FINDINGS AND RECOMMENDATIONS

GREGORY G. HOLLOWS, Magistrate Judge.

Introduction and Summary

Petitioner, Andre Pulido, seeks federal habeas corpus review of his state conviction:

People v. Pulido, 2011 WL 3557019 *1 (Cal. App. 2011) (footnote omitted).

Petitioner raises numerous issues:

1. Pulido's right to due process guaranteed by the Fourteenth Amendment was violated by the admission of material, false evidence against him, specifically, a false pretrial photographic identification by the lone eyewitness to positively identify him.

2. Pulido received ineffective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution when his trial counsel made, but failed to support, a request for a foundational hearing regarding critical prosecution evidence that should not have been admitted under controlling state evidentiary law.

3. Pulido received ineffective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution when his trial counsel failed to object to the testimony of the cellphone service provider's custodian of records regarding the identification of cellphone locations from specified cell towers on the ground that it was improper lay testimony.

4. Pulido's right to due process guaranteed by the Fourteenth Amendment to the United States Constitution was violated by the admission of material, false evidence against him, specifically, the testimony of a cellphone service provider's custodian of records that the location of Pulido's cellphone could be accurately and reliably ascertained from certain business records of the provider.

5. Pulido received ineffective assistance of counsel . . . when his appellate counsel failed to challenge on direct appeal the trial court's refusal to conduct a Kelly hearing and to exclude an exhibit that illustrated the cellphone-locating testimony of the cellphone service provider's custodian of records.

6. Pulido received ineffective assistance of counsel . . . when his trial counsel failed to consult with an expert in cellphone-locating technology and to call such an expert as a witness to rebut the prosecution's cellphone-locating evidence.

7. Pulido received ineffective assistance of counsel . . . when his trial counsel negligently opened the door to previously excluded photographic evidence that suggested his association with a gang lifestyle and undercut the credibility of a witness helpful to the defense.

8. Pulido received ineffective assistance of counsel . . . when his trial counsel failed to call available character witnesses to testify as to their opinions of Pulido's non-violent character.

9. Pulido received ineffective assistance of counsel . . . when his trial counsel failed to perform an adequate pretrial investigation.

10. Pulido suffers from illegal restraint because he is actually innocent.

11. Pulido received ineffective assistance of counsel . . . as the result of the cumulative impact of all of the deficiencies in counsel's performance.

12. Pulido's constitutional right to confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, right to due process guaranteed by the Fourteenth Amendment, and right to compulsory process guaranteed by the Sixth and Fourteenth Amendments were violated by the trial court's refusal to permit the defense to impeach the credibility of a witness who had testified that Pulido had made incriminating admissions, with the fact that he had previously lied to police.

For the reasons set forth herein, and after thorough review, the undersigned recommends that the petition be denied.

Background Facts

As is often the case, the appellate opinion in this case sets forth the pertinent facts:

People v. Pulido, 2011 WL 3557019, at *1-5 (Cal. Ct. App. Aug. 11, 2011) (footnotes omitted).

AEDPA Standards

All of petitioner's claims were decided on the merits; therefore the AEDPA standards are in full play.

The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) provides:

As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been `adjudicated on the merits.'" Harrington v. Richter, 562 U.S. 86, 98 (2011). Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99, citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id.

The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), `an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, at 101, citing Williams v. Taylor, 529 U.S. 362, 410 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 101, citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

Accordingly, "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 priordecision of this Court." Id. at 102. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "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." It makes no sense to interpret "unreasonable" in §2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) — i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338 (2006).

The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19 (2002). Specifically, the petitioner "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." Harrington, supra, at 102. "Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Id. at 8. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

Finally, if the state courts have not adjudicated the merits of the federal issue, no AEDPA deference is given; the issue is reviewed de novo under general principles of federal law. Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2012). However, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, 133 S.Ct. 1088, 1091 (2013).

Standards for Ineffective Assistance of Counsel

The clearly established federal law for ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant must show that (1) his counsel's performance was deficient and that (2) the "deficient performance prejudiced the defense." Id. at 687. Counsel is constitutionally deficient if his or her representation "fell below an objective standard of reasonableness" such that it was outside "the range of competence demanded of attorneys in criminal cases." Id. at 687-88 (internal quotation marks omitted). "Counsel's errors must be `so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Harrington v. Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687). A reviewing court is required to make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 669. Reviewing courts must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). This presumption of reasonableness means that the court must "give the attorneys the benefit of the doubt," and must also "affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as they did." Cullen v. Pinholster, 563 U.S. 170 (2011) (internal quotation marks and alterations omitted).

Defense counsel has a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "A decision not to investigate thus `must be directly assessed for reasonableness in all the circumstances.'" Wiggins v. Smith, 539 U.S. 510, 533 (2003) (quoting Strickland, 466 U.S. at 691). A reviewing court must "examine the reasonableness of counsel's conduct `as of the time of counsel's conduct.'" United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990) (quoting Strickland, 466 U.S. at 690). See also Rhoades v. Henry, 638 F.3d 1027, 1036 (9th Cir. 2011) (counsel did not render ineffective assistance in failing to investigate or raise an argument on appeal where "neither would have gone anywhere").

Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. "The likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 112.

Under AEDPA, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable." Id. at 101. "[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

Discussion

A. Admission of "False" Pre-Trial Identification Testimony — Claim 1

Petitioner's entire premise is based upon the latest recantation of eyewitness Moore who was at the scene of the murder, who now says that petitioner was not the person he saw at the scene. However, assuming the pre-trial identification picking petitioner as the culprit to have been knowingly false on the part of Moore, petitioner's claim must fail under AEDPA as no established Supreme Court authority permits such a due process claim unless the prosecution knew or should have known of the falsity—a fact conceded by all not to have been shown.

This recantation was not known on direct appeal. Rather, it was first brought up in the first state habeas petition, the petition containing the expressed opinion presumably relied upon by the follow-up state courts. The Superior Court found:

ECF No. 2 at electronic pagination 34-40 (Superior Court Order)

Petitioner strongly argues that under state law the Superior Court was required to hold a hearing, and could not decide the merits of the case from the record. Having found no prima facie case, the argument continues, it is presumed that the court assumed the truth of the new evidence (the recantation), and was in error in not holding the hearing, making its ruling on all the evidence presented. Therefore, in conclusion, petitioner argues that this federal court must hold an evidentiary hearing in which Moore comes to testify.

Respondent does not initially take issue with petitioner's argument, but rather asserts that petitioner loses the entire claim because he seeks to apply a new rule of law in violation of Teague v. Lane, 489 U.S. 288 (1989), and in any event, AEDPA's requirement that the law applied be clearly established by the Supreme Court precludes cognizance of the claim. For the reasons expressed below, respondent is correct with respect to the AEDPA contention.1

The undersigned assumes for the purpose of AEDPA application that the Moore recantation proves the "false evidence" of his pretrial identification, as ultimately supplemented by his testimony elicited by the prosecution."2 Petitioner relies on circuit precedent which does not require an element of prosecutorial knowledge with respect to the submittal of false evidence. See Maxwell v. Roe, 628 F.3d 486, 506-07 (9th Cir. 2010) ("[A] defendant's due process rights were violated . . . when it was revealed that false evidence brought about a defendant's conviction."); Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) ("[W]e assume without deciding that the prosecutor neither knew nor should have known of Masse's perjury about his deal. Thus our analysis of the perjury presented at Killian's trial must determine whether there is a reasonable probability that without all the perjury the result of the proceeding would have been different.") (citation, internal quotation marks, and brackets omitted), cert. denied, 537 U.S. 1179 (2003); Hall v. Director of Corrections, 343 F.3d 976, 984 n.8 (9th Cir. 2003) (per curiam) (holding that use at trial of jailhouse notes, subsequently proven to have been altered from their original state without knowledge of the prosecutor, violated defendant's right to due process; "Where there are real, credible doubts about the veracity of essential evidence and the person who created it, AEDPA does not require us to turn a blind eye.").

However, the Supreme Court, when specifically discussing the presentation of false evidence has always required the knowing involvement of the prosecution in the presentation of false evidence. Napue v. Illinois, 360 U.S. 264, 269 (1959) (either the actual solicitation by the prosecution, or with its "connivance"); Hysler v. State of Florida, 315 U.S. 411, 413 (1942) ("Mere recantation of testimony" does not justify voiding a conviction on due process grounds). The undersigned cannot find a holding of the Supreme Court which dispenses with the prosecutorial involvement requirement.3 In addition, numerous cases from the same Ninth Circuit have required the prosecution involvement evidence when determining the propriety of false evidence in an AEDPA context.

Jones v. Ryan, 691 F.3d 1093, 1102 (9th Cir. 2012) (emphasis added). See also Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004) ("The due process requirement voids a conviction where the false evidence is `known to be such by representatives of the State.' [Footnote omitted.] The essence of the due process violation is misconduct by the government, not merely perjury by a witness.") (emphasis added).

However, the question here is not what set of Ninth Circuit precedents should be followed, but rather, whether a holding of the Supreme Court has permitted the less onerous standard of no government involvement needed when the issue is submission of false testimony or evidence. The Supreme Court has admonished the Circuits in the most strident terms possible that circuit authority has no place in the AEDPA analysis.

Lopez v. Smith, ___ U.S. ___, 135 S.Ct. 1, 1-2 (2014).

All of petitioner's cases pre-date Lopez, and are inconsistent with its directive. Indeed, Hall simply applied circuit precedent and found that AEDPA did not require the allowance of false evidence regardless of the prosecution's knowledge. There was no discussion of whether its holding was directed by established Supreme Court precedent. Killian and Maxwell found that for one reason or another the factual findings of the state court to be "unreasonable," and hence AEDPA deference on the ultimate legal issue was not warranted. However, Lopez also spoke to this situation.

Lopez, 135 S.Ct. at 5.

Here the situation is no different. Petitioner urges that no section 2254(d)(1) deference is due because the state court was unreasonable in not holding an evidentiary hearing on the merits of the alleged falsity, and basing its ruling on the record evidence. However, the lack of knowledge of the prosecution in submitting false evidence was a conceded fact and/or immaterial to the state courts. It would be the ultimate in bootstrapping to find that a Supreme Court required element of a legal claim, here prosecution involvement, was inapplicable in the AEDPA context because of alleged state court factual finding improprieties on other elements of the claim. Lopez directs that no such bootstrapping be permitted.

Moreover, petitioner's ultimate objection is that the Superior Court got the legal question wrong—, i.e., that it could not but find legal error assuming the truth of the recanted testimony as it was assertedly required to do under state law. Petitioner asserts that the trial court's examination of the record to arrive at its "no error" conclusion was wrong. Nevertheless, this court does not stand to correct errors of state law, procedural or otherwise, and the Superior Court's ultimate conclusion that no prima facie case was stated is a legal conclusion.

Thus, petitioner's cited cases are inapplicable. Petitioner strongly argues that the undersigned should not be "mutinous," and that Ninth Circuit precedent must be followed unless and until the Supreme Court says otherwise. Aside from begging the issue of which Ninth Circuit precedent should be followed, the argument actually compels the result adverse to petitioner. It is one thing to buck Ninth Circuit precedent in fashioning one's own rule on the substantive issue based on one's interpretation of Supreme Court precedent; it is quite another to ignore the express directives of the Supreme Court to not apply the circuit precedent. In this latter situation, it would be mutinous indeed to ignore the express directive of the nation's highest court.

Because the non-application of circuit precedent is required, and because the lack of prosecution involvement in the submission of allegedly false evidence is conceded herein, the undersigned will not make an alternative factual analysis on the need for a federal evidentiary hearing to review the merits of the falsity claim, i.e, whether Moore is now telling the truth. Petitioner's false evidence claim should be denied as it lacks a Supreme Court required element, prosecutorial involvement in the submission of false evidence.

B. The Cell Phone Claims — Claims 2-6

Overview

Several claims by petitioner involve the use by the prosecution of cell phone location records to show that petitioner was in the general area of the murder at its approximate time. This was important evidence because of the conflicts in eyewitness identification, and petitioner had no known other business in the victim's area on the murder day. Petitioner raises several types of challenges, most of them ineffective assistance of trial and appellate counsel in not objecting, or timely objecting, to the cell phone evidence, and in failing to acquire support for a challenge to the cell phone evidence. One claim directly challenges the admission of cell phone location evidence.

However, none of the challenges can be maintained for the reasons set forth below.

Facts

Both parties give accurate renditions of the facts, and the undersigned will use their statements by placing them in blocked quotes. Where the undersigned makes additions from the record or judicial notice, or commentary in general, such will be italicized.

Defense counsel was not oblivious to the significance of the cell phone records. However, as the facts below show, he made no sustained effort to challenge the facts or the primary witness relating the facts. Rather, counsel made sporadic thrusts to keep the evidence out. The first such attempt occurred pretrial in the form of what is known in federal court as a Daubert hearing; however, its not altogether similar counterpart in state law is made pursuant to People v. Kelly, 17 Cal.3d 24 (1976), i.e., the proponent of "new technology" for use in court has the burden of demonstrating the reliability of that technology through an expert.

Petitioner's Memorandum, ECF No. 26 at 33-34.

Petitioner's trial counsel argued vigorously to have the court order a hearing outside of the jury to test the reliability of using cell phone records to give approximate location. At one point he argued (apparently without evidentiary backup) that "we believe the science might show that a cell doesn't always ping off the closest cell tower." (RT 136)

Petitioner's Memorandum, ECF No. 26 at 34-35.

However, this witness did not testify that the location recordation of a user's cell phone was always proximate to the nearest tower: "What the cell phone does is, as I stated, searches for the nearest available tower with the strongest signal. Now, if the nearest available tower is 150 yards away, it may be full[y utilized]. In that case, it will search the remainder of the network—as you see there, several towers—and find which one has the strongest signal and connect to it as long as it's available." (RT 640)

* * *

"If it's (the closest tower) is receiving a lot of calls, like I said, it has a specific number of calls each tower can handle. Once that is maxed out, when the next incoming call is coming in, our person is trying to make a phone call, it connects to our network, not just one tower. And the network—the towers talk to each other basically and determine who has the strongest signal and who [which tower]is available at that time. (RT 675)

Tower 47's location was described as Franklin Blvd., RT 642—the relatively approximate site of the murder. Tower 29 was located on Rose Bud Lane, id., proximate to petitioner's half-brothers residence. The undersigned can take judicial notice of Google Maps to state the approximate locations and distances involved. The tower on Franklin (South Sacramento just past 20th Ave) is approximately 14 miles distant as one would drive, fairly directly, from the tower on Rose Bud Lane (North Sacramento just north of Auburn Blvd. The Franklin tower is in the neighborhood of 5-6 blocks west of Martin Luther King Blvd. The undersigned understands the testimony regarding cell phone location to mean that a "target" phone may be identified as being within a pie shaped wedge, a "sector" much like a pennant, whose tip is at the tower and whose widest spot is up to 1-2 miles maximum away from the tip. Of course, many variables, including topography and obstructions can affect the shape of this wedge sector.

In a city like Sacramento, towers typically have a range of a mile and a half to two miles. (Id. at 641, 673-74.) The towers are set to receive signals from a specific coverage area. (Id. at 674.)

Answer, ECF No. 31 at 49-50.

Petitioner's Memorandum, ECF No. 26 at 35.

Petitioner's Memorandum, ECF No. 26 at 35-37.

The Shenck declaration is notable for what it does not contain. First, although Mr. Shenck concludes that there is no consensus concerning cell phones initially attempting to communicate off the nearest tower, the declaration contains no citation to contrary authority. And as set forth in the discussion below, the vast majority of case authority, at the very least, has accepted the "closest cell tower when available" theory.

Next, although it is undisputed that a cell phone may not invariably communicate with the closest cell tower, the Schenk declaration gives no indication why a cell phone would not logically seek out, at least initially, the strongest tower signal.

Finally, the Schenk declaration does nothing to rebut the inferences to be drawn utilizing all the relevant calls. That is, the Shenck declaration may be persuasive for a single cell phone call in the abstract, but it says nothing about why petitioner's cell phone kept pinging off the tower most proximate to the murder site, and no other, at times relatively proximate to the murder, only to never ping off that same tower some time before and after the murder. The Shenck declaration would lead one to believe that petitioner is simply unlucky in the extreme. Moreover, the Shenck declaration gives no indication why, if petitioner were far away from the murder site, especially near his relatives' residence, other closer towers were always bypassed at or about the time of the murder to connect every time with a far distant tower—perhaps even out of range entirely.

Discussion

Petitioner raises several ineffective assistance of counsel claims, both trial and appellate, but they all revolve around the asserted failure to investigate and obtain expert advice regarding the connectivity technology of cell phones. One sub-claim asserts a failure to object to the improper expert testimony of the cell phone company custodian of records. Finally, petitioner asserts a due process "false testimony" claim, i.e., the allegedly incorrect testimony of the custodian of records.

1. The Ineffective Assistance of Counsel Claims

Petitioner has not demonstrated that the state court's habeas determinations were unreasonable in either respect, nor is he entitled to an evidentiary hearing to prove the correctness of the Shenck declaration. The undersigned emphasizes that he is not making a factual finding of incorrectness of the Shenck expert declaration; rather, for the reasons set forth below, he is simply finding that the state courts in petitioner's case were not unreasonable in relying upon the vast amount of authority at odds with the Shenck declaration in finding the actions of counsel reasonable.

At hearing the undersigned inquired of petitioner's counsel whether trial counsel was ineffective because he did not find Mr. Shenck to testify for the defense. The answer was insightful in that although petitioner's counsel did not adopt the court's question as his position, petitioner's counsel was not able to point to any authority cited in the Shenck declaration, much less overwhelming authority,— or even authority outside the declaration with the exception of one case, post-petitioner trial,4 disputing cell site location accuracy—something the undersigned would have expected if all defense counsel are to be determined to be unreasonable in acquiescing to cell site location evidence placing their clients in the approximate area of a crime.

To the contrary, as Respondent has noted, the vast amount of case authority, even recent authority, both within and without California, would not place reasonable counsel on notice of a deficient advocacy if they did not vigorously seek to keep out such evidence.5 People v. Martin, 98 Cal.App.4th 408, 414 (2002) (prosecution relied on cell phone location data without apparent objection); People v. Vu, 143 Cal.App.4th 1009, 1017 (2006) (prosecution relied on cell phone location data without apparent objection); People v. Thomas, 2015 WL 2105729 (Cal. Ct. App. 2015) (citing a large amount of authority, and denying "as futile" ineffective assistance of counsel claim for failure to challenge closest tower cell phone location evidence in a Kelly hearing); People v. Legardy, 2014 WL 411282 (Cal. Ct. App. 2014) (allowing a cell phone custodian of records or other employee to testify to nearest tower cell phone location evidence); People v. Landers, 2011 WL 2811334 (Cal. Ct. App. 2011) (allowing a cell phone custodian of records or other employee to testify to nearest tower cell phone location evidence); People v. Love, 2010 WL 5407352 (Cal. Ct. App. 2010) (Metro PCS employee, without apparent objection, testified to the fact that 99.99 percent of cell phone contact is with the closest tower); People v. Wells, 2007 WL 466963 (Cal. Ct. App. 2007) (not error to deny Kelly hearing regarding cell phone location testimony, and citing in footnote 11 numerous out of jurisdiction cases); People v. Jiminez, 2007 WL 215075 (Cal. Ct. App. 2007) (not error to deny Kelly hearing regarding cell phone location testimony); United States v. Graham, 796 F.3d 332, 364 (4th Cir. 2015) (". . . a cell phone connects to the cell tower emitting the strongest signal, and that cell sites in urban areas have a two mile maximum ranger of connectivity. He testified further that, aside from proximity, factors such as line of sight and volume of call traffic may affect the ability of a particular cell tower to connect to a phone, but, in any case the phone must be located within two miles of any cell tower in the Baltimore area in order to connect to it.") United States v. Ransfer, 749 F.3d 914 (11th Cir. 2014) (Custodian of records OK to talk about cell phone pinging to nearest tower. Id. at 937-938; "Detective Christy . . . explained . . . The cell phone will "ping" the nearest tower unless it is at capacity, in which case it will ping the next available tower. Accordingly, the cell phone tower records are an approximation of the phone's location at the time of the call." Id. at 931, n. 18). United States v. Davis, 785 F.3d 498, 501-02 (11th Cir. 2015):

In re Application of the United States for Historical Cell Site Data ("In re Application (Fifth Circuit)"), 724 F.3d 600, 611-15 (5th Cir.2013):

Id. at 613.

United States v. Banks, ___ F. Supp. 3d ___, 2015 WL 751953 (D. Kan. Feb. 23, 2015):

Id. at *6 (issue decided in government's favor by the court after hearing with conflicting experts). In re Application for Telephone, etc., ___ F.Supp. 3d ___, 2015 WL 4594558, at *1 (N.D.Cal. Jul. 29, 2015) ("Whenever a cell phone makes or receives a call, sends or receives a text message, or otherwise sends or receives data, the phone connects via radio waves to an antenna on the closest cell tower, generating CSLI"). United States v. Machado-Erazo, 950 F.Supp. 2nd 49, 56, 58 (D.DC. 2013) (rejecting Evans and finding the relevance of cell phone location testimony demonstrating the general location of a call).6

Again, the point of citing all this authority is not to find Mr. Shenck presently incorrect; it is to find that reasonable counsel could rely on opposite authority in forming trial strategy not to support the relatively unsupportable, and that in any event, most courts would find a lack of prejudice. Each of petitioner's several ineffective assistance claims fails before this authority. The failure to support a Kelly motion may well have been reasonable in that any evidentiary contest was sure to be met with a blizzard of authority to the opposite conclusion. It is certainly not unheard of that defense counsel will attempt a stab-in-the-dark motion on the off chance that good will come of it, and there is no downside for having tried. The related claim of failing to find an expert to rebut the state reliance on cell phone tower proximity evidence also fails as counsel does not have a duty to scour the country for expert evidence in the face of massive contrary authority.

This case is indistinguishable in principle from Maryland v. Kulbicki, ___ U.S. ___, ___ S.Ct. ___, 2015 WL 5774453 (Oct. 5, 2015). In that case, counsel was faulted for not recognizing, investigating and supporting a ballistics theory that had become scientifically discredited since the time of trial. Further, there was assertedly some nascent evidence that the theory was unreliable even at the time of trial which counsel should have pursued. The Supreme Court refused to fault counsel, however, for not investigating and pursuing the counter-evidence to a widely accepted theory at the time of trial. The outcome in petitioner's case should be even more clear in that the cell tower proximity theory was the vastly predominant theory at the time of his trial, and remains so to this day. The Superior Court and later appellate courts were simply not AEDPA unreasonable in concluding that counsel was reasonable in not pursuing a relatively novel attack on the theory that cell phones usually utilize the nearest cell tower.

Finally, just as in Kulbicki, the undersigned need not launch off on an inquiry concerning whether the Shenck theory casting the cell tower proximity theory as junk science is now correct, i.e., that petitioner was prejudiced. The first prong of Strickland has not been met.

Counsel also posits that counsel was ineffective for not objecting to the cell phone custodian of records testimony regarding the tower to which petitioner's cell phone was (most probably) connecting at various times on the murder day. The problem with this attack is that as respondent has set forth, defense trial counsel did interpose such an objection.

Answer, ECF No. 31 at 54, accurately characterizing the record.

The fact that the trial court decided, errantly or otherwise, that the custodian testimony did not require expertise is not something that can be laid at counsel's door. Although petitioner asserts that counsel then "let the matter go," such does not demonstrate unreasonably deficient behavior—indeed, when a court has ruled, counsel risks antagonizing the judge by repeated objections in the face of the prior ruling.

Petitioner also fails to recognize that this court cannot find the state courts "wrong," on state law evidence admission matters. Estelle v. McGuire, 502 U.S. 62, 67 (1991). All of the state courts reviewing petitioner's ineffective assistance claim have rejected the ineffective assistance claim—on both Strickland aspects—by an explicit or implicit finding that the trial court did not err in permitting the cell phone tower proximity evidence. Moreover, the courts are divided today as to whether such testimony must come in through expert evidence. See United States v. Graham, supra, 796 F.3d at 364-65 (lay testimony acceptable for the matters quoted above regarding connectivity to the closest tower, but unacceptable as to other intricacies as to how cell phones work); United States v. Ransfer, supra, 749 F.3d at 937 (lay testimony acceptable); but see United States v. Banks, supra, 2015 WL 751953 (expert testimony necessary on most aspects of cell phone operation).

Finally, petitioner challenges the "error" of the trial court, unfiltered by an ineffective assistance claim, in permitting "false evidence," i.e., the assertedly incorrect cell tower proximity evidence, to be placed before the jury. Petitioner's counsel knows that federal habeas law will not allow an AEDPA challenge to prejudicial evidence erroneously admitted. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009).7 Therefore, he posits the claim as a "false evidence" claim in violation of due process. See Napue, and other cases discussed supra. However, this tortured construction of Napue and like cases cannot stand. "False" in the context of Napue, connotes the knowing use of perjurious or false evidence, not simply evidence that petitioner, or even later courts, determine to have been incorrectly admitted because it was contested or inaccurate. The Ninth Circuit has set forth the prerequisites for a false evidence claim as discussed previously. Hayes v. Brown, supra. Here there is no allegation that that the prosecution introduced evidence which it knew, or should have known, was false.

2. No Necessity for an Evidentiary Hearing

Petitioner vigorously argued that the Superior Court on state habeas review violated state procedural law by not holding an evidentiary hearing on the accuracy of the Shenck declaration because under state law, such a declaration must be initially accepted as true in determining a prima facie case. The argument continues in effect to posit that since petitioner did not have a full and fair opportunity to prove his case in state court, the factual determination of the court to essentially reject the Shenck declaration obviates the application of Cullen v. Pinholster, 563 U.S. 170 (2011), and the relatively generous pre-AEDPA standards of permitting evidentiary hearings in federal court are in effect. See Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir. 2014).

However, petitioner misapprehends the nature of the Superior Court's initial, dispositive ground for rejecting ineffective assistance, and presumably that of the higher courts as well. Like the undersigned here, the Superior Court did not initially find that Mr. Shenck was factually incorrect; rather, only that counsel was not unreasonable in "failing to support" his Kelly motion because previous appellate court acceptance of cell phone location evidence demonstrated acceptance of the use of single cell towers for location purposes. Thus, this court could presume Mr. Shenck correct, but also that the previous usage of cell phone location evidence was well accepted at the time.8

It may be true that the Superior Court could have set forth more evidence of the practice of courts to accept single tower location data, but as the citations of the undersigned herein point out, the overwhelming acceptance of cell phone single tower location evidence by courts even to this very day, and a fact not at all disputed by Mr. Shenck in terms of citation to authority, completely supports the Superior Court ultimate legal conclusion that counsel did not act unreasonably.

To the extent that the straight claim of "false (incorrect) evidence" is at issue, something that can exist in California law despite conventional wisdom to the contrary, no hearing is necessary because no federal claim exists herein for the presentation of material, incorrect evidence without fault on the part of the prosecution. And given the widespread acceptance of single tower cell phone technology, the prosecution was not at fault.

C. The Gang Evidence Photos

This claim is the last of petitioner's significant claims. It appears from the record as a whole that the prosecution attempted to flavor this prosecution with "gang evidence"—with no hard connection involving petitioner with gangs. It also appears undisputed that any gang relation to this murder occurred in the shooting of petitioner, i.e., he was a person attempting to break up a gang dispute at a party which he attended; petitioner got shot for his efforts. It was the prosecution's theory that petitioner's motive for the murder at issue was personal retaliation— i.e., petitioner had been shot without legitimate provocation for his being shot at the aforementioned party, and he was angry at this turn of events. There was not a motive presented that the murder for which petitioner stood trial was motivated by a need for gang retaliation.

The first gang flavored evidence occurred when the prosecution introduced a video of a generic "Crip walk." The relevance of that "walk" to the murder petitioner was convicted of is difficult to decipher. While it is true that previous to the murder in question petitioner had attended a party in which gang members had exhibited hostility, including demonstrations such as a "Crip walk," designed to inflame other gang members, it is also undisputed in the record that petitioner had no connection to any hostile gang except for his unfortunate shooting at the hands of a gang member when petitioner attempted to defuse any hostilities which might have otherwise resulted in a serious incident between gang members that night.

The evidence in question in this claim, pictures of petitioner with family in which some "signs" were flashed, ostensibly "gang signs," was initially ruled inadmissible except as to photos not depicting the signs or redacted to eliminate the gang signs. RT 113-115.9 The photographs had some relevance in that in addition to petitioner, the pictures included petitioner's two half-brothers and his cousin Dalaza. The two half-brothers had some connection with the case in that they may have aided petitioner in setting up the retaliation, and of course, according to the prosecution, Dalaza was involved post-murder in conveying information to petitioner at petitioner's request, as well as, according to the defense, a person whose physical description more closely resembled the eyewitness-to-the-murder descriptions.

During the course of the trial, the prosecution called petitioner's girlfriend, Francine Guzman, who according to petitioner, gave fairly favorable testimony for petitioner— at least it showed him as attempting to be peacemaker at the party where he was ultimately shot. Just prior to the "door opening" question, defense counsel had been eliciting testimony concerning persons who had been at the party where petitioner was shot. RT 929-930. Part of that testimony concerned the fact that some persons there were associated with gangs. Then, trial counsel asked the following two questions (RT 930-931):

Immediately thereafter defense counsel went back to asking general questions about the witness' family members. A good bit of questioning elapsed before the prosecution asked to approach the bench, and the judge and counsel went into chambers. The prosecutor urged that he be allowed to show the unredacted "gang sign" photos because of the defense counsel question set forth above, and also because counsel had questioned the witness about the color of clothes and a bandanna petitioner wore to the effect that such clothes did not place petitioner in any untoward group. The judge remarked that he had actually annotated defense counsel's question at the time it was asked as "opening the door" to petitioner's supposed gang associations. RT 996. Defense counsel responded that the prosecutor was playing up gang inferences of certain persons at the party, and leaving the inference that petitioner was part of that scene or lifestyle. Defense counsel specifically argued:

(RT 1000.)

After much more discussion, the court ruled that the three "Macy" pictures would come in which showed petitioner and family members doing some type, perhaps, of gang signs. The court then gave the following limiting instructions:

(RT 1015.)

The pictures were published to the jury and presented to Ms. Guzman; she reiterated that such had not changed her mind that petitioner was not involved in gang culture. (RT 1018.)

The undersigned agrees with petitioner to a point—the admission of the pictures depicting petitioner throwing so called "gang signs," was unwarranted and prejudicial to a degree. Also, at times, "opening the door" to prejudicial evidence can demonstrate unreasonable conduct on the part of counsel—but this is not true for every situation. See Edwards v. Lamarque, 475 F.3d 1121 (9th Cir. 2007) (en banc). Nor do counsel's statements at trial concerning his or her actions prove unreasonableness or prejudice. Id. at 1126. In this case, the undersigned cannot agree that counsel was AEDPA unreasonable in his questioning, or that, considering the evidence as a whole, the end result of the photos publication to the jury was AEDPA prejudicial. That is, applying the double deference inherent in a Strickland analysis, the state court's conclusions concerning unreasonableness and prejudice cannot be overturned.

The Superior Court based its ruling on prejudice and not whether counsel's actions were reasonable. As to the latter point, the lower court made no pronouncement at all. However, in an AEDPA analysis, every reasonable argument to uphold the verdict must be indulged. Harrington v. Richter, 562 U.S. 86, 102 (2011). While it is presumed that the higher courts in their silent denial adopted the written prejudice analysis of the Superior Court as their reasoning, that does not mean that the higher courts adopted the silence of the lower court on an unaddressed point. "In the same vein, if a state court does not explicitly state the reason for denying a claim, we presume that the state court adjudicated the claim on its merits." Murray v. Schriro, 746 F.3d 418, 450 (9th Cir. 2014). Combining the above authority, the undersigned will indulge every reasonable argument to uphold the state court's denial of ineffective assistance of counsel. If this were not the case, this court would be obliged to find that the silence of the lower courts on a sine qua non aspect of ineffective assistance must be found in petitioner's favor. This cannot be the case after AEDPA.

The undersigned has already set forth the standards for ineffective assistance of counsel, and such will not be repeated here. In reading the entirety of the transcript, especially trial counsel's argument to the judge, it is clear that counsel believed the prosecution had sneaked in prejudicial gang references, e.g., crip walk video, focus on gang affiliations of persons at the party where petitioner was shot. Although counsel was cognizant that the court had explicitly kept out the photos at issue because this was not a "gang case," he did not believe that he was "opening the door" to admission of the photos, by asking one question concerning petitioner's lack of gang culture beliefs—especially after the flavor of gang activity was hanging heavy in the case. Rather, he believed he was simply pushing further a door which had already been opened.

Yes, counsel took a risk in doing this. And yes, in hindsight, it might have been better had counsel asked the court at a bench conference to ask the question of Ms. Guzman that he did. But the court cannot find, nor could all reasonable jurists find, that counsel's asking the question as he did, with the background existing when he asked the question, was so far below the standards of reasonable counsel, that trial counsel can be termed, "incompetent." Not every counsel decision which does not work out as intended indicates that counsel is incompetent. See e.g., Givens v. Martel, 2012 WL 892178 * 19-20 (N.D. Cal. 2012).10

On the matter of prejudice, the court cannot find the reasoning of the Superior Court, or the decision of the higher courts to be AEDPA unreasonable. It is true that the Superior Court made a factual error in referring to only one picture being introduced instead of the three which were. But petitioner makes no argument that had only one picture been introduced, insufficient prejudice would have accrued, i.e., it was the fact of three pictures and not one which made all the difference. The pictures showed essentially the same activities taking place.

The undersigned has previously commented that the gang evidence in this case was unwarranted in terms of its minimal relevance and prejudicial nature. However, petitioner must show that the introduction of this prejudicial evidence undermined confidence in the verdict given the totality of the evidence. This he cannot do. Although petitioner disputes the significance or admissibility of adverse evidence against him, the undersigned takes the record as it is found. The gun involved in the murder at issue was found in petitioner's room; petitioner looked culpable after he attempted to mislead the police into thinking he did not utilize the room. His cousin, Delaza, directly implicated petitioner in the murder with his testimony recounting petitioner's possibly case-ending admissions regarding "shooting the wrong dude." Petitioner's cell phone location data indicated that he was proximate to the murder scene close to the time the murder was committed. Evidence was submitted that petitioner was enraged after he had been shot at the party— finding personal retaliation motive, not gang motivation, for the murder was not a stretch for the jury.

It is true that evidence contrary to the finding of petitioner as the culprit existed. Petitioner knew the person who had shot him, although the record is unclear the extent of time petitioner was familiar with this person. And why was petitioner relatively quick to conclude that "he had shot the wrong dude," i.e., this indicates he knew who the real culprit had been all along. It did not make sense for petitioner to have just killed anyone if the motive for the murder had been personal retaliation. (Gang retaliation can be much less discriminating.) The eyewitness testimony describing petitioner was weak, was not based on in-court identification, and did implicate Delaza to some extent. Moore's testimony was seemingly incredible no matter who it favored at any particular time. However, the evidence obscuring petitioner as the real shooter does not outweigh the evidence showing him to be the person who killed the victim. The gang pictures do not shift the balance to the point where confidence in the verdict is undermined.

The Superior Court heavily relied on the limiting instruction about use of the photos—it could only be used to assess Ms. Guzman's credibility. There is abstract appeal to petitioner's argument that once the stink of prejudicial evidence is set before the jury, it will be difficult for the jurors to follow an instruction to ignore the smell. Nevertheless, there are weak limiting instructions and there are stronger ones. The instructions here were strong and succinct and understandable. "It is important to understand" was the emphatic preface to each of the limiting instructions. The presumption that the jury follows instructions of the court has some force in light of the manner in which the instructions were given.

Finally, trial counsel's assessment of the prejudicial effect—it ends the case—is entitled to consideration, even knowing that it is not dispositive. Nevertheless, the on-the-spot admission of trial counsel, just stung by a finding that he had opened the door to prejudicial evidence, must be viewed as possible self-defense reaction and a hyperbolic attempt to persuade the judge to keep the photos out.

De novo review of this issue could be decided either way, although the undersigned would conclude that counsel was not ineffective, nor was there sufficient prejudice. However, that is not the standard here. Fair minded jurists in reviewing the issue must have only one reasonable way to decide the issue. Overall, and despite the favorable evidence, it was reasonable to find from the state court's perspective that counsel did not act below an objective standard of competence and/or the prejudicial impact was insufficient.

D. The "Failure" to Call Character Witnesses

Petitioner criticizes the asserted failure of trial counsel to call character witnesses. It appears to be undisputed that petitioner was a decent human being prior to the events of this case, or in the words of petitioner's present counsel, a peaceful human being. The undersigned need not assess the reasonableness of defense counsel in not procuring the evidence for trial because the prejudice issue is dispositive to the claim, and in any event, overlaps substantially with the reasonableness prong.

Petitioner's presentation that character witnesses would have staved off prejudicial impact of gang evidence or other adverse aspects of the case begs the issue. The character witnesses were to testify about petitioner's character prior to being shot in the face. See declarations attached to the Superior Court Petition for Habeas Corpus. The overriding issue before the jury (despite the flavor of gang evidence) was petitioner's disposition after being shot. "It seems safe to assert" that being shot in the face does have a tendency to make many persons very angry.11 Did petitioner succumb to that anger and plan retaliation, or did he continue as a mild mannered, get-over-it type of person? The character evidence now proffered by petitioner does not touch on this issue. The evidence of petitioner's pre-shot character could have backfired on petitioner, see below, but in any event it would not have helped that much in general terms, at least not to the extent that reasonable jurists would have their confidence undermined in its absence.

Moreover, regardless of whether it opened the door to admitting "gang" pictures (something which might well have occurred in any event had petitioner attempted to show his good character and peacefulness through the uncalled character witnesses), the best character witness for petitioner was his girlfriend, Ms. Guzman.12 One cannot read her testimony and not come away with the impression but that she was a level-headed, intelligent witness. Her testimony that petitioner was not into the gang lifestyle, a fact she would have been aware of pre and post-shooting of petitioner, was about as good as it gets.

This claim should be denied.

E. Remaining Issues (Claims 9-12)

As he did in the Superior Court, petitioner faults his trial counsel for inadequately investigating, and preparing for the case. Primarily, counsel is faulted for not interviewing specific, potential witnesses either by himself, or through an investigator. However, petitioner does not attempt to show how such investigation would have significantly aided his case. Take, witness Guzman, for example. She testified favorably for the defense. Petitioner does not elaborate what in addition to the actual testimony should have been elicited, or would have been elicited if she had been interviewed by the defense. There might well have been reasons not to interview this witness past what the prosecution had procured for reasons of impeachment potential. The same holds true for the other witnesses specified.

Petitioner argues that Dalaza may have been the actual culprit due to his similarity in appearance with those descriptions given by eyewitnesses. Also, Dalaza may have had access to the gun in question as well as petitioner's car. But the "failure to investigate" is not supported by any presently found information not already known at the time of trial. There is no way this claim demonstrates any prejudice from any alleged failure to investigate. Evidently, even petitioner himself cannot add anything to this claim.

Petitioner claims that he is actually innocent (Claim 10) due to the fact that "[t]he evidence adduced at trial did not overwhelmingly establish that [petitioner] shot and killed the victim. . . ." Petition at 18. Even assuming that the Supreme Court has established an actual innocence claim, something the parties dispute, the claim herein does not come close to meeting the standard as articulated by the Ninth Circuit—a clear and convincing affirmative showing of innocence by the introduction of newly discovered evidence. Carriger v. Stewart, 132 F.3d 463, 476-477 (9th Cir. 1997) (en banc). Criticizing or disputing the evidence received at trial does not constitute an "affirmative" showing. For example, petitioner strenuously urges that the cell phone evidence received at trial was unreliable, and hence inadmissible. This is not an affirmative showing. An affirmative showing would include, at the very least, new cell phone evidence that clearly placed petitioner at a location not proximate to the murder scene at the time of the murder. Petitioner does not set forth any new, affirmative showing for his actual innocence claim with the exception of the Moore recantation, which for reasons already expressed, cannot be utilized.

Claim 11 concerns the alleged cumulative impact of all errors associated with ineffective assistance of counsel. As the court has found no error, i.e., it has not found that counsel's performance was below an objective standard of reasonable counsel for any claim much less two or more claims, no cumulative impact of prejudice can be assessed.

Finally, Claim 12 involves the asserted truncation of impeachment of the witness Dalaza, a claim decided adversely to petitioner by the Court of Appeal on direct review. As has been set forth previously, Dalaza's physical appearance was similar to some of the eyewitness descriptions. Moreover, Dalaza had testified to damaging conduct and admissions by petitioner which were important evidence in the case. Finally, Dalaza gave this incriminating evidence to the police after having been threatened to be prosecuted for the murder. The background facts to this claim are set forth in the Petition at 21:

The claim is posited as having both deprived petitioner of his cross-examination rights and to present a defense. The more cognizable claim is that of failure to permit complete cross-examination in violation of Davis v. Alaska, 415 U.S. 308, 315-16 (1974); see also Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1985):

Here, petitioner was permitted to impeach Dalaza with his conviction; after all, such a conviction was a matter of record. However, petitioner sought to question Dalaza as to matters which were unproven, and for whatever reason, apparently not charged (the shooting of a weapon from a car). This would have involved a mini-trial as the prosecution would have to present all the reasons why a gun charge was not pursued. Dalaza might well have to plead the Fifth Amendment. Moreover, petitioner was seeking to delve into a witness' state of mind about an incident that had nothing to do with petitioner's murder trial. Petitioner's impeachment protestations aside,13 he was seeking to delve into this incident to show that Dalaza fired a gun then; maybe it was he who fired the gun in petitioner's case. The relevance of such an inquiry was very suspect as there is no logical connection between wildly firing a gun on one occasion (assuming that could be proved) and firing a gun on another with intent to kill a specific person after lying in wait.

The undersigned cannot find that the state courts were AEDPA unreasonable in their application of the principles of Supreme Court authority.

Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings and recommendations, a substantial showing of the denial of a constitutional right has not been made in this case.

Conclusion

Accordingly, IT IS HEREBY RECOMMENDED that:

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).