Opinion
Case No. SACV 18-1938-PSG (KK)
08-13-2019
CHARLES RODNEY ORNE, Petitioner, v. RALPH DIAZ, Warden, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TABLE OF CONTENTS I. SUMMARY OF RECOMMENDATION .............................................................. 1 II. PROCEDURAL HISTORY ...................................................................................... 2
A. STATE COURT PROCEEDINGS ............................................................. 2
B. FEDERAL HABEAS PETITION ............................................................... 4 III. SUMMARY OF FACTS ............................................................................................ 5 IV. PETITIONER'S CLAIMS FOR RELIEF .............................................................. 7 V. STANDARD OF REVIEW ...................................................................................... 8 VI. DISCUSSION ............................................................................................................ 11
A. PETITIONER HAS FAILED TO SHOW INSTRUCTIONAL ERROR ...................................................................... 11
1. Background .......................................................................................... 11
2. State Court Opinion ........................................................................... 15
3. Legal Standard ..................................................................................... 16
4. Analysis ................................................................................................ 16
B. PETITIONER HAS FAILED TO SHOW THE PROSECUTOR ENGAGED IN MISCONDUCT ................................ 17
1. Perjured Testimony ............................................................................ 17
a. Background .............................................................................. 17
b. State Court Opinion ............................................................... 18
c. Legal Standard ......................................................................... 18
d. Analysis ..................................................................................... 18
2. Withholding and Destruction of Evidence ..................................... 22
a. Background .............................................................................. 22
b. Brady ......................................................................................... 23
c. Trombetta/Youngblood ........................................................ 26
C. PETITIONER HAS FAILED TO SHOW HIS TRIAL COUNSEL WAS INEFFECTIVE ............................................................. 27
1. Background .......................................................................................... 27
2. Legal Standard ..................................................................................... 28
3. Analysis ................................................................................................ 28
a. Sections 995 and 1538.5 of the California Penal Code ............................................................................... 28
b. Failing to Interview and Call Witnesses ............................... 30
c. Failing to Preserve Video ....................................................... 31
D. PETITIONER HAS FAILED TO SHOW HIS APPELLATE COUNSEL WAS INEFFECTIVE ................................... 31
1. Background .......................................................................................... 31
2. State Court Opinion ........................................................................... 32
3. Legal Standard ..................................................................................... 32
4. Analysis ................................................................................................ 32
a. Fourth Amendment ................................................................ 32
b. Perjured Testimony ................................................................. 33
c. Sufficiency of the Evidence ................................................... 33
E. EVIDENTIARY HEARING ...................................................................... 34 VII. RECOMMENDATION .......................................................................................... 34 FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
SUMMARY OF RECOMMENDATION
Petitioner Charles Rodney Orne ("Tetitioner") has filed a pro se Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, challenging his 2016 state convictions for aggravated assault on a peace officer, resisting an officer, and hit and run. ECF Docket No. ("Dkt.") 1. Petitioner asserts claims of instructional error, prosecutorial misconduct, and ineffective assistance of trial and appellate counsel. Because Petitioner's claims fail on their merits, the Court recommends denying the Petition.
II.
PROCEDURAL HISTORY
A. STATE COURT PROCEEDINGS
On February 4, 2016, following a jury trial in the Orange County Superior Court, Petitioner was convicted of one count of aggravated assault on a peace officer in violation of section 245(c) of the California Penal Code, one count of resisting an officer in violation of section 69 of the California Penal Code, and two counts of hit and run in violation of section 20002 of the California Vehicle Code. 2 CT at 407-10. On April 29, 2016, the trial court sentenced Petitioner to a state prison term of thirteen years. 3 CT at 591-92.
The Court's citations to Lodged Documents refer to documents lodged in support of Respondent's February 19, 2019 Answer. See Dkt. 14. Respondent identifies the documents in Dkt. 14, as follows:
1. Clerk's Transcript in Orange County Superior Court case number 14HF1561 ("CT")
1A. Supplemental Clerk's Transcript in Orange County Superior Court case number 14HF1561 ("Supp. CT")
2. Reporter's Transcript in Orange County Superior Court case number 14HF1561 ("RT")
3. Appellant's Opening Brief in California Court of Appeal ("Lodg. 3")
4. Respondent's Brief in California Court of Appeal ("Lodg. 4")
5. Appellant's Reply Brief in California Court of Appeal ("Lodg. 5")
6. California Court of Appeal opinion on direct appeal ("Lodg. 6")
7. Petition for Writ of Habeas Corpus in California Court of Appeal ("Lodg. 7")
8. California Court of Appeal order denying habeas petition ("Lodg. 8")
9. Petition for Review in the California Supreme Court of California Court of Appeal's denial of habeas relief ("Lodg. 9")
10. California Supreme Court order denying review ("Lodg. 10")
11. Petition for Writ of Habeas Corpus in Orange County Superior Court ("Lodg. 11")
12. Orange County Superior Court order denying habeas petition ("Lodg. 12")
13. Second Petition for Writ of Habeas Corpus in California Court of Appeal ("Lodg. 13")
14. California Court of Appeal order denying second habeas petition ("Lodg. 14")
15. Second Petition for Writ of Habeas Corpus in Orange County Superior Court ("Lodg. 15")
16. Orange County Superior Court order denying second habeas petition ("Lodg. 16")
17. Third Petition for Writ of Habeas Corpus in California Court of Appeal ("Lodg. 17")
18. California Court of Appeal order denying third habeas petition ("Lodg. 18")
19. Petition for Writ of Habeas Corpus in California Supreme Court ("Lodg. 19")
20. Exhibits to Petition for Writ of Habeas Corpus in California Supreme Court ("Lodg. 20")
21. Reporter's Transcript submitted with Petition for Writ of Habeas Corpus in California Supreme Court ("Lodg. 21")
22. Additional Reporter's Transcript submitted with Petition for Writ of Habeas Corpus in California Supreme Court ("Lodg. 22")
23. Motion to Augment and Consolidate in California Supreme Court ("Lodg. 23")
24. California Supreme Court order denying habeas petition ("Lodg. 24")
Following sentencing, Petitioner filed a habeas corpus petition in the California Court of Appeal. Lodg. 7. On June 30, 2016, the California Court of Appeal denied the petition without prejudice so Petitioner could first seek habeas relief in the Orange County Superior Court. Lodg. 8.
Petitioner then filed a petition for review of the California Court of Appeal's denial of habeas relief in the California Supreme Court. Lodg. 9. On August 17, 2016, the California Supreme Court denied review. Lodg. 10.
Petitioner then filed a habeas corpus petition in the Orange County Superior Court. Lodg. 11. On October 24, 2016, the Orange County Superior Court issued a reasoned decision denying habeas relief. Lodg. 12.
Next, Petitioner filed a second habeas corpus petition in the California Court of Appeal. Lodg. 13. On January 12, 2017, the California Court of Appeal denied the petition. Lodg. 14.
Petitioner then filed a second habeas corpus petition in the Orange County Superior Court. Lodg. 15. On September 25, 2017, the Orange County Superior Court issued a reasoned decision denying habeas relief. Lodg. 16.
Petitioner subsequently filed a third habeas corpus petition in the California Court of Appeal. Lodg. 17. On November 30, 2017, the California Court of Appeal denied the petition. Lodg. 18.
Meanwhile, Petitioner filed a direct appeal of his convictions to the California Court of Appeal. Lodgs. 3-5. On January 9, 2018, the California Court of Appeal issued a reasoned decision affirming the judgment. Lodg. 6.
Finally, Petitioner filed a habeas corpus petition in the California Supreme Court. Lodgs. 19-23. On July 11, 2018, the California Supreme Court denied habeas relief. Lodg. 24.
B. FEDERAL HABEAS PETITION
On October 22, 2018, Petitioner constructively filed the Petition in this Court challenging his 2016 convictions. See Dkt. 1 at 12. On February 19, 2019, Respondent filed an Answer. Dkt. 13. On April 15, 2019, Petitioner constructively filed a Traverse. Dkt. 18.
Under the "mailbox rule," when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively "filed" on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted).
On June 7, 2019, the Court issued a Report and Recommendation denying the Petition. Dkt. 21. On July 25, 2019, Petitioner constructively filed Objections to the original Report and Recommendation. Dkt. 25. Thus, the Court herein issues a Final Report and Recommendation addressing Petitioner's Objections in footnotes 3 and 7. /// /// /// ///
III.
SUMMARY OF FACTS
For a summary of the facts, this Court relies on the California Court of Appeal's January 9, 2018 opinion, as those facts pertain to Petitioner's claims:
Because this factual summary is drawn from the California Court of Appeal's opinion, "it is afforded a presumption of correctness that may be rebutted only by clear and convincing evidence." Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2008) (citations omitted). To the extent Petitioner alleges the summary is inaccurate, the Court has not deferred to the state court's factual summary but has independently reviewed the trial record and finds the summary accurate except for where noted.
On May 21, 2014, around 7:00 p.m., Irvine Police Officer Nick Kim drove his marked police vehicle into the parking and fueling area of a gas station on Macarthur Boulevard near the airport. Kim noticed a man smoking a cigarette and standing alone across from a black BMW that appeared "used," "weathered," and "dusted over," yet had paper license plates that Kim associated with the sale of new vehicles. Kim viewed the station as a "high call" location, at least for the Irvine area, because he had participated in 40 to 50 arrests at the station in the last five years, including several involving stolen vehicles.
The paper plates caught Kim's attention because, in his training and experience, "most used vehicles will have a set of [permanent] plates assigned to it," but this "was clearly a used vehicle," and "a lot of times some suspects will put paper plates on a vehicle to conceal the [actual] license plate of that vehicle."
Pulling his vehicle up next to the man who was smoking, Kim asked "what's going on," to which the man responded that he was waiting for a ride to go to his mother's home. Kim asked for and learned the man's name was Douglas Fluor, and when Kim asked if he was on probation or parole, Fluor initially denied either applied, and
then admitted he was on probation. Fluor expressly acknowledged he was "subject to search and seizure" conditions as part of his probation.
When Kim asked Fluor how he had arrived at the gas station, Fluor pointed to the black BMW. Kim continued to question Fluor and discovered he had been a passenger in the vehicle and that, while unsure about who the owner was, Fluor indicated "his buddy" the driver was inside the convenience store. Suspecting the BMW may have been stolen, Kim decided to search the vehicle based on Fluor's probation status. As Kim explained at trial, "Based on Mr. Fluor being on probation and subject to search and seizure and him coming in that vehicle and being a passenger of that vehicle, I made a determination that I was going to search the passenger portion of that vehicle."
As Kim gathered information from Fluor, he noticed another man, whom Kim later identified as Orne, approach the black BMW after leaving the convenience store. Following behind Orne, Kim asked him if he were on probation or parole, whether he had identification, and if the BMW belonged to him. Orne denied being on probation or parole, explained it was "his friend Stephanie's car" and, as he walked around the back of the BMW to the passenger side, stated he "was going to get" his identification. Orne opened the BMW's door and glove box to search for his identification, but after he did not locate it immediately, Kim became "concern[ed]," presumably for his safety because, as he testified at trial, "I wasn't sure what he was reaching for." Kim then "asked him if he could stop searching through the glove box and come towards me." As Kim also phrased it, "I asked him if he could come back to my area to talk to me." Orne closed the passenger door, Kim turned and, with Orne "five, 10 feet" behind him, Kim "started leading the way and walking back towards Mr. Fluor."
But when Kim reached a point about 15 feet behind the BMW, he realized Orne had run[] back to the BMW's driver's side and entered the vehicle, locked the doors, and started the engine. Kim approached the driver's side, yelled at Orne to open the door,[] and tried to open it himself, but Orne began driving in reverse, causing Kim to jump back to avoid being struck. Kim drew his firearm in his right hand, hit the BMW's window with his left hand, again attempted to open the locked door, and, as the vehicle drove away, Kim struck and broke the back quarter-panel window on the driver's side with his right hand in a vain attempt to stop the vehicle. In fleeing, Orne drove the car toward Kim, causing him to jump back again, and Orne struck another vehicle as he exited the station.Lodg. 6 at 2-4.
Kim "got on the radio" to alert other officers to stop the vehicle. When Kim questioned Fluor whether the BMW had been stolen, Fluor replied that "it could be." Kim later learned the vehicle was not stolen, but in fact belonged to Orne's girlfriend Stephanie.
The record is unclear as to whether Petitioner ran back to his car or walked quickly. See 1 RT at 134, 172; 1 CT at 84, 104-05.
The transcript of Officer Kim's dashcam video suggests he did not tell Petitioner to open his door. 3 CT at 599, 607, 622.
IV.
PETITIONER'S CLAIMS FOR RELIEF
Petitioner presents the following claims in the Petition: 1. Claim One: The trial court committed instructional error and directed verdicts against Petitioner; 2. Claim Two: The prosecution knowingly presented Officer Kim's perjured testimony; 3. Claim Three: Petitioner's trial counsel was ineffective for failing to file motions to suppress and dismiss based upon Officer Kim's perjured testimony and Petitioner's unlawful detention; 4. Claim Four: Petitioner's trial counsel was ineffective for failing to interview and call witnesses, and failing to secure GPS evidence from the prosecution; 5. Claim Five: Petitioner's trial counsel was ineffective for failing to preserve surveillance video; 6. Claim Six: The prosecution withheld evidence, and lost or destroyed evidence; and 7. Claim Seven: Petitioner's appellate counsel was ineffective for failing to present claims based on the Fourth Amendment, perjured testimony, and insufficient evidence. See Dkt. 1 at 32-45, 78-114; Dkt. 1-1 at 1-26; Dkt. 18.
Respondent contends these claims fail on the merits. Dkt. 13-1 at 5-18.
Petitioner claims to have shown cause and prejudice sufficient to warrant relief from procedural default. Dkt. 1 at 45; Dkt. 18 at 1-2, 10, 16, 17. However, while not waiving any procedural bar defense, Respondent requests the Court address Petitioner's claims on the merits rather than litigating potential procedural default issues. Dkt. 13-1 at 5 n.1. Accordingly, the Court recommends denying the Petition on the merits without addressing procedural default.
V.
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant habeas relief on a claim adjudicated on its merits in state court unless the adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
"'[C]learly established Federal law' for purposes of § 2254(d)(1) includes only 'the holdings, as opposed to the dicta, of th[e] [United States Supreme] Court's decisions'" in existence at the time of the state court adjudication. White v. Woodall, 572 U.S. 415, 419, 426, 134 S. Ct. 1697, 188 L. Ed. 2d 698 (2014). However, "circuit court precedent may be 'persuasive' in demonstrating what law is 'clearly established' and whether a state court applied that law unreasonably." Maxwell v. Roe, 628 F.3d 486, 494 (9th Cir. 2010).
Overall, AEDPA presents "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, 571 U.S. 12, 19, 134 S. Ct. 10, 187 L. Ed. 2d 348 (2013). The federal statute presents "a difficult to meet . . . and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011) (internal citation and quotation marks omitted). On habeas review, AEDPA places the burden on petitioners to show the state court's decision "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). Put another way, a state court determination that a claim lacks merit "precludes federal habeas relief so long as fairminded jurists could disagree" on the correctness of that ruling. Id. at 101. Federal habeas corpus review therefore serves as "a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. at 102-03 (internal citation and quotation marks omitted).
Where the last state court disposition of a claim is a summary denial, this Court must review the last reasoned state court decision addressing the merits of the claim under AEDPA's deferential standard of review. Maxwell, 628 F.3d at 495; see also Berghuis v. Thompkins, 560 U.S. 370, 380, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010); Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991). The California Court of Appeal's January 9, 2018 opinion on direct review (see lodg. 6) stands as the last reasoned decision with respect to Claim One. The Orange County Superior Court's September 25, 2017 opinion on habeas review (see lodg. 16) stands as the last reasoned decision with respect to Claims Two, Three, and Seven. The Orange County Superior Court's October 24, 2016 opinion on habeas review (see lodg. 12) stands as the last reasoned decision with respect to Claims Four and Six. Hence, Petitioner's Claims One, Two, Three, Four, Six, and Seven will be reviewed under AEDPA's deferential standard of review for claims "adjudicated on the merits." 28 U.S.C. § 2254(d); Richter, 562 U.S. at 99.
Where, as here with respect to Claim Five, the state courts supply no reasoned decision on the claim presented for review, this Court must perform an "'independent review of the record' to ascertain whether the state court decision was objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (citing Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000)). /// /// /// /// ///
In his Objections to the original Report and Recommendation, Petitioner appears to argue the Court must apply a de novo standard of review to Claims Two through Seven because the state court record underlying the claims was insufficient and the state courts denied Petitioner an opportunity to develop the record. Objections at 12-15. Even under de novo review Petitioner's claims would fail for the reasons detailed herein.
VI.
DISCUSSION
A. PETITIONER HAS FAILED TO SHOW INSTRUCTIONAL ERROR
1. Background
In Claim One, Petitioner argues the trial court committed instructional error and directed the verdicts on the assault and resisting arrest charges. Dkt. 1 at 30-45.
Throughout the proceedings, Petitioner challenged the lawfulness of Irvine Police Officer Nick Kim's detention of Petitioner. See, e.g., 1 CT at 194-208; 2 RT at 503-04. Near the close of trial, the prosecution requested the trial court add language to the jury instructions to address the issues of probation searches and the lawfulness of Petitioner's detention. 2 RT at 484-85, 488. The trial court agreed to add language to the jury instructions on aggravated assault on a peace officer (CALCRIM No. 860), assault on a peace officer (CALCRIM No. 900), resisting a peace officer (CALCRIM No. 2652), and a peace officer's lawful performance of duties (CALCRIM 2670). As relevant here, the trial court instructed the jury as follows, with the relevant added language in bold:
[CALCRIM 860:] The defendant is charged in Count 1 with assault with a deadly weapon other than a firearm on a peace officer in violation of Penal Code section 245.
To prove that the defendant is guilty of this crime, the People must prove that:
. . .
5. When the defendant acted, the person assaulted was lawfully performing his duties as a peace officer;
AND
6. When the defendant acted, he knew, or reasonably should have known, that the person assaulted was a peace officer who was performing his duties.
. . .
A person who is employed as a police officer by Irvine Police Department is a peace officer.
The duties of a peace officer include conducting uniformed patrols in a marked police vehicle, engaging in consen[s]ual encounters, conducting lawful probation searches of vehicles and investigating suspected criminal conduct based on reasonable suspicion.
A peace officer may lawfully search the passenger compartment of a motor vehicle in which a probationer who is subject to search and seizure has been traveling. Such a search is limited to areas of the passenger compartment where the police officer reasonably suspects the probationer could have stowed personal belongings.
. . .
[CALCRIM 900:] The crime of Assault on a Peace Officer is a lesser crime to the crime of Aggravated Assault on a Peace Officer as charged in Count 1.
To prove that the defendant is guilty of this crime, the People must prove that:
. . .
5. When the defendant acted, the person assaulted was lawfully performing his duties as a peace officer;
6. When the defendant acted, he knew, or reasonably should have known, that the person assaulted was a peace officer performing his duties;
. . .
A person who is employed as a police officer by Irvine Police Department is a peace officer.
The duties of a peace officer include conducting uniformed patrols in a marked police vehicle, engaging in consen[s]ual encounters, conducting lawful probation searches of vehicles and investigating suspected criminal conduct based on reasonable suspicion.
A peace officer may lawfully search the passenger compartment of a motor vehicle in which a probationer who is subject to search and seizure has been traveling. Such a search is limited to areas of the passenger compartment where the police officer reasonably suspects the probationer could have stowed personal belongings.
. . .
[CALCRIM 2652:] The defendant is charged in Count 2 with resisting an executive officer in the performance of that officer's duty in violation of Penal Code section 69.
To prove that the defendant is guilty of this crime, the People must prove that:
. . .
2. When the defendant acted, the officer was performing his lawful duty;
AND
3. When the defendant acted, he knew the executive officer was performing his duty.
. . .
A sworn member of City of Irvine, authorized by 830.1 to enforce the laws of the State of California, is a peace officer.
The duties of a Police Officer include conducting uniformed patrols in a marked police vehicle, engaging in consen[s]ual encounters,
conducting lawful probation searches of vehicles and performing lawful detentions.
A police officer may lawfully search the passenger compartment of a motor vehicle in which a probationer who is subject to search and seizure has been traveling. Such a search is limited to areas of the passenger compartment where the police officer reasonably suspects the probationer could have stowed personal belongings.
A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties. Instruction 2670 explains when an arrest is unlawful or when force is unreasonable or excessive.
. . .
[CALCRIM 2670:] The People have the burden of proving beyond a reasonable doubt that Nick Kim was lawfully performing his duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of Resisting and Deterring an Executive Officer as charged in Count 2.
A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone using unreasonable or excessive force in his or her duties.
A peace officer may legally detain someone if the person consents to the detention or if:
1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime;
AND
2. A reasonable officer who knew the same facts would have the same suspicion.
A peace officer may legally detain a probationer who is subject to search and seizure for the purpose of searching areas of a motor vehicle passenger compartment if:
1. The probationer has been traveling in the motor vehicle;
AND
2. The police officer reasonably suspects the probationer could have stored his personal belongings.
Any other detention is unlawful.
. . .
2 CT at 318-19, 322-23, 325, 328-29 (italics in original, bold added).
However, you may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the defendant knew or reasonably should have known that the officer was arresting him.
If a peace officer uses unreasonable or excessive force while arresting or attempting to arrest or detaining or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself.
The prosecutor highlighted these instructions for the jury during closing arguments and argued Officer Kim was acting within the scope of his duties when he was investigating a suspicious vehicle and a probationer with an outstanding warrant. 3 RT at 562-66.
2. State Court Opinion
The California Court of Appeal denied Petitioner's claim on direct appeal, finding the trial court's instructions, when viewed as a whole, did not direct the verdicts because they left the essential elements to be decided by the jury. Specifically, the instructions "required the jury to engage in factfinding to determine whether certain conditions for a lawful detention and search were met, including whether the probationer had been traveling in the vehicle[, whether he] could have deposited personal belongings there," and whether the jury found Officer Kim's account of the events surrounding the crime credible. Lodg. 6 at 7.
3. Legal Standard
A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in a federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). On federal habeas review, a jury instruction violates due process only if "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973)). The instruction must be considered in the context of the trial record and the instructions as a whole. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977); see also Middleton v. McNeil, 541 U.S. 433, 437-38, 124 S. Ct. 1830, 158 L. Ed. 2d 701 (2004).
In addition, a trial judge "may not direct a verdict for the State, no matter how overwhelming the evidence." Sullivan v. United States, 508 U.S. 275, 277, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993); see also Carpenters v. United States, 330 U.S. 395, 408, 67 S. Ct. 775, 91 L. Ed. 973 (1947). "[A] trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a judgment." United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S. Ct. 1340, 51 L. Ed.2d 642 (1977); see also Sparf v. United States, 156 U.S. 51, 105-06, 15 S. Ct. 273, 294-95, 39 L. Ed. 343 (1895).
4. Analysis
Here, the challenged instructional language properly guided the jury with respect to what acts would fall within the scope of an officer's lawful duties under state law, but did not direct the jury to find Officer Kim was lawfully performing such acts at the time of his encounter with Petitioner. The instructions left to the jury to decide whether, based on the facts produced at trial, the prosecution had satisfied its burden of proving the required elements for the charged crimes, specifically whether Officer Kim was engaged in the lawful performance of his duties. Under these circumstances, the instructions did not "so infect[] the entire trial that the resulting conviction violates due process," Estelle, 502 U.S. at 72, or amount to a directed verdict. See Reiswig v. Fakhoury, No. SACV 11-1989-GHK (RNB), 2014 WL 1512230, at *20-*23 (C.D. Cal. March 3, 2014) (rejecting claim that trial court directed verdict where instructions correctly defined the applicable state law). In fact, the jury instructions here served the very purpose for which jury instructions are intended -- providing the jury with the legal framework under which it must make factual findings based on the evidence presented.
Hence the state court's denial of Petitioner's claim was not contrary to or an unreasonable application of clearly established federal law. Habeas relief is not warranted on Claim One.
B. PETITIONER HAS FAILED TO SHOW THE PROSECUTOR ENGAGED IN MISCONDUCT
1. Perjured Testimony
a. Background
In Claim Two, Petitioner argues the prosecutor knowingly presented Officer Kim's perjured testimony, as evidenced by discrepancies between Officer Kim's police report, his trial testimony, and the dashcam video of the incident from Officer Kim's patrol car. Dkt. 1 at 78-88. Specifically, Petitioner points to discrepancies regarding whether (1) Petitioner told Officer Kim who owned the car; (2) Petitioner answered Officer Kim's question asking if Petitioner was on probation or parole; (3) Officer Kim ordered Petitioner to stop the car; (4) Officer Kim asked Fluor where in the car he had been sitting; (5) Fluor told Officer Kim he had belongings in the car; and (6) Officer Kim used his gun to break the car window. Id.; Dkt. 18 at 12-13. ///
b. State Court Opinion
The Orange County Superior Court denied Petitioner's claim on habeas review, finding Petitioner had not established Officer Kim's testimony amounted to perjury, Petitioner had an opportunity to cross-examine and impeach Officer Kim's testimony, the testimony Petitioner challenges was not material to the issue of Petitioner's guilt, and the issue regarding Officer Kim's credibility was a question for the jury. Lodg. 16 at 4-5.
c. Legal Standard
A conviction violates due process if it is obtained through testimony or evidence that the prosecutor knew or should have known was false. Napue v. People of the State of Ill., 360 U.S. 264, 269-70, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). In order to prevail on a Napue claim, a petitioner must demonstrate that: (1) the testimony or evidence was "actually false"; (2) the prosecution knew or should have known that the testimony or evidence was actually false; and (3) the false testimony or evidence was "material." Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc) (quoting United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)). The Supreme Court has "consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair." United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), holding modified by United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).
d. Analysis
i. Owner of The Car
First, Petitioner insists Officer Kim gave perjured testimony regarding what Petitioner told the officer about who owned the car. Dkt. 1 at 78-82, 86.
In his police report, Officer Kim stated Petitioner claimed the car was not his and that he did not know who owned the car. Dkt. 1-2 at 55. At the preliminary hearing, Officer Kim reviewed his police report and testified Petitioner told him Petitioner did not know who owned the car, but also stated he did not then remember if he asked Petitioner who owned the car. 1 CT at 82, 101. At trial, Officer Kim testified he believed Petitioner told him the car belonged to his friend Stephanie. 1 RT at 131, 178, 366. Most notably, the transcript of Officer Kim's dashcam video, which was presented at trial, confirmed Petitioner told Officer Kim the car belonged to Stephanie. 3 CT at 599, 607, 622.
Regardless of the discrepancies between Officer Kim's police report, preliminary hearing, and trial testimony, Officer Kim's trial testimony was consistent with the evidence reflected on the dashcam video. Accordingly, Petitioner has not shown Officer Kim's trial testimony was actually false , or that the prosecutor knew or should have known it was actually false.
To the extent Petitioner argues Officer Kim perjured himself during the preliminary hearing, his claim does not provide a basis for federal habeas relief because it does not allege a violation of a fundamental constitutional right. See Davin v. Baca, No. CV 08-2877-RSWL (E), 2008 WL 3049853, at *1 (C.D. Cal Aug. 5, 2008) (explaining because criminal defendants do not have a fundamental federal constitutional right to a preliminary hearing, errors at such a hearing do not provide a basis for federal habeas relief).
ii. Probation or Parole
Next, Petitioner argues Officer Kim gave perjured testimony regarding whether Petitioner answered Officer Kim's question asking if Petitioner was on probation or parole. Dkt. 1 at 79-80, 82.
In his police report, Officer Kim stated Petitioner did not answer when he was asked if he was on probation or parole. Dkt. 1-2 at 55. Officer Kim offered the same account when he testified at the preliminary hearing. 1 CT at 82-83. At trial, Officer Kim testified he believed Petitioner told him he was not on probation or parole, but clarified he could not specifically recall. 1 RT at 131. The transcript of Officer Kim's dashcam video indicates Officer Kim asked Petitioner if he was on probation or parole and Petitioner did not give an audible response. 3 CT at 599, 606, 621.
Once again, Officer Kim's trial testimony was consistent with the evidence reflected on the dashcam video. Accordingly, Petitioner has not shown Officer Kim's trial testimony was actually false, or that the prosecutor knew or should have known it was actually false.
iii. Order to Stop
Next, Petitioner argues Officer Kim gave perjured testimony regarding whether he ordered Petitioner to stop the car. Dkt. 1 at 79, 81-82, 85-86.
In his police report, Officer Kim repeatedly stated he told Petitioner to stop. Dkt. 1-2 at 55-56. At the preliminary hearing, Officer Kim again stated he told Petitioner to stop. 1 CT at 84-85. At trial, Officer Kim testified he did not believe he ever told Petitioner to stop. 1 RT at 173, 182; 2 RT at 358-59, 368. Officer Kim clarified that he could not remember the exact words he used but that he believed he told Petitioner, "You don't need to get back into the car." 2 RT at 358. Officer Kim further testified that as Petitioner tried to drive away, he did not give any verbal commands but, rather, hit the car's window; screamed "hey, hey, hey"; and tried to open the car's door. Id. at 359. The transcript of Officer Kim's dashcam video revealed that Officer Kim yelled "hey, hey, hey" but did not give any other verbal orders. 3 CT at 599, 607, 622.
Once again, regardless of the discrepancies between Officer Kim's police report, preliminary hearing, and trial testimony, Officer Kim's trial testimony was materially accurate, as evidenced by the dashcam video, as to whether he ordered Petitioner to stop. Officer Kim's trial testimony only deviated from the dashcam video with respect to events about which Officer Kim admitted his memory was faulty. At most, Petitioner has established minor inconsistencies between Officer Kim's various accounts of the encounter. See Zuno-Arce, 44 F.3d at 1423 (observing that discrepancies in evidence "could as easily flow from errors in recollection as from lies"); United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) (holding that actual falsity was not shown where witnesses merely had "conflicting recollections of events"). Moreover, to the extent Officer Kim offered an incorrect version of events before trial, the prosecution corrected the inaccuracies at trial. Accordingly, Petitioner has not shown Officer Kim's trial testimony was actually false, or that the prosecutor knew or should have known it was actually false.
Again, to the extent Petitioner argues Officer Kim perjured himself during the preliminary hearing, his claim does not provide a basis for federal habeas relief. See Davin, 2008 WL 3049853, at *1.
To the extent Petitioner also claims the prosecution presented the perjured testimony of Detectives Hurtado, Cantwell, and Renshaw, see Dkt. 1 at 100-03, 105-06, Petitioner has not proven anything more than inartful questioning by the lawyers, testimony taken out of context, and minor, non-material inconsistencies in the record. For example, although it is not clear whether investigators obtained an emergency ping on Petitioner's phone on May 22 or May 23, 2014, see 2 RT at 441; Dkt. 1-2 at 117, the discrepancy could be a typo in the search warrant affidavit, and, at worst, amounts to an error in the record that would not have had any substantial impact on the issues at trial. Petitioner also points to Detective Hurtado's testimony about when and if the investigators knew the location of Petitioner's car. Dkt. 1 at 102-03. However, Detective Hurtado explained she was not involved in the GPS monitoring of the car and was, thus, not comfortable answering questions about its location. 2 RT at 450. Rather, she merely attempted to answer the questions based on her "understanding" of the investigation done by other detectives. Id. at 451.
iv. Fluor's Place and Belongings Inside the Car
Petitioner also alleges Officer Kim gave false statements when he claimed Fluor told the officer he had been riding in the front passenger seat of the car and when the officer claimed Fluor did not respond when the officer asked if he had belongings in the car. Dkt. 18 at 12.
In his police report, Officer Kim stated Fluor told Officer Kim he had been riding in the front passenger seat of the car. Dkt. 1-2 at 54. Officer Kim also stated he asked if Fluor had any belongings in the car but Fluor did not respond. Id. At the preliminary hearing, Officer Kim testified that the car Petitioner and Fluor had been in was a two-door and Fluor told him he had been the passenger in the car. 1 CT at 77, 79. Officer Kim did not testify that he asked Fluor if he had belongings in the car and that Fluor did not respond. At trial, Officer Kim testified Fluor told him he was the passenger, not the driver, in the car. 1 RT at 126. Officer Kim did not testify at trial that he asked Fluor if he had belongings in the car and Fluor did not respond. Importantly, the available dashcam audio showed Fluor told Officer Kim he had been a passenger in the car, although he did not state specifically he was in the front passenger seat. 3 CT at 597-98. The audio further showed Officer Kim asked Fluor if he had belongings in the car and Fluor first gave an inaudible response before saying he did not have belongings in the car. Id. at 597.
Once again, Officer Kim's trial testimony was consistent with the evidence reflected on the dashcam audio. Accordingly, Petitioner has not shown Officer Kim's trial testimony was false, or that the prosecutor knew or should have known it was actually false.
v. Use of Gun to Break Window
Finally, Petitioner alleges Officer Kim "falsely reported and omitted the use of his gun to bust out Petitioner's side window." Dkt. 18 at 13. In his report, Officer Kim stated he broke the car's window "with [his] right hand." Dkt. 1-2 at 55-56. At the preliminary hearing and at trial, Officer Kim testified he broke the window with his right hand, in which he was holding his gun. 1 CT at 112; 1 RT at 140, 175; 2 RT at 370. This record makes clear that Officer Kim did not give a false statement in his report when he said he broke the window with his right hand. To the extent the report omitted the fact that Officer Kim was holding his gun in the hand he used to break the window, Officer Kim did not make any attempt to conceal this information. In fact, at trial Officer Kim testified extensively about his use of his gun during his confrontation with Petitioner. 1 RT at 140, 175-78; 2 RT at 359-62, 369-70, 381, 407-08, 422-23, 435. Accordingly, Petitioner has not shown Officer Kim's trial testimony was false, or that the prosecutor knew or should have known it was actually false.
2. Withholding and Destruction of Evidence
a. Background
In Claim Six, Petitioner argues the prosecution committed error under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) by failing to disclose surveillance video from the gas station convenience store, evidence of Officer Kim's perjured testimony, and the daschcam video from Officer Kim's patrol car. Dkt. 1 at 53, 55-58, 60-64, 87; Dkt. 1-1 at 5-10; Dkt. 18 at 9. Petitioner further argues the prosecution committed error under California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984) and Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) by destroying or failing to preserve the surveillance video. Dkt. 1 at 53-54, 57; Dkt. 1-1 at 5-6, 10.
b. Brady
i. Background
Petitioner alleges the prosecution failed to disclose surveillance video, evidence of Officer Kim's perjured testimony, and the dashcam video from Officer Kim's patrol car. Dkt. 1 at 53, 55-58, 60-64, 87; Dkt. 1-1 at 5-10; Dkt. 18 at 9.
ii. State Court Opinion
The Orange County Superior Court denied Petitioner's claim on habeas review, finding Petitioner had not demonstrated the allegedly withheld evidence was favorable to the defense or material in light of the evidence produced at trial. Lodg. 12 at 4. In addition, the court found the defense was in possession of evidence highlighting discrepancies between Officer Kim's trial testimony and other evidence. Lodg. 16 at 6.
iii. Legal Standard
"In Brady [v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)], the Supreme Court held '[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir. 2012) (quoting Brady, 373 U.S. at 87). "The elements of a claim for a Brady violation are that '[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'" Gonzalez v. Wong, 667 F.3d 965, 981 (9th Cir. 2011) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)).
iv. Surveillance Video
First, Petitioner has not shown the police and prosecution were in possession of any additional surveillance video that was not disclosed to the defense.
Irvine Police Detective Alexander Kim obtained surveillance video from the gas station where the incident took place. 1 RT at 219-20; 2 CT at 514. The manager of the gas station told Detective Kim the store's surveillance system records video of the store from several angles, including video of the store's "entrance/exit, cash register, overall view of the store floor, and bathroom doors." 1 RT at 220; 2 CT at 514. In his police report, Detective Kim stated, "[b]ased on the circumstances explained in the crime report [the manager] provided [Detective Kim] with surveillance video footage" captured at the store at the time of the incident. 2 CT at 514.
There is no indication in the record that Detective Kim is related to Officer Kim.
Video showing Petitioner making a transaction at the cashier and exiting the store was turned over to the defense and was presented to the jury at trial. 2 RT at 228-31; 3 RT at 643-44. There is nothing in the record to suggest the store's manager provided any additional video that was not later disclosed to the defense. Petitioner insists Detective Kim acknowledged the existence of additional video when he testified at trial the store manager "confirm[ed] to [him] that he had a video that recorded the incident." Dkt. 18 at 18-20; 1 RT at 219. However, reading the testimony in context against the entire record, it is clear the store's surveillance video captured only what occurred inside the store and did not record the interaction between Petitioner and Officer Kim that occurred outside the store. Hence, Petitioner has failed to show any video evidence was suppressed.
Moreover, even if additional video relevant to Petitioner's case existed, Petitioner cannot show it was exculpatory or that its suppression prejudiced him. The store surveillance video only showed what took place inside the store, see 1 RT at 220; 2 CT at 514, and would not have shed any light on the interaction between Petitioner and Officer Kim outside the store.
The Court recognizes Petitioner's argument in his motion for a new trial that the allegedly suppressed video might have shown Petitioner going into the bathroom in the store, which, Petitioner suggested, would have disproven the prosecution's theory that Petitioner was trying to hideout in the store. 3 RT at 640-42. However, even if the prosecutor was attempting to argue Petitioner was hiding from Officer Kim, video of him going into the bathroom could have supported a theory that Petitioner was attempting to hide in the bathroom. In addition, the prosecutor made it clear at trial that Petitioner walked in the direction of the store's bathroom, thus, this theory was already before the jury. 2 RT at 230.
v. Perjured Testimony
Petitioner also fails to show the prosecution suppressed evidence of Officer Kim's perjury.
First, as discussed in Section B.1., above, Petitioner has not established Officer Kim's testimony was perjured. Accordingly, Petitioner cannot show the prosecution failed to disclose evidence highlighting this alleged perjury.
Second, Petitioner relies on Officer Kim's police report, preliminary hearing testimony, and dashcam video to support his claim that Officer Kim committed perjury, yet the record establishes that the defense possessed this evidence. In fact, the surveillance video was played for the jury at trial, 1 RT at 148; 2 RT at 337, 411, 416, and Petitioner's counsel attempted to impeach Officer Kim with portions of his preliminary hearing testimony, 1 RT at 164-65, 172; 2 RT at 359. Hence, Petitioner cannot show the defense was deprived of this evidence or was prejudiced by any failure of the prosecution to provide this evidence. ///
To the extent Petitioner claims the prosecution suppressed evidence related to the GPS tracking of Petitioner's car, see Dkt. 1 at 106, and the pinging of Petitioner's cell phone, id. at 107, he has not proven what evidence existed, that it was suppressed by the prosecution, or that it was exculpatory.
vi. Dashcam Video
In addition, Petitioner has not shown the prosecution violated Brady by failing to turn over Officer Kim's dashcam video. Petitioner argues the prosecution did not turn over the dashcam video (or a transcript of that video) at the pre-trial hearing on Petitioner's motion to dismiss charges. Dkt. 18 at 9.
Brady does not establish a specific deadline by which disclosures must be made. Rather, "[d]isclosure, to escape the Brady sanction, must be made at a time when the disclosure would be of value to the accused." United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985). In fact, disclosures as late as after the prosecution's case-in-chief have been found to comply with Brady, so long as the defense has the opportunity to make use of the evidence at trial. See United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988) (internal quotation marks and citations omitted) (finding no Brady violation when the prosecution disclosed impeachment material after the case-in-chief, because the trial court gave defendants an opportunity to recall the witness for cross-examination).
Here, Petitioner possessed the dashcam video before trial. In fact, Petitioner's counsel had the evidence in sufficient time to make pre-trial arguments regarding the admissibility of the video. 1 RT at 98-107. Under these circumstances, Petitioner cannot show any alleged delay in producing the dashcam video resulted in a Brady violation.
c. Trombetta/Youngblood
i. Background
Petitioner also asserts the prosecution either destroyed or failed to preserve the surveillance video evidence. Dkt. 1 at 53-54, 57; Dkt. 1-1 at 5-6, 10.
ii. State Court Opinion
The Orange County Superior Court denied Petitioner's claim on habeas review because Petitioner had not shown the evidence was exculpatory or destroyed in bad faith. Lodg. 12 at 5.
iii. Legal Standard
The government violates a defendant's due process rights when it fails to preserve evidence in a criminal case if: (1) the evidence "might be expected to play a significant role in the suspect's defense"; (2) the evidence has exculpatory value; (3) the exculpatory value is apparent before the evidence is destroyed; (4) the defendant is "unable to obtain comparable evidence by other reasonably available means"; and (5) the government acted in bad faith. Trombetta, 467 U.S. at 488-89 (citations and footnote omitted); see also Youngblood, 488 U.S. at 58 (adding the bad faith requirement).
iv. Analysis
Here, Petitioner has not proven the prosecution destroyed any video evidence. To the extent Petitioner might argue the police should have obtained and preserved additional video footage from the gas station, as explained above in subsection b.iii., Petitioner has not shown additional surveillance video would have been exculpatory.
Accordingly, the state court's denial of Petitioner's claims of prosecutorial misconduct was not contrary to or an unreasonable application of clearly established federal law. Hence, habeas relief is not warranted on Claims Two and Six.
C. PETITIONER HAS FAILED TO SHOW HIS TRIAL COUNSEL WAS INEFFECTIVE
1. Background
In Claims Three, Four, and Five, Petitioner argues his trial counsel rendered ineffective assistance. Specifically, Petitioner faults his trial counsel for (1) failing to file motions to suppress and dismiss based on Officer Kim's perjured testimony and Petitioner's unlawful detention, Dkt. 1 at 64, 90-98; Dkt. 18 at 12-13, (2) failing to interview and call witnesses, Dkt. 1 at 100-09, (3) failing to preserve the video evidence, id. at 53-54, 56, 111-14; Dkt. 1-1 at 1-3, and (4) failing to secure GPS evidence, Dkt. 1 at 106, 108.
To the extent Petitioner hints at a violation of his right to confront witnesses in Claim Four, see, e.g., Dkt. 1 at 107, the Court has considered Petitioner's claim and finds it lacks merit.
2. Legal Standard
Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), ineffective assistance of counsel claims require a two-prong test: (1) counsel's performance was deficient, and (2) prejudice resulted from the deficient performance. 466 U.S. at 687. To prove deficient performance, a petitioner must show counsel's representation fell below an objective standard of reasonableness. Id. at 687-88. However, establishing counsel's deficient performance does not warrant setting aside the judgment if the error had no effect on the judgment. Id. at 691; see also Seidel v. Merkle, 146 F.3d 750, 757 (9th Cir. 1998). Thus, a petitioner must also show prejudice, such that 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.
3. Analysis
a. Sections 995 and 1538 .5 of the California Penal Code
i. Background
First, Petitioner faults his original trial counsel for failing to file motions to suppress evidence under California Penal Code section 1538.5 and dismiss charges under California Penal Code section 995 on the basis of Officer Kim's allegedly perjured testimony and Petitioner's unlawful detention. Dkt. 1 at 64, 90-98. ///
California Penal Code section 1538.5 provides a means by which criminal defendants can seek the suppression of evidence obtained as a result of an unlawful search or seizure. Cal. Penal Code § 1538.5(a)(1).
California Penal Code section 995 provides a means by which criminal defendants can move to set aside the information if they have been committed without reasonable or probable cause. Cal. Penal Code § 995(a)(2).
ii. State Court Opinion
The Orange County Superior Court denied Petitioner's claim on habeas review, finding a motion under section 1538.5 of the California Penal Code would have been inappropriate and trial counsel filed a motion under section 995 of the California Penal Code, which the trial court properly denied. Lodg. 16 at 7.
iii. Analysis
While Petitioner's original trial counsel did not file a motion under section 995 of the California Penal Code arguing Petitioner's detention was unlawful, Petitioner's subsequent trial counsel did file a motion which the trial court denied. 1 RT at 18-23. Petitioner has not shown such a motion would have been any more successful had his first trial counsel presented the motion at an earlier date or had either counsel presented the motion under Penal Code section 1535.5. This is particularly true where the facts support the lawfulness of Officer Kim's detention in order to effectuate a probation search of the passenger compartment of Petitioner's vehicle based on the probation status of Petitioner's passenger. People v. Schmitz, 55 Cal. 4th 909, 922-23 (2012).
Petitioner's subsequent trial counsel also filed a motion to suppress based on an argument regarding the lawfulness of the detention. However, in that motion counsel sought to suppress only the evidence collected after the incident at the gas station. 1 RT at 57-75. The motion was resolved when the prosecution announced it did not intend to use any evidence collected after the gas station incident. Id. at 72-74.
Moreover, Petitioner has not shown the failure to file such motions with respect to allegedly perjured testimony amounted to ineffective assistance. Again, Petitioner has not shown Officer Kim perjured himself. Thus, Petitioner's trial counsel would have had no basis upon which to seek the suppression of evidence or a dismissal of charges based on a claim of perjured testimony. /// /// ///
b. Failing to Interview and Call Witnesses
i. Background
Next, Petitioner alleges his trial counsel failed to interview and call witnesses. Specifically, Petitioner argues his trial counsel should have called Douglas Fluor (the passenger of Petitioner's vehicle), Petitioner's father, and an unknown "third party" who conducted GPS surveillance of Petitioner's car. Dkt. 1 at 100-09. Petitioner further argues his trial counsel was ineffective for failing to secure evidence related to the GPS monitoring of his car. Id. at 106, 108.
ii. State Court Opinion
The Orange County Superior Court denied this claim on habeas review, finding Petitioner had failed to show trial counsel's performance fell below an objective standard of reasonableness or that Petitioner was prejudiced by counsel's performance. Lodg. 12 at 6.
iii. Analysis
"To establish prejudice from the failure to call a witness, a petitioner must show that the witness was likely to have been available to testify; that the witness would have given the proffered testimony; and that the witnesses' testimony would have created a reasonable probability that the jury would have reached a verdict more favorable to the petitioner." Amezquita v. Macomber, No. CV 15-7277-VBF (KS), 2017 WL 1364608, at *13 (C.D. Cal. Jan. 12, 2017) (citing Alcala v. Woodford, 334 F.3d 862, 872-73 (9th Cir. 2003)). Here, Petitioner has not met any of these requirements with respect to the three witnesses he suggests his trial counsel should have interviewed and called on behalf of the defense.
In addition, although Petitioner suggests his trial counsel was ineffective for failing to secure evidence regarding GPS surveillance of Petitioner's car -- evidence Petitioner claims was suppressed by the prosecution, Dkt. 1 at 106, 108 -- Petitioner fails to explain how his trial counsel could have obtained evidence if it truly had been suppressed by the prosecution. Petitioner also fails to demonstrate prejudice from trial counsel's alleged failure to secure GPS monitoring evidence.
c. Failing to Preserve Video
i. Background
Finally, Petitioner faults his trial counsel for failing to preserve surveillance video. Dkt. 1 at 53-54, 56, 111-14; Dkt.1-1 at 1-3.
ii. Analysis
As discussed previously, Petitioner has not shown that anyone destroyed or failed to preserve video evidence. Most significantly, Petitioner has not shown his trial counsel played a role in destroying or failing to preserve any evidence. Hence, Petitioner's conclusory claim that counsel failed to preserve evidence is insufficient to establish ineffective assistance. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (rejecting ineffective assistance of counsel claim based on unsupported allegations and noting that "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief").
Accordingly, the state court's denial of Petitioner's claims of ineffective assistance of trial counsel was not contrary to or an unreasonable application of clearly established federal law. Habeas relief is not warranted on Claims Three, Four, and Five.
D. PETITIONER HAS FAILED TO SHOW HIS APPELLATE COUNSEL WAS INEFFECTIVE
1. Background
Finally, in Claim Seven, Petitioner argues his appellate counsel was ineffective for failing to argue Officer Kim unlawfully detained Petitioner and the prosecution presented perjured testimony. Dkt. 1-1 at 13-26. Petitioner further argues his appellate counsel should have raised a claim that his convictions were not supported by sufficient evidence because the prosecution's case relied on the unlawful detention and perjured testimony. Id.
2. State Court Opinion
The Orange County Superior Court denied Petitioner's claim on habeas review, concluding "[i]t is very unlikely that petitioner would have been successful on appeal had he raised these issues." Lodg. 16 at 8.
3. Legal Standard
The Strickland standard also applies to claims of ineffective assistance of appellate counsel based on the failure of counsel to raise particular claims on appeal. Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000). A habeas petitioner must show that, but for appellate counsel's failure to raise the omitted claim(s), there is a reasonable probability that the petitioner would have prevailed on appeal. Id. In the absence of such a showing, neither Strickland prong is satisfied. See Pollard v. White, 119 F.3d 1430, 1435-37 (9th Cir. 1997); Miller v. Keeney, 882 F.2d 1428, 1434-35 (9th Cir. 1989).
Appellate counsel does not have a constitutional duty to raise every non-frivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). Counsel "must be allowed to decide what issues are to be pressed." Id. The weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy, and counsel is not deficient for failing to raise a weak issue. Miller, 882 F.2d at 1434. There is, of course, no obligation to raise meritless arguments on a client's behalf. See Strickland, 466 U.S. at 687-88 (requiring a showing of deficient performance as well as prejudice).
4. Analysis
a. Fourth Amendment
First, even if the Court could find Petitioner's appellate counsel should have presented a Fourth Amendment claim challenging the lawfulness of the detention, Petitioner cannot show he was prejudiced by his counsel's failure to raise such a claim.
The lawfulness of Officer Kim's detention of Petitioner had been litigated extensively in the trial court. The issue was resolved against Petitioner by (1) the magistrate at the preliminary hearing, 1 CT at 127-29, 134 (denying Petitioner's arguments against holding him to answer on the charges), (2) the trial court before trial, 1 RT at 18-23 (denying Petitioner's motion to dismiss the charges), (3) the trial court after the prosecution's case in chief, 2 RT at 504-05 (denying motion for judgment of acquittal), (4) the jury at trial, see 3 RT at 522-24, 526, 528, 530-31, 533-34 (instructing the jury peace officer must have been lawfully performing duties, which include patrol, consensual encounters, probation searches of vehicles, and investigating suspected criminal conduct, and that prosecution had to prove beyond reasonable doubt Officer Kim was lawfully performing duties); 2 CT at 407-08 (verdicts), and (5) the trial court after trial, 3 RT at 631-32, 644 (denying new trial motion). There is no reason to believe Petitioner's arguments would have met with greater success on appeal. This is particularly true where Petitioner's argument lacks merit under state law because Officer Kim had a lawful right to search the passenger compartment of Petitioner's car where a probationer had been sitting. People v. Schmitz, 55 Cal. 4th 909, 922-23 (2012).
b. Perjured Testimony
Second, as discussed herein, Petitioner has not shown the prosecution presented any perjured testimony. Hence, Petitioner's appellate counsel could not have been ineffective for failing to present a claim to the appellate court based on this meritless argument. See Morrison v. Estelle, 981 F.2d 425, 429 (9th Cir. 1992) (failure to raise meritless argument on appeal does not constitute ineffective assistance of counsel).
c. Sufficiency of the Evidence
Finally, because both Petitioner's Fourth Amendment and perjury claims lack merit, Petitioner's related claim that appellate counsel should have challenged the sufficiency of the evidence to support Petitioner's convictions based on an argument that the convictions were secured as a result of an unlawful detention and perjured testimony similarly fails. See Morrison, 981 F.2d at 429.
Accordingly, the state court's denial of Petitioner's claim of ineffective assistance of appellate counsel was not contrary to or an unreasonable application of clearly established federal law. Habeas relief is not warranted on Claim Seven.
E. EVIDENTIARY HEARING
Petitioner requests the Court to conduct an evidentiary hearing. Dkt. 18 at 25. An evidentiary hearing is not warranted where, as here, "the record refutes the applicant's factual allegations or otherwise precludes habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007). As such, Petitioner's request for an evidentiary hearing should be denied.
VII.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) accepting this Final Report and Recommendation; (2) denying the Petition; and (3) dismissing this action with prejudice. Dated: August 13, 2019
/s/_________
HONORABLE KENLY KIYA KATO
United States Magistrate Judge