1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.:24cv0837-JLS (BLM) 11 MILTON MELVIN RODGERS,

12 Petitioner, REPORT AND RECOMMENDATION FOR

ORDER DENYING PETITION FOR WRIT

13 v. OF HABEAS CORPUS

14 JEFF MACOMBER, Secretary of the California [ECF No. 1] Dep’t of Corrections and Rehabilitation, 15 Respondent. 16 17 18 This Report and Recommendation is submitted to United States District Judge Janis L. 19 Sammartino pursuant to 28 U.S.C § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United 20 States District Court for the Southern District of California. On May 8, 2024, Milton Melvin 21 Rodgers (“Rodgers” or “Petitioner”) a state prisoner proceeding commenced these habeas 22 corpus proceedings pursuant to 28 U.S.C. § 2254. ECF No. 1 (“Pet.”). Rodgers challenges his 23 conviction in San Diego Superior Court Case No. SCD284166. See Pet. Respondent answered 24 on July 16, 2024. ECF No. 6-1 (“Ans.”). Rodgers was given the opportunity to file a Traverse 25 by August 15, 2024 but failed to do so. 26 This Court has considered the Petition, Answer, and all supporting documents filed by the 27 parties. For the reasons set forth below, this Court RECOMMENDS that Rodgers’s Petition for 1 2 FACTUAL BACKGROUND 3 The following facts are taken from the California Court of Appeal’s February 28, 2023 4 opinion. Lodgment 17. This Court presumes the state court’s factual determinations to be 5 correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Miller-El 6 v. Cockrell, 537 U.S. 322, 340 (2003); see also Parke v. Raley, 506 U.S. 20, 35 (1992) (holding 7 findings of historical fact, including inferences properly drawn from such facts are entitled to 8 statutory presumption of correctness). 9 I. Prosecution Case 10 On the evening of July 18, 2019, J.Q. was sitting with family members in an outside patio area of his home on Estrella Avenue near El Cajon Boulevard when he heard 11 six rapidly-fired gunshots. He felt bullets fly past him, and heard one shot strike 12 something metal on his house. J.Q. did not see the shooter. One shot struck the 13 rear window of a nearby car in the same block. 14 S.S. and his wife were walking in the 4400 block of Estrella Avenue by a tire shop when S.S. saw Rodgers on his knees shooting a gun about six or seven times 15 towards El Cajon Boulevard. Rodgers, who was wearing a white motorcycle helmet 16 and a leather riding outfit, was with another man also wearing leather clothing. 17 The men were caught on surveillance video, and at trial, S.S. identified the distinctive helmet Rodgers was holding when he was detained by police officers 18 after another shooting days later.1 19 Officers later recovered shell casings from the area. An expert determined a 20 recovered bullet was from a nine-millimeter caliber firearm. Lodgment 6 at 1-2. 21 The next morning, a man at his Reynard Street home heard five gunshots. One 22 bullet went through his living room window and lodged about seven feet from where he was seated; another went into the stucco of a nearby wall. 23 About an hour later, Rodgers shot at and struck the vehicle of a woman driving on 24

25 26 1 A few hours later, officers responded to a report of four or five shots fired in downtown San Diego by two men on a Harley-Davidson motorcycle, one of whom had a white motorcycle helmet with a blue 27 stripe. Officers canvasing the area did not find any shell casings or bullets, nor did they find surveillance cameras that may have captured the incident. The shooting was the basis for count 9, on which the jury 1 Polk Avenue and Alabama Street in the North Park area of San Diego. The woman’s vehicle had a bullet hole in its front right tire and another in its rear left 2 passenger door. 3 About 30 minutes after the North Park vehicle shooting, a man at his 33rd Street 4 apartment hearing a commotion looked outside, and saw Rodgers, wearing all black leather clothing and the same white motorcycle helmet, hiding behind a van 5 and looking around as if to see if he was being watched. The man called police 6 after he saw Rodgers haphazardly fire two shots down the alley then scale the 7 gate of a nearby apartment. 8 Ballistics testing revealed that all shots fired by Rodgers that morning were from the same gun, a .38-caliber special or .380-caliber Magnum revolver. 9 During the evening of July 24, 2019, a man was in his Amherst Street home when 10 he heard a gunshot. He immediately ran outside and saw Rodgers, wearing gloves 11 and holding the white motorcycle helmet, running down an adjacent alleyway then 12 cutting through a church parking lot. Another man in the neighborhood heard the gunshot and within a couple of minutes saw Rodgers appear from the church 13 property cradling the helmet. Rodgers was intermittently walking and sprinting 14 and looking behind him. 15 Officers responded to a report of shots fired, and one of the officers at the scene 16 was given a description of an adult male wearing a grey long-sleeved shirt and black pants carrying a motorcycle helmet. The officer drove around the area and 17 a few blocks away discovered Rodgers matching the description. As soon as 18 Rodgers made eye contact with the officers, he began running away. Eventually 19 the officers caught up with and apprehended Rodgers, who was wearing a fanny pack containing four expended shell casings that smelled like burnt gun powder. 20 The fanny pack also smelled like discharged gunpowder. Rodgers had a bindle of 21 methamphetamine in his shirt pocket. He showed signs of being under the 22 influence of methamphetamine. 23 Police recovered a .380-caliber semiautomatic firearm on the side of a retaining wall in the area where Rodgers had been running down the alley by the other side 24 of the wall. The gun smelled of burnt gunpowder. The unexpended cartridges in 25 the firearm matched the expended cartridges found in Rodger’s fanny pack, and 26 an expert determined those expended cartridges had been fired from that weapon. A criminalist determined the gun had DNA from Rodgers and another man on it, 27 with Rodgers being the 95 percent contributor. 1 At trial, during which Rodgers represented himself, the parties stipulated that 2 Rodgers was previously convicted of felony assault with a deadly weapon. 3

II. Defense Case

4 Rodgers’s mother testified that on July 18 and July 19, 2019, Rodgers was working 5 as her caregiver; he stayed overnight on the 18th and did not leave the house on 6 the 19th. 7 Rodgers testified in his defense. He claimed the motorcycle helmet he was found carrying on July 24, 2019, did not belong to him, but that he had borrowed it. He 8 testified that on that day, he was near 7000 Amherst Street when he was 9 surrounded by a crowd of six or seven people and robbed at gunpoint. After the 10 gunman discharged his gun in the air, Rodgers sprayed the individuals with pepper spray, disbursing them. According to Rodgers, the gunman left behind the shell 11 cases, which Rodgers picked up. He eventually tried to flag down police officers 12 but ran off to see where the robbery suspect went. Rodgers later filed an online 13 police report of the matter.

14

III. Rebuttal

15 Following Rodgers’s July 24, 2019 arrest, a detective interviewed him for almost 16 an hour about the shootings of that day as well as the other shootings that had 17 occurred a week earlier. During that interview, Rodgers never told the detective that he had flagged down police officers because he was chasing a robber. 18 Lodgment No. 17 at 3-7. 19 20 PROCEDURAL BACKGROUND 21 On July 7, 2023, a jury found Rodgers guilty of three counts of discharging a firearm in 22 a grossly negligent manner, a violation of California Penal Code (Penal Code) § 246.3(a) (counts 23 one, five, and ten), three counts of possession of a firearm by a felon, a violation of Penal Code 24 § 29800(a)(1) (counts two, six, and eleven), two counts of possession of ammunition by a 25 prohibited person, a violation of Penal Code § 30305(a)(1) (counts three and seven), one count 26 of possession of a firearm by a possessor of a controlled substance, a violation of Health and 27 Safety Code § 11370.1(a) (count four), and three counts of shooting at an inhabited occupied dwelling house, a violation of Penal Code § 246 (counts eight, twelve, and thirteen). The jury 1 also found that the Rodgers personally used a deadly weapon, a firearm, within the meaning of 2 Penal Code § 1192.7(c)(23) in committing counts one, five, eight, ten, twelve, and thirteen. 3 Lodgment No. 2 at 64-76. Rodgers was sentenced to twelve years and four months in prison. 4 Id. at 6-9. 5 Rodgers appealed his conviction to the California Court of Appeal, Fourth Appellate 6 District. Lodgment No. 14. The Court of Appeal remanded the matter to the trial court for 7 resentencing but upheld his conviction in a written, unpublished opinion. Lodgment No. 17. 8 Rodgers then filed a petition for review in the California Supreme Court, which denied the 9 petition without citation of authority. Lodgment Nos. 18, 19. On December 1, 2023, the trial 10 court resentenced Rodgers to a prison term of ten years and four months, and reduced some 11 of his fines and fees. Lodgment No. 20. Rodgers did not seek collateral review in state court. 12 DISCUSSION 13 In his Petition, Rodgers contends that his Fourteenth Amendment right to due process 14 was violated when the prosecutor elicited testimony regarding his prior conviction for being a 15 felon in possession of a firearm which the trial court had excluded in pretrial proceedings. Pet. 16 at 6-8. He also alleges the trial court erroneously admitted evidence that he had been previously 17 convicted for being a felon in possession of a firearm. Id. 18 Respondent argues the prosecutor did not improperly elicit testimony regarding Rodgers’s 19 conviction for being a felon in possession of a firearm, the trial court did not err in admitting the 20 evidence, and the appellate court’s decision was neither contrary to, nor an unreasonable 21 application of, clearly established Supreme Court law. Ans. at 12-21. 22 A. Standard of Review 23 Rodger’s Petition is governed by the provisions of the Antiterrorism and Effective Death 24 Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a 25 habeas petition will not be granted with respect to any claim adjudicated on the merits by the 26 state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved 27 an unreasonable application of clearly established federal law; or (2) resulted in a decision that 1 the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). 2 A federal court is not called upon to decide whether it agrees with the state court’s 3 determination; rather, the court applies an extraordinarily deferential review, inquiring only 4 whether the state court’s decision was objectively unreasonable. See Yarborough v. Gentry, 540 5 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). 6 A court may grant relief under the “contrary to” clause if the state court applied a rule 7 different from the governing law set forth in Supreme Court cases, or if it decided a case 8 differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. 9 Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the “unreasonable 10 application” clause if the state court correctly identified the governing legal principle from 11 Supreme Court decisions but unreasonably applied those decisions to the facts of a particular 12 case. Id. Additionally, the “unreasonable application” clause requires that the state court 13 decision be more than incorrect or erroneous; to warrant habeas relief, the state court’s 14 application of clearly established federal law must be “objectively unreasonable.” See Lockyer 15 v. Andrade, 538 U.S. 63, 75 (2003). “[A] federal habeas court may not issue the writ simply 16 because that court concludes in its independent judgment that the relevant state-court decision 17 applied clearly established federal law erroneously or incorrectly. Rather, that application must 18 also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “A state court’s 19 determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded 20 jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 21 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 22 Where there is no reasoned decision from the state’s highest court, the Court “looks 23 through” to the last reasoned state court decision and presumes it provides the basis for the 24 higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). 25 If the dispositive state court order does not “furnish a basis for its reasoning,” federal habeas 26 courts must conduct an independent review of the record to determine whether the state court’s 27 decision is contrary to, or an unreasonable application of, clearly established Supreme Court 1 not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 2 8. “[S]o long as neither the reasoning nor the result of the state-court decision contradicts 3 [Supreme Court precedent,]” id., the state court decision will not be “contrary to” clearly 4 established federal law. Id. Clearly established federal law, for purposes of § 2254(d), means 5 “the governing principle or principles set forth by the Supreme Court at the time the state court 6 renders its decision.” Andrade, 538 U.S. at 72. 7 B. Prosecutorial Misconduct 8 Before Rodgers’s trial began, he filed a motion in limine seeking to exclude his prior 9 conviction for being a felon in possession of a firearm. Lodgment No. 1 at 91-94. The trial court 10 granted Rodgers’s motion and ruled that his prior conviction for felon in possession of a firearm 11 was not admissible unless Rodgers’s opened the door to the testimony. Lodgment 6 at 36. The 12 trial court cautioned Rodgers that he could “open the door” to the admission of the prior 13 conviction for being a felon in possession of a firearm if he testified by claiming, for example, 14 he “never shot a gun in [his] life.” Id. The trial court warned Rodgers that the prosecutor may 15 want to “bait” Rodgers into making such a statement and informed the prosecutor that he should 16 not do so and should ask for a sidebar if he believed that Rodgers “opened the door.” Id. 17 Rodgers testified at trial and during the cross-examination the prosecutor asked if the 18 gun found at the scene of the July 24, 2019 shooting belonged to Rodgers. Lodgment 10 at 19 183. Rodgers testified that gun was the one used to rob him and then volunteered “I don’t own 20 a gun.” Id. In response, the prosecutor asked Rodgers whether he had ever possessed a gun. 21 Id. Rodgers objected and argued this line of questioning violated the trial court’s in limine order. 22 Id. The trial court ruled that it was not a violation and explained to Rodgers that he had been 23 told that “if you opened the door to the question,” he would have to answer the question. Id. 24 at 184. The trial court instructed Rodgers to answer this question and Rodgers refused to do 25 so. Id. Rodgers objected again and the trial court overruled his objection. Id. at 185. After 26 refusing again to answer the question, the trial court asked Rodgers if he wanted the court to 27 “instruct the jury on this.” Id. After Rodgers continued to refuse to provide an answer, the trial 1 possession of a firearm in violation of California Penal Code § 29800(A)(1). Id. at 187. 2 Rodgers contends the prosecutor committed an act of misconduct when he “intentionally 3 elicit[ed] inadmissible testimony” in order to open the door to admitting into evidence Rodgers’s 4 prior conviction. Pet. at 7. Respondent contends that Rodgers’s argument that the prosecutor 5 committed misconduct in violation of the trial court’s in limine ruling necessarily fails because 6 the appellate court found that there was no violation of the trial court’s in limine ruling excluding 7 evidence of his prior conviction and that determination is binding on this Court. Ans. at 10-11. 8 In addition, Respondent contends that Rodgers’s claims of error are not cognizable because they 9 rest on the trial court’s evidentiary ruling, there is no due process violation because his prior 10 conviction was admissible and relevant to his credibility as a witness, there was no prosecutorial 11 error, and any error was harmless because of the “overwhelming evidence of his guilt.” Ans. at 12 6. 13 Rodgers presented this claim in the petition for review he filed in the California Supreme 14 Court. The California Supreme Court denied the petition for review without citation of authority. 15 Lodgment No. 19. This Court applies a presumption that the silent denial by the state supreme 16 court adopted the reasoning of the appellate court. Ylst, 501 U.S. at 803-04; see also Avila v. 17 Galaza, 297 F.3d 911, 918 (9th Cir. 2002) (federal habeas courts look to the last reasoned 18 decision of a state court which adjudicated a federal claim on the merits). 19 The state court of appeal analyzed this claim as follows: 20 A prosecutor may engage in misconduct by intentionally eliciting inadmissible testimony or evidence. (People v. Molano (2019) 7 Cal.5th 620, 675.) But such a 21 claim requires proof that the prosecutor acted deliberately or intentionally; there 22 is no misconduct where the prosecutor could not have anticipated a witness’s 23 testimony. (Ibid.; see People v. Valdez (2004) 32 Cal.4th 73, 125.) 24 Here, the prosecutor did not directly ask Rodgers whether he had been convicted of being a felon in possession of a firearm; the questions were directed at whether 25 the gun found after the July 24, 2019 shootings belonged to Rodgers. Rodgers 26 answered the question by claiming the gun belonged to the person that robbed 27 him, then volunteered, “I don’t own a gun.” It was permissible for the prosecutor to follow up by asking Rodgers whether he had ever owned or possessed guns, as 1 Rodgers’s testimony tended to suggest he was unfamiliar with firearms because he had never owned them. Nor can we say the prosecutor’s question violated the 2 court’s in limine ruling or its admonition to avoid “bait[ing]” Rodgers to open the 3 door to impeachment evidence. The court’s admonition pertained to T.W.’s 4 proffered testimony, not to the evidence in general or the excluded firearm possession conviction. 5 Even if we were to assume the prosecutor somehow committed misconduct in his 6 attempt to elicit Rodgers’s testimony on whether he had ever possessed a firearm, 7 we would not be persuaded to reverse. “Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with 8 such ‘ “unfairness as to make the resulting conviction a denial of due process.” ’ 9 [Citation.] By contrast, our state law requires reversal when a prosecutor uses 10 ‘deceptive or reprehensible methods to persuade either the court or the jury’ [citation] and ‘ “it is reasonably probable that a result more favorable to the 11 defendant would have been reached without the misconduct.” ’ ” (People v. Davis 12 (2009) 46 Cal.4th 539, 612; see also People v. Hoyt (2020) 8 Cal.5th 892, 942- 13 943.) We conclude … that the admission of Rodgers’s 2012 felon-in-possession- of-a-firearm conviction did not prejudice him. 14 Lodgment 17 at 11-12. 15 Under clearly established federal law, in order to find a prosecutor’s actions amount to 16 misconduct, “[i]t is not enough that the prosecutor’s remarks [or actions] were undesirable or 17 even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). Rather, a 18 prosecutor commits misconduct when his or her actions “‘so infect . . . the trial with unfairness 19 as to make the resulting conviction a denial of due process.’” Id. (quoting Donnelly v. 20 DeChristoforo, 416 U.S. 637 (1974)). “[T]he appropriate standard of review for such a claim on 21 writ of habeas corpus is ‘the narrow one of due process, and not the broad exercise of 22 supervisory power.’’ Id. (quoting Donnelly, 416 U.S. at 642). “[T]he touchstone of due process 23 analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability 24 of the prosecutor.” Smith v. Phillipps, 455 U.S. 209, 219 (1982). “To constitute a due process 25 violation, the prosecutorial misconduct must be ‘of sufficient significance to result in the denial 26 of the defendant’s right to a fair trial.’” Greer v. Miller, 483 U.S 756, 765 (1987) (citation 27 omitted). 1 Rodgers argues that the prosecution elicited testimony from him in violation of the in 2 limine order. The court of appeals noted that the trial court, during pretrial motions, excluded 3 evidence that Rodgers had been previously convicted of being a felon in possession of a firearm. 4 Lodgment 17 at 7. Rodgers objected during his trial when the prosecutor asked him if he had 5 ever owned a gun after Rodgers voluntarily testified that “I don’t own a gun.” Id. at 9. The 6 appellate court found that it was permissible for the prosecutor to follow up this line of 7 questioning because Rodgers’s “testimony tended to suggest he was unfamiliar with firearms 8 because he had never owned them.” Id. at 12. The appellate court concluded that this line of 9 questioning neither “violated the court’s in limine ruling [nor] its admonition to avoid ‘bait[ing]’ 10 Rodgers to open the door to impeachment evidence.” Lodgment 17 at 12. 11 The Ninth Circuit has noted that “a prosecutor’s clear violation of a state trial court’s in 12 limine ruling constitutes prosecutorial misconduct for the purposes of habeas relief.” Armenta v. 13 Kernan, 735 Fed.Appx. 255, 258 (9th Cir. 2018) (citation omitted). Rodgers fails to show that 14 the prosecutor violated the court’s in limine ruling and therefore, is unable to show any 15 misconduct. Moreover, the Court’s review of the trial record and appellate court’s analysis 16 confirms that the prosecutor did not violate the trial judge’s in limine order and the reasoning 17 of the appellate court was not unreasonable. 18 The trial court ruled on the motion in limine to exclude Rodgers’s prior conviction 19 instructing the prosecutor, “you may not introduce this evidence in your case in chief” but if 20 Rodgers “opens the door to that evidence, you may alert me sidebar saying, ‘Judge, I think I 21 should be allowed to use it now” and the trial court would “make that decision at the time.” 22 Lodgment No. 6 at 36. The trial court gave Rodgers a hypothetical to illustrate how he could 23 “open the door” to having this prior conviction for being a felon in possession of weapon be 24 admitted by testifying “I never shot a gun in my life.” Id. The trial court explained that a 25 response like this one would allow the prosecutor to ask a witness if they had ever seen Rodgers 26 shoot a gun and that could lead to the admissibility of evidence that Rodgers had been previously 27 convicted of being a felon in possession of a weapon. Id. 1 was found at the scene belonged to him and Rodgers testified “[t]hat was the gun I was robbed 2 with” and then volunteered “I don’t own a gun.” Lodgment No. 10 at 183. The prosecutor then 3 asked Rodgers “[y]ou’ve never owned guns?” Id. After Rodgers objected, the trial court ruled 4 that it was not a violation of the trial court’s in limine ruling and ordered Rodgers to answer the 5 question. Id. 6 Here, the Court agrees that the prosecutor did not violate the trial court’s in limine ruling. 7 First, the prosecutor did not “bait” Rodgers because the question posed by the prosecutor was 8 proper and unrelated to the in limine ruling. The problem arose because after answering the 9 prosecutor’s question, Rodgers volunteered that he did not own a gun and that voluntary 10 testimony was not in response to the question that was asked. Second, the prosecutor did not 11 ask Rodgers about his conviction for being a felon in possession of a firearm and did not directly 12 ask Rodgers whether he had been previously convicted of possessing a firearm. Rather, the 13 prosecutor asked whether he had “ever possessed guns,” which was a proper follow up question 14 to Rodgers’s testimony that he did not own a gun. Rodgers refused to answer the question and 15 refused to comply with the court’s ruling denying Rodgers’s objection and ordering him to answer 16 the question. Lodgment No. 10 at 184-187. It was Rodgers’s refusal to comply with the trial 17 court’s ruling that resulted in the admission of his prior conviction for being a felon in possession 18 of a weapon. Id. at 187. As such, there was no prosecutorial misconduct. 19 In Armenta, the Ninth Circuit held that where a trial court found there was no violation 20 of the in limine ruling, a prosecutorial misconduct claim would require the Ninth Circuit to 21 “interpret the trial court’s evidentiary order, and in doing so to make our own findings on state 22 issues of admissible evidence” and “[h]abeas relief may not be granted on this basis.” Armenta, 23 735 Fed.Appx. at 258 (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[W]e reemphasize 24 that it is not the province of a federal habeas court to examine state-court determinations of 25 state-law questions.”); Leinweber v. Tilton, 490 Fed.Appx. 54, 57 (9th Cir. 2012) (citing Estelle, 26 502 U.S. at 63) (“[Petitioner] complains of instances in which the state trial court admitted prior 27 bad act evidence over defense counsel's objection.... This contention does not address 1 admission of that evidence, an issue of state law.”). Here, like Armenta, the trial court found no 2 violation of the court’s in limine ruling and if this Court were to grant the relief sought by 3 Rodgers, it would require this Court to overrule the trial court’s evidentiary ruling. 4 Accordingly, the appellate court’s denial of this claim was neither contrary to, nor an 5 unreasonable application of, clearly established Supreme Court law. Yarborough, 540 U.S. at 4. 6 Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). The 7 Court therefore RECOMMENDS that Rodgers’s Petition be DENIED on this ground. 8 C. Admission of Prior Conviction 9 Rodgers contends that the trial court erred when it allowed evidence of his prior 10 conviction for being a felon in possession of a firearm to be admitted for impeachment purposes. 11 Pet. at 8-9. To the extent that Rodgers is claiming that the evidence was wrongly admitted 12 under state law, this claim is not cognizable for federal habeas review unless federal 13 constitutional rights are affected. Estelle, 502 at 67-68. An improper evidentiary ruling can 14 violate due process, which warrants habeas relief, but only if it renders a trial fundamentally 15 unfair. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citing Estelle, 502 U.S. at 67- 16 68). 17 Rodgers also contends that the admission of this evidence violated his Fifth and 18 Fourteenth Amendment due process rights because it “made the jury believe the trial court did 19 not think very highly of Petitioner or [his] credibility.” Pet. at 8. In response, Respondent argues 20 that there was no due process violation because Rodgers put his credibility at issue when he 21 chose to testify on his own behalf and this decision justified the admission of the conviction 22 because there is a “rational and constitutionally permissible inference to be drawn from the prior 23 conviction evidence, namely, that he was not credible.” Ans. at 15. 24 The court of appeal found that the trial court did not abuse its discretion in admitting 25 Rodger’s prior conviction for being a felon in possession of a weapon even though the trial court 26 did not express its reasoning for concluding that Rodger’s answers opened the door to this 27 evidence. Lodgment 17 at 14-15. The court of appeal explained that the trial court “could have 1 to the jury that he was unfamiliar with them, thereby permitting questioning on whether he had 2 ever possessed a firearm.” Id. at 15. As a result, it was reasonable to include this evidence 3 when Rodgers refused to answer because “the court should not permit a defendant to testify 4 with a ‘false aura of veracity.’” Id. (citing People v. Hinton, 37 Cal.4th 839, 888 (2006)). 5 The court of appeal then proceeded to the prejudice analysis, finding that under the 6 Watson state law prejudice standard, they saw “no reasonable probability the outcome would 7 have been different” if the jury hypothetically had not be instructed that Rodgers had a prior 8 conviction for being a felon in possession of a weapon. Id. at 17 (citing People v. Watson, 46 9 Cal.2d 818, 836 (1956)). The appellate court went on to explain that the arguments raised by 10 Rodgers in his state court petition did “not compel us to assess prejudice under the federal 11 Chapman standard.” Id. at 18. 12 The court of appeal analyzed Rodgers’s federal claims as follows: 13 Rodgers claims the error violated his federal Fifth and Fourteenth Amendment constitutional rights to due process and is reversable under the more exacting 14 harmless beyond a reasonable doubt standard of Chapman v. California (1967) 15 386 U.S. 18 (Chapman). He relies on a federal Fifth Circuit Court of Appeal case 16 that does not bind us (People v. Williams (2013) 56 Cal.4th 630, 668) and People v. Garceau (1993) 6 Cal.4th 140, disapproved on another ground in People v. 17 Yeoman (2003) 31 Cal.4th 93, 117-118.) We are not persuaded. Garceau involved 18 evidence of uncharged offenses admitted pursuant to a jury instruction allowing 19 the jury to consider the evidence “ ‘for any purpose, including but not limited to’ ” the defendant’s “ ‘character or any trait of his character.’ ” (Id. at p. 186, italics 20 omitted.) The court acknowledged the “potentially devastating impact” of such 21 evidence, but held its admission was harmless beyond a reasonable doubt given 22 the trial evidence. (Id. at p. 187.) The court’s ruling in this case bears no resemblance to the court’s error in Garceau. Rodgers’s argument does not compel 23 us to assess prejudice under the federal Chapman standard. 24

25 Id. at 17-18. 26 / / / 27 / / / / / / 1 There is no clearly established Supreme Court law that “addresses whether the admission of a defendant’s criminal history or prior bad acts would violate due process” and 2 the “Supreme Court has expressly reserved the question of whether using evidence of a 3 defendant’s past crimes to show he has a propensity for criminal activity could ever violate due 4 process.” Kipp v. Davis, 971 F.3d 939, 951-52, n. 8 (9th Cir. 2020) (citing Alberni v. McDaniel, 5 458 F.3d 860, 864 (9th Cir. 2006); Estelle, 502 U.S. at 75, n. 5 (noting that the Court 6 “express[ed] no opinion on whether a state law would violate the Due Process Clause if it 7 permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged crime”). 8 As the Ninth Circuit has observed: 9 The Supreme Court has made very few rulings regarding the admission of evidence 10 as a violation of due process. Although the Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair 11 (citation omitted), it has not yet made a clear ruling that admission of irrelevant 12 or overtly prejudicial evidence constitutes a due process violation sufficient to 13 warrant issuance of the writ. Absent such “clearly established Federal law,” we cannot conclude that the state court’s ruling was an unreasonable application.” 14 Holley, 568 F.3d at 1101 (citing Williams v. Taylor, 529 U.S. 362, 375 (2000)). 15 Ninth Circuit precedent “squarely forecloses” the claim that admission of propensity 16 evidence violates due process. Mejia v. Garcia, 534 F.3d 1036 1046 (9th Cir. 2008); see also 17 Chavarria v. Hamlet, 472 Fed.Appx. 749, 750 (9th Cir. 2012); Greel v. Martel, 472 Fed.Appx. 18 502, 504 (9th Cir. 2012). Because there is no clearly established Supreme Court law holding 19 the admission of propensity evidence violates due process, the state court’s rejection of this 20 claim was neither contrary to, nor an unreasonable application of, clearly established Supreme 21 Court law. Carey v. Musladin, 549 U.S. 70, 77 (2006); Tapia-Felix v. Ndoh, 2020 WL 3533551, 22 at *7 (N.D. Cal. Jan. 21, 2020) (“There is [] no clearly established Supreme Court law prohibiting 23 the admission of propensity evidence violates due process.”) 24 Aside from the issue of clearly established federal law, “[a] habeas petitioner bears a 25 heavy burden in showing a due process violation based on an evidentiary decision.” Boyde v. 26 Brown, 404 F.3d 1159, 1172 (9th Cir. 2005), as amended, 421 F.3d 1154 (9th Cir. 2005). Again, 27 “’[t]he admission of evidence does not provide a basis for habeas relief unless it rendered the 1 trial fundamentally unfair in violation of due process.’ ” Holley, 568 F.3d at 1101. “Only if there 2 are no permissible inferences the jury may draw from evidence can its admission violate due 3 process.” Alcala v. Woodford, 334 F.3d 862, 887 (9th Cir. 2003). 4 The court of appeal specifically found that “[b]y taking the stand and offering an alibi 5 defense denying guilt for the offenses, Rodgers put his credibility squarely at issue, and as a 6 result exposed himself to being impeached with his conviction for being a felon in possession of 7 a firearm.” Lodgment 17 at 15-16. Moreau v. Spearman, 2020 WL 1547440, at * 8 (citing Boyde, 8 404 F.3d at 1174.) (“[Petitioner] put his credibility at issue by choosing to testify,” and there 9 was a “rational and constitutionally permissible inference to be drawn from the prior conviction 10 evidence, namely that petitioner was not credible.”). As discussed above, evidence of Rodgers’s 11 prior conviction involving the possession of a weapon was clearly relevant to the jury’s decision 12 as to the credibility of Rodgers’s alibi that was part of his testimony. 13 For the reasons set forth above, the appellate court’s denial of this claim was neither 14 contrary to, nor an unreasonable application of, clearly established Supreme Court law. 15 Yarborough, 540 U.S. at 4. Nor was it based on an unreasonable determination of the facts. 16 28 U.S.C. § 2254(d)(2). The Court therefore RECOMMENDS that Rodgers’s Petition be 17 DENIED on this ground. 18 D. Harmless Error 19 Even assuming the prosecutor committed misconduct or the trial court’s ruling allowing 20 the admission of the prior conviction for being a felon in possession of a firearm violated due 21 process, relief is only available if Rodgers can establish that the misconduct had a “substantial 22 and injurious effect or influence determining the jury’s verdict.” Shaw v. Terhune, 380 F.3d 23 473, 478 (9th Cir. 2004) (applying harmless error test of Brecht v. Abrahamson, 507 U.S. 619, 24 637-38 (1993) to prosecutorial misconduct claims). In this case, during closing argument, the 25 prosecutor referenced that Rodgers was a felon only one time and did not identify the nature of 26 that conviction. Lodgment No. 11 at 84. The Court notes that Rodgers stipulated to the 27 admission of his prior conviction for assault with a deadly weapon, so the jury already knew 1 of Rodgers’s prior conviction for being a felon in possession of a firearm would not have had a 2 substantial and injurious effect on the jury. Lodgment No. 8 at 28. 3 In addition, even if there was error in admitting the prior conviction for being a felon in 4 possession of a firearm, it was not probable that if this error had not occurred Rodgers would 5 have received a more favorable result from the jury in light of the overwhelming evidence of his 6 guilt. Allen v. Woodford 395 F.3d 979, 992 (9th Cir.2005), cert. denied 546 U.S. 858 (2005) 7 (“[T]o the extent that any claim of error ... might be meritorious, we would reject that error as 8 harmless because the evidence of [petitioner's] guilt is overwhelming.”) The trial evidence 9 included evidence that Rodgers’s DNA was a ninety-five (95) percent contributor to the DNA 10 found on the weapon that was used in four of the shootings. Lodgment 8 at 180. The evidence 11 also established that the expended cartridges found at the scene of four of the shootings were 12 fired from the weapon that had Rodgers’s DNA. Id. at 128; Lodgment 10 at 63. 13 For these reasons, the Court finds Rodgers has failed to establish that the admission of 14 the prior conviction for being a felon in possession of a weapon had a substantial or injurious 15 impact on the jury’s verdict. Brecht 507 U.S. at 637-38. Therefore, even if the Court were to 16 find that there was a constitutional violation with regard to the admission of the prior conviction 17 for being a felon in possession of a weapon, the Court finds this error was harmless. 18 CONCLUSION AND RECOMMENDATION 19 For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Court 20 issue an Order: (1) approving and adopting this Report and Recommendation, and (2) directing 21 that Judgment be entered denying the Petition. 22 IT IS HEREBY ORDERED that any written objections to this Report must be filed with 23 the Court and served on all parties no later than December 20, 2024. The document should 24 be captioned “Objections to Report and Recommendation.” 25 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court 26 and served on all parties no later than January 10, 2025. The parties are advised that failure 27 to file objections within the specified time may waive the right to raise those objections on 1 ||Dated: 11/21/2024 Darbar Haye 2 Hon. Barbara L. Major 3 United States Maaistrate Judae

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