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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 11 ANDRE TREVONE HARRIS, Case No. 5:21-cv-00674-MRA-SHK

12 Petitioner,

ORDER ACCEPTING FINDINGS

13 v. AND RECOMMENDATION OF

UNITED STATES MAGISTRATE

14 WARREN L. MONTGOMERY, JUDGE 15 Warden, 16 Respondent.

17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended 19 Petition (“SAP”), the relevant records on file, and the Report and Recommendation 20 (“R&R”) of the United States Magistrate Judge. The Court has engaged in de novo 21 review of those portions of the R&R to which Petitioner has objected. 22 The Report recommends denial of the SAP and dismissal of this action with 23 prejudice. (ECF No. 34.) As explained below, Petitioner’s Objections to the Report 24 (ECF No. 38) do not warrant a change to the Report’s findings or recommendation. 25 Petitioner objects that he is entitled to relief on his claim that hearsay evidence 26 was erroneously admitted in violation of the Confrontation Clause. (ECF No. 38 at 27 2-3.) This objection does not overcome the Report’s analysis that the California 1 No. 34 at 20-21.) Admission of the evidence, relating to Petitioner’s gang tattoo, 2 was harmless beyond a reasonable doubt because other ample evidence established 3 the gang rivalry that was presented as the motive for the shootings. (ECF No. 27- 4 Ex. 20 at 17.) Moreover, the verdict of second-degree, rather than first-degree, 5 murder suggests the jury relied on the gang evidence as proof of a more general 6 theory of a gang rivalry rather than as proof of specific targeting of the victim. (Id. 7 at 17-18.) Because ample other evidence supported this general theory, the 8 admission of the hearsay evidence regarding the gang tattoo was of minimal 9 significance. (Id. at 18.) 10 Petitioner objects that he is entitled to relief on his claim that extraneous 11 offense evidence was erroneously admitted. (ECF No. 38 at 3-5.) This objection 12 does not overcome the Report’s analysis that due process was not violated because 13 the evidence, relating to Petitioner’s commission of a May 2016 rival gang assault 14 in jail, was subject to permissible inferences by the jury, such as a pattern of gang 15 activity. (ECF No. 34 at 24-25.) See Kipp v. Davis, 971 F.3d 939, 956 (9th Cir. 16 2020) (explaining there is “no due process violation where there were permissible 17 inferences that the jury could draw from the challenged evidence”). 18 Petitioner objects that he is entitled to relief on his claim that evidence of his 19 self-incriminating telephone call was erroneously admitted because he was denied 20 an opportunity to present other evidence providing context for that call. (ECF No. 21 38 at 5-6.) This objection does not overcome the Report’s analysis that the 22 California Court of Appeal’s rejection of this claim was not objectively 23 unreasonable. (ECF No. 34 at 28.) The excluded evidence, in which Petitioner 24 denied involvement in the shootings, did not provide context or clarification for his 25 initial self-incriminating telephone call, but rather was contradictory and self- 26 serving, and generated only after Petitioner became aware the police believed his 27 earlier statements were incriminating. (ECF No. 27-20 at 26.) Moreover, as the 1 Report found, Petitioner points to no clearly established federal law standing for the 2 proposition that the exclusion of this type of evidence violates a criminal defendant’s 3 right to present a defense. (ECF No. 34 at 28.) 4 Petitioner objects that he is entitled to relief on his claim concerning an 5 erroneous “kill zone” theory of liability jury instruction. (ECF No. 38 at 6-7.) This 6 objection does not overcome the Report’s determination that the provision of the 7 instruction was harmless error. (ECF No. 34 at 32-34.) The prosecutor’s closing 8 argument relied on a permissible theory of attempted murder rather than a kill zone 9 theory, and it did not appear from the evidence that the jury relied on a kill zone 10 theory in finding Petitioner guilty of attempted murder. (Id.) 11 Petitioner objects that he is entitled to relief on his claim that counsel was 12 ineffective for failing to investigate tampering of the crime scene. (ECF No. 38 at 13 7-8.) This objection does not overcome the Report’s analysis that the California 14 Court of Appeal’s rejection of this claim was not objectively unreasonable. (ECF 15 No. 34 at 36-37.) Petitioner presented no evidence of tampering of the crime scene. 16 (ECF No. 27-28 at 5.) 17 Petitioner objects that he is entitled to relief on his claim that counsel was 18 ineffective for failing to effectively object to bad acts evidence. (ECF No. 38 at 8- 19 9.) This objection does not overcome the Report’s analysis that the California Court 20 of Appeal’s rejection of this claim was not objectively unreasonable. (ECF No. 34 21 at 38-39.) The bad acts evidence related to a shooting that targeted the murder 22 victim’s house three weeks before the fatal shooting. (ECF No. 27-28 at 5-6.) 23 Petitioner did not submit a declaration from counsel as to why he did not object to 24 the evidence. (Id. at 6.) Moreover, counsel reasonably might have determined that 25 an objection to the evidence would have been futile: the evidence was relevant to the 26 prosecutor’s theory that the murder was part of an ongoing gang rivalry, and it also 27 1 | was relevant to prove a gang motive for the fatal shooting of the victim at the 2 | apartment complex weeks later. (/d.) 3 Petitioner objects that he is entitled to relief on his claim that counsel was 4 | ineffective for failing to utilize an exculpatory dying declaration. (ECF No. 38 at 9- 5 | 10.) This objection does not overcome the Report’s analysis that the California 6 | Court of Appeal’s rejection of this claim was not objectively unreasonable. (ECF 7 | No. 34 at 39-40.) Petitioner has not presented any evidence of an exculpatory dying 8 | declaration. (ECF No. 27-28 at 8.) 9 The Court accepts the findings and recommendation of the Magistrate Judge. 10 IT IS THEREFORE ORDERED that the SAP is DENIED and that Judgment 11 | be entered DISMISSING this action with prejudice. 12 13 | Dated: September 29, 2024 fs R. At— 14 Or MONICA RAMIREZ ALMADANI 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28