JEREMY D. PETERSON, Magistrate Judge.
Petitioner Aaron Lafoy Reading, a state prisoner without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254.
This case arises from a series of domestic disturbances involving petitioner, his ex-girlfriend, Arlene M., and their infant daughter, E. Petitioner allegedly threatened to take E. and sell her in San Francisco. He then entered Arlene's residence, grabbed E. from her crib, drove away, and was arrested. Petitioner was convicted of kidnapping, burglary, and attempted criminal threats, see Cal. Penal Code §§ 207, 459, 422, 664, and was sentenced to an aggregate prison term of sixteen years and eight months.
We set forth below the facts of the underlying offenses, as stated by the California Court of Appeal, Fifth District ("Court of Appeal"). A presumption of correctness applies to these facts. See 28 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015). All alterations come from the original.
People v. Reading, No. F068602, 2016 WL 69342, at *1-6 (Cal. Ct. App. Jan. 5, 2016).
A federal court may grant habeas relief when a petitioner shows that his custody violates federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 (2000). Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), governs a state prisoner's habeas petition. See § 2254; Harrington v. Richter, 562 U.S. 86, 97 (2011); Woodford v. Garceau, 538 U.S. 202, 206-08 (2003). To decide a Section 2254 petition, a federal court examines the decision of the last state court that issued a reasoned opinion on petitioner's habeas claims. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner's claims on the merits, a federal court reviews the state court's decision under the deferential standard of Section 2254(d). Section 2254(d) precludes a federal court from granting habeas relief unless a state court's decision is (1) contrary to clearly established federal law, (2) a result of an unreasonable application of such law, or (3) based on an unreasonable determination of facts. See § 2254(d); Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018). A state court's decision is contrary to clearly established federal law if it reaches a conclusion "opposite to" a holding of the United States Supreme Court or a conclusion that differs from the Supreme Court's precedent on "materially indistinguishable facts." Soto v. Ryan, 760 F.3d 947, 957 (9th Cir. 2014) (citation omitted). The state court's decision unreasonably applies clearly established federal law when the decision has "no reasonable basis." Cullen v. Pinholster, 563 U.S. 170, 188 (2011). An unreasonable determination of facts occurs when a federal court is "convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record." Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir. 2016). Further, a federal habeas court has an obligation to consider arguments or theories that "could have supported a state court's decision." See Sexton v. Beaudreaux, 138 S.Ct. 2555, 2557 (2018) (quoting Richter, 562 U.S. at 102). In addition, one rule applies to all state prisoners' petitions adjudicated on the merits: the petitioner must show that the state court's decision is "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.
Even when a state court does not explicitly address a petitioner's claims on the merits, a Section 2254 petitioner must satisfy a demanding standard to obtain habeas relief. When a state court gives no reason for denying a petitioner's habeas claim, a rebuttable presumption arises that the state court adjudicated the claim on the merits under Section 2254(d). See Richter, 562 U.S. at 99. And a federal habeas court's obligation to consider arguments or theories that could support a state court's decision extends to state-court decisions that offer no reasoning at all. See Sexton, 138 S. Ct. at 2557.
If a state court denies a petitioner's habeas claim solely on a procedural ground, then Section 2254(d)'s deferential standard does not apply, see Visciotti v. Martel, 862 F.3d 749, 760 (9th Cir. 2016), but the petitioner faces another hurdle: if the state court's decision relies on a state procedural rule that is "firmly established and regularly followed," the petitioner has procedurally defaulted on his claim and cannot pursue habeas relief in federal court unless he shows that the federal court should excuse his procedural default. See Johnson v. Lee, 136 S.Ct. 1802, 1804 (2016); accord Runningeagle v. Ryan, 825 F.3d 970, 978-79 (9th Cir. 2016). If the petitioner has not pursued his habeas claim in state court at all, the claim is subject to dismissal for failure to exhaust state-court remedies. See Murray, 882 F.3d at 807.
If obtaining habeas relief under Section 2254 is difficult, "that is because it was meant to be." Richter, 562 U.S. at 102. As the Supreme Court has put it, federal habeas review "disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority." Id. at 103 (citation omitted). Our habeas review authority serves as a "guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. at 102-03.
Here, petitioner raises two habeas claims: (1) the government failed to disclose evidence of prior inconsistent statements made by petitioner's ex-girlfriend, Arlene M., in violation of Brady v. Maryland, 373 U.S. 83 (1963); and (2) petitioner received ineffective assistance from his trial counsel, who failed to cross-examine Arlene using her prior inconsistent statements. The Court of Appeal rejected both claims as conclusory. The California Supreme Court summarily denied review.
Before trial, Arlene said in her police statements that petitioner threatened her in text messages and Facebook messages, stating that he would kidnap and sell their child. At trial, Arlene testified that, while she was pregnant with E., petitioner threatened her at least once per week, telling her that he would kidnap E. and sell her in San Francisco. Arlene testified that he repeated this threat at some point after E.'s birth. Petitioner does not deny that he made such a threat orally, but focuses on the distinction between a threat made orally and one made by electronic means.
In his state habeas proceeding, petitioner argued that the prosecutor committed a Brady violation by failing to disclose records of petitioner's own cellphone text messages, which petitioner claimed he could have used to impeach Arlene's trial testimony that petitioner threatened her via text message. The Court of Appeal summarily rejected petitioner's claim as unsubstantiated. In this habeas proceeding, petitioner advances the same claim, arguing that the prosecutor should have disclosed the records of petitioner's text messages. See ECF No. 1 at 5-6, 39-41, 46-50. We conclude that the Court of Appeal did not unreasonably reject petitioner's Brady claim.
Under Brady and its successors, a state can violate a criminal defendant's due process rights by failing to disclose evidence that is material to the defendant's guilt or punishment. See Cone v. Bell, 556 U.S. 449, 451 (2009); Brady, 373 U.S. at 87; Browning v. Baker, 875 F.3d 444, 459 (9th Cir. 2017). A criminal defendant claiming a Brady violation must show: (1) the evidence at issue is favorable to him either because it is exculpatory or impeaching; (2) the government suppressed the evidence, either willfully or inadvertently; and (3) the defendant suffered prejudice. See Banks v. Dretke, 540 U.S. 668, 691 (2004); Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Shelton v. Marshall, 796 F.3d 1075, 1083 (9th Cir. 2015). We assume that petitioner has satisfied the first requirement, and so focus on the second and third requirements.
A reasonable jurist could conclude that the government did not suppress petitioner's text messages. The government does not "suppress" evidence under Brady when a criminal defendant was aware of, and had equal access to, the relevant evidence. See Jones v. Ryan, 733 F.3d 825, 838 (9th Cir. 2013) (rejecting a habeas Brady claim for failure to disclose evidence held by a manufacturer of electronic monitoring devices and noting, "Jones had equal access to information regarding BI's alleged problems as did the State . . . Jones cannot now complain that the State violated Brady at the habeas corpus stage by not bringing the evidence to his attention.") (internal citation omitted); Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) ("[W]here the defendant is aware of the essential facts enabling him to take advantage of any exculpatory evidence, the Government does not commit a Brady violation by not bringing the evidence to the attention of the defense."); Jimenez v. Blades, No. 1:15-cv-00484, 2018 WL 6591918, at *8 (D. Idaho Dec. 14, 2018) ("Petitioner's Brady argument fails because he knew about the evidence and had equal access to have it tested before trial. . . . Evidence is not considered `withheld' by the prosecution if Defendant's counsel knew about it and could have requested testing.").
Here, petitioner appears to have had equal access to the evidence at issue. The allegedly undisclosed evidence consisted of petitioner's own text messages, and petitioner does not explain why he needed the government to obtain those messages for him. Petitioner gives us no reason to doubt that he knew of his own text messages, or that could have obtained copies of them— presuming he no longer had access to them through his smartphone or computer—by making a request to his cellular service provider. Petitioner therefore cannot prevail on his Brady claim. Cf. Raley, 470 F.3d at 804 ("Because Petitioner knew of the existence of the evidence, his counsel could have sought the documents through discovery.").
A reasonable jurist could also conclude that petitioner suffered no prejudice. Courts use the terms "prejudice" and "materiality" interchangeably for Brady purposes. See Shelton, 796 F.3d at 1084 n.9. To show prejudice or materiality, the petitioner must show a "reasonable probability that the suppressed evidence would have produced a different verdict." Strickler, 527 U.S. at 281. A reasonable probability does not require the petitioner to show that he "would more likely than not have received a different verdict with the evidence," but only that the likelihood of a different result is great enough to `undermine' the court's "confidence in the outcome of the trial." See Smith v. Cain, 565 U.S. 73, 75 (2012).
Evidence impeaching a witness "may not be material if the State's other evidence is strong enough to sustain confidence in the verdict." See id. at 76; accord Payton v. Davis, 906 F.3d 812, 822 (9th Cir. 2018) (rejecting a habeas Brady claim given the government's other evidence of petitioner's guilt). Evidence impeaching a witness may also be rejected as immaterial when it pertains to an ancillary matter. See Reis-Campos v. Biter, 832 F.3d 968, 976 (9th Cir. 2016) (finding no materiality when the undisclosed evidence contradicted the witness's statements on gang members' violent activities and tendencies, when a party had presented the witness to opine whether the killing at issue was gang-related); Roberts v. Howton, 13 F.Supp.3d 1077, 1108 (D. Or. 2014) (reasoning that a witness's inconsistent statements on the date when a sleeping bag used to transport a dead body was placed in the petitioner's truck had insufficient import to be material, when the date the bag was placed in petitioner's truck was of secondary importance). The "AEDPA's extremely deferential standard" applies to this inquiry, Reis-Campos, 832 F.3d at 975, and a federal habeas court considers whether the state court's decision was objectively unreasonable to conclude that "there was not a reasonable probability that the jury would have reached a different result." Browning, 875 F.3d at 464.
Here, petitioner has not established that the undisclosed evidence had adequate impeachment value because petitioner's Facebook messages admitted at trial showed that he did in fact send threatening messages to Arlene. On July 18, 2013, Arlene obtained a restraining order against petitioner. RT 1:39-41, 2:308; CT 1:147-53.
Supp. CT 9, 45 (ellipses in original). Arlene testified that after reading these messages, she thought petitioner planned to kidnap her child. RT 1:46-47. Although the Facebook messages did not explicitly mention kidnapping, Arlene could construe them as threats to kidnap the child, given the context. Arlene had a restraining order against petitioner that stripped him of his custody rights, and petitioner does not deny having said orally that he would kidnap and sell Arlene's child. Arlene also knew of a prior incident in which petitioner had taken the child away from her: petitioner had once picked up the child by her shirt, placed her in a bedroom, and barricaded himself with the child in the room. RT 1:35-36. Given Arlene's experience with petitioner, she could infer from the Facebook messages sent by petitioner that he would kidnap the child—as he eventually did.
Petitioner emphasizes that his Facebook messages did not explicitly state that he would kidnap and sell the child in San Francisco, ECF No. 16 at 2, but this observation is trivial. As noted above, Arlene could have read petitioner's messages as threats of kidnap. The jury could also have found that her memory was imperfect, but that her testimony still supported the jury's verdict. Victims "often confuse the details of particular incidents," and we do not expect perfect recall from a victim—or any witness. See generally Ren v. Holder, 648 F.3d 1079, 1085-86 (9th Cir. 2011). Arlene may have forgotten whether petitioner threatened her in text messages, Facebook messages, or orally; this would hardly prove her dishonesty. What mattered here was whether petitioner threatened to take away Arlene's child, and the jury had ample evidence that he did. Because the jury could find Arlene that did not lie when she stated that petitioner had threatened via message to take away her child, the introduction of the undisclosed messages might have had little effect on the jury's assessment of Arlene's honesty.
In sum, petitioner's Brady claim has no merit. We decline to grant habeas relief on this claim.
Petitioner advances a similar argument in support of his ineffective assistance of counsel claim: that his trial counsel was ineffective because the attorney failed to impeach Arlene with her prior inconsistent statements in certain police reports. One police report states, "Ar[]lene stated one of the text messages stated he was going to take his daughter . . . and sell her in San Francisco." ECF No. 1 at 26. Another report states, "Arlene said Reading sent her face book messages approximately two to three days ago. She received face book messages from Reading telling her the following: . . . Reading said he was going to take [petitioner's daughter] away from her and sell her. . . ." Id. at 28. Arlene testified at trial, "He said that he was going to send me back to New York and take my daughter and sell her in San Francisco." ECF No. 1 at 30-31; see also RT 1:33-34. Petitioner contends that these statements are inconsistent because Arlene testified at trial that petitioner had orally threatened her, even though she had stated in the police reports that petitioner had threatened her in text and Facebook messages. ECF No. 1 at 7. Petitioner argues that his trial counsel should have used these inconsistent statements to show that Arlene was not being truthful. See id. This claim lacks merit.
A "doubly" deferential standard governs a federal habeas petitioner's claim of ineffective assistance of counsel. See Richter, 562 U.S. at 105. On direct appeal, the two-step inquiry from Strickland v. Washington guides the analysis for an ineffective-assistance-of-counsel claim. See 466 U.S. 668, 687 (1984). First, a criminal defendant must show some deficient performance by counsel that is "so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id. Second, the defendant must show that the deficient performance caused him prejudice, which requires "showing that counsel's errors were so serious as to deprive [the petitioner] of a fair trial." Id. On habeas review, coupled with Section 2254(d)'s fairminded jurist standard, the Strickland requirements become even more deferential: the question is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 562 U.S. at 105 (emphasis added). That is, if there is even one reasonable argument that counsel did not violate the Strickland standard—even if the state court has not identified such argument—the petitioner cannot obtain habeas relief. See id. at 106.
Here, petitioner has not shown any deficient performance by his trial counsel. The attorney may have had a tactical reason not to impeach Arlene using petitioner's messages. A competent attorney could conclude that the distinction between threatening a victim orally and doing so via electronic messages was petty and that emphasizing the distinction would not help petitioner.
Petitioner's ineffective assistance of counsel claim lacks merit. No other claim remains. We will deny the petition in its entirety.
A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district court's denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to show that "jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; accord Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the denial of a constitutional right. Thus, the court should decline to issue a certificate of appealability.
