit has held that

when a defendant voices a seemingly substantial complaint about counsel, the trial judge should

make a thorough inquiry into the reasons for the defendant's dissatisfaction.63 However, the

inquiry need only be as comprehensive as the circumstances reasonably would permit.64

If a state court denies a motion to substitute counsel, the ultimate inquiry in a federal

habeas proceeding is whether the petitioner’s Sixth Amendment right to counsel was violated.65

Analysis

Here, Petitioner did not lodge a motion to substitute counsel pursuant to Marsden.

Although, as mentioned above, Petitioner made some complaints against his trial counsel at the

time he moved to represent himself, the trial court clarified with Petitioner whether he was

invoking his Faretta rights or whether he was seeking to substitute counsel. Petitioner confirmed

he wanted to represent himself pursuant to Faretta. Furthermore, at no other time during trial did

Petitioner seek substitution of counsel. Accordingly, Petitioner cannot show the trial court erred

by denying a motion to substitute counsel.

Nevertheless, even if Petitioner could show his complaints about trial counsel amounted

to a Marsden motion, which the trial court should have considered, his claim still fails.

Petitioner has not alleged, and this Court has not found based on its review of the record, that

Petitioner’s trial counsel was absent or incompetent in any manner. Thus, Petitioner has not

shown that any alleged mishandling of a Marsden motion resulted in the denial of Petitioner’s

Sixth Amendment right to counsel.

62 Bland v. California Dep’t of Corrections. 20 F.3d 1469, 1475 (9th Cir. 1994), overruled on other grounds by

Schell v. Witek. 218 F.3d 1017 (9th Cir. 2000).

63 Bland. 20 F.3d at 1475-76; Hudson v. Rushen. 686 F.2d 826, 829 (9th Cir. 1982).

64 King v. Rowland. 977 F.2d 1354, 1357 (9th Cir. 1992) (record may demonstrate that extensive inquiry was not

necessary).

65 Schell. 218 F.3d at 1024-25.

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Habeas relief is not warranted on Claim Five.

VII.

RECOMMENDATION

IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1)

approving and accepting this Report and Recommendation; and (2) directing that Judgment be

entered denying the Petition and dismissing this action with prejudice.

DATED: June 21. 2021

HONORABuEfLOUISC A. LA MOTHE

United States Magistrate Judge

Case : !:20-cv-02496-JAK-LAL Document 47 Filed 08/25/21 Page 1 of 2 Page ID #:3430

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Petitioner,

Case No. LACV 20-2496-JAK (LAL)

WILLIE T. SHIPLEY, JR.,

ORDER ACCEPTING REPORT AND

RECOMMENDATION OF UNITED

STATES MAGISTRATE JUDGE

D. HOLBROOK, Warden, CSP-CVSP,

Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge’s

Report and Recommendation, Petitioner’s Objections and the remaining record, and has made a

de novo determination.

Petitioner’s Objections lack merit for the reasons stated in the Report and

Recommendation.

Accordingly, IT IS ORDERED THAT:

The Report and Recommendation is approved and accepted;

Judgment be entered denying the Petition and dismissing this action with

prejudice; and

III

///

Case : !:20-cv-02496-JAK-LAL Document 47 Filed 08/25/21 Page 2 of 2 PagelD#:3431

The Clerk serve copies of this Order on the parties.

DATED:

August 25, 2021

JOHN A. KRONSTADT

UNITED STATES DISTRICT JUDGE

Case !:20-cv- 02496-JAK-LAL Document 48 Filed 08/25/21 Page 1 of 1 PagelD#:3432

JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Petitioner,

JUDGMENT

Case No. LACV 20-2496-JAK (LAL)

WILLIE T. SHIPLEY, JR., '

D. HOLBROOK, Warden, CSP-CVSP,

Respondent.

Pursuant to the Order Accepting Report and Recommendation of United States

Magistrate Judge,

IT IS ADJUDGED that the Petition is denied and this action is dismissed with prejudice.

DATED: August 25. 2021

KJOHN A. KRONSTADT

UNITED STATES DISTRICT JUDGE

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.