REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Ronald S.W. Lew, Senior United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on June 17, 2016. Respondent filed an Answer on July 7, 2016. Petitioner filed a Reply on August 11, 2016.
BACKGROUND
A jury found Petitioner and his co-defendant Matthew McClane guilty of the felony murder of Kimberly Sum in violation of California Penal Code sections 187(a) and 190.2(a)(17), attempted first degree robbery in concert in violation of California Penal Code sections 211 and 213(a)(1)(A) and first degree burglary in the presence of another in violation of California Penal Code sections 459 and 667.5(c) (Reporter's Transcript ["R.T."] 1530, 1533-34, 1536-37, 1540, 1542-45; Clerk's Transcript ["C.T.] 795, 803, 805-06, 813, 815-16, 823, 828, 833-35, 837-38, 890-96). The jury found true the allegations that Petitioner and McClane committed the crimes for the benefit of, at the direction of or in association with a criminal street gang within the meaning of California Penal Code section 186.22(b) (R.T. 1530-31, 1533, 1536, 1540-41, 1542, 1544; C.T. 796, 804, 814, 824, 829, 836). The jury also found true various firearm enhancements as to all three offenses (R.T. 1531-32, 1534-35, 1537-38, 1554-46; C.T. 797-802, 807-12, 817-22, 825-27, 830-32, 829-41). The court sentenced Petitioner to sixty-seven years, four months to life (Supplemental Reporter's Transcript, pp. 112-14).
Petitioner filed an appeal and a habeas corpus petition in the California Court of Appeal (Respondent's Lodgments 8, 13). The Court of Appeal affirmed the judgment on appeal in a written opinion and denied the habeas corpus petition summarily (Respondent's Lodgments 15, 17; see People v. McClane, 2015 WL 292405 (Cal. App. Jan. 21, 2015, as modified Feb. 20, 2015). The California Supreme Court summarily denied Petitioner's petition for review and companion habeas corpus petition (Respondent's Lodgments 18, 20, 21, 22). Petitioner later filed a second habeas corpus petition in the California Supreme Court, which that court denied with a citation to In re Clark, 5 Cal.4th 750, 797-98 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993), indicating that the petition was successive (Respondent's Lodgments 23, 24).
FACTUAL SUMMARY
The following summary is taken from the opinion of the California Court of Appeal in People v. McClane, 2015 WL 292405 (Cal. App. Jan. 21, 2015, as modified Feb. 20, 2015). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).
Shyne's cousin [Donald Walker] testified and/or told the police[] that he and fellow 87th Street gang member, McClane, were always together and at the time of the crimes, were living around the corner from each other in Pomona. He did not know the victim. Shyne had seen his cousin and McClane together "a lot."
On December 19, 2008, Shyne called his cousin at their grandmother's home and said he wanted the cousin and McClane to do a robbery that day. Shyne said that he had been to the victim's motel suite the day before and she had been getting money from prostituting herself. Shyne explained that his cousin doing the robbery would be good because the latter had just gotten out of prison and had no money for Christmas gifts.1 Shyne told his cousin that the victim put money in an unlocked safe all the time. The safe was behind the picture in the bedroom, over the bed, in her motel suite. During his interview with police, Shyne's cousin lied and said it wasn't Shyne, but one of Shyne's pimp partners, who had put the cousin up to the robbery, because he wanted to protect Shyne, who was family.2 Shyne wanted his cousin to call the cousin's friend, McClane, and Shyne asked where the latter was. Either Shyne's cousin called McClane and ran the plan for the robbery by him and McClane agreed to it, or the cousin called McClane and told him that Shyne had something for him and he should call Shyne. Shyne had seen McClane's facial tattoos when he would see his cousin and McClane together before the crimes. Shyne picked his cousin up, then telephoned the victim, called her a punk and she hung up on him. Shyne then picked McClane up at McClane's house at 5:00 or 6:00 p.m. and drove his cousin and McClane to the victim's motel in his Cadillac, although the cousin had lied to the police and said it was a Corolla. McClane was "amped up." Shyne told them that the victim, who was a prostitute, had a number of valuables in her motel suite that she had purchased as Christmas presents and he wanted her laptop computer, but McClane and Shyne's cousin could have any jewelry and money she had. Shyne told them the victim's suite number.3 The cousin and McClane were told that there were thousands of dollars in the victim's motel suite. Shyne told them that the victim was a punk and they were to "rough her up" a bit and she would give them what they wanted. Shyne's cousin assumed that the victim kept track of her customers on her laptop and that Shyne wanted it so he could give their contact information to the prostitutes who were working for him at the time. Although Shyne was not then working, he was making money off the prostitutes for whom he pimped. Shyne instructed his cousin and McClane to call the victim and say that they had seen her ad on Craigslist and ask her if she "does Greek."4 McClane called the victim, using the phone number either Shyne had given him or which was in the victim's Craigslist ad, to which Shyne had directed him. He spoke to her via speakerphone in the presence of Shyne's cousin and Shyne, asking her if she "did Greek" and how much it would cost for the whole night. The victim set up several times for the two to meet at the motel, saying she had customers. After about four calls from McClane, a time was finally set. The victim said she was ready and the three went to the motel and Shyne parked his car on the street next to it. Shyne had shown his cousin and McClane earlier the best way to get in and out of the motel and he said that he would drive around while they were inside and pick them up when they came out. Shyne did not go in because the victim knew him. Shyne dropped his cousin and McClane off out of the sight of the motel's surveillance cameras and took off. Shyne's cousin and McClane entered the front doors of the motel, saw no one at the front desk and went to the elevators, where they put on gloves because they were both on parole and didn't want their fingerprints left in the suite in case the victim called the police. After they checked the exit door Shyne had previously told them to use, they went to the victim's suite. McClane told Shyne's cousin to go in first because he did not have tattoos on his face like McClane did.
The victim, who was naked under her opened robe, opened the door just as Shyne's cousin was about to knock. The victim told the cousin that she heard him and McClane coming. Shyne's cousin believed that the room safe had been left open, so his objective was to find it. He walked past the victim and into the bedroom of the suite to find the safe, and while there, he heard McClane with the victim on the living room couch, saying to the victim, "Shut up," "bitches" and "Where's the money?" He also heard the sound of McClane slapping the victim. Shyne's cousin checked behind the picture in the bedroom,5 but there was no safe. The cousin lifted up the mattress on one side, unsuccessfully looking for money or valuables. He found nothing worth taking and no safe. He did not see a laptop, although there was one in the living room. The cousin was supposed to serve as a lookout, so he proceeded to the front door of the suite.6 Although he gave conflicting accounts of this, he said he saw McClane dump out the victim's purse on the couch. He heard the victim say, "What money? What are you talking about?" to McClane. McClane hit the victim again and repeated his question about where the money was. The victim repeated what she had said before, getting louder. McClane told her to shut up, she got quiet, then he asked her again where the money was and she said, loudly, "What money? What are you talking about?" McClane angrily told the victim to shut up, pulled out a chrome handgun, which Shyne's cousin had not known McClane had, and fired without aiming. The victim said, "What the fuck?" and the cousin and McClane fled the suite. They had been there for less than two minutes. Neither McClane nor Shyne's cousin took anything from the suite. The cousin asked McClane why he had shot the victim and McClane said it was an accident. They went out of the motel as Shyne had instructed them. Shyne's cousin gave conflicting accounts of what became of the gun. Following Shyne's direction, McClane tried to call Shyne on his cell phone, but was not able to reach him. As McClane hung up the phone, Shyne pulled up in his car and picked them up.
Just after the cousin and McClane got into Shyne's car, and in response to his inquiry, Shyne was told that the victim had been shot and, the cousin told him that he did not see a laptop. Shyne told them that they should have taken the victim's cell phone, which the cousin assumed was because it contained the phone numbers of her customers. Shyne was upset that McClane had shot the victim and was even more upset when he learned that she had died. Shyne dropped McClane off at McClane's home, and McClane left the jacket he had been wearing in Shyne's car, telling Shyne and the cousin to throw it away.7 Shyne then drove to his home in San Bernardino, where his cousin threw McClane's jacket and the clothes he had been wearing in Shyne's neighbor's trash cans, and, at Shyne's suggestion, he and Shyne wiped down Shyne's car. All three later agreed to keep quiet about the crimes. About a week after the crimes, Shyne told his cousin that the victim was his prostitute, but she had no pimp.8 Members of Shyne's family visited the cousin frequently while the later was in jail awaiting trial in this case. They put money on his commissary account at the jail. He finally wrote them and told them to stop visiting him and stop putting money on his account because it looked like they were trying to bribe him. Shyne's father told the cousin that when it comes to family, the cousin was to shut up, but everyone else could be ratted out.
Although at the time of the crimes Shyne's cousin did not know if Shyne was the victim's pimp, afterward, he felt that he had been bamboozled by Shyne — that Shyne was trying to scare the victim into coming back to him as her pimp.
(Respondent's Lodgment 15, pp. 3-8; People v. McClane, 2015 WL 292405, at *1-2) (original footnotes renumbered).
PETITIONER'S CONTENTIONS
The Petition is not a model of clarity, but it appears Petitioner contends:
1. The prosecution presented assertedly perjured testimony from Mandingo Gibbs and Donald Walker;
2. The prosecution presented assertedly coerced testimony from Mandingo Gibbs;
3. Petitioner's trial counsel allegedly rendered ineffective assistance by failing to call "key" defense witnesses Jerica Mangham, Bill Hall and Tommy Siahaan;
4. The testimony of Donald Walker allegedly was unsupported by corroborating evidence;
5. The testimony of the prosecution's gang expert allegedly supplanted the role of the jury;
6. The evidence allegedly was insufficient to support the gang enhancement;
7. Jurors allegedly committed misconduct during deliberations by purportedly considering Petitioner's failure to testify;
8. Petitioner's appellate counsel allegedly rendered ineffective assistance by failing properly to raise on appeal or in a habeas corpus petition the claim of alleged jury misconduct; and
9. Petitioner allegedly is entitled to an evidentiary hearing.
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.
In applying these standards to Petitioner's exhausted claims, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citation, quotations and brackets omitted). If the state court did not decide a federal constitutional issue on the merits, this Court must consider that issue under a de novo standard of review. See Scott v. Ryan, 686 F.3d 1130, 1133 (9th Cir. 2012), cert. denied, 134 S.Ct. 120 (2013).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
For the reasons discussed below, the Petition should be denied and dismissed with prejudice.9
I. Petitioner's Claim That the Prosecution Allegedly Presented Perjured Testimony Does Not Merit Federal Habeas Relief.
A. Background
The prosecution's knowing use of perjured testimony to obtain a conviction can violate due process. Napue v. Illinois, 360 U.S. 264, 269 (1959); see also United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir. 1989), cert. denied, 506 U.S. 958 (1992). "The due process requirement voids a conviction where the false evidence is `known to be such by representatives of the State.'" Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004), cert. denied, 546 U.S. 935 (2005) (quoting Napue v. Illinois, 360 U.S. at 269) (footnote omitted). "The essence of the due process violation is misconduct by the government, not merely perjury by a witness." Morales v. Woodford, 388 F.3d at 1179 (footnote omitted).
To prove a due process violation, Petitioner must show that "(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) . . . the false testimony was material." Hovey v. Ayers, 458 F.3d 892, 916 (9th Cir. 2006) (citation and internal quotations omitted); see also Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc). In assessing materiality, the Court must determine whether there is any reasonable likelihood that the allegedly false testimony could have affected the verdict. See Hovey v. Ayers, 458 F.3d at 916 (citation and internal quotations omitted); see also United States v. Agurs, 427 U.S. 97, 103 (1976).
Petitioner contends the prosecution introduced the allegedly perjured testimony of Donald Walker and Mandingo Gibbs (see Petition, Attachment, ECF Dkt. No. 1, p. 16, referencing Petitioner's Court of Appeal habeas corpus petition, Respondent's Lodgment 13, pp. 7-8). Petitioner raised these claims in his first California Supreme Court habeas petition, which that court denied summarily (Respondent's Lodgments 20, 21). Therefore, to apply the AEDPA standard of review, this Court "must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 563 U.S. at 188 (citation, quotations and brackets omitted).
B. Analysis
1. Walker
Petitioner appears to contend that Walker committed perjury by testifying that Petitioner drove a burgundy Cadillac to and from the location of the crime (see Petition, attachment, ECF Dkt. No. 1, p. 21; Respondent's Lodgment 13, pp. 15-16). Petitioner relies on his declaration and the declarations of three purported witnesses, Jerica Mangham, Petitioner's godfather Bill Hall and Petitioner's mother Pinky Shyne (see Petition, attachments, ECF Dkt. No. 1-4, pp. 4-12). These purported witnesses assert that, contrary to Walker's trial testimony, Petitioner was not driving a burgundy Cadillac at the time of the incident because the Cadillac assertedly was in a repair shop (id.). Instead, Petitioner supposedly was driving a gray Lexus allegedly loaned to him by Bill Hall (id.).
Prior to trial, Walker told police interviewers that Walker thought Petitioner drove a burgundy Corolla (C.T. 1669, 1680). At the preliminary hearing, Walker admitted lying to police about the type of car Petitioner drove on the night of the crime, and Walker testified that Petitioner had driven a burgundy Cadillac (C.T. 184-85, 226). Walker did not mention a gray Lexus in the police interview or in his preliminary hearing testimony. At trial, Walker testified that he had lied to police about the Corolla and Walker testified that Petitioner had driven a burgundy Cadillac (R.T. 555-56).
Petitioner has not shown the prosecution knowingly presented false testimony from Walker. Nothing in the record shows the prosecution had reason to know that the burgundy Cadillac assertedly was in a repair shop at the time of the crime, or that Petitioner supposedly was driving a gray Lexus instead. See Morales v. Woodford, 388 F.3d at 1179 (rejecting Napue claim where petitioner "set[] out no factual basis for attributing any misconduct, any knowing presentation of perjury, by the government"; in the absence of such a factual basis "there is no basis for granting the writ even if [the witness] did lie"); United States v. Sherlock, 962 F.2d at 1364 (rejecting claim that prosecutor presented perjured testimony where defendants failed to show prosecutor knew testimony was false).
Furthermore, despite Walker's inconsistent statements and admitted lie to police concerning the Corolla, and despite the statements of Petitioner's purported witnesses concerning the vehicle Petitioner supposedly was using at the time of the crime, "the fact that a witness may have made an earlier inconsistent statement, or that other witnesses have conflicting recollections of events, does not establish that the testimony offered at trial was false." United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997). The question whether witnesses lied or erred in their perceptions or judgments is properly left to the jury. See United States v. Zuno-Arce, 44 F.3d 1420, 1422-23 (9th Cir.), cert. denied, 516 U.S. 945 (1995), overruled in part on other grounds, Valerio v. Crawford, 306 F.3d 742, 764 (9th Cir. 2002), cert. denied, 538 U.S. 994 (2003); see also United States v. Scheffer, 523 U.S. 303, 313 (1998) ("A fundamental premise of our criminal trial system is that `the jury is the lie detector.'") (original emphasis; quoting United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974)). The jury knew Walker had admitted previously lying about the type of car Petitioner drove, and Walker's credibility was an issue for the jury to resolve. See United States v. Zuno-Arce, 44 F.3d at 1422-23. Petitioner has not shown that the prosecution knowingly presented false testimony from Walker.
2. Gibbs
Petitioner contends the prosecution presented false testimony from Mandingo Gibbs, relying on Gibbs' asserted affidavit and unsworn statement, allegedly executed in 2013 and 2014 respectively (Petition, attachments, ECF Dkt. No. 1-4, pp. 13-16,). In the affidavit, Gibbs assertedly stated that, purportedly due to police coercion, Gibbs testified allegedly falsely at trial that: (1) before the crime, the victim allegedly was making a lot of money and driving new cars she obtained in Las Vegas; and (2) Gibbs had loaned money to Petitioner because Petitioner was "doing bad" (id., pp. 13-14). In the unsworn statement, Gibbs purportedly related that, when Gibbs allegedly told a detective that Gibbs had never discussed the crime with Petitioner, the detective assertedly said that there was a "CPS" case involving Gibbs' son which supposedly could be "re-opened" if Gibbs did not cooperate (Petition, ECF Dkt. 1-4, pp. 15-16).
Petitioner's claim as to Gibbs fails because there exists no evidence in the record that the prosecution knew or had reason to know of the alleged falsity of Gibbs' trial testimony. See Morales v. Woodford, 388 F.3d at 1179 ("[t]hat a witness says some years later that [he] lied at trial does not furnish a basis for granting the writ on account of the state's knowing use of perjury").
C. Conclusion
For the foregoing reasons, the California Supreme Court's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on this claim.
II. Petitioner's Claim of Alleged Witness Coercion Does Not Merit Federal Habeas Relief.
Petitioner contends law enforcement officers coerced Mandingo Gibbs to testify by allegedly threatening to take away Gibbs' child (Petition, ECF Dkt. 1-4, pp. 15-16). Under the AEDPA standard of review, Petitioner is not entitled to federal habeas relief on this claim. Although the United States Supreme Court has held that a defendant's coerced confession cannot be used at trial, see Jackson v. Denno, 378 U.S. 368, 385-86 (1964), "[n]o Supreme Court case addresses the issue of whether coerced witness testimony can be used against a defendant at trial." Trammell v. Ducart, 2015 WL 4496338, at *10 (E.D. Cal. July 23, 2015) (federal habeas relief for coerced witness statement unavailable under AEDPA standard of review); see also Samuel v. Frank, 525 F.3d 566, 569 (7th Cir. 2008) (United States Supreme Court "has not decided whether the admission of a coerced third-party statement is unconstitutional"); Harris v. Soto, 2016 WL 2587373, at *8-9 (C.D. Cal. Mar. 25, 2016), adopted, 2016 WL 2347825 (C.D. Cal. May 3, 2016) (same). In a case filed prior to AEDPA's effective date, the Ninth Circuit suggested that the use of a witness' coerced testimony can violate due process. See Williams v. Woodford, 384 F.3d 567, 593 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005). However, "circuit precedent does not constitute `clearly established Federal law as determined by the Supreme Court'" within the meaning of section 2254(d). Glebe v. Frost, 135 S.Ct. 429, 431 (2014) (citations omitted); see Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (circuit precedent "may not be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme Court] has not announced") (citations omitted). In the absence of controlling Supreme Court law, Petitioner cannot obtain federal habeas relief. See Carey v. Musladin, 549 U.S. 70, 77 (2006) ("Given the lack of holdings from this Court [on issue presented], it cannot be said that the state court "unreasonabl[y] applied clearly established Federal law.") (internal brackets and citation omitted). Accordingly, Petitioner is not entitled to federal habeas relief on this claim.
III. Petitioner's Claim of Ineffective Assistance of Trial Counsel Does Not Merit Federal Habeas Relief.
A. Standards Governing Claim of Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d at 610 (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. at 104 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).
A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 562 U.S. at 101. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 105.
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id. at 111 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "`reasonably likely'" that the result would have been different. Id. (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id. at 112.
B. Analysis
Petitioner contends trial counsel was ineffective for failing to call Jerica Mangham, Bill Hall and Tommy Siahaan, to testify that Petitioner's burgundy Cadillac assertedly was in Siahaan's repair shop at the time of the crime and that Hall purportedly had loaned Petitioner a gray Lexus (Petition, attachment, ECF Dkt. No. 1, p. 18). Petitioner apparently argues that the testimony of these witnesses would have (further) impeached Walker's testimony describing Petitioner's vehicle as a burgundy Cadillac and thereby would have cast Walker's credibility (further) into doubt (Petition, attachment, ECF Dkt. No. 1, p. 21). Petitioner contends that he told counsel of Walker's alleged perjury concerning Petitioner's car, and that counsel assertedly responded that "there was no reason to challenge it since no one observed any vehicle at the hotel or its environment at the time of the shooting" (id.).
Petitioner presented this claim in his habeas petition to the California Court of Appeal and in his first habeas petition to the California Supreme Court, both of which were denied summarily (Respondent's Lodgments 13, 14, 20, 21). Therefore, to apply the AEDPA standard of review, this Court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citation, quotations and brackets omitted).
Petitioner's claim fails for want of a showing of Strickland prejudice. There was ample (and much more substantial) evidence at trial impugning Walker's credibility. Walker admitted that his statement to police that Petitioner had driven a Corolla was a lie (R.T. 508, 555-56, 570-71). Walker admitted initially lying to police about Walker's involvement in the crime and also admitted lying even after he conceded his involvement (R.T. 421-24, 429-30, 512, 517-20, 557, 562-63). Walker admitted lying at the preliminary hearing (R.T. 571). Walker admitted having had an affair with McClane's wife while McClane was in prison (R.T. 550-51, 597). Walker pleading guilty to manslaughter, robbery and murder in connection with the Sum killing, and admitted he served time in federal prison term for smuggling aliens in a gas tank (R.T. 427, 500-01, 589-90). Walker admitted he expected leniency in exchange for his cooperation with police (R.T. 502-03). Walker admitted selling drugs at a truck stop (R.T. 649). Walker admitted he was a gang member and "no saint" (R.T. 642). Despite this substantial evidence impugning Walker's credibility, the jury elected to credit Walker's version of events. It is not reasonably probable that the jury would have reached a different conclusion had it known that Walker allegedly lied (one more time) about Petitioner's vehicle.
Furthermore, the cell phone evidence: (1) placed Petitioner's phone within a half mile of the hotel shortly before and shortly after the crime; (2) showed that Petitioner's phone communicated with McClane's phone and the victim's phone shortly before the crime; and (3) showed that Petitioner's phone communicated with McClane's phone a few minutes after Walker and McClane entered the hotel (R.T. 1132-38, 1140-64). Given the probity of this incriminating evidence, as well as the largely cumulative nature of the potential impeachment, Petitioner has not shown a reasonable probability of a different outcome had the jury known of Walker's most recent alleged lie about Petitioner's car.
Accordingly, Petitioner has not shown Strickland prejudice. It follows that the state court's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at 100-03. Petitioner is not entitled to federal habeas relief on this claim.
IV. Petitioner Is Not Entitled to Federal Habeas Relief on His Claim That Walker's Testimony Allegedly Lacked Corroboration.
California Penal Code section 1111 provides, in pertinent part, that "[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." Walker testified as the prosecution's key trial witness, describing the crime and the events before and after the crime. Petitioner contends that the trial evidence failed to include sufficient corroboration of Walker's testimony. The Court of Appeal rejected this claim on the merits, deeming the corroborating evidence sufficient (Respondent's Lodgment, 15, pp. 33-35; see People v. McClane, 2015 WL 292405, at *10-11).
Petitioner is not entitled to federal habeas relief on this claim. First, to the extent Petitioner contends the court improperly applied section 1111, Petitioner asserts only a claim of state law error not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Williams v. Long, 2015 WL 672079, at *10 (S.D. Cal. Feb. 17, 2015) (claim that state court improperly applied section 1111 did not state a cognizable federal claim). Second, the United States Supreme Court has held that a state law corroboration requirement is not a rule included within the traditional concepts of due process. Lisenba v. California, 314 U.S. 219, 226-27 (1941) (California's accomplice corroboration rule not constitutionally required); United States v. Augenblick, 393 U.S. 348, 352 (1969) ("the use of accomplice testimony is not catalogued with constitutional restrictions"); Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000) (California's corroboration rule "is not required by the Constitution or federal law") (citation omitted); Chatman v. Martel, 2013 WL 140026, at *6 (E.D. Cal. Jan. 20, 2013) ("Due process does not prohibit the use of uncorroborated accomplice testimony.") (citations omitted). Because no clearly established Supreme Court law exists supporting Petitioner's claim, section 2254(d) precludes federal habeas relief on this claim. See Carey v. Musladin, 549 U.S. 70, 77 (2006); Williams v. Long, 2015 WL 672079, at *10 (federal habeas relief unavailable on challenge to sufficiency of the evidence to corroborate an accomplice's testimony because "there is no clearly established federal law requiring the corroboration of accomplice's [sic] testimony") (citations omitted).
V. Petitioner Is Not Entitled to Federal Habeas Relief on His Challenge to the Gang Expert's Testimony.
Using a hypothetical based on the prosecution's evidence, the prosecutor sought the gang expert's opinion on the issue of whether the actions of Petitioner and McClane in robbing Sum would have benefitted the 87th Street gang (R.T. 996-97). The prosecutor used Petitioner's name and those of McClane and Walker in questioning the expert concerning the expert's opinion (see R.T. 996-99). Petitioner contends the expert's testimony usurped the function of the jury on the issue of guilt or innocence (Petition, ECF Dkt. No. 1 p.17, adopting argument in McClane's petition for review, ECF Dkt. No. 10-35, pp. 15-19).
"The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). "Although the Court has been clear that a writ should issue when constitutional errors have rendered the trial fundamentally unfair [citation], it has not yet made a clear ruling that admission of irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Id. Furthermore, the United States Supreme Court has not held "that the Constitution is violated by the admission of expert testimony concerning an ultimate issue to be resolved by the trier of fact." Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009); see also Duvardo v. Guirbino, 410 Fed. App'x 69, 70 (9th Cir. 2011) (United States Supreme Court "has never held that the admission of expert testimony on an ultimate issue to be resolved by the trier of fact violates the Due Process Clause.") (citation omitted); Briceno v. Scribner, 555 F.3d 1069, 1078 (9th Cir. 2009) (under Moses v. Payne "there is no clearly established constitutional right to be free of an expert opinion on an ultimate issue") (citation omitted). In the absence of clearly established United States Supreme Court law, Petitioner is not entitled to federal habeas relief on this claim. See Carey v. Musladin, 549 U.S. at 77.
VI. The Evidence Was Sufficient to Support the Gang Enhancement.
Petitioner challenges the sufficiency of the evidence to support the gang enhancement (see Petition, attachment, ECF Dkt. No. 1, p. 24; Reply, pp. 10-11). The Court of Appeal rejected this claim on the merits (Respondent's Lodgment 15, pp. 35-41; see People v. McClane, 2015 WL 292405, at *11-13).
A. Governing Legal Standards
On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012).
Jackson v. Virginia establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence in the light most favorable to the prosecution." Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010).10 At this step, a court "may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils, 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. (citations and internal quotations omitted); see also Coleman v. Johnson, 132 S. Ct. at 2064 ("Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts") (citation and internal quotations omitted); Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) ("it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial"). The State need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia]." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). Circumstantial evidence and the inferences drawn therefrom can be sufficient to sustain a conviction. Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).
At the second step, the court "must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court "may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. (citations and internal quotations omitted; original emphasis).
In applying these principles, a court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Coleman v. Johnson, 132 S. Ct. at 2064.
B. Analysis
California Penal Code section 186.22(b)(1) authorizes a sentence enhancement for any person who is convicted of a violent felony which was "committed for the benefit or, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." The prosecution need not show that the defendant was a member of the gang which benefitted from his or her crime. People v. Bragg, 181 Cal.App.4th 1385, 1402, 75 Cal.Rptr.3d 200 (2008). The prosecution also need not show that the defendant acted with the specific intent to promote, further or assist a gang or a gang-related crime. People v. Albillar, 51 Cal.4th 47, 66-67, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (2010). The prosecution need only prove that the defendant acted with the specific intent to promote, further or assist any criminal conduct by gang members, including the underlying crime charged. Id. at 67-68 ("The enhancement set forth in section 186.22(b)(1) . . . does not depend on membership in a gang at all. Rather it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang.").
"[I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." Id. at 68. The jury also may "infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members." People v. Morales, 112 Cal.App.4th 1176, 1198, 5 Cal.Rptr.3d 615 (2003).
Petitioner argues the evidence was insufficient because no eyewitnesses testified that the crime was a "gang crime" (Reply, p. 11). However, as indicated above, circumstantial evidence and the inferences drawn therefrom can constitute sufficient evidence. Ngo v. Giurbino, 651 F.3d at 1114-15. The evidence showed that McClane and Walker were members of the 87th Street gang; indeed, McClane was covered with gang tattoos (R.T. 405-07, 414, 970-75, 979-81, 1067, 1077, 1082). One of Petitioner's prostitutes testified that Petitioner told her he was a member of a gang (R.T. 381-82). The same witness told police prior to trial that Petitioner was a member of the Grape Street gang (R.T. 886). A police detective testified that media coverage of the crime, which included a portion of the hotel surveillance videotape, enhanced the reputation of the 87th Street Crips and the gang status of Walker and McClane (R.T. 1087-88). Walker testified that a member of the 87th Street gang had to continue to commit crimes to stay in the gang and that McClane's status in the gang would rise due to the murder (R.T. 407, 640).
The gang expert testified, inter alia, that: (1) it would not be unheard of for a member of the Grape Street Crips gang to collaborate with members of the 87th Street gang to facilitate a robbery; (2) a Grape Street Crip would collaborate with a family member in a different gang such as 87th Street to commit a crime because the family member was known and trusted; (3) the 87th Street gang committed murder, assault, drug trafficking and robbery; (4) gang members engaged in pimping because the risk was low and police had difficulty tracking the pimps; (5) non-gang members sometimes paid gang members, including family members, to commit crimes; (6) "street talk" ensured that a neighborhood would know about a gang crime, even a crime committed surreptitiously; (7) a robbery committed by two different Crip gangs would benefit both gangs by bringing a financial benefit to both gangs and by showing the "streets" that the gangs committed the crime; (8) a gang would benefit if a non-gang member used gang members to commit a crime because the crime would raise the gang's status; and (9) in the expert's opinion, the robbery of the victim in Petitioner's case would benefit the 87th Street gang by providing financial benefits, alerting gang members that the perpetrators "are willing to take it that far" and raising fear of the gang in the community (R.T. 956-97). Under the authorities cited above, the evidence was sufficient to support the enhancement.
Petitioner nevertheless appears to argue that the evidence was insufficient because Petitioner and Walker assertedly attempted to conceal evidence of the crime by wiping down the car after the crime (see Petition, attachment, ECF Dkt. No. 1, p. 24; see R.T. 644). Petitioner also points to Walker's testimony, on cross-examination, that the crime allegedly had nothing to do with a gang (Reply, p. 10; see R.T. 548). The gang expert testified, however, that even if gang members committed a crime surreptitiously, word of the crime "absolutely" would spread through the community to the gang's advantage (R.T. 991-92). In any event, even construing the testimony that Petitioner and Walker wiped down the car after the crime in the manner suggested by Petitioner, section 186.22(b) allowed the prosecution to prove the gang enhancement by showing Petitioner committed the crimes "in association with" a criminal street gang. In fact, the "association with" prong of section 186.22(b) was the "focus" of the prosecutor's closing argument (see R.T. 1374). There exists ample evidence, described above, showing that Petitioner committed the crime "in association with" gang members Walker and McClane. Although Petitioner points to allegedly contrary evidence and inferences, in reviewing the sufficiency of the evidence this Court must consider the evidence in the light most favorable to the prosecution and must draw all reasonable inferences in favor of the verdict. See Cavazos v. Smith, 132 S. Ct. at 6-7 (jury entitled to credit prosecution experts' testimony despite conflicting testimony by defense experts); McDaniel v. Brown, 558 U.S. 120, 131-34 (2010) (ruling that the lower federal court erroneously relied on inconsistencies in trial testimony to deem evidence legally insufficient; the reviewing federal court must presume that the trier of fact resolved all inconsistencies in favor of the prosecution, and must defer to that resolution); United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied, 540 U.S. 858 (2003) (in reviewing the sufficiency of the evidence, a court does not "question a jury's assessment of witnesses' credibility" but rather presumes that the jury resolved conflicting inferences in favor of the prosecution).
Finally, Petitioner assails the gang expert's testimony as unduly speculative (see Reply, p. 11). To the contrary, the gang expert's testimony was "rooted in facts shown by the evidence" and was not unduly speculative. See People v. Vang, 52 Cal.4th 1038, 1045, 132 Cal.Rptr.3d 373, 262 P.3d 581 (2011). In any event, in reviewing the constitutional sufficiency of trial evidence, the court considers all of the evidence admitted, including evidence erroneously admitted. See Lockhart v. Nelson, 488 U.S. 33, 41 (1988); accord United States v. Vizcarra-Martinez, 66 F.3d 1006, 1009 (9th Cir. 1995).
C. Conclusion
For the foregoing reasons, the California Supreme Court's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on this claim.
VII. Petitioner's Claim of Alleged Juror Misconduct Lacks Merit.
A. Background
Following the verdict, McClane's counsel filed a motion for a new trial based on alleged jury misconduct (C.T. 943-48). In a declaration attached to the motion, McClane's counsel stated that, after the verdict, a juror told counsel that at least two jurors had discussed the fact that McClane did not testify (C.T. 947). The prosecutor filed an opposition to the motion for a new trial accompanied by a declaration in which the prosecutor stated that she was present during the conversation between McClane's counsel and jurors (C.T. 959-67). According to the prosecutor, in response to a question from McClane's counsel, a juror had stated that McClane's failure to testify "had come up in some manner during their discussions," but that jurors had said that they had followed the court's instruction that they were not to consider whether or not the defendant had testified (C.T. 959-67). The prosecutor said that, in a continued conversation with jurors after McClane's counsel had left, no juror indicated that the verdicts were based on McClane's failure to testify; rather the jurors assertedly "spoke only of the evidence presented when discussing their decision and verdicts" (C.T. 968-69). At the hearing on McLane's motion for a new trial, Petitioner's counsel declined to join in the motion (R.T. 1581-82). The court observed that the declaration of McClane's counsel was hearsay and did not contain the type of material "that's normally relied on to impeach a verdict" (R.T. 1582-83).11 Indicating that it did not "necessarily find misconduct" the court stated that the juror's alleged comments were "just stray remarks" that were "speculative," "unpersuasive" and "nonprejudicial," and that the evidence against McClane was "very substantial" and "unassailable" (R.T. 1583-84).
Petitioner argues that "if jurors discussed one defendant not testifying, it surely seems that another[,] here Larry Darnell Shyne, would also be affected" (Petition, ECF Dkt. No. 1, pp. 25-26). Petitioner attempted to present his jury misconduct claim on appeal in a supplemental brief submitted to the Court of Appeal after briefing was complete, but the Court of Appeal denied Petitioner's motion to file the supplemental brief (see Respondent's Lodgments 25, 26). Petitioner presented this claim to the California Supreme Court in his second habeas petition filed in that court, which that court denied as successive (Respondent's Lodgments 23, 24). Because no state court adjudicated the merits of this claim, this Court's review is de novo. See Scott v. Ryan, 686 F.3d 1130, 1133 (9th Cir. 2012), cert. denied, 134 S.Ct. 120 (2013).12
B. Analysis
The Sixth Amendment's guarantee of a trial by jury requires that the jury base its verdict on the evidence presented at trial. Turner v. Louisiana, 379 U.S. 466, 472-73 (1965); Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006), cert. denied, 552 U.S. 833 (2007). "A jury's exposure to extrinsic evidence deprives a defendant of the rights to confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment." Raley v. Ylst, 470 F.3d at 803 (citation omitted).
However, "[t]he fact that Petitioner did not testify in his own defense is not extrinsic evidence." Id. A reviewing court may not inquire into a jury's deliberations concerning the evidence presented at trial. Id.; see Tanner v. United States, 483 U.S. 107, 126-27 (1987) (Sixth Amendment did not require a court to conduct an evidentiary hearing at which jurors would testify concerning alleged juror intoxication during deliberations); see also Anderson v. Terhune, 409 Fed. App'x 175, 178 (9th Cir.), cert. denied, 132 S.Ct. 271 (2011) (Rule 606(b) of the Federal Rules of Evidence, which governs the admissibility of juror testimony in federal habeas proceedings, forbids the admission of a juror's statement or testimony to impeach a verdict); United States v. Rutherford, 371 F.3d 634, 640 (9th Cir. 2004) (Rule 606(b) barred consideration of juror's statements that jury considered defendant's failure to testify during deliberations).13 A defendant's Sixth Amendment interests are protected by other aspects of the trial process, including voir dire, jurors' ability to report inappropriate juror behavior during the trial, and a party's ability, post-trial, "to impeach the verdict by nonjuror evidence of misconduct." Tanner v. United States, 483 U.S. at 127 (emphasis added). Accordingly, no competent, admissible evidence supports Petitioner's claim of juror misconduct.
Moreover, any alleged juror misconduct was harmless under the harmless error standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (forbidding a grant of habeas relief for a trial-type error unless the error had a "substantial and injurious effect or influence" on the outcome of the case). See Cook v. Lamarque, 593 F.3d 810, 827 (9th Cir. 2010) (applying Brecht to claim of jury misconduct). The reporting juror did not say that jurors had discussed Petitioner's failure to testify, or that jurors actually had considered either defendant's failure to testify in determining the issue of guilt. The reporting juror also confirmed that jurors had followed the court's instruction that jurors were not to consider whether or not the defendant had testified (see C.T. 969). The jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000). Petitioner has not shown that any alleged juror misconduct prejudiced Petitioner.
VIII. Petitioner's Claim of Ineffective Assistance of Appellate Counsel Does Not Merit Federal Habeas Relief.
The standards of Strickland and its progeny govern claims of ineffective assistance of appellate counsel as well as claims of ineffective assistance of trial counsel. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001), cert. denied, 535 U.S. 995 (2002); see also Daire v. Lattimore, 818 F.3d 454, 461 (9th Cir. 2016) (en banc) (clearly established Supreme Court law holds that Strickland applies to claim of ineffective assistance of counsel in noncapital sentencing proceedings). Appellate counsel has no constitutional obligation to raise all non-frivolous issues on appeal. See Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997); see also Moormann v. Ryan, 628 F.3d 1102, 1109 (9th Cir. 2010), cert. denied, 132 S.Ct. 346 (2011) (appellate counsel is not required to raise a meritless issue on appeal). "A hallmark of effective appellate counsel is the ability to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court." See Pollard v. White, 119 F.3d at 1435.
Petitioner contends appellate counsel erred in failing timely to present on appeal, or in a state habeas petition, Petitioner's claim of alleged juror misconduct (Petition, ECF Dkt. 1, p. 28; Reply, pp. 14-15). To the extent Petitioner alleges that appellate counsel rendered ineffective assistance by failing to file a state habeas petition containing this claim, Petitioner is not entitled to federal habeas relief. "There is no general constitutional right to counsel . . . in collateral postconviction review proceedings." Graves v. McEwen, 731 F.3d 876, 878 (9th Cir. 2013) (citation omitted); but cf. Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012) ("[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial"). Where no constitutional right to counsel exists, there can be no claim of ineffective assistance. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); Miller v. Keeney, 882 F.2d 1428, 1432 (9th Cir. 1989) ("If a state is not constitutionally required to provide a lawyer, the constitution cannot place any constraints on that lawyer's performance.") (citation omitted).
With respect to Petitioner's appeal, Petitioner's appellate counsel did not include the juror misconduct claim in Petitioner's opening brief or reply brief (see Respondent's Lodgments 8, 11). As indicated above, after briefing was complete, Petitioner's appellate counsel submitted to the Court of Appeal a motion to file a supplemental brief and proposed supplemental brief containing the jury misconduct claim (Respondent's Lodgment 25). The Court of Appeal denied the motion (Respondent's Lodgment 26). Petitioner presented his claim of ineffective assistance of appellate counsel to the California Supreme Court in his second habeas petition filed in that court (Respondent's Lodgment 23). The California Supreme Court denied that petition as successive (Respondent's Lodgments 23, 24). Therefore, this Court's review is de novo.14 See Scott v. Ryan, 686 F.3d at 1133.
As discussed above, there was no evidence that the jury actually considered Petitioner's failure to testify. Furthermore, as indicated above, the evidence shows that the jury followed its instructions not to consider a defendant's failure to testify. In these circumstances, appellate counsel's failure properly to raise the issue was not prejudicial to Petitioner.
IX. Petitioner Is Not Entitled to an Evidentiary Hearing.
Petitioner's request for an evidentiary hearing is denied. The state court adjudicated most of Petitioner's claims on the merits and such adjudication was not "unreasonable" under section 2254(d). As to those claims reasonably adjudicated on the merits, federal habeas relief is unavailable regardless of the nature of any additional evidence Petitioner might present for the first time in federal court. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011) ("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 the state court," even where the state court denied the petition summarily) (footnote omitted). In any event, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to any of Petitioner's claims, including those claims as to which the state courts failed to adjudicate the merits.
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.
