Report and Recommendation

JILL L. BURKHARDT, Magistrate Judge.

I. INTRODUCTION

On March 31, 2016, Petitioner Paul Hupp ("Petitioner"), an individual under supervision of the Riverside County Probation Department proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") in federal court pursuant to 28 U.S.C. § 2254. (ECF No. 1.) He challenges his 2013 state court convictions in the Superior Court of San Diego County, Case No. SCD238651, for stalking in violation of a court order, making a criminal threat, and disobeying a court order. (Id.; ECF No. 6-29 at 10-11.)1 On April 5, 2016, the Court issued a Notice Regarding Possible Failure to Exhaust and One-Year Statute of Limitations. (ECF No. 3.) On May 3, 2016 Respondent filed her Answer and Memorandum of Points and Authorities in Support of the Answer ("Answer"). (ECF Nos. 5-6.) On July 8, 2016, Petitioner filed his Opposition to Respondent's Answer ("Traverse"). (ECF No. 8.) On February 21, 2018, this case was transferred to the undersigned magistrate judge. (ECF No. 18.)

This Report and Recommendation is submitted to United States District Judge Gonzalo P. Curiel pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California. The Court has read and considered the Petition, the Answer, the Traverse, the lodgments and other documents filed in this case, and the legal arguments presented by both parties. For the reasons discussed below, the Court RECOMMENDS the Petition be DENIED.

II. BACKGROUND

This Court gives deference to state court findings of fact and presumes them to be correct. See 28 U.S.C. § 2254(e)(1). Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See id.; see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness).

On January 8, 2015, the California Court of Appeal filed its reasoned opinion ruling on Petitioner's direct appeal of his 2013 state court judgment convicting him of stalking in violation of a court order, making a criminal threat, and disobeying a court order.2 (ECF No. 6-29.) Accordingly, the following facts are taken entirely from the California Court of Appeal's opinion:3

Letters Sent by Defendant in 2000 and 2006 Concerning Freedman's 1998 Administrative Decision

Defense

(ECF No. 6-29 at 2-11 (alterations in original).)

Petitioner appealed his convictions to the California Court of Appeal. Petitioner argued he was deprived of a fair trial due to his counsel's ineffectiveness in failing to move to exclude evidence of his 2011 contempt conviction since it was obtained through a violation of his Brady rights, the prosecutor's misconduct in presenting the jury with collateral, irrelevant, and prejudicial matters, and the trial court's erroneous rulings permitting the prosecutor to impeach the defendant with collateral matters over defendant's objections. (ECF No. 6-26.) In January 2015, the California Court of Appeal found no error but did find Petitioner could not be convicted of a second stalking charge. (ECF No. 6-29.)

Petitioner then filed a petitioner for review with the California Supreme Court in February 2015. (ECF No. 6-30) Petitioner argued that the Supreme Court should grant review to determine:

(Id.) In April 2015, the California Supreme Court denied the petition without comment. (ECF No. 6-31.)

On March 31, 2016, Petitioner filed the instant Petition. Petitioner alleges that his Petition for Writ of Habeas Corpus should be granted on the following six grounds:

(ECF No. 1 at 5-17.)

III. SCOPE OF REVIEW

Title 28 of the United States Code, section 2254, provides the following scope of review for federal habeas corpus claims:

28 U.S.C. § 2254(a).

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") also govern habeas corpus claims. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997) (holding that federal courts reviewing any habeas petition filed in federal court after the April 24, 1996 enactment of AEDPA will apply its provisions). AEDPA amended 28 U.S.C. § 2254(d), which now reads:

28 U.S.C. § 2254(d).

Where there is no reasoned decision from the state's highest court, the federal habeas court "looks through" to the underlying appellate decision in applying AEDPA. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); see also Harrington v. Richter, 562 U.S. 86, 99-100 (2011) (holding that an unexplained denial of a claim by the California Supreme Court is an adjudication on the merits of the claim and is entitled to deference unless "there is reason to think some other explanation for the state court's decision is more likely").

IV. DISCUSSION

A. Requests for Judicial Notice

In his traverse filed on July 8, 2016 (nunc pro tunc), Petitioner requests that this Court take judicial notice of:

(ECF No. 8 at 15-16.)

Under Federal Rule of Evidence 201, "[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. Courts "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." U.S. ex rel Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (internal quotation marks and citations omitted); see also Harris v. Cty. of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (noting that a court may take judicial notice of federal and state court records); White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010) (taking judicial notice of the docket sheet of a California court). Courts may take judicial notice of a record of a state agency that is not subject to reasonable dispute. Brown v. Valoff, 422 F.3d 926, 932-33, n.7, n.9 (9th Cir. 2005); see also Birdwell v. Martel, 2012 WL 1131540, at *1, n.1 (E.D. Cal. Mar. 30, 2012) (taking judicial notice of Board of Parole Hearings Decision submitted by petitioner).

Applying the above standards, the Court grants Requests 2, 3, 5, 6, 7, 8, and 9. The Court takes judicial notice of the existence of these documents but not the disputed assertions made therein. Requests 1 and 4 are denied as neither e-mails nor laboratory reports contain facts that "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." See Fed. R. Evid. 201.

B. Subject Matter Jurisdiction over Collateral Challenges to Expired Convictions

The common thread to each of Petitioner's habeas grounds is his argument that his 2013 convictions were unlawfully obtained because the jury was improperly presented with evidence of his prior convictions. As framed by Petitioner, his challenges to his 2013 convictions rest on his ability to launch successful collateral attacks either on his 1982 misdemeanor conviction for contributing to the delinquency of a minor, or on his 2011 civil contempt of court conviction for sending Mr. Freedman letters in violation of a November 2010 restraining order. (ECF Nos. 1, 8.) Specifically, Petitioner's claims are premised upon this argument: (1) an earlier conviction of Petitioner's was unlawfully obtained; (2) evidence of that earlier conviction was used against him at in his 2013 trial; and (3) therefore his 2013 conviction must be reversed.10 As explained below, Petitioner is not "in custody" under the earlier convictions he challenges and, thus, his claims are not cognizable on federal habeas review.11

At the time of the filing of this Petition, Petitioner was not in custody for either of these prior convictions.12 That is, each is an "expired conviction" that is no longer open to attack in its own right. As a result, the threshold issue is whether Petitioner can use this habeas proceeding to collaterally attack these prior expired convictions. If he cannot, his Petition must be denied, for he asserts no other bases for attacking his 2013 convictions.

Subject matter jurisdiction over federal habeas corpus petitions exists only when, at the time the petition is filed, the petitioner is "in custody" under the conviction or sentence challenged in the petition. Maleng v. Cook, 490 U.S. 488, 490-91 (1989); 28 U.S.C. § 2254(a); Bailey v. Hill, 599 F.3d 976, 978-79 (9th Cir. 2010) ("federal courts lack jurisdiction over habeas corpus petitions unless the petitioner is `under the conviction or sentence under attack at the time his petition is filed'"); Sandoval v. Unknown, No. 17cv1275-GPC-BGS, 2017 WL 3021039, at *1 (S.D. Cal. July 17, 2017) (same). At the time of filing the Petition, Petitioner was in custody under his 2013 convictions only. Thus, unless an applicable exception applies, Petitioner cannot meet the "in custody" requirement as to his expired 1982 and 2011 convictions and their legality cannot be challenged through this habeas proceeding.

The Supreme Court has established two exceptions to this strict "in custody under the conviction or sentence challenged" habeas requirement. A petitioner challenging in habeas the validity of an expired conviction can satisfy the "in custody" requirement, even if he is no longer in custody for the prior conviction, if the prior conviction: (1) is a necessary predicate to his current conviction or sentence; or (2) was used to enhance his current sentence for a later offense. See Lackawanna Cty. Dist. Att'y v. Coss, 532 U.S. 394, 401-02 (2001); Maleng, 490 U.S. at 493-94. Under these limited circumstances, the "in custody" requirement is deemed to be satisfied by the later conviction or sentence. See Lackawanna, 532 U.S. at 401-02 (challenge to 1958 expired conviction construed as challenge to current 1978 sentences enhanced by 1958 conviction). However, and most pertinent here, courts have not held that a petitioner can challenge the validity of an expired conviction merely because it was introduced—rightly or wrongly—as evidence at the trial that resulted in a petitioner's current convictions and custody.

Here, Petitioner does not contend, and the record does not support, that either of his prior convictions was a necessary predicate to his current confinement or sentence. (See ECF Nos. 6-21 at 18-21 (verdict forms); 6-25 at 187-191 (Counts 1-4).) Cf. Zichko v. Idaho, 247 F.3d 1015, 1019-20 (9th Cir. 2001) (finding habeas petitioner is in custody for purposes of challenging earlier, expired rape conviction, when he is incarcerated for failing to comply with a state sex offender registration law, because the earlier rape conviction is a necessary predicate to the failure to register charge). It cannot be plausibly argued that one cannot be convicted of stalking in violation of a court order, making a criminal threat, and/or disobeying a restraining order unless one was previously convicted of contributing to a delinquency of a minor or civil contempt. Although these prior convictions constituted some of the evidence used against Petitioner in his trial in 2013,13 they were not predicate offenses.

Similarly, Petitioner does not argue, nor could he, that either prior conviction was used to enhance his current sentence. On the contrary, all of Petitioner's arguments go to the propriety of the use of evidence of his prior convictions to secure his current 2013 convictions, and Petitioner does not separately challenge the 2013 sentence itself in any way.

As a result, the Petition should be denied for lack of subject matter jurisdiction as it is entirely premised on Petitioner's ability to launch successful collateral attacks on prior expired convictions, and Petitioner cannot satisfy the "in custody" requirement of 28 U.S.C. § 2254(a) with respect to his 1982 and 2011 convictions.

C. Collateral Challenges to Expired Convictions are not Cognizable on Federal Habeas Review

To the extent the District Judge declines to deny the entire Petition for lack of subject matter jurisdiction alone, the "in custody" requirement is only the first insurmountable hurdle to the success of this Petition. Even if Petitioner could satisfy §2254's "in custody" requirement by relying on the fact that evidence of his prior expired convictions was used to secure his current conviction, this Court would still be precluded from granting Petitioner relief based upon his challenge to the legality of his prior expired convictions. For the next part of this analysis, the Court again looks to the United States Supreme Court case of Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001).

In Lackawanna, after having determined that petitioner met the threshold "in custody" requirement under §2254, the Supreme Court turned to the issue of the extent to which a federal habeas petitioner can challenge the underlying predicate conviction under §2254. Id. at 402. Emphasizing the need for finality of judgments, the Supreme Court held that, even where the "in custody" requirement has been satisfied, a petitioner generally may not use a habeas challenge to a current conviction to attack a prior conviction that is no longer open to direct or collateral attack in its own right. Specifically the Supreme Court determined, "once a state conviction is no longer open to direct or collateral attack in its own right . . . the conviction may be regarded as conclusively valid . . . [and even] [i]f that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained." Id. at 403-04.

The Supreme Court in Lackawanna recognized only one exception and one additional possible exception to this general rule, neither of which help Petitioner here. The recognized exception applies when there is a challenge to a prior expired conviction which was uncounseled in violation of the Sixth Amendment as recognized in Gideon v. Wainwright, 372 U.S. 335 (1963). Lackawanna, 532 U.S. at 404.14 Although Petitioner here seeks to challenge his 1982 conviction on the basis that it was uncounseled, an uncounseled misdemeanor conviction for which the defendant is not imprisoned, such as Petitioner's 1982 conviction (see, e.g., ECF No. 6-8 at 46, 55, 66), does not violate the Sixth Amendment. Nichols v. United States, 511 U.S. 738, 743 n.9 (1994) ("In felony cases, in contrast to misdemeanor charges, the Constitution requires that an indigent defendant be offered appointed counsel unless that right is intelligently and competently waived.") (citing Gideon v. Wainwright, 372 U.S. 335 (1963)); Scott v. Illinois, 440 U.S. 367, 373-74 (1979) ("the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense"). Thus, the Gideon exception to collateral attacks on expired convictions does not apply.

The second, possible exception contemplated by a plurality of the Court in Lackawanna, could apply in the situation where a petitioner cannot be faulted for failing to obtain a timely review of a constitutional claim, either because a state court, without justification, refused to rule on a constitutional claim properly presented to it, or because the petitioner uncovered "compelling evidence" of his innocence after the time for review had expired that could not have been timely discovered. Lackawanna, 532 U.S. at 405-06; see also Dubrin v. People of California, 720 F.3d 1095, 1098 (9th Cir. 2013) ("when a defendant cannot be faulted for failing to obtain timely review of a constitutional challenge to an expired prior conviction, and that conviction is used to enhance his sentence for a later offense, he may challenge the enhanced sentence under § 2254 on the ground that the prior conviction was unconstitutionally obtained").

Petitioner argues that his 2011 conviction was not appealable. (ECF No. 8 at 4, n.5, 9, n.12.) But Petitioner also acknowledges that his civil contempt conviction was reviewed in state habeas corpus proceedings. (See ECF No. 8 at 36; see also Hupp v. San Diego Super. Ct., et al., 12-cv-00274-WQH-JMA, ECF No. 1 at 13 (Jan 4, 2012 denial of habeas petition for review of 2011 conviction by Supreme Court of California).) Petitioner also filed federal habeas corpus proceedings as to that conviction in this district court, which were dismissed first for failure to exhaust and then for failure to meet the "in custody" requirement. (See Hupp v. San Diego Super. Ct., et al., 12-cv-00274-WQH-JMA, ECF No. 4.) Thus, the second, possible exception to the general rule that collateral attacks on prior expired convictions are off-limits does not apply.

In sum, Petitioner's claims must be denied because this Court lacks jurisdiction to grant the relief Petitioner seeks. His claims all turn on challenges to prior expired convictions for which he cannot meet the "in custody" requirement. Petitioner cannot rely on any exception to the "in custody" rule because the convictions he asserts were unlawfully obtained were neither predicates to his current conviction nor were they used to enhance his current sentence. Even if he could satisfy the "in custody" requirement, which he cannot, his collateral challenges to his prior convictions are not cognizable on federal habeas review. The prior convictions were not uncounseled in violation of Gideon and Petitioner was not deprived of any opportunity for review as contemplated by the plurality in Lackawanna. On this basis, the Court RECOMMENDS that this Petition be DENIED.

D. Merits of Petitioner's Claims

If the District Judge declines to deny the entire Petition for lack of subject matter jurisdiction and construes the Petition as containing claims that are not merely off-limit collateral attacks on prior expired convictions, the Court recommends dismissal on the merits, based upon the following analysis.

1. Ineffective Assistance of Trial Counsel (Ground 2)

In ground two, Petitioner alleges ineffective assistance of counsel due to counsel's failure to have the 1982 misdemeanor conviction excluded from trial as it was invalid and stale. (ECF No. 1 at 7.) Respondent does not address this ground.15

Habeas petitioners who wish to challenge either their state court convictions or the length of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Ordinarily, to satisfy the exhaustion requirement, a petitioner must "`fairly present[]' his federal claim to the highest state court with jurisdiction to consider it, or . . . demonstrate [] that no state remedy remains available." Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted). Moreover, to properly exhaust state court remedies, a petitioner must allege in state court how one or more of his or her federal rights have been violated. For example, "[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court." See Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Petitioner did not satisfy the exhaustion requirement with respect to his second ground for habeas relief.

Ground two was not raised before the California courts. (See ECF Nos. 6-26; 6-30.) Nonetheless, as this Court finds there are no longer state judicial remedies available, the Court considers ground two to be technically exhausted.16 Thus, Petitioner's ground two may be procedurally defaulted, and thus barred from federal habeas review.

However, this issue was not briefed by the parties. Moreover, this Court need not determine whether Petitioner is procedurally barred from raising ground two because on its face and without regard to any facts that could be developed below, ground two is "clearly not meritorious." Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("Procedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same."). Based on a de novo analysis, habeas relief should be denied as to ground two.

For ineffective assistance of counsel to provide a basis for habeas relief, Petitioner must show that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1994). "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. Petitioner must also show that counsel's deficient performance prejudiced the defense, in that "counsel's errors were so serious as to deprive [Petitioner] of a fair trial, a trial whose result is reliable." Id. To show prejudice, Petitioner need only demonstrate a reasonable probability—"a probability sufficient to undermine confidence in the outcome"—that the result of the proceeding would have been different absent the error. Id. at 694. Petitioner must establish both deficient performance and prejudice in order to establish ineffective assistance of counsel. Id. at 687.

"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010). "Even under de novo review, the standard for judging counsel's representation is a most deferential one." Richter, 562 U.S. at 105. "Representation is constitutionally ineffective only if it `so undermined the proper functioning of the adversarial process' that the defendant was denied a fair trial." Id. at 110 (quoting Strickland, 466 U.S. at 686).

This Court concludes that trial counsel's failure to move to exclude the 1982 conviction did not constitute ineffective assistance of counsel under the standards set forth in Strickland. Even assuming trial counsel erred by not moving to exclude all evidence concerning the 1982 conviction,17 this Court finds there was no prejudice because there was no chance of such a motion succeeding, and Petitioner fails to demonstrate otherwise. The identity of Petitioner as the author and sender of insulting and threatening letters to Mr. Freedman was the major issue at trial. And an understanding of the difference of opinion between Petitioner and Mr. Freedman regarding the 1982 conviction was highly relevant to whether Petitioner had a motive to author and send the letters to Mr. Freedman. (See, e.g., ECF No. 6-4 at 11; ECF No. 6-25 at 4 (prosecution's trial br.).)

By way of background, Petitioner did not disclose the 1982 conviction in a teaching application in 1987, which led to his being denied a certificate of clearance, and later a 30-day emergency credential to be a substitute teacher. Mr. Freedman, sitting as a pro tem administrative law judge, issued a written decision recommending denial of the 30-day emergency credential, reasoning that Petitioner's 1982 conviction involved acts of moral turpitude and directly related to his fitness to teach, and defendant failed to disclose this conviction in his 1987 application for a certificate of clearance. (See ECF No. 6-29 at 3, n.1.) Petitioner took issue with Mr. Freedman's characterization of the 1982 conviction and filed suit against Mr. Freedman about it. (See ECF No. 6-9 at 127-28; ECF No. 6-22 at 121-24, 181-87.)

To demonstrate motive, the prosecution sought to show that Petitioner believed Mr. Freedman ruined his life and was angry enough with Mr. Freedman to write threatening letters to him during the relevant time period, September 30, 2009 through December 27, 2011.18 The prosecution sought to show that Petitioner believed both that the 1982 conviction was void and that Mr. Freedman knew it was void when he issued his decision. The prosecution sought to show that Petitioner maintained this belief throughout 2011 as evidenced by, for example, Petitioner's civil rights suit against Mr. Freedman that alleged Mr. Freedman "cost Plaintiff literally millions of dollars in lost income from denial of Plaintiff's teacher permit on the basis of a trumped up, invalid and void, misdemeanor citation that was close to two (2) decades old and involved nothing more than a fine of less than $200." (ECF No. 6-22 at 34; ECF No. 6-9 at 111-17; see also ECF No. 6-12 at 140-44; ECF No. 6-12 at 5-6.)

The trial court held that it was appropriate for the jury to hear evidence about Petitioner's disagreement with Mr. Freedman, which would necessarily include evidence about the 1982 conviction. For example, the trial court ruled admissible two letters sent to Mr. Freedman known to be from Petitioner over Petitioner's trial counsel's objections, including an objection that the letters "invite[] speculation about all the underlying legal activity." (ECF No. 6-4 at 8, 16-29.) The first letter did not mention the 1982 conviction. (See ECF No. 6-22 at 11-13 (Tr. Ex. 1).) However, the second letter did. In that letter, Petitioner referenced the 1982 conviction and his disagreement with Mr. Freedman about the conviction in the text of his letter and the attachment thereto. (See ECF No. 6-22 at 15-27 (Tr. Ex. 2).) In admitting this letter (among others) over counsel's objections, the trial court reasoned:

(Id.) With this backdrop, and given that Petitioner's disagreement with Mr. Freedman over the 1982 conviction was at the heart of the prosecution's theory for showing motive and intent, the Court finds there was no chance a motion to exclude evidence of the 1982 conviction could have succeeded. Thus, Petitioner fails to demonstrate a reasonable probability that a motion to exclude all evidence of the 1982 conviction would have been granted.

Petitioner also cannot satisfy the prejudice prong of Strickland because the jury was instructed that the evidence of other legal proceedings was relevant solely as to the issue of motive or other limited purposes specified by the trial court. (ECF No. 6-14 at 68-71, 76-78.) Jurors are presumed to follow their instructions, Weeks v. Angelone, 528 U.S. 225, 234 (2000), and Petitioner supplies no evidence to overcome that presumption here. Accordingly, Petitioner's claim of ineffective assistance in ground two is clearly meritless and should be denied.

2. Prosecutorial Misconduct (Grounds 1, 3, 4, 5, and 6)

Petitioner's first and third through sixth grounds for habeas relief in the Petition allege prosecutorial misconduct and should be denied.19 (ECF No. 1.)

a. Standard of Law

"On habeas review of a prosecutorial misconduct claim, [a court] may grant relief only if the misconduct rises to the level of a due process violation—not merely because [the court] might disapprove of the prosecutor's behavior." Towery v. Schriro, 641 F.3d 300, 306 (9th Cir. 2010). A criminal defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." Darden v. Wainwright, 477 U.S. 168, 193 (1986). Petitioner has the burden to prove the prosecutor's comments "`infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). Furthermore, the alleged misconduct must be reviewed in the context of the entire trial. Donnelly, 416 U.S. at 643.

b. Alleged Prosecutorial Misconduct Concerning Use of the 1982 Conviction (Grounds 1, 3, and 6)

Petitioner's first, third, and sixth grounds for habeas relief in the Petition allege prosecutorial misconduct concerning the prosecutor's use of the 1982 conviction. (ECF No. 1.) In the Petition, Petitioner provides the following statements in support of his claims for prosecutorial misconduct: "Deputy Dirsttict [sic] Attorney (DDA) used an illegally obtained 1982 conviciton [sic] for contributing to the delinquency of a misdemeanor conviction from 1982 to vouch for and bolster current charges" (ECF No. 1 at 5 (ground one)); "The 1982 conviction was invalid for violating the 5th, 6th and 14th Amendments" (id. at 8 (ground three)); and "Use of invalid 1982 misdemeanor conviction of contributing to the delinquency of a minor to bolster and vouch for current charges" (id. at 17 (ground six)). Petitioner's supporting facts for ground six read: "Prosecutor used an invalid 1982 conviction, contributing to the delinquency of a minor, to vouch for and bolster the current charges. The conviction was invalid as it violated the 4th, 5th, 6th and 14th Amednments. [P]rosecutor spent over 8 hours [i]n closing argument referring to this case." (Id.) Thus, all aspects of grounds one, three and six—arguably with the exception of the objection to the prosecutor spending excessive time focused on the conviction—turn on the legality of Petitioner's 1982 conviction.

Respondent answers that these claims are vague and conclusory and must be denied because Petitioner appears to be challenging the admissibility of his 1982 misdemeanor conviction, which is not a basis to seek habeas relief under 28 U.S.C. § 2254; there is no federal question presented and there is no Supreme Court precedent on the matter. (ECF No. 5-1 at 20-21.) In the Traverse, Petitioner reiterates that the focus of his prosecutorial misconduct claim is that it constituted prosecutorial misconduct to use an "illegally obtained" conviction at trial. (ECF No. 8 at 2-4.) Petitioner goes on to explain in the Traverse a number of reasons why he contends his 1982 conviction was obtained in violation of his constitutional rights, including that he did not have and was not offered counsel in the 1982 proceedings against him. (Id.)

As addressed above, habeas petitioners who wish to challenge either their state court convictions or the length of their confinement in state prison must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Before the state appellate courts, and in contrast with his first, third, and sixth grounds for federal habeas relief before this Court, Petitioner did not argue that it constituted prosecutorial misconduct to use his 1982 conviction at trial on the basis that it was "illegally obtained." Rather, Petitioner presented a different prosecutorial misconduct claim to the state courts. In state court, Petitioner raised the issue of whether the prosecutor committed misconduct by probing into irrelevant matters, including details of his 1982 conviction, to appeal to the passion and prejudice of the jury. (See ECF No. 6-30 at 11-12, 18-21, 31-46; see also ECF No. 6-26 at 39-45.) Because Petitioner's complaint about the prosecutor spending eight hours focused on the 1982 conviction may arguably fall under the claim made to the state courts, this Court treats only that aspect of ground six as exhausted, and so addresses this aspect of ground six separately.

Before the California Supreme Court, Petitioner sought review on the issue of whether the prosecutor committed prejudicial misconduct by (a) repeatedly insinuating that Petitioner was attempting to commit a sex crime in 1982, (b) repeatedly insinuating that Petitioner was withholding evidence, and (c) by improperly introducing irrelevant evidence and impeaching Petitioner on collateral matters, such as Petitioner's ability to work, the validity of his 1982 conviction, his history of name-calling and accusations against other people in the legal community, and his misunderstandings of legal concepts in other legal proceedings. (See ECF No. 6-30)

The Court of Appeal rejected Petitioner's prosecutorial conduct claim as follows:20

(ECF No. 6-29 at 15-22 (internal footnotes omitted).)

Under Darden, in determining whether a prosecutor's conduct violated a criminal defendant's due process rights, the first question is whether the prosecutor committed misconduct; if so, the next question is whether the misconduct infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005). Here, the prosecutor's questioning and argument were within the scope of permissible, vigorous cross-examination and argument and related to matters elicited on direct examination.

Petitioner's underlying trial concerned whether he sent anonymous, threatening letters to Mr. Freedman in 2009 through 2011 as a consequence of Petitioner's disagreement with Mr. Freedman's 1998 administrative decision. The trial court ruled admissible (to show motive and intent) similar letters from 2000 and 2006 that Petitioner acknowledged sending to Mr. Freedman and further held that Petitioner could, "if he wishes to," explain the content of the letters from 2000 and 2006. (ECF No. 6-4 at 27-29.) In this context, Petitioner chose to testify about his written criticisms of Mr. Freedman's decision, which included criticisms of Mr. Freedman's reliance on Petitioner's 1982 conviction and failure to report that conviction.

Petitioner testified at length on direct examination about the facts surrounding his arrest and conviction in 1982. When referring to the arrest in response to his counsel's questions, he made statements suggesting that the girls may not have been minors, that the encounter was not criminal in nature, that he was never convicted, and that he was not obligated to disclose his 1982 arrest and/or conviction. For example, in referencing the 1982 incident, Petitioner testified:

Further, on direct, Petitioner testified that in 2006 he re-read and viewed Mr. Freedman's 1998 administrative decision as being relevant to his bankruptcy proceedings pending at that time. (ECF No. 6-12 at 47-50.) Petitioner further testified on direct that in re-reading Mr. Freedman's written decision, he was "very angry" about it, and as a result, wrote Mr. Freedman a letter in 2006 to which Petitioner attached a marked-up copy of that decision containing Petitioner's handwritten reactions to various portions of the decision. (ECF No. 6-12 at 47-49.) That letter and its attachment had already been entered into evidence, and when asked during his direct examination whether he meant all the things that he said in the letter, which included statements about the 1982 arrest and conviction, Petitioner testified, "Every one of them." (ECF No. 6-12 at 49; see also ECF No. 6-22 at 14-27 (People's Exhibit 2).) Based on the breadth and depth of Petitioner's testimony on the facts surrounding the 1982 arrest and conviction, this Court concludes that the California Court of Appeal reasonably found that the prosecutor's questioning and arguments on the facts surrounding the 1982 arrest and conviction were permissible and not outside the bounds of due process.

The prosecutor's questioning and argument about the facts surrounding Petitioner's 1982 arrest and conviction were within the scope of Petitioner's testimony on direct examination. As with California law, under federal law, permissible cross examination includes anything "reasonably suggested" by the direct examination. United States v. Martinez, 967 F.2d 1343, 1347 (9th Cir. 1992) ("impeachment evidence may not be introduced on cross-examination unless the defendant opens the door by reasonably suggesting the line of questioning"); see also Michelson v. United States, 335 U.S. 469, 485 (1948) ("we think defendants in general and this defendant in particular have no valid complaint at the latitude which existing law allows to the prosecution to meet by cross-examination an issue voluntarily tendered by the defense"). This Court concludes that the Court of Appeal reasonably found that there was no prosecutorial misconduct.

Thus, the Court of Appeal's rejection of Petitioner's claim as to the manner in which the prosecutor used the 1982 conviction at trial was not contrary to or an objectively unreasonable application of clearly established federal law, or an unreasonable determination of the facts.

With respect to the unexhausted portions of grounds one, three and six challenging the prosecutor's use of the 1982 conviction because of its alleged illegality, failure to exhaust does not necessarily preclude this Court's review. Under appropriate circumstances, federal courts have discretion to deny a habeas application on the merits notwithstanding a petitioner's failure to exhaust state remedies. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) ("While we ordinarily resolve the issue of procedural bar prior to any consideration of the merits on habeas review, we are not required to do so when a petition clearly fails on the merits.").

After reviewing the Petition's unexhausted first, third, and sixth grounds for federal habeas relief de novo, the Court concludes that Petitioner's claims clearly fail on the merits. As addressed above, Petitioner challenges the legality of his 1982 conviction because he was not represented by counsel. However, an uncounseled misdemeanor conviction for which the defendant is not imprisoned, such as Petitioner's 1982 conviction (see, e.g., ECF No. 6-8 at 46, 55, 66), does not violate the Sixth Amendment. Nichols, 511 U.S. at 743 n.9 ("In felony cases, in contrast to misdemeanor charges, the Constitution requires that an indigent defendant be offered appointed counsel unless that right is intelligently and competently waived.") (citing Gideon, 372 U.S. 335); Scott, 440 U.S. at 373-74 ("the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense"). Thus, Petitioner cannot establish that his 1982 conviction was unconstitutionally obtained and grounds one, three and six are both non-cognizable and without merit.

Additionally, even if Petitioner could establish that his 1982 conviction were unconstitutionally obtained, he could not show that it was a clear violation of federal law for the prosecutor to use the conviction as evidence in his 2013 trial. As addressed above, the fact of Petitioner's conviction, regardless of its procedural legitimacy, was at the heart of the dispute between Petitioner and Mr. Freedman, and was properly used by the prosecution.

c. Alleged Prosecutorial Misconduct Concerning Use of Contempt Conviction (Grounds 4 and 5)

Petitioner's fourth and fifth grounds for habeas relief in the Petition concern the use of his 2011 contempt conviction during the 2013 criminal trial that underlies the Petition. (ECF No. 1.)

Petitioner pleads the following as his ground four for federal habeas relief: "Failure to turn over exculpatory evidence in prior contempt of court case that was used to vouch for and bolster current charges." (ECF No. 1 at 10.) In support of ground four, Petitioner states: "Prosecution failed to turn over exulpltory [sic] evidence in prior contempt of court case that was then used to vouch for and bolster current charges. (Id.) As to his ground five for federal habeas relief, Petitioner pleads the following: "Use of prior contempt of court case, where exculpatory evidence was withheld, used to vouch for and bolster current charges." (ECF No. 1 at 16.) In support of ground five, Petitioner states: "Prosecutor used a prior contempt of court case, where prosecution withheld exculpatory evidence, to vouch for and bolster the current charges." (Id.)

Related to these grounds, Petitioner presents argument in his Traverse about a civil contempt conviction he received in 2011 for contacting Mr. Freedman in violation of a court order. (ECF No. 8 at 4-8.) With respect to that conviction, Petitioner argues that the prosecutor obstructed justice in 2011 by refusing to turn over "exculpatory" evidence. (ECF No. 8 at 6-8 (citing Brady v. Maryland, 373 U.S. 83 (1963).) Specifically, the "exculpatory" evidence (that Petitioner only learned about after his 2011 conviction) was that forensic testing had been conducted on the letters used to establish the 2011 conviction, and that the test results showed two fingerprints on the envelopes that did not belong to Petitioner and the absence of usable DNA matter. (Id.; see also ECF No. 6-29 at 11-12, n.8.) Petitioner goes on to argue that, in light of this undisclosed "exculpatory" evidence, he was denied a fair trial because it was improper to use his 2011 civil contempt conviction against him during the 2013 criminal trial. (Id. at 9.)

The crux of grounds four and five was fairly presented to the California courts-whether Petitioner's 2011 contempt conviction was obtained in violation Petitioner's rights under Brady v. Maryland, 373 U.S. 83 (1963). (See ECF No. 6-26; ECF No. 6-30.) Before the California courts, Petitioner raised the issue of whether the 2011 contempt conviction was excludable because it was obtained in violation of Petitioner's due process rights, given the prosecutor's failure to disclose the "exculpatory" forensic testing results as required by Brady. (ECF No. 6-26 at 27, 31-34; ECF No. 6-29 at 11; ECF No. 6-30 at 14-17.) The Court of Appeal held that the trial court was not required to find a Brady violation because the forensic testing results were not material. (ECF No. 6-29 at 12-14.) The Court of Appeal explained that the forensic testing results were not material under Brady "[b]ecause the forensic testing results provided minimal information concerning the question of authorship, there is no reasonable probability that disclosure of the results would have caused the court not to find defendant in contempt at the contempt hearing; accordingly the Brady claim fails to satisfy the materiality requirement." (Id. at 14; see also ECF No. 6-31 (Supreme Court of California's denial of the petition).)

The California Court of Appeal's decision regarding the excludability of the 2011 conviction is not contrary to, nor is it an unreasonable application of Brady v. Maryland, 373 U.S. 83 (1963). A due process violation occurs under Brady when the prosecution fails to disclose evidence that is favorable to the accused and material on the issue of guilt or innocence.21 Here, the Court of Appeal reasonably concluded that, even assuming the forensic testing results were available to the prosecution in 2011, the testing results were not material on the issue of guilt or innocence. The envelopes at issue passed through the mail system, and thus, is was reasonable for the Court of Appeal to conclude that the presence of third parties' DNA on the envelopes is not material on the issue of guilt or innocence.

Further, the Court of Appeal's determination of the facts in light of the evidence presented in the State court proceeding was reasonable. And, because the California courts reasonably concluded the 2011 conviction was relevant and not the product of a due process violation under Brady, it follows that the use of that conviction at Petitioner's 2013 trial does not constitute prosecutorial misconduct.

Therefore, for the reasons stated above, Petitioner's grounds four and five should be denied.

V. CONCLUSION

For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation, and (2) directing that Judgment be entered denying the Petition.

IT IS ORDERED that no later than July 6, 2018, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than July 13, 2018. The parties are advised that failure to file objections with the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).