Petition for Writ of Certiorari — Charles Chad Giese, Petitioner v. Edward Borla, Warden

Supreme Court briefOct 22, 2025

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No.

IN THE SUPREME COURT OF THE UNITED STATES

___________________________________________

CHARLES CHAD GIESE,

Petitioner,

CRAIG KOENIG, Warden,

Respondent.

___________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

__________________________________

PETITION FOR WRIT OF CERTIORARI

______________________

FAY ARFA, A LAW CORPORATION

Fay Arfa, Attorney - CA SBN 100143

1901 Avenue of the Stars, #200

Los Angeles, CA 90067

Tel.: (310) 841-6805

Fax :(310) 841-0817

fayarfa@sbcglobal.net

Attorney for Appellant

CHARLES CHAD GIESE

QUESTIONS PRESENTED

Did Trial Counsel Render Ineffective Assistance by

Failing to present Evidence About the Psychological

and Physical Effects of Methamphetamine and

Alcohol, Giese’s Good Character, and Giese’s Efforts

to Relocate?

II.

Did the Trial Court Deny Giese Due Process and a

Fair Trial by Admitting his Un-Mirandized and

Involuntary Statements?

III.

Did the Prosecutor Fail to Prove First Degree

Premeditated Murder Beyond a Reasonable Doubt?

IV.

Did the Trial Court Violate Giese’s Constitutional

Rights to a Fair Trial and Due Process by Excluding

Evidence of Vallivero’s Drug Use?

Did the Mutual Combat Instruction Violate Giese’s

Constitutional Rights to a Reliable Jury

Determination of his Guilt?

VI.

Did the Prosecutor’s Prejudicial Misconduct During

Closing Argument Deprive Giese of Due Process and

a Fair Trial?

VII. Do the Cumulative Errors Require Reversal?

TOPICAL INDEX

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

CONSTITUTIONAL PROVISIONS AND REGULATIONS

INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

State Court Trial Proceedings . . . . . . . . . . . . . . . 2

Direct Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Federal Habeas Proceedings . . . . . . . . . . . . . . . . 3

STATEMENT OF THE FACTS ELICITED FROM THE

CALIFORNIA COURT OF APPEAL OPINION . . . . . . . . . . . 4

REASONS TO GRANT CERTIORARI . . . . . . . . . . . . . . . . . . . 4

TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE BY FAILING TO PRESENT EVIDENCE

ABOUT THE NEGATIVE EFFECTS OF

METHAMPHETAMINE AND ALCOHOL; GIESE’S

GOOD CHARACTER; AND GIESE’S EFFORTS TO

RELOCATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Courts Have Not Required a

Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II.

III.

Trial Counsel Rendered IAC By Failing to Move

to Introduce Giese’s Statements (Cal. Evidence

Code § 356) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Trial Counsel Rendered Ineffective Assistance

by Failing to Present Expert Testimony about

the Negative Effects of Methamphetamine and

Alcohol Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Trial Counsel Rendered Ineffective Assistance

by Failing to Present Evidence of Giese’s

Non-Violent Character and Efforts to

Relocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Character Witnesses re Giese’s Nonviolent

Character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Giese’s Efforts to Relocate . . . . . . . . . . . . . . . . . . . . . 11

Trial Counsel Rendered Ineffective Assistance

by Failing to Present Witnesses to Testify About

Vallivero’s Violent Behavior . . . . . . . . . . . . . . . . 13

THE TRIAL COURT DENIED GIESE DUE PROCESS

AND A FAIR TRIAL BY ADMITTING HIS UNMIRANDIZED AND INVOLUNTARY

STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Giese’s Claim is Not Procedurally Barred . . . . 15

Giese Asserted His Miranda Rights . . . . . . . . . 16

THE PROSECUTION FAILED TO PROVE FIRST

DEGREE PREMEDITATED MURDER BEYOND A

REASONABLE DOUBT . . . . . . . . . . . . . . . . . . . . . . . . . 19

iii

IV.

THE TRIAL COURT VIOLATED GIESE’S

CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND

DUE PROCESS BY EXCLUDING EVIDENCE OF

VALLIVERO’S DRUG USE . . . . . . . . . . . . . . . . . . . . . . 20

THE MUTUAL COMBAT INSTRUCTION VIOLATED

GIESE’S CONSTITUTION RIGHTS TO A RELIABLE

JURY DETERMINATION OF HIS GUILT . . . . . . . . . 22

VI.

THE PROSECUTOR’S PREJUDICIAL MISCONDUCT

DURING CLOSING ARGUMENT DEPRIVED GIESE

OF DUE PROCESS AND A FAIR TRIAL . . . . . . . . . . 24

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Introduction

Giese’s Prosecutorial Misconduct Claims Are

Not Procedurally Barred . . . . . . . . . . . . . . . . . . . 24

VII. THE CUMULATIVE ERRORS REQUIRE

RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . . Ninth Circuit Order

APPENDIX B . . . . . . . . . . . . . . . . . U.S. District Court Judgment

APPENDIX C . . . . . . . U.S. District Court Order Accepting R&R

APPENDIX D . Magistrate Judge<s Report & Recommendation

APPENDIX E . . . . Order Denying Petition for Writ of Certiorari

APPENDIX F . . . . . . . . . . . . . . . . CA Supreme Court Disposition

APPENDIX G . . . . . . . . . Modified CA Court of Appeal Opinion

APPENDIX H . . . . . . . . . . . . . . . . . CA Court of Appeal Opinion

TABLE OF AUTHORITIES

FEDERAL CASES

Barefoot v. Estelle, 463 U.S. 893 (1983) . . . . . . . . . . . . . . . . . . . . 27

Chambers v. Mississippi, 410 U.S. 284 (1973) . . . . . . . . 14, 22, 26

Chapman v. California, 386 U.S. 18 (1967) . . . . . . . . . . . . . . . . . 17

Crane v. Kentucky, 476 U.S. 683 (1986) . . . . . . . . . . . . . . . . . . 8, 14

Darden v. Wainwright, 477 U.S. 168 (1986) . . . . . . . . . . . . . 24, 26

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) . . . . . . . . . . 24, 26

Dunn v. Reeves, 594 U.S. 731 (2021) . . . . . . . . . . . . . . . . . . . . . . . 5

Fauber v. Davis, 43 F.4th 987 (9th Cir. 2022) . . . . . . . . . . . . . . . 23

Gentry v. Sinclair, 705 F.3d 884 (9th Cir. 2013) . . . . . . . . . . . . . . 5

In re Winship, 397 U.S. 358 (1970) . . . . . . . . . . . . . . . . . . . . . . . 24

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . 19

Middleton v. McNeil, 541 U.S. 433 (2004) . . . . . . . . . . . . . . . . . . 24

Miranda v. Arizona, 384 U.S. 436 (1966) . . . . . . . . . . . . . . . 16, 17

Parle v. Runnels, 505 F.3d 922 (9th Cir. 2007) . . . . . . . . . . . . . . 27

Slack v. McDaniel, 529 U.S. 473 (2000) . . . . . . . . . . . . . . . . . . . . 27

Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . passim

United States v. Martin, 781 F.2d 671 (9th Cir. 1985) . . . . . . . . 18

United States v. Shay, 57 F.3d 126 (1st Cir. 1995) . . . . . . . . . . . 10

Washington v. Texas, 388 U.S. 14 (1967) . . . . . . . . . . . . . . . . . . . 22

STATE CASES

People v. Anderson, 70 Cal.2d 15 (1968) . . . . . . . . . . . . . . . . 19, 20

People v. Anzalone, 141 Cal.App.4th 380 (2006) . . . . . . . . . . . . . 25

People v. Bender, 27 Cal.2d 164 (1945) . . . . . . . . . . . . . . . . . . . . 20

People v. Berry, 18 Cal. 3d 509 (1976) . . . . . . . . . . . . . . . . . . . . . 11

People v. Boatman, 221 Cal.App.4th 1253 (2013) . . . . . . . . . . . . 20

People v. Botchers, 50 Cal. 2d 321 (1958) . . . . . . . . . . . . . . . . . . . 11

People v. Breverman, 19 Cal. 4th 142 (1998) . . . . . . . . . . . . . . . . . 9

People v. Centeno, 60 Cal. 4th 659 (2014) . . . . . . . . . . . . . . . . . . 16

People v. Earp, 20 Cal.4th 826 (1999) . . . . . . . . . . . . . . . . . . . . . 24

People v. Hill, 17 Cal.4th 800 (1998) . . . . . . . . . . . . . . . . . . . . . . 26

People v. Martinez, 193 Cal.App.3d 364 (1987) . . . . . . . . . . . . . . 20

People v. Minifie, 13 Cal.4th 1055 (1996) . . . . . . . . . . . . . . . . . . 22

People v. Mosley, 73 Cal.App.4th 1081 (1999) . . . . . . . . . . . . . . . 18

People v. Nguyen, 61 Cal.4th 1015 (2015) . . . . . . . . . . . . . . . . . . 19

People v. Penunuri, 5 Cal. 5th 126 (2018) . . . . . . . . . . . . . . . . . . . 8

People v. Rowland, 262 Cal.App.2d 790 (1968) . . . . . . . . . . . . . . 14

People v. Silveria and Travis, 10 Cal. 5th 195 (2020) . . . . . . . . . . 8

People v. Smith, 249 Cal.App.2d 395 (1967) . . . . . . . . . . . . . . . . 14

People v. Soojian, 190 Cal.App.4th 521 (2010) . . . . . . . . . . . . . . 25

People v. Sotelo-Urena, 4 Cal. App. 5th 732 (2016) . . . . . . . . . . . 22

People v. Stansbury, 9 Cal.4th 824 (1995) . . . . . . . . . . . . . . . . . . 18

People v. Stone, 46 Cal.4th 131 (2009) . . . . . . . . . . . . . . . . . . . . . 25

People v. Valentine, 28 Cal. 2d 121 (1946) . . . . . . . . . . . . . . . . . . 11

People v. Van Ronk, 171 Cal.App.3d 818 (1985) . . . . . . . . . . . . . 20

People v. Wilkins, 56 Cal.4th 333 (2013) . . . . . . . . . . . . . . . . . . . 25

FEDERAL CONSTITUTION

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 24

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 22, 24

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 22, 24

FEDERAL STATUTES

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

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATE STATUTES

Cal. Evid. Code § 352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Cal. Evid. Code § 356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Cal. Penal Code § 187(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Cal. Penal Code § 192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Cal. Penal Code § 12022(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

vii

CALIFORNIA CRIMINAL JURY INSTRUCTIONS

CALCRIM No. 3471 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 24

viii

No.

__________________________________________________

CHARLES CHAD GIESE,

Petitioner,

CRAIG KOENIG, Warden,

Respondent.

___________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

__________________________________

Petitioner, CHARLES CHAD GIESE, petitions for a Writ of

Certiorari to review the United States Court of Appeals for the

Ninth Circuit’s denial of Giese’s Request for a Certificate of

Appealability. (Appendix A)

OPINION BELOW

On July 29, 2025, the Ninth Circuit Court of Appeals

denied Giese’s request for a certificate of appealability. (Appendix

JURISDICTION

On July 29, 2025, the Ninth Circuit Court of Appeals

denied Giese’s request for a certificate of appealability. (Appendix

The Court has jurisdiction. 28 U.S.C. § 1254(1)

CONSTITUTIONAL PROVISIONS AND

REGULATIONS INVOLVED

U.S. Const. Amends. V, VI, XIV; 28 U.S.C.§ 2254.

STATEMENT OF THE CASE

State Court Trial Proceedings

The prosecution charged Giese with murder of Walter

Vallivero and alleged that he personally used a deadly weapon.

(Cal. Penal Code §§ 187(a), 12022(b)(1))1

The jury convicted Giese of first degree murder and found

the deadly weapon enhancement true. The trial court sentenced

Giese to 25 years to life plus a consecutive one year for the

personal use of a deadly weapon.

Direct Appeal

Giese appealed to the California Court of Appeal (CCA),

and on February 26, 2020 the CCA affirmed the judgment. On

March 25, 2020 the CCA filed a modified opinion with no change

Unless otherwise stated, all references are to the

California Penal Code.

in judgment. (Appendix G, H)

Giese then filed a Petition for Review. On May 27, 2020, the

California Supreme Court (CSC) summarily denied his petition.

(Appendix F)

On September 21, 2020, Giese filed a Petition for Writ of

Certiorari in this Court. On November 2, 2020, this Court denied

Giese<s Certiorari petition. (Appendix E)

Federal Habeas Proceedings

On, November 28, 2021, Giese filed a petition for writ of

habeas corpus in the district court. On March 1, 2024, the U.S.

magistrate judge issued a Report and Recommendation (RR) and

recommended that Giese’s petition be denied and that the action

be dismissed with prejudice. (Appendix D)

On February 5, 2025, the district court adopted the RR and

denied Giese’s habeas petition. (Appendix C)

On April 16, 2025, Giese filed a Request for Certificate of

Appealability to the Ninth Circuit. On July 29, 2025, the Ninth

Circuit Court of Appeals denied Giese’s request for a certificate of

appealability. (Appendix A)

STATEMENT OF THE FACTS ELICITED FROM

THE CALIFORNIA COURT OF APPEAL OPINION

See, CCA’s February 26, 2020 Opinion. (Appendix H)

REASONS TO GRANT CERTIORARI

TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE BY FAILING TO PRESENT

EVIDENCE ABOUT THE NEGATIVE EFFECTS

OF METHAMPHETAMINE AND ALCOHOL;

GIESE’S GOOD CHARACTER; AND GIESE’S

EFFORTS TO RELOCATE

Introduction

Trial counsel rendered ineffective assistance by failing to

present witnesses to testify how methamphetamine and alcohol

use negatively affected Vallivero’s behavior, about Giese’s state of

mind, about Giese’s efforts to seek relocation, about Giese’s good

character, and witnesses to testify about Vallivero’s aggressive

and violent character. Strickland v. Washington, 466 U.S. 668,

694 (1984).

The Courts Have Not Required a Declaration

The District Court finds that Giese’s claims fail for lack of

evidence because Giese did not submit or try to submit a

declaration from trial counsel. (Appendix C) But, the District

Court overlooks that trial counsel’s testimony at the motion for

new trial explains why he did not raise the issues Giese

identified. And trial counsel never adequately explained his

deficient representation.

The District Court relies on Dunn v. Reeves, 594 U.S. 731,

743 (2021) (per curiam), for the notion that “a silent record cannot

discharge a prisoner’s burden” to prove ineffective assistance of

counsel. (Appendix C) Dunn did not require that a petitioner

submit a declaration from trial counsel in every case raising an

ineffective assistance of counsel issue.

Dunn held, “To be sure, the record in this particular case

happened to be deficient ‘because Reeves failed to call his counsel

to testify.’ [Citation] But, this unremarkable observation of cause

and effect in light of the facts before the court was hardly an

absolute bar in every case where other record evidence might fill in

the details.” Dunn v. Reeves, 141 S. Ct. 2405, 2413. (Italics added)

Gentry v. Sinclair, 705 F.3d 884, 900 (9th Cir. 2013) did not

require a declaration from trial counsel or a detail of the efforts

made to secure a declaration from trial counsel. In Gentry, trial

counsel submitted affidavits; the affidavits did not state the

specific ineffective assistance claim. Id.

Trial Counsel Rendered IAC By Failing to Move

to Introduce Giese’s Statements (Cal. Evidence

Code § 356)

The District Court finds trial counsel did not render

ineffective assistance by failing to urge the trial court to admit

Giese’s statements about Vallivero’s methamphetamine use

under Evidence Code section 356. (Appendix C) The District

Court finds the CCA properly found that Vallivero’s

methamphetamine use had no relevancy because of Vallivero’s

negative toxicology report and that past use was irrelevant and

overly prejudicial and ‘doomed to fail.’” (Appendix C)

Giese disagrees. Defense counsel theorized that evidence

of Vallivero’s methamphetamine use affected Giese’s perceptions.

Immediately after the incident, Giese told his interrogators

Vallivero “gets real high” and would “get real, real abusive and

threatening,” “then he’d get on the drugs,” and “When he comes

down on drugs, he keeps fighting.”

The District Court found that the trial court properly

excluded evidence about Vallivero’s drug use as irrelevant,

prejudicial and needlessly time consuming. (Appendix C) But the

District Court overlooked that California’s rule of completeness

(Cal. Evid. Code, § 356), required the trial court to admit Giese’s

entire statement into evidence.

Trial counsel objected to excising Giese’s statements about

Vallivero’s drug use because the effects of Vallivero’s drug use

went to Giese’s state of mind. But trial counsel failed to object

based on California’s rule of completeness (Cal. Evid. Code §356).

The methamphetamine use explained why Giese feared for his

life. Strickland v. Washington, 466 U.S. 668.

Trial Counsel Rendered Ineffective Assistance

by Failing to Present Expert Testimony about

the Negative Effects of Methamphetamine and

Alcohol Use

Vallivero’s medical records proved that Vallivero suffered

from the effects of chronic methamphetamine use. The trial court

excluded all references to Vallivero’s prior use of

methamphetamine or cannabis. Cal. Evid. Code § 352. The

District Court finds a “‘silent record’” cannot support Giese’s

claim that trial counsel erred by failing to present expert

testimony about the psychological and physical effects of

methamphetamine and alcohol use. (Appendix C)

The District Court overlooks that lawyers traditionally call

experts to testify about the effects of methamphetamine and

alcohol. For example, in People v. Penunuri, 5 Cal. 5th 126, 138

(2018), a psychiatrist testified about the effects of

methamphetamine and the resulting violent behavior its use may

cause. “He described the short-term symptoms, which include

elevated mood and energy level, feelings of grandiosity and

euphoria, decreased appetite, and decreased need for sleep. Dr.

Rosenberg testified that methamphetamine use can also cause

permanent brain damage and frontal lobe brain syndrome. Brain

damage can lead to changes in personality and the development

of psychotic symptoms. Damage to the frontal lobe in particular

can cause problems with judgment, impulse control, and the

ability to control aggressive feelings.” Id. See also People v.

Silveria & Travis, 10 Cal. 5th 195, 229-31 (2020) (expert testified

that methamphetamine was “commonly associated with violent

behavior.”)

The District Court overlooks that the exclusion of

methamphetamine evidence deprived Giese of his constitutional

right to present a complete defense. Crane v. Kentucky, 476 U.S.

683, 690-691 (1986). The District Court did not recognize that the

chronic methamphetamine abuse made Vallivero violent. Giese

acted in self defense because Vallivero became violent when he

used methamphetamine.

The District Court overlooks that Giese’s belief that

Vallivero used methamphetamine and alcohol affected Giese’s

state of mind before, during, and after the killing. Giese’s belief

would have proved Giese committed a lesser offense like

voluntary manslaughter, instead of premeditated, deliberate first

degree murder. Cal. Penal Code, § 192 defines voluntary

manslaughter as an intentional, unlawful homicide "upon a

sudden quarrel or heat of passion" (§ 192(a).) People v.

Breverman, 19 Cal. 4th 142, 163 (1998).

The methamphetamine evidence proved Giese believed

Vallivero would kill him. The methamphetamine evidence would

have supported Giese’s self-defense theory; would have proved

why Giese reasonably believed Vallivero suffered from

methamphetamine effects, including violence, during the

encounter; and would have corroborated Giese’s belief that

Vallivero was under the influence of methamphetamine.

The methamphetamine evidence supported Giese’s defense

because it would have helped the jury understand Giese’s state of

mind and how methamphetamine use causes violent and

aggressive behavior. United States v. Shay, 57 F.3d 126, 133 (1st

Cir. 1995) (Case reversed because trial court excluded expert

testimony that defendant suffered from a mental disorder which

caused him to tell grandiose, self-incriminating lies).

Trial Counsel Rendered Ineffective Assistance

by Failing to Present Evidence of Giese’s NonViolent Character and Efforts to Relocate

Character Witnesses re Giese’s Nonviolent Character

Giese had several character witnesses who would have

testified that they knew Giese to be a gentle, considerate, and

caring man. Trial counsel failed to investigate or present any

character witnesses. He waited until sentencing to submit

character letters.

The District Court finds trial counsel adequately explained

why he did not call Giese’s good character witnesses. (Appendix

C) But the District Court assumes that, if Giese presented

character witnesses, the prosecution could have undermined

Giese’s defense by showing he had options other than to stay with

Vallivero. (Appendix C)

The District Court overlooks that evidence of Giese’s good

character, his attempts to move, and Vallivero’s

methamphetamine use would have proved that Giese did not

premeditate and deliberate Vallivero’s murder. The jury would

have learned that Giese’s actions resulted in a strong passion

aroused by a "provocation" sufficient to cause an "'ordinary

[person] of average disposition . . . to act rashly or without due

deliberation and reflection, and from this passion rather than

from judgment.'" People v. Berry, 18 Cal. 3d 509, 515 (1976),

quoting People v. Valentine, 28 Cal. 2d 121, 139 (1946); People v.

Botchers, 50 Cal. 2d 321, 328-329 (1958).

Defense counsel rendered ineffective assistance by failing

to present character witnesses to testify in Giese’s defense.

Strickland v. Washington, 466 U.S. 668. The character witnesses

would have testified that Giese had no violent propensities and

was peaceful and kind. Defense counsel had nothing to lose and

everything to gain by presenting evidence of Giese’s non-violent

character.

2. Giese’s Efforts to Relocate

Trial counsel failed to present witnesses to corroborate

that Giese planned to move and sought legal help from California

Rural Legal Assistance Organization (CRLA). The District Court

finds that such evidence would have undercut Giese’s theory of

defense by showing Giese had other options. (Appendix C) Giese

disagrees because his attempts to relocate would have

corroborated Giese’s fear of Vallivero and proved that he wanted

to get away from him. The CRLA records prove Giese tried to

determine his rights against what he perceived as an illegal

eviction.

Certified records from the CRLA show that Giese, who had

lived at the dwelling for three years, had been served with a 30day notice on October 2, 2015 and consulted with CRLA on

October 5, 2015. And, without any corroborative evidence of

Giese’s attempts to relocate, the prosecution referred to Giese as

an illegal squatter “from hell.” The prosecutor also argued Giese

“was a nightmare squatter, over two months, given every

opportunity to leave.”

Giese’s attempts to seek help with his eviction would have

proved that Giese wanted to comply with the law and find a place

to live. The evidence from CRLA would have proved Giese was

not a squatter and planned only to assert his rights and sought

assistance to find another place to live. Trial counsel rendered

ineffective assistance by failing to investigate and introduce the

CRLA records. Strickland v. Washington, 466 U.S. 668.

Trial Counsel Rendered Ineffective Assistance

by Failing to Present Witnesses to Testify About

Vallivero’s Violent Behavior

Not only did trial counsel fail to present any witnesses

about Giese’s good character, trial counsel failed to present

witnesses to testify about Vallivero’s aggressive and hostile

character. For example, Tim Himmerich and Sandra Gillham

would have testified about Vallivero’s aggressive character.

The District Court finds that Himmerich’s testimony would

have been cumulative because the jury heard Giese’s statements

about Vallivero’s abuse and threats to shoot Giese. (Appendix C)

Giese disagrees because Vallivero placed Giese in fear for his life.

Giese could not stop; he was “in overdrive” because he believed

Vallivero would kill him. Giese feared for his life and defended

himself against Vallivero.

Giese disagrees because the District Court overlooks that

California Evidence Code section 1103 authorizes the defense in a

criminal case to offer evidence of the victim’s character to prove

his conduct at the time of the charged crime. In a prosecution for

a homicide or an assaultive crime where self-defense is raised,

evidence of the violent character of the victim is admissible to

show that the victim was the aggressor. People v. Rowland, 262

Cal.App.2d 790, 797 (1968); People v. Smith, 249 Cal.App.2d 395,

404-405 (1967)

The District Court overlooks that "[t]he right of an accused

in a criminal trial to due process is, in essence, the right to a fair

opportunity to defend against the State's accusations. The right[]

. . . to call witnesses in one's own behalf has long been recognized

as essential to due process." Chambers v. Mississippi, 410 U.S.

284, 294 (1973); see also Crane, 476 U.S. at 690.

Trial counsel rendered ineffective assistance by failing to

investigate and introduce the CRLA records. Strickland v.

Washington, 466 U.S. 668.

II.

THE TRIAL COURT DENIED GIESE DUE

PROCESS AND A FAIR TRIAL BY ADMITTING

HIS UN-MIRANDIZED AND INVOLUNTARY

STATEMENTS

Giese’s Claim is Not Procedurally Barred

The District Court finds that trial counsel’s failure to make

a contemporaneous objection procedurally barred Giese’s claim.

(Appendix C) Giese disagrees. The CCA unreasonably held, “To

the extent appellant claims that his statements were involuntary

because the detectives exploited his mental illness and unduly

prolonged his interview at the sheriff’s station, those were not

raised below and are thus forfeited.” (Appendix H)

But Giese filed a written motion to “suppress involuntary

statements,” and trial counsel argued Giese’s statements were

“involuntary as a matter of law” because of the detectives’ failure

to Mirandize him. The District Court finds that Giese<s written

motion did not “argue . . . that his statements were coerced or

involuntary because of the circumstances of the interview.

[Citations].” And the motion made only “bare references” and did

not develop “any argument” regarding involuntary statements.

(Appendix C)

The District Court also overlooks that trial counsel

presented and the trial court considered Giese’s mental health

and voluntariness issues. And the District Court overlooks that

Giese did raise the Miranda and voluntariness claims in the trial

court and the CCA considered the issue. (Appendix H)

The District Court also “declines to consider” Giese’s

ineffective assistance of counsel argument. (Appendix C) Giese

disagrees because, trial counsel’s inaction violated Giese’s

constitutional right to the effective assistance of counsel. People v.

Centeno, 60 Cal.4th 659, 674 (2014); Strickland v. Washington,

466 U.S. 668.

Giese Asserted His Miranda Rights

Giese also asserted his Miranda rights. He told the

detectives that “Well, I don’t know my rights . . . I defended

myself . . . ” The detective responded, “Need to talk to you to get

that . . . That’s all we’re trying to do.” And the detectives

continued to talk to Giese. After two hours into the interview,

Giese told the detective, “I didn’t know I didn’t have to talk to you

...”

The CCA unreasonably applied clearly established Supreme

Court precedent by rejecting Giese’s claim that he made

involuntary statements and that the deputies obtained Giese’s

statements in violation of Miranda. The extensive police station

interviews and Giese’s mental health impairments prove that he

made involuntary statements and the CCA unreasonably found

no deprivation of Giese’s Fifth Amendment constitutional right to

remain silent. Chapman v. California, 386 U.S. 18, 24 (1967).

And, if trial counsel forfeited the issue, then trial counsel

rendered ineffective assistance. Strickland, 466 U.S. 668.

The District Court finds the CCA reasonably decided that,

under the circumstances, the police did not need to Mirandize

Giese because Giese was not in custody, the police did not

physically restrain him, the police told him he was not under

arrest, the police did not display any weapons and the officers did

not speak to him in an aggressive manner. (Appendix C)

The District Court overlooks that several objective factors

prove that, because the deputies restrained Giese’s freedom, the

deputies were required to Mirandize Giese before or during the

time they interviewed Giese at the hospital. The deputies were

dispatched to his mother’s home to collect, control and interrogate

Giese. The deputies ordered Giese to come outside and walk

backwards toward the deputies, who patted him down on the

street.

The watch commander, fire department medics, and an

ambulance responded to the scene. A deputy accompanied Giese

at all times at Caves’ home. A deputy then accompanied Giese in

the ambulance to the hospital while another deputy followed in a

patrol car.

The deputies took Giese to the emergency room and

monitored him until Detective Marquez arrived. They stationed

themselves in the hallway. As a detective questioned Giese at his

curtained bedside, another detective and two deputies stationed

themselves outside.

The District Court overlooks that the relevant inquiry is

“whether a reasonable person in defendant’s position would have

felt he or she was in custody.” People v. Stansbury, 9 Cal.4th 824,

830 (1995). A hospital interrogation does not categorically rule

out custody. People v. Mosley, 73 Cal.App.4th 1081, 1090-1091

(1999); United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985)

(“If the police . . . monitored the patient's stay, stationed

themselves outside the door, arranged an extended treatment

schedule with the doctors, or some combination of these, law

enforcement restraint amounting to custody could result.”)

III.

THE PROSECUTION FAILED TO PROVE

FIRST DEGREE PREMEDITATED MURDER

BEYOND A REASONABLE DOUBT

The prosecution failed to prove, beyond a reasonable doubt,

that Giese committed premeditated and deliberate murder.

People v. Nguyen, 61 Cal.4th 1015, 1054-1055 (2015) citing

Jackson v. Virginia, 443 U.S. 307, 318-319, 61 L.Ed.2d 560, 99

S.Ct. 2781 (1979). The District Court finds Giese armed himself

with a rock before walking into the home, had a motive to kill

Vallivero, beat Vallivero viciously and stabbed him in the neck.

(Appendix C)

Giese disagrees. The evidence showed a spontaneous,

fast-occurring explosion of violence evincing intent to kill or

disable, but not a carefully weighed or deliberated gang attack or

a plan to kill. And, an unjustified killing is presumed to be

murder of the second, not the first degree. People v. Anderson, 70

Cal.2d 15, 25 (1968). Giese did not deliberate or choose to kill

Vallivero. Grabbing a rock, bottle, and bat fail to constitute

“planning activity.” And, if Giese wanted to remain as Vallivero’s

roommate, Giese would frustrate that goal by killing Vallivero.

With Vallivero dead, Giese would have been evicted from the

mobile park home. Anderson, 70 Cal.2d at 27.

Premeditated murder requires more than express malice or

intent to kill. People v. Van Ronk, 171 Cal.App.3d 818, 822–823

(1985); People v. Martinez, 193 Cal.App.3d 364, 369 (1987)

(careful thought and weighing of considerations); People v.

Boatman, 221 Cal.App.4th 1253, 1264 (2013) (“[S]ubstantially

more reflection than may be involved in the mere formation of a

specific intent to kill”); People v. Bender, 27 Cal.2d 164 (1945).

Acts demonstrating an intent to kill are not enough to prove first

degree murder because an unjustified killing is presumed to be

murder of the second, not the first degree. People v. Anderson, 70

Cal.2d 15, 25 (1968). The factors stated in Anderson, 70 Cal.2d

15, namely, planning, motive, and method of killing – are absent.

IV.

THE TRIAL COURT VIOLATED GIESE’S

CONSTITUTIONAL RIGHTS TO A FAIR TRIAL

AND DUE PROCESS BY EXCLUDING

EVIDENCE OF VALLIVERO’S DRUG USE

The trial court excluded all references to Vallivero’s illicit

drug use. The trial court denied Giese’s right to present a defense

because Vallivero’s drug use and Giese’s knowledge of Vallivero’s

unreasonable and violent behavior while on drugs proved Giese

did not premeditate Vallivero’s murder and prove Giese acted in

self-defense or imperfect self-defense.

The District Court finds that the CCA reasonably found

evidence of Vallivero’s drug use “irrelevant and unduly

prejudicial” and would not have changed the outcome because the

jury knew about Vallivero’s alcohol use. (Appendix C)

The District Court overlooks that the trial court excluded

all mention of Vallivero’s extensive drug use. Although Giese

could explain what happened, Giese could not explain why he

believed Vallivero could kill him. Although Giese could present

part of his defense, he could not present the critical part of Giese’s

defense, that Vallivero’s illegal drug use, not his alcohol use,

affected his perceptions of the need to defense himself.

And even though the jury heard about Vallivero’s alcohol

abuse and Vallivero’s blood alcohol level when he was killed, trial

counsel never presented evidence to show how alcohol impacted

Vallivero’s state of mind and caused him to act aggressively

toward Giese.

Exclusion of the evidence violated Giese’s rights to due

process and a fair trial. U.S. Const. amends. VI, XIV; Washington

v. Texas, 388 U.S. 14, 19 (1967); Chambers v. Mississippi, 410

U.S. 284. Prejudice resulted because, to understand Giese’s

defenses, the jury needed to understand Giese’s state of mind. By

excluding the evidence, the jury could not understand why Giese

perceived Vallivero’s action as threatening. Giese’s perceptions

corroborated his fear that Vallivero would kill him and showed

that Giese acted out of fear that Vallivero would kill him. People

v. Minifie, 13 Cal.4th 1055, 1065 (1996); People v. Sotelo-Urena, 4

Cal.App.5th 732, 745 (2016).

THE MUTUAL COMBAT INSTRUCTION

VIOLATED GIESE’S CONSTITUTION RIGHTS

TO A RELIABLE JURY DETERMINATION OF

HIS GUILT

Over Giese’s objection, the trial court instructed the jury

with CALCRIM No. 3471, the instruction on mutual combat.

CALCRIM No. 3471 instructed the jury that Giese had no right to

self defense if the parties engaged in mutual combat, i.e., if he

“did not try to withdraw from a fight” after Vallivero punched

him.

The District Court finds the CCA reasonably rejected

Giese’s claim because the evidence supported the mutual combat

instruction, the jury could have found Giese engaged in mutual

combat with Vallivero, and that Giese acted as the initial

aggressor. (Appendix C) The District Court also finds that no

clearly established federal law prohibits a trial court from

instructing a jury with a correct but inapplicable law. (Appendix

Giese disagrees because the mutual combat instruction

removed a material factual issue from the jury’s determination,

lowered the prosecution’s burden of proof, and impinged on the

defenses of perfect and imperfect self-defense by telling the jurors

that Giese had no right to self-defense if he “engage[d] in mutual

combat and did not try to withdraw from a fight” when Vallivero

punched him. CALCRIM No. 3471.

The District Court finds that AEDPA does not permit Giese

to generally frame his claim in terms of due process and a fair

trial. (Appendix C) The District Court overlooks Fauber v. Davis,

43 F.4th 987, 1007 (9th Cir. 2022), upon which the District Court

relies, involved an unaccepted plea offer. Unlike an unaccepted

plea agreement, CALCRIM No. 3471 violated Giese’s

constitutional guarantees to due process, fair trial, and reliable

jury determination of all factual questions material to the

charges. U.S. Const. amends. V, VI, XIV; Middleton v. McNeil,

541 U.S. 433, 437 (2004); In re Winship, 397 U.S. 358, 364 (1970).

VI.

THE PROSECUTOR’S PREJUDICIAL

MISCONDUCT DURING CLOSING ARGUMENT

DEPRIVED GIESE OF DUE PROCESS AND A

FAIR TRIAL

Introduction

The prosecutor committed misconduct by misstating the

law during his closing arguments to the jury. "Improper remarks

by a prosecutor can 'so infect[] the trial with unfairness as to

make the resulting conviction a denial of due process.'" See,

People v. Earp, 20 Cal.4th 826, 858 (1999) citing Darden v.

Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d

144 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct.

1868, 1871, 40 L.Ed.2d 431 (1974).

Giese’s Prosecutorial Misconduct Claims Are

Not Procedurally Barred

Trial counsel rendered ineffective assistance by failing to

object to the prosecutorial misconduct. Strickland, 466 U.S. at

694. The District Court finds the CCA properly held that Giese

forfeited the misconduct issues by failing to raise them in the

trial court and that trial counsel did not render ineffective

assistance. (Appendix C)

Giese disagrees. Competent counsel would have objected to

the prosecutor’s multiple misstatements of law, a reasonable

possibility exists that the jury did not properly consider the lesser

included offenses given the prosecutor’s misstatements of law,

and absent the improper argument, at least one juror would have

determined the offense was a lesser offense to murder. People v.

Wilkins, 56 Cal.4th 333, 351 (2013); People v. Soojian, 190

Cal.App.4th 521 (2010); People v. Anzalone, 141 Cal.App.4th 380

(2006) disapproved on another ground (Trial counsel rendered

prejudicial ineffective assistance by failing to object). Id. at 393,

395. People v. Stone, 46 Cal.4th 131, 140 (2009) (Case reversed

because prosecutor misstated the law on attempted murder by

arguing that indiscriminate shooting into an undefined “zone of

danger” constituted attempted murder). Id. at 392-393.

The District Court overlooks that the prosecutor’s

misconduct "'so infected the trial with unfairness as to make the

resulting conviction a denial of due process.'" Darden v.

Wainwright, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo,

416 U.S. at 643).

The prosecutor’s multiple misstatements of law during

closing arguments constituted misconduct by suggesting to the

jury that the only proper verdict was premeditated first degree

murder. People v. Hill, 17 Cal.4th 800, 832 (1998). Giese

disagrees. The prosecutor engaged in a “pervasive campaign to

mislead the jury on key legal points.” Id. Even if the trial court

properly instructed the jury, the sheer onslaught of the

prosecutor’s misstatements deprived Giese of due process and a

fair trial and require reversal. Id. at 845-846.

VII. THE CUMULATIVE ERRORS REQUIRE

RELIEF

The District Court finds each individual error meritless and

no cumulative error occurred. (Appendix C) Giese disagrees

because his claims prove that the multiple errors cumulatively

deprived Giese due process, a fair trial, and the right to present a

defense. Chambers v. Mississippi, 410 U.S. at 289-295 & fn.3;

Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007).

CONCLUSION

Giese respectfully requests that this Court grant Certiorari

because “. . . reasonable jurists could debate whether (or, . . .

agree that) the petition should have been resolved in a different

manner or that the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Slack v. McDaniel, 529 U.S.

473 (2000) (quoting Barefoot v. Estelle, 463 U.S. at 893 and n.

4.(1983))

DATED: October 21, 2025

Respectfully submitted,

FAY ARFA, A LAW CORPORATION

/s Fay Arfa

______________________________

Fay Arfa, Attorney for Petitioner

APPENDIX

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APPENDIX A

Case 2:21-cv-08535-MEMF-JPR

Document 50

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JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CHARLES CHAD GIESE,

Petitioner,

CRAIG KOENIG, Warden,

Respondent.

) Case No. CV 21-8535-MEMF (JPR)

)

J U D G M E N T

)

Pursuant to the Order Accepting Magistrate Judge’s Report and

Recommendation,

IT IS HEREBY ADJUDGED that the Petition is DENIED and this

action is dismissed with prejudice.

DATED:

February 5, 2025

MAAME EWUSI-MENSAH FRIMPONG

U.S. DISTRICT JUDGE

APPENDIX B

Case 2:21-cv-08535-MEMF-JPR

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CHARLES CHAD GIESE,

Petitioner,

CRAIG KOENIG, Warden,

Case No. 2:21-cv-08535-MEMF (JPR)

ORDER ACCEPTING FINDINGS

AND RECOMMENDATIONS OF

UNITED STATES MAGISTRATE

JUDGE

Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records

on file, and the Report and Recommendation of the United States Magistrate Judge.

Further, the Court has engaged in a de novo review of those portions of the Report

to which objections have been made.

The Report and Recommendation (“Report”) recommends denial of the

Petition and dismissal of this action with prejudice. (ECF No. 43.) As explained

below, Petitioner’s objections to the Report (ECF No. 48) do not warrant a change

to the Magistrate Judge’s findings or recommendation.

For his claims of ineffective assistance of counsel, Petitioner objects to the

Report’s finding that the “claims fail because [Petitioner] did not submit a

declaration” to support the claims. (ECF No. 48 at 11.) This objection does not

APPENDIX C

Case 2:21-cv-08535-MEMF-JPR

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overcome the Report’s finding that the claims “fail for lack of evidence.” (ECF No.

43 at 79.) The Report’s finding is entirely consistent with Supreme Court

precedent. See Dunn v. Reeves, 594 U.S. 731, 743 (2021) (per curiam) (it is clearly

established that “a silent record cannot discharge a prisoner’s burden” to prove

ineffective assistance of counsel) (citing Burt v. Titlow, 571 U.S. 12, 15 (2013)).

For his claim of ineffective assistance of counsel based on the failure to seek

admission of evidence of the victim’s past methamphetamine use, Petitioner objects

that the evidence was “required” to be admitted under California’s rule of

completeness. (ECF No. 48 at 12-13.) To the contrary, as the Report found, the

rule does not “prevent courts from excluding parts of a conversation that are

irrelevant, unduly prejudicial, or needlessly time-consuming.” (ECF No. 43 at 94.)

This finding was consistent with the California Court of Appeal’s finding that

evidence of the victim’s past methamphetamine use “had no relevancy based on the

negative toxicology report [of the victim], and past use was overly prejudicial.”

(Id. at 77.) Thus, an argument for the admission of this evidence was “doomed to

fail.” (Id. at 94.)

For his claim of ineffective assistance of counsel based on the failure to

present expert testimony about drug and alcohol use, Petitioner objects that the

claim was rejected because he “did not enclose an expert’s declaration.” (ECF No.

48 at 14.) But the Report’s finding was consistent with the Supreme Court’s

holdings that “a silent record cannot discharge a prisoner’s burden” to prove

ineffective assistance of counsel. Dunn, 594 U.S. at 743. In the absence of

evidence of what an expert would have said, the claim is speculative. See Gallegos

v. Ryan, 820 F.3d 1013, 1035 (9th Cir. 2016) (speculation about what an expert

would have said is insufficient to establish prejudice under Strickland) (citing

Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001)).

For his claim of ineffective assistance of counsel based on the failure to

present evidence of Petitioner’s non-violent character and efforts to relocate,

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Petitioner objects that counsel “had nothing to lose” in presenting such testimony.

(ECF No. 48 at 19.) But the Supreme Court “has never established anything akin to

. . . [a] ‘nothing to lose’ standard for evaluating Strickland claims.” Knowles v.

Mirzayance, 556 U.S. 111, 122 (2009). Instead, the record here shows that “trial

counsel strategically decided not to call the witnesses whom Petitioner has

identified.” (ECF No. 43 at 98.) Specifically, trial counsel “explained that he

decided not to call those witnesses because he believed they would have undercut

Petitioner’s self-defense theory by showing that he had multiple options available

to him other than staying at [the victim’s] home.” (Id. at 99.) As the Report found,

counsel’s informed and strategic decision about these witnesses is “virtually

unchallengeable” on federal habeas review. (Id.)

For his claim of ineffective assistance of counsel based on the failure to

present testimony about the victim’s propensity for violence, Petitioner objects to

the Report’s finding that such testimony would have been cumulative. (ECF No.

48 at 21.) Petitioner does not explain, however, why the testimony was not

cumulative. The Report reasonably found that the jury heard evidence, from

multiple sources, about the victim’s abusive behavior, including his threats to shoot

Petitioner in the face. (ECF No. 43 at 103.) Thus, Petitioner failed to show

prejudice from counsel’s failure to present cumulative evidence about the victim’s

propensity for violence. (Id.)

For his claim challenging the voluntariness of his pretrial statements to

detectives, Petitioner objects to the Report’s finding that the claim is procedurally

barred. (ECF No. 48 at 22.) As the Report found, with extensive analysis, the

claim is procedurally barred because the California Court of Appeal determined

Petitioner had failed to raise the issue at trial. (ECF No. 43 at 15-23; see also ECF

No. 9-1 at 9.) Although Petitioner argues that he did raise the issue at trial, with a

written motion (ECF No. 48 at 22-23), the Report explained that the motion did not

argue, as Petitioner argues here, that his statements were coerced or involuntary

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because of the circumstances of the interview (ECF No. 43 at 16 and n.9). Instead,

the motion raised only an argument under Miranda v. Arizona, 384 U.S. 436

(1966). (ECF No. 38-1 at 107-111 [Clerk’s Transcript, Volume 1, pages 97-101].)

Although the motion also made some bare references to “involuntary statements”

(id.), it did not develop any argument in that regard. This was insufficient to

preserve a coercion or involuntariness issue at trial. See People v. Alvarez, 14 Cal.

4th 155, 186 (1996) (defendant’s bare reference to the “confrontation rule” in his

moving papers was insufficient to preserve a claim under the Sixth Amendment’s

confrontation clause). And although Petitioner now argues that the Report

“overlooks” that his counsel was ineffective for not raising the coercion issue at

trial (ECF No. 48 at 23), Petitioner did not raise this argument before the Magistrate

Judge, and the Court declines to consider it now in the first instance. See Brook as

Trustee of David North II Trust v. McCormley, 837 F. App’x 433, 436 (9th Cir.

2020) (district court need not address novel arguments raised in objections). Thus,

the coercion claim is procedurally barred.

For his Miranda claim, Petitioner objects that the California Court of Appeal

unreasonably rejected it. (ECF No. 48 at 25.) The California Court of Appeal

found that, under the totality of the circumstances, Miranda warnings were not

required because Petitioner was not “in custody” when he spoke to detectives at the

hospital and the sheriff’s station. (ECF No. 9-1 at 5-9.) Petitioner disagrees,

pointing out that deputies were dispatched to the home of Petitioner’s mother,

ordered Petitioner to come outside and walk backwards toward them, patted him

down, accompanied him to the hospital, and stationed themselves outside the

hospital room. (ECF No. 48 at 25-26.) This objection does not overcome the

California Court of Appeal’s determination that the totality of the circumstances

failed to establish custody: Petitioner was free of physical restraints, he was

advised he was not under arrest and was free to leave, no weapons were displayed,

and no officer spoke to him in an aggressive or accusatory manner or employed

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special techniques to pressure him. (ECF No. 9-1 at 8-9.) Moreover, every effort

was made to ensure Petitioner was comfortable and that his needs were

accommodated. (Id. at 9.) Given these circumstances, the state court’s rejection of

this claim was not objectively unreasonable.

For his claim challenging the sufficiency of the evidence, Petitioner objects

that the evidence failed to prove he killed with premeditation and deliberation.

(ECF No. 48 at 27.) The California Court of Appeal found that sufficient evidence

supported the jury’s finding: Petitioner had armed himself with a rock before

encountering the victim, had a motive to kill the victim, beat him to death in a

particularly vicious manner, and stabbed him in the neck after he was dead. (ECF

No. 9-1 at 11-12.) Petitioner’s objection does not overcome the state court’s

finding.

For his claim challenging the exclusion of evidence, Petitioner objects that it

was prejudicial error for the trial court to exclude all evidence of the victim’s drug

use. (ECF No. 48 at 29.) The California Court of Appeal rejected this claim after

agreeing with the trial court that evidence of past drug use by the victim, who had

no drugs in his system at the time of his death, was irrelevant and unduly

prejudicial. (ECF No. 9-1 at 13.) The California Court of Appeal also concluded

that it was not reasonably probable that evidence of the victim’s drug use would

have changed the outcome, given that the jury knew of the victim’s alcohol use.

(Id.) Petitioner objects that “the jury could not understand why [Petitioner]

perceived [the victim’s] act as threatening.” (ECF No. 48 at 24.) To the contrary,

the jury “was aware that [the victim] was drunk and had a history of threatening to

kill Petitioner when he was drunk.” (ECF No. 43 at 54.)

For his claim of instructional error, Petitioner objects that his rights were

violated when the jury was instructed with CALCRIM No. 3471, a “mutual

combat” instruction. (ECF No. 48 at 32.) The California Court of Appeal

determined that the instruction was supported by evidence from which the jury

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could find that Petitioner not only engaged in mutual combat with the victim, but

also acted as the initial aggressor. (ECF No. 9-1 at 14.) And as the Report found,

the California Court of Appeal’s determination could not be objectively

unreasonable because there is no clearly established federal law, i.e., “the Supreme

Court has never held that a correct but inapplicable jury instruction violates due

process.” (ECF No. 43 at 60.) Although Petitioner objects that clearly established

federal law does afford him the right to due process and a fair trial (ECF No. 48 at

33), this objection does not rebut the Report’s finding. “The Supreme Court has

repeatedly reminded lower courts applying AEDPA not to ‘frame[e] [Supreme

Court] precedents at a high level of generality.” Fauber v. Davis, 43 F.4th 987,

1007 (9th Cir. 2022) (alterations in original, citing Nevada v. Jackson, 569 U.S.

505, 512 (2013) (per curiam)). Petitioner’s overly general framing, in terms of due

process and a fair trial, “would defeat the substantial deference that AEDPA

requires.” Fauber, 43 F.4th at 1008 (quoting Jackson, 569 U.S. at 512).

For his claims of prosecutorial misconduct, Petitioner objects that the claims

are not procedurally barred. (ECF No. 48 at 34.) To the contrary, the California

Court of Appeal found that the claims were forfeited because they were not raised

before the trial court, and that Petitioner had not shown cause for the default based

on his counsel’s alleged ineffectiveness in failing to object to the alleged

misconduct. (ECF No. 9-1 at 16-19.) The Report also analyzed, in detail, why

counsel’s failure to object to the prosecutor’s alleged misstatements of the law

during closing arguments did not amount to ineffective assistance. (ECF No. 43 at

80-93.) Petitioner does not challenge these findings in any meaningful manner.

(ECF No. 48 at 34-36.) Because Petitioner has failed to overcome the procedural

bar of his prosecutorial misconduct claims, habeas relief is unavailable for them.

For his claim of cumulative error, Petitioner objects that multiple errors

cumulatively violated his rights. (ECF No. 48 at 38.) To the contrary, Petitioner

APPENDIX C

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Document 49

#:4972

Filed 02/05/25

Page 7 of 7 Page ID

has not overcome the Report’s finding that “each of Petitioner’s claims is meritless,

so there can be no cumulative error.” (ECF No. 43 at 108.)

In sum, Petitioner’s objections are overruled.

ORDER

It is ordered that (1) the Report and Recommendation of the Magistrate Judge

is accepted and adopted; and (2) Judgment shall be entered denying the Petition and

dismissing this action with prejudice.

February 5, 2025

DATED: _________________

___________________________________

MAAME EWUSI-MENSAH FRIMPONG

UNITED STATES DISTRICT JUDGE

APPENDIX C

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CHARLES CHAD GIESE,

Petitioner,

CRAIG KOENIG, Warden,

Respondent.

) Case No. CV 21-8535-MEMF (JPR)

)

) REPORT AND RECOMMENDATION OF

) U.S. MAGISTRATE JUDGE

)

This Report and Recommendation is submitted to the Honorable

Maame Ewusi-Mensah Frimpong, U.S. District Judge, under 28 U.S.C.

§ 636 and General Order 05-07 of the U.S. District Court for the

Central District of California.

PROCEEDINGS

On October 28, 2021, Petitioner filed a counseled Petition

for Writ of Habeas Corpus by a Person in State Custody, raising

eight claims challenging his 2018 conviction for first-degree

murder.

Respondent answered, and on August 2, Petitioner replied.

For the reasons below, the Court recommends that the

Petition be denied and this action be dismissed with prejudice.

On May 5, 2023, after his motion to dismiss was denied,

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PETITIONER’S CLAIMS

Trial counsel was ineffective because he failed to

present expert testimony about the psychological and physical

effects of methamphetamine and alcohol use or argue that evidence

of the victim’s methamphetamine use was admissible under

California’s “rule of completeness.”

(throughout, the Court uses the pagination generated by its Case

Management/Electronic Case Filing system except for citations to

the Clerk’s and Reporter’s transcripts).)

II.

(Pet. at 5, ECF No. 1

Trial counsel was ineffective because he failed to

investigate and present evidence concerning the victim’s

“propensity for aggression,” Petitioner’s nonviolent character,

and his efforts to move out of the victim’s home.

III.

(Id. at 5-6.)

The trial court violated due process by allowing the

prosecutor to introduce Petitioner’s pretrial statements because

they were coerced and he made them during a custodial

interrogation without first being advised of his Miranda1 rights.

(Id. at 6.)

IV.

The evidence was insufficient to show that Petitioner

committed the charged murder with premeditation and deliberation.

(See id.)

The trial court violated due process and Petitioner’s

right to a fair trial by excluding evidence concerning the

victim’s drug use.

VI.

(See id.)

The trial court violated Petitioner’s right to a jury

trial by instructing the jury with CALCRIM 3471 because it was

Miranda v. Arizona, 384 U.S. 436 (1966).

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not supported by the evidence and effectively precluded the jury

from finding that he acted in self-defense or imperfect self-

defense.

VII.

(See id. at 7; Traverse at 24, ECF No. 41.)

The prosecutor committed misconduct by repeatedly

misstating the law during his closing arguments, and trial

counsel was ineffective in failing to object.

ECF No. 1.)

(See Pet. at 7-8,

VIII. The cumulative effect of the errors alleged in claims

three through seven requires reversal of Petitioner’s

conviction.2

(See id. at 8.)

BACKGROUND

In November 2015, a San Luis Obispo County Superior Court

jury convicted Petitioner of first-degree murder.

(See Lodged

Doc. 10, 2 Clerk’s Tr. at 639-40, ECF No. 38-2.)

He was

sentenced to 26 years to life in state prison.

Clerk’s Tr. at 841-42, ECF No. 38-3; Lodged Doc. 12, 24 Rep.’s

Tr. at 6964, ECF No. 38-32.)

(See id., 3

Petitioner appealed (Lodged Doc. 14, ECF No. 38-36),

asserting grounds three through eight of the Petition, and on

February 26, 2020, the court of appeal affirmed the judgment

(see Lodged Doc. 1, ECF No. 9-1).

petition for review in the state supreme court, which denied it

on May 27, 2020.

Thereafter, he filed a

(See Pet. at 37-75, ECF No. 1.)

Petitioner’s cumulative-error claim does not include the

Petition’s ineffective-assistance claims in grounds one and two, as

the Court has already found (see R. & R. at 4-5, ECF No. 33) and

Petitioner has conceded (see Reply at 2, ECF No. 31 (“Ground Eight

does not include Grounds One and Two, but refers to and includes

Grounds Three through Seven.”)).

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On September 21, 2020, Petitioner filed a petition for writ

of certiorari in the U.S. Supreme Court, which denied it on

November 2.

2021, he filed a habeas petition in the court of appeal,

asserting the Petition’s ineffective-assistance claims in grounds

one and two.

2021, that court denied the petition without prejudice, citing

Petitioner’s failure to first seek relief in the superior court.

(See Lodged Doc. 7, ECF No. 9-7.)

asserted the same claims in a habeas petition in the superior

court (see Lodged Doc. 18, ECF No. 38-40), which denied it in a

reasoned decision on May 19, 2022 (see Lodged Doc. 19, ECF No.

38-41).

petition in the court of appeal (see Lodged Doc. 20, ECF No. 38-

42), which denied it without comment (see Lodged Doc. 21, ECF No.

38-43).3

supreme court, asserting the same claims.4

Case Info., http://appellatecases.courtinfo.ca.gov/ (search for

“Charles” with “Giese” in supreme court) (last visited Feb. 28,

2024).

(See Lodged Doc. 5, ECF No. 9-5.)

(See Lodged Doc. 6, ECF No. 9-6.)

On October 26,

On October 29,

On November 3, 2021, he

On May 24, 2022, he raised the same claims in a habeas

On June 15, 2022, he filed a habeas petition in the

See Cal. App. Cts.

On July 27, 2022, the supreme court denied it.

See id.

Although the court of appeal summarily denied Petitioner’s

ineffective-assistance claims, it granted his application to file

documents under seal and took judicial notice of the pleadings

stemming from his superior-court habeas petition and of the

superior court’s reasoned decision denying it. (See Lodged Doc.

21, ECF No. 38-43.)

Neither party has lodged a copy of that habeas petition, but

the Court accepts Petitioner’s counsel’s uncontested word that it

presented grounds one and two of the Petition. (See Mot. Withdraw,

ECF No. 25.)

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SUMMARY OF THE EVIDENCE

The factual summary in a state appellate-court decision is

entitled to a presumption of correctness under 28 U.S.C.

§ 2254(e)(1).

(9th Cir. 2015); but see Murray v. Schriro, 745 F.3d 984, 1001

(9th Cir. 2014) (discussing “state of confusion” in circuit’s law

concerning interplay of § 2254(d)(2) and (e)(1)).

because one of Petitioner’s claims challenges the sufficiency of

the evidence, the Court has independently reviewed the

state-court record.

1054-55 (9th Cir. 2017).

that the following statement of facts from the California Court

of Appeal decision on direct review fairly and accurately

summarizes the evidence.

See Crittenden v. Chappell, 804 F.3d 998, 1010-11

Nonetheless,

See Nasby v. McDaniel, 853 F.3d 1049,

Based on that review, the Court finds

In early 2015, [Petitioner] began renting a room in

Walter

[Petitioner] moved in, the manager of the mobile home

park began receiving complaints from other residents

about

Vallivero’s

frequent

loud

mobile

home.

arguments

Shortly

Vallivero’s

after

home.5

Kristy Tolbert, one of Petitioner’s and Vallivero’s

neighbors, testified that she overheard the two arguing so

regularly that she became “numb” to it. (Lodged Doc. 12, 9 Rep.’s

Tr. at 2450-52, ECF No. 38-17.) According to her, Vallivero did

“most of the arguing and talking,” whereas Petitioner “was pretty

quiet.” (Id. at 2451.) Several other neighbors — including Sarah

Demolar, her husband Joshua, and Barbara Clark — testified about

arguments they overheard and Vallivero’s threats to shoot

Petitioner, which he made in the weeks and months before he was

killed. (See Lodged Doc. 12, 10 Rep.’s Tr. at 2712, 2713, 2715,

2726, 2730, 2753-54, 2760-63, 2767, 2771, ECF No. 38-18.)

The

manager and owner of the Rancho Oaks Community Park, where

Petitioner and Vallivero lived, also testified. (See Lodged Doc.

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There were also complaints that [Petitioner] had urinated

in public and was acting strangely.

requested that [Petitioner] be ordered to leave the

mobile home park.

Shawn Reed, the owner of the park,

sent

letter

regarding [Petitioner] and stating that he would be asked

continued.

Vallivero

leave

the

park

September

Several residents

outlining

his

the

complaints

inappropriate

police

were

behavior

called

Vallivero’s home regarding a physical altercation between

[Petitioner] and Vallivero. [Petitioner] told the police

that he and Vallivero were arguing about trash in the

kitchen when Vallivero reached into the cushion on the

couch and pulled out a BB gun.

hand that was holding the gun and repeatedly punched

Vallivero in the face.

officers that [Petitioner] repeatedly punched him in the

face after he confronted [Petitioner] about the messy

kitchen.

and swollen, it was [Petitioner] who grabbed the BB gun

from the couch cushions before running outside.

[Petitioner] grabbed the

Vallivero told the responding

According to Vallivero, whose face was bloody

A few days later, Reed sent Vallivero a letter

referring to the recent incident and revoking Vallivero’s

right to have [Petitioner] as a renter. On September 17,

Reed sent Vallivero another letter informing him that

[Petitioner] had 30 days to vacate the premises.

12, 8 Rep.’s Tr. at 2130-31, 2202-03, ECF No. 38-16.)

APPENDIX D

Ten

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days later, Reed sent Vallivero a letter informing him

that [Petitioner] had been observed recklessly driving in

the

subsequently told Reed “he was having a hard time getting

an agreement with [[Petitioner]] to vacate the park.” On

October 7, [Petitioner] was formally served with notice

of the eviction proceedings against him.

mobile

home

park

while

intoxicated.

Vallivero

On the morning of November 16, [Petitioner’s] mother

Brenda Caves called 911 and reported that [Petitioner]

had hit his roommate with a baseball bat, that the

roommate

[Petitioner] had put him in the bathtub. San Luis Obispo

County Sheriff’s Deputies Dustin Phillips and Jason Hall

responded to Caves’s house. [Petitioner] was outside the

house with Caves and his hand was bandaged. [Petitioner]

requested medical assistance and Deputy Hall rode with

him in an ambulance to the hospital.

the ambulance, [Petitioner] said he cut his finger on a

glass bottle and that his jaw hurt because he had been

hit with a fist.

did

not

appear

breathing,

and

that

While they were in

Vallivero’s body was found in the bathtub.

He had

a laceration to his left arm, a deep incision wound on

the back of his neck, lacerations and fractures along the

left side of his head, stab wounds to his back, and

numerous wounds to his head and body that were consistent

with blunt force trauma.

wounds on his forearms, hands, and wrists, and bruises on

the right side of his torso.

Vallivero also had defensive

The cause of death was

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blunt force injuries to the head.

showed that Vallivero had a 0.19 blood alcohol level;

tests for controlled substances were negative.

Toxicology results

[Petitioner] was interviewed at the hospital and

later at the sheriff’s station.

finished cleaning the kitchen when Vallivero arrived home

after buying beer and told him to “get the fuck out of

[his] house.”

himself with a rock because he was going to walk past

Vallivero

Vallivero told [Petitioner], “I’m going to kill you.

You’re

[Petitioner].

and struck him approximately three times on the head with

a beer bottle.

backwards

baseball bat and hit Vallivero with it, causing Vallivero

to fall to the floor.

[Petitioner] became “heated” and armed

and

going

He said he had just

was

“sick

fucking

die.”

[Vallivero’s]

Vallivero

shit.”

punched

[Petitioner] hit Vallivero with the rock

onto

The bottle broke and Vallivero fell

the

couch.

[Petitioner]

picked

[Petitioner] continued to hit Vallivero with the bat

as Vallivero lay motionless on the floor.

[Petitioner]

then retrieved a knife and tried to stab Vallivero in the

chest “to make sure that he was gone.”

not penetrate Vallivero’s chest, so [Petitioner] stabbed

him in the neck.

The knife would

After placing Vallivero’s body in the bathtub,

[Petitioner] drank Vallivero’s beer and attempted to

clean

ultimately called Caves and told her what had happened.

the

house.

also

considered

APPENDIX D

fleeing,

but

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[Petitioner] believed that he had to defend himself

because Vallivero “kept punching” him, but acknowledged

that

[Petitioner] felt that his conduct was due to feelings of

frustration that “went way overboard” and added that if

he could “take it back [he] would.”

Vallivero

struck

him

only

once

twice.

(Lodged Doc. 1 at 2-5, ECF No. 9-1 (footnote omitted).)

had

STANDARD OF REVIEW

Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism

and Effective Death Penalty Act of 1996:

An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim — (1)

resulted in a decision that was contrary to, or involved

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.

Under AEDPA, the “clearly established Federal law” that

unreasonable

application

of,

clearly

established

controls federal habeas review consists of holdings of Supreme

Court cases “as of the time of the relevant state-court

decision.”

Supreme Court has “repeatedly emphasized, . . . circuit precedent

does not constitute ‘clearly established Federal law, as

Williams v. Taylor, 529 U.S. 362, 412 (2000).

APPENDIX D

As the

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determined by the Supreme Court.’”

Glebe v. Frost, 574 U.S. 21,

24 (2014) (per curiam) (quoting § 2254(d)(1)).

precedent “cannot ‘refine or sharpen a general principle of

Supreme Court jurisprudence into a specific legal rule that [the]

Court has not announced.’”

(per curiam) (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013)

(per curiam)).

Further, circuit

Lopez v. Smith, 574 U.S. 1, 4 (2014)

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.

Williams, 529 U.S. at 412-13.

“contrary to” clearly established federal law if it either

applies a rule that contradicts governing Supreme Court law or

reaches a result that differs from the result the Supreme Court

reached on “materially indistinguishable” facts.

Packer, 537 U.S. 3, 8 (2002) (per curiam) (citation omitted).

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.”

A state-court decision is

Early v.

Id.

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’ (emphasis added).”

(quoting § 2254(d)).

identifies the governing legal rule may be rejected if it

unreasonably applies the rule to the facts of a particular case.

Williams, 529 U.S. at 407-08.

Id. at 11

A state-court decision that correctly

To obtain federal habeas relief

APPENDIX D

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#:4817

for such an “unreasonable application,” however, a petitioner

must show that the state court’s application of Supreme Court law

was “objectively unreasonable.”

relief is warranted only if the state court’s ruling was “so

lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for

fairminded disagreement.”

103 (2011).

“substantial and injurious effect” on the verdict.

Davenport, 142 S. Ct. 1510, 1517, 1523 (2022).

error will not suffice.”

(2015) (per curiam) (citation omitted).

Id. at 409.

In other words,

Harrington v. Richter, 562 U.S. 86,

And even then, the error must have had a

Brown v.

“[E]ven clear

Woods v. Donald, 575 U.S. 312, 316

Here, Petitioner asserted claims three through eight on

direct appeal (see Lodged Doc. 14, ECF No. 38-36) and claims one

and two in the habeas petition he filed in the superior court

(see Lodged Doc. 18, ECF No. 38-40), and the court of appeal and

superior court, respectively, rejected them on their merits in

reasoned decisions (see Lodged Doc. 1, ECF No. 9-1; Lodged Doc.

19, ECF No. 38-41).

petition for review and habeas petition raising the same claims.6

(See Pet. at 37-75, ECF No. 1.)

The supreme court summarily denied his

A rebuttable presumption exists that a higher state court’s

unexplained decision adopted the same reasoning as the last

reasoned state-court decision.

See Wilson v. Sellers, 138 S. Ct.

After the superior court rejected the Petition’s claims one

and two in its reasoned decision, the court of appeal rejected them

without comment. (See Lodged Doc. 20, ECF No. 38-42; Lodged Doc.

21, ECF No. 38-43.)

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1188, 1192 (2018) (“[F]ederal court should ‘look through’ the

unexplained decision to the last related state-court decision

that does provide a relevant rationale” and “presume that the

unexplained decision adopted the same reasoning.”).

have not rebutted that presumption here, and the Court therefore

looks through the supreme court’s silent denials to the court of

appeal’s and the superior court’s reasoned decisions as the basis

for the state court’s judgment on claims three through eight and

claims one and two, respectively.

adjudicated the claims on their merits, the Court’s review is

limited by AEDPA deference.7

The parties

Because the state court

See Richter, 562 U.S. at 100.

DISCUSSION

Part of Petitioner’s Involuntary-Statement Claim and His

Whole Prosecutorial-Misconduct Claim Are Procedurally Barred

In his third ground for relief, Petitioner contends that his

pretrial statements to police were involuntary because they were

the product of police coercion.

part, he claims that “[t]he extensive police station interviews

and [his] mental health impairments prove that he made

(See Pet. at 6, ECF No. 1.)

As related below, the court of appeal rejected Petitioner’s

claim that counsel was ineffective for failing to object to the

prosecutor’s purported misstatements of law because he was not

prejudiced by them, without addressing whether counsel’s

performance was deficient. (See Lodged Doc. 1 at 18-19, ECF No. 91.) The Court’s review of that court’s prejudice finding is of

course limited by AEDPA deference, See Richter, 562 U.S. at 100,

but its review of whether counsel’s performance was deficient is de

novo, see Jones v. Ryan, 52 F.4th 1104, 1116 (9th Cir. 2022)

(“[B]ecause the state court reached only the deficient performance

prong of Jones’s IAC claims, we review only that prong under §

2254(d), and we review the prejudice prong of his claims de novo”

(citations omitted)).

APPENDIX D

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involuntary statements.”8

his seventh claim, he contends that the prosecutor committed

misconduct by making several misstatements of law during his

closing arguments.

(Traverse at 18-19, ECF No. 41.)

(See Pet. at 7, ECF No. 1.)

Respondent maintains that these claims are procedurally

barred because the court of appeal on direct review held that

Petitioner had forfeited them by failing to raise them in the

trial court.

below, Respondent is correct.

(See Answer at 21-22, 46, ECF No. 37.)

As related

Federal habeas courts generally refuse to hear claims that

Applicable Law

were defaulted in state court “pursuant to an independent and

adequate state procedural rule.”

606 (2016) (per curiam) (citing Coleman v. Thompson, 501 U.S.

722, 750 (1991)).

state procedural bar as a separate basis for its decision.

Fairbank v. Ayers, 650 F.3d 1243, 1256 (9th Cir. 2011) (as

amended) (citation omitted).

rule must not be “interwoven” with federal law.

Kernan, 244 F.3d 702, 704 (9th Cir. 2001).

adequate if it is “firmly established and regularly followed.”

Johnson v. Lee, 578 U.S. 605,

The state court must “explicitly invoke[ ]” a

To be independent, the state-law

La Crosse v.

A procedural bar is

The interview occurred at a sheriff’s station, not a police

station. (See Lodged Doc. 10, Interview, Clerk’s Tr. at 207

(unredacted), ECF No. 38-4.) The Clerk’s transcript includes a

redacted and an unredacted version of Petitioner’s interview with

detectives investigating Vallivero’s murder. (See Lodged Doc. 10,

Interview, Clerk’s Tr. (unredacted), ECF No. 38-4; id., Interview,

Clerk’s Tr. (redacted), ECF No. 38-5.) The trial court designated

both “confidential” and “detached” them “from the exhibits

contained in the Clerk’s Normal Transcript.” (See id., 1 Clerk’s

Tr., ECF No. 38-1 at 186; id., 2 Clerk’s Tr., ECF No. 38-2 at 17.)

APPENDIX D

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Walker v. Martin, 562 U.S. 307, 316 (2011) (citation omitted).

To preserve a constitutional claim on appeal, California

requires a defendant to raise a timely, specific objection at

trial.

contemporaneous-objection rule is an independent and adequate

state bar.

Cir. 2012); Fairbank v. Ayers, 650 F.3d 1243, 1256-57 (9th Cir.

2011); see also Rich v. Calderon, 187 F.3d 1064, 1069-70 (9th

Cir. 1999) (as amended) (petitioner’s prosecutorial-misconduct

claims were procedurally barred because he failed to object to

alleged misconduct at trial); Michel v. Galaza, No. CIV S-02-2230

MCE CMK P., 2006 WL 2620481, at *7 (E.D. Cal. Sept. 13, 2006)

(petitioner’s claim that statements to police were involuntary

was procedurally barred when he failed to object to statements’

admission on coercion grounds), accepted by 2007 WL 677616 (E.D.

Cal. Mar. 1, 2007).

See People v. Alvarez, 14 Cal. 4th 155, 186 (1996).

The

See Tong Xiong v. Felker, 681 F.3d 1067, 1075 (9th

When, as here, “the state has adequately pled the existence

of an independent and adequate state procedural ground as an

affirmative defense, the burden to place that defense in issue

shifts to the petitioner.”

(9th Cir. 2003) (as amended).

burden “by asserting specific factual allegations that

demonstrate the inadequacy of the state procedure, including

citation to authority demonstrating inconsistent application of

the rule.”

Bennett v. Mueller, 322 F.3d 573, 586

The petitioner can satisfy this

Id.

Assuming that the respondent has pleaded the existence of an

independent and adequate state procedural ground and the

petitioner has not satisfied his burden of placing the

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procedural-default defense at issue, federal habeas review is

barred unless the petitioner can demonstrate (1) cause for his

procedural default and actual prejudice as a result of the

alleged violation of federal law or (2) a fundamental miscarriage

of justice because, for example, the petitioner is actually

innocent.

513 U.S. 298, 314-15 (1995); Bennett, 322 F.3d at 580.

See Coleman, 501 U.S. at 750; see also Schlup v. Delo,

The court of appeal found that Petitioner had “forfeited”

Analysis

his claim that “his statements were involuntary because the

detectives exploited his mental illness and unduly prolonged his

interview at the sheriff’s station,” as alleged in ground three

of the Petition, by failing to “raise[] [the issue] below” and

his prosecutorial-misconduct claim, as alleged in ground seven,

because “defense counsel did not object to the prosecutor’s

alleged misstatements and made no requests that the jury be

admonished.”

6-8, ECF No. 1.)

the procedural ground relied on by the court of appeal was

inadequate, nor could he because it was adequate, as related

above.

1256-57; see also Rich, 187 F.3d at 1069-70; Michel, 2006 WL

2620481, at *7.

(Lodged Doc. 1 at 9, 16, ECF No. 9-1; see Pet. at

Petitioner has not even attempted to show that

See Tong Xiong, 681 F.3d at 1075; Fairbank, 650 F.3d at

Further, Petitioner has not shown cause relating to the

defaults.

that his statements were “‘involuntary as a matter of law’

because of the detectives’ failure to Mirandize him” (Traverse at

17, ECF No. 41 (quoting Lodged Doc. 10, 1 Clerk’s Tr. at 97-101,

Although he notes that he argued in the trial court

APPENDIX D

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ECF No. 38-1)),9 he did not argue there as he did on direct

review that “[t]he extreme length of the interviews,” their

location, and his “particular mental state at the time . . .

rendered his statements involuntary.”

No. 38-36; see also Traverse at 18-19, ECF No. 41.)

he did not raise his coercion claim in the trial court and has

advanced no reason for his failure to do so.

(Lodged Doc. 14 at 52, ECF

Put simply,

As to his prosecutorial-misconduct claim, Petitioner cites

Martinez v. Ryan, 566 U.S. 1, 17 (2012), for the proposition that

“a procedural default will not bar a federal habeas court from

hearing a substantial claim of ineffective assistance at trial

if, in the initial-review collateral proceeding, there was no

counsel or counsel in that proceeding was ineffective.”

(Traverse at 25, ECF No. 41.)

prosecutorial-misconduct claim does not raise a “substantial

claim of ineffective assistance at trial.”

did, he had counsel in his initial-review collateral proceeding.

(See Lodged Doc. 6, ECF No. 9-6.)

the Petition’s prosecutorial-misconduct claim and its

As an initial matter, his

Moreover, even if it

And in any event, he raised

Although Petitioner captioned his motion to suppress his

pretrial statements as a “Motion to Suppress Involuntary

Statements” (Lodged Doc. 10, 1 Clerk’s Tr. at 97, ECF No. 38-1),

the only law he cited and the only arguments he offered concerned

whether he was in custody — and thus entitled to Miranda warnings

— when he made the statements (see id. at 99-101). Since Vega v.

Tekoh, 597 U.S. 134 (2022), some courts on federal habeas review

have questioned whether such a freestanding Miranda claim still

exists.

See Gumbs v. Stanford, No. 22-CV-4659 (VEC), 2023 WL

5928454, at *3 n.5 (S.D.N.Y. Sept. 12, 2023), appeal filed, No. 237244

(2d

Cir.

Oct.

2023);

Samuel

Carlin,

No.

2:20-cv-00545-REP, 2023 WL 3627647, at *8 n.2 (D. Idaho May 24,

2023), appeal filed, No. 23-35408 (9th Cir. June 13, 2023).

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corresponding ineffective-assistance claim on direct review, when

he was also represented by counsel.

101, ECF No. 38-36); Martinez, 566 U.S. at 11 (exception for

ineffective-assistance claims applies when “the initial-review

collateral proceeding is the first designated proceeding for a

prisoner to raise a claim of ineffective assistance at trial”).

He does not contend that appellate counsel was ineffective in

prosecuting either claim or that habeas counsel was ineffective

in prosecuting his initial state petition.

inapplicable.

(See Lodged Doc. 14 at 88-

Thus, Martinez is

Absent cause, there is no need to consider prejudice.

See

Thomas v. Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 1991).

any event, as related below in Section VI(D)(1), Petitioner is

unable to demonstrate that the prosecutor’s purported

misstatements of law “worked to his actual and substantial

disadvantage, infecting his entire trial with error of

constitutional dimensions,” United States v. Frady, 456 U.S. 152,

170 (1982) (emphasis omitted), or that a “reasonable probability”

exists that the outcome of the trial would have been different

without them,10 Frost v. Gilbert, 835 F.3d 883, 890 (9th Cir.

In the facts supporting his prosecutorial-misconduct claim,

Petitioner

identifies

each

the

prosecutor’s

supposed

misstatements of law and thereafter conclusorily states, “defense

counsel rendered Ineffective Assistance by Failing to Object.”

(Pet. at 8, ECF No. 1.)

It is questionable whether this was

sufficient to raise an independent ineffective-assistance claim,

particularly given that Petitioner is represented by counsel. See

R. 2(c), Rs. Governing § 2254 Cases in U.S. Dist. Cts. (habeas

petition must “specify all the grounds for relief” and “state the

facts supporting each ground”); see also Fed. R. Civ. P. 8(a)(2)

(requiring that pleading contain “a short and plain statement of

the claim showing that the pleader is entitled to relief”); Brazil

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2016) (en banc) (as amended) (citation omitted).

Petitioner likewise cannot show actual prejudice concerning

his claim that his pretrial statements were coerced.

Fatally, he

has shown no coercive police activity.

507 U.S. 680, 693 (1993) (describing police coercion as “crucial

element” in determination that confession was involuntary);

Colorado v. Connelly, 479 U.S. 157, 167 (1986) (stating that

“coercive police activity is a necessary predicate to finding

that a confession is ‘[in]voluntary’ within the meaning of the

Due Process Clause”).

involuntary because he was not administered a Miranda warning

before making them (see Traverse at 7), no such warning was

required because he was not in custody when he made the

statements, as explained in Section II.

found that neither of the detectives who questioned him “was

aggressive, confrontational, or accusatory or used interrogation

techniques to pressure [him].”

1524, ECF No. 38-14).

let alone showing that that finding was unreasonable or argued

that the court’s fact-finding process was deficient.

he given that the trial court made its findings only after

viewing the video of the police interview, considering the

parties’ briefing on the matter, and conducting an evidentiary

See Withrow v. Williams,

Although he contends his statements were

And the trial court

(Lodged Doc. 12, 6 Rep.’s Tr. at

Petitioner has cited no facts suggesting

Nor could

v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th Cir. 1995) (Rule 8

requires that pleading provide “minimum threshold” giving party

“notice of what it is that it allegedly did wrong”). Nevertheless,

as the court of appeal did (see Lodged Doc. 1 at 17-19, ECF No. 91), the Court addresses Petitioner’s “claim” that counsel erred in

failing to object to the prosecutor’s alleged misstatements of law.

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hearing.

Rep.’s Tr. at 1503-12, ECF No. 38-14.)

Accordingly, the court’s

finding is entitled to AEDPA deference.

See Burton v. Davis, 816

F.3d 1132, 1140 (9th Cir. 2016) (explaining that “a state court’s

findings of fact are ordinarily subject to deference” unless

shown to be deficient under exceptions enumerated “in former

§ 2254[(d)]”); Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir.

2016) (federal court may not “second-guess” state court’s finding

of fact unless it was “actually unreasonable”); compare Hurles v.

Ryan, 752 F.3d 768, 790–91 (9th Cir. 2014) (state court’s factual

finding not entitled to deference when presiding judge did not

hold evidentiary hearing “or provide another mechanism” for

petitioner to develop factual record supporting claim and based

her findings only on her memory).

(See id., 5 Rep.’s Tr. at 1204-75, ECF No. 38-13, 6

There is, moreover, no evidence to support his claim that

police exploited “his mental illness.”

41.)

mental-heath impairments and cites no evidence showing he

suffered from any when he was interviewed or the extent to which

they might have affected his ability to exercise free will under

questioning.

(“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 when claims for relief are unsupported by facts).

transcript of the interviews shows that he spoke freely,

responded appropriately to questions, and recalled without

difficulty his version of the events underlying Vallivero’s

(Traverse at 17, ECF No.

Indeed, he does not identify the nature of his purported

James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)

APPENDIX D

The

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murder.

214 (unredacted), ECF No. 38-4 (relaying prior confrontation with

Vallivero and providing appropriate answers to detective’s

questions concerning details), 217-20 (describing circumstances

of Vallivero’s murder and appropriately responding to questions

concerning details)); United States v. Lewis, 833 F.2d 1380,

1384–86 (9th Cir. 1987) (defendant’s statements at hospital

several hours after he was administered general anesthesia were

voluntary when he claimed to feel fine, was responsive, and

demonstrated unimpaired recollection); United States v. Martin,

781 F.2d 671, 672–74 (9th Cir. 1993) (defendant’s statements were

voluntary despite his being in pain and under influence of

medication when he was conscious, relatively coherent during

questioning, and spoke freely).

purported mental impairment Petitioner had was not

“‘disabl[ing]’” despite his having “a hard time processing

information quickly.”11

ECF No. 38-3.)

(See, e.g., Lodged Doc. 10, Interview, Clerk’s Tr. at

And by his own account, any

(Lodged Doc. 10, 3 Clerk’s Tr. at 743,

Equally meritless is Petitioner’s claim that the length of

the sheriff-station interview shows that his statements were

involuntary.

interview lasted less than four hours (see Lodged Doc. 12, 6

Rep.’s Tr. at 1505, ECF No. 38-14), which does not suggest that

(See Traverse at 18-19, ECF No. 41.)

In total, the

During the interview, Petitioner stated that he had been

prescribed Lorazepam for stress and anxiety.

(Lodged Doc. 10,

Interview, Clerk’s Tr. at 289-90 (unredacted), ECF No. 38-4.) He

did not indicate what dosage he took or how often he took it. In

any event, neither his Petition nor his Traverse cites his

prescription-medication use in support of his coercion claim.

APPENDIX D

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the resulting statements may have been involuntary.

Clark v. Murphy, 331 F.3d 1062, 1072-73 (9th Cir. 2003) (duration

of interrogation did not support finding that suspect’s

statements were involuntary when interrogation lasted less than

six hours; collecting cases); Ashcraft v. Tennessee, 322 U.S.

143, 149-54 (1944) (invalidating confession because police

questioned suspect for 36 hours straight).

the detectives provided him with food and water and allowed him

to take as many cigarette and bathroom breaks as he desired.

(See Lodged Doc. 12, 5 Rep.’s Tr. at 1254-57, 1270, ECF No. 38-

13, 6 Rep.’s Tr. at 1521-22, ECF No. 38-14); Berghuis v.

Thompkins, 560 U.S. 370, 386-87 (2010) (explaining that hours-

long interrogation is not coercive unless accompanied by “other

facts indicating coercion, such as an incapacitated and sedated

suspect, sleep and food deprivation, and threats”).

See, e.g.,

And during that time,

In any event, even assuming error, Petitioner can show no

prejudice.

[sheriff] station interviews.”

But before he had even arrived there, he had already given police

a detailed account of his role in Vallivero’s murder.12

His coercion claim is premised on the “extensive

(Traverse at 18-19, ECF No. 41.)

To the extent Petitioner intended to challenge the

voluntariness of the statements he made before agreeing to

accompany detectives to the sheriff’s station, that challenge fails

because he cites no facts supporting it. See Borg, 24 F.3d at 26;

Jones, 66 F.3d at 205.

And the transcript of that interview

reveals nothing suggesting that his statements were involuntary.

(See, e.g., Lodged Doc. 10, Interview, Clerk’s Tr. at 205-07

(unredacted), ECF No. 38-4 (reflecting that before initiating any

questioning, detectives offered Petitioner assistance, ensured he

received any needed medical treatment for cut to his hand, and

asked if he wanted them to call anyone), 210-30 (reflecting that

detectives made no threats, did not use aggressive tone, and

APPENDIX D

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(See Lodged Doc. 10, Interview, Clerk’s Tr. at 207-31

(unredacted), ECF No. 38-4.)

the hospital, he admitted that he had armed himself with a rock

before confronting Vallivero, repeatedly struck Vallivero — who

was not armed — in the head with a bottle, then repeatedly struck

him in the head with a baseball bat after he was no longer

moving, and finally repeatedly stabbed him with a knife to “make

sure he was gone” and “done.”

that he had tried to “wash” the weapons he had used and “clean

up” after he had killed Vallivero to eliminate any incriminating

evidence.

Vallivero had repeatedly punched him, he conceded at the outset

that Vallivero had struck him only once and was not moving when

Petitioner repeatedly struck him with a baseball bat.

id. at 212 (stating that Vallivero hit him “one [1] time”), 223

(conceding that Vallivero was not moving when he repeatedly

struck him with bat), with id. at 226 (“When I hit [him] with the

bottle he went backwards and then he hit me and was still hitting

me . . . and then I got . . . the bat . . . and fought him away

from me.”).)

(Id. at 224.)

Indeed, when he was interviewed at

(Id. at 215-24.)

He also admitted

Although he stated at times that

(Compare

And Petitioner conceded on direct appeal that his account of

the murder at the sheriff’s station mirrored the account he gave

at the hospital.

(stating that at sheriff’s station, Petitioner “again described

the incident in detail, consistent with the account given at the

hospital”).)

(See Lodged Doc. 14 at 23, ECF No. 38-36

Accordingly, he cannot show that any purported

allowed Petitioner to control pace of interview).)

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error in admitting his statements from the sheriff’s station had

a substantial and injurious impact on the jury’s verdict.

Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (constitutional

trial error does not warrant habeas relief unless it had

“substantial and injurious effect or influence in determining the

jury’s verdict”); see also Mejorado v. Hedgpeth, 629 F. App’x

785, 787 (9th Cir. 2015) (“Neither the exclusion nor the

admission of cumulative evidence is likely to cause substantial

prejudice.” (citing Wong v. Belmontes, 558 U.S. 15, 22-23 (2009)

(per curiam))); Delgado v. McEwen, No. CV 11–10496–GHK (RZ).,

2012 WL 7170432, at *17 (C.D. Cal. Oct. 10, 2012) (counsel’s

failure to challenge petitioner’s custodial statement for lack of

Miranda warnings was harmless when he had already confessed to

crimes before he was in custody), accepted by 2013 WL 638893

(C.D. Cal. Feb. 18, 2013).

See

Finally, Petitioner doesn’t argue that the procedural

default is excused because his case “falls within the ‘narrow

class of cases . . . implicating a fundamental miscarriage of

justice.’”

attempt to do so would be futile because he admitted killing

Vallivero, repeatedly stabbing him with a knife, and beating him

with a baseball bat when he was defenseless, as related above.

Accordingly, Petitioner has failed to show that his

procedural default should be excused, and the Court does not

review the merits of his claims that his pretrial statements were

involuntary based on coercive tactics or that the prosecutor

committed misconduct by misstating the law.

Schlup, 513 U.S. at 314-15 (citation omitted).

APPENDIX D

Any

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II.

Petitioner Is Not Entitled to Relief on His Miranda Claim13

Petitioner contends that his pretrial statements to the

investigating detectives should have been excluded because he

made them while being subjected to a custodial interrogation

without having first been advised of his Miranda rights.

Pet. at 6, ECF No. 1.)

(See

In Miranda, the U.S. Supreme Court declared that a person

questioned by law-enforcement officers after being “taken into

custody or otherwise deprived of his freedom of action in any

significant way” must first “be warned that he has the right to

remain silent, that any statements he does make may be used as

evidence against him, and that he has a right to the presence of

an attorney, either retained or appointed.”

Statements elicited in noncompliance with this rule may not be

admitted for certain purposes in a criminal trial.

v. California, 511 U.S. 318, 322 (1994) (per curiam).

Applicable Law

384 U.S. at 444.

See Stansbury

An officer’s duty to administer Miranda warnings arises

“only where there has been such a restriction on a person’s

freedom as to render him ‘in custody.’”

322 (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per

Stansbury, 511 U.S. at

The Court addresses the merits of the Petition’s claims

three, four, six, and seven (see Lodged Doc. 14, ECF No. 38-36) –

all of which Petitioner raised on direct review — before addressing

its ineffective-assistance claims, two of which he asserted in his

postappeal habeas petitions and one on direct review (see id.;

Lodged Doc. 18, ECF No. 38-40). The Court addresses the Petition’s

cumulative-error claim, which includes only the ineffective

assistance he asserted on direct appeal (see Pet. at 8, ECF No. 1;

Lodged Doc. 14 at 96-101, ECF No. 38-36), last.

APPENDIX D

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curiam)).

The reviewing court must examine the totality of the

circumstances surrounding the interrogation to determine whether

the person is in custody.

“whether there is a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.”

California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)

(citation omitted).

See id.

The “ultimate inquiry” is

To determine if a person is in custody for purposes of

Miranda, “the only relevant inquiry is how a reasonable man in

the suspect’s position would have understood his situation.”

Berkemer v. McCarthy, 468 U.S. 420, 442 (1984); see also

Stansbury, 511 U.S. at 323 (“Our decisions make clear that the

initial determination of custody depends on the objective

circumstances of the interrogation, not on the subjective views

harbored by either the interrogating officers or the person being

questioned.”).

circumstances surrounding the interrogation” and then determine

“how a reasonable person in the position of the individual being

questioned would gauge the breadth of his or her freedom of

action.”

citation omitted).

Accordingly, courts must examine “all of the

Stansbury, 511 U.S. at 322, 325 (alteration and

In making this determination, courts consider among other

things the site of the interview, whether the investigation has

focused on the subject, whether any objective indicia of arrest

are present, and the length and form of the questioning.

Yarborough v. Alvarado, 541 U.S. 652, 664-65 (2004).

balance the factors point to no definitive conclusion of whether

the suspect was in custody, the state court’s finding must be

APPENDIX D

See

If on

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#:4832

upheld.

Id.

In Yarborough, for example, several factors —

including that the interview lasted two hours and was conducted

in a police station, the petitioner was not told he could leave,

and the officer’s denial of his counsel’s request to have a

parent present — weighed in favor of custody.

Nevertheless, the Supreme Court held that the state court’s

decision that the petitioner was not in custody was reasonable

because other factors — including that the investigating officers

did not require him to come to the station, offered him breaks

during the interview, and used no threats but rather “appealed to

his interest in telling the truth and being helpful to a police

officer” — weighed against a finding of custody.

Id. at 665.

Id. at 664-65.

The court of appeal summarized the facts underlying

Court of Appeal’s Decision

Petitioner’s Miranda claim as follows:

At the hearing on [Petitioner’s] suppression motion,

Deputy Hall testified that [Petitioner] was subjected to

a patdown search for the deputies’ safety when they first

encountered him at Caves’s house. [Petitioner] was never

handcuffed and Deputy Hall never asked him any questions

about

[Petitioner] in the ambulance to the hospital to ensure

the paramedics’ safety while Deputy Phillips followed in

the patrol car.

Vallivero’s

killing.

Deputy

Hall

rode

with

Detective David Marquez arrived at the hospital and

introduced himself to [Petitioner] as he lay in a bed in

the emergency room. Detective Marquez asked [Petitioner]

if he needed anything and told him he would speak to him

APPENDIX D

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#:4833

after he was treated.

Detective

Nathan

Paul

subsequently

arrived

and

introduced himself to [Petitioner].

Detective Paul told

[Petitioner] he was there to find out what had happened

and asked if [Petitioner] was willing to accompany him to

the sheriff’s station to talk.

then added, “I don’t know my rights. . . . I defended

myself.”

Detective Paul responded “you’re not under

arrest.

If you defended yourself, that’s what I want to

hear about.”

an attorney . . . and [she] told me not to talk to anyone

cause I could incriminate myself. . . .

rights, so um, I was in a fight and I defended myself and

— and it got really bad and then I didn’t know what to do

after that point.

[Petitioner] proceeded to provide a detailed account of

what had happened.

[Petitioner] was allowed to use the bathroom.

[Petitioner] said “okay”

[Petitioner] replied: “My mom’s working on

I don’t know my

I tried to clean up the mess.”

At one point during the interview,

After [Petitioner] had been treated, Detective Paul

asked if he was still willing to accompany him to the

sheriff’s station for further questioning. [Petitioner]

asked if he could smoke a cigarette after they arrived at

the sheriff’s station and the detective replied, “When we

get there we’ll let you . . . stand outside and . . .

smoke as many as you need.”

know

detective replied in the negative and told [Petitioner]

he was not being handcuffed and was a “free walking man.”

you’ve

probably

[Petitioner] then asked, “I

gotta

book

me,

APPENDIX D

right?”

The

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#:4834

After

they

arrived

the

sheriff’s

station,

[Petitioner] was allowed to smoke a cigarette outside and

use

conducting the interview, Detective Paul confirmed with

[Petitioner] that he was there voluntarily and reiterated

[Petitioner] took at least three cigarette breaks and a

bathroom

[Petitioner] was told he was being detained for killing

Vallivero.

restroom

was

not

without

under

break.

any

arrest.

Near

the

supervision.14

During

end

the

Before

interview,

In denying [Petitioner’s] suppression motion, the

court found that [Petitioner] had voluntarily agreed to

be interviewed; that there was no custodial interrogation

because a reasonable person in [Petitioner’s] position

would have felt free to terminate the interview until the

point he was told he was being detained; and that

[Petitioner] had never unequivocally indicated that he

wanted an attorney.

enforcement had not dominated or controlled the course of

the interrogation and that [Petitioner] had “set the

pace” of the interview.

The court further found that law

(Lodged Doc. 1 at 7-8, ECF No. 9-1.)

The court of appeal rejected Petitioner’s Miranda claim,

Petitioner disputes this, alleging that he was always

accompanied. (See Pet, Mem. P. & A. at 17 n.5, 18 n.6, ECF No. 11.)

Although he was when he took cigarette breaks (see, e.g.,

Lodged Doc. 10, Interview, Clerk’s Tr. at 285-88 (unredacted), ECF

No. 38-4), he was unaccompanied when he used the restroom (see

Lodged Doc. 12, 5 Rep.’s Tr. at 1265-66, ECF No. 38-13).

APPENDIX D

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finding that he was not in custody until detectives informed him

at the conclusion of the interview that he was being detained:

The court did not err in denying [Petitioner’s]

motion [to suppress his pretrial statements].

At both

the hospital and the sheriff’s station, [he] was free of

physical restraints and was advised he was not under

arrest and was free to leave.

displayed and there is nothing to indicate that the

deputies and detectives who spoke to him were aggressive

or accusatory or employed special techniques to pressure

him.

that [Petitioner] was comfortable and that his needs were

accommodated.

totality of the circumstances, that [his] statements at

the hospital and the sheriff’s station were not the

result of a custodial interrogation.

Moreover, no weapons were

On the contrary, every effort was made to ensure

The court thus correctly found, under the

(Id. at 8-9.)

admitting the statements Petitioner made during the sheriff-

station interview was harmless because he “had already provided a

detailed account of the incident while he was at the hospital.”

(Id. at 9.)

As an initial matter, there is no merit to Petitioner’s

Separately, the court found that any error in

Analysis

contention that the sheriff’s deputies who initially contacted

him were instructed to “take [him] . . . into custody and control

APPENDIX D

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#:4836

him.”15

contrary, the deputies testified that they were dispatched only

“to contact” him and “give detectives an opportunity to talk to

him.”

id. at 1237 (deputy testifying that they were not ordered to

“keep [Petitioner] under control” but rather only to “contact”

him, “get his information,” ask him no questions, and wait to be

contacted by detectives).

with him suggested that he was in custody.

him down for weapons (see id. at 1210, 1229), they did so only to

ensure their own safety and never placed him in handcuffs or drew

their weapons (see id. at 1211-13, 1216-18, 1220, 1224, 1229-30).

See Brooks v. Yates, No. 1:11-cv-01315-LJO-JLT (HC), 2017 WL

3641731, at *33, *35 (E.D. Cal. Aug. 24, 2017) (petitioner was

not in custody even though officers patted him down before

questioning to ensure their safety in part because he was not

handcuffed); Velasquez v. Gipson, No. SA CV 12-1078-(JSL)., 2013

WL 3381371, at *7, *10 (C.D. Cal. July 18, 2013) (same when

officers did not restrain petitioner or draw their weapons).

Their interactions with him were cordial and respectful (see

Lodged Doc. 12, 5 Rep.’s Tr. at 1213, 1217, 1218, 1220, 1230, ECF

No. 38-13), and they never questioned him about the murder but

(Pet., Mem. P. & A. at 46, ECF No. 1-1.)

To the

(Lodged Doc. 12, 5 Rep.’s Tr. at 1210, ECF No. 38-13; see

And nothing during their interaction

Although they patted

Petitioner suggests that the deputies who initially

contacted him were the same people who later interviewed him. (See

Pet., Mem. P. & A. at 46.) In truth, the deputies never questioned

him about the murder (see Lodged Doc. 12, 5 Rep.'s Tr. at 1213,

1218, 1222, ECF No. 38-13); instead, two detectives questioned him

(see Lodged Doc. 10, Interview, Clerk’s Tr. at 205-31, 237

(unredacted), ECF No. 38-4).

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rather repeatedly offered him medical assistance and otherwise

engaged in “small talk” (see id. at 1213, 1215, 1218, 1222, 1231-

32).

with the sheriff’s deputies.

Accordingly, he was not in custody during his interactions

The court of appeal, moreover, reasonably concluded that

Petitioner was not in custody during either of the subsequent

interviews because neither involved any objective indicia of

arrest.

hospital (see Lodged Doc. 10, Interview, Clerk’s Tr. at 205-31

(unredacted), ECF No. 38-4); see Echols v. Neuschmid, No. CV

19-4877-CJC (PLA), 2020 WL 1452542, at *9 (C.D. Cal. Feb, 24,

2020) (fact that petitioner was questioned at hospital while

receiving treatment rather than in police station supported

conclusion that he was not in custody), accepted by 2020 WL

1445634 (C.D. Cal. Mar. 25, 2020), and he was never handcuffed

during either interview (see Lodged Doc. 10, Interview, Clerk’s

Tr. at 234 (unredacted), 336 (reflecting that Petitioner was

handcuffed only after sheriff-station interview had ended and he

had been informed that he was being detained), ECF No. 38-4); see

Plumb v. Hedgpeth, No. SACV 08–340 DOC (FFM)., 2011 WL 1212086,

at *8 (C.D. Cal. Mar. 3, 2011) (fact that petitioner was not

handcuffed during drive to police station or when he was

questioned there supported finding that he was not in custody),

accepted by 2011 WL 1211474 (C.D. Cal. Mar. 29, 2011).

any weapons displayed during either interview.

12, 5 Rep.’s Tr. at 1246-47, 1251, 1257, ECF No. 38-13); United

States v. Acosta-Licerio, 756 F. App’x 743, 744 (9th Cir. 2019)

(defendant was not in custody during interview with two officers

To the contrary, the first interview occurred at a

APPENDIX D

Nor were

(See Lodged Doc.

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in part because neither officer’s weapon was visible); Vance v.

Adams, No. EDCV 04–1515 JST (FFM)., 2011 WL 978161, at *11 (C.D.

Cal. Jan. 13, 2011) (petitioner was not in custody during

polygraph examination conducted at police station in part because

no firearms were displayed), accepted by 2011 WL 977957 (C.D.

Cal. Mar. 18, 2011).

That the second interview occurred at a sheriff’s station is

not enough to show that Petitioner was in custody.

investigating detectives there repeatedly told him he was not

under arrest (see Lodged Doc. 10, Interview, Clerk’s Tr. at 237

(unredacted) (detective telling Petitioner that “it’s important

to me you understand you’re not under arrest”), 293 (“I told you

when you got here, you know, you’re not under arrest right now.

You’re still not under arrest[.]

Okay . . .

294 (detective reiterating that Petitioner voluntarily came to

sheriff’s station and stating, “[Y]ou[] know . . . that you don’t

have to talk to us”), ECF No. 38-4)), just as the initial

investigating detective had done when he questioned Petitioner at

the hospital (see id. at 209 (twice telling Petitioner he was

“not under arrest”); see also id. at 235 (detective stating, “No,

we’re going to talk,” in response to Petitioner asking if he was

going to be booked at sheriff’s station and telling him he was “a

The

[W]e’re still just talking.

You don’t have to talk to me like I said before.”),16

In response to this statement, Petitioner stated, “ I didn’t

know I didn’t have to talk to you.” (Lodged Doc. 10, Interview,

Clerk’s Tr. at 293 (unredacted), ECF No. 38-4.) But “the initial

determination of custody depends on the objective circumstances of

the interrogation, not on the subjective views harbored by either

the interrogating officers or the person being questioned.”

Stansbury, 511 U.S. at 323.

APPENDIX D

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. . . free walking man”)).

See Earl v. Turnbull, 393 F. App’x

475, 475 (9th Cir. 2010) (state court reasonably concluded that

petitioner was not in custody when among other things he was

repeatedly advised that he was not under arrest and free to

leave); Fusin v. Tilton, 305 F. App’x 425, 426 (9th Cir. 2008)

(state court reasonably found that petitioner was not in custody

despite some indications to contrary because he was repeatedly

assured he was not under arrest and told he could leave).

more, the investigating detective did not order Petitioner to go

to the sheriff’s station but instead asked him if he would agree

to go, and he replied that he would.

Interview, Clerk’s Tr. at 233 (unredacted), ECF No. 38-4; see

also id. at 237 (detective stating at beginning of sheriff-

station interview that he “appreciate[d] [Petitioner] . . .

agreeing to come down and talk to [him] voluntarily” and that it

“meant a lot” to him).)

What’s

(See Lodged Doc. 10,

Moreover, Petitioner had no reason to believe that moving

from the hospital to the sheriff’s station signaled that he was

under arrest.

explained that he wanted to question Petitioner at the station

because there were “people running around” the hospital and there

would be less “interruptions” and noise at the station.

208.)

in uniform but instead wearing “dirty jeans.”

Garcia v. Cash, No. EDCV 11–1869 GAF (FFM)., 2013 WL 1010368, at

*13 (C.D. Cal. Jan. 29, 2013) (fact that officer who questioned

petitioner “was dressed in casual street clothes, not in a

uniform,” supported finding that petitioner was not in custody),

To the contrary, the investigating detective

(Id. at

Additionally, the detective who led the interview was not

APPENDIX D

(Id. at 207);

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accepted by 2013 WL 1087350 (C.D. Cal. Mar. 13, 2013).

Furthermore, nothing about the detective’s questioning

during either of the interviews suggested that Petitioner was in

custody.

questioning was not “aggressive, confrontational, or accusatory”

and that the detectives used no “interrogation techniques to

pressure [him].”

38-14).

investigating detective expressed a willingness to believe

Petitioner acted in self-defense (see, e.g., Lodged Doc. 10,

Interview, Clerk’s Tr. at 209 (unredacted) (“If you defended

yourself, that’s what I want to hear about.”), 218 (stating, “I

can see . . . the redness on your face,” when Petitioner said

that Vallivero had hit him), ECF No. 38-4) and by and large

offered one-word responses as Petitioner relayed his account of

the murder (see, e.g., id. at 209-26 (asking Petitioner how fight

started and then prompting Petitioner to elaborate by stating,

“Okay,” “Yeah,” and “Um hm” and then asking follow-up questions

concerning details about his account).

As related above, the trial court found that the

(Lodged Doc. 12, 6 Rep.’s Tr. at 1524, ECF No.

And during the interview at the hospital, the

The detectives’ questioning at the sheriff’s station was

similarly nonconfrontational.

with prosecution, and nothing in the transcript suggests that

they raised their voices at him.

most part they simply allowed him to tell his story without

interruption.

relay his account of his history with Vallivero and murder with

little interruption and prompting him to elaborate by stating,

“Okay,” “Oh okay,” “Mmm Hmm,” and “Yea”).)

At no point did they threaten him

Rather, it shows that for the

(See, e.g., id. at 239-54 (allowing Petitioner to

APPENDIX D

And when they

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interrupted him, they either apologized (see id. at 248 (“And I

don’t mean to stop you, but I —”), 305 (apologizing for

interrupting before asking question about why Petitioner

continued to beat Vallivero after he was down); see also id. at

303 (“It is of the utmost importance to me that I don’t put words

in your mouth.”)), asked him open-ended questions (see, e.g., id.

at 250 (“Tell me about Saturday night.”)), or simply questioned

him about some detail he had already provided (see, e.g., id. at

259 (asking Petitioner what he “clean[ed] up” after he said that

he had tried to “clean up” after murdering Vallivero), 269-70

(asking what kind of bat Petitioner used to beat Vallivero), 276

(asking him details about knife he used to stab Vallivero)).

What’s more, the detectives at times appeared sympathetic to

Petitioner’s claims about Vallivero’s allegedly aggressive and

threatening behavior.

your mom in the past?” and “He went behind your back, right?” in

response to Petitioner’s account of Vallivero’s past actions),

279 (stating, “There’s no doubt in my mind he was screaming at

you and he was, it was, a bad situation,” and praising

Petitioner’s efforts to be “good . . . roommate”), 313 (stating

that “it seem[ed] like you were backed against a wall here[.]

[Y]ou didn’t have much choice . . . .”); see also id. at 268

(describing Vallivero’s actions as “uncool,” stating, “I keep

coming back to the fact that you paid rent”).)

indicated that they were open to believing he acted in self-

defense.

know more about what [Vallivero has] done to you . . . .

I’m looking at is a guy who got threatened, and, had some bad

(See id. at 247 (asking, “[H]e fucked with

And they

(See, e.g., id. at 237 (detective stating, “I want to

APPENDIX D

What

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shit kick off.”)); Plumb, 2011 WL 1212086, at *10 (finding that

tone of officer’s questions indicated that petitioner was not in

custody when they “intended to make [him] believe that they had

compassion for him” rather than intimidate him).

expressed gratitude to him for his cooperation and willingness to

talk.

(unredacted) (“Like I said before I can’t tell you how much I

appreciate you talking to me and helping me understand the

details.”).)

Petitioner and the detectives discussed matters having nothing to

do with the murder, such as the composition of Petitioner’s

family, the circumstances under which he received treatment for

his stress and anxiety, and the type of work he enjoyed.

id. at 289-92.)

They also

(See, e.g., Lodged Doc. 10, Interview, Clerk’s Tr. at 258

Further, during some parts of the interview,

(See

To be sure, the detectives at times prompted Petitioner to

provide incriminating details about the murder (see, e.g., id. at

281 (“And he still won’t let you pass by.

think enough is enough?”)) and confronted him with facts that

cast doubt on his self-defense claim (see id. at 298 (“[H]ow come

there’s neighbors out there that are telling my guys from the

scene . . . that they’ve heard you yelling at [Vallivero] that

you’re going to kill him?”)).

allowed him to simply tell his side of the story and appealed to

his sense of honesty.

Petitioner that they were “here to get to the truth” when he

asked if he was going to be prosecuted), 285 (detective stating

that he was only interested in truth), 303 (“All I want is the

truth, like I said[,] I’m here to investigate.”).)

So, did part of you

But for the most part, they

(See, e.g., id. at 270 (detective assuring

APPENDIX D

Such

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questioning further weighs against a finding that Petitioner was

in custody.

defendant’s interest in telling truth and being helpful to police

rather than relying on threats of arrest and prosecution weighed

against finding of custody).

See Yarborough, 541 U.S. at 664 (appealing to

The lengths of the two interviews are likewise insufficient

to establish that Petitioner was in custody during either.

The

interview at the hospital lasted less than one hour and thus does

not support a finding that he was in custody then.

Mathiason, 429 U.S. at 495 (interrogation lasting 30 minutes was

not custodial in part because its duration was not substantial),

with Yarborough, 541 U.S. at 665 (observing that two-hour

interrogation without Miranda warnings weighed in favor of

custody finding).

nearly four hours (see Lodged Doc. 12, 6 Rep.’s Tr. at 1505, ECF

No. 38-14), Petitioner recounted with limited prompting the

events of the murder and his antagonistic relationship with

Vallivero and never asked to stop.

Interview, Clerk’s Tr. at 237-57 (unredacted), ECF No. 38-4.)

And more importantly, nothing that occurred during the interview

would have led Petitioner to believe he was not free to leave.

To the contrary, as related above, the detectives repeatedly told

him at the station that he was not in custody and had done so

earlier.

breaks as he wanted and took several during the interview.

id. at 237, 257, 285, 288, 312, 327; Lodged Doc. 12, 6 Rep.’s Tr.

at 1520-22, ECF No. 38-14.)

responded to his requests for water and food.

Compare

Although the interview at the station lasted

(See Lodged Doc. 10,

He was also allowed as many cigarette and bathroom

(See

What’s more, the detectives promptly

APPENDIX D

(See, e.g., Lodged

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Doc. 10, Interview, Clerk’s Tr. at 209 (unredacted), ECF No. 38-4

(stating, “You bet.

I’m in,” in response to Petitioner’s request for water), 262

(offering to “scare up some food” for Petitioner after he

indicated that he had eaten only rice for last two days), 267

(providing Petitioner with “apple and packaged snacks” and

offering him more water), 288 (encouraging Petitioner to eat and

stating, “And if you’re hungry you need something in your

stomach”), 289 (same); Lodged Doc. 12, 6 Rep.’s Tr. at 1521-22,

ECF No. 38-14)); Yarborough, 541 U.S. at 664-65; Figueroa v.

Ducart, No. ED CV 15-1119-SVW (SP), 2018 WL 7150497, at *10 (C.D.

Cal. Sept. 27, 2018) (state court reasonably found that

petitioner was not in custody even though he was questioned for

nearly eight hours at police station in part because he was not

restrained, was provided food and water, and was permitted to

“freely” take restroom breaks during questioning), accepted by

2019 WL 404421 (C.D. Cal. Jan. 28, 2019), aff’d by, 857 F. App’x

336 (9th Cir. 2021).

I’ll get you one.

A big one?

A big glass?

For all these reasons, the court of appeal reasonably

concluded that Petitioner was not in custody until the moment the

detectives told him he was being detained.

not entitled to relief on this claim.

III. Petitioner Is Not Entitled to Relief on His Sufficiency-of-

Accordingly, he is

the-Evidence Claim

Petitioner contends that the evidence was insufficient to

show he committed murder with premeditation and deliberation

because he in fact acted in “a panic.”

(Pet. at 6, ECF No. 1.)

APPENDIX D

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Applicable Law

The Due Process Clause of the 14th Amendment protects a

criminal defendant from conviction “except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime

with which he is charged.”

(1970).

court must determine whether, “after viewing the evidence in the

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt.”

(1979) (emphasis in original).

determining the sufficiency of evidence is identical to the

federal standard announced in Jackson.

Cal. 3d 557, 576 (1980).

In re Winship, 397 U.S. 358, 364

In considering a sufficiency-of-the-evidence claim, a

Jackson v. Virginia, 443 U.S. 307, 319

California’s standard for

People v. Johnson, 26

A federal habeas court reviews a sufficiency claim with an

additional layer of deference, in that relief is not warranted

unless the state court’s application of Jackson was not just

wrong but “objectively unreasonable.”

U.S. 650, 651 (2012) (per curiam) (citation omitted).

petitioner faces a “high bar” when challenging the sufficiency of

the evidence used to obtain a state conviction.

“makes clear that it is the responsibility of the jury — not the

court — to decide what conclusions should be drawn from evidence

admitted at trial.”

curiam).

jury’s credibility assessments”; such determinations are

“generally beyond the scope of review.”

940, 943 (9th Cir. 2015) (citation omitted).

Coleman v. Johnson, 566

Id.

Thus, a

And Jackson

Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per

Thus, the reviewing court “cannot second-guess the

Kyzar v. Ryan, 780 F.3d

APPENDIX D

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The reviewing court “must look to state law for ‘the

substantive elements of the criminal offense,’” although the

“minimum amount of evidence that the Due Process Clause requires

to prove the offense is purely a matter of federal law.”

Coleman, 566 U.S. at 655 (quoting Jackson, 443 U.S. at 324 n.16).

To prove deliberate and premeditated murder under California

law, the prosecutor must show that the defendant weighed the

consequences and considerations of his actions before taking the

action leading to his conviction.

4th 1041, 1080 (2002).

proof that the defendant had a great deal of time in which to

weigh those consequences and considerations:

See People v. Koontz, 27 Cal.

This showing does not, however, require

The process of premeditation and deliberation does

not require any extended period of time.

is not the duration of time as much as it is the extent

of the reflection.

great rapidity and cold, calculated judgment may be

arrived at quickly. . . .

The true test

Thoughts may follow each other with

Id.

The court of appeal rejected Petitioner’s sufficiency-of-

Court of Appeal’s Decision

the-evidence claim on its merits:

Sufficient

evidence

supports

[Petitioner’s]

conviction of attempted [sic] premeditated and deliberate

murder.

acknowledge the standard of review, which compels us to

view the evidence in the light most favorable to the

judgment.

[His]

arguments

the

contrary

APPENDIX D

fail

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Prior to the killing, [Petitioner] armed himself

with a rock.

[Petitioner] hit him on the head with the rock and

proceeded to break a beer bottle over his head, causing

him to fall on the couch.

himself with a baseball bat and repeatedly hit Vallivero

in the head as he lay motionless on the ground.

sure Vallivero was dead, [Petitioner] retrieved a knife

and stabbed him in the neck.

manner of the killing amply support the jury’s findings

of premeditation and deliberation.

expressed a motive for the killing by acknowledging he

was angry about being evicted, was “sick of [Vallivero’s]

shit,” and wanted him “gone.”

insufficient evidence thus fails.

After Vallivero allegedly punched [him],

[Petitioner] then armed

To make

The circumstances and

[Petitioner] also

[Petitioner’s] claim of

(Lodged Doc. 1 at 11-12, ECF No. 9-1 (citations omitted).)

Analysis

The court of appeal reasonably rejected Petitioner’s

sufficiency-of-the-evidence claim.

deferential lens of AEDPA, the evidence at trial supported a

reasonable inference that he planned to kill Vallivero.

he admitted that he armed himself with a rock before even walking

into the home and intended to strike Vallivero if he “start[ed]

shit.”

(redacted), ECF No. 38-5); see Jones v. Wood, 207 F.3d 557, 563

(9th Cir. 2000) (evidence was sufficient to prove premeditation

when crime involved planned procurement of weapon even though

evidence “was almost entirely circumstantial and relatively

First, viewed through the

Indeed,

(Lodged Doc. 10, Interview, Clerk’s Tr. at 475-76, 525-27

APPENDIX D

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weak”); Tyler v. Martinez, No. CV 22-08250-FMO (DFM), 2023 WL

9348064, at *4 (C.D. Cal. Dec. 4, 2023) (jury could infer that

defendant planned murder when he brought gun to drug deal at

which he attempted to kill victim).

Second, Petitioner had ample motive to kill Vallivero.

told detectives that Vallivero had repeatedly tried to evict him

for no good reason and that he was “sick of [Vallivero’s] shit.”

(Lodged Doc. 10, Interview, Clerk’s Tr. at 499, 527-28

(redacted), ECF No. 38-5; see id. at 558 (“[T]his guy’s lying

behind my back to get me out, you know, and I paid my rent, and

he just, he wants, he wants to make my life miserable because he

thinks he can just kick me out.”); Lodged Doc. 12, 13 Rep.’s Tr.

at 3628, ECF No. 38-21.)

“r[ode] [him] and just ripp[ed] [him] a new one every day” and

verbally abused him “many, many times.”

Interview, Clerk’s Tr. at 497-98, 505, 507, 523, 542, 545

(redacted), ECF No. 38-5; see id. at 566 (“[T]he guy’s like a

hawk on me and he’s like . . . trying to fuck with me the whole

time.”).)

had motive to murder Vallivero.

He also relayed how Vallivero had

(Lodged Doc. 10,

Accordingly, the jury reasonably could infer that he

Third, the manner of the murder was consistent with

premeditation and deliberation.

Vallivero — first with a rock, then with a bottle until it

shattered, and then with a baseball bat.

529, ECF No. 38-5.)

Vallivero’s head with the baseball bat again and again even as he

lay motionless on the floor.

“devastation” to Vallivero’s head was “immense,” and his left ear

Petitioner repeatedly beat

(Id. at 475-76, 478-80,

More importantly, he continued to bash

(See id. at 483, 532.)

APPENDIX D

The

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was “broken apart.”

(Lodged Doc. 12, 15 Rep.’s Tr. at 4239-46,

ECF No. 38-23; see also id. at 4245 (forensic pathologist

describing “fractures” to back of Vallivero’s head as resembling

what would occur if “you drop[ped] a hardboiled egg”).)

injuries were so severe that they resembled those that would have

been expected of someone who had “slam[med] into a tree” driving

60 miles an hour or jumped head first from 200 feet onto “rocks.”

(Id. at 4245-46.)

the ground — presumably unconscious from having had his head

beaten with a baseball bat (see id. at 4248 (forensic pathologist

testifying that “reasonable interpretation” of evidence was “that

once [Vallivero] recieve[d] the severe head injury,” he was

rendered unconscious)) — Petitioner discarded the bat, retrieved

a knife, and repeatedly stabbed him in the back and neck to “make

sure he was gone, and he was done” (Lodged Doc. 10, Interview,

Clerk’s Tr. at 480, 562-63 (redacted), ECF No. 38-5; see Lodged

Doc. 12, 15 Rep.’s Tr, 4238, 4246-47, ECF No. 38-23 (reflecting

that Vallivero had stab wounds to his back and large, two-inch-

deep stab wound to back of neck)).

of the attack alone is sufficient to show that Petitioner acted

with premeditation and deliberation.

F.3d 704, 709 (9th Cir. 2000) (“[W]hen manner-of-killing evidence

strongly suggests premeditation and deliberation, that evidence

is enough, by itself, to sustain a conviction for first-degree

murder.”); see also Campbell v. Hill, CV 18-7591-JAK (PLA), 2021

WL 7815377, at *14 (C.D. Cal. Dec. 16, 2021) (petitioner’s act of

“plung[ing]” knife into unarmed victim’s chest with enough force

to leave three-inch-deep wound “easily” supported finding that

His head

And even as Vallivero remained motionless on

The prolonged, violent nature

See Drayden v. White, 232

APPENDIX D

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murder was premeditated and deliberate), accepted by 2022 WL

952173 (C.D. Cal. Mar. 30, 2022).

The jury was, moreover, under no obligation to accept

Petitioner’s claim that he merely lost control while defending

himself from Vallivero.

a 54-year-old man who stood only five feet nine inches and

weighed only 160 pounds (see Lodged Doc. 12, 8 Rep.’s Tr. at

2236-37, ECF No. 38-16) — had defensive wounds indicating that he

was fighting off an attack (see id., 15 Rep.’s Tr. at 4228-436,

ECF No. 38-23), whereas Petitioner — who was only 40 years old

when the murder occurred, stood six feet tall, and weighed 200

pounds (see id., 8 Rep.’s Tr. at 2238-39, ECF No. 38-16) — had

minimal wounds, consisting primarily of a cut to his hand that he

himself inflicted when he broke a bottle on Vallivero’s head

(Lodged Doc. 10, Interview, Clerk’s Tr. at 476-77 (redacted), ECF

No. 38-5; see Lodged Doc. 12, 11 Rep.’s Tr at 3051-52, ECF No.

38-19) (photographs taken shortly after murder showing no visible

injuries to Petitioner other than “an area of redness” on left

side of his face)); see Humphries v. Sherman, No. CV 18-5748-JFW

(JEM), 2019 WL 13437224, at *10 (C.D. Cal. Apr. 11, 2019) (noting

that “the number, extent, and severity of” victim’s stab wounds

compared to minor cut marks on petitioner’s hand and lacerations

on his arm “indicate[d] that he was the aggressor, and [were]

inconsistent with [his] testimony that he merely swung the knife

at [victim] to keep her away”), accepted by 2019 WL 13437225

(C.D. Cal. May 22, 2019).

(See Pet. at 6, ECF No. 6.)

Vallivero —

In any event, even if the jurors believed that Vallivero

initiated the fight, they nevertheless could have reasonably

APPENDIX D

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inferred that the murder was premeditated and deliberate.

all, Petitioner told police that he repeatedly beat Vallivero’s

head in with a baseball bat as he lay motionless on the floor.

(Lodged Doc. 10, Interview, Clerk’s Tr. at 532 (redacted), ECF

No. 38-4.)

actions each time he raised the bat as well as each time he

decided to again strike Vallivero’s head.

No. CV 13-7708-PA (PLA), 2015 WL 4748960, at *7 (C.D. Cal. Apr.

13, 2015) (petitioner had time to weigh consequences of his

actions and decide to kill victim before doing so even though

shooting occurred “in a ‘matter of seconds’” (citing People v.

Sanchez, 26 Cal. 4th 834, 849 (2001)), accepted by 2015 WL

4757635 (C.D. Cal. Aug. 10, 2015); see also Doherty v.

Valenzuela, No. CV 11–5690 PSG (SS)., 2013 WL 1912534, *8 (C.D.

Cal. Apr. 4, 2013) (evidence was sufficient to show that

petitioner, who was approximately 54 years old, committed first-

degree murder when he “continued to hit, stab, and stomp on”

victim, who was 79 years old, after victim was disarmed and

“appeared unconscious”), accepted by 2013 WL 1912504 (C.D. Cal.

May 7, 2013).17

After

Petitioner had time to deliberate the nature of his

See Johnson v. Miller,

Fourth, Petitioner’s actions immediately after killing

Likewise, between the time he dropped the baseball bat and

obtained the knife, he had time to deliberate and make the cold,

calculated decision to repeatedly stab Vallivero’s motionless body

to “make sure he was gone, and he was done.” (Lodged Doc. 10,

Interview, Clerk’s Tr. at 480, 562-63 (redacted), ECF No. 38-5.)

To be sure, Vallivero was likely already dead by that point. (See

Lodged Doc. 12, 15 Rep.’s Tr. at 4248, 4277, ECF No. 38-23.) But

even so, Petitioner’s desire to ensure that Vallivero was dead

evidenced his intent moments earlier when he beat Vallivero’s head

in with the baseball bat.

APPENDIX D

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Vallivero evidenced his consciousness of guilt.

Vallivero’s dead body from the living room to a bathtub and

attempted to “clean[] up all the evidence.”

Interview, Clerk’s Tr. at 469-70, 484-85, 519, 541 (redacted),

ECF No. 38-5; Lodged Doc. 12, 11 Rep.’s Tr. at 3063, ECF No. 38-

19.)

blood off the walls,” “tried to clean the carpet,” put his

bloodied shirt in a trash can, showered, and changed clothes

before leaving the crime scene to go to his mother’s house.18

(Lodged Doc. 10, Interview, Clerk’s Tr. at 470, 484-85, 518-19

(redacted), ECF No. 38-5); United States v. Castillo, 615 F.2d

878, 885 (9th Cir. 1980) (“An attempt by a criminal defendant to

suppress evidence is probative of consciousness of guilt.”

(citation omitted)); Cooper v. Brown, 565 F.3d 581, 641 (9th Cir.

2009) (Rymer, J., concurring) (reviewing court was obligated to

presume that jury inferred petitioner’s consciousness of guilt

when he disposed of incriminating clothes).

Indeed, he moved

(Lodged Doc. 10,

He also “washed” the bat and knife he used, “wiped the

In short, overwhelming evidence showed that the murder was

premeditated and deliberate.

entitled to relief on his sufficiency-of-the-evidence claim.

IV.

Accordingly, Petitioner is not

Petitioner’s Exclusion-of Evidence Claim Does Not Warrant

Habeas Relief

Petitioner contends that the trial court violated due

process and deprived him of a fair trial by excluding evidence

He also told police that he considered fleeing and dumping

the evidence elsewhere but ultimately did not do so. (Lodged Doc.

10, Interview, Clerk’s Tr. at 485 (redacted), ECF No. 38-4; Lodged

Doc. 12, 13 Rep.’s Tr. at 3627, ECF No. 38-21.)

APPENDIX D

Case 2:21-cv-08535-MEMF-JPR Document 43 Filed 03/01/24 Page 47 of 108 Page ID

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concerning Vallivero’s drug use.

(See Pet. at 5, 14-15, ECF No.

1.)

have shown that he acted either in self-defense or imperfect

self-defense because he knew Vallivero became “violent” when he

was under the influence of drugs and alcohol.

21, ECF No. 41.)

He maintains that had the evidence been admitted, it would

(Traverse at 20-

Applicable Law

A defendant generally has a due process right to

meaningfully present a complete defense.

Mississippi, 410 U.S. 284, 294 (1973); see Moses v. Payne, 555

F.3d 742, 757 (9th Cir. 2009) (as amended).

have license to present any evidence he pleases, however; for

instance, due process is not violated by the exclusion of

evidence that is only marginally relevant, repetitive, or more

prejudicial than probative.

689-90 (1986); Chambers, 410 U.S. at 302 (“[T]he accused, as is

required of the State, must comply with established rules of

procedure and evidence designed to assure both fairness and

reliability in the ascertainment of guilt and innocence.”);

Taylor v. Illinois, 484 U.S. 400, 410 (1988) (“The accused does

not have an unfettered right to offer testimony that is

incompetent, privileged, or otherwise inadmissible under standard

rules of evidence.”).

Chambers v.

A defendant does not

See Crane v. Kentucky, 476 U.S. 683,

Rather, the right is implicated only when exclusionary rules

infringe upon a “weighty interest of the accused” and are

“arbitrary or disproportionate to the purposes they are designed

to serve.”

(citation omitted); see also Nevada v. Jackson, 569 U.S. 505, 510

Holmes v. South Carolina, 547 U.S. 319, 324–25 (2006)

APPENDIX D

Case 2:21-cv-08535-MEMF-JPR Document 43 Filed 03/01/24 Page 48 of 108 Page ID

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(2013) (per curiam) (finding that challenged evidentiary rule was

supported by “good reasons” and therefore that its constitutional

propriety “cannot be seriously disputed” (alteration omitted)).

“In general, it has taken ‘unusually compelling circumstances . .

. to outweigh the strong state interest in administration of its

trials.’”

Moses, 555 F.3d at 757 (citation omitted).

The Supreme Court has not yet “squarely addressed” whether a

state court’s discretionary exclusion of evidence can ever

violate a defendant’s right to present a defense.

758–59 (considering challenge to state evidentiary rule allowing

discretionary exclusion of expert testimony favorable to

defendant); see also Sherman v. Gittere, 92 F.4th 868, 880 (9th

Cir. 2024) (noting that no Supreme Court case has addressed issue

since Moses).

In Holmes, the Court noted that

See id. at

In fact, existing precedent suggests the opposite.

[w]hile the Constitution . . . prohibits the exclusion of

defense evidence under rules that serve no legitimate

purpose or that are disproportionate to the ends that

they are asserted to promote, well-established rules of

evidence permit trial judges to exclude evidence if its

probative value is outweighed by certain other factors

such as unfair prejudice, confusion of the issues, or

potential to mislead the jury.

547 U.S. at 326; see also Jackson, 569 U.S. at 509 (observing

that “[o]nly rarely” has Supreme Court found violation of right

to present defense based on exclusion of defense evidence under

state evidentiary rules).

APPENDIX D

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The court of appeal summarized the facts underlying the

Court of Appeal’s Decision

claim:

When [Petitioner] was interviewed [by police], he

stated

“drinking and on meth” when the crime occurred. Prior to

trial, the prosecution moved in limine to exclude any

reference to Vallivero’s methamphetamine and cocaine use

as irrelevant and substantially more prejudicial than

probative under Evidence Code section 352.

granted the motion after finding that the evidence was

both

methamphetamine, cocaine, or other illicit drugs were

found in Vallivero’s system after his death.

the

Vallivero’s medical records showing that Vallivero had

admitted using methamphetamine and had been diagnosed as

a chronic user of the drug.

The court denied the motion

and

ruling

Vallivero’s methamphetamine use was unduly prejudicial

under Evidence Code section 352.

(Lodged Doc. 1 at 12-13, ECF No. 9-1.)

that

Vallivero

irrelevant

and

proceedings,

reiterated

used

unduly

defense

its

methamphetamine

prior

prejudicial

counsel

was

The court

because

moved

that

and

Later in

admit

evidence

The court of appeal then rejected Petitioner’s exclusion-ofevidence claim:

The court did not err. [Petitioner] contends that

“his statements about how he personally experienced

Vallivero

Vallivero was using or high on meth were relevant to show

act

unreasonably

and

APPENDIX D

violently

when

Case 2:21-cv-08535-MEMF-JPR Document 43 Filed 03/01/24 Page 50 of 108 Page ID

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the reasonableness of [Petitioner’s] fear and resulting

actions.”

not under the influence of methamphetamine or any other

illicit drug when he was killed.

reasonably probable that [Petitioner] would have achieved

a more favorable result had the challenged evidence been

admitted.

alleged belief that Vallivero was under the influence of

methamphetamine, as opposed to just alcohol, had minimal

or no probative value to any claim of self-defense.”

Accordingly,

Vallivero’s drug use was harmless.

It is undisputed, however, that Vallivero was

Moreover, it is not

As the People aptly put it, “[Petitioner’s]

any

error

excluding

evidence

(Id. at 13 (citations omitted).)

The court of appeal reasonably rejected Petitioner’s

Analysis

exclusion-of-evidence claim.

Court has not yet squarely addressed whether a state court’s

discretionary exclusion of potentially exculpatory evidence can

ever violate a defendant’s right to present a defense.

Moses, 555 F.3d at 758–59.

could not have contravened clearly established federal law under

AEDPA.

As discussed above, the Supreme

See

Thus, the court of appeal’s decision

Id.; Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).

Further, any claim that the state court incorrectly applied

state law is not cognizable on federal habeas review, and this

Court is bound by the court of appeal’s analysis and findings on

that issue.

(2009) (“[W]e have repeatedly held that ‘it is not the province

of a federal habeas court to reexamine state-court determinations

See Waddington v. Sarausad, 555 U.S. 179, 192 n.5

APPENDIX D

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on state-law questions.’” (quoting Estelle v. McGuire, 502 U.S.

62, 67–68 (1991)); Bradshaw v. Richey, 546 U.S. 74, 76 (2006)

(per curiam) (“[A] state court’s interpretation of state law

. . . binds a federal court sitting in habeas corpus.”).

Moreover, Petitioner was provided a full opportunity to

present his defense that he acted in self-defense or imperfect

self-defense.

Holmes, who was precluded entirely from presenting his theory

that a third party was the perpetrator.

Here, the jury heard Petitioner’s interview with police, in which

he claimed that Vallivero had threatened to kill him and attacked

him without provocation and explained that he responded by

attacking Vallivero because he thought he was going to kill him.

(Lodged Doc. 10, Interview, Clerk’s Tr. at 483-84, 500

(redacted), ECF No. 38-5; see also id. at 513 (Petitioner

explaining that he continued to strike Vallivero because he was

“so fuckin[g] scared”).)

that he was “defending” himself.

more, the jury heard his claim that Vallivero became angry and

violent when he was drunk (see, e.g., id. at 471 (redacted)

(stating that Vallivero was “nice” in morning but later “flipped

out on me” once he began “drinking”), 499 (“Then [Vallivero] gets

his, get [sic] really really drunk and then, and then he, he’d

want to fight.”), 510-11 (describing how Vallivero would “act

crazy” and become verbally abusive when he was drunk), ECF No.

38-5)), and testimony established that Vallivero had a .19 blood-

alcohol level when he was killed (see Lodged Doc. 12, 15 Rep.’s

Tr. at 4218-19, ECF No. 38-23).

This contrasts sharply with the defendant in

See 547 U.S. at 323-24.

Indeed, Petitioner repeatedly stated

(Id. at 510, 516.)

What’s

Further, one of Petitioner’s

APPENDIX D

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neighbors testified that she told investigators that Vallivero

was “wasted most of the time” and had “alcohol issues.”

Doc. 12, 10 Rep.’s Tr. at 2752, ECF No. 38-18.)

(Lodged

Petitioner also presented evidence that Vallivero was

violent and abusive.

abusive” and “like Jeckyl [sic] and Hyde” and recounted that in

the past, Vallivero had repeatedly threatened to kill him, pulled

a gun on him, and beat him.

Tr. at 484, 497-501, 503-04, 507-08 (redacted), ECF No. 38-5.)

What’s more, witness testimony corroborated some of his claims.

Specifically, his neighbors Sarah and Joshua Demolar testified

that a few months before the murder, they heard Vallivero

threaten to shoot Petitioner.

at 2730, 2753-54, ECF No. 38-18 (Sarah testifying that she heard

Vallivero tell Petitioner, “I’ll blow your fucking face off”),

2771 (Joshua testifying that he overheard Vallivero threaten to

“shoot” Petitioner “in the face”), ECF No. 38-18.)

neighbor, Barbara Clark, testified that 10 weeks before the

murder, Petitioner told her Vallivero had attacked him and

threatened him with a gun.

instructed that it could consider any prior threats Vallivero

made in determining whether Petitioner acted in self-defense.

(See Lodged Doc. 10, 2 Clerk’s Tr. at 671, ECF No. 38-2.)

Indeed, he described Vallivero as “very

(Lodged Doc. 10, Interview, Clerk’s

(See Lodged Doc. 12, 10 Rep.’s Tr.

(See id. at 2713.)

Another

And the jury was

Moreover, trial counsel’s closing argument highlighted

Petitioner’s defense theory.

was the “potion” that transformed Vallivero from Dr. Jekyll to

Mr. Hyde and highlighted his repeated acts of threatening

Petitioner with a gun.

For example, he argued that alcohol

(See Lodged Doc. 12, 18 Rep.’s Tr. at

APPENDIX D

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5129-35, ECF No. 38-26; see also id. at 5135 (“[How often do we

come across [someone like Vallivero] . . . who . . . not only

threatens you with a gun, he also says I’m going to shoot your

face off and I’m going to blow your face off . . . .

in life do we come across an individual who is a genuine threat

to our life?

cited Vallivero’s history of violence and making threats to argue

that Petitioner actually and reasonably believed his life was in

danger when he killed Vallivero.

Vallivero’s past actions and arguing, “Clearly, my client had

reasonably believed that he was in imminent danger given the

documented verbal and physical abuse that he suffered”), 5182

(arguing that “overkill” was warranted because “[Petitioner] felt

he had no choice once he literally became scared for his life”),

5177-78 (arguing that Petitioner’s use of multiple weapons was

reasonable because of Vallivero’s past threats and actions).)

And in doing so, counsel argued that Vallivero’s use of alcohol

exacerbated the threat he posed to Petitioner.

(“He was drunk, and my client said he turned instantaneously.

had his potion.”), 5177 (“Alcoholics don’t get better.

more and more violent . . . .

to shoot you and threatening and pointing the gun a week before,

it’s all building up, and it’s getting worse and worse and worse

and the evidence is uncontroverted.”).)

How often

Well, you know what, my client did.”).)

He also

(See, e.g., id. at 5176 (citing

(See id. at 5176

They get

And the hating and the I’m going

In short, Petitioner presented a defense that he acted in

self-defense against a violent substance abuser who had

threatened to kill him and physically attacked him.

was not deprived of his right to present a complete defense.

APPENDIX D

As such, he

Case 2:21-cv-08535-MEMF-JPR Document 43 Filed 03/01/24 Page 54 of 108 Page ID

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In any event, even assuming error, Petitioner cannot show

that the exclusion of evidence concerning Vallivero’s

methamphetamine use had a “substantial and injurious” impact on

the jury’s verdict.

matter, Petitioner’s belief that Vallivero was under the

influence of methamphetamine during the confrontation leading to

his death would not have been persuasive because he wasn’t, as

Petitioner’s counsel conceded.

at 2186, ECF No. 38-16.)

Petitioner’s self-defense claim even though it was aware that

Vallivero was drunk and had a history of threatening to kill

Petitioner when he was drunk.

Interview, Clerk’s Tr. at 471, 499, 510-11 (redacted), ECF No.

38-5; Lodged Doc. 12, 10 Rep.’s Tr. at 2752, ECF No. 38-18, 15

Rep.’s Tr. at 4218-19, ECF No. 38-23.)

nothing suggests that evidence of Petitioner’s mistaken belief

that Vallivero was on methamphetamine would have had any effect

on the jury’s verdict.

Brecht, 507 U.S. at 623.

As an initial

(See Lodged Doc. 12, 8 Rep.’s Tr.

What’s more, the jury rejected

(See, e.g., Lodged Doc. 10,

Given those facts,

That Vallivero had admitted to being a methamphetamine user

was also unlikely to move the needle in Petitioner’s direction

because Petitioner’s actions precluded a finding that he acted in

self-defense.

repeatedly struck Vallivero in the head with a baseball bat or

when he repeatedly stabbed Vallivero because Vallivero was no

longer moving (see Lodged Doc. 10, Interview, Clerk’s Tr. at 480,

483, 532, 562-63 (redacted), ECF No. 38-5) and therefore

incapable of inflicting any injury (see id., 2 Clerk’s Tr. at

678, ECF No. 38-2 (self-defense instruction stating, “When the

He did not have a right to use force when he

APPENDIX D

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attacker withdraws or no longer appears capable of inflicting any

injury, then the right to use force ends.”)).

actions likewise precluded a successful imperfect-self-defense

claim.

1626460, at *10 (C.D. Cal. Feb. 16, 2018) (jury could not have

found that petitioner acted in imperfect self-defense when he

“savagely beat” victim after rendering him unconscious), accepted

by 2018 WL 1626253 (C.D. Cal. Mar. 30, 2018); see also Berry v.

Davis, No. 2:10-cv-00305-JKS, 2014 WL 12672683, at *19 (E.D. Cal.

Oct. 20, 2014) (neither self-defense nor imperfect self-defense

was available to petitioner who continued to beat victim to death

after she ceased to be threat to him), aff’d on other grounds by

Berry v. Jacquez, 644 F. App’x 740 (9th Cir. 2016).

forensic evidence showed that Petitioner was the aggressor, as

related above (see Lodged Doc. 12, 8 Rep.’s Tr. at 2236-39, ECF

No. 38-16, 11 Rep.’s Tr at 3051-52, ECF No. 38-19, 15 Rep.’s Tr.

at 4228-436, ECF No. 38-23; Lodged Doc. 10, Interview, Clerk’s

Tr. at 476-77 (redacted), ECF No. 38-5), and thus Vallivero’s

prior methamphetamine use would not have swayed the jury.

Humphries v. Sherman, No. CV 18-5748-JFW (JEM), 2019 WL 13437224,

at *10 (C.D. Cal. Apr. 11, 2019) (any error in failing to

instruct jury on imperfect self-defense was harmless when

petitioner, who had only minor wounds to his arm and hands,

inflicted “23 sharp force injuries, 12 of them stab wounds to

[victim’s] face, neck, arms, hands, shoulder, elbow, thigh, and

hip”), accepted by 2019 WL 13437225 (C.D. Cal. May 22, 2019).

Finally, the jury’s verdict shows that exclusion of

Petitioner’s

See Garcia v. Muniz, No. LACV 16–7606–MWF (LAL), 2018 WL

Vallivero’s prior drug use was inconsequential.

APPENDIX D

Moreover,

See

The jury found

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the murder deliberate and premeditated.

Clerk’s Tr. at 639, ECF No. 38-2.)

likelihood — let alone a reasonable one — that it would have

found Petitioner acted in imperfect self-defense had evidence of

Vallivero’s past drug use been admitted.

No. 16-cv-03199-HSG (PR), 2020 WL 6562350, at *29 (N.D. Cal. Nov.

9, 2020) (“[T]he jury’s affirmative finding that Petitioner acted

with malice aforethought and committed the premeditated and

deliberated killing . . . effectively foreclosed the possibility

of a successful imperfect self-defense claim.”); Garcia, 2018 WL

1626460, at *10 n.33 (petitioner suffer

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