(HC) Villasenor v. Spearman

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 GERARDO VILLASENOR, No. 2:16-cv-03044-JAM-CKD (HC) 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 M. ELIOT SPEARMAN, 15 Respondent. — 16 — 17 Petitioner is a California state inmate proceeding through counsel with a federal habeas 18 corpus petition filed pursuant to 28 U.S.C. § 2254 challenging his conviction for the attempted 19 premeditated murder of Armando Lopez. Respondent filed an answer to the petition on March 2, 20 2017 and petitioner filed a traverse on March 3, 2017. ECF Nos. 8, 9. The court ordered 21 supplemental briefing on September 13, 2019 concerning the application of the Supreme Court 22 decision in Harrington v. Richter, 526 U.S. 86 (2011), to petitioner’s claim involving newly 23 discovered evidence. The parties submitted briefs in accordance with the court’s supplemental 24 briefing schedule. Upon careful consideration of the record and the applicable law, the 25 undersigned recommends that the petition be denied for the reasons set forth below. 26 I. Factual and Procedural Background 27 A. Trial Proceedings 28 Petitioner was tried before a jury in the Sacramento County Superior Court for two 1 separate gang-related shootings that occurred in 2010. At the time of both shootings, petitioner 2 was 17 years old. ECF No. 1-4 at 2. In the instant habeas application, petitioner is challenging 3 his convictions only related to the first shooting of Armando Lopez. Therefore, the court will 4 limit its discussion of the factual and procedural history of the case to the shooting at issue. 5 The California Court of Appeal found the following facts related to the Lopez shooting.1 6 Armando Lopez was a member of the Norteño criminal street gang and routinely wore red to signify his membership in the gang. 7 During the early morning hours of January 24, 2010, he and three of his roommates left a party and returned to their house on Kesner 8 Avenue in North Sacramento, near Del Paso Heights. One of the roommates drove another roommate’s car to and from the party. On 9 the way home, they stopped to pick up some fast food. Each of the roommates had been drinking. Lopez appeared to be the most 10 intoxicated. When the other roommates got out of the car to bring the food into the house, he stayed in the back seat “mumbling.” His 11 roommates decided to leave him there while they went inside to eat. A short time later, Lopez managed to get out of the car. But instead 12 of coming inside the house, he walked over to his car, which was also parked in front of the house, and got into the driver’s seat. — 13 — As Lopez was changing cars, a group of Sureños was driving 14 through the neighborhood. Raquel Benavidez, seated in the back seat behind the driver, testified the driver was Kristen Clancy (who went 15 by the nickname “Huera”), [petitioner]2 (who went by the nickname “Lalo”) was seated in the front passenger seat, [petitioner]’s older 16 brother Benjamin (who went by the nickname “Playboy”) was seated in the back seat behind [petitioner], and Gisela Chaveste (who went 17 by the nickname “Bubbles”) was seated in the middle of the back seat. According to Benavidez, when they passed a Mexican man 18 sitting in a car on the side of the street, either [petitioner] or his brother told Clancy to stop the car, which she did. [Petitioner] and 19 his brother got out of the car and walked over to the man. [Petitioner] asked: “Do you bang? Where are you from?” Benavidez understood 20 these questions to be a gang-related challenge. [Petitioner] then reached into the car and lifted up the man’s shirt. Seeing a red belt, 21 [petitioner] said, “he’s a Norteño,” pulled out a handgun, and shot him twice. [Petitioner] and his brother then got back in Clancy’s car 22 and the group drove away as [petitioner] said: “I hope he dies.” Benavidez’s testimony was largely consistent with prior statements 23 she made in March 2010 to a school counselor and to a police lieutenant who was called by the counselor. — 24 — 25 1 This statement of facts does not contain any portion of petitioner’s statements to police after he invoked his right to cease questioning. The Court of Appeal omitted these statements because it — 26 — concluded that they were admitted in violation of Miranda v. Arizona, 384 U.S. 436 (1966). — 27 — 2 In order to reflect the current procedural posture of this case, the court has changed all of the 28 references in the direct appeal opinion from “defendant” to “petitioner.” — 1 — 2 The man [petitioner] shot was Lopez. One of the two bullets passed through the back of Lopez’s neck and then struck the 3 passenger side door, where it remained until recovered by police. The other bullet struck Lopez in the shoulder, shattered his clavicle, 4 fractured one of his ribs, and then lodged near his vertebral column, where it remained at the time of trial. His roommates heard the 5 gunshots, came outside to investigate, and found Lopez sitting in his car, bleeding from his neck and shoulder. One of Lopez’s roommates 6 asked him what happened, but he “wasn’t really making any sense.” Another roommate called 911. Police were the first to arrive at the 7 scene. One of the responding officers, who stayed with Lopez until emergency medical personnel arrived, asked him if he knew who 8 shot him. Lopez said he did not. A short time later, Lopez was transported to University of California at Davis Medical Center. He 9 survived his encounter with [petitioner]. 10 Three days later, a detective with the Sacramento Police Department spoke with Lopez at the hospital. Lopez admitted to 11 being a Norteño and confirmed he was wearing a red belt the night he was shot. Thereafter, in April 2010, after Benavidez provided her 12 statement regarding the shooting, the detective again contacted Lopez and showed him several photographic lineups, one of which 13 included [petitioner] and another included Benjamin. Lopez did not positively identify anyone in the lineups. However, according to the 14 detective, he became emotional and seemed on the verge of crying when he looked at the lineup containing [petitioner]’s photograph. — 15 — As mentioned, [petitioner]’s brother Benjamin was originally 16 charged with attempted murder and shooting at an occupied motor vehicle. He testified in his own defense, denying he was involved in 17 the shooting. According to Benjamin, he and [petitioner] went to a party on West Silver Eagle Road, also in North Sacramento, but 18 closer to the Norwood neighborhood. Around midnight, [petitioner] left the party with an undisclosed friend. Benjamin stayed behind 19 with one of his friends (who went by the nickname “Peewee”) to steal cars from around the neighborhood and bring them back to the house. 20 He did so to impress “some guys” at the party who were studying to become automotive technicians at a local technical institute. Other 21 than four or five short trips to steal cars, Benjamin stayed at the party until around 4:00 a.m., at which point he left the party with Peewee. 22 Benjamin denied seeing his brother, Clancy, Benavidez, or Chaveste during the early morning hours of January 24 and further denied 23 being in Clancy’s car. This portion of Benjamin’s testimony was corroborated by evidence he wore an ankle monitor at the time of the 24 shooting that did not register his presence at the crime scene. This testimony was also corroborated by stolen car reports. — 25 — During cross-examination, after a break in the proceedings, 26 Benjamin stated he remembered [petitioner] briefly coming back to the party with “a group of friends” around 2:00 a.m. According to 27 Benjamin, there were “no females” in this group. Benjamin admitted calling [petitioner] at 3:37 a.m., which was right around the time 28 Lopez was shot. As he explained the reason for the call, someone 1 had taken one of the cars he had previously stolen that night, and he called his brother to ask if someone in [petitioner]’s group had done 2 so. Benjamin also admitted [petitioner] called him a short time later, claiming [petitioner] told him “not to go out because there was a lot 3 of cops.” Cell phone records confirmed these calls were made, and placed [petitioner]’s cell phone in the area of the shooting at 3:37 4 a.m. Benjamin testified [petitioner] later admitted shooting a Norteño after leaving the party. As he recalled the admission, “he 5 told me he shot a buster up close.” The word “buster” is a derogatory term used by Sureños to disrespect Norteños. This testimony was 6 corroborated by a prior consistent statement Benjamin made the same day. In response to a text message from Peewee asking, “What 7 did [petitioner] say about yesterday,” Benjamin responded: “He told me he [shot] a buster up close.” — 8 — Thus, while Benjamin’s testimony was inconsistent with that 9 of Benavidez, at least as to his involvement in the shooting, it also served to corroborate her identification of [petitioner] as the shooter 10 by providing [petitioner]’s admission to “shoot[ing] a buster up close.” However, Benavidez’s testimony was also inconsistent with 11 that of Chaveste, who denied seeing a shooting while in Clancy’s car and further denied ever hanging out with both [petitioner] and 12 Benjamin at the same time. She did admit to being in a car with Clancy and [petitioner], and possibly other people, but testified this 13 was “probably before January,” although she denied remembering “anything about that day.” She also admitted telling police in a 14 March 2010 interview that the car ride happened “two months prior,” which would place the ride in January; and while she denied 15 witnessing a shooting during that interview as well, she told police [petitioner] was carrying a black semi-automatic handgun in the car. — 16 — Based on the foregoing, [petitioner] was convicted of 17 attempted murder and shooting at an occupied motor vehicle, with various gang and firearm enhancement allegations found to be true. — 18 — 19 ECF No. at 1-4 at 4-7. These state court factual findings are entitled to a presumption of 20 correctness in federal habeas review. See 28 U.S.C. § 2254 (e)(1). 21 With respect to the Lopez shooting, petitioner was sentenced to 19 years in prison plus an 22 additional 25 years to life based on the specific enhancements found true by the jury.3 See 23 Lodged Doc. No. 5 (Clerk’s Transcript) at 1240-1243 (Abstract of Judgment). 24 B. Direct Appeal Proceedings 25 On direct appeal, petitioner raised a Fifth Amendment challenge to the admission of his — 26 — 3 Petitioner was sentenced to an additional 5 years, 8 months in prison plus a consecutive 25-Life 27 term for the counts related to the second shooting incident. See Lodged Doc. No. 5 at 1240-1243. The total prison sentence for both shootings amounts to 50 years to life plus an additional 24 28 years and 8 months. Id. 1 statements to police. ECF No. 1-4 at 9-35. Petitioner argued that “he clearly and unequivocally 2 invoked his right to remain silent during his interrogation by telling the interrogating officer – 13 3 times in the span of 14 minutes – to take him home, and during this period of time further told the 4 officer to call his parents so they could pick him up.”4 ECF No. 1-4 at 2-3. According to 5 petitioner, continued questioning violated petitioner’s rights under Miranda v. Arizona, 384 U.S. 6 436 (1966), and should have been suppressed prior to trial.5 The California Court of Appeal 7 concluded that the admission of petitioner’s statements violated his Miranda rights, but ultimately 8 found that this error was harmless beyond a reasonable doubt. See ECF No. 1-4 at 3 (direct 9 appeal opinion). 10 In reaching this conclusion, the California Court of Appeal concluded that “a reasonable 11 officer in [the] Detective[‘]s position would have understood [petitioner’s] repeated demands to 12 be taken home, to have his parents called to pick him up, and to wait out the 48 hours [to be 13 formally charged], to be an unambiguous invocation of his right to end the interrogation.” ECF 14 No. 1-4 at 28. Part of its conclusion rested on the court’s review of the videotape demonstrating 15 petitioner’s demeanor during questioning. ECF No. 1-4 at 28, 30. Petitioner’s “demeanor 16 became that of a young man who had decided to end the interrogation.” Id. Based on the 17 detective’s failure to end the interrogation at that point, petitioner’s right to cease questioning 18 pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), was violated and his subsequent statements 19 were erroneously admitted at trial. Id. at 29. 20 Upon finding a Miranda violation, the California Court of Appeal conducted a harmless 21 error analysis pursuant to Chapman v. California, 386 U.S. 18 (1967), and concluded that the 22 error was harmless beyond a reasonable doubt. ECF No. 1-4 at 32-35. The evidence of — 23 — 4 Petitioner’s questioning by police was videotaped. Thus, as the California Court of Appeal 24 emphasized, “[t]here is no factual dispute over what questions were asked by [the] Detective…, what answers were given by [petitioner], whether petitioner demanded to be taken home and have — 25 — his parents called to pick him up, how many times he made these demands, or the context in which they were made.” ECF No. 1-4 at 22. — 26 — 27 5 Petitioner also raised a general voluntariness challenge to the admission of his statements to police which is not raised in his federal habeas challenge and therefore not relevant to the pending 28 proceedings. 1 petitioner’s guilt that remained after excluding his post-invocation statements was not only 2 sufficient to support the verdict, but also overwhelmingly established his guilt beyond a 3 reasonable doubt. ECF No. 1-4 at 32-33 (citing Christopher v. Florida, 824 F.2d 836, 846 (11th 4 Cir. 1987)). This conclusion was supported by Raquel Benavidez’s eyewitness identification of 5 petitioner as the shooter in court; her account of the number of bullets fired that was supported by 6 the medical evidence; the victim’s hospital admission that he was a Norteño gang member 7 wearing a red belt at the time of the shooting; petitioner’s brother’s “highly incriminating 8 evidence” that petitioner confessed to having “shot a buster up close” on the night of the offense; 9 cell phone records placing petitioner in the area of the shooting at the time of the crime; and, the 10 victim’s display of emotion when he viewed a photo lineup containing petitioner’s photograph. 11 ECF No. 1-4 at 33. The California Court of Appeal also relied upon petitioner’s admissions prior 12 to invoking his Miranda rights which included his admission that he was a Sureño gang member 13 and that his parents’ house had been shot at by rival Norteño gang members, giving him “a 14 powerful motive to retaliate against Norteños.” ECF No. 1-4 at 34. The court also emphasized 15 that petitioner’s post-invocation statements did not include a confession to either of the two 16 shootings with which he was charged. ECF No. 1-4 at 34-35. “He made inconsistent statements, 17 and placed himself at or near the scenes of the crimes yet steadfastly denied his involvement. 18 Without minimizing the damaging nature of the statements [petitioner] made after he invoked his 19 right of silence, they would not have carried the extreme probative weight of a confession.” ECF 20 No. 1-4 at 35. Based on all this evidence, the state court found the Miranda violation to be 21 harmless beyond a reasonable doubt. ECF No. 1-4 at 35. 22 C. State Habeas Proceedings and Newly Discovered Evidence 23 Following his direct appeal, petitioner filed a state habeas corpus petition in the California 24 Supreme Court raising the Miranda violation plus additional newly discovered evidence 25 impeaching the prosecution’s main eyewitness to the attempted murder conviction for the Lopez 26 shooting. See ECF No. 1 at 3. In a declaration signed under penalty of perjury on August 12, 27 2016, Kristen Clancy averred that she sold her 1997 red Mercury Tracer on October 13, 2009 to 28 Pick and Pull Auto Dismantlers. ECF No. 1-3 at 1. She further indicates that while Raquel 1 Benavidez was familiar with this car before it was sold, any testimony that they were in the 2 vehicle on January 24, 2010, the night of the Lopez shooting, “would be untrue.” ECF No. 1-3 at 3 1. In her declaration, Ms. Clancy acknowledges that at the time of petitioner’s trial she “faced 4 charges” related to the Lopez shooting and that she did not testify at his trial.6 Id. Also attached 5 to the declaration is a business record from Pick-N-Pull Auto Dismantlers, LLC indicating that a 6 1997 red Mercury Tracer owned by Kristen Clancy was received on October 13, 2009 and 7 subsequently sold. ECF No. 1-3 at 2. Respondent does not challenge the authenticity of these 8 documents. 9 In his California Supreme Court habeas application, petitioner argued that this new evidence 10 demonstrated the prejudicial nature of the Miranda violation. Lodged Doc. No. 22. Petitioner 11 alternatively challenged trial counsel’s effectiveness for failing to investigate and present this 12 information to the jury. See Lodged Doc. No. 22. The California Supreme Court issued a 13 summary denial of this habeas petition on November 30, 2016. See Lodged Document No. 23. 14 II. Legal Standards 15 A. Standards Governing Habeas Corpus Relief 16 To be entitled to federal habeas corpus relief, petitioner must affirmatively establish that 17 the state court decision resolving the claim on the merits “was contrary to, or involved an 18 unreasonable application of, clearly established Federal law, as determined by the Supreme Court 19 of the United States; or … resulted in a decision that was based on an unreasonable determination 20 of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254 (d). 21 The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are different, as the 22 Supreme Court has explained: 23 A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing 24 law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court 25 may grant relief under the “unreasonable application” clause if the state court correctly identifies the governing legal principle from our — 26 — 27 6 In his habeas application, petitioner indicates that Ms. Clancy was unavailable to testify at petitioner’s trial because she was awaiting sentencing for being an accessory after the fact to the 28 attempted murder charged in count one of the indictment. ECF No. 1-2 at 26. 1 decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's 2 application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 3 (2000)] that an unreasonable application is different from an incorrect one. — 4 — Bell v. Cone, 535 U.S. 685, 694 (2002). “A state court's determination that a claim lacks merit — 5 — precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of — 6 — the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough — 7 — v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas — 8 — corpus from a federal court, a state prisoner must show that the state court's ruling on the claim — 9 — being presented in federal court was so lacking in justification that there was an error well — 10 — understood and comprehended in existing law beyond any possibility for fairminded — 11 — disagreement.” Richter, 562 U.S. at 103 . — 12 — The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal — 13 — principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 14 U.S. 63 , 71-72 (2003). Clearly established federal law also includes “the legal principles and — 15 — standards flowing from precedent.” Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002) — 16 — (quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002)). Only Supreme Court precedent — 17 — may constitute “clearly established Federal law,” but circuit law has persuasive value regarding — 18 — what law is “clearly established” and what constitutes “unreasonable application” of that law. — 19 — Duchaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Robinson v. Ignacio, 360 F.3d 1044 , — 20 — 1057 (9th Cir. 2004). — 21 — Relief is also available under the AEDPA where the state court predicates its adjudication — 22 — of a claim on an unreasonable factual determination. 28 U.S.C. § 2254 (d)(2). The statute — 23 — explicitly limits this inquiry to the evidence that was before the state court. See also Cullen v. — 24 — Pinholster, 563 U.S. 170 (2011). Under § 2254(d)(2), factual findings of a state court are — 25 — presumed to be correct subject only to a review of the record which demonstrates that the factual — 26 — finding(s) “resulted in a decision that was based on an unreasonable determination of the facts in — 27 — light of the evidence presented in the state court proceeding.” It makes no sense to interpret — 28 — 1 “unreasonable” in § 2254(d)(2) in a manner different from that same word as it appears in 2 § 2254(d)(1) – i.e., the factual error must be so apparent that “fairminded jurists” examining the 3 same record could not abide by the state court factual determination. A petitioner must show 4 clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 5 U.S. 333 , 338 (2006). 6 In applying these standards, federal courts review the last reasoned state court decision on 7 each claim for relief. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). “Where there has been 8 one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that 9 judgment or rejecting the same claim rest upon the same ground.” Ylst, 501 U.S. at 803 ; see also 10 Gill v. Ayers, 342 F.3d 911 , 917 n. 5 (9th Cir. 2003) (explaining that federal courts “look 11 through” unexplained rulings of higher state courts to the last reasoned decision). When there is 12 no reasoned state court decision or what is known as a silent denial, federal courts must conduct 13 an independent review of the record to determine what rational could support the state court 14 judgment and whether such rational was an objectively reasonable application of federal law. See 15 Harrington v. Richter, 562 U.S. 86, 102 (2011); Cullen v. Pinholster, 563 U.S. 170 (2011); 16 Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). 17 To prevail in federal habeas proceedings, a petitioner must establish the applicability of 18 one of the § 2254(d) exceptions and also must also affirmatively establish the constitutional 19 invalidity of his custody under pre-AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir. 20 2008) (en banc). There is no single prescribed order in which these two inquiries must be 21 conducted. Id. at 736-37 . The AEDPA does not require a federal habeas court to adopt any one 22 methodology. Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 23 B. Standards Governing Ineffective Assistance of Counsel Claims 24 The two prong Strickland standard governing ineffective assistance of counsel claims is 25 well known and oft-cited. Strickland v. Washington, 466 U.S. 668 (1984). It requires petitioner 26 to establish (1) that counsel’s representation fell below an objective standard of reasonableness; 27 and, (2) that counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 692 , 28 694. “The question is whether an attorney's representation amounted to deficient performance 1 under ‘prevailing professional norms,’ not whether it deviated from best practices or most 2 common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Strickland, 466 U.S. at 3 690). Prejudice is found where “there is a reasonable probability that, but for counsel's 4 unprofessional errors, the result of the proceeding would have been different. A reasonable 5 probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 6 U.S. at 693. “That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” 7 Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Richter, 562 U.S. 86, 111-12 (2011)). 8 In reviewing a Strickland claim under the AEDPA, the federal court is “doubly 9 deferential” in determining whether counsel’s challenged conduct was deficient. “When § 10 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is 11 whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” 12 Richter, 562 U.S. 86, 105 (2011). 13 III. Analysis 14 Upon initial review of petitioner’s habeas application, the court understood petitioner to 15 be raising two separate claims for relief. In his first claim for relief petitioner asserts a Miranda 16 challenge to the admission of petitioner’s statements along with newly discovered evidence 17 undercutting the state court of appeal’s harmless error analysis. The court labeled this as a 18 “Miranda plus” claim. See ECF No. 13 at 2-3 (supplemental briefing order noting that the 19 California Supreme Court reviewed the Miranda claim plus the additional impeachment evidence 20 of the prosecution’s main witness on state habeas review). Secondly, petitioner raises a separate 21 ineffective assistance of counsel claim based on the failure to obtain this newly discovered 22 evidence prior to trial. See ECF No. 13 at 1-2, n. 1. In his supplemental brief, however, 23 petitioner clarified the specific claims he is raising on federal habeas. See ECF No. 16 at 2. 24 “Claim one calls for review of the unsupplemented state court record on the direct appeal, to 25 determine whether the state court of appeal unreasonably found non-prejudicial error from the 26 Miranda violation. Claim two calls for review of the same question, but supplemented by the 27 Kristen Clancy declaration which was offered to the California Supreme Court through habeas 28 review.” ECF No. 16 at 2. In his supplemental briefs, petitioner never identifies the clearly 1 established federal law that permits, much less requires, a federal habeas court to reweigh a state 2 court’s harmlessness determination based on new evidence that was never presented to the jury. 3 Perhaps recognizing this fundamental defect, petitioner pleads count two “in the alternative” by 4 alleging that “petitioner was denied the right to counsel guaranteed by the Sixth Amendment to 5 the United States Constitution, for failure of appointed trial counsel to present this additional 6 evidence to impeach the state’s primary witness.” ECF No. 16 at 3. The court will address these 7 two claims in the order presented in petitioner’s federal habeas application. 8 A. Miranda Claim 9 Neither petitioner nor respondent challenge the state court’s conclusion that petitioner’s 10 Miranda rights were violated based on the police officer’s continued questioning of him after he 11 validly invoked his right to remain silent. Accordingly, the state court’s finding of error is not 12 disputed in these federal habeas proceedings. See Ruff v. Kincheloe, 843 F.2d 1240 , 1241-42 13 (9th Cir. 1988) (proceeding directly to the harmless error analysis where the respondent conceded 14 Sandstrom error in a jury instruction); Nguyen v. McGrath, 323 F.Supp.2d 1007, 1016 (N.D. Cal. 15 2004) (proceeding directly to the harmless error analysis where the respondent conceded a 16 Miranda violation). Since the constitutional error is conceded, the court proceeds directly to the 17 question of the prejudice resulting from the error. Petitioner suffered prejudice if the admission 18 of his erroneously admitted statements to the police had a substantial and injurious effect on the 19 jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619 (1993). The Brecht harmless error standard 20 has been further defined as a “grave doubt” or an error that “substantially influenced the jury’s 21 verdict.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). “[Where the record is so evenly 22 balanced that a conscientious judge is in grave doubt as to the harmlessness of an error,” the 23 constitutional violation has affected the verdict and habeas relief is warranted. O’Neal, 513 U.S. 24 at 437 . 25 1. Last Reasoned State Court Opinion 26 With respect to this claim, the parties agree that the last reasoned state court decision was 27 the California Court of Appeal’s decision on direct appeal. In its harmless error analysis, the 28 //// 1 California Court of Appeal applied the Chapman7 standard of review and concluded that the 2 evidence that remained after petitioner’s post-invocation of Miranda was not only sufficient to 3 support the verdict, but also overwhelmingly established petitioner’s guilt beyond a reasonable 4 doubt. ECF No. 1-4 at 32-33. The court reasoned that: 5 With respect to the first shooting, [Raquel] Benavidez, who was in the car when [petitioner] got out, walked over to Lopez’s car, and 6 shot the intoxicated man twice at close range, identified [petitioner] as the shooter in court. Her testimony that [petitioner] lifted up the 7 man’s shirt and said, ‘He’s a Norteno,’ before firing two rounds into the man was corroborated both by the medical evidence Lopez was 8 shot twice, once in the neck and once in the shoulder, and by Lopez’s statement at the hospital that he was a Norteno and he was wearing a 9 red belt at the time he was shot. While her testimony with respect to who else was in the car, specifically [petitioner]’s brother Benjamin 10 and Chaveste, was disputed by testimony from these witnesses and by evidence Benjamin’s ankle monitor did not register his presence 11 at the crime scene, Benjamin provided highly incriminating evidence against his brother, i.e., [petitioner]’s confession to having ‘shot a 12 buster up close’ the night Lopez was shot. Thus, while Benjamin denied being in the car at the time of the shooting, his testimony 13 corroborated Benavidez’s identification of [petitioner] as the shooter by providing [petitioner]’s own admission to ‘sh[ooting] a buster’ 14 that night. Cell phone records also confirmed [petitioner]’s presence in the area of the shooting at the time Lopez was shot. We also note 15 that while Lopez did not identify [petitioner] as the shooter, he became noticeably emotional when shown a photographic lineup 16 containing [petitioner]’s picture. 17 ECF No. 1-4 at 33 (direct appeal opinion). In summarizing, the California Court of Appeal 18 characterized all of this evidence as “overwhelming” and concluded that the admission of 19 petitioner’s post-invocation statements, while violative of Miranda, was harmless beyond a 20 reasonable doubt. ECF No. 1-4 at 34-35. 21 2. AEDPA Analysis 22 Petitioner’s central argument in this first claim for relief amounts to an attack on the 23 credibility of Raquel Benavidez who testified that she drove the car to and from the scene of the 24 shooting. Petitioner characterizes Raquel Benavidez’s testimony as “the linchpin of the state’s 25 case” and then proceeds to highlight every inconsistency in her testimony in order to undercut the 26 state court’s harmless error determination. ECF No. 9 at 5. However, this court’s review of the — 27 — 28 7 Chapman v. California, 386 U.S. 18 (1967). 1 trial testimony suggests that petitioner’s brother’s testimony at trial was the most incriminating 2 and powerful evidence against petitioner. Gerardo and Benjamin Villasenor were not only family 3 members because they were brothers by birth, but they also belonged to the same gang. Those 4 two affinities to petitioner made Benjamin’s testimony recounting petitioner’s confession that he 5 “shot a buster up close” all the more powerful. Indeed, the California Court of Appeal described 6 this testimony by petitioner’s brother as “highly incriminating evidence.” ECF No. 1-4 at 33. 7 Notably absent from petitioner’s argument is any mention of his brother’s testimony. There is 8 simply no way to explain away petitioner’s admission to his brother that he “shot a buster up 9 close” on the night of the shooting.8 Moreover, before validly invoking his right to remain silent, 10 petitioner had already admitted his gang affiliation and motive to retaliate against Norteño gang 11 members. This court has examined the role that petitioner’s tainted confession played in the 12 context of the entire trial and concludes that it did not have a substantial and injurious effect on 13 the verdict in light of the incriminating testimony of petitioner’s brother, the cell phone evidence 14 placing petitioner in the vicinity of the shooting, and the physical evidence corroborating 15 Benavidez’s testimony. See Brecht, 507 U.S. 619 (1993). Having failed to demonstrate prejudice 16 resulting from the Miranda violation, petitioner is not entitled to habeas relief and the court 17 recommends denying this claim for relief. 18 B. Miranda Plus New Evidence Claim 19 Before the court undertakes its analysis of this claim for relief, it is necessary to determine 20 whether the Kristen Clancy declaration at issue does, in fact, constitute “newly discovered 21 evidence” that was first presented to the California Supreme Court on state habeas review, as 22 petitioner indicates. A review of the trial court record demonstrates that the information in Ms. 23 Clancy’s declaration as well as the print-out from Pick-N-Pull Auto Dismantlers was admitted by 24 stipulation at petitioner’s preliminary hearing. See Lodged Doc. No. 1 at 294 (preliminary 25 8 Even assuming that petitioner were to argue that his brother’s trial testimony was not credible, which he does not, the credibility of a trial witness is a factual determination that is entitled to a — 26 — presumption of correctness on federal habeas review unless it is rebutted by clear and convincing 27 evidence. See 28 U.S.C. § 2254 (e)(1); Schlup v. Delo, 513 U.S. 298, 330 (1995) (recognizing that a credibility determination made by a jury “is generally beyond the scope [of federal habeas] 28 review”). 1 hearing transcript indicating that “the parties hereby stipulate that Brenda Smith, custodian of 2 records for Pick and Pull Auto Dismantlers would testify that… Kristen Clancy sold her 1997 red 3 Mercury Tracer… on October 10th, 2009 and that Pick and Pull Auto Dismantlers took custody 4 of the vehicle on October 12th, 2009.”). Thus to call this information “newly discovered 5 evidence” is a gross mischaracterization of the trial court record. Accordingly, this court finds 6 that the Clancy declaration does not constitute newly discovered evidence. 7 1. Last Reasoned State Court Opinion 8 Petitioner’s Miranda claim as supplemented by the Clancy declaration and the alternative 9 ineffective assistance of counsel claims were presented to the California Supreme Court via a 10 state habeas petition. In its decision, the California Supreme Court did not provide a reasoned 11 explanation for its denial. Nonetheless, there is a presumption, which petitioner does not rebut, 12 that these claims were adjudicated on the merits by the California Supreme Court. See 13 Harrington v. Richter, 562 U.S. 86 (2011) (finding that “[w]hen a federal claim has been 14 presented to a state court and the state court has denied relief, it may be presumed that the state 15 court adjudicated the claim on the merits in the absence of any indication or state-law procedural 16 principles to the contrary.”); Johnson v. Williams, 133 S. Ct. 1088 , (2013). In such 17 circumstances, this court independently reviews the record to determine whether there was any 18 “reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98 . This court “must 19 determine what arguments or theories... could have supported, the state court’s decision; and then 20 it must ask whether it is possible fairminded jurists could disagree that those arguments or 21 theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” 562 U.S. at 22 102. It is the petitioner’s burden “to demonstrate that ‘there was no reasonable basis for the state 23 court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 24 U.S. at 98). The issue before the court with respect to claim two is whether the state habeas 25 court’s determination that the Clancy declaration did not alter the harmlessness of the error is 26 contrary to or an unreasonable application of clearly established federal law. 27 2. AEDPA Analysis 28 Petitioner argues in his second claim for relief that the newly discovered evidence in the 1 form of the Clancy Declaration “increases the likelihood of prejudice from the improper 2 admission of petitioner’s incriminating statement to investigation officers, and increases the 3 likelihood that the constitutional error had a substantial and injurious effect on the outcome.” 4 ECF No. 16 at 3. There are numerous defects with this argument. First and foremost, even 5 petitioner does not suggest that this additional impeachment establishes sufficient prejudice from 6 the Miranda violation to warrant relief. At best, petitioner merely suggests that it “increases the 7 likelihood….” ECF No. 16 at 3. 8 Secondly, petitioner’s briefs do not contain any clearly established federal law 9 demonstrating the unreasonableness of the California Supreme Court’s rejection of this claim. As 10 respondent correctly points out, “[t]he Supreme Court certainly has never found that evidence not 11 presented at trial can show that [a] Miranda error is prejudicial.” ECF No. 17 at 3. There is no 12 clearly established federal law that required the California Supreme Court to re-weigh the 13 evidence of harmlessness on state habeas review in light of the Clancy declaration that was never 14 admitted at trial. Put simply, there is no legal support for petitioner’s argument in claim two.9 15 Lastly, in the analogous case of United States ex. Rel. Hinton v. Snyder, 203 F. Supp. 2d 16 934 (N.D. Ill. May 22, 2002) (“Hinton”), the habeas petitioner introduced new evidence of 17 systematic police abuse during interrogations to challenge the admission of his confession at trial. 18 After reviewing the new evidence which included police beatings and torture during 19 interrogations at one Chicago police station where petitioner was held for two days before 20 confessing, the state habeas court denied relief finding that the “tendered documents did not 21 explain, with any degree of specificity, how the petitioner’s constitutional rights were violated.” 22 Hinton, 203 F. Supp. 2d at 941 . The federal habeas court determined that “Mr. Hinton’s 23 confession and his trial testimony attempting to explain it were damning, but the remaining 24 evidence against him, particularly his admission… that he had shot the victims, was so strong as 25 to leave no doubt that the verdict was not substantially affected by the admission of his — 26 — 9 For this same reason, the court will deny petitioner’s request for an evidentiary hearing in order 27 to present the testimony of Kristen Clancy. See ECF No. 10. Absent a finding of § 2254(d)(1) error, there is no basis for an evidentiary hearing. See Cullen v. Pinholster, 563 U.S. 170 (2011); 28 Runningeagle v. Ryan, 686 F.3d 758, 773 (9th Cir. 2012). 1 confession.” Hinton, 203 F.Supp.2d at 945 (citing O’Neal v. McAninch, 513 U.S. 432 , 437 2 (1995)). Similarly, in this case, the new evidence of the Clancy declaration does not dispel the 3 most damning evidence against petitioner, i.e. his confession to his brother that he “shot a buster.” 4 In light of this evidence and the lack of any clearly established federal law warranting habeas 5 relief, the court recommends denying petitioner’s second claim for relief based on an asserted 6 Miranda violation in conjunction with his new evidence. See 28 U.S.C. § 2254 (d)(1). 7 C. Ineffective Assistance of Counsel Claim 8 Petitioner alternatively suggests in his second claim for relief that trial counsel was 9 ineffective for failing to investigate and interview an available witness, i.e. Kristen Clancy. ECF 10 No. 1-2 at 26. In his supplemental brief, petitioner also alleges that trial counsel failed “to present 11 this additional evidence to impeach the state’s primary witness.” ECF No. 16 at 3. Therefore, the 12 court will address this claim as both a failure to investigate/interview Kristen Clancy as well as a 13 failure to present this impeachment evidence at trial. 14 Turning first to trial counsel’s failure to investigate the information in the Clancy 15 Declaration, this claim is belied by the record and should be denied on that basis alone. Trial 16 counsel’s performance was not deficient for failing to investigate and discover this evidence 17 because it was discovered prior to the preliminary hearing. Therefore, there is no factual basis to 18 support an ineffective assistance of counsel claim for failing to investigate the status of the red 19 Mercury Tracer prior to trial. The undersigned recommends denying the ineffective assistance of 20 counsel claim because the California Supreme Court could have reasonably determined that 21 counsel’s performance was not deficient because this evidence was discovered prior to the 22 preliminary hearing. Accordingly, this impeachment evidence was adequately investigated and 23 the state court’s rejection of this claim is neither contrary to nor an unreasonable application of 24 Strickland. 25 While the record establishes that petitioner’s trial counsel was aware of the status of Ms. 26 Clancy’s red Mercury Tracer prior to trial, he did not seek to introduce this evidence at trial to 27 impeach Ms. Clancy’s trial testimony. There is no evidence in the record that Ms. Clancy was 28 //// 1 available to testify at petitioner’s trial due to her status as a co-defendant.10 It is true, however, 2 that trial counsel could have called the records custodian for Pick and Pull Auto Dismantlers to 3 testify concerning the business record of the transaction itself. Assuming arguendo that trial 4 counsel’s performance was deficient in this respect, the California Supreme Court could have 5 reasonably concluded that there was not a reasonable probability of a different outcome had the 6 impeachment evidence been presented at trial. See Strickland, 466 U.S. at 694 (defining 7 prejudice). A reasonable probability is “a probability sufficient to undermine confidence in the 8 outcome.” Id.; see also Williams, 529 U.S. at 391-92 ; Laboa v. Calderon, 224 F.3d 972, 981 (9th 9 Cir. 2000). In this case, the court’s confidence in the outcome is not undermined by a single 10 piece of impeachment evidence of a single prosecution witness in light of the testimony of 11 petitioner’s brother and the additional evidence corroborating his testimony. The failure to 12 introduce this one piece of impeachment evidence is not sufficient, in and of itself, to meet the 13 high threshold of demonstrating prejudice under Strickland. See Allen v. Woodford, 395 F.3d 14 979, 999 (9th Cir. 2005) (finding that counsel’s impeachment was adequate and that any failure to 15 “elicit additional evidence was inconsequential, especially in light of the evidence of guilt.”). 16 Petitioner’s counsel acknowledges that this could have been a basis for the California Supreme 17 Court to deny petitioner habeas relief. See ECF No. 16 at 9 (“[a]ssuming that the California 18 Supreme Court saw little additional value in the Clancy declaration….”). Fairminded jurists 19 would not disagree with that conclusion.11 The particular car that was used to drive to and from 20 the shooting was not a critical issue at trial. Impeaching Benavidez with this additional 21 information would not have created a vastly different impression of her veracity as a witness to 22 have changed the outcome at trial. See Richter, 562 U.S. at 112 (emphasizing that “[t]he — 23 — 24 10 The court notes that even in her Declaration, Ms. Clancy did not indicate that she was willing to speak with petitioner’s trial counsel much less to testify at his trial concerning the sale of her — 25 — Mercury Tracer. See ECF No. 1-3 (Declaration of Kristen Clancy). Petitioner concedes that he only has a viable ineffective assistance of counsel claim if Ms. Clancy was an available witness at — 26 — trial. See ECF No. 1 at 26. — 27 — 11 Indeed, even petitioner’s counsel cannot explain why that conclusion was unreasonable. See 28 ECF No. 16 at 9. MADE LY VOMIT ENINTT NINES RAVI orer 40 VI AU 1 | likelihood of a different result must be substantial, not just conceivable.”’) (citing Strickland, 466 2 | U.S. at 693). Even with all the impeachment evidence presented at trial that petitioner focuses on 3 | in his first claim for relief, the jury still chose to believe Benavidez’s testimony concerning the 4 | identity of the shooter. For all these reasons, the court finds that petitioner has not met his burden 5 | of demonstrating the unreasonableness of the state court’s rejection of his ineffective assistance of 6 | counsel claim under the prejudice prong of Strickland. 7 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of 8 | habeas corpus (ECF No. 1) be denied. 9 These findings and recommendations are submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(). Within thirty days after 11 | being served with these findings and recommendations, any party may file written objections with 12 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 13 | Magistrate Judge’s Findings and Recommendations.” In his objections petitioner may address 14 | whether a certificate of appealability should issue in the event he files an appeal of the judgment 15 | inthis case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must 16 | issue or deny a certificate of appealability when it enters a final order adverse to the applicant). A 17 | certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a 18 | substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(3). Any 19 || response to the objections shall be served and filed within fourteen days after service of the 20 | objections. The parties are advised that failure to file objections within the specified time may 21 | waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 22 | 1991). 23 | Dated: July 30, 2020 Ci dp. f | fe 24 CAROLYN K. DELANEY : 25 UNITED STATES MAGISTRATE JUDGE — 26 — — 27 — 28 12/vila3044.F&R.docx — 18 —