Opinion
CV 17-00043-JLS (LAL)
05-26-2023
WARDELL JOE, Petitioner, v. TRENT ALLEN, Warden, [1] Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HONORABLE LOUISE A. LA MOTHE, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Josephine L. Staton, United States District Judge, under die provisions of 28 U.S.C. § 636 and General Order 194 of die United States District Court for die Central District of California.
I. PROCEEDINGS
On January 4, 2017, Warded Joe ("Petitioner") filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. On August 15, 2018, Petitioner filed a First Amended Petition. On October 5, 2021, Petitioner filed a Second Amended Petition ("SAP"). On May 16, 2022, Respondent filed an Answer. On July 26, 2022, Petitioner filed a Reply, and on February 9, 2023, Petitioner filed a Supplemental Reply. Thus,, this matter is ready for decision.
II.
PROCEDURAL HISTORY
On February 27, 2004, a Los Angeles County Superior Court jury convicted Petitioner of first-degree murder and two counts of second-degree robbery. (Volume 7 Clerk's Transcript ("CT") at 1223, 1225, 1227.) The jury also found the murder was committed during the commission of a robbery, a principal in the crimes used a firearm. and the offenses were committed for the benefit of a criminal street gang. (7 CT at 12223-24, 1226, 1228.) On June 7, 2004, the trial court sentenced Petitioner to life in state prison without the possibility of parole, plus a term of 25 years to life. (8 CT at 1421-23.)
Cal. Penal Code §§ 1022.53(c), (d), and (e)(1).
Petitioner appealed his convictions to the California Court of Appeal. (Lodgments AH.) On January 30, 2006, the California Court of Appeal affirmed the judgment but modified the sentence to stay a three-year concurrent term for robbery and to strike the parole revocation fine. (Lodgment I.) The state appellate court denied a petition for rehearing on February 27, 2006. (Lodgments J-K.) Petitioner then filed a petition for review in the California Supreme Court. (Lodgment L.) On May 17, 2006, the California Supreme Court denied review. (Lodgment M.)
In July 2007, Petitioner filed a federal petition for writ of habeas corpus. (Lodgment N (Case No. CV 07-04794-GHK (CW)).) The magistrate judge recommended that the petition be denied and the action be dismissed with prejudice. (Lodgment O.) On June 24, 2015, the District Court accepted die recommendation of the magistrate judge and denied the petition, dismissing it with prejudice. (Lodgments P-Q.) The District Court, however, granted a certificate of appealability as to Petitioner's claim that there was insufficient evidence regarding the robbery-murder special circumstance. (Lodgment R.)
Respondent's motion to dismiss the currant Petition as "second or successive" was denied by the previously assigned magistrate judge in this case. (See Docket No. 19 at 3-4.)
On January 19, 2016, Petitioner filed an appeal in the Ninth Circuit, raising the single issue regarding the sufficiency of evidence of the robbery-murder special circumstance finding. (Lodgment S.) While that appeal was pending, Petitioner raised the same issue in a habeas petition in the California Supreme Court. (Lodgment U.) On June 15, 2016, the California Supreme Court issued an order to show cause in the California Court of Appeal why Petitioner was not entitled to the requested relief. (Lodgment V.) On September 15, 2016, the California Court of Appeal found there was insufficient evidence to support the robbery-murder special circumstance finding and granted the habeas petition, remanding the matter to the trial court for resentencing. (Lodgment W.) On November 23, 2016, the Ninth Circuit granted Petitioner's voluntary dismissal of his federal appeal on the same issue. (Lodgment T.)
Also in 2016, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which was denied because there was "'no sufficient evidence presented warranting relief." (Lodgment Y.) On February 26, 2016, Petitioner filed a habeas corpus petition in the California Court of Appeal, which was denied with citations to In re Waltreus, 62 Cal.2d 218, 225 (1965); In re Clark, 5 Cal.4th 750, 765 (1993); In re Dixon, 41 Cal.2d 756, 759 (1953); and In re Reno, 55 Cal.4th 428, 490 (2012). (Lodgments Z, AA.) On June 29, 2016, the California Supreme Court denied a subsequent habeas petition with a citation to In re Clark, 5 Cal.4th 750, 767-69 (1993). (Lodgments BB, CC.)
On March 29, 2017, the Los Angeles County Superior Court resentenced Petitioner to 50 years to life, plus five years in state prison. (Lodgment DD.) Petitioner appealed to the California Court of Appeal. (Lodgment HH.) On September 20, 2017, die California Court of Appeal modified the terms of his sentence, affirmed the conviction, and remanded the matter for resentencing in light of Senate Bill No. 620 and to hold a Franklin hearing. (Lodgment KK.)
Also in 2017. Petitioner filed a habeas petition in the California Court of Appeal, which was denied on June 29, 2017. (Lodgments EE, FF.) Thereafter, Petitioner filed a habeas petition in the California Supreme Court, which was denied on June 13, 2018. (Lodgments JJ, LL.)
In 2019, upon remand from the California Court of Appeal, the Los Angeles County Superior Court refused to strike Petitioner's firearm enhancement but dismissed Petitioner's murder conviction and resentenced him to 11 years, plus 25 years to life in state prison. (Lodgments FFF, GGG.) Petitioner appealed to the California Court of Appeal. (See Lodgment WW.) On March 18, 2021, the California Court of Appeal modified the abstract of judgment to strike a monetary assessment and reflect the award of custody credits but, otherwise, affirmed the judgment. (Lodgment FFF.) On April 19, 2021, Petitioner filed a petition for review in the California Supreme Court, which was denied. (Lodgment EEE.)
On June 8, 2021, Petitioner filed a habeas petition in the Los Angeles County Superior Court. (See SAP at 73-94.) On August 25, 2021, the Los Angeles Count}' Superior Court denied the petition. (Supplemental Reply at 44.) Thereafter, the California Court of Appeal and California Supreme Court denied subsequent habeas petitions. (Supplemental Reply at 41-43.)
III.
SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL
This Court has independently reviewed the state court record. Based on this review, this Court adopts the factual discussion of the California Court of Appeal's opinion on direct appeal in this case as a fair and accurate summary of the evidence presented at trial: 1. The prosecution's evidence, a. Overview.
Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary ...." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing 28 U.S.C. § 2254(e)(1)). Thus, Ninth Circuit cases have presumed correct the factual summary set forth in an opinion of the state appellate court under 28 U.S.C. §2254(e)(1). See, e.g., Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009) (citations omitted).
On November 3, 1998, appellants [Thomas] Bridges, [Rollin] Denem. [Claudell] Hatter and [Petitioner], assisted by Reginald Howard, Jesse Singleton, Amar Mobley and Tiasha Croshn, committed an armed robbery at the Big Saver Foods Market near Slauson and Compton Avenues in Los Angeles. Six of the eight robbers belonged to the 69 East Coast Crips. Bridges belonged to a related gang, West Covina Neighborhood Crips, and Croslin, Bridges's girlfriend, formerly belonged to a gang in San Diego. In the course of the robbery, Howard shot and killed the security guard, Juan Hernandez. The robbers also took Hernandez's gun. Bridges robbed a cashier at gunpoint, obtaining money and food stamps which were divided at Hatter's home after the robbery. Leonard Jackson, a gang associate of the robbers, arrived at Hatter" s home just as the robbers returned from die crime scene. Jackson shared in the proceeds of the robbery.
Appellants were charged with first degree murder and robbery of Hernandez in counts one and two, and robbery of the cashier in count three.
Croslin and Jackson testified against appellants at trial. Before detailing their testimony, we summarize the testimony of the eyewitnesses and the investigation of the offense.
b. Eyewitness testimony.
Gilbert Davis lived down the street from Best Saver Foods Market. On November 3, 1998, Davis saw a Buick Regal, an Oldsmobile Cutlass and a Pontiac Trans Arn in front of his home and became suspicious. From the porch of his home, Davis saw four males enter the market. Davis and some of his friends walked toward the market. The driver of the Cutlass, who was alone in the car, looked straight ahead. Davis returned home and called 911. Davis then saw someone "hop in[to] the Cutlass, then they took off.,:
Market employee Carlos Guzman saw three males looking around the store. One of the males wore a hat and had long curly hair. He had a handgun and ordered everyone to get down, then pointed the gun at the ceiling and fired one shot. Guzman heard another shot about thirty seconds later.
Marissa Avon, a cashier at the market, saw the security guard struggling "with two males. After Avon heard a shot, one of the males ran from the market. Ayon ran to the manager's office but the manager locked the door before she could enter. An armed male took Ayon at gunpoint from the door of the office to the cash registers and forced her to empty the contents of two registers into a plastic bag.
c. Investigation.
The crime went unsolved for two years until Jackson, who was serving a 17-year federal drug term, wrote a letter to the U.S. Attorney in December of 2000 offering to assist in the investigation of this case in the hope of obtaining a reduction of his term. In March of 2001, Los Angeles Police Detective Joseph Martinez interviewed Jackson at a federal correctional facility in Victorville. Jackson identified photographs of six of me participants in the robbery and offered the name of the seventh, Denem.
In April of 2001, Detective Martinez showed photographic lineups to me market employees. Jose Molina identified Singleton and Bridges; Jose Lopez identified Howard; Haydee Penate and Carlos Guzman identified Singleton. Ayon, the cashier, failed to identify anyone in the photographic lineups. However, toward the close of Avon's trial testimony, she indicated that, after looking at Bridges, he appeared similar to the individual who directed her at gunpoint to empty the cash registers.
On May 30, 2001, Detective Martinez re-interviewed Davis, the witness who lived down the street from the market, at Men's Central Jail. Davis identified Hatter and Croslin in photographic lineups and at trial as the individuals he had seen in the Regal outside the market and identified [Petitioner] as the driver of the Cutlass.
In May of 2001. Martinez interviewed Croslin who was in federal custody in Connecticut in connection with a 1999 bank robbery conviction for which Croslin had been sentenced to a term of five years and three months. Croslin admitted her role in the Big Saver Food case and identified the participants. Croslin initially faced a term of life without the possibility of parole for her involvement in the robbery. However, Croslin pleaded no contest to one count of voluntary manslaughter and two counts of robbery in exchange for a prison term of 12 years and her truthful testimony in this case.
d. Croslin's testimony.
At trial, Croslin testified that in November of 1998, she lived with Bridges on 68th Street in Los Angeles. Jackson lived in the house in front of diem. Through Bridges, Croslin met Hatter and Denem, both of whom were members of the 69th Street Crips. Hatter's nickname was Doughboy and Denem's nickname was [ ] Baby Doughboy, indicating the two had a close relationship.
On the morning of November 3, 1998, Bridges and Croslin drove separately from their home to Hatter's home on 84th Street where all four appellants, plus Singleton, Howard and Mobley, began to discuss a robbery. During the trial, Croslin specifically identified appellants Hatter, Bridges, Denem and [Petitioner]. Croslin also identified Singleton. Howard and Mobley.. who were brought into the courtroom for that purpose. Hatter said he needed money to get a car out of impound. When the conversation ended. Bridges told Croslin to get into a Regal with Hatter. Hatter drove me Regal to the Best Saver Foods Market. Croslin understood they were going to commit a robbery. After Hatter and Croslin entered the market. Hatter said. '"This is where we're going to hit." Croslin was surprised because there was no bank in the market. Hatter and Croslin made a purchase, then left the store. They drove past a Cutlass driven by [Petitioner] and a Trans-Am driven by Mobley parked on 58th Street. Shortly thereafter, Hatter and Croslin drove past the market and saw individuals running from it.
After the robbery, the entire crime team returned to Hatter's residence. Howard was pacing and repeatedly said, in a scared manner,. '"I killed him, I killed him.” Bridges and Halter loudly urged Howard to calm down. They divided the money and food stamps obtained in the robbery and gave some food stamps to Jackson, who was wanted by his parole officer. After the property had been divided, everyone left.
Croslin did not learn of the death of the security guard until later when she saw the news on television. When Bridges returned home that evening, Croslin confronted him. Bridges told her, "Howard was tussling with the security guard and shot him." Bridges indicated his role was to get the money from the safe in the office with Denem or Singleton, and Howard's job was to distract the security guard. Bridges said Denem wore a disguise of a hat and a curly wig and that Hatter's purpose in driving along 58th Street was to indicate to the others it was okay to rob the market.
Croslin was arrested two days after the robbery and remained in custody on a federal bank robbery charge until the time of her testimony in this case.
e. Jackson's testimony.
Jackson was serving 17 years in federal custody for a conviction of distribution of cocaine he suffered in October of 2000. Jackson also had a prior conviction of robbery in 1991. In 1998, Jackson associated with Hatter, Denem, [Petitioner] and Bridges. They all were members of the 69 East Coast Crips except Bridges who was a member of the West Covina Neighborhood Crips. They all frequented Hatter's home on 84th [S]treet or Jackson's home on 68th Street. Jackson sold die Cutlass involved in this case to [Petitioner].
On November 3, 1998, Jackson was at Hatter's home when Hatter, Bridges, Denem, [Petitioner], Howard, Singleton, Mobley and Croslin quickly exited cars and entered the house. Denem had a hat and a wig. Once inside, they argued. Hatter asked where the money was and Bridges said they only got food stamps. Bridges said they would have gotten more if Howard was not "so trigger happy." Howard was "jumping around real jittery like, real nervous/" They divided food stamps among themselves and gave Jackson some. When they saw a news report [ ] of the robbery, Bridges and Denem said police sketches of the suspects did not look like them. While they watched the news, Denem laughed because the sketches depicted him as having long hair. Hatter told Singleton to get rid of the Trans Am.
Two days after the robbery, Jackson was arrested for violating parole. Jackson has been in federal custody since March of 2000. He contacted the United States Attorney's office about cooperating in this case in December of 2000 and was interviewed by Detective Martinez in March of 2001. Approximately five months after that interview, Bridges and Jackson were incarcerated together in Victorville. Bridges told Jackson that detectives had spoken to him about the Big Saver Foods robbery. Bridges then began to relate details of the crime to Jackson. Bridges said Hatter and Croslin entered the store first to "check the move out[.]" Bridges said he and Denem intended to force the manager to open the safe at the back of the store but the manager locked himself in a room. Bridges heard a shot, then ran with Denem to the front of the market and saw that Howard and Singleton already had fled. Bridges then took food stamps from the cash register. Bridges said Howard had a .45 caliber handgun.
f. Other evidence.
The deputy district attorney previously assigned to this case testified she told Jackson that someone from her office might write a letter regarding his cooperation in this case but promised nothing.
Los Angeles Police Detective Gerald Ballesteros, a gang expert, testified Jackson is a member of the 76 East Coast Crips.
2. Defense evidence.
Steven Thornton,, a defense investigator, interviewed Croslin in county jail on December 24, 2002. Croslin said Detective Martinez forced her to make a statement against the defendants. Croslin claimed Martinez threatened she would spend the rest of her life in prison if she did not cooperate. Croslin later realized the police did not have a viable case against her and she should not have made a statement. On January 15, 2003, Croslin told Thornton she wanted to reject the deal she had struck and go to trial with appellants.
Los Angeles Police Detective Gregory McKnight interviewed Jackson "with Detective Martinez at Victorville in March of 2001. Jackson identified six male suspects and one female. Jackson did not identify Denem. (Lodgment I at 2-7 (footnote omitted).)
IV. PETITIONER'S CLAIMS
Petitioner raises the following claims for habeas corpus relief
(1) The trial court coerced the jury during deliberations,, forcing Juror No. 3 to "align her vote" with other jurors;
(2) There was insufficient evidence to convict Petitioner of robbery as an aider and abettor;
(3) The photographic lineup used to identify Petitioner was suggestive and proves his "actual innocence";
(4) Petitioner is actually innocent as demonstrated by four affidavits:
(5) Appellate counsel was ineffective for failing to submit affidavits proving Petitioner's innocence;
(6) The prosecutor committed misconduct by vouching for a witness;
(7) The superior court judge violated due process by holding a hearing on the gun enhancement before gathering all of Petitioner's mitigating factors in a Franklin hearing;
(8) The superior court judge violated due process by conducting the gun enhancement hearing pursuant to Senate Bill 620 after his resentencing hearing; and
(9) The trial court erred by imposing a $10,000 restitution fine without holding an indigency hearing.(SAP at 5-10.)
For clarity, when citing to Petitioner's flings, the Court cites to the page numbers applied by the electronic docketing system.
V. STANDARD OF REVIEW
The standard of review that applies to Petitioner's claims is stated in 28 U.S.C. § 2254 : as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA"):
(d) 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 an unreasonable application of. clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). If these standards are difficult to meet, it is because they were meant to be. As the United States Supreme Court stated in Harrington v. Richter. while the AEDPA "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings [,] habeas relief may be granted only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts" with United States Supreme Court precedent. Further, a state court factual determination must be presumed correct unless rebutted by clear and convincing evidence.
562 U.S. 86, 102 : 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
B. Sources of "Clearly Established Federal Law"
According to Williams v. Taylor. the law that controls federal habeas review of state court decisions under the AEDPA consists of holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state-court decision." To determine what, if any, "clearly established" United States Supreme Court law exists, a federal habeas court also may examine decisions other than those of the United States Supreme Court. Ninth Circuit cases '"may be persuasive."" A state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law, if no Supreme Court decision has provided a clear holding relating to the legal issue the habeas petitioner raised in state court.
529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Deck v. Jenkins, 814 F.3d 954, 978 n.3 (9th Cir. 2016) (citing Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 1999)); LaJoie v. Thompson, 217 F.3d 663, 669 n.6 (9th Cir. 2000).
Duhaime, 200 F.3d at 600.
Stenson v. Lambert, 504 F.3d 373, 881 (9th Cir. 2007) ("Where the Supreme Court has not addressed an issue in its holding, a state court adjudication of the issue not addressed by the Supreme Court cannot be contrary to, or an unreasonable application of, clearly established federal law."); see also Carey v. Musladin, 549 U.S. 70, 77, 127, S.Ct. 649, 166 L.Ed.2d 482 (2006) (in the absence of a Supreme Court holding regarding the prejudicial effect of spectators' courtroom conduct, the state court's decision could not have been contrary to or an unreasonable application of clearly established federal law).
Although a particular state court decision may be both "contrary to': and an ''unreasonable application of controlling Supreme Court law. the two phrases have distinct meanings under Williams
A state court decision is "contrary to" clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable” facts. If a state court decision denying a claim is "contrary to" controlling Supreme Court precedent, the reviewing federal habeas court is "unconstrained by § 2254(d)(1)." However, the state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them'
Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (citing Williams, 529 U.S. at 405-06); Anderson v. Gipson, 902 F.3d 1126, 1132 (9th Cir. 2018).
Williams, 529 U.S. at 406.
Early, 537 U.S. at 8.
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.""Accordingly, this Court may reject a state court decision that correctly identified the applicable federal rule but unreasonably applied the rule to the facts of a particular case . However, to obtain federal habeas relief for such an "unreasonable application," a petitioner must show that the state court's application of Supreme Court law was "objectively unreasonable." An "unreasonable application" is different from merely an incorrect one.
Id., at 11 (citing 28 U.S.C. § 2254(d)).
See Williams, 529 U.S. at 406-10, 413.
Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) ("Under § 2254(d)(1)'s unreasonable application clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable." (internal quotation marks and citations omitted)); Woodford v. Visciotti, 537 U.S. 19, 27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002).
Williams, 529 U.S. at 409-10.
Where, as here, die California Supreme Court denied Claims One, Three, Four, and Five on procedural grounds only, AEDPA deference does not apply. (See Lodgments BB-CC.) “Because die [California] courts did not reach the merits of [these] claim[s], federal habeas review is not subject to the deferential standard that applies under AEDPA to any claim that was adjudicated on the merits in State court proceedings. Instead, the claim is reviewed de novo."
Petitioner raised these claims in the California Supreme Court in a habeas petition. (Lodgment BB.) The California Supreme Court denied the claims citing In re Clark, 5 Cal.4th 750, 767-69 (1395), which discusses procedural bars applicable to untimely, repetitious, and piecemeal claims. (Lodgment CC.) Because the state court denied these claims on procedural grounds, Respondent argues Claims One, Three, Four, and Five are procedurally barred. (Answer at 6-8.) This Court denies the claims without considering the procedural default issue, in part, because the merits of the claims plainly fail and are less complicated than determining the applicability of the procedural bar in light of Petitioner's claimed defenses. See Lambrix v. Singletary, 520 U.S. 518, 523-25, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (judicial economy may counsel considering merits of claim first before addressing procedural bar issue); Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) ("While we ordinarily resolve the issue of procedural bar prior to any consideration of the merits on habeas review, we are not required to do so when a petition clearly fails on the merits."); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("Procedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same.").
Cone v. Bell, 556 U.S. 449, 129 S.Ct 1769, 1734, 173 L.Ed.2d 701 (2009) (internal quotation marts omitted); Chaker v. Crogan, 428 F.3d 1215, 1220-21 (9th Cir. 2005) (noting that for a procedurally defaulted claim where there is no state court decision on the merits, there is no decision to review under AEDPA and the standard of review is de novo); Taylor v. Madden, No. EDCV 21-01511-DSF (RAO), 2022 WL 1272396, at *3 (CD. Cal. Mar. 18, 2022) (''Because the last reasoned decision of the state court dismissed [petitioners, claims on procedural grounds, to the extent the Court reaches the merits of [p]etitioner's claims, this Court must review the claims de novo.").
As for Ground Two. which Respondent argues is unexhausted, the Court also reviews the claim de novo. (See Answer at 1. 14.)
Pursuant to 28 U.S.C. § 2254(b)(2), "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." Thus, "a federal court may deny an unexhausted petition on the merits .. . when it is perfectly clear that the applicant does not raise even a colorable federal claim." Cassett v. Stewart, 4-06 F.3d 614, 624 (9th Cir. 2005). Because m such instances there is no decision on the merits by the high state court, review under § 2254(b)(2) is de novo. Lewis v. Mayle, 391 F.3d 939, 996 (9th Cir. 2004) (”De novo review, rather than AEDPA's deferential standard, is applicable to a claim that the state court did not reach on the merits."); see also Allen v. Mullin, 368 F.3d 1220, 1235 (10th Cir. 2004) (reviewing de novo an unexhausted claim and citing § 2254(b)(2)).
Finally, as explained below, Petitioner's remaining claims are not cognizable in the federal habeas petition.
VI. DISCUSSION
A. Jury Coercion
In Ground One, Petitioner claims that the trial court improperly coerced one of the jurors during deliberations. (SAP at 5.) He contends that Juror No. 3 wanted to "weigh the evidence separately [as] to each person,: but the judge ma[de] it clear he wanted a verdict' and to "align her vote with die other jurors." (SAP at 5.) Thus. Petitioner argues that the court's "instruction or remarks"' coerced the juror into finding him guilty and "displace[d] the independent judgment of the jury." (Reply at 5.)
I. Background
During deliberations, the following note, signed by 11 of the 12 jurors, was submitted to the trial court:
We feel we need your intervention. After a full day and this morning there is one juror who appears to have made a decision already. The jury as a whole has not been able to even examine evidence because this one person will not allow the whole group to discuss matters.(6 CT at 1165C.)
At the same time. Juror No. 3-the one juror who did not sign the first note to the trial court-submitted her own note to the judge:
I, Juror #3, am feeling as if the group has obvious bias based on my perception of some of the comments made by other jurors, such as "Don't let it stick'" along with other comments, such as "We're gonna have a problem when we start voting, so let's put it on the table right now!" "We have a life we are taking too long." "Mr. H[] needs to go back to school."
Your Honor, it was my belief that I should believe the defendants innocent until it is proven beyond a reasonable doubt. I am fully willing to do so (participate). I have never served in a criminal trial. I take this duty extremely seriously. While Tin sorry if the others feel as if I am holding things up -I am only attempting to share my view, which is often different than theirs. I do not feel as if our deliberations are consistent [with] instructions per (page 15 (8.80.1) top of page 15).(6 CT at 1165A-1165B.)
The trial court discussed the juror concerns with counsel and, noting it was early in the jury's deliberations, elected to "try to get them back on track with general comments," "rather than trying to put pressure on any one person." (Volume 18 Reporter's Transcript ("RT") at 2941.) The court then instructed the jury, as follows:
I want to . . . give you further instructions about the deliberation process.
Everyone should have the opportunity to examine the evidence as they feel is necessary. No one should dominate the discussions. This is a group effort trying to seek the truth by impartially evaluating the evidence.
I want you to resume deliberations in a cooperative effort to arrive at a decision, and if anyone cannot comply with these instructions that I've just given to you, I'd like to know about that and why they can't do that.
Again, it's everyone having the opportunity to examine the evidence as they feel is necessary, and no one should dominate these discussions preventing others from expressing their opinions or from, evaluating the evidence. So let me know if anyone can't do that, and if there are any further problems, let us [know] about that as well.(18 RT at 2942-13.)
Later, after the deliberations resumed, the jury foreperson sent a note to the trial court indicating that they were "deadlocked on one allegation of one count'' and asked whether unanimity was required. (7 CT at 1216, 1242.) The trial court addressed the jurors in the courtroom, asking the foreperson whether further deliberations on the hung count might result in a verdict. (7 CT at 1242.) After the foreperson answered no, the court declared a mistrial as to that count and accepted the verdicts on the remaining counts on which the jury was unanimous. (7 CT at 1242.) During the reading of the verdicts, the jury was polled, and Juror No. 3 answered "Yes" to the question of whether the verdicts and findings were hers. (18 RT at 2967.)
Petitioner and his co-defendants filed a motion for a new trial, alleging, among other things, that Juror No. 3 was coerced into voting for guilt based on duress and pressure from other jurors . Juror No. 3 submitted a declaration in support of the motion, alleging numerous instances of misconduct by jurors. (7 CT at 1323-26.) The trial court held a hearing on the alleged misconduct and Juror No. 3 testified as a witness. (18 RT at 3048-3108.) After hearing Juror No. 3 "s testimony, the trial court denied the new trial motion, finding that there was no "misconduct on any [juror"s] part in the deliberation process." (18 RT at 3143.)
Petitioner's claim herein does not assert that Juror No. 3 was coerced by the other jurors but, rather, by the trial court's instructions to the jury to continue deliberating.
2. Legal Standard
The Supreme Court has stated that a criminal defendant "being tried by a jury is entitled to the "uncoerced verdict of that body." Trial judges, however, are permitted "to give extra instructions to deadlocked juries in the hope of encouraging, but not coercing,, a jury verdict."Thus, the use of a supplemental jury instruction by the trial court "has long been sanctioned,"and a supplemental jury charge to encourage a deadlocked jury to try to reach a verdict is not coercive per se. The Supreme Court has stated that in reviewing a claim that a jury was improperly coerced by the trial court's supplemental jury instruction to continue to deliberate requires that the supplemental charge given by the trial court be examined “in its contest and under all the circumstances."
Lowenfield v. Phelps, 434 U.S. 231, 241, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988).
Parker v. Small, 665 F.3d 1143, 1144 (9th Cir. 2011) (per curiam).
Lowenfield, 454 U.S. at 237 (citing Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)).
Parker, 665 F.3d at 1147.
Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965) (per curiam).
The decision whether to declare a mistrial for a potentially deadlocked jury is reserved to the "broad discretion." of the trial court. The Supreme Court has stated that there are "compelling" reasons why the trial court has broad discretion in these situations, most notably because "the trial court is in the best position to assess all the factors which must be considered in making a necessarily discretionary determination whether the jury will be able to reach a just verdict if it continues to deliberate."'
Renico v. Lett, 559 U.S. 766, 773-76, 130 S.Ct 1855, 176 L.Ed.2d 678 (2010).
Id., at 774 (internal quotation marks omitted).
Nevertheless, deference to the trial court's exercise of discretion in handling juror deliberations is not "absolute." If the trial court "fails to discharge a jury which is unable to reach a verdict after protracted and exhausting deliberations, there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors."' Only the exercise of "sound discretion" by the trial court will be upheld.
Id.,, at 775.
Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct 824, 54 L.Ed.2d 717 (1978).
Renico, 559 U.S. at 775.
3. Analysis
Here, Petitioner's claim that the trial court coerced Juror No. 3 into "align[ing] her vote with the other jurors" to reach a unanimous verdict is simply not borne out by the record. After a day-and-a-half of deliberations, die jurors sought guidance from the trial court on how to handle disagreements within die jury discussions. The jury foreperson's note indicated that one juror- presumably Juror No. 3-had "made a decision already" and was not allowing the group to 'examine evidence"' and "discuss matters." (6 CT at 1165C). Juror No. 3 indicated that she felt die rest of the jurors were "bias[ed]" against her because her viewpoints were "different than theirs," but she was "willing" to keep deliberating. (6 CT at 1165A-1165B.) Because neither note indicated that die jurors were deadlocked or unwilling to continue deliberations, the trial court was well within its "broad discretion" to order further deliberations rather than declaring a mistrial.
See United States v. See, 505 F.2d 845, 854 (9th Cir. 1974) (holding, while affirming the grant of a mistrial, that “hopelessly deadlocked." jury is proper grounds for mistrial).
Moreover, in addressing the jurors to "resume deliberations in a cooperative manner," die trial court never singled out Juror No. 3 or urged her to align her vote with the others. Rather. die trial court instructed die jury that it was a "group effort" to examine all die evidence and that no juror should be "prevented]from expressing their opinions or evaluating the evidence." (18 RT at 2943.) Nothing in the instructions suggested that Juror No. 3 should change her opinions or that reaching a unanimous verdict was necessary. Under these circumstances, the trial court's instruction was not coercive and did not infringe on Petitioner's due process right to an impartial jury.
Jiminez v. Myers, 40 F.3d 976, 979 (9th Cir. 1993) ("Whether the comments and conduct of the state trial judge infringed defendant's due process right to an impartial jury and fair trial turns upon whether 'the trial judge's inquiry would he likely to coerce certain jurors into relinquishing their views in favor of reaching a unanimous decision'") (quoting Locks v. Sumner, 703 F.2d403, 406 (9th Cir. 1983)).
Finally, die Court notes than when die jury later indicated that they were, in fact, deadlocked on one of die counts and that further deliberations were not likely to be fruitful, the trial court declared a mistrial as to that count. (7 CT at 1242.) Upon polling the jury on die unanimous verdicts. Juror No. 3 affirmed mat she joined in die decision and did not indicate any coercion was involved. (18 RT at 2967.) Thus, under a totality of the circumstances, the record is clear that the trial court did not impermissibly coerce the jury into finding Petitioner guilty. Accordingly, Petitioner is not entitled to habeas relief on Ground One.
B. Insufficient Evidence
In Ground Two, Petitioner contends that there was insufficient evidence to convict Petitioner of robbery as an aider and abettor (SAP at 5.) He argues that there was no evidence that he was '"involved in the planning of me crime,'" mat he did not have a weapon, that he "had no knowledge there would be a robbery'” and that he did not act ':in concert with those involved.” (SAP at 5-6.)
1. Legal Standard
The Fourteenth Amendment's Due Process Clause guarantees that a criminal defendant may be convicted only "upon proof beyond a reasonable doubt of every fact necessary' to constitute the crime with which he is charged. The Supreme Court announced die federal standard for determining die sufficiency of the evidence to support a conviction in Jackson v. Virginia. Under Jackson, "[a] petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.The Supreme Court has held that "the relevant question is whether, after viewing die evidence in die light most favorable to the prosecution, any rational trier of fact could have found die essential elements of the crime beyond a reasonable doubt." “Put another way, the dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt."
In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Juan H. v. Allen, 403 F.3d 1262, 1274 (9th Cir. 2005).
Jackson, 443 U.S. at 319: see also Wright v. West, 505 U.S. 277, 284, 112 S.Ct 2482, 120 L.Ed.2d 225 (1992).
Chein v. Shumsky, 373 F.3d 978, 982-83 (9th Cir. 2004) (en banc) (quoting Jackson, 443 U.S. at 318).
When die factual record supports conflicting inferences, die federal court must presume, even if it does not affirmatively appear on the record, mat the trier of fact resolved any such conflicts in favor of the prosecution, and the court must defer to that resolution. "Jackson cautions reviewing courts to consider the evidence 'in the light most favorable to the prosecution. Additionally, "[c]ircumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction. Also., the federal court must refer to the substantive elements of the criminal offense as defined by state law and look to state law to determine what evidence is necessary to convict on the crime charged.
Jackson, 443 U.S. at 326.
Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 319).
Walters v. Maasa, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted).
Jackson, 443 U.S. at 324 n.16; Juan H., 408 F.3d at 1275.
2. Analysis
Here, Petitioner does not dispute that a robbery occurred at the Best Saver store but argues that there was insufficient evidence that he aided and abetted the robbery. In California, a defendant may be found guilty of aiding and abetting a crime if the following elements are established beyond a reasonable doubt: (1) the defendant acted with knowledge of the unlawful purpose of the perpetrator; (2) the defendant acted with the intent or purpose of committing, encouraging, or facilitating the commission of the offense; and (3) the defendant, by act or advice, aided, promoted, encouraged or instigated, the commission of the crime. An aider and abettor is liable for not only the intended, or target, offense committed by a direct perpetrator "but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. "
See People v. Prettyman, 14 Cal.4th 248, 259 (1996) (citing People v. Beeman, 35 Cal.3d 547, 561 (1984)).
People v. Mendoza, 18 Cal.4th 1114, 1123 (1998) (citing Prettyman, 14 Cal.4th at 260-62).
At trial, Tiasha Croslin, one of the accomplices in the robbery, identified Petitioner as participating in the robbery. (S R.T at 1340.) She testified that Petitioner was present at the meeting at Claudell Hatter" s house where the robbery, was planned and left the house m his Oldsmobile Cutlass along with the others to rob the store. (8 RT at 1342-49.) Gilbert Davis testified that he saw Petitioner in a "lime green [Oldsmobile] Cutlass," parked near the Best Saver store at the time of the robbery. (10 RT at 1646-50, 1662-63, 1667-69.) Davis saw "four guys" come running out of the store after the robbery and at least one of them got in Petitioner's car and Petitioner "took off,"' driving "pretty fast."' (10 RT at 1674-76.) Croslin testified that Petitioner arrived back at Hatter: s house after the robbery -murder, where the stolen money and food stamps was divided up between the participants. (10 RT at 1369-77.)
Based on this evidence, a rational jury could have inferred that Petitioner knew about the plan to rob die store because he was there when it was planned and that he acted with the intent to further the crime by being a getaway driver. Waiting in die car outside die store and then speeding away with one of the robbers supported a finding that petitioner aided and abetted the commission of the robbery. Petitioner's argument to the contrary that he had no knowledge or involvement in the planning of the crime and did not act m concert with the other robbers is nothing more than a request for this Court to reweigh the evidence and reach a contrary result, which this Court cannot do. Accordingly, Petitioner" s claim in Ground Two must be denied.
See People v. Hammond, 181 Cal.App.3d 463, 468 (1986) (finding that defendant's "act of driving the getaway car was ample evidence of his intent to assist or facilitate [the co-defendant] in perpetrating the robbery,:); see also Daigle v. Miller, No. CV 12-4270-JSW (PR), 2013 WL 5781598, at *5-6 (N.D. Cal. Oct. 25, 2013) (finding the evidence sufficient to support a robbery conviction where petitioner waited in her car during the robbery, then fled the scene with the robbers, and attempted to evade pursuit).
See Cavazos v. Smith, 565 U.S. 1, 8n.*, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011) (holding on federal habeas review of sufficiency of the evidence claim "reweighing of facts [ ] is precluded by Jackson"): United States v. Nevils, 59 E F.3d 1158, 1170 (9th Cir. 2010) (en banc) (stating that in assessing sufficiency of the evidence claim, it is not the court's function to reweigh the evidence).
C. Suggestive Identification
In Ground Three, Petitioner claims that die identification procedures used to identify' him were unduly suggestive. (SAP at 6.) He argues that Gilbert Davis misidentified him in a photographic lineup because Petitioner" s photograph was the only one without a background color. (SAP at 6, 46.)
Petitioner also contends that he has an affidavit from Gilbert Davis that proves his "actual innocence." (SAP at 6.) That claim is addressed in Ground Four.
1. Background
Gilbert Davis resided near the Best Saver store that was robbed on November 3, 1998, (10 RT at 1643-45.) At trial, Davis testified that on the day of the robbery he saw three cars, including a "lime green [Oldsmobile] Cutlass," parked in front of his house. (10 RT at 1646-50.) Davis identified Petitioner as the driver of the Oldsmobile. (10 RT at 1662-63, 1669.) He also testified that, in May 2001, he identified Petitioner's picture in six-pack photographic lineup as the "driver of the green Cutlass'" on the day of the robbery. (10 RT at 1663-65.)
Davis testified that he had a clear view of the each of the cars and saw Petitioner "looking straight at the steering wheel." (10 RT at 1667-68.) Davis testified "something didn't look right" and felt "something was about to happen.” so he called 911. (10 RT at 1671.) Davis saw "four guys"' in the Best Saver store come running out and at least one of them "hop[ped] in the Cutlass, then they took off." (10 RT at 1674.) Davis testified that, when the Cutlass drove past him, two guys were "ducking down" and Petitioner was driving "pretty fast." (10 RT at 1675-76.) Davis testified that he was a "hundred percent" certain that Petitioner was the driver of the green Oldsmobile Cutlass on the day of the robbery. (10 RT at 1721.)
Detective Martinez testified that he interviewed Davis in May 2001. (14 RT at 2259.) Detective Martinez showed Davis three separate photographic six-packs. (14 RT at 2262.) From the photographs, Petitioner identified Tiasha Croslin. Claudell Hatter, and Petitioner, as persons he saw outside the Best Saver store on the day of the robbery. (14 RT at 2262-63.)
2. Legal Standard
"[C]onvictions based on eyewitness identification at trial following a pretrial identification fj will be set aside on [the basis of the pretrial identification] only if the [pretrial] identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." "it ls me likelihood of misidentification which violates a defendant's right to due process . . . ." Thus, to successfully challenge identification testimony, a defendant must show the pre-trial identification procedures were so unnecessarily suggestive as to give rise to a substantial likelihood of misidentification.
Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct 967, 19 L.Ed.2d 1247 (1968) (considering a scenario where the pretrial identification was by photograph during the police investigation).
Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
Perry v. New Hampshire, 565 U.S. 228, 239, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012); Bigger, 409 U.S. at 198.
Even if a pretrial procedure is impermissibly suggestive, automatic exclusion of identification testimony is not required. Rather, die court must determine "'whether under the "totality of the circumstances die identification was reliable even though the confrontation procedure was suggestive.” Five factors must be considered in determining whether in-court identification testimony is sufficiently reliable: (1) the witness's opportunity to view die criminal at die time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of die criminal; (4) the level of certainty demonstrated by the witness at the pretrial identification: and (5) the length of time between die crime and die pretrial identification.
Perry, 565 U.S. at 239; Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct 2243, 53 L.Ed.2d 140 (1977); Biggers, 409 U.S. at 199.
Bigger 409 U.S. at 199, Perry, 565 U.S. at 239; Brathwaite, 432 U.S. at 114.
Perry, 565 U.S. at 239 n.5; Brathwaite, 432 U.S. at 114; Biggers, 409 U.S. at 199.
3. Analysis
Here, Davis positively identified Petitioner as die driver of die green Oldsmobile Cutlass from a six-pack photographic lineup. Petitioner asserts that the six-pack identification procedure was unduly suggestive because his photograph was die only one of die six that lacked a background color or had a completely white background. (See SAP at 46.) Minor differences in die background color of a suspect's photograph do not, without more, render die photographic lineup impermissibly suggestive. Petitioner does not allege any other differences or concerns with respect to die photographs. Accordingly, Petitioner fails to establish that die lineup procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.
See Mitchell v. Goldsmith, 878 F.2d 319, 323 (9th Cir. 1939) ((holding that a photographic array was not impermissibly suggestive where the defendant was the only person depicted against a blue background): see also United States v. Burdeau, 168 F.3d 352, 357 (9th. Cir. 1999) (finding that differences in subjects1 facial expressions or in hue or placement of photographs were "insubstantial differences" that "do not in themselves create an impermissible suggestion that the defendant is the offender").
See Simmons, 390 U.S. at 384.
Moreover, even assuming that the photographic identification procedure used in this case could be considered unduly suggestive, it is reasonable to conclude that Davis's in-court identification of Petitioner was reliable under the totality of the circumstances. Davis testified that he had the opportunity to observe Petitioner in the parked car from the sidewalk across die street and had a clear view of his face. (10 RT at 1668-70.) Davis was particularly observant of Petitioner and die other individuals in the parked cars because "something didn't look right. . . like something was about to happen," prompting his call to 911. (10 RT at 1671.) Finally, though several years passed between die robbery and Davis's identification of Petitioner in die photographic lineup, Davis expressed certainty of his identification, stating that he was a "hundred percent" certain that Petitioner was die driver of die green Oldsmobile Cutlass on the day of die robbery. (10 RT at 1721.) Under these circumstances. Petitioner cannot establish that Davis's in-court identification at trial was the product of an impermissibly suggestive procedure so as to render the identification inadmissible or that its admission was otherwise improper. Finally, in die absence of any police wrongdoing in connection with Davis's identification, Davis's credibility was a matter for counsel to argue and die jury to considerAccordingly, habeas relief is not warranted on Claim. Three.
See e.g., United States v. Matta-Ballesteros, 71 F.3d 754, 769 (9th Cir. 1995) (finding identification of defendant in a photographic lineup made five years after seeing the suspect was "not impermissibly suggestive" and that in-court identification made six years after seeing the suspect was reliable under a totality of the circumstances); Avery v. Madden, No. CV 16-05818-PA (DEM), 2018 WL 1583383, at *11 (CD. Cal. Feb. 1, 2018) ("While nearly three years have passed between the robbery and [the witness's] identification of [p]etitioner at trial, the totality of the circumstances support a finding that [the witness's] in-court identification of [petitioner was reliable.").
See Perry, 565 U.S. at 232 (holding "[when] the indicia of reliability are strong enough to outweigh the corrupting effect of the police arranged suggestive circumstances, the identification evidence ordinarily will be admitted and the jury will ultimately determine its worth").
D. Actual Innocence
In Ground Four, Petitioner claims that he is actually innocent of the robbery of the Best Saver store based on four ''affidavits" from Reginald Howard, Jesse Singleton, Ima Shoot, and Gilbert Davis. (SAP at 6.)
In fact, none of the documents submitted by Petitioner appears to qualify as a legal affidavit because the statements were not sworn or otherwise affirmed under penalty of perjury. See 23 U.S.C. § 1746.
1. Background
The first document submitted by Petitioner is an undated letter from Reginald Howard- one of die convicted accomplices to the robbery-murder-stating that he "would like to do a[n] affidavit saying that Petitioner "wasn't present at the time the crime was committed" and that he named Petitioner to police "because the detectives scared me an[d] I just put his name" down. (SAP at 47.) He states that he would "like to correct my mistake an[d] assist Petitioner] on gaining his freedom.” (SAP at 47.)
According to Petitioner's state appellate counsel. Howard's letter was post-marked January 30, 2013. (SAP at 34.)
The second document is an April 2015 letter from Jesse Singleton-also one of the convicted accomplices to the robbery-murder-stating that Petitioner "had nothing to do with this crime at all."' (SAP at 48.) He states that Petitioner '"never was amongst us and I really don't know why he was ever charged." (SAP at 48.) Like Howard, Singleton asserts that he is just trying to help Petitioner "get his freedom back." (SAP at 48.)
The third document is mostly illegible but appears to be from someone named Ima Shoot. Petitioner does not explain in the Petition or his Reply the contents of this letter or how it exonerates him. from die crimes. (SAP at 92; Reply at 12-13.)
The fourth document is purportedly a November 2019 letter from Gilbert Davis-the witness to the robbery who testified at trial that Petitioner was me driver of the Oldsmobile Cutlass-to Petitioner, though it is unsigned. (SAP at 51-52.) In the letter, Davis asks Petitioner to "slide me 10 Banz, so I can leave town after I tell the truth." Davis asks Petitioner to call him, telling him "if you want me to do anything, I need die money to get out of town" (SAP at 52.)
2. Teague Bat
As an initial matter, Respondent argues mat Petitioner's actual innocence claim is barred by Teague v. Lane. (Answer at 23-25.) The Supreme Court has made it clear that, if the state argues that the petitioner seeks the benefit of a new rule, the federal habeas courts must decide at die outset whether Teague is implicated. In Teague. the Supreme Court held that a new rule of constitutional law cannot be applied retroactively on federal collateral review to upset a state conviction or sentence unless die new rule forbids criminal punishment of primary, individual conduct or is a "watershed" rule of criminal procedure. Thus, the Teague retroactivity bar applies to procedural rules, not substantive ones. Petitioner" s claim of actual innocence, however; is a substantive claim, not one based on a new procedural rule. Therefore, it is not barred by Teague.
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994).
Id., at 396.
See Montgomery v. Louisiana, 577 U.S. 190, 200, 136 S.Ct 718, 193 L.Ed.2d 599 (2016) ("holding] that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule"); Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct 2519, 159 L.Ed.2d 442 (2004) (explaining that "[n]ew substantive rules generally apply retroactively . . . because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the Law cannot impose on him") (citation and internal quotation marks omitted).
See Quiroz v. Pfeiffer, No. CV 14-07826-JAK (GJS), 2021 WL 3816358, at *5 (CD. Cal. May 14, 2021) ("Petitioner's claim of actual innocence, however, is a substantive claim, not one based on a new procedural rule. Therefore, it is not barred by Teague."); Shorts v. Clark, No. CV 19-04899-GW(AFM) : 2019 WL 7945705, at *5, n.6 (CD. Cal. Oct. 4, 2019) ("Because a freestanding actual innocence claim is a substantive claim, Teague is not implicated.").
3. Legal Standard
The United States Supreme Court has expressly left open the question whether a freestanding claim of actual innocence is cognizable on federal habeas review. However, the Ninth Circuit has assumed that freestanding actual innocence claims are cognizable in noncapital cases.
See McQuiggin v. Perkins, 569 U.S. 383, 392, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013) ("We have nut resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.").
See Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) ("We have not resolved whether a freestanding actual innocence claim is cognizable in a federal habeas corpus proceeding in the noncapital context, although we have assumed that such a claim is viable.").
The Ninth Circuit has '"not articulated the precise showing required" for a freestanding actual innocence claim, but has indicated a petitioner's burden is '"extraordinarily high"' and requires a showing that is '"truly persuasive”Thus, at a minimum "a habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Additionally, the Ninth Circuit has 'discussed the standard for a freestanding actual innocence claim by reference to the Schlup 'gateway' showing, which permits a petitioner to proceed on a procedurally barred claim by showing actual innocence.'" To pass through the Schlup gateway, Petitioner must show that "in light of new [reliable] evidence, 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.
Id., at 1247.
Camger v. Stewart 132 F.3d 463, 476 (9th Cir. 1997'l (en banc") (quoting Herrera v. Collins. 506 U.S. 390. 417. 113 S.Ct 853, 122 L.Ed.2d203 (1993)).
Id.
Jones, 763 F.3d at 1247.
House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct 851, 130 L.Ed.2d 808 (1995)).
4. Analysis
Here, the four "affidavits" Petitioner presents in the Petition fall far short of demonstrating his innocence. The letters from co-defendants Howard and Singleton, presented many years after die crimes were committed, declaring without evidentiary support that Petitioner was not involved in the store robbery, are not persuasive evidence of Petitioner's innocence because they lack credibility. Similarly, the letter from witness Davis, asking for money to "tell the truth" is ambiguous at best. At trial, Davis testified that he was a "hundred percent" certain that Petitioner was the person he saw driving the Oldsmobile Cutlass outside the store at the time of the robbery. (10 RT 1663-65, 1668-69, 1721.) Nothing in the recent letter undermines Davis's identification of Petitioner as one of the robbers.
See Herrera, 506 U.S. at 423 (O'Connor, J., concurring) (noting post-trial affidavits "are to be treated with a fair degree of skepticism"); Allen v. Yukins, 366 F.3d 396, 405 (6th Cir. 2004) ("[P]ostconviction statements by codefendants are inherently suspect because codefendants may try to assume full responsibility for the crime without any adverse consequences."); see also Jones, 763 F.3d at 1248 (noting that recantation testimony is "properly viewed with great suspicion") (internal quotation marks omitted).
Moreover, Petitioner fails to address the fact that another co-defendant, Tiasha Croslin, identified Petitioner at trial as one of the participants in the robbery. (8 RT at 1340.) She testified that Petitioner was present at die meeting at Hatter's house where the robbery was planned and left the house in his Oldsmobile Cutlass along with the others to commit the crime. (8 RT at 1342-49.) She also testified that Petitioner arrived back at Hatter's house after the robbery -murder, where die stolen money and food stamps were divided up among die participants. (8 RT at 1369-74.)
In short, even assuming that Petitioner can raise a free-standing claim of actual innocence on habeas corpus, Petitioner has failed to demonstrate that he is "probably innocent" and that no reasonable juror would have found him guilty of the robbery based on the new evidence. Accordingly. Petitioner is not entitled to relief on Ground Four.
Jones, 763 F.3dat 1246; Carriger, 132 F.3d at 476.
E. Ineffective Assistance of Appellate Counsel
In Ground Five, Petitioner contends that his appellate counsel was constitutionally ineffective for failing to raise a claim that he was innocent based on the affidavits of Howard and Singleton. (SAP at 6.)
1. Legal Standard
In order to prevail on his ineffective assistance of counsel claim under the United States Supreme Court decision in Strickland v. Washington, Petitioner must prove two things: (1) that counsel's performance was deficient, and (2) that he was prejudiced by the deficient performance.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The Strickland standard also applies to claims of ineffective assistance of appellate counsel based on the failure of counsel to raise particular claims on appeal. A habeas petitioner must show that, but for appellate counsel's failure to raise the relevant claims, there is a reasonable probability that the petitioner would have been successful on appeal. In the absence of such a showing, neither Strickland prong is satisfied. Appellate counsel does not have a constitutional duty to raise every non-frivolous issue a defendant requests. Counsel "must be allowed to decide what issues are to be pressed. Otherwise, the ability of counsel to present the client's case in accord with counsel's professional evaluation would be "seriously undermined." There is, of course, no obligation to raise meritless arguments on a client's behalf. The weeding out of weaker issues is widely recognized as one of the duties of effective appellate lawyers, and counsel is not deficient for failing to raise a weak issue. In order to prove prejudice in this context, Petitioner must show that he probably would have been successful on appeal but for appellate counsel's errors. A court evaluating an ineffective assistance of appellate counsel claim does not need to address both components of the test if the petitioner cannot sufficiently prove one of them.
Smithy. Robbins, 528 U.S. 259, 285, 120 S.Ct 746, 145 L.Ed.2d 756 [2000).
Bee Pollard v. White, 119 F.3d 1430, 1435-37 (9th Cir. 1997).
Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
Id.
Id.
See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (“[A]ppellate counsel's failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal.”).
Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
Id. at 1434 n.9.
See Strickland, 466 U.S. at 697.
2. Analysis
Here, Petitioner faults appellate counsel for failing to raise a claim that he was innocent based on the affidavits of Howard and Singleton stating that Petitioner was not involved in the robbery. As discussed above, these unsworn letters, written at least 15 years after the robbery, are not persuasive evidence of Petitioner's innocence. Nor do they substantially undermine the inculpatory evidence against Petitioner presented at trial, which included an eyewitness identification and incriminating testimony by one of the accomplices. As such. Petitioner has not identified a successful claim that appellate counsel could have brought based on the letters from Howard and Singleton. Because Petitioner's claim of actual innocence clearly fails, appellate counsel's decision not to raise a meritless claim on direct appeal was not ineffective.Accordingly, Petitioner is not entitled to relief on his claim of ineffective assistance in Ground Five.
See Bailey v. Newland, 263 F.3d 1022, 1033-34 (94 Cir. 2001) (holding appellate counsel is ineffective only if they fail to raise a '"winning issue" on direct appeal).
F. Prosecutorial Misconduct
In Ground Six, Petitioner argues that the prosecutor committed misconduct by improperly vouching for witness Tiasha Croslin at trial. (SAP at 7.) Respondent contends that the claim must be denied because the Court previously denied the claim in a prior federal petition. (Answer at 1-2.) Petitioner raised this same prosecutorial misconduct claim in his 2007 federal habeas corpus petition, Case No. CV 07-04794-GHK (CW). (Lodgment N at 36 (Claim Three: ''Informing a jury that a [Croslin] has received a favorable plea agreement in exchange for truthful testimony constitutes prosecutorial vouching that renders a trial fundamentally unfair.”) In that case, the magistrate judge recommended that the claim be denied because it was procedurally barred and because it failed on the merits. (See Lodgment O at 49-54.) On June 24, 2015, the District Court accepted the recommendation of the magistrate judge and dismissed the claim, along with the entire petition, with prejudice. (Lodgments P-Q)
Under § 2244(b). which governs second or successive habeas petitions, a claim raised in a successive petition that was "presented in a previous federal habeas petition . . . must be dismissed." A claim was "previously presented" if "the basic thrust or gravamen of the legal claim is die same, regardless of whether the basic claim is supported by new and different legal arguments.. . [or] proved by different factual allegations." Here, Petitioner presents the same claim based on the same legal theory previously presented and dismissed by the Court in 2015. Petitioner makes no attempt to differentiate this claim from his 2007 filing or explain how the Court can re-examine this successive claim under die law. Accordingly, the claim must be denied, and Petitioner is not entitled to relief on Ground Six.
Tyler v. Cain, 533 U.S. 656, 661, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001): 2S U.S.C. § 2244(b)(1); see also Gonzalez v. Crosby, 545 U.S. 524, 530, 125 S.Ct 2641, 162 L.Ed.2d 480 (2005).
Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir. 1999) (per curiam).
See Hooper v. Shinn, 56 F.4th 627, 633 (9th Cir. 2022) ("Because [petitioner's] due process claim was presented in his first petition, we affirm the district court's dismissal of the claim. See 25 U.S.C. § 2244(b)(1)."); Rabb v. Spearman, No. CV 17-9318-JAK (JPR), 2019 WL 6354408, at *11 (CD. Cal. Sept 24, 2019) ("Because these claims were presented in a prior petition, they must be dismissed under § 2244(b)(1).").
G. State Procedural Errors
In Ground Seven, Petitioner contends that he was prejudiced when the Los Angeles County Superior Court conducted a firearm enhancement hearing before he was able to submit all of his juvenile case-related materials. (SAP at 8.) In Ground Eight, Petitioner asserts that the superior court erred by conducting the firearm enhancement hearing after conducting the resentencing hearing on his murder conviction. (SAP at 9.) Both claims arise from the superior court's procedural actions after the California Court of Appeal remanded Petitioner's case in 2018 for resentencing pursuant to California Senate Bill 620 and to hold a Franklin hearing. (See Lodgment KK)
In 2017, California enacted Senate Bill 620, which amended California Penal Code §§ 12022.5 and 12022.53 to give discretion to the sentencing court to strike firearm enhancements in the interest of justice. See Cal. Penal Code, §§ 12022.5(c), 12022.53(h); People v. Johnson, 32 Cal.App. 5th 26, 67 (2019).
In People v. Franklin, the California Supreme Court held that, because the sentencing court imposed a sentence for murder committed by a juvenile defendant before the enactment of Senate Bill 260, the case should be remanded to afford the defendant the opportunity to make a record of information relevant to a potential future juvenile offender parole hearing. 63 Cal.4th 261, 283-84 (2016).
These claims are not cognizable in federal habeas corpus because they concern alleged errors in a state post-conviction proceeding. Moreover, "[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Here, Petitioner's challenges rest entirely on state law. Both Senate Bill 620 and the Franklin hearing procedures derive from California statutory law, not the federal Constitution. As such, they are non-cognizable challenges to state law." Petitioner's attempt to "transform a state-law issue into a federal one merely by asserting a violation of due process" is rejected. Accordingly, Petitioner is not entitled to habeas relief on Grounds Seven and Eight.
See Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) ("[A] petition alleging errors in the state postconviction review process is not addressable through habeas corpus proceedings."); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997) (slating that errors in the state post-conviction proceeding were not cognizable in federal habeas corpus proceedings).
Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); see also 28 U.S.C. g 2254(a).
See In re Cook, 7 Cal. 5th 439, 459, 247 Cal.Rptr.3d 669 (2019) ("It bears emphasis that the proceeding we outlined in Franklin derives from the statutory provisions of sections 3051 and 4801."); Johnson, 32 Cal.App. 5 th at 67 (providing trial courts with statutory discretion to strike firearm enhancements).
See Springfield v. Lozano, No. SACV 19-0013-DDP (AGE.), 2021 WL 4442404, at *7 (CD. Cal. Mar. 16, 2021) (finding Petitioner's claim that he is entitled to a Franklin hearing was not cognizable on federal habeas"): Williams v. Robertson, No. CV20-00086-FLA (AFM), 2022 WL 1037755, at *13 (CD. Cal Feb. 2, 2022) (holding challenge to Senate Bill 620 is not cognizable on federal habeas corpus because it does not "rely on any federally protected right").
Langford v. Day, 110 F.3d 1380, 1389 (9thCir. 1996).
H. Imposition of Restitution Fine
In Ground Nine, Petitioner claims that the sentencing court erred by imposing a S 10,000 restitution fine without first holding an "indigency hearing" to determine his ability to pay the fine. (SAP at 10.)
As discussed previously, a federal court may entertain a habeas petition on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." A claim challenging the imposition of a fine does not meet this jurisdictional requirement because it Has no effect on the validity or duration of a prisoner" s confinement. Because Ground Nine challenges only the fees and fines imposed on Petitioner, this Court is without jurisdiction to consider it. Accordingly, Petitioner is not entitled to habeas relief on this claim.
See Bailey v. Hill, 599 F.3d 916, 981-82 (9th Cir. 2010) ("§ 2254(a) does not confer jurisdiction over a state prisoner's in-custody challenge to a restitution order imposed as part of a criminal sentence."); Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998) (stating that imposition of a fine is "merely a collateral consequence of conviction" and is not sufficient to establish federal habeas jurisdiction); see also United States v. Thiele, 314 F.3d 399, 402 (9th Cir. 2002) (finding no jurisdiction under 25 U.S.C. § 2255 over claim challenging restitution fine).
VII.
RECOMMENDATION
IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Report and Recommendation; and (2) directing that Judgment be entered denying the SAP and dismissing this action with prejudice.