Petition for Writ of Certiorari — Paul D. Carr, Petitioner v. Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation

No.

IN THE

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SUPREME COURT OF THE UNITED STATES

FILED

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I DEC 11

PAUL DAVID CARR

I OFFICE OF THE CLERK

PETITIONEn"^^^^^-”' "^***

(Your Name)

vs.

JEFF MACOMBER

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

PAUL DAVID CARR

(Your Name)

Calif. Medical Facility

P.O. Box 2500

(Address)

Vacaville, CA 95696

(City, State, Zip Code)

(707) 449-6510

(Phone Number)

RECEIVEP

JAN - 6 2026

OFFICE OF THE CLERK

SUPREME COURT, U.S.

QUESTION(S) PRESENTED

Paul Carr was 61 years old in 2017**wlien he was sentenced to

Life without Parole. His attorney, who had-never defended a homicide

case -at trial, did not investigate nor consult with ballistics or

crime scene reconstructionists, critical to Carr's defense, the .

importance of destroyed physical evidence due to the failure of

police to keep the crime scene secured was not properly developed

by/trial counsel. This became even more critical at trial when the

jury was presented with a severely flawed bullet trajectory diagram,

(BTD),’ that improperly skewed the’ shot pattern and firing sequence

m the prosecution's favor. In essence, the heart of Carr's defense

was torn out by- the destruction of physical evidence, a severely

contaminated crime scene, and the flawed findings by police investi­

gators based on the tainted evidence. The jury also heard altered

911 call evidence at trial that improperly attacked Carr's character.

Carr s trial counsel also failed' tb contest* the perjured testi­

mony of multiple prosecution witnesses. Most critically, trial, cpunsel “ailed to realize that he was engaged in a credibility contest

at trial. Subsequently, Carr was forced to prove his claims of IAC,

Giglio/Napue errors and numerous Brady violations in the state and

federal habeas proceedings. This included proof of evidence tampering

of digital media by the prosecution.

The questions presented in Mr. Carr!'s petition for certiorari are:

1)

Does this court's decision in Cullen v. Pinholster, 563 U.S.170;

131 S.CT. 1388 (2011), permit an exception whereby federal

courts may consider newly developed evidence when the failure

to develop that evidence in state court was a result of inade­

quate-legal representation and the constrained process that

hampers the development of the factual record?

2)

Does this court's decision in Slack v. McDaniel. 529 U.S'. 473;

120 S.CT. 1595 (2000), be permitted to allow a "safety Valve."

from Pinholster's ban on evaluating hew evidence under Slack^*s

clause that the issues presented are "adequate to deserve en­

couragement to proceed! further" with the appellate process?

TABLE OF CONTENTS.

............ _i -

•’Question's Presented .............................

Table of Authorities Cited ......... ....................... .. ........................ -iii

Statutes and Rules . ........... .'.. . . . . . ... ... . .. . ... . ......................... ••. iii

Other .... ....

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. .-. . .

List of Parties .

. . ’. . . . .

Related Cases . . .

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Opinions Below

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. . . . . ..... . . . . . .... ....,. . ... j_v

... . . .,. .

. . . . ... ...

Iii

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jurisdiction ...........................................................................

iv

Constitutional and Statutory

Provisions Involved ............................................................. 1

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

i

A. Carres defense counsel chased the fantasy of an untenable

and uninvestigat.ed defense theory ......... 4 ...... .... 2

B. Carr's post-conviction counsel was not able to raise an

lAC or Brady claim onDirect Appeal because California

post-conviction process allowed.; only an evaluation ofp

procedural error's at trial!. ... .........

2

C. The. District Court not only disregarded Carr's:forensic

■ evidence^ it.actually-enhanced .and extrapulated the per; jury of the prosecution'witnesses ....... . ........ , .*. 3

Reasons for Granting the Writ . '. . .. A............

4

I.

This court should modify its decision in Cullen v, Pinhols t,er to address federal habeas corpus petitioners who are

prevented from proving their innocence in federal court

by Pinholster's prohibition of considering newly obtained

evidence that state action prohibited from developing in

state court ............................................ 4

II.

Other Supreme Court Rulings have found the state court

process to be inadequate ...............................

7

III. The perjury foisted upon Carr was unduly prejudicial evi­

dence that poisened the minds of the jury and affected

the outcome of the trial ...............................

8

CONCLUSION ..................................................

,INDEX TO APPENDICES

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APPENDIX A; Carr v. Macomber, No. 24-2122 (9th circuit improperly

time-bars Motion for Reconsideration.

APPENDIX B; Carr v. Macomber, No. 24-2122 (9th Circuit denies

issuance of Certificate of. Appealability.

APPENDIX C; Carr v. McDowell, No. 21-CV-0900 (Southern District

... .

of Calif.), District Court' order denying religf.

APPENDIX D; Court of Appeal, Forth Appellate District, Division

One, State of California.no. D080317, affirming con­

viction .

Cases

TABLE OF AUTHORITIES CITED

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Pages

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

Giglio v, U.S... 405 U.S.. 150 (1972)

.

.,

Napue v. Illinois, 360 U.S. 264 (1959)

Cullen v. Pinholster, 563 U.S. 170 (2001)

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

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

Lam v. .City of Los Banos, 976 f.3d 986 (9th Cir. 2020)

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Loi Van Nguyen v. Lindsey, 232 f. 3d 1236 (9th,Cir. 2000)

Pham v. Terhune, 400 f.3d 740 (9th Cir. 2005)

Wearry v. Cain,"577 U.S. 385 (2016)

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Townsend v. Sain,, 372 U.S. 293 (1963)

Ford v. Wainwright, 477 U.S.399 (1986)

Panetti v. Quarterman, 551 U.S. 930 (2007)

,

Felder v. Casey, 487 U.S. 131, 138 (1988)

Sullivan v. Louisiana, 508 U.S. 275 (1993)

Andrew v. White, 604 U.S. 86; 145 S.CT. 751 (202-5)

........................

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STATUTES AND RULES

28 U.S.C. sec.1254 (1)

28 U.S.C sec. 2254 (d)(1)

28 U.S.C sec. 2254 (d)(2)

U.S. Const. Amend. VI

U.S. Const. Amend. XIV, sec. 1

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OTHER

Stephen R. Reinhardt, "The Demise of Habeas corpus and the Rise

of Qualified Immunity...", 113 Mich.L. Rev

1219 (2015).

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. LIST OF PARTIES

Paul David Carr

Jeff Macomber

Office of the Attorney General, Sari' Diego County

;

RELATED CASES ' .

See: Lam v. City of Los Banos

' Loi Van Nguyen v. Lindsey .

:

Pham v. Terhune

Calif A v, Trombetta, 467 U.S. 479, (1984)

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

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OPINIONS BELOW

Petitioner respectfully prays that a writ of certiorari issue to

review the judgment below.

The federal courts:

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The opinion of the U.S. court of appeals appears at Appendix Ato

the petition and is reported at: 2025 U.S. APP.Lexis. 1924.6 and at

Appendix B at 2025 U.S.APP. lexis 25884

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The opinion of the U.S. District Court appears at Appendix C;

2024 U.S. District Lexis 37585

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The state court;

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The. state court to review the merits appears at. Appendix D, and

is unreported.

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JURISDICTION.

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The. U.S. Court for the Ninth Curcuit decided my case on 06-16,—2025

A timely petition for Reconsideration was denied by being impro­

perly deemed time-barred on 07,-31-2025

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An extension of time to file the petition for, awrit. of certiorari

was- granted to and including 12-28-2025 on 11-14-2025 in ’Applica­

tion No. 25A567.

The’ jurisdiction of this Court is invoked under 28 U.S.C. sec. 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

' ';

U.S. Const. Amend. VI: "In all criminal prosecutions, the

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accused shall enjoy the right to a speedy trial, by an impartial

jury of the state and district wherein the crime shall have been

committed, which district shall have been previously ascertained by

law, and to be informed of the nature and cause of the accusation;

to be confronted with the witnesses against him.; to have compul- '

so-ry ?!proce?s, for., .obtaining/witnesses, in .his favor..; and ,tp have the

Assistance of Counsel for his defense."

.

U.S. Const. Amend. XIV,.sec. 1: "nor shall any State deprive

any person of li fe, : liberty , or property , without, due process, of

law; nor deny any person within its jurisdiction the equal pro­

tection, of the laws," .

.

.

STATEMENT OF THE CASE

Throughout the legal proceedings in Carr's case, his defense

counsel failed to investigate or consult with any crime’ scene expert

to determine the shot sequence,, firing pattern, trajectory angles,

or crime scene reconstruction. In this self-defense case without eye

witnesses, The crime scene -reconstruction and ballistic evidence

was the heart of Carr’s defense. This defense was hot only ignored

by defense counsel, law enforcement had allowed critical physical

evidence to be destroyed and the crime scene to be severely con­

taminated. This led to a faulty crime scene reconstruction and an

incorrect BTD being presented to the jury.

Defense counsel also failed to counter the volume of perjured

prosecution witness testimony at trial.’During pre-lim, counsel

challenged some of this false testimony, but abandoned these chal­

lenges at trail. His decision cannot be deemed tactical as: Carr was

highly predjudiced by the perjury. Defense counsel failed to realize

that he was involved in a credibilityrcontest with the prosecution.

It took Petitioner several years to obtain proof of this perjury

in the form of suppressed;police reports and the field report of a

paramedic prosecution witness. These proofs are now blocked by the

Pinholster restrictions. .

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r.

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...

A.

Carr's defense counsel chased the fantasy of an untenable and

uninvestigated'defense theory.

*

Defense counsel based his entire defense' theory on one entrance

wound of the deceased. He neglected the exculpatory nature of the

physical crime scene evidence, corrupted by massive evidence spoili-

ation and compromised crime secene. Carr pleaded with defense counsel

to evaluate this physical evidence in order to reconstruct the shot

firing pattern that supported Carr's claim that he was trying to dis­

arm the deceased, not ^klll him. Garr was ignored by this novice

counsel.

B.

*“

i.

Carrtfs post-conviction counsel was hot able to raise an TAC or

Brady claim on Direct Appeal because California post-conviction

process allowed only an evaluation of procedural errors‘at

trial .

.,

Carr was left to pursue proofs and evidence on hjs own flor

habeas corpus proceedings, Evidence that the federal appellate courts

turn.a blind eye to under Pinholster. Without an fair evaluation

of this evidence, the state and district courts /Found that the results

of the trial would not have been different. Those courts, in essence,

placed an harmless-error analysis on perjury and evidence tamper­

ing. Even the Strickland standard, (Strickland v. Washington, 466 U.S.

668,694 (1984), defined prejudice "as a reasonable probalbility

of a different outcome."

The perjury conducted against Carr was

substantial and improperly damaged Carr's character and credibility.

2.

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The botched crime scene investigation, IAC, and the direct tampering

of digital media would present the required '"reasonable probabili|djl

of a different outcome". Yet again, Pinholster stiffles this post­

conviction evidence. This takes on added importance when the evidence

on the record, allowed to be parsed by the appellate courts!' opinion,

nonetheless, were' met by unreasonable and’ erroneous determinations

of facts in light of the evidence presented under '2254 (d)(2).

C.

The District 'court not only disregarded Catr's foresic Evidence,

it actually enhanced and extrapulated .the perjury of the prosec­

ution witnesses.

'

After properly exhausting the state Court procedures, Carr

filed a federal petition Ifor Writ of Habeas 'Corpus in the Southern

District of California. (2021). Perhaps the 'most bizzare finding of

the district court was that the tainted ballistic, BTD, firing se­

quence .and crime scene reconstruction had rib evidentiary' value on

the subject of guilt or irinocence.' This finding was diametrically

opposed to several ninth curcuit'rulihgs. (Lam v.! City of Los Banos,

976 f.3d 986 (9th cir. 2020)-, where the court found that the -deter­

mination of the bullet trajectories was'used to determine police’

excessive force; Loi van Nguyen v. Lindsey, 232 E.3d 1236 (9th cir.

2000), where police used laser beams to determine bullet 'traj'ect- ’

ories that determined where the bullets Came'from. This revealed'

the position1 of the dct'udl killer; 'and Pham v. Terhune, '400 if.3>d

740 (9th cir. 2005), where the inmate was improperly denied dis­

covery under 2254 (6)(a), because the criminalist1’s notes that

stated Pham had no GSR on him were withheld. Thedistrict court:

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denied the issuance of a Certificate of Appealability' in the face

of this evidence.

'

The' ninth cdtcuit also refused to consider Carry's evidence of

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perjury, (Giglio/Napue errors) or. the bad faith evidence tampering

.under Brady. .Trombetta, & Youngblood claims. The ninth circuit court

op" appeal denied the issuance of a certificate of appealability

without a reasoned explanation.

Petitioner argues that the denial of the certificate of appeal­

ability in, the. face of .the shear weight of post, conviction evidence

gathered by Carr, .that this violates this court's precept in Slack,

v. McDaniel., that this evidence was not .worthy to "deserve encour­

agement to proceed furthar". Petitioner also argues that he was

never granted a cumulative evidence review and that the denial of

h,is. Brady claims ran up agaipst settled constitutional^principles.

Wear.ry v. Cain, 577 U.S., 385 (2016). . ...

. . -

, ... REASONS FOR GRANTING THE PETITION

I. .

.

...

This court s.hould modify ..its, decision in Cullen v. Pinholster

to address federal habeas corpus petitioners who are prevented

from proving their innocence ip ..federal ..court. by Pinholster's

prohibition of considering newly obtained evidence that state

action prohibited Ifrom developing .in state court.

. f,

- This Co.urtl' s decision in Cullen v. , Pinholster created a pro­

cedural pitfall for petitioners ..like .Carr who are prohibited from

developing evidencein state.court by some state action, and then

are able to obtain .that evidence^ in federal ..habeas proceedings

only to .have.it excluded - from consideration. This Court should

grant certiorari .in this case ,to clarify the. procedure that,,will

permit fair consideration of such evidence and assure these such

petitioners ,an adequate process.,

A.

In PinholsterThis. Court determined that , federal habeas re­

view of a state courtT's decision under 28 U.$.C. sec. 2254 (d)(1)

is limited to the record that was before the state court. There is

no mention of redress for a corrupt state court record stained by

perjury and evidence tampering. Pinholster's catch-22 created'-a"brand new. set of procedural complexities" for certain federal peti-

tioners. Pinholster, 131 S.CT. at 1415 (Sotomayor, J., dissenting).

Specifically., how do federal courts treat, newly; developed evidence

that was' not available in state court because of the state's suppression or tampering.

.

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<

Justice Sotomayor'* s dissent illuminates the potential of. the

majority'*jb: opinion. "to bar-^federal habeas relief' f,or diligent

petitioners who cannot present new evidence to a state court" id at

1417. In Carr's Brady claims- whose inherent context is evidence

controlled by the state and. prohibited to the petitioner- -Soto­

mayor1's opinion mirrors Carr's situation. That a petitioner who

diligently developed the claims in state court and lost because the

evidence did not satisfy the materiality element could then obtain

additional evidence that did rise to the level of materiality after

the state courts proceedings had closed. If the federal courts were

permitted to consider such after acquired evidence that was not

available due to state action, such a petitioner may well obtain

relief in federal court. However, under the majorities decision,

the petitioner "with newly obtained evidence supporting a claim

adjudicated on the merits in state court cannot obtain federal re­

lief if they cdnnot first satisfy 2254 (d)(1) without the new

evidence." Sotomayor describes this as "a steep climb." id at 1418.

Petitioner asserts that the climb is not only "steep", it is also

a "slippery" constitutional slope. Under Pinholster, the newly

acquired evidence that was previously unavailable because of state

action, leaves petitioners like Carr in a procedural "no mans land'

Under the majorities opinion, petitioners are left by the wayside

in a federal, court I1's AEDPA deference to a state court decision

that is effectively based on an. incomplete and/or corrupted

record.

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The ultimate irony of this impossible situation is that- the

state appellate court's denial of Carry's habeas petition states in

the last sentence "without additional evidence, mere, speculation

does not warrant habeas corpus • relief

under Pinholster

(Appendix Dy pg u.t ■ ). Now,

that' ''additiorial evidence" is allowed to be' ig­

nored by the federal courts.

B.

.The1 deference .to state, courts that Pinholster imposes on ■

federal courts stands in conflict with those decisions of this

Court that upheld the federal habeas power to correct defects

in the development of a state court record.

Pinholster's paradoxical rule is a symptom of the continuing

reduction of federal habeas power. This Court recognized that there

were situations where the state court collateral review processes

were insufficient to develop the factual record required to decide

a petitioner's habeas claims. Townsend v. Sain, 372 U.S. 293 (1963).

In Townsend, This Court stated that, "because detension... obtained

violation of fundamental liberties safeguarded by the Consti­

tution} is intolerable, the opportunity for redress, which pre­

supposes the opportunity to be heard, to argue and present evidence,

must never be totally foreclosed." Townsend, 372 U.S. at 312 (empha­

sis added). In order to assure federal:federal petitioner's claims

were decided on a complete record, the Court set florth six condi­

tions wherein federal courts were required to hold an evidentiary

hearing. Id., at 313-318. Among them were that "the fact-(finding

procedure employed (by state courts) was not adequate for reaching

reasonably correct results"; that "newly discovered evidence is

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alleged in a habeas application,£J which could not'reasonably• . ,

have been presented to the state trier of facts"; and that,

for any

reason not attributed to the excusable neglect of the petitioner,

evidence crucial to the adequate consideration of the constitutional

claim was not developed at the state hearing." (emp. added).

II.

Other rulings from this Court have found the state court'

process to be inadequate, although those rulings were confined to

the nature of the claim at hand. See Ford v. WairiWright, 477U.S.

399 (1986); Panetti v. Quarterman, 551 U.S, 930 (2007);' Felder, v.

Casey, 487 U.S. 131, 138 (1988). Petitoner also takes note of This

Court's decision in Sullivan v. Louisiana, 508 U.S. 275 (1993),

where the Court asked if "... whether the guilty verdict actually

rendered in this trial was surely unattributable to' the' ‘T&ial error.

After the passage of AEDPA and certain court decisions, the

federal powers protections and processes have been constrained.

State courts have been made sole arbiter for the resolution of

federal claims. In Carrl’s case, the state court cites the need for

Carr to produce "additional evidence." He has found and produced

this additional evidence, but now, the federal habeas courts can­

not evaluate this evidence due to Pinholster. Carr was denied an

evidentiary hearing, lodgment of the new discovery,' and expansion

of the record at both state and federal levels.

III. The perjury foisted upon Carr was unduly prejudicial evi--- dence.that poisened the minds of the jury and affected the

outcome of the trial.

In Andrew, v. White, 604 U.S. 86; 145 S.CT. 75 (2025), Tfjfis

Court found Due Process was violated by evidence soundly preju­

dicial, as to render a criminal trial fundamentally .unf air . This

is Carr's exact situation. This Court should grant certiorari in

this case to.correct the Pinholster trap and to permit the fair

consideration and evaluation of CarriS; ..evidence.

CONCLUSION

Petitioner has made reference to the Mich.L.Rev. article that

predicted the troubling constitutional implications of AEDPA and Pin­

holster. That these procedural obsticles rob a fair opportunity to

seek relief From unconstitutional deprivation of rights by state courts.

The article asserts that the Pinholster ruling created "an unnecessary,

unprecedented, and exceedingly harmful rule in the habeas context."

(113 Mich.L.Rev. 1219, (2015), pg 1237). Petitioner agrees.

This.court should grant a writ of certiorari to the court of

appeals.for the Ninth Circuit reversing the denial of the issuance

of a certificate of appealbility in Carr's case. The exclusion of

Carr1's evidence of perjury, evidence tampering, and proof of bad faith

under the "bad faith" clauses of T^ombetta and Youngblood, should

not be allowed under Pinholster. Carr was not able to develop that

evidence instate court because he was forced to find that suppressed

and tampered evidence well after his conviction.

This Court should also rule that Carr may proceed to present

his evidence to the Ninth Circuit under the equitable tenets identified in Slack v. McDaniel, that Carr's claims are "adequate to

deserve encouragement to proceed further."

Petitioner prays that .the petition for a writ of certiorari be granted.

Respectfully submitted,

Date:

/ 2.-77-

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CERTIFICATE OF SERVICE

I certify that a copy of the foregoing petition for writ of

certiorari was served this 22nd day of December, 2025, upon the

duty officer at CMF and should be considered timely filed under

this CoutC's ruling in Houston v. Lack, 487 U.S. 266 (1988). A copy

of this petition was also sent to Respondent, Attorney General of

San Diego County, P.O. Box 85266-5299, San Diego, CA 92186, this

same day.