ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, the records herein, and the Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Dolly M. Gee, 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
On November 7, 2016, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody." On January 26, 2017, Respondent filed an Answer asserting, inter alia, that all claims except Ground 7 of the Petition were unexhausted. The Court subsequently stayed this action so that Petitioner could attempt to exhaust the Petition's unexhausted claims by filing a petition for writ of habeas corpus in the California Supreme Court (Docket No. 27). The California Supreme Court denied Petitioner's habeas corpus petition on August 23, 2017 (Respondent's Lodgment 30). Accordingly, on August 31, 2017, the Court ordered Respondent to file a Supplemental Answer to the Petition (Docket No. 30).
On October 30, 2017, Respondent filed a Supplemental Answer. The Supplemental Answer asserts that all of Petitioner's claims fail on the merits, and also asserts that Grounds 1 through 6 of the Petition are procedurally barred. On November 16, 2017, Petitioner filed a Supplemental Reply.
BACKGROUND
On May 23, 2014, a jury found Petitioner guilty of voluntary manslaughter with a firearm enhancement (Petition, p. 2; Respondent's Lodgment 2). The trial court sentenced Petitioner to 21 years in state prison (Petition, p. 2; Respondent's Lodgments 3-4).
On November 12, 2015, in case number B257084, the California Court of Appeal reversed Petitioner's sentence and remanded the matter for resentencing (Respondent's Lodgment 5). On the same date, in case number B261502, the Court of Appeal denied a petition for writ of habeas corpus in which Petitioner had raised, inter alia, the claim of ineffective assistance of counsel alleged as Ground 7 herein (Respondent's Lodgments 6, 17).
Petitioner petitioned for California Supreme Court review of the Court of Appeal's decision in case number B261502 (Respondent's Lodgment 7). In the petition for review, Petitioner again raised the ineffective assistance of counsel claim alleged as Ground 7 herein (Respondent's Lodgment 7, pp. 25-31). On January 13, 2016, the California Supreme Court summarily denied review (Respondent's Lodgment 8).
On April 25, 2016, in response to the Court of Appeal's remand order in case number B257084, the trial court resentenced Petitioner to 21 years in state prison (Respondent's Lodgments 9-10). Petitioner appealed, and on March 29, 2017, in case number B271956, the Court of Appeal affirmed (Respondent's Lodgments 11, 23). On June 14, 2017, in case number S241659, the California Supreme Court summarily denied review (Respondent's Lodgment 25).
On June 26, 2017, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court raising Grounds 1 through 6 herein (Respondent's Lodgment 26). On August 23, 2017, in case number S242803, the California Supreme Court denied the petition, citing In re Clark, 5 Cal.4th 750, 767-69 (1993) (courts will not entertain habeas corpus claims that are successive) (Respondent's Lodgment 30).
SUMMARY OF TRIAL EVIDENCE
The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v. Norton, 2017 WL 1173742 (Cal. App. March 29, 2017) (Respondent's Lodgment 23). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).
[Petitioner] and the victim, William Mayes, were neighbors. They were drinking alcohol together at about 6:00 p.m. on the evening of March 19, 2013, when [Petitioner] made what Mayes believed was an inappropriate remark about his 13-year-old daughter. A physical altercation ensued. Mayes's three young daughters were in the house at the time and witnessed the fight. They begged [Petitioner] to leave, but he continued fighting their father. When the fight ended, Mayes told [Petitioner] to get out, and [Petitioner] returned to his house.
A short while later, Mayes went outside. It was almost dark. [Petitioner] and other neighbors heard Mayes yelling, "You're a dead man," and "I'm going to kill you." [Petitioner] called 911 and grabbed a gun. He opened the chamber to make sure the gun was loaded. After Mayes had been silent for about 10 minutes, [Petitioner] stepped outside to look for his dog. There was very little light and [Petitioner] could not see past the house. He went into his yard next to a tree looking for the dog, still carrying the gun. [Petitioner] heard Mayes yelling, "I'm gonna kill you. . . . You're a fucking pervert. I'm gonna kill you. Do you hear what I'm — do you understand." Mayes walked back and forth on the sidewalk, and then began moving toward [Petitioner]. Mayes had previously told [Petitioner] that he had a gun. [Petitioner] thought Mayes was armed and was going to kill him, so he fired two shots, one of which pierced Mayes's chest, killing him. One of Mayes's daughters witnessed the shooting.
[Petitioner] admitted that he never saw Mayes carrying a gun, and did not see Mayes outside of Mayes's own property during the time between the fight and the shooting. A detective testified that when he asked [Petitioner] if he had seen Mayes with a gun, he responded, "I didn't see, it was dark out there. He said I'm gonna kill you and I thought he had a gun. Um but I didn't. . . ." Later, he said, "I couldn't see, it was, there were trees and it was already dark any way." A neighbor who lived across the street saw a female come outside before the shooting and state, "Dad, come inside, dad, come inside." The female ran when shots were fired.
(Respondent's Lodgment 23, pp. 3-4; People v. Norton, 2017 WL 1173742, at *1).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. The police and/or prosecution allegedly withheld evidence favorable to the defense (Ground 3);
2. The police and/or prosecution allegedly tampered with evidence (Ground 5); and
3. Petitioner's trial counsel allegedly provided ineffective assistance in various ways (Grounds 1, 2, 4, 6 and 7).
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, 565 U.S. 34, 38 (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, the Court ordinarily looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). If the state court did not decide a federal constitutional issue of 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). In this case, Ground 7 is the only claim which the state courts rejected on the merits in a reasoned decision. See Respondent's Lodgments 6, 17-19 (California Court of Appeal briefing and decision rejecting claim); Respondent's Lodgments 7-8 (Petition for Review raising claim and California Supreme Court's summary denial). The remainder of Petitioner's claims were presented to the California Supreme Court (Respondent's Lodgment 26), and denied on procedural grounds (Respondent's Lodgment 30). Accordingly, the Court reviews Grounds 1 through 6 de novo. See Scott v. Ryan, 686 F.3d at 1133.
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).
DISCUSSION1
I. Petitioner's Claim that the Police and/or Prosecution Withheld Favorable Evidence Does Not Merit Federal Habeas Relief.
In Ground 3, Petitioner argues that the police and/or prosecution withheld blood evidence which assertedly would have affected the testimony of prosecution witnesses Kimberly Mayes ("Kimberly") and Alex Escobar concerning the location of Mayes at the time of the shooting, and which also assertedly would have supported Petitioner's testimony that he shot Mayes in self-defense. Petitioner speculates that blood and tissue evidence would have been "abundantly available" to determine Mayes' location at the time of the shooting. See Petition, Ground 3.
A. Background
Petitioner fired two bullets at Mayes (R.T. 1619). One of the bullets grazed Mayes' ear and the other bullet penetrated Mayes' chest and remained within Mayes' body (R.T. 1273, 1286-89). The coroner testified that there was no evidence of soot or stippling, the lack of which suggested that the bullets were fired from more than three feet away (R.T. 1290).
Kimberly testified that, prior to the shooting, Mayes went to the chain link fence separating his yard from Petitioner's yard. According to Kimberly, Mayes was holding onto the fence at the time Petitioner, who then was near Petitioner's front door, fired the shots at Mayes. See R.T. 925-29, 949-50, 955-57; see also R.T. 1573 (Detective O'Quinn testifying that Kimberly told him she saw Mayes move toward the fence).
Neighbor Alex Escobar testified that he saw Mayes walk from near the front door of Mayes' house to within approximately five or six meters of the chain link fence (R.T. 1235-36, 1248-49). Mayes reportedly did not stop walking (R.T. 1235). Mayes reportedly was yelling, "You dead man, you dead man, fuck you" and "You're a dead man," and Mayes reportedly continued yelling until the time he was shot (R.T. 1233-34, 1242, 1253-54; see also R.T. 1208-09, 1211-15, 1219-21 (another neighbor testifying he heard someone yelling, "You're a fucking pervert, you're a dead man, you fucking pervert, that's my daughter" and "I'm going to fucking kill you.")). Escobar testified that Petitioner exited the front door of Petitioner's house, walked along his driveway toward the street and then stopped in his yard before the shooting (R.T. 1237-42, 1248). Escobar said he heard two gunshots and saw Mayes run back toward Mayes' house (R.T. 1242-43). Petitioner reportedly remained standing where Escobar had seen him last (R.T. 1246-47).
Howard Freiberg testified he saw Mayes lying across the threshold to Mayes' house on his back with a "little bit of a blood mark" on Mayes's left ear lobe (R.T. 963, 974-78, 986). Freiberg said "It was just — not really bleeding, it was, like, a little bit of blood . . . I thought he had fallen and scraped his ear" (R.T. 978-79). Freiberg did not testify that he saw any other blood (R.T. 979).
When Sergeant Schoonmaker was asked whether any steps were taken to ascertain if there were blood trails from the yard to Mayes' house, Schoonmaker testified that he searched the entire area with a flashlight, looking for weapons, cartridges, and blood trails, but did not find anything (R.T. 1277-78). Schoonmaker reportedly did not know if anyone later searched for blood trails in the daylight (R.T. 1278).
B. Petitioner's Has Failed to Demonstrate a Brady Violation.
The suppression by the prosecution of evidence favorable to an accused violates due process "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963) ("Brady"). However, "there is no general constitutional right to discovery in a criminal case, and Brady, which addressed only exculpatory evidence, did not create one." Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
To demonstrate a Brady violation, a petitioner must prove that the prosecution suppressed material evidence favorable to the accused (i.e., material evidence that is either exculpatory or impeaching). Banks v. Dretke, 540 U.S. 668, 691 (2004) (citation and internal quotations omitted). A prosecutor "has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437 (1995). Suppressed evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. at 433.
Petitioner has failed to demonstrate that any blood evidence favorable to the defense ever existed. In the circumstances of this case, Petitioner cannot demonstrate a Brady violation absent an affirmative showing that: (1) Mayes shed blood outside his house; (2) the prosecution or the police possessed this blood evidence; and (3) an analysis of the location of the blood would have been material and favorable to Petitioner's defense. Petitioner speculates that blood evidence might have been available to help determine Mayes' location at the time he was shot. However, the trial evidence suggested the absence of any blood trail. There is no evidence the prosecution or the police possessed any material blood evidence. Further, the location of blood from Mayes could not have indicated Petitioner's location relative to Mayes at the time of the shooting. In any event, the eyewitness testimony was largely consistent with the defense's trial theory regarding Mayes' movement prior to and after the shooting. The witnesses testified that Mayes moved in Petitioner's direction before the shooting, and ran back to Mayes' house after the shooting. For purposes of suggesting that Mayes' proximity to Petitioner reasonably heightened Petitioner's fear of Mayes, the defense argued at trial that Mayes was "approaching" or "touching" the fence just before he was shot (R.T. 1880).2 The defense further argued, "One of the questions for you, the jury, to decide, is how close does Mr. Norton have to let Mr. Mayes get . . . to him?" (R.T. 1881). Now, Petitioner apparently wants to reverse strategy and reposition Mayes farther away from Petitioner for purposes of arguing that Mayes was not close enough to Petitioner for Petitioner to have seen that Mayes was unarmed (Petition, Grounds Three and Four). Petitioner's post-conviction reversal of strategy cannot properly render material that which would have been immaterial (and potentially counterproductive) to Petitioner's trial defense. Cf. United States v. Martinez, 883 F.2d 750, 761 (9th Cir. 1989), vacated on other grounds, 928 F.2d 1470, 1471 (9th Cir. 1991), cert. denied, 501 U.S. 1249 (1991) ("Fundamental unfairness would characterize a process that let defendants have one trial based on their lawyer's strategy and another trial based on their own.").
Petitioner's speculation regarding whether and where blood evidence existed is manifestly insufficient to state a viable Brady claim. See Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir. 2012), cert. denied, 569 U.S. 1026 (2013) ("[T]o state a Brady claim, [a petitioner] is required to do more than `merely speculate' [about the existence of evidence].") (citations omitted); Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cr. 2000), cert. denied, 532 U.S. 999 (2001) (rejecting Brady claim because petitioner's arguments were speculative); see generally Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per curiam) (granting a habeas petition "on the basis of little more than speculation with slight support" is improper).
Petitioner was acquitted of murder and convicted of voluntary manslaughter on a theory of imperfect self-defense (C.T. 275, 281-83). The jury was instructed:
If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. . . . In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant.
(C.T. 275). The jury was also instructed:
The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified.
(C.T. 272).3 Given the verdict, the jury likely believed that the unarmed Mayes moved toward Petitioner while yelling at Petitioner, but also believed that Petitioner's use of deadly force in response thereto was unreasonable and unjustified. Petitioner has failed to show a reasonable probability of a different outcome if evidence regarding the location of any of Mayes' shed blood had been discovered and introduced at trial.
For the foregoing reasons, Ground 3 does not merit federal habeas relief.
II. Petitioner's Claim of Evidence Tampering Does Not Merit Federal Habeas Relief.
Petitioner alleges that he was interviewed by Detective O'Quinn in a room equipped with a video camera mounted to the ceiling which was "wired for video and sound." An adjacent room allegedly contained recording equipment that was manned by a third person. Petitioner alleges that the police "stripped [the] interview of video and digitally rerecorded altered results to a single 30 minute CD of poor quality." Petitioner vaguely contends that "[w]ords and entire sentences were deleted to remove evidence not favorable to the prosecution." Petitioner alleges there were several supposed junctures where portions of his interview were deleted from the recording, which allegedly occurred when Detective O'Quinn left the interview room to talk to the person in the other room. The only specific example offered by Petitioner of an arguably substantive asserted alteration of the interview recording concerns Petitioner's answer to questions regarding the location of Petitioner's gun at the time Petitioner exited his house. Petitioner asserts that he actually told O'Quinn the gun was "in my hand," whereas the recording indicates Petitioner told O'Quinn only that the gun was "partially in [my] pocket." See Petition, Ground 5.
A. Background
Detective O'Quinn testified that he interviewed Petitioner a few hours after the shooting (R.T. 1575, 1808-09). The defense's "Motion to Compel Prosecution Discovery" requested the "Videotape of Norton's police interrogation" (C.T. 152 (emphasis original)). A handwritten note indicates, "No video[;] audio already turned over" (C.T. 152). During the hearing on the motion to compel, the trial court asked the prosecutor if he had a videotape of the interview, and the prosecutor stated that he had "asked several times" and had been "told each time that there is no video but there is an audio" recording which previously had been turned over to the defense (R.T. D-3).
The trial court admitted into evidence an audio recording of the police interview of Petitioner (R.T. 1809; C.T. 227-48 (transcript)). Petitioner did not then object to this recording (R.T. 1809). Petitioner's counsel could have cross-examined Detective O'Quinn concerning the accuracy of the recording, but did not do so (R.T. 1810-17). In his trial testimony, Petitioner did not mention any alleged inaccuracies in the recording (R.T. 1588-1646).
With regard to Petitioner's present assertion of a specific alteration in Petitioner's recorded statement concerning the location of the gun at the time Petitioner exited his house, the transcript of Petitioner's interview4 actually states:
[Petitioner]: That was only, the handiest gun I could grab.
[O'Quinn]: Yeah, the 457 ok. What are you thinking when you go to the couch and grab the gun? What's going through your mind?
[Petitioner]: I'm thinking this guy is gonna come after me. He he's [sic] screaming he's gonna kill me.
[O'Quinn]: Ok.
[Petitioner]: And he's . . .
[O'Quinn]: now when you go, your door's not closed all the way. Now the gun's in your hand or pocket or where?
[Petitioner]: In my kinda . . .
[O'Quinn]: Front pocket or back pocket? Oh not, is it behind you or . . .
[Petitioner]: It's in my pocket here, but only partially.
[O'Quinn]: Ok, so in your right front pocket partially?
[Petitioner]: partially, right.
(C.T. 236-37).
Petitioner's trial testimony conceded: (1) Petitioner had told O'Quinn that, as Petitioner exited his house, Petitioner placed the gun partially in Petitioner's right front pocket; and (2) in fact, as Petitioner exited the house, the gun had been "partially in my pocket" (R.T. 1642-43).
B. Petitioner Has Not Demonstrated Any Material Constitutional Violation.
Under 28 U.S.C. section 2254(a), a claim is cognizable in federal habeas corpus proceedings only if the claim alleges a violation of the Constitution, federal law, or treaties of the United States. Although the Court should liberally construe pro se pleadings, "[a] petitioner is not entitled to the benefit of every conceivable doubt," and "the court is obligated to draw only reasonable factual inferences in the petitioner's favor." Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Moreover, a "cursory and vague claim" does not warrant habeas relief. Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (citing James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.")); see Rule 2(c) of the Rules Governing Section 2254 Cases (habeas petition must "specify all the grounds for relief" and "state the facts supporting each ground").
Petitioner has made no specific, credible claim of any material alteration of the recording. See Atwood v. Ryan, 870 F.3d 1033, 1052 (9th Cir. 2017) (petitioner's showing was insufficient for an evidentiary hearing where the petitioner presented nothing more than "conclusory allegations" that were "unsupported by facts and refuted by the record") (citation omitted). Petitioner's vague allegation that portions of the interview "not favorable" to the prosecution were removed from the recording does not state much less substantiate a constitutional claim. Petitioner's only specific example of supposed tampering with the substance of the recording is essentially refuted by Petitioner's own trial testimony. Moreover, this specific example is also essentially immaterial. The question of whether, when Petitioner left his house, the gun was still in Petitioner's hand and/or partially in Petitioner's pocket was largely irrelevant to the materially disputed issues in the case. At trial, there was no dispute that Petitioner fought with Mayes in Mayes' home, broke away, went to Petitioner's own home, armed himself, went back outside, and, after several minutes had passed, shot the unarmed Mayes twice. The only materially disputed issues concerned whether Petitioner shot out of fear and whether any such fear was objectively reasonable. The specific positioning of the gun when Petitioner exited his home several minutes before the shooting had little or no relevance to the materially disputed issues. Petitioner has failed to demonstrate that any alleged alteration of evidence materially bore on any disputed issue in the case. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (forbidding a grant of federal habeas relief for a non-structural error unless the error had a "substantial and injurious effect or influence" on the outcome of the case).
To the extent Petitioner is claiming a due process violation based on the prosecution's use of the interview recording, his claim also fails. The prosecution's knowing use of false evidence 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 evidence 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 has failed to demonstrate that the recording of his interview was altered or "actually false," especially given: (1) Petitioner's failure to contest the substantive accuracy of the audiotape during trial; (2) Petitioner's trial testimony confirming the accuracy of the audiotape in the only substantive particular he now challenges; and (3) Detective O'Quinn's testimony that the recording was an accurate reflection of his recollection of the interview (R.T. 1810). See Bowman v. Warchol, 2006 WL 2223911, at *3 (E.D. Cal. Aug. 2, 2006) (in rejecting a petitioner's argument that the transcript of a recorded conversation between the petitioner and the sexual abuse victim was inaccurate, the court observed "that petitioner was able to challenge the prosecutor's assertion that he admitted penetration of C.V. during the pretext call by testifying at trial himself as to what he meant during the call").
Nor has Petitioner shown that the prosecution had any knowledge that any evidence was supposedly false. Nothing in the record shows the prosecution knew or had reason to know that Petitioner's interview recording assertedly was altered or incomplete or that any prosecution witness testified falsely. 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); Anderson v. Perez, 2016 WL 8078147, at *23 (C.D. Cal. Nov. 8, 2016), adopted, 2017 WL 379400 (C.D. Cal. Jan. 24, 2017) (rejecting Napue claim where, assuming, arguendo, a detective had altered a recorded conversation, the petitioner failed to show that the prosecutor knew or should have known about the alleged alteration; the petitioner had presented nothing suggesting the prosecutor had a reasonable basis to suspect that the recording was actually false, especially given the petitioner's failure to challenge the authenticity of the recording at trial); Morris v. Castro, 2006 WL 2785718, at *33 (E.D. Cal. Sept. 26, 2006), affirmed, 270 Fed. App'x 476 (9th Cir. 2008) (denying habeas relief where the petitioner alleged tampering with an audiotape; the petitioner failed to demonstrate that anything was missing from the audio recording, and failed to establish that, if any portion of the recording was inaudible, there was anything favorable to the defense in that portion (i.e., petitioner failed to show suppression and resulting prejudice)).
For the foregoing reasons, Ground 5 does not merit federal habeas relief.
III. Petitioner's Ineffective Assistance of Counsel Claims Do Not Merit Federal Habeas Relief.
Petitioner contends that his trial counsel rendered ineffective assistance by assertedly: (1) knowingly making a false stipulation concerning a 911 call made by Petitioner before the shooting (Petition, Ground 1); (2) arguing to the jury in closing that Petitioner was never asked why he went back outside after having been threatened, when counsel knew that Petitioner in fact had been asked why he went back outside (Petition, Ground 2); (3) failing to argue that there was a lack of blood evidence to support the prosecution's case (Petition, Ground 4); (4) failing to challenge the integrity of the recording of Petitioner's police interview (Petition, Ground 6); and (5) failing to present evidence that Mayes had a gun in Mayes' house (Petition, Ground 7).
These claims, considered separately or in combination, do not merit federal habeas relief.
A. Law Governing Ineffective Assistance of Counsel Claims
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) resulting prejudice, i.e., 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 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (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. 86, 104 (2011) (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).
"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." Harrington v. Richter, 562 U.S. 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. 911 Call(s)
Petitioner contends that counsel knowingly entered into a false stipulation concerning a 911 call made by Petitioner. Although Petitioner testified at trial that he made a 911 call before the shooting, Petitioner now claims he did not made a 911 call until after the shooting. Compare R.T. 1611 with Petition, Ground 1.
1. Background
The trial court admitted the following stipulation into evidence as Defense Exhibit B:
It is stipulated between the parties that after returning to his home and prior to the shooting of Mr. Mayes[,] Michael Norton completed a phone call to [a] 911 operator.
(R.T. 1521-22, 1647; C.T. 224-25).5
Consistent with the stipulation, Petitioner testified at trial that he called 911 before the shooting as well as after the shooting. Petitioner testified that, after he fought with Mayes initially, Petitioner returned home, found his phone, and called 911 (R.T. 1602-07, 1611-12). Following this 911 call, according to Petitioner's trial testimony, Petitioner armed himself with a handgun, checked to see if the handgun was loaded, and went outside to find his dog (R.T. 1609-15, 1631-33). Petitioner testified that Mayes came out from his garage threatening to kill Petitioner and the two yelled back and forth for approximately four minutes before Mayes allegedly "rushed" toward Petitioner (R.T. 1615-19, 1634). After Petitioner fired two shots, Petitioner reportedly ran back home and called 911 again (R.T. 1619-21, 1634-36).6
2. Analysis
Assuming, contrary to Petitioner's own trial testimony, there was no pre-shooting 911 call, and further assuming that Petitioner's counsel was unreasonable in stipulating to a pre-shooting call, Petitioner has failed to demonstrate any Strickland prejudice resulting therefrom. At trial, the defense theorized that Petitioner had acted in self-defense. A call to 911 before the shooting supported Petitioner's trial defense theory that Petitioner had retreated to his home in fear of Mayes, had not wanted to take the law into his own hands, and only came back out of his house because of concern for his dog. In closing, defense counsel responded to the prosecution's argument that Petitioner had fabricated or omitted various explanations during the police interview by retorting:
But [Petitioner] doesn't make up the thing that would help him most, that he did call 911, and we know he did; right? You hear Detective Quinn [sic] saying, "Well, you should have called 911, you should have done this or that," and my guy is sitting there saying, "Yeah, I should have," and he; did right? . . . You have the stipulation. It was stipulated that Michael Norton did call law enforcement. Okay? So here is Mr. Norton. He can't even think of things that help him that are true; so forgive him if he doesn't state everything that he should have stated in those 30 minutes.".
(R.T. 1884).
Petitioner now argues that the stipulation "forced" Petitioner to testify falsely, and that the real reason Petitioner left his house was to get his phone from his car.7 See Petition, Ground 1; Harris Letter, pp. 1-2. Even if the jury had been offered these "alternative facts," there would have been no reasonable probability of a different trial result. As previously discussed, the issues for the jury were whether Petitioner's supposed fear and his use of deadly force were objectively reasonable. Whether Petitioner was searching for his dog or his phone when he went outside after arming himself was largely immaterial to the critical issue of whether Petitioner later acted reasonably when, after several minutes of shouting, Petitioner shot the unarmed Mayes twice.
Petitioner admitted to Detective O'Quinn that he could have stayed in his house and avoided confrontation rather than going back outside (whatever Petitioner's reason for going back outside) (C.T. 243-44). Petitioner admitted that it had been quiet for eight to ten minutes before Petitioner went back outside (R.T. 1630-32). After Petitioner went back outside, Petitioner chose to engage in a shouting match with Mayes for at least four minutes from across their respective yards before shooting Mayes, instead of again retreating to his home (R.T. 1633-37). There was no evidence that Mayes ever threatened Petitioner with a gun, and there was no evidence that Mayes had a gun on his person at the time of the shooting (R.T. 1274, 1617-20, 1629, 1634-37).
In light of the trial evidence, Petitioner has failed to demonstrate a reasonable probability of a different result had counsel not stipulated to the allegedly nonexistent pre-shooting 911 call. Harrington v. Richter, 562 U.S. at 112.
C. Closing Argument
Petitioner contends that counsel was ineffective for arguing to the jury in closing that Petitioner was never asked why Petitioner went back outside. See Petition, Ground 2. In fact, Detective O'Quinn had asked Petitioner why Petitioner went back outside, although O'Quinn had not persisted in the inquiry after Petitioner gave non-responsive answers to the question (C.T. 235).
1. Background
As indicated above, Petitioner testified that he went back outside to find his dog (R.T. 1612, 1632). In closing, the prosecution pointed out that, when interviewed by police, Petitioner had not mentioned that he went back outside to find his dog (R.T. 1856-57). During Petitioner's police interview, Detective O'Quinn had asked Petitioner:
Q. Okay, [Mayes is] in his front yard, he's screaming again. What makes you go back outside?
A. I had never even closed the door.
Q. Okay, but why come back outside the open door?
A. That was an idiotic mistake, huh?
(C.T. 235). After the above non-responsive answers, Petitioner was not pressed further on the issue of precisely why he had gone back outside. See C.T. 235. Petitioner's counsel responded to the prosecution's argument by suggesting that, in the supposed absence of being asked exactly why Petitioner had gone back outside, it was understandable for Petitioner not to have mentioned the dog (R.T. 1884-85).
2. Analysis
Petitioner has failed to demonstrate any Strickland prejudice from counsel's allegedly unreasonable argument. First, as the jury was instructed, the statements of counsel are not evidence (R.T. 612-13, 1822; C.T. 259). Second, the jury had before it the recording of Petitioner's police interview and could assess the extent to which Petitioner had and had not been pressed on the issue of his motivation for returning outside (R.T. 1809, 1817). Third, as detailed above, the reason for Petitioner leaving his house was not greatly material to the critical issues, given Petitioner's own admissions that he remained outside for four minutes while Mayes was shouting at him instead of retreating again to the safety of Petitioner's house (R.T. 1618-19). At most, the evidence regarding why Petitioner went back outside, and why he had not told the police the reason(s) he went back outside, bore on Petitioner's credibility. However, no different or additional argument by counsel could have repaired any damage to Petitioner's credibility which had resulted from Petitioner's failure to mention to the police his dog or any other purported reason for going back outside.8 A different closing argument would not have yielded a reasonable probability of a different trial result. Harrington v. Richter, 562 U.S. at 112.
D. Blood Evidence
Petitioner contends counsel was ineffective for failing to argue that no blood evidence supported the prosecution's case, and Petitioner also apparently contends counsel should have obtained and presented blood evidence in the defense case. See Petition, Ground 4. For the reasons discussed above, Petitioner has failed to demonstrate prejudice from any lack of blood evidence. Petitioner has failed to demonstrate that any blood evidence existed, much less that any such evidence would have been favorable to the defense. See Grisby v. Blodgett, 130 F.3d 365, 372-73 (9th Cir. 1997) (where petitioner could not show that testing for blood evidence (or the lack thereof) would have been in his favor, his speculative allegations did not show Strickland prejudice); Bible v. Ryan, 571 F.3d 860, 871 (9th Cir. 2009), cert. denied, 559 U.S. 995 (2010) (speculation insufficient to establish Strickland prejudice). Of course, counsel could have argued the lack of blood evidence, but such argument would have added little to Petitioner's defense. Such argument certainly would not have created a reasonable probability of a different trial outcome.
E. The Recording of Petitioner's Police Interview
Petitioner contends that counsel was ineffective for failing to challenge the integrity of the interview recording. See Petition, Ground 6. Petitioner allegedly told his counsel that the interview recording assertedly had been altered, but counsel did not challenge the integrity of the recording (Petition, Ground 5).9
Assuming, arguendo, that Petitioner did tell counsel that the recording of the interview had been altered, and assuming further that counsel was unreasonable in failing to object to the integrity of the recording, this claim fails for essentially the same reasons Ground 5 fails. Petitioner has not demonstrated that the recording was altered in any material particular; Petitioner offers only vague and speculative allegations, or specific allegations of immaterial differences essentially refuted by Petitioner's own trial testimony. See Grisby v. Blodgett, 130 F.3d at 373; Bible v. Ryan, 571 F.3d at 871. Petitioner has failed to demonstrate Strickland prejudice. See Harrington v. Richter, 562 U.S. 86, 112 (2011).
F. Additional Evidence that Mayes Had a Gun in Mayes' House
Petitioner contends that counsel was ineffective for failing to present evidence that Mayes had a gun in Mayes' house (Petition, Ground 7). The California Court of Appeal rejected this claim on the merits, finding that Petitioner had failed to show Strickland prejudice. See Respondent's Lodgment 6. Because the California Supreme Court subsequently denied review without explanation, the Court reviews the Court of Appeal's decision under 28 U.S.C. § 2254(d). See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
1. Background
Petitioner testified at trial that on a prior occasion Mayes had told Petitioner that Mayes had a handgun that served as the "burglar alarm" for Mayes' home (R.T. 1609-10, 1643). Petitioner had also told Detective O'Quinn that, prior to the shooting, Mayes had told Petitioner that Mayes owned a gun (C.T. 234, 237, 246). Petitioner supposedly shot Mayes because he thought, "I'm gonna hit him before he hits me" (C.T. 246). Petitioner testified he did not see a gun on Mayes' person. See R.T. 1637-38 ("I didn't actually [see a gun] . . . I saw what I thought was a gun . . . I didn't see the outline of a gun. I saw a flicker, a flash like a flicker . . . It couldn't be definitely identified as a gun"); see also C.T. 246 ("I couldn't see, . . . there were trees and it was already dark. . . .").
Petitioner faults counsel for failing to present additional evidence that Mayes owned or possessed a gun. Specifically, counsel reportedly had access to: (1) a Department of Justice record showing that Mayes had purchased a .38 caliber revolver in 1989 (Petition, Exhibit E); (2) the preliminary hearing transcript wherein Karina Mayes testified that Mayes had a "big" gun locked away in Mayes' closet (C.T. 20-21); and (3) a police interview of Kimberly wherein she allegedly stated that Mayes kept a shotgun in a storage area.10
2. Analysis
Assuming, arguendo, that counsel was unreasonable for failing to present additional evidence of Mayes' gun ownership or possession, the California Court of Appeal's determination that Petitioner failed to demonstrate Strickland prejudice was not unreasonable. As indicated above, Petitioner was convicted of voluntary manslaughter on a theory of imperfect self-defense. No firearm was found on Mayes, in Mayes' yard, or in Mayes' home following the shooting (R.T. 1271-74). The fact, if it was a fact, that Mayes had a shotgun somewhere at some time would not have been relevant to the circumstances of the shooting. The fact, if it was a fact, that Mayes bought a handgun in 1989 and/or had a "big" gun locked away in a closet would not have helped prove that Mayes was carrying a handgun at the time he was shot, and would not have materially supported an argument that Petitioner acted in reasonable self-defense. The existence of a gun in the house while Mayes was in the yard would not cause a reasonable person "to fear the imminent infliction of death, or great bodily injury." People v. Watie, 100 Cal.App.4th 866, 877, 124 Cal.Rptr.2d 258 (2002) (emphasis added). To establish his defense, Petitioner needed to make "a double showing: that he was actually in fear of his life or serious bodily injury and that the conduct of the other party was such as to produce that state of mind in a reasonable person." Id. (citation and internal quotation marks omitted). Any corroborative evidentiary support for Petitioner's supposed belief that there may have been a gun in Mayes' house would have contributed only marginally to Petitioner's theory of perfect self-defense. At a minimum, it was not unreasonable for the California Court of Appeal to conclude that such contribution would fall short of meeting the standard for Strickland prejudice. See 28 U.S.C. § 2254(d); see also Harrington v. Richter, 562 U.S. at 101-05, 111-13.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
