Opinion
5:21-cv-266-JGB (MAR)
02-15-2022
RONALD STEVEN BISHOP, Petitioner, v. NEIL MCDOWELL, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HONORABLE MARGO A. ROCCONI UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable Jesus G. Bernal, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
The Court issues this Final Report and Recommendation to address Petitioner's and Respondent's Objections. See Dkts. 18; 19; below, at subsection VII.
I. SUMMARY OF RECOMMENDATION
Petitioner Ronald Steven Bishop (“Petitioner”), with assistance of counsel, has filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 challenging his July 14, 2016 conviction. ECF Docket No. (“Dkt.”) 1 at 2. 1 Respondent filed an Answer to the Petition (“Answer”). Dkt. 12. For the reasons that follow, the Court recommends: (1) accepting this Report and Recommendation; (2) DENYING the Petition; (3) DISMISSING this action with prejudice; and (4) GRANTING a Certificate of Appealability as to Claim One.
All citations to electronically filed documents refer to the CM/ECF pagination.
II. PROCEDURAL HISTORY
A. STATE COURT PROCEEDINGS
On July 14, 2016, following a jury trial in the Superior Court of Riverside County, Petitioner was convicted of: twelve (12) counts of committing a lewd act with a child fourteen (14) or fifteen (15) years of age (Cal. Penal Code § 288(c)(1)); eight (8) counts of sodomy of a person under sixteen (16) years of age (Cal. Penal Code. § 286(b)(2)); eight (8) counts of oral copulation of a person under sixteen (16) years of age (Cal. Penal Code 288a(b)(2)); five (5) counts of sexual penetration of a person under sixteen (16) years of age (Cal. Penal Code § 289(i)); three (3) counts of sodomy of an unconscious person (Cal. Penal Code § 286(f)); three (3) counts of sexual penetration of an unconscious person (Cal. Penal Code § 289(d)); one (1) count of sexual penetration of an intoxicated person (Cal. Penal Code § 289(e)); one (1) count of possession of child pornography (Cal. Penal Code § 311.11(a)); and one (1) count of contacting a minor with intent to commit a lewd or lascivious act with a child fourteen (14) or fifteen (15) years of age (Cal. Penal Code § 288.3(a)); as well as a misdemeanor count of annoying or molesting a minor (Cal. Penal Code § 647.6(a)(1)). Dkt. 1 at 2; Lodged Document (“Lodg.”) 5 at 2. Petitioner was sentenced to forty- 2 three (43) years in state prison for the felony counts plus 364 days fort the misdemeanor count. Dkt. 1 at 2; Lodg. 5 at 2.
The Court's citations to Lodged Documents refer to documents lodged in support of Respondent's Answer. See Dkt. 13. Respondent identifies the documents in Dkt. 13, as follows:
(1) Clerk's Transcript, four volumes, in Riverside County Superior Court case no. INF1300615 (Lodg. 1; CT-1-CT-4);
(2) Reporter's Transcript, index and four volumes, in Riverside County Superior Court case no. INF1300615 (Lodg. 2; RT-1-RT-4);
(3) Appellant's Opening Brief, filed March 27, 2017, in Court of Appeal case no. E066729/D73609 (Lodg. 3);
(4) Respondent's Brief, filed August 24, 2017, in Court of Appeal case no. E066729/D073609 (Lodg. 4);
(5) Court of Appeal Opinion, filed August 23, 2018, in case no. D073609 (Lodg. 5);
(6) Petition for Review, filed October 1, 2018, in California Supreme Court case no. S251610 (Lodg. 6);
(7) California Supreme Court Order denying review, filed November 20, 2018, in case no. S251610 (Lodg. 7);
(8) State habeas petition, filed January 8, 2020, in Riverside County Superior Court case no. RIC2000101 (Lodg. 8);
(9) Informal Response, filed March 30, 2020, in Riverside County Superior Court case no. RIC2000101 (Lodg. 9);
(10) Reply to Informal Response, filed April 20, 2020, in Riverside County Superior Court case no. RIC2000101 (Lodg. 10);
(11) Riverside County Superior Court Order, filed August 10, 2020, denying state habeas petition in case no. RIC2000101 (Lodg. 11);
(12) State habeas petition, filed September 3, 2020, in Court of Appeal case no. E75651/D077923 (Lodg. 12);
(13) Court of Appeal Order, filed October 26, 2020, denying state habeas petition in case no. D077923 (Lodg. 13);
(14) State habeas petition, filed October 27, 2020, in California Supreme Court case no. S265244 (Lodg. 14); and
(15) California Supreme Court docket reflecting denial of state habeas petition on February 10, 2021, in case no. S265244 (Lodg. 15).Dkt. 13 at 1-3.
Petitioner filed a direct appeal in the California Court of Appeal, raising five (5) grounds:
(1) The warrant to search appellant's home was invalid and the trial court erred in denying the motions to quash the warrant and suppress the evidence.
(2) There was insufficient evidence to convict appellant of Count One - contacting a minor with the intent to commit a sex crime.
(3) The addition of charges after the preliminary hearing constituted vindictive prosecution.
(4) The trial court erred in denying the mistrial motion after a police officer said one of the videos in appellant's home depicted him having sex with a piece of fruit.
(5) The evidence was insufficient to support eight convictions of sodomy.3 Dkt. 1 at 3-4; Lodg. 3 at 2-3. The court of appeal affirmed his conviction and sentence on August 23, 2018. Dkt. 1 at 4; Lodg. 5
Petitioner then sought direct review in the California Supreme Court. Dkt. 1 at 4; Lodgs. 6; 7. On November 20, 2018, the California Supreme Court denied the petition for review. Dkt. 1 at 4; Lodg. 7.
Petitioner raised the following four (4) grounds on direct review:
(1) Does the offense of child annoyance support a finding of probable cause to search petitioner's electronic devices in his home for child pornography in light of the holding in United States v. Hodson, 543 F.3d 286 (2008)?
(2) Should Code of Civil Procedure 2015.5 apply to search warrants?
(3) When a prosecutor increases the charges against an accused simply because he exercises his right to a preliminary hearing, is that vindictive prosecution?
(4) Should petitioner's new trial motion have been granted?Dkt. 1 at 4; Lodg. 6 at 2.
Petitioner filed a petition for writ of habeas corpus in the Riverside County Superior Court. Dkt. 1 at 5; Lodg. 8. On August 10, 2020, the superior court denied the habeas petition. Lodg. 11. Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal, which denied the petition on October 26, 2020. Dkt. 5 at 5; Lodgs. 12; 13. Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. Dkt. 5 at 5; Lodg. 14. The California Supreme Court denied the petition on February 10, 2021. Lodg. 15.
B. FEDERAL HABEAS PETITION
On February 16, 2021, Petitioner, with the assistance of counsel, filed the instant Petition. Dkt. 1. On July 13, 2021 Respondent filed an Answer to the Petition. Dkt. 12. Petitioner filed a Traverse on July 23, 2021. Dkt. 15.
On January 28, 2022, the undersigned Magistrate Judge issued a Report and Recommendation. Dkt. 17. On February 10, 2022, both Respondent and Petitioner filed Objections. Dkts. 18, 19. 4
III. SUMMARY OF FACTS
For a summary of the facts, this Court relies on the California Court of Appeal's opinion as those facts pertain to Petitioner's claims:
Because this factual summary is drawn from the California Court of Appeal's opinion, “it is afforded a presumption of correctness that may be rebutted only by clear and convincing evidence.” Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2008) (citations omitted). Counsel for Petitioner relies on some of the appellate court's factual and evidentiary summaries. See, e.g., Dkt. 1 at 19-21, 29-30. To the extent counsel has not explicitly relied on other factual representations in the opinion, the Court has independently reviewed the trial record and finds them accurate.
BACKGROUND
A
1
In 2012, 15-year-old John Doe 1 took a high school course from Bishop. When John Doe 1 raised some personal issues during a class discussion, Bishop made a negative comment. Toward the end of class, Bishop gave a note to John Doe 1. Bishop's note said he was sorry for his comment and provided Bishop's phone number for John Doe 1 to call or text message Bishop about the incident.
A few days later, Bishop contacted John Doe 1 through social media. They began exchanging messages through social media and text. The frequency of the messages increased over time leading to messages throughout the day and “all the way into the night.” Bishop asked John Doe 1 to delete the messages they exchanged on social media.
The conversations ranged from John Doe 1's relationship with his parents to sexually related topics. Bishop asked John Doe 1 to come over to Bishop's house and asked if John Doe 1 needed a ride. Bishop gave John Doe 1 a new video game for Christmas.
Bishop called John Doe 1 over to his desk during class one day. He asked John Doe 1 to provide urine for another student to use for a drug test because Bishop knew John Doe 1 did not use drugs and his urine would be clean. John Doe 1 provided the urine. Bishop later sent John Doe 1 a message asking if he gave the student the urine. When John Doe 1 said “yes, ” Bishop then asked John Doe 1 if he would give the student his sperm if John Doe 1 were asked to do so. When John Doe 1 said “no, ” Bishop asked why not since John Doe 1 would “do it every other day.”5
Bishop's messages with John Doe 1 began to discuss and offer advice about masturbation. Bishop asked about the size of John Doe 1's penis and whether he was circumcised.
Bishop told John Doe 1 his own son was “messed up” and Bishop felt closer to John Doe 1 than he felt to his own son. Bishop began calling John Doe 1 “son” and asked John Doe 1 to call him “dad.” Bishop said he loved John Doe 1 as a son and John Doe 1 said he loved Bishop back.
Bishop offered John Doe 1 a room in Bishop's house and asked John Doe 1 to live with him. Bishop said John Doe 1 would be able to have his own privacy. Bishop sent John Doe 1 pictures of Bishop's home and a picture of a bed John Doe 1 could use. In conversations about masturbation, Bishop told John Doe 1 he could use his own private bathroom at Bishop's house where John Doe 1 could take his time.
John Doe 1 told Bishop he was afraid of dolls as depicted in horror movies. Bishop said he would put dolls in the room he had for John Doe 1 to make John Doe 1 “wet your bed, ” but then said he would not want John Doe 1 to mess up his bed. Bishop said, “I have a better idea that's more evil.” When John Doe 1 asked what it was, Bishop responded, “If I tell you, then it won't be scary now, will it?”
Bishop showed favoritism to John Doe 1 in class. He left food for John Doe 1 on John Doe 1's desk. John Doe 1 felt Bishop was more lenient toward John Doe 1 in grading, giving him As or Bs even though John Doe 1 was not good at public speaking.
John Doe 1 felt uncomfortable about the text messages with Bishop. Eventually, he reported them to law enforcement.
2
Witness N.D. also took a class from Bishop. Bishop asked for N.D.'s phone number during class. Bishop communicated with N.D. through text messages and social media.
Bishop called N.D. “Chiquita Gordita, ” meaning “my chunky girl.” Bishop constantly suggested spending time with N.D. outside of class. Bishop invited N.D. to come to his house after school to play video games, garden, or eat. Bishop offered to adopt N.D. and said he could6
provide more than N.D.'s mother. When N.D. declined adoption, Bishop showed N.D. pictures of Bishop's house and kept bringing up adoption.
Bishop saw N.D. walking home and offered to give N.D. a ride. Bishop appeared offended when N.D. declined. Bishop also offered to take N.D. out to eat, which N.D. Declined.
At some point, the relationship began to feel creepy. If N.D. did not respond to Bishop's text messages, Bishop said, “[T]hanks for the reply.” Bishop once said, “I bet all you do at your house is jack off.” Bishop texted N.D. during class and looked at N.D. seriously while Bishop was talking with other students. N.D. began skipping Bishop's class because he felt uncomfortable. Bishop commented it was not fair N.D. would skip class but would not go with Bishop. N.D. eventually spoke to law enforcement.
B
After receiving John Doe 1's report, police detectives downloaded text messages, call logs, photographs, and images from John Doe 1's cellular phone.
Pursuant to a search warrant, officers searched Bishop's residence in Indio. They collected CDs, DVDs, VHS tapes, desktop and laptop computers, digital hard drives for media storage, USB type devices, and video and still cameras.
In reviewing the VHS tapes, an officer noticed one in which a video of a child in an orange shirt appeared in the middle of a tape with recordings of sports shows or television reruns. The tape was marked with John Doe 3's initials, the at sign, and “3HR.” The video was of a child showing his buttocks to the camera. Another video depicted Bishop orally copulating and digitally penetrating the same child as the child was sleeping.
There were numerous videos involving sexual activity between young boys, and young boys performing masturbation acts. An information technology computer forensic examiner for the district attorney's office located and compiled five videos from various media storage devices, which were compliant with a request for videos or photographs of young people in stages of undress or engaging in sexual activity.
An officer ran a criminal history check on Bishop and discovered an out-of-state report. The officer contacted the out-of-state department to see7
if they could identify the child in the video, which turned out to be John Doe 3. A detective from California then went to interview John Doe 3.
C
John Doe 3 lives out of state. Bishop, who is 20 years older than John Doe 3, visited John Doe 3's family every summer when John Doe 3 was growing up. John Doe 3 also thought Bishop was his best friend. They talked on the phone during the school year when Bishop was in California. John Doe 3 thought he could talk to Bishop about anything.
At age 11, John Doe 3 became curious about his body and asked Bishop about sex. He felt comfortable with Bishop and trusted him. Bishop taught John Doe 3 how to masturbate by sitting next to John Doe 3, providing lubrication, and telling him what to do. Thereafter, Bishop participated by masturbating and orally copulating John Doe 3's penis. When John Doe 3 was 13 or 14, Bishop began digitally penetrating John Doe 3's anus while also masturbating John Doe 3's penis. Bishop introduced sodomy when John Doe 3 was 15 years old. As these events occurred, Bishop told John Doe 3 about the female and male anatomy as though he was providing a lesson or demonstration.
Bishop recorded the sexual acts with a video camera. John Doe 3 identified himself as the child in the videos recovered by police that showed John Doe 3's buttocks and Bishop orally copulating and digitally penetrating John Doe 3 as he slept. The videos were taken by Bishop when John Doe 3 was 10 years old during one of Bishop's out-of-state visits.
When John Doe 3 was 15 years old, he came to California to visit Bishop for three weeks in the summer. During the visit, Bishop performed sexual acts on John Doe 3 including masturbation and oral copulation of John Doe 3's penis, digital penetration of John Doe 3's anus, and sodomy. Bishop masturbated John Doe 3 approximately 12 times. Bishop performed oral copulation on John Doe 3 six to eight times. Bishop digitally penetrated John Doe's anus eight times. John Doe 3 recalled Bishop sodomized him four to six times.
Bishop provided John Doe 3 with alcoholic beverages to subdue John Doe 3's mind and motor functions. The alcohol acted as a tranquilizer or anesthetic, particularly to sodomize John Doe 3 . It was easier for Bishop to perform sexual acts on John Doe 3 because John Doe 3 would not complain when he was under the influence of alcohol. On one occasion,8
John Doe 3 became severely intoxicated. Bishop photographed John Doe 3 when he was asleep and later showed him the picture. Bishop said John Doe 3 could barely walk and was slurring his speech.
A video taken during the California visit depicted Bishop digitally penetrating John Doe's anus while John Doe 3 was under the influence of alcohol. Another photograph and a video showed Bishop performing sex acts on him, including sodomy, when he was “knocked out cold.” John Doe 3 had no memory of this incident.
John Doe 3 talked to out-of-state law enforcement officers when John Doe 3 was 17 years old after Bishop visited John Doe 3's home for the summer. John Doe 3 was angry when out-of-state law enforcement decided not to file charges. Three years after his initial report, John Doe 3 was contacted and interviewed by law enforcement officers from California.Dkt. 1-1 at 7-11; Lodg. 5 at 3-9; People v. Bishop, No. D073609, 2018 WL 4020444, at *1-4 (Cal.Ct.App. Aug. 23, 2018) (footnotes omitted).
IV. PETITIONER'S CLAIMS FOR RELIEF
The Petition appears to present the following three (3) claims:
(1) Trial counsel rendered ineffective assistance by failing to completely litigate the suppression motion, and the California Court of Appeal's rejection of this claim was contrary to the clearly established Supreme Court precedent of Strickland v. Washington (“Claim One”).
(2) Ineffective assistance of counsel was also shown by the conflict of interest that arose by trial counsel's representation of petitioner on appeal, especially given counsel's pending disbarment, and the California Court of Appeal's rejection of this claim was contrary to the clearly established Supreme Court precedent of Glasser v. United States and Cuyler v. Sullivan (“Claim Two”).
(3) The prosecution's decision to add 40 new counts relating to John Doe 3 after petitioner exercised his right to a preliminary hearing amounted to a vindictive prosecution, and the California Court of Appeal's rejection of this9
claim was contrary to the clearly established Supreme Court precedent of North Carolina v. Pearce and Blackledge v. Perry (“Claim Three”).
Dkts. 1 at 6-7; 1-1 at 2, 14, 22, 30.
Respondent contends that Petitioner's claims fail on their merits. Specifically, Respondent argues that:
(1) Petitioner has failed to show that the California state courts' denial of his ineffective assistance of counsel and conflict of counsel claims were contrary to, or based on an unreasonable application of United States Supreme Court's decisions governing such claims; and
(2) Petitioner failed to establish that he was subjected to vindictive prosecution. Dkt. 12-1 at 14-28, 28-31.
V. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief on a claim adjudicated on its merits in state court unless the adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
“Clearly established Federal law” for purposes of § 2254(d)(1) consists of “the holdings, as opposed to the dicta, of th[e] [United States Supreme] Court's decisions” in existence at the time of the state court adjudication. Williams v. Taylor, 529 U.S. 362, 412 (2000). However, “circuit court precedent may be ‘persuasive' in demonstrating what law is ‘clearly established' and whether a state court applied that law unreasonably.” Maxwell v. Roe, 628 F.3d 486, 494 (9th Cir. 2010). 10 A state court decision rests on an “unreasonable application” of federal law for purposes of § 2254(d)(1) where a state court identifies the correct governing rule, but unreasonably applies that rule to the facts of the particular case. Andrews v. Davis, 944 F.3d 1092, 1107 (9th Cir. 2019) (citing Williams, 529 U.S. at 407-08). “It is not enough that a federal habeas court concludes ‘in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.' ” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 76 (2003)). “The state court's application of clearly established law must be objectively unreasonable.” Lockyer, 538 U.S. at 75.
In determining whether a state court's decision is “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” under § 2254(d)(2), a state court's factual findings are “presumed to be correct.” Andrews, 944 F.3d at 1107. Furthermore, the same standard of unreasonableness under § 2254(d)(1) applies under § 2254(d)(2). Id. (citing Rice v. Collins, 546 U.S. 333, 339 (2006)). A state court's decision is based on an unreasonable determination of the facts under § 2254(d)(2) “where the state court[ ] plainly misapprehend[s] or misstate[s] the record in making [its] findings” or where the state court “has before it, yet apparently ignores, evidence that supports petitioner's claim.” Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004), cert. denied, 543 U.S. 1038, 125 (2004), overruled on other grounds by Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014).
Overall, AEDPA established “a difficult to meet ... and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal citation and quotation marks omitted). “That deference, however, ‘does not by definition preclude relief.' ” Andrews, 944 F.3d at 1107 (citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). 11
Where the last state court disposition of a claim is a summary denial, this Court must review the last reasoned state court decision addressing the merits of the claim under AEDPA's deferential standard of review. Maxwell v. Roe, 628 F.3d 486, 495 (9th Cir. 2010); see also Berghuis v. Thompkins, 560 U.S. 370, 380 (2010); Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991).
Here, Petitioner's claims will be reviewed under AEDPA's deferential standard of review for claims “adjudicated on the merits.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 99. Petitioner raised his vindictive prosecution claim on direct appeal in the California Court of Appeal. Lodg. 3. The court of appeal rejected the claim in a reasoned opinion and the California Supreme Court denied further review. Lodgs. 5; 7. Thus, the Court will look to the California Court of Appeal's August 23, 2018 opinion on direct review as the last reasoned decision for Claim Three.
As for Petitioner's ineffective assistance of counsel claims, Petitioner raised these claims in state habeas petitions before the Riverside County Superior Court, California Court of Appeal, and California Supreme Court. Lodgs. 8; 12; 14. The California Court of Appeal's October 26, 2020 opinion denying Petitioner's petition for writ of habeas corpus stands as the last reasoned decision with respect to Claims One and Two. See Lodg. 13.
The California Supreme Court rejected the ineffective assistance of counsel claim without comment. Lodg. 15.
VI.
DISCUSSION
A. CLAIM ONE - INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
In Claim One, Petitioner argues that his trial counsel was ineffective for failing to properly and completely litigate the suppression motion at trial. Dkts. 1 at 6-7; 1-1 at 2, 14-22. 12
1. California Court of Appeal's October 26, 2020 Opinion
The California Court of Appeal rejected Petitioner's ineffective assistance of counsel claims, explaining that:
Although [Petitioner] has presented evidence of professional malfeasance as it relates to O'Connell's retention by [Petitioner's] mother (and unrelated malfeasance resulting in O'Connell's disbarment in January 2019), he has not presented a prima facie case for relief based on ineffective assistance of counsel as it relates to his unsuccessful attempts to suppress evidence or O'Connell's representation on appeal. As noted, [Petitioner] argues O'Connell's representation was ineffective because he did not assert the legal argument, based on federal case law, that the People's reliance on an officer's opinion that someone who has molested children is also likely to possess child pornography was insufficient to establish probable cause. The cases [Petitioner] cites involve reliance on a bare officer's opinion, with no evidence about the suspect's relationship to the crime under investigation. (See U.S. v. Needham (9th Cir. 2013) 718 F.3d 1190, 1195 [Officers who conducted search “relied on a warrant predicated on the bare inference that those who molest children are likely to possess child pornography.”]; Dougherty v. City of Covina (9th Cir. 2011) 654 F.3d 892, 895 [“the only evidence linking the suspect's attempted child molestation to possession of child pornography is the experience of the requesting police officer, with no further explanation”].) Here, the officer's opinion was accompanied by significant additional evidence supporting probable cause. O'Connell's failure to argue at trial, or on appeal, the point now advanced by [Petitioner's] current counsel was not deficient.
[Petitioner's] second assertion also lacks merit. He contends O'Connell was ineffective for not challenging the trial court's finding “that if there is probable cause to believe any criminal activity is occurring in a house (in this case, possible misdemeanor child annoyance) then police are justified in searching through petitioner's cell phone and computer.” [Petitioner's] argument, however, misrepresents the court's ruling, which focused on the investigating officer's explanation that communications between [Petitioner] and the minor victim suggested criminal activity was occurring at [Petitioner's] home and that the communications with the victim were occurring over [Petitioner's] cell phone and the internet, presumably through his computer. The court did not base it's ruling on the existence of just “any criminal activity, ” but rather on specific evidence related to [Petitioner's] contacts with the alleged victim. Any challenge by O'Connell13
on this ground would have been meritless and does not show ineffective assistance.Lodg. 13 at 3-5.
2. Applicable law
Under Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel claims must satisfy a two-prong test: (1) counsel's performance was deficient, and (2) prejudice resulted from the deficient performance. 466 U.S. at 687. To prove deficient performance, a petitioner must show counsel's representation fell below an objective standard of reasonableness. Id. at 687-88. However, establishing counsel's deficient performance does not warrant setting aside the judgment if the error had no effect on the judgment. Id. at 691; see also Seidel v. Merkle, 146 F.3d 750, 757 (9th Cir. 1998). A petitioner must also show prejudice, such that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.
3. Analysis
a. Trial counsel was not ineffective for failing to litigate the suppression motion properly and completely at trial
Petitioner argues that his trial counsel rendered ineffective assistance of counsel warranting habeas relief because his counsel failed to fully challenge the basis of the search warrant and the suppression of evidence retrieved from the warrant. Dkt. 1-1 at 14, 18-22. Petitioner argues that a trial lawyer's failure to completely and competently litigate a suppression motion under the Fourth Amendment may constitute ineffective assistance under the Sixth Amendment. Kimmelman v. Morrison, 477 U.S. 365, 378 (1986). Specifically, he argues that trial counsel failed to make two legal arguments that should have resulted in suppression of the evidence:
(1) “counsel failed to refer to the case law holding that an officer's opinion that someone who molests children is likely to possess child pornography does not establish probable cause to search a suspect's computer for child pornography”; and
(2) “counsel failed to challenge the trial court's ruling that if there is probable cause to 14 believe any criminal activity is occurring in a house (in this case, possible misdemeanor child annoyance) then police are justified in searching through petitioner's cell phone and computer.” Id. at 19-22.
i. Counsel's failure to refer to the case law regarding officer opinion
As to Petitioner's first argument, he points to the Ninth Circuit's decisions in Doughtery v. City of Covina, 654 F.3d 892 (9th Cir. 2011), and United States v. Needham, 718 F.3d 1190 (9th Cir. 2013) as cases that trial counsel should have referenced in his suppression motion. Dkt. 1-1 at 18-19. Petitioner argues that, by failing to raise these arguments-even after Petitioner urged counsel to do so-trial counsel missed an opportunity to make a more compelling argument than he did. Id. at 20. Petitioner suggests that, had trial counsel analogized to these cases, he would have established that there was not probable cause to search Petitioner's home for child pornography. The Court is not convinced. 15
The Ninth Circuit in Doughtery addressed whether probable cause existed to search a suspected child molester's home for child pornography based only on an officer's opinion regarding individuals who molest children propensity to also possess child pornography. 654 F.3d at 897-99. In Doughtery, “while the totality of circumstances could, in some instances, allow us to find probable cause to search for child pornography[, ]” the officer-affiant's “conclusory statement tying this subject, alleged to have molested two children . . . to having in [his] possession child pornography” was insufficient to create probable cause. Id. at 899 (internal quotation marks omitted). The affidavit for the search warrant contained “no facts tying the acts of Dougherty as a possible child molester to his possession of child pornography” nor did the affidavit provide any “evidence of receipt of child pornography[, ]” any specific expert conclusions that the petitioner was a pedophile, or any “evidence of conversations with students about sex acts, discussions with children about pictures or video, or other possible indications of interest in child pornography.” Id. at 898-99.
Like Doughtery, Needham involved a petitioner's challenge to a warrant affidavit-and the factual sufficiency to find probable cause underlying the warrant-to search the petitioner's residence for child pornography. 718 F.3d at 1193. There, the petitioner argued that the detective's assertions that because petitioner had “an unnatural sexual interest in children” and that “[t]hese people collect sexually explicit material of children[, ]” were inadequate to support probable cause that petitioner had child pornography in his home. Id. at 1193-94. The Ninth Circuit explained that, while an execution of a “warrant predicated on the bare inference that those who molest children are likely to possess child pornography” lacked probable cause, the search “was executed in objectively reasonable reliance on the search warrant.” Id. at 1194-95.
Petitioner's argument here assumes that trial counsel could have convincingly analogized between the facts underlying the search warrant in his case and the facts in Dougherty and Needham. As the California Court of Appeal explained in denying this claim, “the cases [Petitioner] cites involve reliance on a bare officer's opinion, with no evidence about the suspects relationship to the crime under investigation.” Lodg. 13 at 4. However, in Petitioner's case “the officer's opinion was accompanied by significant additional evidence supporting probable cause”-including text conversations with a minor discussing sex acts, which the Ninth Circuit specifically cited in Dougherty as evidence the deficient affidavit could have included, but ultimately lacked. Id. at 4; Dougherty, 654 F.3d at 897-99. Thus, it follows that trial counsel's failure to argue this point at trial was not deficient because the argument was likely to have been rightfully rejected by the trial court as meritless. Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for failing to raise a claim that is meritless” (referencing Knowles v. Mirzayance, 556 U.S. 111 (2009)); Baumann v. U.S., 692 F.2d 565, 572 (9th Cir. 1982) (“The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel”).
Lodg. 1 at 62-69.
Petitioner's argument here also overlooks that, despite finding that the officers lacked probable cause, the Ninth Circuit in Needham also found that the search was executed in objectively reasonable reliance on the search warrant. 718 F.3d at 1195. Thus, it is unclear that the evidence would have been suppressed even if counsel had successfully argued the absence of probable cause.
ii. Failure to challenge the trial court's ruling
Next, Petitioner argues that “counsel failed to challenge the trial court's ruling that if there is probable cause to believe any criminal activity is occurring in a house (in this case, possible misdemeanor child annoyance) then police are justified in searching through petitioner's cell phone and computer.” Id. at 19-22. However, as 16 the California Court of Appeal correctly found, “the trial court did not base [its] ruling on the existence of just ‘any criminal activity,' but rather on specific evidence related to [Petitioner's] contacts with the alleged victim.” Lodg. 13 at 5. Again, in Bishop's case, the search warrant affidavit actually presented evidence of Petitioner's history of sending John Doe 1 sexually explicit messages in electronic format.
iii. Particularity requirement
Petitioner also adds a nuanced argument that, in this digital age, law enforcement must adequately describe what they are looking for when asking for authorization to search a cell phone or computer, because a general warrant will not withstand the Fourth Amendment's particularity requirement-i.e., the search should “adequately describe what [law enforcement] are looking for” and, here, should have been limited to files relevant to contacts Petitioner had with John Doe 1. Dkt. 1-1 at 20. Petitioner cites to Riley v. California, 573 U.S. 373, 393 (2014), which notes that warrants must be obtained to access cell phone data because cell phones differ from other types of personal effects due to their “immense storage capacity.” However, Petitioner cites no authority, and the Court can find none, that requires a more robust particularity requirement when it comes to searches of cell phones and computers. 17 Generally, a search warrant “must particularly describe the place to be searched, and the persons or things to be seized.” United States v. Kimble, 855 F.3d 604, 610 (4thCir. 2017).
Vortman is not directly analogous to the instant case because law enforcement in Vortman was directly investigating specific access to child pornography, whereas specific articles of child pornography were not directly implicated in this case until they were obtained in the search executed pursuant to the warrant. However, Vortman is relevant to show an example of the Ninth Circuit declining to apply any different standard when determining whether the warrant to search the computers satisfied the particularity requirement. Ultimately, the court found the warrant was not overbroad because it had specifically described the information to be seized and was limited to computers actively trying to access child pornography. The Ninth Circuit briefly addressed the particularity requirement for a warrant in the computer context in a recent unpublished case, United States v. Vortman, 801 Fed.Appx. 470 (9th Cir.), cert. denied, 141 S.Ct. 261, 208 L.Ed.2d 30 (2020). In Vortman, the defendant challenged a warrant that authorized the search of certain computers that logged into an online forum for sending and receiving child pornography. Id. at 472. The Ninth Circuit held that the warrant was not overbroad because it described the place to be searched (the “activating” computers, i.e., computers that logged into the website during the time the government was operating it) and the items to be seized (seven pieces of identifying information, including the computer's IP address). Id. at 472-73. The FBI obtained a separate warrant to search Vortman's residence and seized digital devices containing several photos and videos of child pornography. Id.
In this case, law enforcement did heed the holding of Riley and specifically obtained a warrant for the cell phone and computer data. The search warrant specified the following for the cell phone: “All photographs, digital images, and videos from said cellular phone; [] all information[, ] records or writings including contact lists, text messages, multimedia messages (ex. Picture or video messages) and call histories of any kind contained in the cell phone; [and] all programs and e-mail programs, and records or photographs and digital images sent or received; and all documents and effects in the phone tending to show possession, dominion and control over said cell phone.” Lodg. 1 at 68. With respect to the computer hardware, software or data storage, the search warrant specified: “any film or filmstrip depicting nudity and/or sexual activities, whether real or simulated involving juveniles, juveniles with juveniles, and juveniles with adults.” Id.
The affidavit supporting the warrant extensively laid out the various inappropriate contacts between Petitioner and the minor, John Doe I, including text and Facebook conversations started by Petitioner regarding John Doe I's masturbation habits, sperm, sexual practice, and penis size, as well as pictures of Petitioner's house that Petitioner sent to John Doe I, offering John Doe I a private place to masturbate in the hopes of enticing John Doe I to move in with him. Id. at 65-66. The affidavit also specified that Petitioner's cell phone and computer were likely to contain evidence of “this crime of child annoying and evidence of messages pertaining to this investigation between Bishop and the victim.” Id. at 60. To 18 summarize, the warrant described the form and content of the conversations between Petitioner and John Doe I, specifically identified a limited list of items to be seized from the cell phone and computer, and explicitly linked the form and content of the conversations to the items to be seized. Under these circumstances, the warrant satisfied the Fourth Amendment's particularity requirement.
The elements of child annoyance under California law are: (1) the defendant engaged in conduct directed at a child; (2) a normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant's conduct; (3) the defendant's conduct was motivated by an unnatural or abnormal sexual interest in the child; and (4) the child was under the age of 18 years at the time of the conduct. Cal. Pen. Code 647.6(a); Judicial Council of California Criminal Jury Instruction 1122 (“CALCRIM No. 1122”). It is not necessary that the child actually be irritated or disturbed or that the child actually be touched. CALCRIM No. 1122; People v. Lopez 19 Cal.4th 282, 289 (1998). Petitioner's electronic communications with John Doe 1 would seem to easily provide probable cause to believe that Petitioner's phone and computer would contain evidence of child annoyance.
Furthermore, even if the warrant was overbroad by including the items of child pornography to be seized from the computer, Petitioner has not shown he was prejudiced by counsel's failure to successfully argue the suppression motion. For example, the trial court could have found the items seized from the computer were subject to the inevitable discovery exception to the exclusionary rule. “The inevitable discovery exception to the exclusionary rule is available when the government demonstrates, by a preponderance of the evidence, that it would inevitably have discovered the incriminating evidence through lawful means.” United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000). Here, even if the computer was not searched at all pursuant to the initial warrant, officers would likely still have been able to seize the computer in their search of Petitioner's residence, as well as the other forms of media, including the VHS tapes containing videos of Petitioner's sexual acts with John Doe 3. Lodg. 1 at 263 (officer indicating several VHS tapes, CDs, and DVDs were found in addition to the electronic devices). This tape alone would have likely supported probable cause to search the already-seized computer for the items listed in the challenged warrant.
iv. Conclusion
Therefore, it is not clear that, as Petitioner argues, “[c]ounsel's failure to research and present the more compelling legal issues greatly weakened his challenge to the warrant.” Dkt. 1-1 at 21. Petitioner has not shown that counsel's failure to present futile arguments was deficient performance. Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir. 1996). Given the meritless nature of the omitted arguments, Petitioner cannot demonstrate that it is reasonably probable that the outcome of the trial would have been different had either or both arguments been presented during the suppression motion. Strickland, 455 U.S. at 694; Kimmelman, 477 U.S. at 375.
Accordingly, Petitioner has not demonstrated that the California Court of Appeal's rejection of the claim constituted a decision that was contrary to or an 19 objectively unreasonable application of Strickland under AEDPA. 28 U.S.C. § 2254(d). Petitioner has therefore failed to meet his burden of establishing federal habeas relief on this claim.
B. CLAIM TWO - INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND CONFLICT OF COUNSEL
In Claim Two, Petitioner contends that Mr. O'Connell's representation of Petitioner at trial created an inherent conflict that precluded counsel from representing Petitioner on appeal.
1. California Court of Appeal's August 23, 2018 Opinion
The California Court of Appeal found the following regarding Petitioner's claim:
[Petitioner] has not established a prima facie claim for relief based on his assertion that O'Connell's trial representation created an “inherent conflict” that precluded him from representing [Petitioner] on appeal. As noted, O'Connell's tactics to continue his representation funded by [Petitioner's] mother do suggest professional malfeasance, but [Petitioner's] petition does not allege any incompetent assistance by O'Connell outside of the ineffective assistance claims we reject herein. As such, [Petitioner] has not established a prima facie case for relief. (See Mickens v. Taylor (2002) 535 U.S. 162, 173-174 [a defendant alleging an attorney's conflict of interest had the burden of establishing that the conflict adversely affected the attorney's performance]; People v. Doolin (2009) 45 Cal.4th 390, 421 [adopting federal standard].)Lodg. 13 at 5.
2. Applicable law
Ineffective assistance of appellate counsel claims are reviewed under the Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 (2000); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001). In making the Sixth Amendment assessment in the context of an omitted claim on appeal, the Court must decide whether the claim would have resulted in a reasonable probability of reversal. Smith, 528 U.S. at 285; see also Wildman v. Johnson, 261 F.3d 832, 840-42 (9th Cir. 2001) (appellate 20 counsel's failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal).
A criminal defendant is also guaranteed conflict free counsel under the Sixth Amendment. A conflict of interest is established when an attorney's actions or inactions deprive his client of undivided loyalty. Glasser v. United States, 315 U.S. 60, 75-76 (1942). However, a conflict of interest claim does not require the separate Strickland prejudice analysis. To establish a federal constitutional violation, a defendant must only show that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Here, Petitioner must show that appellate counsel's conflict of interest adversely affected his representation on appeal. Id.
3. Analysis
Petitioner presents a litany of reasons why Mr. O'Connell was inherently conflicted from representing him on appeal. Dkts. 1 at 6-7; 1-1 at 22, 26-30. For starters, Mr. O'Connell represented Petitioner at trial and might be conflicted regarding raising ineffective assistance of counsel against himself in the appellate court. The way that Mr. O'Connell went about obtaining the representation on appeal included: filing a notice of appeal without Petitioner's consent, excluding Petitioner from the decision regarding which lawyer to retain on appeal, and talking Petitioner's mother, Elaine Bishop, into retaining him for a fee of $20,000 without Petitioner's consent. Dkt. 1-1 at 23-25. Specifically, Mr. O'Connell told Ms. Bishop that the Appellate Defender's Office would not be a good option due to lawyer inexperience and lack of knowledge regarding Petitioner's case, and that Mr. O'Connell owned the work that he had previously done. Id. at 24-25. Also, Mr. O'Connell failed to reveal that his appointment might foreclose the option of asserting ineffective assistance of counsel at trial against himself. Id. at 25. 21
Petitioner also asserts that Mr. O'Connell did not disclose that he was facing a state bar action at the time he lobbied to take Petitioner's appeal. He was ultimately disbarred thereafter on August 23, 2018. Id. at 22-23. This misconduct involved four different clients, including taking attorney fees from a client's family member without the client's consent, failing to refund unearned fees, provide a proper accounting to clients, and failing to release client files. Id. at 23.
The California Court of Appeal noted that “O'Connell's tactics to continue his representation funded by Bishop's mother do suggest professional malfeasance . . .” Dkt. 13 at 5. This Court agrees that the behavior, as described by Petitioner, and the similar conduct that Mr. O'Connell engaged in with other clients, strongly suggests malfeasance on his part. Mr. O'Connell's ultimate disbarment certainly supports such a conclusion. However, Petitioner's allegations supporting his ineffective assistance of counsel on appeal and conflict claim do not establish definitively that the conflict of interest described adversely affected Mr. O'Connell's performance on appeal. Sullivan, 446 U.S. at 348. Petitioner has not shown that O'Connell's failure to challenge his own performance at trial on appeal adversely affected him. The only ineffective assistance of trial counsel claim brought on state habeas and in the instant Petition is the one described in Claim One, above. Even though the Mr. O'Connell did not raise the ineffective assistance of counsel claim on appeal, the arguments that he purportedly failed to bring regarding the suppression motion were meritless and would not have changed the trial court's ruling. The California Court of Appeal's decision regarding this claim included a citation to Mickens v. Taylor, 535 U.S. 162, 173-74 (2002), and the application of the correct standard regarding conflict of interest law, i.e., that the petitioner has the burden of establishing that the alleged conflict adversely affected the attorney's performance. Lodg. 13 at 5. The state court's decision was not contrary to or an objectively unreasonable application of the clearly established federal law under Sullivan and Mickens under AEDPA. 28 U.S.C. § 2254(d)(1). Given this Court's conclusion with respect to Claim One, failing to include a meritless ineffective 22 assistance of trial counsel in Petitioner's direct appeal does not establish that any conflict adversely affected counsel's representation on appeal.
Accordingly, Petitioner has failed to meet his burden of establishing federal habeas relief on this claim.
C. CLAIM THREE - VINDICTIVE PROSECUTION
In Claim Three, Petitioner contends the prosecution's decision to add 40 new counts relating to John Doe 3 after he exercised his right to a preliminary hearing amounted to a vindictive prosecution, and the California Court of Appeal's rejection of this claim was contrary to the clearly established Supreme Court precedent of North Carolina v. Pearce and Blackledge v. Perry. Dkts. 1 at 7; 1-1 at 30-34; 15 at 2, 10-11.
1. California Court of Appeal's August 23, 2018 Opinion
The California Court of Appeal provided the following background regarding Petitioner's claim:
At the preliminary hearing, John Doe 3 testified he visited [Petitioner] for three weeks before John Doe 3's 16th birthday. John Doe 3 said [Petitioner] engaged in masturbation, oral copulation, and sodomy with John Doe 3. [Petitioner] also digitally penetrated John Doe 3's anus. [Petitioner]'s counsel objected to questioning John Doe 3 about the number of times each act occurred as beyond the scope of the operative complaint and without proper notice. The court acknowledged multiple instances were not pleaded in the charging document. The prosecutor argued the People have a right to change or add to an information up to a jury trial as testimony provides. The court allowed the questioning.
John Doe 3 testified masturbation occurred up to 12 times during his visit with [Petitioner]. Oral copulation and sodomy occurred eight times each during the visit. [Petitioner] digitally penetrated John Doe 3's anus five times. [Petitioner] also provided John Doe 3 with alcohol four times during the three-week visit. John Doe 3 became severely intoxicated to the point he fell asleep. John Doe 3 identified [Petitioner] as the person in two videos sodomizing him as he was sleeping. John Doe 3 did not know this recording existed previously.23
The court found there was sufficient evidence to hold [Petitioner] to answer the charges as plead at the time of the preliminary examination. The court stated it would not allow an amendment to the charges at the preliminary hearing, but recognized amendments could be made thereafter.
Thereafter, the prosecutor filed an information charging 40 counts related to John Doe 3. [Petitioner] moved to set aside the information pursuant to section 995 on vindictive prosecution grounds. The prosecutor opposed the motion explaining the case was initially under-filed because they could not confirm the identity of the victim in one of the videos in which [Petitioner] is seen sodomizing an unconscious minor until the preliminary hearing, when John Doe 3 arrived from out of state and confirmed his identity in the video. The court denied the motion.Lodg. 5 at 18-19.
The state appellate court then rejected Petitioner's vindictive prosecution claim, explaining:
“Under the due process clause, prosecutors may not ‘tak[e] certain actions against a criminal defendant, such as increasing the charges, in retaliation for the defendant's exercise of constitutional rights. [Citations.] . . . [Citations.] In the pretrial setting, there is no presumption of vindictiveness when the prosecution increases the charges or . . . the potential penalty. [Citations.] Rather, the defendant must “prove objectively that the prosecutor's charging decision was motivated by a desire to punish him for doing something the law plainly allowed him to do.”'” (People v. Grimes (2016) 1 Cal.5th 698, 736.) “While a defendant's exercise of some pretrial procedural right may present an opportunity for vindictiveness, ‘a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.'” (People v. Bracey (1994) 21 Cal.App.4th 1532, 1544.)
Here, although the prosecutor commented [Petitioner] could have “locked” the charges if he waived the preliminary hearing, there is no evidence of vindictiveness in amending the charges prior to trial after an out-of-state victim was able to identify himself being subjected to additional chargeable conduct. “‘A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct.'” (People v. Grimes, supra, 1 Cal.5th at p. 736.).24 Lodg. 5 at 19-20.
2. Applicable law
“In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charges to file or bring before a grand jury, generally rests entirely in [her] discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). However, “while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.” United States v. Goodwin, 457 U.S. 368, 372 n.4 (1982) (quoting Bordenkircher, 434 U.S. at 363). Vindictive prosecution may be established (1) “by producing direct evidence of the prosecutor's punitive motivation . . ., ” United States v. Jenkins, 504 F.3d 694, 699 (9th Cir. 2007), or (2) “by showing that the circumstances establish a ‘reasonable likelihood of vindictiveness,' thus giving rise to a presumption that the Government must in turn rebut.” United States v. Kent, 649 F.3d 906, 912-13 (9th Cir. 2011).
Where there is no direct evidence of actual vindictiveness, a criminal conviction may be reversed only if a presumption of vindictiveness is warranted. See Goodwin, 457 U.S. at 380-81. The United States Supreme Court has held that a presumption of vindictiveness arises when, following a conviction, a defendant's exercise of a procedural right causes or threatens a second trial, and the defendant then is exposed to even greater punishment. See Blackledqe v. Perry, 417 U.S. 21 (1974); North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 799 (1989).
“‘[E]xceptionally clear proof” is required before inferring an abuse of prosecutorial discretion.” Nunes v. Ramirez-Palmer, 485 F.3d 432, 441 (9th Cir. 2007) (quoting McCleskey v. Kemp, 481 U.S. 279, 297 (1987). “Ordinarily, [courts] presume that public officials have properly discharged their official duties.” Banks v. Dretke, 540 U.S. 668, 696 (2004) (citations and internal quotation marks omitted). As 25 such, where a defendant contends that a prosecutor made a charging decision in violation of the Constitution, the defendant's “standard [of proof] is a demanding one.” United States v. Armstrong, 517 U.S. 456, 463 (1996); Nunes, 485 F.3d at 441.
3. Analysis
Petitioner argues that the prosecutor's vindictiveness was evidenced by his statement at the preliminary hearing that if Petitioner “wanted to have the specific charges locked[, ] he should have moved for waiver of [the] preliminary hearing.” Dkt. 1-1 at 33 (quoting Lodg. 1 at 167).
During the preliminary hearing, the prosecutor wanted to ask Doe 3 about a video that did not relate to the current charges, explaining that “[t]his potentially is an additional count with regard to this.” Lodg. 1 at 165. The video depicted a man repeatedly sodomizing a boy, but there were no faces. Id. at 159, 175. Defense counsel accused the prosecutor of “sand bagging” (id. at 166) to which the prosecutor responded:
[T]here is a remedy that was available to [Petitioner] at the time these proceedings were held prior to preliminary hearing. If he wanted to . . . have these specific charges locked, he should have moved for waiver of preliminary hearing. There is no guarantee when you go forward. That's exactly what the purpose of preliminary hearing is. [. . .] Preliminary hearing is meant for the presentation of evidence. [¶] If he does not want to have evidence presented at a preliminary hearing, then what he should have done is made a motion to waive preliminary hearing. That's the only means that you're able to lock into place charges that the defendant faces. Otherwise, the evidence comes out as it comes out during the hearing.Lodg.1 at 167-68.
The state appellate court was not unreasonable in denying the claim. As the state court noted, although the prosecutor commented that, by waiving preliminary hearing, he could have “locked” the initial charges, there is no evidence of vindictiveness in the later amendment of the charges. Lodg. 5 at 19. The amendment occurred because the out-of-state victim was able to identify himself being subjected to additional chargeable conduct. The prosecutor specifically explained that she 26 learned new information during the preliminary hearing and that is why she added charges regarding Doe 3. Lodg. 2 at 131-32. Thus, the additional charges were not retaliation for Petitioner exercising his right to a preliminary hearing; they were a product of the evidence that came forth at that hearing. Petitioner has not produced direct evidence that the charging decision had punitive motivation or shown circumstances that establish a reasonable likelihood of vindictiveness. See Jenkins, 504 F.3d at 699; Kent, 649 F.3d at 912-13; Foss v. Martel, 2012 WL 1576108, at *9 (E.D. Cal. May 3, 2012) (rejecting claim of vindictive prosecution alleging additional and more serious charges were added to punish petitioner for exercising his right to a preliminary hearing because chronology of events suggested the additional charges were brought as the case evolved and further investigation was conducted). Moreover, outside of citing Pearce and Perry for general background law purposes, he has failed to explain how the state court's decision was contrary to or an unreasonable application of either of those Supreme Court decisions under AEDPA. 28 U.S.C. § 2254(d)(1); Dkt. 1-1 at 33-34.
Accordingly, Petitioner has failed to meet his burden of establishing federal habeas relief on this claim.
VII. CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), a Certificate of Appealability may issue “if the applicant has made a substantial showing of the denial of a constitutional right.” The Supreme Court has held that this standard means a showing that “reasonable jurists could debate whether (or, for that matter, 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, 483-84 (2000).
The undersigned finds that reasonable jurists could debate whether trial counsel was ineffective for failing to adequately argue the suppression motion-specifically, 27 whether the warrant was overbroad. (Claim One). Thus, it is recommended that a Certificate of Appealability be GRANTED.
In their Objections, Respondent argues that this Court is precluded from granting a Certificate of Appealability on this issue because there is no authority from the United States Supreme Court for the proposition that police must make a more particularized showing when obtaining a warrant to search digital media, and Petitioner's claim cannot survive Section 2254(d) absent clearly established United States Supreme Court law. Dkt. 18 at 2-3. However, it is clearly established federal law that a warrant must be supported by probable cause, particularly describe the places to be searched, and particularly describe the items to be seized. Groh v. Ramirez, 540 U.S. 551, 557-58 (2004). The undersigned concludes that reasonable jurists could debate whether the warrant here complied with these requirements.
In his Objections, Petitioner argues that the Court should grant relief, or in the alternative, expand the Certificate of Appealability to include other issues. Dkt. 19 at 10. The undersigned declines to expand the Certificate of Appealability, but notes that Petitioner may brief uncertified issues in the Ninth Circuit, should he conclude during the course of preparing the brief that an uncertified issue should be discussed. Fed. R. App. P. 22-1(e).
VIII. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the Court issue an Order:
(1) accepting this Report and Recommendation;
(2) DENYING the Petition;
(3) DISMISSING this action with prejudice; and
(4) GRANTING a Certificate of Appealability as to Claim One.28