Ochoa v. Thomas

Full title: JORDY OCHOA, Petitioner v. L.R. THOMAS, et al., Respondents.

Court: United States District Court, Central District of California

Date published: Jun 2, 2021

CV 11-6864-JGB (GJS) (C.D. Cal. Jun. 2, 2021)

Opinion

CV 11-6864-JGB (GJS)

06-02-2021

JORDY OCHOA, Petitioner v. L.R. THOMAS, et al., Respondents.

GAIL J. STANDISH, UNITED STATES MAGISTRATE JUDGE.

FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

GAIL J. STANDISH, UNITED STATES MAGISTRATE JUDGE.

This Final Report and Recommendation is submitted to United States District Judge Jesus G. Bernal, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

This case was filed nearly a decade ago and had a long and complicated history before it was ultimately referred to the undersigned. The Court will therefore summarize the case's procedural history in brief.

On August 19, 2011, Petitioner, on a pro se basis, filed a habeas petition pursuant to 28 U.S.C. § 2254. [Dkt. 1, “Petition.”] The Petition challenged an August 26, 2009 state court conviction in Los Angeles County Superior Court Case No. BA349945 (“State Conviction”) and raised a single federal habeas claim alleging that “Petitioner's 5^th Amendment's Protection Against Double Jeopardy Was Violated [sic]” by his retrial following a finding in his favor at his parole revocation hearing, given that the California Court of Appeal had found that the threshold requirements of collateral estoppel had been satisfied. [Petition at 6-7.] Respondent filed an Answer and lodged certain portions of the state record. [Dkt. 20, “Lodg.”] Petitioner did not file a Reply and the case, therefore, was under submission as of early 2012. [See Dkt. 21.]

In August 2012, Petitioner moved to have the Office of the Federal Public Defender appointed as counsel, and the originally-assigned United States Magistrate Judge (Carla M. Woehrle) granted the motion. [Dkts. 22-23.] Petitioner thereafter sought eight extensions of time to file a Reply to the Answer, and his requests were granted. [Dkts. 24-40.]

Despite his repeated extension requests, Petitioner did not file a Reply. Instead, in May 2013, he filed a motion seeking leave to amend the Petition to add “two new claims” [Dkt. 41, “Amendment Motion”] and lodged portions of the Clerk's Transcript and the Reporter's Transcript from the State Conviction proceedings [Dkts. 43-1 through 43-10].¹ With the Amendment Motion, Petitioner lodged a Proposed First Amended Petition that pleaded a double jeopardy claim now supported by and based on arguments involving federal constitutional principles and federal law (and which added a new related ineffective assistance of trial counsel subclaim, collectively alleged as Ground Three) and added two entirely new claims, one based on “actual innocence” (Ground One) and the other alleging that trial counsel provided ineffective assistance in at least 15 respects (Ground Two). [Dkt. 41-2, along with attached Exhibits 1-24, “First Amended Petition” or “FAP”.] Concurrently, Petitioner filed a motion to stay the case, pursuant to Rhines v. Weber, 544 U.S. 269 (2005), while he pursued exhaustion of the new claims. [Dkt. 42 and Exs. 25-29, “Stay Motion.”] After receiving six extensions of time, Respondent filed an Opposition to both the Amendment Motion and the Stay Motion on October 11, 2013 [Dkt. 61]. Respondent reiterated his contention - made earlier in his Answer to the original Petition - that Petitioner had not exhausted a federal double jeopardy claim through his direct appeal and had presented only a state law collateral estoppel claim, as the California Court of Appeal found. [Id. at 5.] On November 8, 2013, Petitioner filed a Reply [Dkt. 64]. The Reply did not address Respondent's above-noted contention and argued that all of Petitioner's claims were exhausted due to his efforts to pursue habeas relief at the trial court and California Court of Appeal levels. [Id. at 4-7.]

1 The Clerk's Transcript has been lodged as two separate documents [Dkts. 43-1 and 43-2, collectively “CT”]. The Reporter's Transcript for Petitioner's first trial has been lodged as four separate documents [Dkts. 43-3, 43-4, 43-5, and 43-6, collectively “RT1”]. The Reporter's Transcript for Petitioner's second trial has been lodged as four separate documents [Dkts. 43-7, 43-8, 43-9, and 43-10, collectively “RT2”].

On January 10, 2014, Judge Woehrle granted the Stay Motion and issued a Rhines stay of this case. [Dkt. 65.] While Petitioner's state exhaustion efforts were pending, on March 28, 2014, Judge Woehrle vacated the Amendment Motion in light of the pending stay proceedings. Her Order provided that Petitioner could “renew” the Amendment Motion following the completion of his state exhaustion proceedings. [Dkt. 70.]

On September 17, 2014, Petitioner filed a notice advising that the California Supreme Court had denied his habeas petition, and he asked to renew the Amendment Motion. [Dkt. 79.] On September 18, 2014, Judge Woehrle lifted the Rhines stay and directed the parties to meet and confer regarding a schedule for further briefing on the Amendment Motion. [Dkt. 80.] In response, the parties stipulated that Respondent would file an Answer to the FAP and Petitioner would file a Reply to that Answer by set dates (even though the Amendment Motion remained pending), and Judge Woehrle so ordered. [Dkts. 82, 84.]

On September 24, 2014, Petitioner filed Exhibit 30 to the First Amended Petition. [Dkt. 83.] After receiving several extensions of time, Respondent filed a combined Answer to and Motion to Dismiss the First Amended Petition on January 26, 2015. [Dkt. 92.] Petitioner thereafter, requested, and was granted, 14 extensions of time to file a combined Traverse and Opposition, which Petitioner did on November 7, 2016. [Dkt. 126.]² On March 8, 2017, Respondent filed a combined Reply to the Traverse and “objection” to the Amendment Motion. [Dkt. 132.]³

2 In the interim, upon Judge Woehrle's retirement, this case was referred to another United States Magistrate Judge. [Dkt. 116.] Eventually, the case was transferred from that judge and referred to the undersigned. [Dkt. 136.]

3 In his Answer, Respondent repeated his contention that Petitioner did not present his federal double jeopardy claim in his direct appeal. [Dkt. 92 at 10.] In his Traverse, in response, Petitioner stated that he had exhausted all of this claims through his California Supreme Court habeas petition, which was denied on the merits on September 10, 2014. [Dkt. 126 at 7.]

On November 17, 2020, the Court issued its Report and Recommendation in this action [Dkt. 140, “Original Report”]. After resolving certain procedural issues in Petitioner's favor, the Original Report addressed Petitioner's claims on their merits and recommended that habeas relief be denied. After requesting, and receiving, three extensions of time to file objections to the Original Report, Petitioner filed his Objections on May 6, 2021 [Dkt. 149]. Respondent did not file Objections or a Reply to Petitioner's Objections. In his Objections, Petitioner objects to the Court's substantive, merits analysis in a number of respects and also raises certain objections as to procedural matters. The Court now issues this Final Report and Recommendation to address some of those procedural objections, to clarify some of the Original Report's statements, which Petitioner appears to have misunderstood, and to correct any typographical or citation errors. The Court leaves Petitioner's objections regarding the substance of the Court's merits analysis to the United States District Judge for de novo review. The additional comments and matters included within this Final Report and Recommendation do not affect or alter the Court's Original Report analysis and conclusions with respect to the merits of

Petitioner's habeas claims - the actual substance of the Court's recommendations - and, therefore, the parties have not been given an opportunity to file additional objections.

The matter is submitted and ready for decision. For the reasons set forth below, the Court GRANTS the Amendment Motion and recommends that the District Judge deny the First Amended Petition on its merits.

PRIOR PROCEEDINGS

On January 5, 2009, in the State Conviction proceedings, Petitioner was charged with possession of a firearm by a felon in violation of California Penal Code § 12021(a)(1). (Lodg. Ex. B.) On June 19, 2009, trial commenced with jury selection and then proceeded over the next several days. [CT 98-105, 121-22, 127-28.] On June 24, 2009, shortly after commencing deliberations, the jury submitted a note indicating that the jurors were “unable to decide” and “it appears there is no hope of reaching a unanimous verdict.” [CT 120.] The jurors asked to review evidence and testimony again, as well as to review items that had not been admitted into evidence. [CT 119, 123-26, 130.] On June 26, 2009, the jury advised that it was “still unable to reach a verdict.” [CT 129.] After polling the jury, the trial court declared a mistrial. [CT 132; RT1 245-52.]

Prior to the institution of the State Conviction proceedings, a separate case - No. BA326153 - had been initiated in the Los Angeles Superior Court, in which Petitioner pled no contest to one of the charged counts and received probation and a 165-day jail sentence, with credits in the same amount (“Case BA326153”). [Lodg. Ex. A at 3-15.] As discussed infra, many of the proceedings in the State Conviction case and Case BA326153 occurred concurrently. After the State Conviction jury trial ended in a mistrial on June 26, 2009, Case BA326153 was set for a probation violation hearing before the same trial judge. She found that Petitioner was not in violation of probation, although his probation remained revoked, and did not decide the question of whether Petitioner could be held in violation of probation following the retrial in the State Conviction case. [Lodg. Ex. A at 16-17.]

On August 21, 2009, a second jury trial commenced in the State Conviction case and continued for several days. [CT 138-42.] The jury retired to deliberate for one hour on August 25, 2009, and resumed at 9:35 a.m. the next day, August 26, 2009. That afternoon, following the lunch break, the jury continued to deliberate and reached a verdict of guilty at 3:21 p.m. [CT 167-68.] Petitioner was sentenced immediately thereafter to probation for three years with 365 days in county jail and credit for 392 days served. [CT 168-70.]

Petitioner appealed the State Conviction. He argued that his retrial has been barred by state law collateral estoppel principles due to the trial court's ruling failing to revoke probation in Case BA326153, and asserted that this collateral estoppel claim was not forfeited by trial counsel's failure to raise a double jeopardy objection, because the failure to object was ineffective assistance. He also asked the state appellate court to independently review the transcript of the trial court's Pitchess hearing. [CT 186-87; Lodg. Exs. D-F.] On January 4, 2011, in a published decision, the California Court of Appeal affirmed the judgment, finding that Petitioner's state law collateral estoppel argument failed under California's “public policy” exception to the collateral estoppel doctrine, and as a result, his counsel did not provide ineffective assistance by failing to make the collateral estoppel objection. [Lodg. Ex. G.; see also People v. Ochoa, 191 Cal.App.4th 664, 655-57 & n.8 (2011).] While noting that Petitioner had referred to the term “double jeopardy, ” the California Court of Appeal found that he “presents no argument that his second trial contravened the jeopardy clause of the federal or State Constitution[s], insofar as they implicate principles other than the doctrine of collateral estoppel” and he “has thus forfeited any such contention.” [Id. at 668 n.5.] Petitioner sought review in the California Supreme Court, re-raising his same state law collateral exception argument as in the lower appellate court. As Petitioner put it to the state high court, the “the only question is whether the public policy exception to the doctrine of collateral estoppel applies here.” [Lodg Ex. H at 3; see also id.at 10: “Review Should Be Granted To Consider Whether The Public Policy Exception To The Doctrine Of Collateral Estoppel Applies When The Prosecution Has Failed To Prove Its Case Even By A Preponderance Of The Evidence Standard After A Full Criminal Trial”; and id. at 14: “The Sole Issue Is Whether The Public Policy Exception To The Doctrine Of Collateral Estoppel Applies To This Case.”] Significantly, Petitioner did not challenge, or even mention, the California Court of Appeal's finding that he had not raised a double jeopardy claim under either the federal or state constitutions. [Lodg. Ex. H, passim.]⁴ On April 20, 2011, the California Supreme Court denied review without comment or citation to authority. [Lodg. Ex. I.]

4 As he did in his California Court of Appeal briefing, Petitioner's California Supreme Court petition mentioned the term “double jeopardy” in passing, but never indicated that - in addition to the state law collateral estoppel/public policy exception claim that he said was the “only” and “sole” issue to be reviewed by the state high court - he also was raising a claim that the federal Double Jeopardy Clause had been violated by his retrial.

Following his conviction, Petitioner was removed to Honduras on April 8, 2010. On or about May 17, 2011, Petitioner was found in Los Angeles County, a detainer issued after Petitioner was arrested on a local warrant, and he was released to federal immigration authorities on May 20, 2011. A federal complaint issued in this District charging Petitioner with violating 8 U.S.C. § 1326(a) and (b)(2), and on September 26, 2011, Petitioner pled guilty in Case. No. 2:11-cr-00603-SVW. [Lodg. Exs. J-K.] On December 12, 2011, Petitioner received a term of three years, with three years supervised release. He appealed, and the United States Court of Appeals for the Ninth Circuit vacated the sentence and remanded for resentencing. On June 3, 2013, Petitioner was sentenced to a 33-month prison term, with three years of supervised release. [Dkts. 29, 42, 48, and 50 in No. 2:11-cr-00603-SVW.]

In the meantime, this action proceeded as described above. In his Answer to the original Petition filed in December 2011, Respondent argued that the federal double jeopardy claim alleged was unexhausted. After counsel was appointed for Petitioner and the Amendment Motion and Stay Motions were filed nine months later, Petitioner filed a habeas petition in the trial court, alleging not only the new actual innocence and ineffective assistance of counsel claims pleaded in the First Amended Petition as Grounds One and Two but also the revamped version of the original Petition's double jeopardy claim now alleged in the First Amended Petition as Ground Three. [Dkt. 46.] On June 21, 2013, the trial court denied the petition, finding that Petitioner was not in actual or constructive state custody pursuant to the State Conviction and had failed to appeal the State Conviction. [Dkt. 75-1.] On June 28, 2013, Petitioner moved for reconsideration, arguing that he had been on state probation at the time he filed his habeas petition and, in fact, had appealed the State Conviction. [Dkt. 75 at 2.] On July 25, 2013, the trial court terminated Petitioner's probation imposed in connection with the State Conviction. [Dkt. 61-1.] On August 1, 2013, ruling on the reconsideration motion, the trial court noted that Petitioner was “no longer on state probation” and then considered (and denied) two of his claims on their merits and denied the third double jeopardy claim on the ground that the issue had been raised on appeal. [Dkt. 64-1.]

Petitioner next sought habeas relief in the California Court of Appeal, filing a petition that raised his present claims. [See, e.g., Dkt. 66.] On June 27, 2014, the California Court of Appeal denied the petition on the ground that Petitioner “has failed to satisfy the habeas corpus jurisdictional requirements under California law.” [Dkt. 75-1.]⁵

5 The California Court of Appeal cited California Penal Code § 1473 and People v. Villa, 45 Cal.4th 1063 (2009). Section 1473 states that a person “unlawfully imprisoned or restrained” may pursue habeas relief. Villa held that a petitioner whose state probation period had ended and who then was placed in immigration deportation proceedings was not in actual or constructive custody for habeas purposes. Id. at 1072.

Petitioner then filed a habeas petition in the California Supreme Court, again raising his three present claims. In addition to his merits arguments, Petitioner argued that jurisdiction existed, because he had been in custody at the time he initiated his round of state habeas proceedings and because the State Conviction had been used to enhance his sentence for his present federal conviction, for which he currently was serving a period of supervised release. [Dkt. 77.] On September 10, 2014, the California Supreme Court denied the petition in an order stating simply that it was doing so “on the merits” and citing Harrington v. Richter, 562 U.S. 86 (2011). [Dkt. 79.]⁶

6 The portion of the Richter decision cited by the California Supreme Court involved the Supreme Court's holding that when a state court presented with a federal claim denies relief, “it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law principles to the contrary” and that this presumption can be overcome “when there is reason to think some other explanation for the state court's decision is more likely.” 562 U.S. at 99-100.

PETITIONER'S HABEAS CLAIMS

The First Amended Petition raises the following three claims:

Ground One: Petitioner is actually innocent of the offense of which he was convicted, in violation of his federal constitutional rights to due process and to be free from cruel and unusual punishment. [FAP at 5 and attached Memorandum (“Mem.”) at 4-14.[

Ground Two: Trial counsel provided ineffective assistance of counsel by failing to investigate and present exculpatory evidence and by failing to make crucial objections at trial. [FAP at 5; Mem. at 14-26.]

Ground Three: Petitioner's retrial violated the Double Jeopardy Clause and counsel provided ineffective assistance by failing to raise a double jeopardy objection. [FAP at 6; Mem. at 27-32.]

THE “PENDING” AMENDMENT MOTION

The Amendment Motion did not actually receive a ruling during the proceedings described above. Nonetheless, as ordered by the originally-assigned Magistrate Judge, the parties have briefed the merits of the claims alleged in the First Amended Petition, as well as procedural issues relating to exhaustion and timeliness, as if it were the operative petition in this case.

Federal Rule of Civil Procedure 15(a)(2) governs amendment here and is to be applied liberally. See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994). “Five factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) (citation omitted). Respondent does not contend that Plaintiff has acted in bad faith or that Respondent will be prejudiced if amendment is allowed, and there is no factual or legal basis for finding adversely to Petitioner on either factor, nor has there been any prior, yet unsuccessful, attempt at amendment by Petitioner. Whether or not amendment should be allowed here instead turns on the futility and delay factors; Respondent argues that amendment would be futile, because the claims alleged in the FAP are not only unexhausted but untimely.

In the next two Sections, the Court addresses the defenses of exhaustion and untimeliness raised by Respondent. As explained below, the Court rejects Respondent's exhaustion argument and concludes that the timeliness issue need not be resolved before proceeding to the merits. Under these circumstances, the Court concludes that the factors of futility and delay are not sufficiently adverse to Petitioner to warrant denying amendment. Indeed, under the procedural posture of this case - in which the parties already have fully briefed the merits of the claims alleged in the FAP - denying amendment at this belated juncture would be an empty and ineffective gesture, if not an abuse of discretion. Accordingly, the Amendment Motion is GRANTED.

THE EXHAUSTION ISSUE

In his Answer to the original Petition, Respondent asserted that the sole claim pleaded (alleging a double jeopardy violation) was unexhausted, because it had not been fairly presented as a federal claim in Petitioner's direct appeal. As outlined above, Petitioner thereafter filed the First Amended Petition that added two new claims and expanded the originally-asserted double jeopardy claim to include federal law arguments, and this case was stayed. By the time the stay issued, Petitioner was well into his exhaustion proceedings, having already filed an unsuccessful trial court habeas petition that raised Grounds One through Three and then a habeas petition in the California Court of Appeal, again raising all three claims. That exhaustion process concluded on September 10, 2014, when the California Supreme Court denied habeas relief on the “merits.” By the time that state high court petition had been filed, Petitioner's probation imposed in connection with the State Conviction had been terminated for over a year.

Respondent contends that this case should be summarily dismissed for lack of exhaustion for several reasons. [See, e.g., Dkt. 92 at 8-11; Dkt. 132 at 22-36.] First, Respondent concedes that the original Petition was timely filed but argues that its dismissal is required nonetheless, because the single claim alleged in the original Petition was unexhausted at the time it was brought here and all claims must be exhausted before federal habeas relief is sought. Second, Respondent argues that the three claims alleged in the First Amended Petition are unexhausted, because when Petitioner presented them in a habeas petition to the California Supreme Court, he no longer was in state custody and the state courts lacked jurisdiction to consider his claims. Third, Respondent asserts that, because the claims allegedly are unexhausted, they also are “procedurally defaulted.”

With respect to Respondent's third argument, he mistakenly conflates the exhaustion doctrine with the procedural default rule, and his invocation of the latter is unavailing.

The doctrine of exhaustion and the procedural default rule are two different things. Exhaustion generally requires that before a federal court will review a constitutional claim in habeas, the claim must first be fairly presented to the state court system. The requirement is “principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings.” [Murray v. Carrier, 477 U.S. 478, 489 (1986)], quoting Rose v. Lundy, 455 U.S. 509, 518 . . . (1982). The procedural default rule requires that if a state court rejects a habeas petitioner's federal constitutional challenge on the adequate and independent state ground that the claim is defaulted under a state procedural rule, a federal habeas court is ordinarily precluded from reviewing that claim unless the petitioner can show cause for the default and prejudice resulting from it. Wainwright [v. Sykes, 433 U.S. 72, 87 (1977)]. The rule is based on the principles of comity and is intended to promote judicial efficiency and economy. Id. at 88 . . . . Thus, these two facets of federal habeas corpus jurisprudence are different mechanisms devised to effectuate different, though related, policy considerations.

Justus v. Murray, 897 F.2d 709, 713 (4th Cir. 1990). See also Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (clarifying that: “[e]xhaustion and procedural default are distinct concepts in the habeas context, ” and that “[t]he two doctrines developed independently and on different grounds, apply in different situations, and lead to different consequences”; exhaustion applies “when the state court has never been presented with an opportunity to consider a petitioner's claims and that opportunity may still be available to the petitioner under state law”; and “[]in contrast, the procedural default rule barring consideration of a federal claim ‘applies only when a state court has been presented with the federal claim,' but declined to reach the issue for procedural reasons, or ‘if it is clear that the state court would hold the claim procedurally barred'”) (citation omitted).

In this case, the California Supreme Court - when presented with the three claims alleged in the FAP - stated that it had resolved them on their “merits” and did not invoke any California procedural bar to deny relief. The federal procedural default rule simply has no application to this situation.

Respondent's first argument fails on its face as well. As a threshold matter, the Court agrees that Petitioner's double jeopardy claim alleged in the original Petition was not exhausted at the time this case commenced, because Petitioner had not raised any federal double jeopardy claim in his direct appeal, as the California Court of Appeal expressly found. Petitioner's contention in the Objections that he raised his current federal double jeopardy claim in his opening brief filed in the California Court of Appeal plainly fails. Although the brief noted, without comment or argument, a state court's observation that collateral estoppel “is an aspect of the Fifth Amendment's protection against double jeopardy, ” this mere passing reference was insufficient to apprise the state appellate court that Petitioner was tendering a federal double jeopardy constitutional claim in addition to his state law collateral estoppel claim, given that the entirety of Petitioner's argument that his retrial was improper focused, and rested, solely on state law collateral estoppel issues. [See LD 20, Exs. D and F, passim.] The same is true of the petition for review that Petitioner filed in the California Supreme Court, which expressly and repeatedly told the state high court that the “sole” and “only” question it was to review was whether the lower court had erred in applying California's public policy exception to the state law collateral estoppel doctrine. Indeed, it is telling that Petitioner opted not to challenge and seek review of the California Court of Appeal's finding that he had not raised any federal double jeopardy claim at the state appellate court level. [See Lodg. 20. Ex. H, passim.]

Thus, while Respondent correctly observes that the double jeopardy claim alleged in the original Petition was not exhausted at the time the Petition was filed, Respondent ignores a critical rule. While a state prisoner is required to exhaust his claims before a federal habeas court may grant him relief - 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 843 (1999) - this is not the same thing as requiring that exhaustion take place before he files a federal habeas petition. Indeed, under Ninth Circuit authority, a state prisoner may file a fully unexhausted federal habeas petition and then seek and obtain a Rhines stay (assuming he meets the requisites for such a stay). Mena v. Long, 813 F.3d 907, 910-12 (9th Cir. 2016). That is exactly what Petitioner did; he filed a fully unexhausted Petition and later asked for a Rhines stay, was granted one, and then exhausted all three of his claims. Dismissing this case on the ground that the double jeopardy claim alleged in the original Petition was unexhausted would be contrary to Ninth Circuit precedent.

Respondent's second, and primary, exhaustion argument is that the FAP is unexhausted because the California Supreme Court assertedly lacked jurisdiction to consider the state habeas petition before it. Respondent describes how Petitioner was no longer in actual or constructive custody under state law when the trial court - having been alerted to the issue and its initial habeas error once Petitioner sought reconsideration - terminated his probation on July 25, 2013. Respondent approvingly cites the California Court of Appeal's denial of habeas relief on this basis, i.e., that Petitioner was no longer in custody under the State Conviction. Respondent then asserts that the California Supreme Court “lacked jurisdiction” to “grant relief” and, thus, “properly rejected” Petitioner's claims.

Even if the Court assumes, arguendo, that Respondent is correct that, under California law, Petitioner was “ineligible for relief” (Villa, 45 Cal.4th at 1066) when he filed his California Supreme Court habeas petition, because he was not in actual or constructive custody, this nonetheless is of no moment for the exhaustion issue. Respondent, inexplicably, ignores that the California Supreme Court clearly and explicitly stated that it had denied habeas relief “on the merits.” [Dkt. 79 at 4.] The custody issue had been squarely teed up to it; in his state high court petition, Petitioner argued vigorously that the trial court had erred in finding he was not in custody when he filed his initial petition and that his liberty was presently restrained, thus warranting habeas review. [Dkt. 77-1 at 16-18.] Had the California Supreme Court disagreed and concluded that jurisdiction to consider the habeas petition was lacking, it could have simply denied relief expressly on that basis (as did the California Court of Appeal) or without comment, giving rise to a presumption that it denied relief on the same ground as the lower court. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (holding that federal habeas court “look[s] through” summary denial of claim to last reasoned decision from state courts to address claim). Instead, the California Supreme Court explicitly denied the petition “on the merits” and cited Richter for the proposition espoused therein that a merits denial is presumed absent a reason to think otherwise. Under these circumstances, the “look through” doctrine plainly is inapplicable.⁷

7 See Robinson v. Lewis, 9 Cal. 5th 883, 895-96 (Cal. 2020), in which the California Supreme Court reiterated that each time a habeas petition is filed in a particular level of the California court system, “it is a new petition invoking the higher court's original jurisdiction, ” the higher court is “not bound by” any factual findings made by the lower court, although it will give them great weight, and it does “not directly review the lower courts' rulings.” The state high court's explicit “merits' basis for denying relief necessarily demonstrates that it did not render its decision on the same basis as the court below, i.e., on the ground that jurisdiction was lacking.

Respondent argues that it is “incongruous” to believe that the California Supreme Court reached the merits of the claims before it and that the existence of the Villa decision is a reason to find the Richter presumption to have been overcome. Had the California Supreme Court issued a true silent denial, that argument might have some facial appeal. But it did not and however “incongruous” Respondent might find it, the state high court chose not to follow the lower appellate court's ruling and, instead, expressly indicated that it had elected to consider the petition and deny it “on the merits, ” citing Richter. It is presumed “that state courts know and follow the law.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam); see also Musladin v. Lamarque, 555 F.3d 830, 838 n.6 (9th Cir. 2009) (federal habeas courts are “bound” to presume that state courts know and follow the law). Having utilized the words “on the merits” in conjunction with its Richter cite, the California Supreme Court did something very intentional and specific, and this Court must treat the California Supreme Court's Order as a merits resolution of the petition before it and not as one that denied relief based on a finding of a lack of jurisdiction. As Petitioner received a merits consideration of his three claims by the state's highest court, those claims are exhausted.⁸

8 To the extent, as it appears, that Respondent's real argument is that the California Supreme Court committed state law procedural error in resolving the habeas petition on its merits instead of denying relief for lack of jurisdiction, and that Respondent further urges this Court to find that state law error occurred, the Court will not entertain such a suggestion. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining that “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”); Martinez v. Ryan, 926 F.3d 1215, 1224 (9th Cir. 2019) (finding that the Circuit Court lacked jurisdiction to consider contention that state court had erred in its application of a state law procedural rule to bar claim); Johnson v. Foster, 786 F.3d 501, 508 (7th Cir. 2015) (“a federal habeas court is not the proper body to adjudicate whether a state court correctly interpreted its own procedural rules, even if they are the basis for a procedural default”); Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (holding that “[f]ederal habeas courts lack jurisdiction . . . to review state court applications of state procedural rules” and declining to consider claim that state court had misapplied state procedural rule when finding claim to be barred).

THE TIMELINESS ISSUE

In contrast to Respondent's exhaustion argument, his contention that the First Amended Petition is untimely is not so easily and quickly resolvable.

Petitioner's direct appeal concluded in April 2011, and thus, his limitations period - if calculated under 28 U.S.C. § 2244(d)(1)(A) - would have expired in July 2012. Respondent concedes that the original Petition alleging only a double jeopardy claim was timely and that the double jeopardy claim realleged in the First Amended Petition is timely, because it relates back to the timely-filed original Petition. [Dkt. 92 at 6; Dkt. 132 at 48.] The Court agrees that the Ground Three double jeopardy claim - even though unexhausted at the time it originally was raised - is timely due to the Rhines stay that issued in this case. See King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009); see also Duran v. Cate, No. CV 16-2666-AG (FFM), 2016 WL 11522305, at *2 (C.D. Cal. Sept. 30, 2016) (“the implementation of a stay under Rhines holds a petitioner's place in federal court so that any timely but unexhausted claims are not rendered untimely when the petitioner returns to federal court after fully exhausting all his claims”).

Unlike Petitioner's Ground Three double jeopardy claim, his actual innocence claim (Ground One) and his ineffective assistance claim (Ground Two) were not alleged in the original timely Petition and were not proffered as possibilities in this case until May 2013, well after Petitioner's limitations period had run if the typically applicable Section 2244(d)(1)(A) accrual period governs them. Petitioner concedes that the claims are untimely if Section 2244(d)(1)(A) applies to them. [Dkt. 41 at 6.] Petitioner, however, offers a number of alternate possibilities as to why Grounds One and Two allegedly are timely. He argues that these claims relate back to the timely filing date of the original Petition. He also argues that these two claims are subject to the 28 U.S.C. § 2244(d)(1)(D) delayed accrual rule for claims based on a factual predicate whose discovery was delayed notwithstanding diligence, arguing that the claims did not accrue until counsel was appointed in this case on August 27, 2012. Finally, Petitioner argues that if the claims are not timely under the foregoing theories, they are timely under the actual innocence exception to the statute of limitations.⁹

9 Petitioner also perfunctorily asserts that he is entitled to equitable tolling. His brief argument consists of quotations from various equitable tolling decisions followed by conclusory assertions that he acted with diligence and that his indigence, pro se status, and unspecified “ineffective of assistance of counsel” constitute extraordinary circumstances. These bare assertions, devoid of supporting facts, are inadequate to establish the required extraordinary circumstance. See, e.g., Ford v. Pliler, 590 F.3d 782, 789 (9th Cir. 2009) (observing that the equitable tolling “standard has never been satisfied by a petitioner's confusion or ignorance of the law alone”); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009) (“a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling”); Roy v. Lampert, 476 F.3d 964, 970 (9th Cir. 2006) (“[i]t is clear that pro se status, on its own, is not enough to warrant equitable tolling”); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (collecting cases from other circuits and holding that “a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance”); see also Johnson v. United States, 544 U.S. 295, 311 (2005) (in the parallel 28 U.S.C. § 2255 context, rejecting a movant/prisoner's attempt to justify his lack of diligence based on his pro se status and lack of legal sophistication, and stating: “we have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness”). Given that Petitioner's cursory equitable tolling argument does not come close to meeting his burden of proof, it will not be considered further.

A. Relation Back

1. Grounds One and Two

Petitioner initially argued that his original Petition “advanced the core contention of his innocence” by alleging that his retrial violated the Double Jeopardy Clause, and that as a result, all of his claims relate back to the original double jeopardy claim. [Dkt. 64 at 9-10.] This argument is wholly unpersuasive. The original Petition alleged cursorily a standard double jeopardy claim and no more; it in no way intimated that Petitioner claimed to be actually innocent or that his counsel had provided ineffective assistance in the numerous ways alleged in Ground Two. [Dkt. 1 at 6-6a.] There is no tenable basis for finding that the perfunctory double jeopardy claim asserted in the original Petition and the detailed claims asserted through Grounds One and Two - which rely in substantial part on “new” evidence obtained after the Petition was filed - arise from a common core of operative facts within the relation back standards established by the Supreme Court and Ninth Circuit. See Mayle v. Felix, 545 U.S. 644, 650 (2005) (“[a]n amended habeas petition . . . does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth”); see also Id. at 662-64; Hebner v. McGrath, 543 F.3d 1133, 1134 (9th Cir. 2008) (when the limitations period has run, “a new claim in an amended petition relates back to avoid a limitations bar . . . only when it arises from the same core of operative facts as a claim contained in the original petition. It is not enough that the new argument pertains to the same trial, conviction, or sentence.”).

Grounds One and Two do not relate back to the timely-filed original Petition. The two claims remain untimely absent some other basis for finding them timely.

2. New Ground Three Subclaim

When Petitioner filed the FAP, he not only alleged new claims Grounds One and Two but, as a part of his realleged original double jeopardy claim (now set forth in Ground Three), he slipped in an additional new claim. At the tail end of Ground Three, Petitioner has added a perfunctory ineffective assistance subclaim, arguing that counsel should have asserted a double jeopardy objection to the retrial. [Mem. at 32.] Petitioner argues that this new ineffective assistance claim relates back to the timely substantive double jeopardy claim alleged in the original Petition, because the ineffective assistance claim is “inferred by the facts in the first petition that indicated that he was placed in jeopardy twice for the same offense.” [Dkt. 126 at 12-14.] While Petitioner concedes that he “did not specifically raise” this new ineffective assistance claim in the original Petition, he contends that he “was not required to expressly state that counsel failed to raise the double jeopardy objection” for the new ineffective assistance claim to relate back to the originally pleaded double jeopardy claim, relying on Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013).¹⁰ [Dkt. 126 at 12-13.]

10 Nguyen has been abrogated on another ground not at issue here. See Hurles v. Ryan, 914 F.3d 1236, 1237 (9th Cir. 2019) (per curiam).

In two decisions that predated Nguyen, the Ninth Circuit had found that a claim based on a substantive constitutional violation differs in nature and type from a claim alleging ineffective assistance for failing to raise an objection based on the substantive constitutional violation, and thus, raising one such claim does not raise the other. In Rose v. Palmateer, 395 F.3d 1108 (9th Cir. 2005), the petitioner raised claims in his state habeas petition that trial counsel failed to argue properly that his confession was inadmissible in connection with a motion to suppress and that appellate counsel should have raised an argument based on the trial court's adverse ruling on the motion to suppress. When the petitioner attempted to raise a Fifth Amendment claim attacking his confession in his federal habeas case, the Ninth Circuit found that his Sixth Amendment claim raised in the state court did not exhaust the Fifth Amendment claim, because “[w]hile admittedly related, they are distinct claims with separate elements of proof.” Id. at 111-12. In Schneider v. McDaniel, 674 F.3d 1144 (9th Cir. 2012), the Ninth Circuit applied this proposition in the relation back context. The petitioner raised a claim in his original petition that his trial counsel had provided ineffective assistance by failing to investigate his co-defendant's trial strategy, which would have led him to file a timely motion to sever. In an amended petition, he claimed that the trial court's denial of his untimely motion to sever deprived him of due process. Id. at 1151. The Ninth Circuit held that the later-raised due process claim did not relate back to the timely ineffective assistance claim, because: “Schneider's original theory was based on trial counsel's alleged failures. His amended theory is based on the trial court's alleged errors. The core facts underlying the second theory are different in type from the core facts underlying the first theory.” Id. Nguyen was decided the next year. Petitioner's Nguyen's original petition included an unexhausted claim that his sentence violated double jeopardy and an exhausted claim attacking the sentence under the Eighth Amendment. Nguyen was granted a Rhines stay to exhaust the double jeopardy claim along with a claim alleging that appellate counsel had provided ineffective assistance for failing to raise a double jeopardy claim. 736 F.3d at 1291. Respondent later argued that the ineffective assistance claim, which had not been alleged in the timely original petition, did not relate back and, thus, was untimely. The Ninth Circuit opined that the relation back standard, including Mayle's “time or type” language, applies only to the facts supporting claims and that differences in the substantive nature of the claims or grounds asserted do not matter. Id. at 1297. The Ninth Circuit concluded that the “facts” that supported all three claims were simple and the same, namely, that Nguyen (1) had served his sentence yet (2) had been resentenced thereafter based on the same count. Without analysis, the Ninth Circuit concluded that the ineffective assistance of appellate counsel claim related back to the substantive double jeopardy claim. Id. The Nguyen decision did not discuss or acknowledge the Schneider decision.

A number of district courts have observed that Schneider and Nguyen appear to be irreconcilable or in tension and have noted the rule set forth in Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011) that when a later three-judge panel opinion conflicts with the opinion of an earlier-three judge panel, the earlier decision controls.¹¹ The Court agrees that there is an obvious tension between the two Ninth Circuit decisions. The Nguyen relation back analysis is brief and is dependent on the panel's highly simplified characterization of the underlying “facts” and its view that the substantive nature of the wrong alleged does not matter. Schneider, in contrast, examined the differing nature of the facts underlying the substantive claim and the ineffective assistance claim and found that, while one fact overlapped, others did not. In addition, Schneider looked to the nature of the wrongs alleged, one based on asserted errors by the trial court and the other on asserted failings by counsel, and found the difference between them to matter for relation back purposes.

11 See, e.g., Wildman v. Arnold, No. CV 16-08570-JLS (JDE), 2017 WL 8186436, at *23 (C.D. Cal. Sept. 25, 2017), accepted by 2018 WL 1226016 (March 6, 2018); Hines v. Ducart, No. CV 14-08490-JAK (KES), 2017 WL 2416374, at *9 (C.D. Cal. March 21, 2017), accepted by 2017 WL 2407521 (June 2, 2017); Gonzales v. Ryan, No. CV-99-02016-PHX-SMM, 2014 4476558, at *7 (D. Ariz. Sept. 10, 2014); Posey v. Harrington, No. CV 10-1779-GW (JPR), 2014 WL 1289604, at *1 (C.D. Cal. March 31, 2014).

The Court, however, need not attempt to resolve this tension. While the two claims at issue here involve different actors and constitutional predicates, they are tied to a common core of operative facts and a common legal theory. Specifically, both claims rest on Petitioner's assertions that: a mistrial occurred when he was tried on his criminal charges; the trial court, in ruling on a related probation violation charge, declined to find that Petitioner had committed the charged crimes; this probation hearing ruling allegedly acquitted Petitioner of the criminal charges for double jeopardy purposes; and the trial court, thus, should not have scheduled a second trial on the criminal charges. Unlike in Schneider, the core facts underlying the two claims here overlap almost entirely (the only additional fact is that counsel failed to object when the second trial was scheduled) and the asserted constitutional violations were contemporaneous in time. And while the Fifth Amendment governs one claim and the Sixth Amendment the other, both claims rest entirely on, and will be resolved based on, Petitioner's contention that the trial court's probation violation ruling was an acquittal for federal double jeopardy purposes.

Given the foregoing and the Nguyen decision, the Court concludes that the ineffective assistance subclaim alleged in Ground Three should be deemed to relate back to the timely filing of the original Petition. Thus, this subclaim is timely.

B. Section 2244(d)(1)(D)

Petitioner contends that Section 2244(d)(1)(D) affords him a delayed accrual of the limitations period applicable to Grounds One and Two. He argues that the limitations period for these two claims did not accrue because he lacked counsel, and that the limitations period only accrued and begin running once he was appointed counsel in this case on August 27, 2012.

Section 2244(d)(1)(D), by its terms, applies only when two predicates are met: (1) there is a delayed discovery of the facts giving rise to a claim; and (2) the delay is excusable because the petitioner has exercised diligence. As the Ninth Circuit has made clear, the limitations period begins to run pursuant to Section 2244(d)(1)(D) “‘when the prisoner knows (or through due diligence could discover) the important facts, not when the prisoner recognizes their legal significance.'” Hasan v. Galaza, 254 F.3d 1150, 1154 & n.3 (9th Cir. 2001) (citation omitted) (further observing that, once the petitioner was aware of the facts themselves, even if he did not understand their legal significance, the limitations “clock started ticking”). Section 2244(d)(1)(D) does not apply unless a petitioner makes “an adequate showing of due diligence.” Majoy v. Roe, 296 F.3d 770, 776 n.3 (9th Cir. 2002).

Petitioner, in his Section 2244(d)(1)(D) argument, does not identify a single “fact” of which he was unaware, much less identify why any belatedly-discovered “fact” could not have been discovered previously through the exercise of due diligence. Petitioner's Section 2244(d)(1)(D) argument boils down to his contention that, as a prisoner, he could not have investigated and obtained some of the facts on which Grounds One and Two rest, but this argument is belied by his own allegations. For example, Petitioner alleges that, at the time of trial, his family “specifically directed” his trial counsel to additional exculpatory witnesses, but he did not present them as trial witnesses. Petitioner also alleges that his trial counsel failed to interview his mother or sister, who both would have provided exculpatory information, or percipient witness that Petitioner's mother and other relatives advised counsel wanted to testify on Petitioner's behalf. Petitioner alleges that, prior to his first trial, a critical witness (Jeannette) confessed to Petitioner's sister that she was willing to testify in a manner that exculpated Petitioner and that this fact was conveyed to trial counsel. In addition, Petitioner's sister and mother had provided statements to prior trial counsel regarding the alleged targeting by police of Petitioner based on his pending lawsuit against the police department. [Mem. at 15-20.]

These “facts” underlie Grounds One and Two and plainly either were known to Petitioner as of the time of his trial or would have been had he made any effort to communicate with his family members. That Petitioner did not obtain declarations and the like to support these known “facts” until he obtained counsel does not implicate Section 2244(d)(1)(D), because the factual predicate of a claim is a habeas petitioner's knowledge of the facts supporting the claim, not the evidentiary support proving them. See Rivas v. Fischer, 687 F.3d 514, 535 (2d Cir. 2012) (“factual predicate” for Section 2244(d)(1)(D) purposes means “vital facts, ” and “if new information is discovered that merely supports or strengthens a claim that could have been properly stated without the discovery, that information is not a ‘factual predicate' for purposes of triggering the statute of limitations under § 2244(d)(1)(D)”); Earl v. Fabian, 556 F.3d 717, 725-26 (8th Cir. 2009) (rejecting contention that, under Section 2244(d)(1)(D), petitioner's limitations period accrual was delayed until he received his case file and opining that “‘[s]ection 2244(d)(1)(D) does not convey a statutory right to an extended delay . . . while a habeas petitioner gathers every possible scrap of evidence that might . . . support his claim'”) (citation omitted); McAleese v. Brennan, 483 F.3d 206, 214 (3d Cir. 2007) (“Clearly, [petitioner] has confused the facts that make up his claims with evidence that might support his claims.”) (citing Johnson v. McBride, 381 F.3d 587, 589 (7th Cir. 2004) (“A desire to see more information in the hope that something will turn up differs from ‘the factual predicate of [a] claim or claims' for purposes of § 2244(d)(1)(D).”)); Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir. 2005) (“Section 2244(d)(1)(D) does not restart the time when corroborating evidence becomes available”), abrogated on another ground in McQuiggin v. Perkins, 569 U.S. 383 (2013); Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998) (rejecting a Section 2244(d)(1)(D) argument such as that made here, because the petitioner “is confusing his knowledge of the factual predicate of his claim with the time permitted for gathering evidence in support of that claim”); see also Bunney v. Mitchell, 241 F.3d 1151, 1155 (9th Cir.), opinion withdrawn on other grounds, 249 F.3d 1188 (9th Cir. 2001) (“Petitioner's argument in this case conflates her knowledge of the ‘factual predicate' of a claim with the development of sufficient evidentiary support to prove the claim. But the text of AEDPA answers Petitioner's argument; under subsection (d)(1)(D), the statute of limitations begins to run when a petitioner knows (or should know through the exercise of due diligence) the facts on which a claim is predicated, without reference to when (or if) she can muster evidence sufficient to prove that claim.”).

Petitioner's position - that if a prisoner lacks habeas counsel, he automatically gets a deferred accrual date of his limitations period until such time as he obtains counsel - finds no support in the caselaw interpreting and applying Section 2244(d)(1)(D). Petitioner's reliance on Martinez v. Ryan, 566 U.S. 1, 12 (2012), is misplaced, as the quoted language had nothing to do with the accrual of limitations periods for federal habeas claims and, instead, related to the question of whether the ineffective assistance of counsel in an initial review collateral proceeding might serve as “cause” for a prisoner's procedural default of a claim alleging ineffective assistance of trial counsel.

There is no basis here for finding that the predicates for a delayed accrual pursuant to Section 2244(d)(1)(d) apply to either Ground One or Ground Two. Accordingly, these two claims remain untimely.¹²

12 In his Objections, Petitioner disagrees with the Court's Section 2244(d)(1)(D) analysis. Given the Court's ultimate conclusion that any untimeliness issue should be set aside in favor of a merits consideration of the FAP's three claims, the Court declines to address Petitioner's arguments, other than to note that it stands by its Section 2244(d)(1)(D) analysis.

C. Actual Innocence

Finally, Petitioner invokes the “actual innocence” equitable exception to the Section 2244(d) limitations period for Grounds One and Two. See McQuiggin, 569 U.S. at 386. Petitioner's timeliness/actual innocence arguments overlap almost entirely with the merits of Ground One of the FAP, which is a freestanding claim of “actual innocence.” In addition, considering them now will also necessarily duplicate much of the analysis needed in connection with a merits consideration of Ground Two. Put otherwise, resolving Petitioner's invocation of the actual innocence exception to Section 2244(d) necessarily will require the Court to conduct an analysis that will duplicate, if not exceed, that to be done were the Court instead to consider Grounds One and Two on their respective merits. Moreover, were the Court to conclude that resolving the actual innocence issue for timeliness purposes requires further factual development (whether through discovery or an evidentiary hearing), this would render resolution of the issue more difficult and time-consuming than a merits resolution of (at least) Ground One.¹³

13 The deferential Section 2254(d) standard of review governs the Court's initial merits federal habeas review of Grounds One and Two, and thus, its review is limited to the record that was before the state court at the time it adjudicated the claims. See Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011). Review of Petitioner's “actual innocence” assertions under the timeliness rubric, however, does not carry with it any such limitation.

In short, the resolution of the timeliness issue in this case at this juncture may be less efficient than a threshold consideration of the merits of Petitioner's claims under Section 2254(d). The AEDPA limitations period is not a jurisdictional bar, and district courts are not required to dismiss based on untimeliness. Day v. McDonough, 547 U.S. 198, 205 (2006); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly V), 163 F.3d 530, 540 (9th Cir. 1998); see also Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001) (a district court may deny a petition on its merits rather than reaching “the complex questions lurking in the time bar of the AEDPA”). The Court concludes that a consideration of the merits of Grounds One and Two, pursuant to the Section 2254(d) standard of review, would be proper before resolving the actual innocence equitable exception issue. Indeed, the timeliness issue, as well as the potential need for any factual development or credibility assessment on the timeliness issue, would be mooted if the Court were to determine that Petitioner has not satisfied the Section 2254(d) standards and his first and second claims, therefore, do not warrant federal habeas relief.¹⁴

14 This is the first time in the Court's experience that a petitioner has complained about receiving a merits consideration of his claim rather than having it first subjected to, and possibly dismissed, pursuant to a timeliness analysis. Petitioner's argument - that the Court improperly conflated the standard that governs a merits analysis of an actual innocence claim with that applicable when actual innocence is considered as an equitable exception to the statute of limitations - is without merit. The Court expressly declined to engage in the latter, i.e., a timeliness/actual innocence analysis, because under the circumstances involved here, there is no reason to do so instead of simply proceeding to consider Petitioner's actual innocence assertion on its actual merits and as a basis for federal habeas relief. While Petitioner is correct that the inquiry contemplated by the Schlup test can be an extensive one, why would any habeas petitioner wish to have his claim subjected to that highly demanding standard and possibly found wanting and therefore to be untimely and required to be dismissed on that procedural basis when, instead, he could receive that which should be the goal of any habeas petitioner, namely, to have his claim actually considered on its merits? Petitioner's complaint about the Court's decision to decline to consider Respondent's timeliness challenge to Ground One is highly unusual, to say the least, and instead seems to be an ill-disguised attempt to do an end run around the above-noted Pinholster limitation that he concedes applies to the Court's consideration of Ground One on its merits. In his Objections, Petitioner asserts that the Court committed legal error by deciding to consider his Ground One actual innocence claim on its merits, instead of first determining whether the claim is untimely by conducting the pertinent inquiry and analysis that would be required to assess his invocation of actual innocence as a “gateway” to avoiding the Section 2244(d) statute of limitations. Petitioner insists that he is entitled to have the Court undertake a timeliness analysis of Ground One pursuant to the Schlup v. Delo, 513 U.S. 298 (1995) test and that the Court must, as a part of doing so, hold an evidentiary hearing on the timeliness issue.

Accordingly, the Court declines to resolve the timeliness question as to Grounds One and Two at this juncture and now will turn to the merits of all three claims alleged in the FAP.

STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996, as amended (“AEDPA”), Petitioner is entitled to habeas relief only if the state court's decision on the merits “(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” 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); Pinholster, 563 U.S. at 181; see also Richter, 562 U.S. at 98 (“By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (2).”). Petitioner's claims are governed by the Section 2254(d) standard of review, because as discussed earlier, the California Supreme Court expressly resolved the claims on their “merits” when it denied them on habeas review.¹⁵

15 In his Objections, with respect to his Ground Three double jeopardy claim, Petitioner asserts that the Court committed legal error by looking to the California Supreme Court's merits habeas denial of Ground Three as the relevant state court decision for Section 2254(d) purposes instead of the California Court of Appeal's earlier decision on direct appeal. This argument fails for the obvious reason that, as explained earlier, Petitioner did not raise his Ground Three federal constitutional double jeopardy claim in that direct appeal, as the California Court of Appeal expressly found. Critically, Petitioner did not challenge that state appellate court finding when he sought review in the California Supreme Court. Indeed, why would Petitioner have raised the federal double jeopardy claim in his state habeas proceedings if he, in fact, had already raised and exhausted it many years earlier on direct appeal? As Petitioner earlier and correctly acknowledged (Traverse at 7) in response to Respondent's assertion that the First Amended Petition was unexhausted, he exhausted “all” of his claims though his California Supreme Court habeas proceeding and the state high court's merits denial of them. As a result, that habeas decision is the operative state court decision for purposes of Section 2254(d) review in this case. Petitioner's Objection contention that the California Court of Appeal's decision on direct appeal should have been treated as the operative decision for purposes of Section 2254(d) review of Ground Three rests on the erroneous premise that he actually exhausted his federal double jeopardy claim in his direct appeal. He plainly did not, and this Objection is factually and legally meritless.

For purposes of Section 2254(d)(1) review, the relevant “clearly established Federal law” consists of Supreme Court holdings (not dicta), applied in the same context to which the petitioner seeks to apply it, existing at the time of the relevant state court decision. See Lopez v. Smith, 574 U.S. 1, 2, 4 (2014) (per curiam); see also Greene v. Fisher, 565 U.S. 34, 40 (2011). A state court acts “contrary to” clearly established Federal law if it applies a rule contradicting the relevant holdings or reaches a different conclusion on materially indistinguishable facts. Price v. Vincent, 538 U.S. 634, 640 (2003). A state court “unreasonably appli[es]” clearly established Federal law if it engages in an “objectively unreasonable” application of the correct governing legal rule to the facts at hand; however, Section 2254(d)(1) “does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.” White v. Woodall, 572 U.S. 415, 425-27 (2014). “And an ‘unreasonable application of' [the Supreme Court's] holdings must be ‘objectively unreasonable,' not merely wrong; even ‘clear error' will not suffice.” Id. at 419 (citation omitted). “The question . . . is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 466, 473 (2007).

In his Objections, Petitioner asserts that the Report erred in finding that the review of his claims are governed by Section 2254(d)(1) only and noting that he did not raise any claim of Section 2254(d)(2) error. He asserts that: his failure to actually make any Section 2254(d)(2) argument did not “waive” any such claim, because in his Traverse, he issued a general denial to any “defense proffered by Respondent that is based on AEDPA” and said the Court should allow unspecified “fact-finding” before considering the merits of his claims; and because the Amendment Motion had not been formally ruled on earlier, he “reasonably assumed” that any order granting that motion “would identify the claims to be litigated and frame the issues going forward (including the applicability of section 2254(d)), ” and thus, any briefing by him on the applicability of Section 2254(d) “would have been premature.”

Petitioner had been represented by very able counsel since 2012. Under Rules 2 and 5 of the Rules Governing Section 2254 Cases in the United States District Courts, the only briefing allowed in a Section 2254 case such as this one is the petition, the answer thereto, and an optional reply. Petitioner was required to state all of his arguments for habeas relief in connection with his three grounds in the First Amended Petition itself, so that Respondent would have notice of them and be able to respond to them in his Answer. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (finding that a petitioner's claims must be included within his petition and that: “In order for the State to be properly advised of additional claims, they should be presented in an amended petition or, as ordered in this case, in a statement of additional grounds. Then the State can answer and the action can proceed.”). In this case, the prior Magistrate Judge ordered that Respondent file an Answer to the Petition [Dkt. 5], he did so [Dkt. 20], and the Magistrate Judge then ordered that Petitioner could file an optional Reply and that the case then would be under submission unless otherwise ordered [Dkt. 21].

Petitioner did not file a Reply but, instead, obtained counsel and submitted the First Amended Petition and related Stay Motion and Amendment Motion, and the prior Magistrate Judge ordered briefing on the Motions [Dkts. 42-44]. Respondent thereafter filed a combined Opposition to both Motions and Petitioner filed a Reply [Dkts. 61, 64]. The Magistrate Judge stayed the case and vacated the Amendment Motion subject to Petitioner's request that it be considered following the conclusion of exhaustion proceedings [Dkts. 65, 70]. That request thereafter was made and the Magistrate Judge ordered that the parties meet and confer and either advise the Court that no further briefing on the Amendment Motion was needed or stipulate to a schedule for any further briefing [Dkt. 80]. In response, the parties stipulated to dates by which the Answer to the First Amended Petition and the Reply were to be filed, and the Magistrate Judge signed their related proposed Order [Dkts. 82, 84]. Respondent thereafter filed a combined Answer to and Motion to Dismiss the First Amended Petition [Dkt. 92]. Two weeks later, the parties filed a stipulation in which they agreed that: in two and a half months, Petitioner would file “one final reply brief/opposition to motion to dismiss” that would respond to Respondent's filing “as well as the application of 28 U.S.C. § 2254(d), if any, to the case”; and within 30 days thereafter, Respondent would file “one final reply” that also would address “the application of 28 U.S.C. § 2254(d), if any, to the case” [Dkt. 93]. An Order to this effect issued the next day [Dkt. 94]. In his “one final reply” - the Traverse filed on November 7, 2016 - Petitioner did not raise any contention or argument that Section 2254(d)(2) applied to his case, whether directly or indirectly. In fact, the Traverse did not reference either Section 2254(d)(1) or (d)(2) at all. Petitioner's assertion that he actually did preserve a Section 2254(d)(2) argument and/or was under the belief he would have the opportunity to make such an argument in the future through some unspecified briefing mechanism is flatly belied by the record. He expressly stipulated that he would address any Section 2254(d) issue in his Traverse, and for whatever reason, his counsel chose not to do so, notwithstanding that habeas relief is precluded in this case by the demanding Section 2254(d) standard of review unless and until it is shown that this standard has been met. It is wholly inappropriate to wait to make new legal claims and arguments on something as fundamental as the applicable standard of review until after briefing is completed and a report and recommendation on the merits of a petitioner's claims has issued. “[A]llowing parties to litigate fully their case before the Magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrate Act. We do not believe that the Magistrate Act was intended to give litigants an opportunity to run one version of their case past the magistrate, then another past the district court.” See Greenhow v. Secretary of Health & Human Services, 863 F.2d 633, 638-39 (9th Cir. 1988), overruled on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc). Petitioner's complaint that the Court should have reviewed his case under Section 2254(d)(2) is untimely, factually baseless, and foreclosed by his own conduct. It also is legally baseless, given that neither the First Amended Petition nor the Traverse identify any assertedly erroneous factual determination made by the state courts that falls within the purview of Section 2254(d)(2). ¹⁶ Accordingly, this case remains governed by Section 2254(d)(1).

16 Apparently recognizing his failure to raise any issue falling within the scope of Section 2254(d)(2) review, in his Objections, Petitioner now argues for the first time that Section 2254(d)(2) error exists because: the California Court of Appeal's opinion on direct appeal contains unidentified erroneous “assumptions” about the facts at trial; and under California law, the California Supreme Court should have issued an order to show cause and afforded him an evidentiary hearing, given that his state high court habeas petition contained “robust” allegations and ample evidence warranting relief. As to his first contention, the California Court of Appeal's direct appeal decision is not the state court decision to be assessed under Section 2254(d)(1) or (d)(2). As to the second contention, the California Supreme Court rarely issues OSCs and orders evidentiary hearings in connection with habeas petitions. If Petitioner's argument were correct, then Section 2254(d)(2) automatically is satisfied, ipso facto, by the fact that a state court declined to hold an evidentiary hearing notwithstanding a petitioner's belief that his state habeas petition alleged facts warranting relief. In practical effect, this would mean that the Section 2254(d)(2) limitation automatically is of no effect in most cases brought by a California prisoner and de novo review always must occur. This is not the law, however, and an assertion that an evidentiary hearing was justified under state law given a petitioner's belief in the merits of his state habeas petition, does not obviate the demanding standards of Section 2254(d)(2).

The California Supreme Court's resolution of Grounds One through Three was made by a summary statement on habeas review that relief was denied “on the merits.” When a state court's merits decision does not contain an explanation of the state court's underlying reasoning, “the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. In such an instance, a federal habeas court must determine what arguments or theories “could have supported” the state court's decision and then assess whether the foregoing standards are met as to any such arguments or theories. Id. at 102. In this instance, the federal court engages in an independent review of the record and then decides whether or not the state court's decision was objectively unreasonable under the Section 2254(d) standards. See, e.g., Murray v. Schriro, 882 F.3d 778, 802 (9th Cir. 2018) (noting that this task does not involve a de novo review of the constitutional question).

Habeas relief may not issue unless “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents.” Richter, 562 U.S. at 102; see also Id. at 103 (as “a condition for obtaining habeas relief, ” a petitioner “must show that” the state decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement”). “When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Woods v. Donald, 575 U.S. 312, 316 (2015) “[T]his standard . . . is ‘difficult to meet, '” Metrish v. Lancaster, 569 U.S. 351, 357-58 (2013) (citation omitted), as even a “strong case for relief does not mean the state court's contrary conclusion was unreasonable, ” Richter, 562 U.S. at 102. “[S]o long as ‘fairminded jurists could disagree' on the correctness of the state court's decision, ” habeas relief is precluded by Section 2254(d). Id. at 101 (citation omitted). “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,' . . . and ‘demands that state-court decisions be given the benefit of the doubt.'” Renico v. Lett, 559 U.S. 766, 773 (2010) (citations omitted).

DISCUSSION

I. Ground Three: The Double Jeopardy Issue

In his original claim, now pleaded as his third, Petitioner asserts that the Double Jeopardy Clause was violated when he was retried after his first trial ended in a mistrial and, in a concurrent proceeding, the trial court declined to find a probation violation.

A. Background

On December 30, 2008, a felony information was filed in the State Conviction proceeding that charged Petitioner with possession of a firearm by a felon who had a prior felony conviction (hereafter, the “Criminal Case”). [CT 18-19.] In separately-filed Case BA326153, Petitioner was charged with a violation of his probation imposed in connection with his prior felony conviction; the charged probation violation apparently was based on the pending Criminal Case charge (hereafter, the “Probation Violation Case”). A review of the record shows that the pre-trial minute orders for the Criminal Case often included a notation to the effect of “Also No. BA326153-01, ” apparently indicating that the events being scheduled were for both the Criminal Case and the Probation Violation Case. [See, e.g., CT 20, 69, 84-90, 92-95.]

On June 19, 2009, the trial court called “the matter of [Petitioner], BA349945, also BA326153” for a jury trial in the Criminal Case and then a probation violation hearing. The parties stipulated that “the facts that are deduced at the time of the trial can be used with respect to the probation violation hearing as well.” [RT1 4-6.] The jury trial of the Criminal Case then commenced with jury selection. [CT 98-101; RT1 9.] On the afternoon of the second day of trial, after the jury was selected and pre-instructed, the presentation of evidence commenced. After instructions and closing arguments, the jury began deliberations on the late morning of June 24, 2009. [CT 101-05, 121-22; RT119-228.]

On the afternoon of June 24, 2009, the jury began asking to see various items both in and not in evidence. [CT 119, 121-22, 124, 127-28, 130; RT1 236-37.] After those requests were resolved, the jury submitted a note indicating that it was unable to decide and it appeared there was no hope of reaching a verdict. The trial court spoke to the jurors, noted that they only had been deliberating for a matter of hours, requested that they continued to deliberate, and adjourned until the next morning. [CT 120; RT1 238-41.] The jury deliberated on June 25, 2009, and requested testimony readback several times. [CT 125-28; RT1 242-44.] On the morning of June 26, 2009, the jury submitted a note stating that it was still unable to reach a verdict. [CT 129.] The trial judge spoke with the jury foreperson and confirmed that the jury was “hopelessly deadlocked” and could not reach a verdict through further deliberations. [RT1 245-51.] The trial court declared a mistrial in the Criminal Case, and the jury foreperson thereafter advised that the jury had been split five for guilty and seven for not guilty. [CT 132; RT1 252.]

After the jury was excused, the trial judge turned to counsel and stated that they needed to decide whether to proceed on the Probation Violation Case and whether to set the Criminal Case for retrial, which were “somewhat related issues.” [RT1 254.] The trial judge noted that “at this point basically I've been hearing this case as the probation violation matter” and suggested that, as a result, the probation violation hearing proceed. [RT1 254-55.] Petitioner's counsel stated that “the defense really has no problem with” having the trial judge hear the Probation Violation Case at that time. [RT1 255.] The trial judge noted that the alternative would be to schedule the retrial of the Criminal Case and continue the Probation Violation Case to that time, and the asked the prosecutor his thoughts. [Id.] The prosecutor noted the different standards of proof for the two types of cases and agreed that it was appropriate to resolve the Probation Violation Case at that time. [RT1 255-56.] The trial judge confirmed that “all of the evidence that was presented during the trial will be considered by the court” in connection with the Probation Violation Case, then asked if either side wished to present any additional witnesses or evidence; both counsel declined to do so. [RT1 256.] The prosecutor declined to present any additional argument and Petitioner's counsel presented a brief argument. [RT1 256-57.] The trial court then took a brief recess to review notes. [RT1 258.]

After the recess, the trial court noted the applicable standard for the Probation Violation Case - preponderance of the evidence - and declined to find a probation violation. The trial judge noted that, but for certain rulings she had made in the Criminal Case, there would have been additional evidence to consider regarding the inconsistent statements made by a witness, but because that additional evidence had not been admitted during the Criminal Case, it would not be considered. [RT1 258.] With respect to prosecution witness Officer Ortega, who testified that Petitioner had a gun and put it in the purse of someone called Janet or Janette, the trial judge found that the officer had been a credible witness. [RT1 258-59.] The trial judge noted that, at the same time, there were four defense witnesses who testified relatively consistently that Petitioner was carrying a baby, which was inconsistent with using his hands to take a gun out of the back of his shorts, and had been somewhere else. The trial court also noted that three of the four witnesses had an incentive not to tell the truth given their close relationship with Petitioner and that the fourth was a friend, and that one of the witnesses had been impeached in one respect. [RT1 259-60.] The trial judge concluded that, nonetheless, given the absence of DNA and fingerprints on the gun, she did not find the balance to be tipped sufficiently and, as a result, concluded: “I cannot say that it is more likely than not that [Petitioner] on the facts that I have before the Court at this time committed the crime. So, I'm not at this time going to find him in probation violation.” [Id.]

The trial judge noted that an “interesting question” remained, namely, whether if the jury in the retrial of the Criminal Case found Petitioner guilty, could the trial judge then find Petitioner to have violated his probation, but she declined to resolve the issue at that time. [RT1 260.] The trial court and the parties then discussed the scheduling of the retrial of the Criminal Case, and Petitioner's counsel did not raise any objection to it proceeding. [RT1 261.] The trial judge asked whether another probation violation hearing should be set for the same date as the retrial, and in response, Petitioner's counsel wondered about the effect of the credits Petitioner would be receiving and asked if the trial court was reinstating probation. [RT1 262.] The trial judge advised that, although she was not ruling on the issue, there was an argument that, depending on what happened in the retrial of the Criminal Case, Petitioner still could be found to be in probation violation, and then ruled that his probation remained revoked and that a probation violation hearing would be scheduled along with the retrial. [RT1 263-64.]

Petitioner was retried in late August 2009, and the jury found him guilty. [See CT 137-68; RT2, passim.]

B. Under Section 2254(d)(1), Relief Is Foreclosed.

It is well established that the Fifth Amendment guarantee against double jeopardy protects against a second prosecution for the same offense after acquittal. See, e.g., Brown v. Ohio, 432 U.S. 161, 165 (1977). As the Supreme Court has explained:

An acquittal is accorded special weight. “The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal, ” for the “public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though ‘the acquittal was based upon an egregiously erroneous foundation.'... If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair.”... The law “attaches particular significance to an acquittal.”

United States v. DiFrancesco, 449 U.S. 117, 129 (1980) (citations omitted). “The same result is definitely otherwise in cases where the trial has not ended in an acquittal.” Id. at 130. Thus, it is equally well-established that double jeopardy does not bar retrial when a mistrial does not stem from Government misconduct or when it is supported by manifest necessity or it results from the defendant's consent to a declaration of mistrial. Id.; Arizona v. Washington, 434 U.S. 497, 505, 514-16 (1978); United States v. You, 382 F.3d 958, 964 (9th Cir. 2004).

As described above, the first trial in the Criminal Case ended in a mistrial following a jury deadlock, and in the Probation Violation Case hearing that followed, the trial court declined to find a probation violation (hereafter, the “Violation Hearing”). As also described above, the Violation Hearing did not involve the presentation of any new evidence or argument; the trial judge relied on the evidence admitted in the Criminal Case trial and then rendered her decision declining to find a probation violation. Petitioner contends that the trial judge's decision in the Probation Violation Case constituted a final judgment with respect to an issue of ultimate fact and an acquittal of the criminal charges alleged in the Criminal Case, and thus, he could not be retried on those criminal charges without violating the Double Jeopardy Clause. Petitioner invokes three Supreme Court decisions as constituting the clearly established federal law that governs Ground Three: United States v. Scott, 437 U.S. 82, 91, 95, 97 (1978); Evans v. Michigan, 568 U.S. 313, 319, 322 (2013); and Ashe v. Swenson, 397 U.S. 436, 442-43, 445 (1970).

In Scott, at the close of evidence, the trial court granted an earlier-made motion to dismiss two counts based on pre-indictment delay and then submitted the third count to the jury, which rendered a not guilty verdict. The question before the Supreme Court was whether the Double Jeopardy Clause precluded the Government from appealing the trial court's dismissal of the two counts. 437 U.S. at 84. The Supreme Court noted that double jeopardy did not bar an appeal when the dismissal ground is other than insufficiency of the evidence, but if there is a judgment of acquittal, whether due to a jury's not guilty verdict or a court ruling that the evidence was insufficient to convict, double jeopardy does bar an appeal. Id. at 87-91. The Supreme Court discussed the nature of certain dismissals as they related to double jeopardy concerns, contrasting the case before it with those that constituted an acquittal, i.e., “‘when the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged'” and involved an evaluation of the Government's evidence and the consequent determination “‘that it was legally insufficient to sustain a conviction.'” Id. at 95-97 (citation omitted). The Supreme Court concluded that the dismissal at issue, which was on a basis “unrelated to factual guilt or innocence of the offense” charged, was not of the sort protected by the Double Jeopardy Clause and, thus, a Government appeal was permitted. Id. at 98-99. Thus, while the Scott decision contains general language relating to what constitutes an acquittal and what does not, the decision is factually and legally inapposite to this case.

Evans also involved a situation far afield of that here. After the prosecution rested its case, the trial judge granted the defense motion for a directed verdict of acquittal after concluding that the prosecution had failed to prove a particular element. It turned out that the trial court had made a legal error, because no such element applied in the defendant's case and it did not need to be proven by the prosecution. 568 U.S. at 315. After discussing the nature of “substantive rulings” of acquittal (i.e., a trial court's finding that the evidence is insufficient to establish criminal liability for an offense) as opposed to “procedural dismissals” (i.e., rulings unrelated to factual guilt or innocence), the Supreme Court concluded that the trial court's “erroneous acquittal, ” even though based on the trial court's mistake of law, sufficed to constitute an “acquittal” for double jeopardy purposes under its earlier precedent regarding mistaken acquittals. Id. at 316-20. Again, no such factual circumstances or legal issues are involved here.

In Ashe, six men were playing poker at the home of one of them, and several masked men broke in and robbed the six players. The petitioner and others were charged with six robbery offenses, one for each of the players. The petitioner was tried on one of the charges involving one of the players, but the evidence of identity was weak and the jury acquitted him “due to insufficient evidence.” The State thereafter tried him on a charge involving a different player and presented much stronger identification evidence, and this time the petitioner was convicted. 397 U.S. at 437-40. As Petitioner notes, the Supreme Court concluded that collateral estoppel principles are embodied within the Double Jeopardy Clause and under the facts before it, double jeopardy was violated by the second trial, because the jury's not guilty verdict in the first trial reflected a finding that petitioner was not one of the robbers and the State was precluded from taking a second stab at that particular issue by a new trial involving additional evidence. Id. at 445-47. Ashe, thus, involved the prosecution's choice to try charges alleged within a single criminal case by way of separate trials based on each victim and rested on the double jeopardy effect of an actual acquittal by the jury in the first such trial - circumstances markedly different from those at issue in this case.

There is no question that, as Petitioner argues, the above three decisions state certain broad principles, including that when there is a substantive ruling in a criminal case in a defendant's favor - i.e., one that finds the government's evidence insufficient to establish guilt of the criminal charges alleged - this is an acquittal in that criminal case and double jeopardy therefore adheres and prevents further prosecution on those same charges. Petitioner, however, did not receive any “substantive ruling” of acquittal within his Criminal Case itself. Rather, the jury deadlocked, and in a subsequent probation violation proceeding, albeit one based on the same evidence over which the jury had deadlocked, the trial judge declined to find that a probation violation had occurred. Petitioner asks the Court to find that, by the foregoing three decisions, the Supreme Court has clearly held that, in this situation, the probation violation decision constitutes an acquittal for double jeopardy purposes as to still pending separate criminal case in which the jury earlier deadlocked. Stated otherwise for Section 2254(d)(1) purposes, the question is whether the Supreme Court has clearly held not only that events which happen within a criminal case itself can constitute an acquittal but, further, that events which happen subsequently in a different case can have a nunc pro tunc acquittal effect as to the still pending criminal case?

Given that the trial court and the parties opted to treat the Criminal Case and the Probation Violation Case as interrelated enough that the evidence in one served as the evidence in the other, there is a superficial appeal to Petitioner's contention that the trial judge's probation violation decision meant that she believed that the evidence would not have been enough to find Petitioner guilty of the charges pending in the Criminal Case had it not ended in mistrial. Any such speculation, however, cannot override the fact that the Criminal Case ended in a jury deadlock-induced mistrial, not a directed verdict in Petitioner's favor and not in a verdict by the jury of not guilty. See Scott, 437 U.S. at 96 (observing that the trial judge's characterization of his action does not control whether or not it had a double jeopardy effect). And under the clearly established federal law, the Double Jeopardy Clause does not preclude retrial following such a mistrial. This case is governed by Section 2254(d)(1) and nothing in the decisions cited by Petitioner supports the legal conclusion that the trial judge's decision not to find Petitioner in violation of his probation had the legal effect of acquitting him of the criminal charges on which the jury had deadlocked, nor do those decisions provide any guidance in this unique situation. Indeed, Petitioner does not argue that the decisions on which he relies are apposite to his case. Rather, he simply plucks out a few wholly general statements from these three decisions and touts them as the Section 2254(d)(1) clearly established federal law that mandates federal habeas relief in his case. He is mistaken.

Petitioner's arguments suffer from a fatal flaw for AEDPA purposes, one that the Supreme Court repeatedly has cautioned that lower courts must avoid. In determining what is “clearly established” federal law under Section 2254(d)(1), it is not enough to identify a broad principle and then cry error when a state court fails to extend that principle to an area never visited or considered by the Supreme Court. See Lopez v. Smith, 574 U.S. at 5-6 (finding error when the Circuit Court relied on cases standing for general propositions to govern the specific question before it, when the “proposition is far too abstract to establish clearly the specific rule” that would have needed to exist in order for the petitioner to overcome Section 2254(d)(1)); Nevada v. Jackson, 569 U.S. 505, 512 (2013) (per curiam) (finding Circuit Court error when it “elided the distinction” between the factual circumstance in the case before it and the factual circumstances involved in prior Supreme Court precedent and then characterized that precedent as recognizing a particular broad right: “By framing our precedents at such a high level of generality, a lower federal court could transform even the most imaginative extension of existing case law into ‘clearly established Federal law, as determined by the Supreme Court.'”); Wright v. Van Patten, 552 U.S. 120, 124-26 (2008) (per curiam) (when the Circuit Court was presented with a “novel factual context” and the Supreme Court's precedent “g[a]ve no clear answer to the question presented, ” because it had not “squarely addresse[d] the issue” involved, it was error to find that a Supreme Court decision arising from a different factual context governed and warranted relief); Carey v. Musladin, 549 U.S. 70, 76 (2006) (when prior Supreme Court decisions had addressed only the effect of state-sponsored courtroom practices on a defendants' fair trial right, the Circuit Court erred in treating those decisions as clearly established law governing a claim based on spectator conduct, because no holding of the Supreme Court required such an application and the state court's decision therefore could not be objectively unreasonable).

As the Ninth Circuit has explained, these precedents from the Supreme Court have “clarified that in the absence of a Supreme Court decision that ‘squarely addresses the issue' in the case before the state court, or establishes an applicable general principle that ‘clearly extends' to the case before us to the extent required by the Supreme Court in its recent decisions, we cannot conclude that a state court's adjudication of that issue resulted in a decision contrary to, or an unreasonable application of, clearly established Supreme Court precedent.” Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2009). Put otherwise by another Circuit, in light of these decisions, while “exact factual identity” between the case at hand and Supreme Court decisions is not required to find precedent to be clearly established, “federal courts may no longer extract clearly established law from the general legal principles developed in factually distinct contexts.” House v. Hatch, 527 F.3d 1010, 1016 n.5 (10th Cir. 2008).

Here, Petitioner relies on several generalized propositions asserted by the Supreme Court and asserts that they establish a specific rule for purposes of this case with its unusual facts, to wit, that a finding in a defendant's favor in a probation violation case constitutes an acquittal for double jeopardy purposes with respect to the underlying and still pending criminal charges that led to the probation violation charge. The Supreme Court, however, has not so held to date, nor has it rendered any decision that intimates this to be the rule. Petitioner does not cite a single case in which the Supreme Court has encountered a situation even remotely similar to that here and/or has indicated that a favorable probation violation outcome serves as a double jeopardy or collateral estoppel bar to a trial on the underlying criminal charges, and the Court has not found such a case. Petitioner's attempt to extrapolate clearly established federal law for Section 2254(d)(1) purposes from the broad statements on which he relies - arising out of wholly different factual contexts - is not persuasive and is contrary to the Supreme Court's admonitions. This case involves the sort of “novel factual context” not governed by any “clear answer” in which the Supreme Court has cautioned that extending decisions arising out of different factual contexts is improper under Section 2254(d)(1) (Van Patten, supra). As the Supreme Court has made clear, when - as in this case - the Supreme Court precedent relied upon in general in nature, “[a]pplying a general standard to a specific case can demand a substantial element of judgment” and “[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); see also Woods v. Donald, 575 U.S. 312, 317 (2015) (explaining that “where the precise contours of [a] right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims”) (internal quotation marks and citations omitted). The Supreme Court also has made clear that state courts act unreasonably within the meaning of Section 2254(d)(1) when they fail to extend a generalized rule to a new factual situation “if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement' on the question. Woodall, 572 U.S. at 427 (citation omitted). While it is possible a fairminded jurist might find Petitioner's arguments about why the Probation Violation Case decision constituted an “acquittal” of the pending Criminal Case charges to be persuasive, it is equally possible, if not likely, that other fairminded jurists could disagree given the lack of clear Supreme Court precedent in this respect. At a minimum, there exists a “possibility for fairminded disagreement, ” which means that Section 2254(d)(1) is unsatisfied. Richter, 562 U.S. at 103. Under these facts and the existing state of Supreme Court precedent, it was not objectively unreasonable for the California Supreme Court to decline to find that the decision in the Probation Violation Case constituted an acquittal, for double jeopardy and/or collateral estoppel purposes, of the charges pending in the Criminal Case. Federal habeas relief, therefore, is precluded based on the double jeopardy claim alleged in Ground One.

II. Ground Three: The Ineffective Assistance Issue

As a subclaim of Ground Three, Petitioner argues that his trial counsel's failure to make a double jeopardy objection to retrial violated the Sixth Amendment's guarantee of the effective assistance of counsel. Petitioner asserts that there was no reasonable strategic reason for trial counsel not to have made such an objection and that, had it been made, the trial court “would have been required to sustain his objection” and he would not have been retried and convicted. (Mem. at 32.)

A. The Clearly Established Federal Law

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court clearly established the legal standards for an ineffective assistance of counsel claim. Under the Strickland test, a petitioner must demonstrate that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced his defense. Id. at 687-88. As both prongs of the Strickland test must be satisfied to establish a constitutional violation, the failure to satisfy either prong requires the denial of an ineffective assistance claim. See Id. at 687.

The first prong of the Strickland test - deficient performance - requires a showing that, in light of all the circumstances, counsel's performance was “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690; see also Richter, 562 U.S. at 105 (the “question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms,' not whether it deviated from best practices or most common custom”). Judicial scrutiny of counsel's performance “must be highly deferential, ” and a reviewing court must guard against the distorting effects of hindsight and evaluate the challenged conduct from counsel's perspective at the time in issue. Strickland, 466 U.S. at 689. There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id.; see also Pinholster, 563 U.S. at 189. “[F]ederal courts are to afford ‘both the state court and the defense attorney the benefit of the doubt.'” Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (per curiam) (citation omitted). The burden to show deficient performance “rests squarely on the” petitioner, and “the absence of evidence cannot overcome the ‘strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'” Burt v. Titlow, 571 U.S. 12, 22-23 (2013).

The second prong of the Strickland test - prejudice - requires establishing a “reasonable probability that, but for counsel's unprofessional errors, the result of the [trial] would have been different.” Strickland, 466 U.S. at 694. A reasonable probability is a probability “sufficient to undermine confidence in the outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112. The court must consider the totality of the evidence before the jury in determining whether a petitioner satisfied this standard. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010).

“The standards created by Strickland and § 2254(d) are both ‘highly deferential,' and when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105 (citations omitted); see also Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (review of a Strickland claim pursuant to Section 2254(d)(1) is “doubly deferential”). To succeed on an ineffective assistance of counsel claim governed by Section 2254(d), the petitioner must show that the state court “applied Strickland to the facts of his case in an objectively unreasonable manner.” Bell v. Cone, 535 U.S. 685, 699; see also Richter, 562 U.S. at 105 (the “question is not whether counsel's actions were reasonable, ” but rather, “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard”). “[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Mirzayance, 556 U.S. at 123; see also Richter, 562 U.S. at 105 (given the general nature of the Strickland standard, “the range of reasonable applications [of the Strickland standard] is substantial”).

B. Deference To The State Court Decision Is Required.

The ineffective assistance claim alleged perfunctorily at the conclusion of Ground Three rests on the premises that: (1) the Probation Violation case decision constituted an acquittal of the Criminal Case charges for double jeopardy purposes; and (2) therefore, the trial court necessarily would have sustained a double jeopardy-based objection to retrial, had trial counsel made one, and then dismissed the Criminal Case. Neither premise is persuasive.

As explained earlier, Petitioner has not shown that the issuance of the Probation Violation Case decision had a double jeopardy effect with respect to the Criminal Case. Petitioner has not proffered any tenable basis for finding that trial counsel should have believed that, under existing law, a double jeopardy objection was warranted or required. It is not deficient performance to fail to take an action that is not warranted in law or fact. See Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (“Failure to raise a meritless argument does not constitute ineffective assistance.”); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“the failure to take futile action can never be deficient performance”); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (“A lawyer's zeal on behalf of his client does not require him to” take meritless action). The proverbial throwing spaghetti against the wall in the hope that something will stick approach is not required by the Sixth Amendment and the first Strickland prong.

The second Strickland prong also is not met, because there is no reasonable probability that the outcome here would have been different had trial counsel had objected to retrial on double jeopardy grounds. See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 375, (1986) (omitted action must be shown to be meritorious to support an ineffective assistance of counsel claim); James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (“Counsel's failure to make a futile motion does not constitute ineffective assistance of counsel.”). The trial judge's comments made after she rendered her decision in the Probation Violation Case make clear that a double jeopardy objection would not have prevailed. The trial judge twice indicated that, should Petitioner be convicted at his retrial in the Criminal Case, she might have to revisit her Probation Violation Hearing decision and find that Petitioner had violated probation. [RT1 260, 263-64.] Given the trial judge's view that her Probation Violation Case decision was not necessarily final or dispositive on the probation violation question, it defies belief that the judge would have found that this same potentially ephemeral decision should have a dispositive double jeopardy/acquittal effect on the Criminal Case charges. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (to show prejudice under Strickland based on failure to file a motion, a petitioner must show that the motion would have been granted).

The state court's rejection of the ineffective assistance subclaim made at the end of Ground Three was not contrary to or an unreasonable application of the Strickland test. Accordingly, Section 2254(d)(1) precludes granting federal habeas relief based on this portion of Ground Three.

III. Ground One: Actual Innocence

In his first claim, Petitioner asserts that he has been deprived of his Fifth, Eighth, and Fourteenth Amendment rights to due process and to be free from cruel and unusual punishment, because he is actually innocent of the conviction crime of being a felon in possession of a firearm. Ground One presents what is known as a “freestanding” claim of actual innocence, i.e., a claim that federal habeas relief is required - independent of whether or not constitutional error occurred - purely because the petitioner claims to be actually innocent, as demonstrated by evidence not presented at trial.

To support Ground One, Petitioner relies on some things that existed prior to trial, such as records of witness interviews and pretrial motions and news stories, and some that did not, such as declarations by family members. He also relies on his contention that his first trial ended in a mistrial when additional evidence was presented to the jury that was not presented at his retrial, at which he was convicted. Accordingly, before addressing the merits of Ground One, the Court will examine the evidence presented at both trials and the assertedly new evidence proffered in this case.

A. Background: First And Second Trials And New Evidence

1. The First Trial

Petitioner's first trial occurred in June 2009. The prosecution's primary witness was police officer Lazaro Ortega, who testified, in pertinent part, as follows. On December 4, 2008, Officer Ortega was a member of the Hollywood Gang Enforcement Detail. [RT1 38.] He and his partner were in their police vehicle on that date approaching 453 North Kingsley and from about 20-25 feet away, Officer Ortega observed Petitioner (who he knew from prior contacts) standing on the sidewalk close to two other people. A female was sitting on cement steps directly in front of Petitioner, and they were facing each other. Another male was standing on the sidewalk with his back to Officer Ortega and his partner. Officer Ortega did not see anyone else in the vicinity. [RT1 39-41, 50-51, 56.] The officers shone the vehicle's spotlight on Petitioner and the other two people, who looked in their direction. The officers started to get out of the vehicle, which by now was about ten feet from the three people, and Petitioner leaned forward toward the seated female and reached into his waistband. [RT1 41-42, 54-56, 58-61.]

The officers announced themselves as police officers and said, “Hey, let me see your hands. Police.” [RT1 42.] Petitioner simultaneously pulled a black object out of his waistband and tossed it toward the female, who was holding her purse open, and it landed in her open purse. [RT1 41-44, 51.] The officers walked toward Petitioner, who glanced at them again and then immediately ran westbound towards a hallway leading into the apartment complex at the 453 Kingsley location. Officer Ortega started to run towards Petitioner but stopped and held the hallway, so as not to get separated from his partner. Officer Ortega saw Petitioner turn left and go upstairs to an apartment. [RT1 42, 49.]

At that point, the other male present moved in an apparent attempt to block the officers' view of the female. [RT1 70-72.] She was sitting on the steps, looked “really frantic” and started trying to close the zipper on her open purse. Officer Ortega asked her what she was doing and she immediately concealed the purse under her legs. [RT1 44, 61-63.] Officer Ortega grabbed the purse, opened it up, and saw a black semiautomatic handgun at the bottom of the purse. [RT1 45, 63.] While the officers waited for additional units to arrive, Officer Ortega took the purse to his police vehicle for safekeeping in the trunk, where he had gloves. He removed the gun's magazine and ejected the single round. Prior to then, the handgun had been ready for live fire. [RT1 46-49.]

Other units arrived within five minutes. [RT1 49, 66.] Two other officers went inside the apartment complex and brought Petitioner down to the alcove area. His mother was with him. [RT1 68-69.]

The second prosecution witness was Stacy Vanderschaaf, who testified about DNA testing performed on the handgun recovered from the female's purse. The handgun was swabbed in several sections but not completely, and the swabs were sent to an outside laboratory for testing along with a reference sample from an individual of interest (Petitioner). The lab results showed a mixture of three different people's DNA but excluded the reference sample. [RT1 80-83.] Vanderschaaf explained that it was possible for someone to have handled the gun yet have his DNA be excluded, for several reasons. First, she only swabbed certain portions of the gun, leaving unswabbed those areas that were going to be subjected to fingerprint testing, and the person could have handled the gun in unswabbed portions. Second, if the gun was handled using the palm of the hand, cells from hand palms do not have a nucleus and, thus, do not contain DNA. Third, if the gun was in a waistband, the person's DNA on the gun could have rubbed off onto other items, such as clothing. In addition, it is possible that the person might not have left enough cells on the gun for there to be collectible DNA. [RT1 81, 83-85, 92.] Vanderschaaf conceded that it was possible the person of interest never touched the gun. [RT1 86, 93.]

The parties stipulated that Petitioner previously had been convicted of a felony on October 4, 2007. They also stipulated that the handgun had been examined for fingerprints and that no latent prints of value had been developed. [RT1 26, 93.]

The defense presented five witnesses to the jury: Robert Hernandez, an evidence and property custodian with the Los Angeles Sheriff's Department; Margarita Xatruch, Petitioner's mother; Yesenia Gonzalez, Petitioner's partner and the mother of his children; Marta Alfaro, Gonzalez's mother; and Eunice Paz, Petitioner's friend. Hernandez appeared simply to bring and identify the clothing Petitioner had been wearing when he was booked, which the defense had subpoenaed. [RT1101-02.]

Margarita Xatruch testified that on December 4, 2008, she was at Yesenia Gonzalez's apartment, with Gonzalez, Petitioner and their children, along with Gonzalez's mother and brother. [RT1104.] Petitioner left with his one and a half year old son to go buy an ice cream from a nearby ice cream truck, because the child heard the truck and was crying to get ice cream. Five to ten minutes later, Petitioner returned with nachos for the older child and ice cream. Petitioner was holding his young son. Xatruch did not look out the window while Petitioner was gone. [RT1105-06, 113.] While they were eating ice cream, Petitioner looked out the window and said he saw the police “down there.” [RT1106.] Xatruch immediately went downstairs, because her other son (Edwin) and “Janet” were down there. When Xatruch got downstairs, Edwin was standing facing the wall with his hands behind him and Janet was sitting down. The police told her that they were “just checking” as a normal matter of course. [RT1106-07.] There were two police officers present when Xatruch got downstairs, although three arrived thereafter. [RT1110.]

Everyone else who had been in Gonzalez's home then came down, except Petitioner. The police searched Edwin and an officer then had Janet stand up, looked in her purse with a flashlight, and had her sit down again. The police officer took the purse to the back of the police car, put on some gloves, opened the purse and started to search it, then came back to Janet, looking upset, and handcuffed her. [RT1108-09.] Xatruch saw Petitioner looking down from the upstairs window. The police went upstairs and brought Petitioner down in handcuffs. [RT1110-11.]

Marta Alfaro, Gonzalez's mother, testified next. Alfaro confirmed that Gonzalez and Petitioner, with their children and Xatruch, were present in the apartment on December 4, 2008. [RT1115.] After one of the children started crying about wanting ice cream, Petitioner left for “about two minutes” with the baby and returned with nachos and ice cream. [RT1116.] Petitioner looked out the window and said something to his mother, who left the apartment and went downstairs. About two minutes later, Alfaro went downstairs by herself, although Gonzalez came down soon after. Only Petitioner and the children stayed upstairs. [RT1117-18, 121-23.] There were two girls present, “Chunie” and her friend “Judy.” No. one else was present besides Xatruch and the police officers. Chunie was sitting on the stairs. [RT1118-19.] Alfaro then changed her prior testimony and said that Petitioner's brother was present and the police “had him by the car.” [RT1119.] A police officer went over to Chunie and opened and closed her purse while shining a light, then took it to the police car and put it on top of the trunk. He then opened the purse, put gloves on, searched it, and pulled out a gun. [RT1119.] The officer had Chunie get up and then police officers went upstairs and brought Petitioner down. [RT1120-21.]

Yesenia Gonzalez testified that Petitioner is her partner and the father of her children. [RT1125.] She also confirmed that on the day in question, she, Petitioner and their children, as well as Alfaro and Xatruch, were present in the apartment when her son began crying for ice cream and Petitioner picked him up and took him to get ice cream. Petitioner returned after two minutes, holding the child, and had nachos. [RT1126-27.] Petitioner looked out the window, said something to his mother, and she went downstairs. [RT1127-28.] Gonzalez and Petitioner stayed upstairs. Gonzalez looked out the window and saw “Edwin” (Petitioner's brother) under arrest, “Janet” stand up, and the police “flash[]” her purse. An officer took Janet's purse to a police car and placed it on top, started digging in it, and pulled a weapon out. [RT1128, 131-33.] Gonzalez did not leave the apartment until the police came and banged on the door and told them to get out. [RT1132.]

Eunice Paz described herself as a friend and neighbor of Petitioner, who lived across the street. [RT1135.] On the day in question, Paz was on her balcony and could see Petitioner's apartment building. She saw Petitioner come downstairs with a baby in his arms and cross the street to go to the ice cream truck beneath her balcony. He bought an ice cream cone and nachos, gave his son the cone, walked back across the street, said hello to his brother Edwin for a “few seconds, ” and then went back inside his building. Paz did not see Petitioner take an item and toss it into a purse. Janet was there with Edwin. The police were not there. [RT1136-38, 140-41, 144.] About two minutes later, a police car pulled up. The officers got out of the car and searched and handcuffed Edwin. The officers were talking to Janet and then another police car pulled up. [RT1141-42.] Paz went downstairs and crossed the street. Xatruch and Alfaro came downstairs. After the two women arrived, an officer grabbed Janet's purse, unzipped it, shone a flashlight, and left it there. He left and came back and placed the purse “right next to” Paz, then grabbed a glove and searched it. [RT1142-43.] On cross-examination, Paz changed her testimony and stated that the first search of the purse happened before the second set of officers arrived. [RT1151.] Paz also testified that her memory at the June 2009 trial regarding the events at issue was better than it was five months earlier on January 2, 2009, a month after the incident, when she was interviewed by a defense investigator. [RT1146.]

The prosecution called as a rebuttal witness Ruben Castellanos, who interviewed Paz for the defense on January 2, 2009. [RT1175.] At that time, Paz told him that she saw Petitioner come out of his apartment with a baby in his arms, purchase nachos from an ice cream truck, and then stand around outside eating the nachos. [RT1176.] According to Paz, the baby started crying and simultaneously police officers arrived, and Petitioner went back into the apartment. [RT1176-77.]¹⁷

17 The prosecutor also attempt to ask Castellanos about Xatruch's interview, including her statement reflected in his report that Petitioner was outside with his child when the police arrived. Ayala objected and the trial court disallowed the questioning, because when Xatruch had testified earlier, she had not been asked about her statements to the investigator and she no longer was available for such questioning. [RT1176-86.] As discussed below, this evidence did come in at the second trial.

The prosecutor's closing argument was, admittedly, “brief.” [RT1199.] The prosecutor relied almost entirely on the testimony of the two prosecution witnesses, labelling the case one that depending entirely on “what happened when the police pulled up.” [RT1199-203.] He addressed the testimony by the defense witnesses only to argue, cursorily, that Xatruch, Alfaro, and Gonzalez testified that they could not see, and thus did not know, what happened when the police pulled up. [RT1 202-03.]

Among other things, Petitioner's counsel argued that the shorts worn by Petitioner - which were shown to the jury - could not have supported a gun being held in the waistband. Defense counsel also argued it defied belief that the two officers would have allowed Petitioner to run away after he dropped something into the purse. [RT1 212-13.]

The jury deliberated for two days before a mistrial was declared. The jury later indicated that it had split seven to five in favor of not guilty. [RT1 245-52.]

2. The Second Trial

The prosecution presented the same two witnesses at Petitioner's second trial: Officer Ortega; and criminalist Vanderschaaf. Their testimony was so substantially similar to that they gave at the first trial that the Court will not describe it here.

Defense witnesses Gonzalez, Paz, and Xatruch¹⁸ again testified, although prior defense witness Alfaro (Gonzalez's mother) did not, nor did the witness who responded to the subpoena for Petitioner's clothing. As with the prosecution witness testimony, the testimony of Gonzalez did not differ materially from her testimony at the first trial, and thus, will not be recounted here. The testimony of Xatruch and Paz, however, did vary from their prior testimony.¹⁹ While Xatruch interviewed by the defense investigator on January 2, 2009. [RT2 403-04.] After the three defense witnesses testified, ²⁰ the parties stipulated that Castellanos' reports of his interviews with Paz and Xatruch would be admitted into evidence.²¹ [RT2 603-05; see FAP Ex. 12.] As in the First Trial, pursuant to the parties' stipulation, the jury was told that Petitioner had a 2007 felony conviction. [RT2 366.]

18 At the first trial, the interpreter spelled the name of Petitioner's mother as “Xatruch.” [RT1103 ] At the second trial, the interpreter spelled the name as “Xaturch” [RT2 406], and that was how it was reported in the transcript. In a May 10, 2013 declaration discussed infra, the name is spelled as “Xatruch.” Accordingly, the Court has utilized the “Xatruch” spelling

19 Paz again testified that both searches of Jeanette's purse happened after the second police car arrived [RT2 387, 394, 398], as she did in her initial testimony at the first trial, although at the first trial, on cross-examination, Paz changed her testimony to be that the first search of the purse happened before the additional police officers arrive. At the second trial, Paz testified that Gonzalez and her children came down from the apartment before Paz left her balcony and went to the street and before police officers brought Petitioner down from his apartment [RT2 388, 394-96] - something she did not state at the first trial. On cross-examination, however, Paz stated that Gonzalez and the children came down after Paz had left the balcony and crossed the street, although she confirmed that this happened before the police officer conducted a second search of the purse. [RT2 399-402.] In addition, Paz expanded on her prior testimony about the second search of the purse, testifying that the officer: brought the purse over to “the sidewalk right where [Paz] was at”; placed the purse on the sidewalk by her and left it there, while he went over to his car, opened the trunk, and grabbed a glove; he returned and searched the purse; and then the officer took the purse and placed it on top of his police car and apparently searched it again. [RT1 402-02.] Contrary to her first trial testimony, Paz now asserted that her memory at trial was “the same” as it was it was when she was At the first trial, the name of the woman with the purse was reported variously as “Janet” or “Chunie, ” but at the second trial, her name was reported as “Jeanette, ” which appears to have been her correct name The Court, thus, will use “Jeanette” hereafter had testified at the first trial that Gonzalez came downstairs “a little after” Xatruch did and before any officer had dealt with the purse [RT1108], at the second trial, Xatruch testified instead that Gonzalez remained upstairs in the apartment the entire time until the police officers went up to the apartment and brought Petitioner down. [RT2 411, 413-14.] On cross-examination, Xatruch was asked about a statement in the January 2, 2009 witness interview report of a defense investigator, which indicated that she told the investigator that “[w]hile [Petitioner] was outside with his child, ” she saw the police and went out to find out what was going on. [RT2 413; see FAP Ex. 12.] Xatruch denied having made that statement to the defense investigator. [RT2 413.]

20 Petitioner also called Jeanette Dominguez (the woman sitting on the steps with the purse) as a trial witness. Outside the presence of the jury, and on the advice of her appointed counsel, she invoked her Fifth Amendment privilege to remain silent. Thus, she did not testify in front of the jury. [RT2 601-03.]

21 As discussed in connection with Ground Two, the version of the Xatruch interview report admitted was redacted to omit portions.

In closing argument, the prosecutor again gave a brief argument but changed his tack from the prior trial. From the outset, he emphasized the discrepancies between the August 2009 testimony of Paz and Xatruch and their statements made in early January 2009 to a defense investigator. [RT2 620-22.] He argued that all of the defense witnesses were “biased” given their close relationships with Petitioner. He also argued that their story - that when the police drove up, Petitioner already had been inside the upstairs apartment for a while and only Petitioner's brother and his girlfriend were present outside, and they immediately arrested the brother and searched the girlfriend's purse and found a gun, and then decided to go into the apartment building to an upstairs apartment to arrest Petitioner - did not make sense. As the prosecutor put it, why would the police look in the girlfriend's purse and, upon finding a gun in it, then go arrest someone who was not even present? [RT2 622-23.] The prosecutor asserted that Officer Ortega's version of events “makes sense, ” unlike the “inconsistent stories” provided by Petitioner's family members and friends. [RT2 623-25.]

In his closing argument, Petitioner's counsel made much of a discrepancy between the police report and Officer Ortega's testimony regarding the direction Petitioner was facing when the officers drove up. [RT2 627-28.] Counsel argued that it was not believable that: Petitioner would pull a gun out of his waistband with police officers ten feet away; Officer Ortega saw what he claimed; or that officers would not have chased after Petitioner when he ran away. [RT2 629-32.] Counsel argued that, even if the officer did see Petitioner toss an “object” into the woman's purse, there was no reason to believe it was a gun, given that the officer could not describe all of the items found in the purse and that Petitioner's DNA and fingerprints were absent from the gun. [RT2 632-34.] Counsel again asserted that it was improbable that the gun could have been held in the waistband of the type of baggy shorts Petitioner was wearing. [RT2 635, 637.]

The jury deliberated for approximately five hours total and then found Petitioner guilty. [CT 142, 167.]

3. The New Evidence

To support his assertion of actual innocence, Petitioner argues that the evidence at trial, coupled with various items of evidence that were not presented at his first or second trials, proves that he is innocent. This new evidence falls into two categories

a. New and Nontrial Evidence Contradicting Officer Ortega's Testimony

The prosecution's case against Petitioner rested on the earlier described trial testimony of Officer Ortega. Petitioner contends that Officer Ortega's version of events presented at trial does not make sense, was contradicted by the testimony of the defense witnesses, is not supported by physical evidence, and is contradicted by evidence not presented at trial, which consists of post-trial declarations from his mother, his half-brother, and his sister, as well as evidence available at the time of, but not presented at, trial. [Mem at 8-10.] This “new” evidence includes the following:

Petitioner first proffers the defense investigator's report regarding a January 2009 telephone interview he conducted of Wendy Gutierrez, who lived across the street from Petitioner's apartment. Gutierrez told the investigator that she observed the following: Petitioner walked across the street with his young son and bought nachos; he returned to his apartment and, on the way back, nodded to Jeanette Dominguez in a “simple greeting, ” who was seated outside on the stairs; a short time after Petitioner went back inside, police officers arrived and spoke to Jeanette and examined her purse; another officer was speaking to “Edwin, ” who was handcuffed; an officer took Jeanette's purse and put it in the trunk of his car; and additional officers arrived, went into the apartment building, and exited with Petitioner, who was handcuffed. [FAP Ex. 10.]

Petitioner next proffers two declarations made by Edwin Gonzales Ochoa, Petitioner's half-brother (“Edwin”). In an April 8, 2013 Declaration, Edwin states that he was standing outside the apartment building with his then-girlfriend Jeanette Dominguez (“Jeanette”). Petitioner came downstairs with his son in his arms. At some point, Petitioner saw a police car arrive and went back upstairs. Edwin did not see Petitioner put a gun in Jeanette's purse. [FAP Ex. 1 ¶¶ 1-2.] The police asked Edwin about the guy who just left. Edwin, Jeanette, and Petitioner were arrested and taken to the police station. The prosecutor later rejected the case as to Edwin and Jeanette. [Id. ¶ 5.]²²

22 An investigator employed by Petitioner's present counsel - Roberto Loeza - has submitted a May 23, 2013 declaration in which he states that he met with Edwin, who was incarcerated, and had him sign a declaration that Loeza had prepared (presumably, the April 2013 Declaration), but because of time constraints, Loeza could not include in that declaration all that they discussed. [FAP Ex. 4 ¶¶ 1-2.] In his Declaration, Loeza describes additional statements he claims were made by Edwin to him, as well as statements made by a third party to Edwin and then conveyed by Edwin to Loeza. [FAP Ex. 4 ¶¶ 18-32.] This recitation, of course, consists of hearsay and double hearsay. In any event, Petitioner thereafter submitted a second declaration signed by Edwin on May 22, 2013, which is discussed infra and which the Court has considered. Edwin states therein that the second declaration was made because he and Loeza ran out of time during their first meeting, and Edwin wanted to include more information through the second declaration. Given that Loeza's Declaration consists of hearsay and is duplicative of the second declaration made by Edwin, the Court will not consider the Loeza Declaration to the extent that is purports to recount statements made by Edwin.

In a second Declaration dated May 22, 2013, Edwin states that on the evening in question, Petitioner came downstairs, with his son in his arms, to where Edwin and Jeanette were hanging out. “At some point, ” Petitioner said that a police car was pulling up behind them, and he turned and went back upstairs. [Dkt. 83, Ex. 30 ¶ 4.] Edwin states that Petitioner did not pull out a gun or put anything in Jeanette's purse, but Edwin knew that Jeanette had a gun in her purse. [Id. ¶¶ 5-6.] One officer asked Jeanette if she was on probation and she responded that she did not know. The officer picked up her purse, said it was “heavy, ” and opened it and found the gun. [Id. ¶¶ 9-10.] At the station, Edwin could hear the police telling Jeanette to tell the truth “about whose gun it really was, ” and Jeanette later told Edwin that she had told the officers it was her gun. An officer called Edwin a “‘bitch'” for letting his “girl take the rap.” [Id. ¶¶ 12-13.]

Petitioner also proffers evidence about statements allegedly made by Jeanette, all of which rest on hearsay or multiple layers of hearsay. In a May 2013 Declaration, Petitioner's mother (Xatruch) states that, on several occasions, Jeanette told Xatruch she was surprised that Petitioner had been charged, because the gun was hers and he had nothing to do with it. [FAP Ex. 2 ¶ 11.] In a May 2013 Declaration, Petitioner's sister, Martha Ochoa (“Martha”), states that Edwin and Jeanette told her that Jeanette often had a gun in her purse. [FAP Ex. 5.] Petitioner also proffers statements made by Xatruch and Martha in the Declarations that, essentially, seek to convey that Jeanette was a bad person, including that: Xatruch saw Jeanette high on drugs and wearing expensive items that she could not afford, and Xatruch “heard” - she does not say how or from who - that Jeanette obtained things by breaking into houses; Martha knew that Jeanette had a troubled relationship with her mother and had been kicked out of her house due to drug use; Edwin and Jeanette told Martha about burglaries Jeanette had committed to obtain money for drugs; and Martha had observed Jeanette with large amounts of cash, foreign currency, and exotic coins. [FAP Ex. 2 ¶12; FAP Ex. 3 ¶¶ 4-5.]

Petitioner also proffers a motion his trial counsel made prior to his first trial, which contained a copy of Jeanette's signed statement given to the police at the time of her December 4, 2008 arrest. The motion asserted that Jeanette's statement, while hearsay, was admissible as a declaration against penal interest. [FAP Ex. 17.] Jeanette's statement is handwritten and appears to read: “I was with a friend hanging out, things didn't go as planned he bocked [sic]²³ it, I was left with gun to hold and stranded. Only place I knew to go and was familiar with so that I ccin [sic] use a phone, was at the place were [sic] I was arrested.” [Id. at #464.] Petitioner's counsel argued that this statement indicated that Jeanette was given the gun somewhere else and then went to the Kingsley address, where she was found with it. [RT115.] The trial court disagreed, finding that Jeanette appeared to be saying that her friend gave her the gun at the Kingsley location and then ran and left her with the gun, i.e., “‘He was the one with the gun. He gave it to me. I was stuck with it.'” [RT113, 15, 16.] The trial court found that the statement did not satisfy the declaration against penal interest requirements and was inadmissible. [RT116-18.]

23 Both the trial court and Petitioner's counsel interpreted this word to be “booked, ” as in “he booked it.” [RT112.] Given the context, that interpretation appears both reasonable and correct.

In addition, Petitioner proffers a new assertion by Xatruch, which was not included in her testimony at the first trial and the second trial. In her 2013 Declaration, Xatruch asserts that when Officer Ortega started to search Jeanette's purse for the first time, Xatruch could “clearly see” that the gun was at the “very bottom of the purse.” [FAP Ex. 2 ¶ 7.] Petitioner contends that this asserted fact proves that the gun “could not have been thrown into” the purse and that Officer Ortega therefore was lying. [Traverse at 22.]

b. New Evidence of Police Motive to Target Petitioner

At Petitioner's first trial, the prosecutor filed a motion to exclude evidence of a civil case that Petitioner had brought against the Los Angeles Police Department (LAPD). That motion is not contained in the trial and state habeas record. Petitioner's counsel agreed that there would be “no mention of that.” [RT118.]

Here, to demonstrate his innocence, Petitioner argues that the police “had a motive to target him.” He principally relies on an alleged civil case he brought against the LAPD officers who arrested him for a 2008 murder and attempted murder, charges that later were dropped by the District Attorney's Office after reviewing a video that appeared to exonerate him. Petitioner alleges that the officers possessed the exonerating video from the start and suppressed it and that the civil action was pending at the time of the incident at issue here. [Mem. at 10-11.] To support these allegations, Petitioner has proffered a copy of a news story about the dismissal of the charges [FAP Ex. 23] and a printout from Google Maps [FAP Ex. 21.] In addition, Petitioner proffers a copy of a California Government Code tort claim submitted to the City of Los Angeles for money damages on or about October 17, 2008, which was denied on October 23, 2009. [FAP Ex. 18.] Petitioner, however, has not produced any evidence of the civil lawsuit he alleges. Moreover, given that his government tort claim - the necessary precursory to any state law-based lawsuit - was still pending on December 4, 2008, it is unclear how he could have had a civil action pending at that time.

To further support this assertion, Petitioner proffers the 2013 Xatruch Declaration, in which Xatruch states that: she felt that the officers at the December 4, 2008 incident were targeting Petitioner due to a civil suit he had filed against the LAPD and that police officers had harassed Petitioner previously because of the suit; and it appeared to her that the arresting officers knew who Petitioner was and were targeting him. [FAP Ex. 2 ¶ 10.] Petitioner also proffers the defense investigator's report from the January 2, 2009 interview of Xatruch, which reports her statements that: an officer looked at the apartment window where Petitioner was looking out and “recognized him as someone who has a lawsuit against the police”; and the officer told his partners he had seen Petitioner put something in the purse. [FAP Ex. 7.] Petitioner also proffers the defense investigator's report from the January 2, 2009 interview of Alfaro, which reports her statement that Petitioner was looking out the window when one of the officers said, in Spanish, “I know that guy. He has a lawsuit against us.” [FAP Ex. 8.]

Further, Petitioner relies on the 2013 declarations of his half-brother Edwin, who states that: when Petitioner left the scene, officers asked him whether that was Petitioner; Edwin believed that the officers knew Petitioner because of the civil case he had filed; and an unspecified officer told the brother that Petitioner “had tried to sue the department.” [FAP Ex. 1 ¶ 3; Dkt. 83, Ex. 30 ¶ 7.] Edwin further states that, on the way to the station, an officer mentioned Petitioner's lawsuit and said that Petitioner had been asking for trouble. [Id. ¶ 11.]

In addition, Petitioner notes that in 2007, he was charged with criminal counts that included battery on a peace officer and that he pled guilty to a charge of resisting an officer. Petitioner alleges, on information and belief, that the officer-victim was Officer Gabriel Blanco and that he was the same Officer Blanco who participated in the December 4, 2008 incident and arrest of Petitioner. To support this assertion, Petitioner relies on three items. First, he notes a page in the police report for the December 4, 2008 incident, which notes that an Officer Blanco (#36365) arrived with the second unit and knew that Petitioner lived in an apartment in 453 N. Kingsley Dr. based on his and another officer's “prior arrest of” Petitioner. [CT 57.] Second, Petitioner proffers minutes from Los Angeles Superior Court No. BA326153, which apparently was the 2007 criminal case he mentions, although they do not mention anything about an Officer Blanco. [FAP Ex. 19.] Third, Petitioner proffers a copy of a District Attorney's Office master witness list for the second trial of the underlying criminal case here, which lists an Officer Blanco, #36365, as on call. [FAP Ex. 14.]

B. The Governing Federal Law

Under existing Supreme Court precedent, it is an open question if a freestanding actual innocence claim, whether raised as a due process claim and/or Eighth Amendment claim, is cognizable in a federal habeas action. The Supreme Court has repeatedly elected to leave this issue unsettled. See McQuiggin, 569 U.S. at 392 (“We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”); see also District Attorney's Office v. Osborne, 557 U.S. 52, 71 (2009) (opining that whether a “federal constitutional right to be released upon proof of ‘actual innocence'” “exists is an open question” under the Supreme Court's precedent); House v. Bell, 547 U.S. 518, 555 (2006) (expressly declining to “resolve” the question of whether “freestanding actual innocence claims are possible”); Herrera v. Collins, 506 U.S. 390, 399, 404-05 (1993) (opining that: “[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding”; and “[w]e have never held that [the miscarriage of justice exception to procedural bars to habeas relief as based on factual innocence] extends to freestanding claims of actual innocence”).

In Herrera, the Supreme Court acknowledged the possibility that a freestanding actual innocence claim might warrant federal habeas relief in a capital case, but stressed that it would be only upon an “extraordinarily high” and “truly persuasive” threshold showing. 506 U.S. at 417. Thirteen years later in House, another capital case, the Supreme Court expressly declined to answer the question left unresolved in Herrera, finding that although the petitioner's showing as to his asserted actual innocence had satisfied the gateway standard for proceeding on a procedurally defaulted claim, ²⁴ he had not satisfied the “extraordinarily high” burden for a “hypothetical freestanding innocence claim” “whatever” that burden might be. 547 U.S. at 555. Subsequently in Osborne, a civil rights action brought by a state prisoner seeking access to trial evidence to submit it for DNA testing, the Supreme Court declined to find that due process was violated by the state procedures available to the plaintiff for obtaining such testing. The Supreme Court also declined to resolve the plaintiff's assertion that he had a federal constitutional right to be released if he proved he was actually innocent, because such a claim, if cognizable, would sound in habeas rather than civil rights. In so concluding, the Supreme Court again opined that the existence of a freestanding actual innocence claim is “an open question” and noted “the difficult questions such a right would pose and the high standard any claimant would have to meet.” 557 U.S. at 71. The Ninth Circuit also “ha[s] not resolved whether a freestanding actual innocence claim is cognizable in a federal habeas corpus proceeding in the noncapital context, although [it has] assumed that such a claim is viable.” Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014).²⁵ The Ninth Circuit has opined that if such a claim is cognizable, the petitioner must go beyond demonstrating doubt about his guilt and must affirmatively prove that he is probably innocent. See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc); see also Jackson v. Calderon, 211 F.3d 1148, 1165 (9th Cir. 2000). Requiring affirmative proof of innocence is appropriate, because a freestanding claim of innocence seeks relief notwithstanding a constitutionally valid conviction. Carriger, 132 F.3d at 477.

24 While the viability of asserting actual innocence as a freestanding, extant basis for federal habeas relief remains an open question, in contrast, it is well established that habeas petitioners may avoid a procedural bar to pursuing habeas relief by a showing of actual innocence meeting the standards established in Schlup, supra. The latter is what is known as a “gateway claim” (House, 547 U.S. at 554), namely, using asserted actual innocence as a basis for being allowed to seek federal habeas relief at all, when pursuing relief otherwise would be procedurally barred. See, e.g., McQuiggin, 569 U.S. at 396-97 (a properly supported showing of actual innocence can allow a petitioner to avoid untimeliness); Schlup, 513 U.S. at 319-22, 327 (a prisoner who asserts actual innocence as a gateway to proceeding on defaulted claims must establish that, in light of new evidence, “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt”). House made clear that, whether or not there is such a thing as a freestanding actual innocence claim, the standard for that type of claim is more demanding than that applicable to gateway claims. House, 547 U.S. at 554-55 (a freestanding actual innocence claim “requires more convincing proof of innocence than Schlup”).

25 Of course, when a habeas claim is governed by AEDPA, “circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court'” within the meaning of Section 2254(d)(1). Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (2012) (per curiam) (citation omitted); see also Glebe v. Frost, 574 U.S. 21, 24 (2014) (per curiam) (reliance on Ninth Circuit precedent that did not arise under AEDPA, and thus did not purport to reflect clearly established Supreme Court precedent, was error) That said, circuit precedent which identifies the clearly established Supreme Court precedent and interprets it is relevant to the Section 2254(d)(1) analysis. See, e.g., Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000) (characterizing such decisions as “persuasive authority”)

Thus, under current law, neither the Supreme Court nor the Ninth Circuit has actually “determined” and held that a freestanding actual innocence claim asserted in a noncapital case is a basis for federal habeas relief on its own; at most, they have “assumed without deciding that such a claim is viable.” Morris v. Hill, 596 Fed.Appx. 590, 591 (9th Cir. Mar. 10, 2015) (also declining to “decide whether to recognize a freestanding actual innocence claim”). “The Supreme Court has never recognized ‘actual innocence' as a constitutional error that would provide grounds for relief without an independent constitutional violation.” Gimenez v. Ochoa, 821 F.3d 1136, 1143 (9th Cir. 2016).

C. Federal Habeas Relied Is Not Warranted.

Applying these principles, the Court concludes that Ground One does not warrant habeas relief, because the state court's decision was not contrary to, or an unreasonable application of, any clearly established federal law.

This Court's review of Ground One is governed at the threshold by Section 2254(d)(1). The Supreme Court has never squarely held that a freestanding actual innocence claim is a cognizable federal habeas claim, especially in the non-capital context. Indeed, despite having been presented with multiple opportunities to resolve the issue, the Supreme Court repeatedly and explicitly has declined to do so and has characterized the issue as an “open question.”²⁶

26 Petitioner objects to this conclusion, asserting that Herrera and In re (Troy Anthony) Davis, 557 U.S. 952 (2009) constitute “clearly established federal law that a substantive innocence claim is viable” for purposes of Section 2254(d)(1). Suffice it to say, the Court believes Petitioner's assertion to be wrong for the reasons set forth above. In his Objections, Petitioner also contends that a freestanding actual innocence claim cannot be subjected to the Section 2254(d) standard of review and then denied, even though the state court denied the claim on its merits. Whether or not such a rule should be adopted across the board, as Petitioner urges, the Court does not believe that existing law to date supports a ban on applying Section 2254(d) review under the facts of this case.

As a result, the state courts' rejection of Ground One cannot be contrary to, or an unreasonable application of, clearly established federal law. Moses, 555 F.3d at 760 (when “a Supreme Court decision that ‘squarely addresses the issue' in the case before the state court” is absent, there is no clearly established federal law for Section 2254(d)(1) purposes and deference to the state court decision is required) (citing, inter alia, Van Patten, 552 U.S. at 125-26, and Musladin, 549 U.S. at 77); see also Knowles, 556 U.S. at 122 (under Supreme Court precedent, it is not an unreasonable application of clearly established federal law “for a state court to decline to apply a specific legal rule that has not been squarely established by” the Supreme Court); Holley v. Yarborough, 568 F.3d 1091, 1097-98 (9th Cir. 2009) (“[c]ircuit precedent may not serve to create established federal law on an issue the Supreme Court has not yet addressed, ” and “[w]hen there is no clearly established federal law on an issue, a state court cannot be said to have unreasonably applied the law as to that issue”). “[W]here the Supreme Court has expressly concluded that an issue is an ‘open question, '” “a constitutional principle is not clearly established for purposes of § 2254.” Murdoch v. Castro, 609 F.3d 983, 994 (9th Cir. 2010) (en banc); see also Musladin, 549 U.S. at 76-77 (finding that Section 2254(d)(1) could not be found satisfied when habeas relief depended upon applying caselaw that involved “an open question in [Supreme Court] jurisprudence”); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.2008) (because the Supreme Court had expressly left an evidentiary issue an open question, the state court did not unreasonably apply clearly established federal law in finding that the challenged admission of evidence did not violate due process).

Moreover, this is an issue on which federal circuits have differed, with some flatly refusing to consider freestanding actual innocence claims given that their viability remains an open question under Supreme Court precedent to date. See, e.g., Farrar v. Raemisch, 924 F.3d 1126, 1131 (10th Cir. 2019) (opining that the Supreme Court “has never recognized freestanding actual innocence claims as a basis for federal habeas relief” and that “actual innocence does not constitute a freestanding basis for habeas relief”); Johnson v. Warden, Georgia Diagnostic and Classification Prison, 805 F.3d 1317, 1324 (11th Cir. 2015) (observing that it is “not settled” under Supreme court precedent whether a freestanding actual innocence claim “is viable” even in capital cases and that its own circuit precedent forbids granting habeas relief based on actual innocence in non-capital cases); Thomas v. Perry, 553 Fed.Appx. 485, 487 (6th Cir. Jan. 15, 2014 (finding freestanding actual innocence claim to be “not cognizable, ” citing Herrera, 506 U.S. at 400). This divergence between the Circuits only underscores that Section 2254(d)(1) cannot be satisfied here. See Meras v. Sisto, 676 F.3d 1184, 1190 (9th Cir. 2012) (finding the Section 2254(d)(1) threshold unmet when there was “extensive, reasoned disagreement” among courts regarding the question posed by the petitioner's habeas claim, thus demonstrating that “‘fairminded jurists'” not only “could disagree” (Richter, 562 U.S. at 101) but “in fact did” disagree on the issue, thereby precluding federal habeas relief); Bailey v. Newland, 263 F.3d 1022, 1032 (9th Cir. 2001) (declining to find that the state court unreasonably applied clearly established federal law “[i]n view of the difference of opinion among the courts of appeal” on a question on which the Supreme Court had not yet ruled).

Ground One rests on the premise that a freestanding actual innocence claim is viable, even though the Supreme Court - to date - has not actually so held. Section 2254(d)(1), however, precludes relief when a claim rests on a constitutional issue that the Supreme Court has declined, repeatedly, to resolve and has made clear remains an open question. For this reason alone, federal habeas relief based on Ground One is foreclosed.

In addition, even if the Court could ignore Section 2254(d)(1)'s mandate, Petitioner still must make an evidentiary showing sufficient to satisfy the demanding standards both the Supreme Court and Ninth Circuit have indicated would apply if an actual innocence claim could be considered. The determination of that question requires the Court to examine both the trial evidence and the “new” evidence proffered by Petitioner - both individually and in cumulation - in light of the following principles.

Post-trial declarations purporting to prove innocence “are to be treated with a fair degree of skepticism.” Herrera, 506 U.S. at 423 (O'Connor, J., concurring). This is especially so when they “conveniently blame” someone else as the culprit who is not available to contest the allegations, or when they “contradict each other.” Id. In addition, declarations purporting to show innocence based on hearsay statements are “particularly suspect, ” Herrera, 506 U.S. at 417, and those from friend and relatives have lesser “probative value” that those provided by third parties “with no evident motive to lie, ” House, 547 U.S. at 552. Further, “[e]vidence that merely undercuts trial testimony or casts doubt on the petitioner's guilt, but does not affirmatively prove innocence, is insufficient to merit relief on a freestanding claim of actual innocence.” Jones, 763 F.3d at 1251; see also Carriger, 132 F.3d at 476 (finding that the threshold for a freestanding claim of actual innocence “contemplates a stronger showing than insufficiency of the evidence to convict” and, instead, there must be evidence affirmatively proving that the petitioner is probably innocent). New evidence that raises a significant doubt about the petitioner's guilt is not enough. See House, 547 U.S. at 555 (evidence proffered by the petitioner that “cast considerable doubt on his guilt” not sufficient to meet the “extraordinarily high” “burden a hypothetical freestanding actual innocence claim would require”); Jackson, 211 F.3d at 1165 (rejecting a freestanding actual innocence claim even though the petitioner's new evidence “certainly cast doubt on his conviction”).

To begin, Petitioner has not personally claimed innocence; there is no declaration or other evidence from Petitioner himself. Rather, to support his actual innocence claim, he relies on the statements of family members, friends, and neighbors, some of whom already testified at trial.²⁷ Plainly, as do any relatives, Petitioner's mother (Xatruch), half-brother (Edwin), and sister (Martha) have a motive to lie, and thus, their post-trial declarations must be read with the skepticism that the Supreme Court has said is required. Moreover, as discussed below, these “new” declarations rely in substantial part on hearsay and/or on an attempt to pin blame on an absent party - factors that the Supreme Court has counseled render any such “new” evidence suspect. With this in mind, the Court turns to the evidence Petitioner contends proves his actual innocence.

27 In his Objections, Petitioner asserts that by this language in the Report, the Court somehow finds the lack of any declaration from Petitioner to be dispositive of his actual innocence claim. That is an inaccurate reading of the Report, which merely pointed out that this was a situation in which a petitioner's assertion of innocence was based on evidence from third parties rather than from the petitioner himself.

Petitioner's principal actual innocence argument is that the trial testimony of all of the defense witnesses, as supplemented by the 2013 declarations of one of them (Xatruch) and of two non-witnesses (Edwin and Martha), demonstrates that Officer Ortega was lying about what happened. However, the trial testimony of the defense witnesses was considered by the jury and obviously rejected, given its verdict. To the extent that Petitioner argues that the jury got it wrong and should have believed the defense witnesses, rather than Officer Ortega, he does not come close to satisfying the “extraordinarily high” affirmative proof of probable innocence required. Herrera, 506 U.S. at 417; Carriger, 132 F.3d at 776. The Court's task instead is to examine whether the “new” evidence proffered, in light of the trial record, satisfies those stringent standards.

Petitioner proffers the declarations of his mother and half-brother as proof that the events described by Officer Ortega did not occur. Xatruch's Declaration repeats much of what she testified to at trial, including that Petitioner already was upstairs in the apartment before the police arrived, although she adds some new details to which she did not testify and which Petitioner contends show that Officer Ortega was lying.²⁸ Xatruch states that when Officer Ortega first looked into Jeanette's purse, Xatruch observed the gun at the “very bottom” of the purse. Petitioner contends that Xatruch's observation proves he could not have tossed the gun into the purse, and thus, Officer Ortega lied when he testified that he saw Petitioner do so. This contention is unpersuasive, to put it mildly. An object with the weight of a gun tossed into a flexible object like a purse easily could sink to its bottom, particularly when, as here, the purse has been “grabbed” and moved before being searched [RT2 410]. Xatruch also states that: police officers saw Petitioner in the apartment window and asked who he was; she told them it was Petitioner; and the officers said they wanted to speak with him, over her protests that “he had nothing to do with what was happening downstairs.”²⁹ Even crediting this statement, it also does nothing to cast doubt on Petitioner's guilt. Officer Ortega testified that Petitioner ran upstairs as the two officers who first arrived approached the building. Given this circumstance, it is not surprising that officers who saw Petitioner in the window observing the events might wish to speak with him. Xatruch's new and fuller description about this event does not detract from Ortega's testimony in any way and, if anything, could be said to tend to support it. In any event, both Xatruch's new statement in this respect and Ortega's testimony can be true.

28 Xatruch testified twice at her son's two trials in 2009, yet failed to mention these matters in her testimony. That she did not do so and waited four years to mention them raises some reliability concerns. See Herrera, 506 U.S. at 423 (labelling as “suspect” affidavits that are produced after a long delay and without a reasonable explanation for the delay) (O'Connor, J., concurring).

29 At the first trial, Xatruch started to testify that Petitioner was looking down from the window and “the police asked me who, ” but an objection was sustained. She then was allowed to testify that she saw Petitioner looking down from the window and that the police told her they were going to go get him. [RT1110-11.] She did not provide any similar testimony at the second trial.

Edwin's two 2013 Declarations actually are “new” evidence in the sense that Edwin was not a trial witness, even though he admits that he was available in 2009 to testify at Petitioner's second trial with respect to the matters asserted in his Declarations. [Dkt. 83, Ex. 30 ¶¶ 16, 18.]

Critically, Edwin contradicts the testimony of all of the other defense witnesses, as well as the Declaration of his mother (Xatruch), on a dispositive issue. Edwin states that Petitioner was downstairs talking to him and Jeannette when the police arrived and went upstairs after he “saw the cops” and after advising Edwin and Jeanette that a police car was “pulling up behind” them. [FAP Ex. 1 ¶ 2; Dkt. 83, Ex. 30 ¶ 4.] These sworn statements by Edwin are essentially consistent with Officer Ortega's testimony that Petitioner was present with Edwin and Jeanette and left the scene as the officers approached. Moreover, Edwin's statements directly contradict the testimony (and Declaration) of Xatruch and the testimony of Gonzalez, and Paz that Petitioner had returned to and been inside the upstairs apartment for some period of time before the police arrived.³⁰ Given that Petitioner's actual innocence claim rests entirely on the premise that he had returned to, and was inside the upstairs apartment, before the police officers arrived, as defense witnesses testified at trial, and that Officer Ortega therefore could not have seen Petitioner standing downstairs and toss something in Jeanette's purse before running upstairs, Edwin's Declarations fundamentally undermine Petitioner's actual innocence claim. At a minimum, Petitioner's own evidence as to this factual issue critical to his assertion of actual innocence is in conflict, which renders it difficult, if not impossible, to find that Petitioner has made the required “extraordinarily high” showing of innocence.

30 Petitioner also relies on the defense investigator's report of a January 2009 telephone interview of Wendy Gutierrez, discussed earlier, in which Gutierrez is reported as having stated that Petitioner went inside before the police arrived. While this evidence is “new, ” in that Gutierrez did not testify at trial, it is hearsay with no apparently applicable exception to render it admissible. Further, is entirely cumulative of the trial testimony of Petitioner's relatives and neighbor Paz. Thus, while the Court has considered the report, it does not add much to the innocence issue. In his Objections, Petitioner cites this language from the Report and asserts that the Court thereby has “dismisse[d]” all of the new evidence he presented as cumulative of the testimony at trial. This is misleading and untrue. It is important to note that when Xatruch was interviewed by a defense investigator within a month of the incident, she told him that the police arrived “[w]hile our client [Petitioner] was outside with his child.” [FAP Ex. 12.] At trial, Xatruch testified that Petitioner was inside the apartment when the police arrived and claimed that she had been referring to Edwin when she made this statement to the investigator. [RT2 413.] Edwin, however, did not have a child with him at the time of the incident, and moreover, Xatruch did not tell the investigator that Petitioner had returned to the apartment after getting ice cream and before the police arrived, as she claimed at trial. Rather, as the investigator reported, Xatruch said that Petitioner went to get ice cream with his child and the police arrived while he was outside with the child, so she went downstairs to see what was happening. [Id.]

Petitioner also relies on Edwin's declaration statement that he did not see Petitioner put a gun or anything else in Jeanette's purse. Even if it could be assumed that Edwin's eyes were on Petitioner at all relevant times - and, significantly, he does not say that they were - this statement by Edwin merely conflicts with Officer Ortega's testimony that he did see Petitioner toss a gun in the purse. This conflict, however, at most gives rise to a he said-he said situation and is not sufficient to affirmatively prove Petitioner's probable innocence, particularly when viewed in light of Edwin's status as Petitioner's relative.

Petitioner's next actual innocence argument is that declaration statements made by his family members regarding Jeanette prove that the gun found in Jeanette's purse was hers, and thus, Petitioner could not have put it there and Officer Ortega lied. Edwin states that he “knew” that Jeanette had a gun in her purse. Xatruch states that Jeanette was constantly in trouble and that Xatruch had observed her high on drugs many times. Xatruch also states that she observed Jeanette wearing expensive items “that she clearly could not afford” and that Xatruch had “heard” she got them by committing burglaries. Martha states that Jeanette had problems with her mother and had been kicked out of her home for drug use, and that Jeanette often had large amounts of cash and foreign currency. Martha also states that Edwin and Jeanette told her about burglaries Jeanette had committed to obtain money for drugs.

The problem with these statements is that they are vague and not particularly probative. For example, Edwin does not say how he “knew” Jeanette had a gun in her purse, and critically, he does not contend that he had seen the gun in the purse before the police arrived. Xatruch's and Martha's statements are vague as well and rest, in part, on hearsay. Petitioner's attempt to paint Jeanette as a bad person and thus, by implication, someone who could have been carrying a gun is not properly supported or persuasive. But even if these partially hearsay assertions could competently prove that Jeanette was someone who used drugs, had problems at home, and who had committed burglaries, these circumstances would not demonstrate that she had a gun in her purse and that Petitioner had not put it in her purse. A troubled mother-daughter relationship, the use of drugs, and the commission of burglaries to support a drug habit do not equate, necessarily, to owning a gun and/or carrying it with you while socializing in public. And as the record Petitioner has provided shows, Petitioner had his own earlier interactions with the criminal justice system, including his conviction two years prior. Thus, his contention that prior criminal activity equates to possession of a gun cuts both ways.

In these same three Declarations, Edwin, Xatruch, and Martha recount statements allegedly made by Jeanette, which Petitioner relies on to demonstrate that the gun belonged to Jeanette. Edwin states that Jeanette told him she had told the police repeatedly that the gun was hers. Martha states that both Edwin and Jeanette told her that she often carried a gun and often did so in her purse, and that Jeanette later said to Petitioner's counsel that she wanted to testify that the gun was hers. Xatruch states that, after Jeanette was released, she told Xatruch on several occasions that the gun was hers and Petitioner had nothing to do with it.

Petitioner, however, has not presented any evidence from Jeanette herself that would support these witnesses' hearsay assertions about the statements attributed to her.³¹ All of these assertions are hearsay or double hearsay, and there is no apparent hearsay exception that renders Jeanette's alleged statements and/or Edwin's alleged statements to Martha and Xatruch admissible.³² Moreover, the only actual statement by Jeanette proffered by Petitioner - her signed statement to the police, as described earlier - indicates that Jeanette claimed that the gun belonged to someone else who had “booked it.” While defense counsel, prior to the first trial, argued that Jeanette's statement could be construed to mean that she was given the gun, the person who gave it to her left, and she only then went to the Kingsley apartments, it is equally possible to interpret her statement to mean that she was given the gun at the Kingsley apartments and the person who gave it to her left, an interpretation that is consistent with Officer Ortega's testimony. In short, Jeanette's statement to the police may help to support Petitioner's actual innocence contention or may substantially hurt it, an ambiguity that precludes this particular evidence from satisfying the foregoing stringent standards. In any event, the hearsay nature of Petitioner's proffer and the unavailability of Jeanette only makes clear the unreliable nature of Petitioner's evidence allegedly showing that the gun belonged to Jeanette rather than to Petitioner. Whatever one thinks of this evidence, it is not of the persuasive nature needed to affirmatively demonstrate Petitioner's probable innocence.

31 In his Objections, Petitioner asserts that, by this sentence, the Report “faults” Petitioner for not producing a declaration from Jeanette. Again, this is an inaccurate representation as to the Report's content. As set forth above, the Report merely pointed out that, through hearsay and double hearsay, a host of third parties attribute a variety of statements to Jeanette, but there is no declaration or other evidence from Jeanette on these issues.

32 Although Petitioner asserts that evidence from third parties that Jeanette had said the gun was hers would have been admissible as a declaration against interest, it is not clear that the requirements for this California Evidence Code § 1230 hearsay exception are satisfied absent evidence that Jeanette would have been subject to criminal liability for possessing the gun (e.g., the gun was unregistered or she was a convicted felon). No. such evidence, however, exists in the record.

Finally, ³³ Petitioner argues that other new evidence, as described in Subsection A.3.a above, proves that the police had a motive to frame him based on a pending lawsuit he had brought against the LAPD. The threshold problem is that Petitioner has not submitted any competent proof of such a lawsuit. The document on which he relies is a government tort claim submitted to the City of Los Angeles [FAP Ex. 18] not proof of a commenced lawsuit, and the news story about the dismissal of the charges against him and a Google Maps printout do nothing evidence-wise to establish any lawsuit. Petitioner has not even provided a case number for the alleged lawsuit or identified the court in which it was filed, as well as its status as of December 4, 2008 (and as noted earlier, it is difficult to see how a lawsuit could have been filed as of then given that the government tort claim remained pending). The Declaration statements of Xatruch and Edwin regarding what police officers allegedly said about a lawsuit are hearsay, as is the similar evidence from trial (a defense investigator's reports as to Alfaro's and Xatruch's statements).

33 Petitioner also argues that: there was no physical evidence tying Petitioner to the gun; Petitioner's shorts were too baggy to hold a gun in the waistband; it doesn't make sense that Petitioner would throw the gun into the purse instead of simply running upstairs with it; and no other police officers testified to support Officer Ortega's testimony. These are all matters that were before the jury and are not new evidence; indeed, defense counsel argued most of them in closing. Even when considered with the new evidence presented, they do not come close to constituting the affirmative proof of probable innocence the Ninth Circuit has required.

But even if, notwithstanding the lack of evidentiary support, the Court assumes that Petitioner, in fact, had filed a civil lawsuit against the LAPD prior to December 4, 2008, and further, that the police officers who responded to the incident knew about it, this does not rise to the level of affirmative proof of probable innocence. There is no evidence before the Court that the police officers who were the target of that lawsuit were the same officers who responded on December 4, 2008. Even if local area police officers knew about such a lawsuit, this does not, in turn, raise reasonable doubt as to the veracity of Officer Ortega's testimony, particularly now that Edwin has provided two sworn statements that contradict all other defense witnesses on the critical issue of where Petitioner was when the police arrived - upstairs in the apartment or downstairs with Edwin and Jeanette, as Edwin states and Officer Ortega testified. Speculation that Ortega and the responding officers wanted to “frame” Petitioner because he had sued other officers does not prove that he is innocent and, at most, is a factor bearing on Officer Ortega's credibility.

To further support his motive argument, Petitioner also cites to the fact that an Officer Blanco was present at the December 4, 2008 incident and that a year earlier in 2007, Petitioner was convicted of resisting an officer and the officer involved was named Officer Gabriel Blanco. The evidence Petitioner proffers, however, does not actually establish the name of the officer involved in the 2007 conviction. While it is possible that the same officer was involved in both incidents, the evidence does not establish this fact, and it is equally possible that different officers were involved in each incident given that Blanco is not an uncommon name in Los Angeles. To the extent that Petitioner's motive theory also rests on the existence of a single Officer Blanco who was biased against him due to the 2007 conviction, Petitioner has not come close to proving any such thing.

Petitioner's showing in this case does not begin to approach the “extraordinarily high” level of proof the Supreme Court has opined would be necessary to merit relief on a freestanding actual innocence claim (if such a claim even were cognizable). Indeed, far more persuasive and compelling showings of innocence have been held to be inadequate to meet the level of proof needed to state a viable freestanding actual innocence claim and to affirmatively prove probable innocence. See, e.g., House, 547 U.S. at 553-55 (new DNA evidence that semen found on victim came from her husband, new evidence that victim's blood on petitioner's clothes could not have come from victim when alive and likely came from spilled vials, and new testimony from multiple disinterested witnesses implicating victim's husband - while sufficient to meet the Schlup gateway standard - nonetheless was insufficient to satisfy the higher burden for freestanding actual innocence claims); Carriger, 132 F.3d at 474-77 (evidence that another suspect had confessed to the murder, described details only a participant in the crime would have known, and boasted that petitioner had been set up, which “casts a vast shadow of doubt over the reliability of his conviction, ” was held to be insufficient to affirmatively prove actual innocence).

Even when the “new” evidence proffered by Petitioner is construed most strongly in his favor despite the problems with it outlined above, the most that can be said is that it may cast doubt on his guilt. Merely casting doubt, however, is insufficient to meet the “extraordinarily high” and “truly persuasive” level of proof required and falls far short of affirmatively proving Petitioner's probable innocence. Even if Petitioner could be said to have the right to assert a freestanding actual innocence claim in this action governed by Section 2254(d)(1), he has not met the stringent standards enunciated by the Supreme Court and the Ninth Circuit that must be satisfied to prevail on such a claim. Accordingly, for all of the reasons set forth above, Ground One should be denied.

IV. Ground Two: The Ineffective Assistance Issue

Petitioner initially was represented by a Los Angeles County Deputy Public Defender who had an investigator interview six eyewitnesses and write related reports, conducted the preliminary hearing, and filed a Pitchess motion. [CT 1-17, 20, 24-51; FAP Exs. 6-10, 12.] Petitioner's family then retained attorney Ralph Ayala and paid him $4,000 to represent Petitioner, and he first appeared on Petitioner's behalf on February 11, 2009. [CT 69; FAP Ex. 2 ¶ 13.] Ayala's performance is the subject of Ground Two.³⁴

34 The Court notes that Petitioner's ineffective assistance arguments often discuss things that happened (or did not happen) in connection with the first trial. Petitioner, however, was not convicted at the first trial. For Sixth Amendment purposes, the focus here must be on Ayala's conduct related to and/or that actually had an effect on the trial of conviction, i.e., the second trial. Put otherwise, the federal habeas question is did any constitutional error occur in connection with the second trial that led to the judgment under habeas attack?

A. The Instances Of Ineffective Assistance Alleged

In his second habeas claim, Petitioner contends that Ayala provided ineffective assistance in numerous respects.³⁵ These contentions, which rest primarily on the Declaration statements of Xatruch, Martha, and Edwin, are as follows:

35 Petitioner also: complains that Ayala did not have his family sign a retainer agreement and did not provide them with a receipt for the $4,000 paid; and asserts that Ayala had been a prosecutor but was fired for “regularly using cocaine off duty, ” relying on 1987 newspaper articles indicating that Ayala was fired based on a single incident. [Mem. at 14-15; FAP Ex. 22.] Petitioner does not allege that Ayala's performance was affected by either of these matters, nor does Petitioner argue that either one caused him prejudice within the meaning of the Sixth Amendment. Moreover, Petitioner's assertion of “regular” drug use by Ayala lacks any evidentiary support. The relevant inquiry on an ineffective assistance claim is whether counsel's performance was deficient and caused prejudice in connection with the particular defendant and trial in issue, not what occurred elsewhere. See, e.g., Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995); see also, e.g., Smith v. Ylst, 826 F.2d 872, 876 (9th Cir. 1987) (petitioner alleging that mental illness of counsel resulted in ineffective assistance was still required to “point to specific errors or omissions which prejudiced his defense”). These alleged retainer and drug use matters are irrelevant to this case and counsel's references to them are gratuitous and inappropriate.

First, Petitioner alleges that Ayala failed to hire an investigator or request additional funds to do so and that he improperly relied only on the interview reports generated by his predecessor. Petitioner bases this contention on: Xatruch's and Martha's statements that it “appeared to” them that Ayala did not conduct any investigation; and Martha's statement that Ayala never asked her (nor to her knowledge Xatruch) for investigation funds. [Mem. at 15.]

Second, Petitioner alleges that Ayala did not interview “any” witnesses, and thus, failed to discover and present relevant exculpatory evidence including Xatruch's and Martha's statements portraying Jeanette as a bad person. To support this contention, Petitioner relies on: Xatruch's statement that neither Ayala personally nor anyone on his behalf interviewed her; and Martha's statements that she told Ayala that Edwin and Jeanette were willing to testify but “to her knowledge, ” Ayala did not interview them or ask them to testify, that Ayala did not interview her, and that “she does not recall” “Ayala ever interviewing” Xatruch. [Mem. at 15-16.]

Third, Petitioner alleges that Ayala did not prepare “any witnesses” for their trial testimony. Petitioner relies on Xatruch's statements that: neither Ayala nor his representative interviewed her; before the first trial, Xatruch spoke with Ayala and told him about Petitioner's lawsuit against the police department, and he told her not to bring it up; and other than that conversation, Ayala did not discuss the substance of her testimony with her prior to either trial. [Mem. at 15.]

Fourth, Petitioner alleges that Ayala failed to interview third party witnesses and neighbors “Nikki and Julie, ” last names unknown. Petitioner bases this allegation on Xatruch's representations that: the two women were buying ice cream at the time of the incident; Julie argued with the officers when Petitioner was arrested, because she could see he wasn't involved; and both women wanted to testify. [Mem. at 16.]

Fifth, Petitioner complains that Ayala failed to interview Wendy Gutierrez (whose interview report was discussed in connection with Ground One) or call her to testify, even though he had included her on the defense witness list. [Mem. at 16.]

Sixth, Petitioner complains that Ayala failed to interview Edwin. Petitioner concedes that Edwin was unavailable to testify at the first trial (because he was in custody and then was deported) but asserts that had Edwin been interviewed prior to the first trial, his “statements” could have been admitted through an unidentified exception to the hearsay rule. [Mem. at 17.]

Seventh, Petitioner alleges that, in connection with the second trial, ³⁶ when (according to Xatruch and Martha) Jeanette was present at the courthouse and told Ayala she would testify that the gun was hers, Ayala warned Jeanette that this was not a good idea and that she could go to jail. Petitioner asserts that once Jeanette took the Fifth, Ayala should have presented evidence (through Martha and Xatruch testimony) of what she said to him in the courthouse earlier as a “declaration against interest.” [Mem at 17-18, 22-23.]

36 Petitioner also complains about Ayala's conduct prior to the first trial, such as that: his only effort to locate Jeanette prior to the first trial was to attempt to serve her with a subpoena, without any follow-up; Ayala told Martha that it would be a bad idea for Jeanette to testify; and the motion to have Jeanette's signed statement to the police admitted in the first trial failed, because Ayala did not proffer to the trial court the earlier-discussed hearsay evidence regarding statements Jeanette allegedly made to Xatruch and Martha, which Petitioner asserts would have been admissible under the declaration against interest exception. The Court will not address these first-trial related arguments for the reasons discussed earlier.

Eighth, Petitioner asserts that Ayala should have presented evidence that the officers involved had a motive to frame him due to his lawsuit brought against the LAPD. To support this assertion, Petitioner relies upon Xatruch's and Martha's declaration statements that they told Ayala about it, as well as Xatruch's and Alfaro's January 2009 statements to the defense investigator. Petitioner also relies on the California Court of Appeal's decision in Petitioner's direct appeal, which in connection with a Pitchess motion issue, noted that an attorney had submitted a complaint to the LAPD alleging that Officer Ortega had falsified his report regarding the December 4, 2008 incident. [Mem. at 18-19.]

Ninth, Petitioner complains that Ayala failed to obtain DNA from Jeanette and Edwin and to have DNA testing done on the gun to see if it matched Jeanette's and/or Edwin's DNA. According to Martha, she asked Ayala to do so and he was not interested. [Mem. at 20-21.]

Tenth, Petitioner complains about Ayala's failure to present Alfaro (who had testified at the first trial) as a defense witness at the second trial. [Mem. at 21.]

Eleventh, Petitioner faults Ayala for failing to present evidence that police officers saw Petitioner in the upstairs apartment window. Petitioner argues that the prosecutor was able to “exploit” this lack of evidence by stating: “The whole, I guess, hangup with that story is that, if police arrive five minutes after the defendant went upstairs, how do they know he was there?” [Mem. at 21.]

Twelfth, Petitioner faults Ayala for failing to present the baggy shorts worn by Petitioner at the second trial, even though he presented them at the first, and instead, allegedly only asked Gonzalez whether Petitioner was wearing baggy shorts. [Mem. at 21-22.]

Thirteenth, Petitioner faults Ayala for failing to make an argument he had made at the first trial, namely, that Officer Ortega's testimony that Petitioner had thrown a gun into Jeanette's purse was “implausible.” Petitioner further faults Ayala for failing to adduce evidence that Jeanette's purse was “medium” in size, even though Ortega described it as “medium-sized” at the preliminary hearing. [Mem. at 22.]

Fourteenth, Petitioner contends that Ayala should not have stipulated to have a redacted version of the investigator's report regarding his interview with Xatruch admitted into evidence. Petitioner contends that an omitted paragraph would have clarified that a statement in the report's first paragraph - i.e., that Xatruch said Petitioner was downstairs with his child when the police arrived - was a mistake, and that this omission allowed the prosecutor to note the inconsistency between Xatruch's testimony and the report on where Petitioner was when the police arrived. [Mem. at 23-24.]

Fifteenth, at the first trial, Ayala objected to a jury instruction regarding the concept of constructive possession and the judge sustained his objection. At the second trial, Ayala did not again object to the instruction and it was given. Petitioner argues that Ayala had no reasonable strategic basis for not objecting again. [Mem. at 24-25.]

B. Habeas Relief Is Not Warranted.

In Section II, the Court set forth the clearly established federal law regarding ineffective assistance of trial counsel claims and will not repeat it here. The question for Ground Two is whether, when viewed through the doubly deferential standard that governs, the state court's rejection of the numerous ineffective assistance subclaims raised through Ground Two was contrary to or an unreasonable application of the Strickland test? The Court concludes that it was not, and that Section 2254(d)(1) deference is required, for the following reasons.

Petitioner's first subclaim based on Ayala's alleged failure to investigate and reliance on the investigation done by his predecessor. A defense attorney has “a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. To show prejudice based on Ayala's asserted failure to investigate, Petitioner must demonstrate that further investigation would have revealed favorable evidence. See Ceja v. Stewart, 97 F.3d 1246, 1255 (9th Cir. 1996); Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995). He also must show that “the noninvestigated evidence was powerful enough to establish a probability that a reasonable attorney would decide to present it and a probability that such presentation might undermine the jury verdict.” Mickey v. Ayers, 606 F.3d 1223, 1236-37 (9th Cir. 2010).

Petitioner cites the statements of Xatruch and Martha that it “appeared” to them that Ayala had not done any investigation and never asked Martha for money to hire an investigator. This subjective belief by Petitioner's mother and sister alone would be an inadequate showing that there was a complete failure by Ayala to investigate, but the Loeza Declaration does provide some further support. [FAP Ex. 4 ¶ 10: stating that Ayala said he did not hire an investigator and, thus, there was no separate investigator's file.]. But the failure to retain an investigator does not, in itself, prove that an investigator was needed or that no investigation was done. Ayala was able to utilize the results of the investigative efforts of Petitioner's prior counsel, including the reports of the interviews of five eyewitnesses, which was the most relevant information for the defense. Petitioner has not shown that these reports were inadequate. Ayala's file also contained, inter alia, the results of the prosecution's forensic testing, the arrest report, evidence report, and related documents, pictures of the crime scene, and news clippings about the dismissal of the charges against Petitioner in the separate murder case. [FAP Ex. 4 ¶ 4.]

In short, this is not so much a claim of a total failure to investigate but a claim that, while some investigation was done, further investigation was constitutionally required. Petitioner's first subclaim rests on the premise that had Ayala investigated beyond the materials he had: he would have discovered the additional matters set forth in the Edwin, Xatruch, and Martha Declarations discussed earlier in connection with Petitioner's actual innocence claim; Ayala thereby necessarily would have presented such additional information as evidence at the second trial and it necessarily would have been admitted into evidence; and Petitioner thus would have been acquitted. But according to Xatruch and Martha, Ayala was aware of almost all of this additional information because they had told him about it. [FAP Ex. 2 ¶¶ 15, 17, 19, 19A, 20; FAP Ex. 3 ¶¶ 7-10, 12, 13.] Thus, given that Ayala knew of this information, the Court must assume that he made a decision not to proffer it at trial. As discussed below in connection with the second subclaim, Petitioner's arguments about the admissibility and exculpatory impact of the additional information set forth in these family member declarations are far from persuasive. As a result, the Court concludes that it was not objectively unreasonable for the state court to find that Ayala's asserted lack of additional investigation did not equate to deficient performance, nor did it result in prejudice.

Petitioner second subclaim rests on the assertion that Ayala did not interview “any” witnesses, based on the statements of Xatruch and Martha that Ayala did not interview them and that Martha believes that he did not interview Edwin and Jeanette. Petitioner argues that, had Ayala interviewed unspecified persons, he would have discovered the additional information set forth in the Xatruch, Martha, and Edwin Declarations, which, in turn, would have resulted in admissible evidence that would have caused Petitioner to be acquitted. Petitioner's second contention fails for two reasons.

First, there is no rule requiring an attorney to interview all prospective witnesses. Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (“‘the duty to investigate and prepare a defense is not limitless: it does not necessarily require that every conceivable witness be interviewed'”) (citation omitted). This is especially so when the witness's account is already known to counsel. Id. As noted above, the Xatruch and Martha Declarations make clear that Ayala did talk to them on more than one occasion and they told him about the additional information they now assert was critical. Indeed, they expressly fault him for not acting on this information they had conveyed to him. Given that they had made this information known to Ayala, there is no apparent reason why a separate formal “interview” was required. Ayala also had the investigator's reports of the interviews done of Xatruch, Alfaro, Gonzalez, Paz, and Gutierrez, and moreover, Ayala had the additional benefit of having heard the testimony of Xatruch, Alfaro, Gonzalez, and Paz at the first trial. Again, Petitioner proffers no reason why an additional “interview” of these witnesses was required. While it is true that Ayala did not interview Edwin or Jeanette, Edwin was unavailable as of the time of the first trial, as was Jeanette apparently, ³⁷ and in any event, Ayala was already aware of their purported value (or not) as witnesses based on what he had been told by Xatruch and Martha, including about Jeanette possessing a gun.

37 The defense investigator had not been able to locate Jeanette as of early 2009 (FAP Ex. 11), and as discussed earlier, Ayala had attempted to find her but also been unsuccessful. In their Declarations, Xatruch and Martha allude to Jeanette coming to the courthouse and telling Ayala that she wished to testify, but they both are unclear about whether this was at the first or second trial. [FAP Ex. 2 ¶ 17; FAP Ex. 3 ¶ 9.] Given Jeanette's appearance at the second trial, it seems more likely it happened then. Martha also asserts that, prior to the first trial, she told Ayala that Jeanette wanted to testify. [FAP Ex. 3 ¶ 8.] If, as she claims, Martha had been in contact with Jeanette then, it is unclear why she failed to provide Ayala with contact information for Jeanette. In any event, both Xatruch and Martha agree that, when Jeanette did come to the courthouse, Ayala talked to her and heard about how she planned to testify if called. There is no reason that a separate formal “interview” was needed.

Moreover, as discussed earlier, Edwin has provided a version of events that directly contradicts the version provided by Xatruch, Gonzales, and Paz at trial on the lynchpin question of where Petitioner was at the time the police arrived. The defense theory proffered through these three trial witnesses was that Officer Ortega necessarily was lying about what happened, because Petitioner was upstairs at the time the police officers arrived and had been for some time and, thus, could not have thrown a gun into Jeanette's purse. Edwin, however, clearly states, under penalty of perjury, that Petitioner was downstairs with Edwin and Jeanette when the police arrived and left when he saw them (as Officer Ortega testified) and that he would have so told Ayala had he been contacted. [FAP Ex. 1 ¶¶ 3, 5; Dkt. 83 Ex. 30 ¶¶ 4, 18.] Given the defense theory - which was the same theory proffered at the first trial that ended in a jury deadlock - had Ayala learned that Edwin would provide testimony at the second trial that would contradict all of the other defense witnesses on this issue critical to the defense, it is hard to imagine that Ayala (or any reasonably competent defense counsel) would have presented Edwin as a defense witness. Indeed, had he done so, the Court suspects that Petitioner would be seeking relief based on that action and labelling it ineffective assistance.

Second, Petitioner overstates the value of the additional information that Petitioner contends would have been elicited had unspecified “witnesses” been interviewed by Ayala. Petitioner argues that, had Ayala interviewed Xatruch and Martha, he would have discovered, and been able to present, the “exculpatory evidence” that Jeanette was “constantly in and out of trouble, ” a drug user, and a “seasoned burglar” who often carried a gun in her purse. As discussed earlier, however, all of this supposed “evidence” rests, to some degree, on vague, unsupported, and incompetent assertions by Petitioner's mother and sister and, to a significant degree, on hearsay and double hearsay. Their assertions about what a bad person Jeanette is - including her alleged family problems, drug use, and burglaries - would have been irrelevant at Petitioner's trial absent possible use for impeachment purposes (and that seems particularly iffy), but Jeanette took the Fifth and did not provide any testimony. Critically, neither woman claims to have seen Jeanette with a gun or to have seen one in her purse. Martha's declaration relies on alleged statements by Edwin and Jeanette to this effect, but as noted earlier and contrary to Petitioner's assertion, there is no apparent basis for the admission of this hearsay pursuant to California's version of the declaration against interest exception. Petitioner further argues that, had she been interviewed, Xatruch would have testified that she saw the gun in the bottom of Jeanette's purse when Officer Ortega opened the purse, which Petitioner seems to believe means Officer Ortega's testimony that Petitioner tossed the gun into the purse was a physical impossibility. The Court again repeats its view that this argument is frivolous. Heavy things tend to move to the bottom of loosely-filled containers, especially when, as here, all witnesses agree that the purse had been moved around before Ortega looked in it.

Given the doubly deferential standard that governs, the Court concludes that it was not objectively unreasonable for the state court to find that neither deficient performance, nor prejudice, had been established with respect to Petitioner's second/failure to interview subclaim.

Petitioner's third subclaim - that Ayala failed to prepare any witness for testifying at trial - fails on its face. Petitioner does not identify what additional preparation was needed, nor does he identify any way in which this asserted lack of preparation prejudiced him within the meaning of the Strickland standard. There is nothing in the record that renders the state court's rejection of this ineffective assistance subclaim objectively unreasonable.

Petitioner's fourth subclaim is that Ayala provided ineffective assistance by failing to interview “Nikki and Julie” and to present them as defense witnesses. Petitioner has not identified these women by their full names. Petitioner, moreover, has not submitted any evidence establishing that these two women actually would have been willing to testify at his trial, much less what they would have said. Xatruch's statements are hearsay and, more importantly, do not establish anything exculpatory to which these women would have testified. Absent proof that these two women would have testified in a manner that would have aided Petitioner, his fourth subclaim fails on its face. See Alcala v. Woodford, 334 F.3d 862, 872-73 & n.3 (9th Cir. 2003) (to succeed on a claim of ineffective assistance of counsel based upon a failure to call witnesses, a habeas petitioner not only must identify the witnesses in question but also must describe specifically the testimony those witnesses would have given and how such testimony would have altered the trial's outcome); Bragg, 242 F.3d at 1088 (petitioner's mere speculation that, had a witness been interviewed, he might have given helpful information, is not enough to establish ineffective assistance); see also Dows v. Woods, 211 F.3d 480, 486 (9th Cir. 2000) (rejecting an ineffectiveness claim based on trial counsel's failure to interview or call an alibi witness, when there was no evidence in the record that the witness would have testified favorably for the defense, and stating, “Dows provides no evidence that this witness would have provided helpful testimony for the defense -- i.e., Dows has not presented an affidavit from this alleged witness”).

Petitioner's fifth subclaim complains of Ayala's failure to call neighbor Wendy Gutierrez to testify about what she saw, even though he knew about her and what she had told the investigator. It is true that, at the outset of the second trial, Ayala announce that Gutierrez would be called as a defense witness. [RT2 2.] There is no evidence about why he did not do so. The substance of Gutierrez's interview by the defense investigator was discussed earlier in connection with Petitioner's actual innocence claim. Assuming Gutierrez would have testified consistently with her interview statements, her testimony would have been essentially the same as that provided by neighbor Paz as well as that of Petitioner's mother and partner, i.e., that Petitioner went inside the apartment building after he bought food and before the police arrived. There is no evidence before the Court that Gutierrez actually was available to testify on Petitioner's behalf as of the time of his second trial. But even if she was, given the wholly cumulative nature of Gutierrez's possible testimony, it was not objectively unreasonable for the state court to find that neither Strickland prejudice prong was met by her absence from trial.

Petitioner's sixth subclaim is that Ayala provided ineffective assistance by failing to interview Edwin. For the reasons discussed above in connection with Petitioner's second contention, this subclaim fails. It was not objectively unreasonable to find that failing to call a witness who would have undercut the defense theory - that Petitioner had been upstairs for some time before the police arrived - in a critical respect was neither deficient performance nor prejudicial under the Strickland standard.

Petitioner's seventh subclaim revolves around Jeanette. Much of Petitioner's complaints here relate to his first trial, which did not result in a conviction. Any purported failings by Ayala to take sufficient steps to find Jeanette before the first trial and/or in connection with the substance of the motion he made to introduce her police statement at the first trial cannot serve as a basis for relief here. As to the second trial, the record shows that Ayala did list Jeanette as a defense witness and, thus, planned to call her. [RT2 2.] As discussed earlier, when Ayala did call Jeanette to testify, she exercised her Fifth Amendment right to remain silent. Petitioner faults Ayala for that event, arguing he acted wrongly when, after he spoke with Jeanette, he cautioned her about possible legal consequences if she testified that the gun was hers. The Court is not convinced that the Sixth Amendment constitutionally obligates a lawyer to allow a third party witness to unknowingly subject herself to legal consequences by testifying; at a minimum, fairminded jurists could disagree on this proposition. And as note before, the Court is not persuaded by Petitioner's assertion that the trial court would have allowed hearsay evidence from Xatruch and Martha about statements allegedly made by Jeanette. Finally, had Jeanette somehow testified at the second trial that the gun was hers, she could have been impeached by her statement to the police discussed earlier, in which she said a friend left her with the gun “to hold” and then “booked it” [FAP Ex. 17], and the admission of that statement could have been damaging to Petitioner if she identified him as the friend who gave her the gun to hold and then left. Under these circumstances, the Court does not find the state court's rejection of the seventh subclaim to be objectively unreasonable under the doubly deferential standard that governs its review.

Petitioner's eighth subclaim relies on the “motive” evidence he believes should have been submitted at trial, namely, that the LAPD had a motive to frame him because he had filed a civil lawsuit about the murder charges brought against him and later dismissed. As noted earlier, there is no evidence before the Court establishing the existence of any such lawsuit as of December 4, 2008 (much less what happened), although there is evidence that Petitioner had submitted a government tort claim as of that date and, according to the California Court of Appeal's decision on appeal, at some point submitted a complaint to the LAPD alleging that Officer Ortega had falsified his report. The Court has assumed that Ayala was aware of these events. Indeed, according to Xatruch, prior to her testimony at the first trial, Ayala told her not to bring it up. Of course, the record shows that the prosecutor had moved to exclude any evidence of a civil lawsuit and Ayala had agreed not to mention it. [1RT 18.] Thus, plainly, Ayala knew of the lawsuit-related matters and had made a decision not to introduce any such evidence.

The jury already knew that Petitioner had suffered a 2007 felony conviction, because a prior felony conviction was an element of the charged crime and the parties had stipulated to this fact at both the first and second trials. [RT1 26; RT2 366.] The jury, however, did not know the nature of that prior conviction. The jurors also did not know that Petitioner had been charged with murder and attempted murder in the shootings of two men approximately eight months prior to the December 4, 2008 incident, and that those charges later were dismissed. Had Ayala proffered evidence of the efforts made related to bringing a civil lawsuit, the trial court presumably would have had to allow in related evidence about that lawsuit, including evidence about why Petitioner had been arrested and charged for a gun-related homicide and attempted homicide³⁸ and why the charges had been dropped. Ayala could have decided that a foray into these ancillary matters - even had the trial court been willing to allow it - might not be in the defense's best interest given the possible cloud it cast over Petitioner.

38 For example, according to the news accounts on which Petitioner relies here, Petitioner had been involved in a fight with the victims at a family celebration and witnesses had identified him as the shooter. [FAP Ex. 23.]

As noted earlier, there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” and habeas petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotation and citation omitted). Courts considering ineffective assistance claims do not second-guess counsel's tactical decisions unless the petitioner has overcome this presumption. Id. at 689. Given the prosecutor's motion to exclude this evidence at the first trial and Ayala's response, Ayala obviously had considered this issue and determined that evidence related to the civil lawsuit should not come in. Instead, knowing that Petitioner's 2007 conviction necessarily would be before the jury, Ayala elicited evidence that Officer Ortega had had prior contacts with Petitioner and knew he was on probation, and Ayala used that evidence to argue that Ortega and the other officers had targeted Petitioner. [RT2 326, 329-30, 345, 636-37, 640.] “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable” when raised in an ineffective assistance habeas claim. Id. at 690; see also Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir. 1997) (finding no deficient performance when counsel “knew about the [potentially favorable evidence] and looked into it, but chose as a tactical matter not to use it, ” because “[a] reasonable tactical choice based on an adequate inquiry is immune from attack under Strickland”).

Whether or not Ayala made the “correct” call in foregoing attempting to present evidence of Petitioner's civil lawsuit efforts is not the question before the Court. Rather, under Section 2254(d)(1), the question is whether the state court acted unreasonably in finding the Strickland standard unsatisfied as to Petitioner's eighth ineffective assistance subclaim. The Court believes that fairminded jurists could disagree on this question and on whether Petitioner has met his burden of showing that Ayala's tactical decision was “outside the realm of the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. As a result, and under the doubly deferential standard that governs this Court's review, the eighth subclaim does not satisfy Section 2254(d).

In his ninth subclaim, Petitioner faults Ayala for failing to obtain DNA from Edwin and Jeanette to compare to the DNA testing done on the gun, to see if there was a match. Petitioner notes Martha's Declaration, in which she alleges that she asked Ayala if he could do this and he was not interested. Of course, for Ayala to have been able to have had such testing performed, Edwin and Jeanette not only would have had to have been available for the collection of DNA swabs but, also, agreed to give them voluntarily. There is no evidence of this. Moreover, even if they had done so, Ayala would had to pay for an expert to review any DNA testing and present the findings to the jury. There is no evidence that Petitioner's family would have been willing to pay for this, but most importantly, even if they had been, there is no evidence of what such testing would have revealed. Put otherwise, and critically, there is no showing that any such additional DNA testing actually would have produced exculpatory evidence. This failure on its own precludes finding that the ninth subclaim serves as a basis for habeas relief. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (“[s]peculation about what an expert could have said is not enough to establish prejudice” under Strickland); see also Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (rejecting, on the prejudice prong, an ineffective assistance claim premised on counsel's failure to retain an expert, because: “[petitioner] offered no evidence that an arson expert would have testified on his behalf at trial. He merely speculates that such an expert could be found. Such speculation, however, is insufficient to establish prejudice.”). Moreover, when, as here, the “record furnishes no reason to believe that” an expert analysis “would have created an issue” helpful to the defense, there is no basis for finding the deficient performance prong met. Langford v. Day, 110 F.3d 1380, 1387-88 (9th Cir. 1996).

Petitioner also argues that Ayala should have “familiarized himself with the science of DNA testing” so that he could have “exploited the lack of a conclusive result linking [Petitioner] to the firearm.” [Traverse at 25.] Ayala, however, did make such an argument in closing. [RT2 634-35.] Petitioner has not identified what additional argument Ayala could or should have made.

Petitioner's speculation that further DNA testing of the gun could have provided a basis for the jury to acquit Petitioner is insufficient to satisfy the Strickland standard. The state court's rejection of the ninth subclaim was not objectively unreasonable for purposes of Section 2254(d)(1).

Petitioner's tenth subclaim rests on Ayala's failure to present Alfaro, Gonzalez's mother, as a defense witness at the second trial even though she had testified at the first trial. The record does not show why Ayala did not call Alfaro as a witness at the second trial. Ayala may have elected not to present Alfaro again because her testimony was cumulative of the testimony of the other defense witnesses in some respects (such as she agreed that Petitioner was in the apartment when the police arrived) but differed in other respects. While Gonzalez testified that she stayed upstairs with Petitioner until the police came to their door and made them leave, Alfaro contradicted her. Alfaro testified that, after Xatruch went downstairs, she went downstairs and Gonzalez came down shortly after her, leaving Petitioner and the children upstairs.³⁹ Unlike any other witness, Alfaro testified that two women were present with Edwin, one named “Chunie” and her friend “Judy.” Given these inconsistencies, and the fact that Ayala already had three defense witnesses who would testify that Petitioner was upstairs in the apartment before the police arrived and in a more consistent fashion, Ayala may have decided that it was not worth putting on a fourth whose testimony might get picked apart on cross-examination. It was not objectively unreasonable for the state court to conclude that Petitioner had not overcome the presumption that this was a reasonable tactical decision by Ayala.

39 As noted earlier, at the first trial, Xatruch also testified that Gonzalez came downstairs shortly after Xatruch, leaving Petitioner upstairs. However, at the second trial, she testified that Gonzalez remained upstairs the entire time and came down when Petitioner did with the police.

In his eleventh subclaim, Petitioner complains about Ayala's failure to present testimony that police officers observed Petitioner in the window upstairs and that this allowed the prosecutor to argue that the defense version of events did not make sense, because how would the officers have known Petitioner was upstairs. In their January 2009 statements to the defense investigator, both Xatruch and Alfaro stated that a police officer looked up, saw Petitioner in the window, and recognized him. [FAP Exs. 6-7.] In contrast, in her 2013 Declaration, Xatruch states that the police officer looked up and saw Petitioner in the window but did not recognize him and asked her who that person was. [FAP Ex. 2 ¶ 8.] At the first trial, Ayala asked Xatruch if she could see Petitioner while she was downstairs and she responded that she looked up and saw him in the window looking down. [RT1110-11.] Ayala attempted to ask Alfaro the same thing, but she did not provide a responsive answer. [RT1120-21.] At the second trial, Ayala did not ask Xatruch if she and/or any officer saw Petitioner in the upstairs apartment window. Ayala did argue, however, that the police knew Petitioner lived at the address. [RT2 631.]

There is nothing in the record that explains why Ayala did not ask Xatruch, at the second trial, about whether she observed Petitioner in the apartment window or whether any police officer did. But even if he had done so and Xatruch had testified that an officer saw Petitioner and recognized him, given the generalized nature of the Strickland test and the attendant “leeway” the state court had in applying it (Yarborough v. Alvarado, 541 U.S. at 664), the Court cannot say that the state court's rejection of this eleventh subclaim was objectively unreasonable under Section 2254(d)(1). Whether or not the deficient performance prong is met by Ayala's failure to ask this question, fairminded jurists could disagree on whether it is reasonably probable that, but for the lack of this question, the result of the trial would have been different, and thus, whether prejudice had been shown. Strickland, 466 U.S. at 694.

In his twelfth subclaim, Petitioner complains that Ayala failed to produce in evidence the shorts worn by Petitioner at the time in question, noting that Ayala did so at the first trial. Petitioner asserts that, instead, Ayala relied only on Gonzalez's testimony that Petitioner's shorts were baggy [RT2 370] and, thus, when Ayala argued in closing that Petitioner's shorts were too baggy to hold a firearm in the waistband [RT2 637], he had given the jury “almost no evidence to support the argument.' [Mem. at 21-22.] Petitioner misstates the record. When Ayala cross-examined Officer Ortega, he repeatedly elicited testimony from the officer that the shorts were “baggy” and “oversized.” [RT2 327, 346.] Given Ortega's admission, the jury did not need to see the actual shorts for Ayala to make what was a supported argument. Neither Strickland prong is met as to this subclaim.

Petitioner faults Ayala for two things in the thirteenth subclaim. First, at the first trial, in closing, Ayala noted Officer Ortega's testimony that the gun was ready to shoot and argued that, therefore, Ortega's testimony that Petitioner tossed a gun into the purse was not plausible, because the gun “could” have gone off had this happened but it did not. [RT1 214.] Petitioner faults Ayala for failing to repeat this argument at the second trial. Second, Petitioner complains that Ayala did not elicit testimony from Ortega that Jeanette's purse was “medium-sized, ” as he had stated at the preliminary hearing. [CT 14.] Both arguments fail. In the Court's view, Ayala acted reasonably in not repeating his implausibility argument at the second trial, because it was not a particularly credible one. While Officer Ortega stated that the gun was ready to shoot, he also indicated that the trigger would need to be pulled to fire it. [RT2 317-18.] There was no evidence as to the likelihood, or not, that the trigger on this particular firearm would have been depressed if it were tossed into a purse. That the gun was ready to shoot did not render Ortega's testimony implausible. Petitioner's argument that the purse's “medium” size also rendered Ortega's testimony implausible is equally unpersuasive. A medium sized purse is large enough to accommodate a gun. The state court's rejection of the thirteenth subclaim was not objectively unreasonable.

Petitioner's fourteenth subclaim is based on the parties' stipulation to allow into evidence a redacted version of the investigator's report of his interview of Xatruch. The portion admitted included the statement - discussed previously - reading: “While our client was outside with his child, Ms. Xatruch saw the police outside and walked out to find out what was going on.” The redacted portion (the last three paragraphs) included the following language at issue here: “One of our officers looked toward out client who was inside, looking out from a window, and recognized him as someone who has a lawsuit against the police.” [Compare FAP Ex. 7 with Ex. 12.] Petitioner argues that the prosecutor was able to capitalize on this omission in closing argument by noting the discrepancy between Xatruch's trial testimony that Petitioner was upstairs the whole time and her earlier interview statement. [RT2 621.]

The record does not reveal why Ayala agreed to allow a redacted version of Xatruch's interview report to be admitted as opposed to a complete version, other than that the prosecutor noted the parties were doing so to avoid having to bring the interviewer in as a live witness. [RT2 603-04.] As noted earlier, when Xatruch was questioned at the second trial about the report's notation that she said Petitioner was outside with his child when the police arrived, she testified that the investigator had made a mistake and that she had referred to her “son, ” meaning Edwin. [RT2 412-13.] Thus, the jury was made fully aware of Xatruch's position that the report's statement had been recorded erroneously, and no other witness at trial contradicted her testimony that this was an error. Had the interviewer been required to appear as a witness, it is certainly possible, if not likely, that he would have testified that he did not make a mistake and that Xatruch did tell him that Petitioner was downstairs with his child when the police appeared. By stipulating to the admission of the report itself, this: allowed Xatruch to testify - without contradiction - that the investigator had erred in reporting what she said; and thus preserved the ability of the jury to find that the report contained an error and the defense to argue that the evidence showed Petitioner was upstairs the whole time in question.

Moreover, contrary to Petitioner's assertion, the redacted statement in the text - that later on, when Xatruch looked up at the apartment window, she saw Petitioner looking down - does not demonstrate that the interviewer recorded her prior statement in error and that she did not say that Petitioner initially was downstairs. Both statements can be reconciled, as is demonstrated by both Edwin's sworn statements that Petitioner initially was outside with his child when the police arrived but then went upstairs and Officer Ortega's testimony that Petitioner was downstairs and then went upstairs as the police approached.

Under these circumstances, it was not objectively unreasonable to find that neither Strickland prong was satisfied based on the fourteenth subclaim.

Petitioner's fifteenth subclaim rests on a jury instruction that was given at the second trial. Petitioner was charged with possession of a firearm by a felon, and the standard jury instruction for that crime is CALCRIM 2511, which sets forth its elements, including explaining possession. [See CT 161.] During the first trial's jury instructions conference, when CALCRIM 2511 came up, Ayala objected to the portion of the instruction discussing the notion of constructive possession, i.e., reading: “A persons does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/or the right to control it), either personally or through another person.” Ayala argued that the case was not a constructive possession one and the trial court agreed, noting that the jury was called upon to find that either Petitioner did have possession of the gun and tossed it into the purse, or he did not and Officer Ortega's testimony was not true. Although noting that the language was a correct statement of the law, the trial court agreed with Ayala that the language could be confusing and agreed to redact it from the instruction to be given. [RT1162-66.] At the second trial, however, Ayala did not ask for the same redaction and CALCRIM 2511 was given to the jury in its complete form. [CT 161; RT2 617.]

The record does not show why Ayala did not again object to the constructive possession language in CALCRIM 2511 at the second trial. Given that the instruction correctly stated the law, it is hard to say that the failure to do so rose to the level of deficient performance for Sixth Amendment purposes. But in any event, there is no basis for finding the prejudice prong satisfied. There were no facts in evidence that possibly could have supported a constructive possession theory for the charged offense and the prosecutor never argued such a theory. As the trial court noted at the first trial, this was a “simple” issue: either the jury believed Officer Ortega, in which case the possession element was satisfied by the testimony that Petitioner had the in his waistband before he got rid of it; or the jury believed the defense witnesses and there could be no possession, because Petitioner was not there and the gun already was in Jeanette's purse when police arrived. There is simply no basis in the record for believing that the jury relied on this factually inapplicable constructive possession language as the basis for convicting Petitioner.

Finally, the Court notes that in his Traverse, Petitioner raises an argument not expressly made in his First Amended Petition, namely, a cumulative prejudice theory. Under this theory, even if no instances of deficient performance, on their own, result in prejudice within the meaning of Strickland, a court should look to the cumulative impact of such events to find the prejudice requirement satisfied. Petitioner is correct that there are a variety of Ninth Circuit decisions, most often in the capital case context, which have relied on several pre-AEDPA decisions to note that in assessing prejudice under Strickland in a case presenting multiple attorney errors, the cumulative impact of those errors may be considered. See, e.g., Pizzuto v. Arave, 385 F.3d 1247, 1260 (9th Cir. 2004) (relying on Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995), and Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992)); Turner v. Duncan, 158 F.3d 44, 457 (9th Cir. 1998) (citing Harris). It is also true that the Ninth Circuit has, on occasion, applied the cumulative prejudice principle in cases governed by AEDPA review standards, although it has found relief unwarranted. See, e.g., Woods v. Sinclair, 764 F.3d 1109, 1139 (9th Cir 2014); Davis v. Woodford, 384 F.3d 628, 654 (9th Cir. 2004). The Circuits are split on whether a cumulative prejudice-type analysis is permitted in connection with ineffective assistance of counsel claims raised in the habeas context when cases are governed by the Section 2254(d) standard of review, with the majority allowing such an analysis.⁴⁰ To date, the Supreme Court has not held clearly and explicitly that, in the context of an ineffective assistance claim governed by Strickland, the second prong (prejudice) requirement can be fulfilled by cumulating the effects of counsel's conduct found deficient under the first prong. See Ruth A. Moyer, To Err is Human; to Cumulate, Judicious: The Need for U.S. Supreme Court Guidance on Whether Federal Habeas Courts Reviewing State Convictions May Cumulatively Assess Strickland Errors, 61 Drake L. Rev. 447, 479-83 (2013) (agreeing with Circuits that have found that “the cumulative-error doctrine as a means to establish Strickland prejudice is not ‘clearly established Federal law, as determined by the Supreme Court of the United States, '” and concluding that it therefore is error to apply the doctrine to Strickland claims reviewed pursuant to Section 2254(d)(1)). While the Court has seen the argument made (including by Petitioner) that language in various Supreme Court decisions hints at the possibility of cumulating counsel's errors for purposes of assessing prejudice under Strickland, those hints are oblique. In the absence of a clear and express Supreme Court holding endorsing such an approach, applying the AEDPA standard strictly, there presently appears to be no route to federal habeas relief under Section 2254(d)(1) based on the cumulative prejudice analysis in ineffective assistance claims espoused by Petitioner. See Kessee v. Mendoza-Powers, 574 F.3d 675, 677 (9th Cir. 2009) (“For purposes of AEDPA review, . . . a state court's determination that is consistent with many sister circuits' interpretations of Supreme Court precedent, even if inconsistent with our own view, is unlikely to be ‘contrary to, or involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.'”); Hart v. Broomfield, No. CV 05-03633-DSF, 2020 WL 4505792, *118 (C.D. Cal. Aug. 5, 2020) (finding that an ineffective assistance claim based on a cumulative Strickland prejudice theory fails under Section 2254(d)(1) due to the lack of clearly established Supreme Court precedent allowing such a theory); Reed v. Beard, No. CV 13-5698-RGK (RNB), 2015 WL 799483, *34 (C.D. Cal. Feb/ 25, 2015) (same).

40 For example, the Second and Seventh Circuits have allowed a consideration of the combined prejudicial effect of counsel's errors in determining whether Strickland's prejudice prong is met. See, e.g., Sussman v. Jenkins, 636 F.3d 329, 361-61 (7th Cir. 2011); Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir.1991). The First, Third, Tenth, and Eleventh Circuits also appear to allow a cumulative error type approach to the Strickland prejudice analysis. See Dugas v. Coplan, 428 F.3d 317, 335 (1st Cir. 2005); McNeil v. Cuyler, 782 F.2d 443, 451 (3d Cir. 1986); Williams v. Trammell, 782 F.3d 1184, 1209 (10th Cir. 2015); Evans v. Sec'y, Dep't of Corrections, 699 F.3d 1249, 1269 (11th Cir. 2012). The Fifth and Sixth Circuits have questioned the propriety of using the cumulative prejudice doctrine in connection with habeas claims governed by Section 2254(d), noting the lack of a clear Supreme Court holding in this respect. See Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006); Hill v. Davis, 781 Fed.Appx. 277, 278, 280-81 (5th Cir. July 3, 2019). The Fourth and Eighth Circuits do not permit utilizing cumulative error principles to assess prejudice under Strickland. See Fisher v. Angelone, 163 F.3d 835, 852-53 (4th Cir. 1998) (“ineffective assistance of counsel claims, like claims of trial court error, must be reviewed individually, rather than collectively”); Forrest v. Steele, 764 F.3d 848, 860 (8th Cir. 2014) (rejecting argument that Strickland allows for a cumulative prejudice-type analysis and finding such an argument unavailing under Section 2254(d)(1), because no Supreme Court decision supported it).

This reason alone could doom Petitioner's cumulative prejudice argument. But even if it could be said that the argument is supported by clearly established Supreme Court precedent, Petitioner's cumulative prejudice argument fails here because, as discussed earlier, the Court has not found multiple instances of deficient performance that can be cumulated. “There can be no cumulative error when a defendant fails to identify more than one error.” United States v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012); see also Mancuso v. Oliver, 292 F.3d 939, 957 (9th Cir. 2002) (when “there is no single constitutional error in this case, there is nothing to accumulate to a level of a constitutional violation”); United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001) (“if there are no errors or a single error, there can be no cumulative error”).

The Court has examined Petitioner's numerous ineffective assistance arguments and subclaims and, for the reasons set forth above, finds them wanting. Many of them fail on their face and, as to those that present more close questions, it is clear that fairminded jurists could differ on the propriety of the state court's rejection of them. Under these circumstances, the Section 2254(d)(1) threshold has not been surmounted. As a result, federal habeas relief based on Ground Two is foreclosed.⁴¹

41 The Court's conclusions as to Grounds One and Two moot the timeliness issues raised by Respondent.

V. Asserted Prematurity Of The Report

In his Objections, Petitioner asserts that any consideration of and recommendations regarding the merits of his claims was premature and improper, because there had been no briefing yet on the merits of his claims and no evidentiary hearing had taken place. Petitioner's assertion that his claims had not been briefed on their merits before the Report issued and that further merits briefing was to occur is simply untrue. As discussed earlier, the record readily demonstrates the merits briefing that has occurred in this case and the related court orders and stipulations by the parties, which culminated with Petitioner's Traverse filed in November 2016, and Respondent's Reply filed in March 2017, at which point this case was under submission.

With respect to Petitioner's claim that the Court could not consider the merits of his claims unless and until an evidentiary hearing occurred, Petitioner inexplicably ignores the by now well established Pinholster rule that controls in cases such as this one, which are governed by the Section 2254(d) standard of review. The Court's threshold Section 2254(d) review necessarily was limited to the record that actually was before the state high court when it considered the claims raised through Petitioner's habeas petition and denied them on their merits in September 2014. See Pinholster, 563 U.S. at 180-81; see also id at 185 (“evidence introduced in federal court has no bearing on § 2254(d)(1) review”). Based on that review, the Court has found that Petitioner's claims fail to surmount the deferential standards of Section 2254(d). Petitioner's assertion that an evidentiary hearing is required therefore fails, because unless and until the threshold requirements of Section 2254(d) are found satisfied, an evidentiary hearing is not permitted. Id. at 185 (“If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court”); see also Gulbrandson v. Ryan, 738 F.3d 976, 993-94 (9th Cir. 2013) (when a state court has denied claims on their merits, Pinholster precludes “further factual development of these claims” through an evidentiary hearing to determine whether Section 2254(d) is satisfied); Stokley v. Ryan, 659 F.3d 802, 809 (9th Cir. 2011) (“Pinholster's limitation on the consideration of [a petitioner's] new evidence . . . in federal habeas proceedings also forecloses the possibility of a federal evidentiary hearing”). This limitation applies whether a claim is evaluated under Section 2254(d)(1) or Section 2254(d)(2). See Pinholster, 563 U.S. at 189 n.7; Gulbrandson, 738 F.3d at 993 n.6.

Petitioner's objection that the Report is premature necessarily fails.

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting this Final Report and Recommendation; (2) denying the Petition; and (3) directing that Judgment be entered dismissing this action with prejudice.

NOTICE

Reports and Recommendations are not appealable to the United States Court of Appeals for the Ninth Circuit, but may be subject to the right of any party to file objections as provided in the Local Civil Rules for the United States District Court for the Central District of California and review by the United States District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until the District Court enters judgment.