Maxstadt v. Pickett

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION [7] 8 RYAN JOSEPH MAXSTADT, Lead Case No. 5:20-cv-08059-EJD 9 Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. [10] Re: ECF No. 1 11 JASON PICKETT, Respondent. [13] 14 In 2018, following convictions on five criminal charges in Mendocino County, a state trial 15 court sentenced Petitioner Ryan Maxstadt to a term of 38 years and eight months to life. Maxstadt 16 now challenges two of his convictions by petitioning this Court for a writ of habeas corpus under [17] 28 U.S.C. § 2254 . Petition, ECF No. 1. Maxstadt raises four claims in his petition: (1) ineffective 18 assistance of trial counsel; (2) lack of sufficient evidence; (3) defective jury instructions; and (4) 19 actual innocence. After considering the parties’ submissions and the record in this matter, the 20 Court DENIES Maxstadt’s petition. 21 I. BACKGROUND 22 A. Statement of Facts1 23 In late 2016, police in Ukiah, California were investigating a string of burglaries that they 24 suspected were linked to a black Kia Sportage. On December 20, 2016, a local officer noticed the [25] 26 1 These facts are taken from the California Court of Appeal opinion in Maxstadt’s direct appeal. People v. Maxstadt, No. A153888, 2019 WL 1970162 (Cal. Ct. App. May 3, 2019); see also 28 27 U.S.C. § 2254 (e)(1) (“[A] determination of a factual issue made by a State court shall be presumed 1 suspected Kia in a convenience store parking lot and attempted to use his patrol vehicle to block 2 the Kia in that lot. However, the Kia’s driver—later identified as Maxstadt—abruptly pulled out 3 of the parking lot, initiating a high-speed chase that the California Highway Patrol (“CHP”) later 4 joined. During the chase, one of the participating CHP officers saw Maxstadt reach out of the 5 Kia’s window with what appeared to be a black revolver. Worried that Maxstadt would open fire, 6 that CHP officer served out of the way. The CHP officer reported hearing two gunshots as he 7 swerved. Eventually, Maxstadt pulled over and fled on foot. Officers ultimately found Maxstadt 8 hiding in a nearby creek, where they took him into custody. 9 In the subsequent investigation, officers searched Maxstadt’s Kia and discovered an 10 unzipped gun case that could hold a mid-sized revolver. However, officers did not find a firearm 11 and did not recover any ballistics evidence. Further, no other officer reported hearing gunshots or 12 seeing muzzle flashes, although a video recording from the lead CHP officer’s vehicle appeared to 13 show two flashes and two “popping sounds.” 14 B. Procedural History 15 In June 2017, prosecutors charged Maxstadt with five felonies: attempted murder of a 16 peace officer; assault with a firearm on a peace officer; possession of a firearm by a felon; reckless 17 driving while evading a peace officer; and unlawful use of a motor vehicle. 1 CT 65–68.2 18 Maxstadt pled guilty to the latter two counts and proceeded to trial on the first three counts. At 19 trial, the jury convicted Maxstadt of assault with a firearm and possession of a firearm as a felon 20 but deadlocked on the attempted murder count. The state trial court declared a mistrial as to 21 attempted murder, and prosecutors retried Maxstadt on that count. A second jury found Maxstadt 22 guilty of attempted murder following the retrial. The trial court then sentenced Maxstadt to a total 23 term of 38 years and eight months to life. 24 Maxstadt appealed his attempted murder conviction. In his direct appeal, Maxstadt raised 25 two arguments relevant to his federal habeas petition. First, he argued that there was insufficient [26] 2 The Court cites to the Clerk’s Transcript (filed at ECF Nos. 20-1 to -2) as [Volume] CT [Page]. 27 The Court likewise cites to the Reporter’s Transcript (filed at ECF Nos. 20-3 to -25) as [Volume] 1 evidence of intent to kill. Second, he argued that the trial court gave a faulty jury instruction that 2 collapsed the mens rea and actus reus elements for attempted murder into a single element. The 3 state appeals court rejected both arguments, Maxstadt, 2019 WL 1970162 , at *2–5, and the state 4 supreme court denied review. 5 Following his direct appeal, Maxstadt simultaneously filed habeas petitions in state and 6 federal court. Maxstadt’s federal petition—the subject of this Order—was originally assigned to 7 Magistrate Judge Robert Illman. Maxstadt requested a stay of his federal petition while he 8 continued to exhaust his remedies through state habeas proceedings, Mot. to Stay, ECF No. 2, and 9 Judge Illman granted that motion. Order Granting Stay, ECF No. 6. 10 In his state habeas proceedings, Maxstadt raised two claims for relief. First, Maxstadt 11 argued that his trial counsel provided ineffective assistance for five reasons: (1) trial counsel failed 12 to retain a gunshot residue expert; (2) trial counsel failed to move for a venue transfer; (3) trial 13 counsel failed to excuse at least one juror who was friends with the district attorney; (4) trial 14 counsel failed to challenge a sentencing enhancement; and (5) trial counsel wrongly conceded that 15 Maxstadt discharged a firearm. Second, Maxstadt claimed that he was actually innocent. 16 The state trial court rejected both of Maxstadt’s claims in a brief, but explained, opinion. 17 Maxstadt then filed a habeas petition raising the same claims in the state appeals court. The state 18 appeals court summarily denied relief in a largely unexplained decision, although the appeals court 19 cited cases suggesting that Maxstadt’s ineffective assistance allegations were too conclusory to 20 warrant relief. Finally, Maxstadt filed a habeas petition with the state supreme court, again raising 21 the same claims. The state supreme court denied relief as well, in a decision much like the state 22 appeals court’s. 23 Once the state supreme court denied relief, Judge Illman lifted the stay on Maxstadt’s 24 federal habeas petition and ordered the state to respond to the petition. Order Lifting Stay, ECF 25 No. 12; Order to Show Cause, ECF No. 13. Respondent Jason Pickett (the “Warden”) answered, 26 and Maxstadt filed a traverse. Answer, ECF No. 19; Traverse, ECF No. 25. Because the Warden 27 declined magistrate judge jurisdiction, Maxstadt’s habeas petition was reassigned to this Court. 1 II. LEGAL STANDARD 2 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs federal 3 habeas petitions for relief from a state conviction. As relevant here, AEDPA requires a petitioner 4 to show that her state court proceedings “resulted in a decision that was contrary to, or involved an 5 unreasonable application of, clearly established Federal Law, as determined by the Supreme Court 6 of the United States.” 28 U.S.C. § 2254 (d)(1). This is a “highly deferential” standard of review. 7 Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). A state decision is “contrary to” 8 clearly established federal law only if “the state court arrives at a conclusion opposite to that 9 reached by [the Supreme] Court on a question of law or if the state court decides a case differently 10 than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, [11] 529 U.S. 362, 413 (2000). A state decision is an “unreasonable application” of clearly established 12 federal law only if “the state court identifies the correct governing legal principle from [the 13 Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s 14 case.” Id. An unreasonable state decision must be more than “merely wrong.” White v. Woodall, [15] 572 U.S. 415, 419 (2014). Rather, a state decision is unreasonable only when it is “so lacking in 16 justification that there was an error well understood and comprehended in existing law beyond any 17 possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). 18 In assessing whether the state courts reached a decision that is contrary to or an 19 unreasonable application of federal law, federal courts typically “look through” any unexplained 20 state-court decisions to “the last related state-court decision that does provide a relevant rationale.” 21 Wilson v. Sellers, 584 U.S. 122, 125 (2018). In doing so, the federal courts “presume that the 22 unexplained decision[s] adopted the same reasoning” as the last explained decision. Id. However, 23 this approach is only a presumption, not an absolute rule. States can rebut this presumption “by 24 showing that the unexplained affirmance relied or most likely did rely on different grounds than 25 the lower state court’s decision.” Id. at 125–26. [27] 1 III. DISCUSSION 2 A. Ineffective Assistance of Trial Counsel 3 Criminal defendants have the right to effective assistance of counsel under the Sixth 4 Amendment. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show that counsel was 5 constitutionally deficient, a defendant must satisfy the two-part Strickland test. First, the 6 defendant must show deficient performance, meaning that her “counsel made errors so serious that 7 counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” [8] Id. at 687 . When assessing counsel’s performance for deficiency, “substantial deference must be 9 accorded to counsel’s judgment.” Premo v. Moore, 562 U.S. 115 , 126 (2011). Thus, courts start 10 from the presumption that counsel’s challenged actions “might be considered sound trial strategy.” 11 United States v. Juliano, 12 F.4th 937 , 940 (9th Cir. 2021). Second, the defendant must show that 12 the deficient performance prejudiced her defense. Strickland, 466 U.S. at 687 . That is, the 13 defendant must show “there is a reasonable probability that, but for counsel’s unprofessional 14 errors, the result of the proceeding would have been different.” Id. at 694 . This probability “must 15 be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). 16 When federal courts conduct habeas review of state court decisions, the already deferential 17 Strickland test becomes “doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011) 18 (citation omitted). Not only does the state court defer to counsel’s trial judgment when applying 19 Strickland, the federal court must also defer to the state court’s judgment when applying AEDPA 20 review. Id. 21 1. Failure to Retain Gunshot Residue Expert 22 Maxstadt begins by arguing that his trial counsel was ineffective for failing to retain a 23 gunshot residue expert. According to Maxstadt, had his trial counsel called such an expert at trial, 24 that expert’s testimony would have shown an absence of gunshot residue. In turn, that testimony 25 would support the defense that Maxstadt did not shoot at officers during the car chase in question. 26 Petition, Attach. A (“Mem.”) 7–8. However, trial counsel’s decision not to call a gunshot residue 27 expert is not constitutionally deficient either on de novo review or AEDPA’s deferential review. 1 To analyze Strickland’s first prong (deficiency), the Court starts from the premise that 2 “[t]he choice of what type of expert to use is one of trial strategy and deserves a heavy measure of 3 deference.” Leavitt v. Arave, 682 F.3d 1138 , 1140–41 (9th Cir. 2012) (quoting Turner v. 4 Calderon, 281 F.3d 851, 876 (9th Cir. 2002)) (internal quotation marks omitted). One scenario 5 where it would be reasonable for defense counsel not to call an expert is when that proposed 6 expert would have done little more than corroborate the state’s evidence. Id. at 1141. That is the 7 case here. Even though the defense did not call a gunshot residue expert, the state did. And the 8 state’s gunshot residue expert testified that there was only a single particle of gunshot residue 9 found on Maxstadt’s person. 15 RT 313. Given the state expert’s testimony, there would be little 10 benefit to calling a defense gunshot residue expert. At best, the defense expert might find that 11 there were no gunshot residue particles on Maxstadt. But the difference between one particle and 12 no particles is slight, and the state provided a ready explanation for why there might be little to no 13 gunshot residue on Maxstadt—the police found Maxstadt submerged in a creek, which could have 14 washed any gunshot residue off his hands. 13 RT 213–14, 315, 317. Further, it would have been 15 a risk to retain a defense gunshot residue expert because that expert could have found more 16 gunshot residue, therefore undermining Maxstadt’s defense. Given this poor risk-reward tradeoff, 17 Maxstadt’s counsel could have reasonably determined that retaining a defense gunshot residue 18 expert had little upside. See Harrington, 562 U.S. at 108 (defense counsel need not pursue trial 19 strategies that carry serious risks of harm to the defense). 20 For similar reasons, Maxstadt’s ineffective assistance claim fails to clear Strickland’s 21 prejudice prong. Because the state already had an explanation for the lack of gunshot residue 22 evidence, Maxstadt fails to show a substantial probability that a retaining a gunshot residue expert 23 would have changed the outcome of his trials. At the very least, it was reasonable for the state 24 trial court to conclude, in the last reasoned state decision, that Maxstadt “has not presented any 25 evidence of prejudice.” State Habeas Decision 76, ECF No. 20-33.3 [26] 27 3 Pin citations to ECF No. 20-33 and the State Habeas Decision are to the printed pagination at the 1 Accordingly, the Court DENIES this first subclaim for ineffective assistance. 2 2. Failure to Move for Change of Venue 3 Next, Maxstadt asserts that his trial counsel provided ineffective assistance by not moving 4 for a venue change despite allegedly “inflammatory and prejudicial pretrial publicity.” Mem. 18– 5 20. As the state trial court held though, Maxstadt never presented evidence showing that a venue 6 change was necessary, State Habeas Decision 76, so Maxstadt did not show prejudice from his 7 trial counsel’s failure to request a venue change. 8 When deciding a venue change motion, California courts consider “the gravity and nature 9 of the crime or crimes, the extent and nature of the pretrial publicity, the size and nature of the 10 community, the status of the victim, the status of the accused, and any indication from the voir 11 dire of prospective and actual jurors that the publicity did in fact have a prejudicial effect.” Bolin 12 v. Davis, 13 F.4th 797, 808 (9th Cir. 2021) (quoting People v. Coleman, 48 Cal. 3d 112 , 133 13 (1989)). The state trial court reasonably observed that the size of Mendocino County (the relevant 14 community) weighed against transfer because Mendocino was large. State Habeas Decision 76. 15 The state trial court also reasonably found that Maxstadt failed to substantiate his allegations that 16 there was extensive pretrial publicity because Maxstadt failed to present evidence to that effect. [17] Id. This Court further observes that the record contains no suggestion that voir dire revealed 18 pretrial publicity actually prejudiced the jury. These considerations are sufficient to uphold the 19 state courts’ determination. 20 Although Maxstadt attached to his traverse three news articles that purportedly show 21 extensive pretrial publicity, Traverse, Ex. A, those news articles do not support habeas relief. For 22 one, the three articles by themselves are not evidence of extensive pretrial publicity. The number 23 of articles is small, and Maxstadt does not offer any readership or circulation figures to show that 24 the articles were widely disseminated. Even if Maxstadt’s new evidence strongly supported an 25 ineffective assistance of counsel claim, such a claim would still be barred. When a petitioner 26 presents new facts in support of an ineffective assistance claim for the first time in federal habeas 27 proceedings, and the new facts “place the case in a significantly different and stronger evidentiary 1 posture than it was when the state courts considered it,” that petitioner has failed to fairly present 2 her ineffective assistance claim to the state courts. Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 3 2014) (quoting Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988)). Therefore, to the extent 4 Maxstadt’s new evidence strongly supports his claim, Maxstadt has failed to exhaust his claim. 5 See id. at 1319. 6 As a result, the Court DENIES Maxstadt’s second subclaim for ineffective assistance as 7 well. 8 3. Failure to Strike Juror 9 Maxstadt also claims that his trial counsel rendered ineffective assistance by failing to 10 strike “at least one juror” who was friends with the district attorney. Mem. 20–22. As the state 11 courts recognized, though, Maxstadt failed to substantiate his allegation that jurors were friends 12 with the district attorney. State Habeas Decision 76–77. Maxstadt has not offered any evidence 13 showing such an alleged friendship. And Maxstadt has not pointed to anything in the record—nor 14 has the Court found anything in the record—suggesting that such friendships existed. In the 15 absence of evidence showing that any jurors were biased by friendships with the district attorney, 16 the state courts reasonably concluded that Maxstadt’s counsel was not ineffective for failing to 17 strike those hypothetical jurors. Burt v. Titlow, 571 U.S. 12, 23 (2013) (“It should go without 18 saying that the absence of evidence cannot overcome the ‘strong presumption that counsel’s 19 conduct [fell] within the wide range of reasonable professional assistance.’”) (quoting Strickland, [20] 466 U.S. at 689 ) (alteration in original). So, the Court DENIES this third subclaim for ineffective 21 assistance. 22 4. Failure to Challenge Sentencing Enhancement 23 Fourth, Maxstadt contends that his trial counsel was ineffective for failing to challenge the 24 state trial court’s application of the sentencing enhancement provided by California Penal Code 25 § 12022.53(c). Mem. 22–23. That is simply not true. Maxstadt’s trial counsel explicitly asked 26 the state trial court to strike the § 12022.53(c) enhancement at sentencing: 27 The Court: Okay. Thank you. Mr. Rhoades, want to submit or 1 Mr. Rhoades: Well, only to state the obvious which is, Ryan is 28 years old. You know if you take that he did these things because a 2 jury said he did these things and the report relates that, then you are still talking about a young man with no previous acts of violence. And 3 it strikes me that rather than the 26-to-life, including the 12022.53, that the punishment would be sufficient enough without that. I would 4 ask the Court seriously to consider striking that one allegation. [5] 23 RT 1137–38 (emphasis added). Thus, it was reasonable for the state courts to reject this theory [6] of ineffective assistance, and the Court DENIES Maxstadt’s fourth ineffective assistance [7] subclaim. [8] 5. Wrongly Conceding Facts During Closing Argument [9] Finally, Maxstadt argues that his trial counsel was ineffective for conceding at closing, [10] during Maxstadt’s first trial, that Maxstadt possessed and discharged a gun. Mem. 24–25. Once [11] again, the record does not bear out this criticism. Not once during closing arguments did [12] Maxstadt’s counsel concede that Maxstadt had fired a gun. 16 RT 514–24. To the contrary, [13] Maxstadt’s counsel spent the entirety of closing arguments casting doubt on whether Maxstadt had [14] fired a gun. Id. The closest Maxstadt’s counsel came to a concession was stating, “I believe [15] Officer Lewis believes that he heard a [gunshot].” 16 RT 516; see also 16 RT 519 (similar). But [16] Maxstadt’s counsel made that statement in the context of arguing that, even though the officer [17] believed there were gunshots, the jury did not have to believe the officer. 16 RT 516. Indeed, [18] immediately after making that statement, Maxstadt’s counsel pointed to discrepancies in the [19] evidence that undermined the officer’s testimony. Id. Because Maxstadt’s counsel did not [20] concede that Maxstadt had fired a gun, the Court DENIES this final ineffective assistance [21] subclaim. [22] B. Sufficiency of the Evidence [23] Like federal habeas review of ineffective assistance claims, federal habeas review of [24] sufficiency of the evidence claims is doubly deferential. Boyer v. Belleque, 659 F.3d 957 , 964 [25] (9th Cir. 2011). First, the state courts can grant relief only when “‘no rational trier of fact’ could [26] have found the elements necessary for guilt satisfied beyond a reasonable doubt.” Id. (quoting [27] Jackson v. Virginia, 443 U.S. 307, 324 (1979)). In performing this “rational trier of fact” 1 assessment, the state courts must deferentially “view[] the evidence in the light most favorable to 2 the prosecution.” Jackson, 443 U.S. at 319 . Second, this Court then defers to the state courts 3 under AEDPA, meaning that this Court may not grant habeas relief unless the state courts acted 4 unreasonably. Boyer, 659 F.3d at 964–65. 5 Maxstadt argues that there was insufficient evidence as to only a single element of his 6 attempted murder conviction: specific intent to kill. Mem. 11–15. The state appellate court 7 rejected this argument, explaining that under California law, a reasonable jury could infer intent to 8 kill from the act of firing a gun towards a victim at close range. Maxstadt, 2019 WL 1970162 , at 9 *3. That was reasonable. There is ample evidence in the record from which a rational jury could 10 find that Maxstadt fired his gun at pursuing officers. For example, prosecutors presented 11 eyewitness testimony that Maxstadt fired his gun, video evidence showing the same, and a gun 12 case that was recovered from Maxstadt’s vehicle. 21 RT 712–23, 738–39, 742–45, 774–76, 783, 13 787–88. Taken in the light most favorable to the prosecution, a rational jury could well have 14 found that Maxstadt fired his gun. From there, given California law that permitted jurors to infer 15 intent to kill, People v. Houston, 54 Cal. 4th 1186, 1218 (2012) (“The act of shooting a firearm 16 toward a victim at close range in a manner that could have inflicted a mortal wound had the shot 17 been on target is sufficient to support an inference of an intent to kill.”), it was reasonable for the 18 state appellate court to conclude that the jury could make that inference. Therefore, the Court 19 DENIES Maxstadt’s sufficiency of the evidence claim. 20 C. Jury Instructions 21 Usually, claims that a state trial court issued defective jury instructions under state law are 22 not cognizable in federal habeas proceedings. Estelle v. McGuire, 502 U.S. 62 , 71–72 (1991). It 23 is only when “the ailing instruction by itself so infected the entire trial that the resulting conviction 24 violates due process” that defective instructions can rise to the level of a federal habeas claim. Id. 25 at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). When analyzing whether 26 instructional error clears that high bar and therefore justifies federal habeas relief, courts must 27 consider the challenged instruction “in the context of the instructions as a whole and the trial 1 record.” Id. Federal habeas relief is warranted only if, after the challenged instruction is placed in 2 that context, “‘there is a reasonable likelihood that the jury has applied the challenged instruction 3 in a way’ that violates the Constitution.” Id. (quoting Boyde v. California, 494 U.S. 370 , 380 4 (1990)). 5 Here, Maxstadt challenges the state trial court’s use of CALCRIM No. 600, which 6 instructs the jury on the elements of attempted murder. Mem. 15–17. The instruction reads as 7 follows, with the specific language that Maxstadt takes issue with italicized: 8 The defendant is charged in Count One with attempted murder. 9 To prove that the defendant is guilty of attempted murder, the People must prove that: [10] 1. The defendant took at least one direct but ineffective step toward 11 killing another person; 12 AND 13 2. The defendant intended to kill that person. 14 A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to 15 commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into 16 action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after 17 preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some 18 circumstance outside the plan had not interrupted the attempt. 19 A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he abandons 20 further efforts to complete the crime, or his attempt fails or is interrupted by someone or something beyond his control. On the other 21 hand, if a person freely and voluntarily abandons his plans before taking a direct step toward committing the murder, then that person is 22 not guilty of attempted murder. 23 2 CT 241 (emphasis added). From Maxstadt’s perspective, the italicized language collapses the 24 two elements of attempted murder—the direct step and intent—into one. Mem. 17. This, 25 Maxstadt says, allowed the jury to convict him without finding both elements of attempted murder 26 separately. Id. Ostensibly, Maxstadt believes that this would violate the constitutional 27 requirement that the jury find every element of the crime to be established by proof beyond a 1 reasonable doubt. See Sullivan v. Louisiana, 508 U.S. 275 , 277–78 (1993). 2 The state appellate court disagreed, explaining that when CALCRIM No. 600 is 3 “‘considered in context, . . . there is no reasonable likelihood jurors understood it’ as collapsing 4 the two elements of attempted murder.” Maxstadt, 2019 WL 1970162 , at *5 (quoting People v. 5 Lawrence, 177 Cal. App. 4th 547, 557 (2009)). That was a reasonable conclusion for the state 6 appellate court to reach. Notwithstanding the italicized language, CALCRIM No. 600 explicitly 7 states that there are two elements and that those elements are separate. Elsewhere in the 8 instructions, the state trial court also emphasized that act and intent are separate elements, 9 instructing the jury that “[t]he People must prove not only that the defendant did the act or acts 10 charged but also that he acted with a particular intent or a mental state.” 22 RT 1018. Similarly, 11 the state trial court instructed that, to return a guilty verdict, the jury must find not only that the 12 defendant “intentionally committed the prohibited act but did so with the specific intent or mental 13 state.” 22 RT 1021. Altogether, the instructions were clear enough that, applying the lens of 14 AEDPA deference, there is no reasonable likelihood that the jury applied CALCRIM No. 600 in a 15 way that collapsed the elements of attempted murder. As such, the Court DENIES Maxstadt’s 16 jury instruction claim. 17 D. Actual Innocence 18 As a matter of federal habeas law, “[i]t is still an open question as to whether a petitioner 19 ‘may be entitled to habeas relief based on a freestanding claim of actual innocence.’” Taylor v. 20 Beard, 811 F.3d 326, 334 (9th Cir. 2016) (en banc) (quoting McQuiggin v. Perkins, 569 U.S. 383 , 21 392 (2013)). But even if such claims were allowed, they would need to be based on “new reliable 22 evidence that was not presented at trial,” and the petitioner would need to “show that it is more 23 likely than not that no reasonable juror would have found [him] guilty beyond a reasonable 24 doubt.” Ruvalcaba v. Ratelle, 18 F. App'x 658, 660 (9th Cir. 2001) (alteration in original) 25 (quoting Schlup v. Delo, 513 U.S. 298, 299 , 327–28 (1995)). Maxstadt does not offer new 26 evidence at all. Instead, he points only to evidence already in the trial record, Mem. 9–10, 27 essentially repackaging his sufficiency of the evidence claim as an actual innocence claim. 1 || Kennedy v. Madden, No. CV 21-3869, 2021 WL 11134124 , at *8 (C.D. Cal. Aug. 30, 2021), 2 report and recommendation adopted, 2021 WL 11134125 (C.D. Cal. Oct. 29, 2021). 3 Consequently, the Court DENIES Maxstadt’s actual innocence claim. 4 E. Evidentiary Hearing 5 Maxstadt also summarily requests an evidentiary hearing without providing any grounds 6 || for holding such a hearing. The Court DENIES this unsupported request. 7 || IV. CONCLUSION 8 For the reasons above, the Court DENIES Maxstadt’s petition for a writ of habeas corpus. 9 || certificate of appealability shall issue, because reasonable jurists would not “find the district 10 || court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 11 || 473, 484 (2000). IT IS SO ORDERED. 13 Dated: October 1, 2024 [14] FL ( ( J, - EDWARD J. DAVILA = 16 United States District Judge [27] °° || case No.: 5:20-cv-08059-EJD