1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH O. OWENS, JR., No. 2:15-cv-1286 DJC AC P 12 Petitioner, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 DERRICK CARRAWAY, Regional Parole Administrator,1 15 Respondent. 16 17 Petitioner is a California state prisoner proceeding pro se with an application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the second amended 19 petition, ECF No. 29, which challenges petitioner’s 2011 conviction for murder, robbery, and 20 burglary. Respondent has answered. ECF No. 48. Petitioner did not file a traverse. 21 BACKGROUND 22 I. Proceedings in the Trial Court 23 A. Preliminary Proceedings 24 Petitioner and three co-defendants—Maurice Reed, Dejon Murray, and Tamika Reed— 25 were charged in Sacramento County with first degree felony murder with special circumstances 26

27 1 Petitioner has been released to parole during the pendency of this case. See ECF No. 42. Accordingly, the Clerk of Court will be directed to substitute the Regional Parole Administrator 28 as the proper respondent. See ECF No. 48 at 2, n.1. 1 and related charges. Tamika Reed entered into a plea bargain in which she received a sentence of 2 three years and eight months for accessory and grand theft, and agreed to testify against the three 3 men. Petitioner, Maurice Reed, and Dejon Murray were tried by separate juries in a consolidated 4 proceeding. 5 B. The Evidence Presented at Trial2 6 1. Prosecution Case 7 a. Victims of Robbery and Burglary 8 Roommates Derek Martin and Eric Warren were having dinner at their apartment on 9 Friday, March 26, 2010, when there was a knock at their door. Warren thought it was their 10 friend, Salvador Heredia-Arriaga, who was going to take Warren out to a bar. Instead, two armed 11 men intruded. 12 The first man was Maurice Reed, who, about one week before, had come to the apartment 13 to buy marijuana from Warren. Reed carried a revolver. The second man was Dejon Murray, 14 carrying a semiautomatic handgun. About two days before, Murray had come to the apartment 15 with petitioner to buy marijuana. Petitioner had previously lived at the same apartment complex, 16 and he had on several occasions socialized with and bought marijuana from Warren. 17 Reed and Murray barked orders and death threats at Martin and Warren, gathered up 18 marijuana, cash, wallets, and video games and equipment, herded Martin and Warren to the 19 bathroom, and then demanded four minutes for an escape. While in the bathroom, Warren heard 20 the front door open. Realizing it was Heredia-Arriaga, Warren yelled, “Sal, give it up. We are 21 being robbed.” Warren and Martin heard scuffling, and then one gunshot. Emerging from the 22 bathroom, Warren and Martin discovered a fallen Heredia-Arriaga, who died of a gunshot wound 23 to the chest. 24 b. Witness Desirea Cunningham 25 Desirea Cunningham, petitioner’s girlfriend and the mother of their child, told police that 26 she heard petitioner call his cousin, Reed, on the night of the homicide. Petitioner told Reed that 27 2 The following factual summary is largely adapted from the opinion of the California Court of 28 Appeal, ECF No. 47-12 at 3-6. 1 he had a “lick” (a robbery), mentioning that a person who lived at petitioner’s former apartment 2 complex had money, a plasma TV, and an Xbox. Petitioner told Reed to meet him “somewhere” 3 near the apartments. 4 At trial, Cunningham acknowledged having made these statements, but said they were lies 5 prompted by her anger over “another woman.” 6 c. Accomplice/Accessory Tamika Reed 7 Tamika Reed (Tamika) was Maurice Reed’s sister, petitioner’s cousin, and the girlfriend 8 of a good friend of Dejon Murray’s. As noted above, she was charged with special circumstance 9 murder but received a favorable plea bargain in exchange for testifying against these three. 10 On the night of the shooting, Tamika was at a party for her boyfriend, which defendants 11 Reed and Murray also attended, when Reed asked Tamika to drive him to get some marijuana. 12 As the two Reeds were heading out, defendant Reed had Tamika pick up Murray, who had just 13 obtained from another man something wrapped in a white shirt. 14 Tamika and her crew subsequently engaged with petitioner and followed his car to an 15 apartment complex. There, they all parked. Petitioner told defendants Reed and Murray to knock 16 on a certain door and provide some sort of word or code. Petitioner stayed behind, talking to 17 Tamika, and then walked off. 18 A short time later, petitioner returned, walking rapidly to his car and driving off hurriedly. 19 Maurice Reed followed hastily in short order, jumping in Tamika’s car and saying, “Go, go, go.” 20 On the way out, they stopped for Murray, who flopped in the backseat armed with a gun in one 21 hand and a PlayStation in the other. 22 Tamika’s trio drove to her apartment, where petitioner joined them about five or 10 23 minutes later. At Tamika’s apartment, Reed gave a “cowboy” (revolver) gun to Murray, which 24 was unlike the gun Tamika had seen Murray with during their getaway. The three men argued 25 and lamented why Murray had shot the man, with Murray responding, “He was wrestling with 26 you [(i.e., Reed)]. What was I supposed to do . . . ?” Then, they divided the loot. 27 //// 28 //// 1 d. Physical Evidence 2 Found at the scene of the shooting were an ejected (fired) .40-caliber semiautomatic bullet 3 casing, a fired bullet embedded in a wall, and an unfired .40-caliber bullet. 4 A criminalist opined that a fingerprint taken from a videogame case at the scene matched 5 Murray’s. 6 When Murray was arrested about four weeks after the shooting, he was carrying a loaded 7 .44-caliber revolver (which would not eject bullet casings like the .40-caliber semiautomatic 8 casing found at the scene). Incriminating text messages were found on Murray’s cell phone. 9 e. Maurice Reed’s Admissions 10 In a jail interview with a local television reporter, Reed stated that he went to the Martin- 11 Warren apartment to rob the men, not to kill them; he also wrote a letter of apology to the 12 Heredia-Arriaga family. 13 2. Defense Case 14 Petitioner did not call any witnesses. 15 Co-defendant Dejon Murray presented two witnesses, who testified in the presence of 16 petitioner’s jury: a clinical psychologist who testified to Murray’s impaired intellectual 17 functioning, and Murray’s aunt, Channa Gates, who testified that Tamika had said petitioner and 18 Maurice Reed had gotten Murray “all liquored up and all drugged up” and took him to the 19 robbery. Tamika had said that Murray was not the shooter, and that petitioner had set up the 20 robbery. Petitioner’s counsel cross-examined the latter witness. 21 C. Outcome 22 Petitioner was found guilty of first degree felony murder with special circumstances 23 (murder committed in the course of a robbery and a burglary), two counts of robbery in concert, 24 and one count of burglary. The jury found true an allegation that petitioner was vicariously 25 armed. 26 Petitioner was sentenced to life without parole, plus a term of years. 27 //// 28 //// 1 II. Post-Conviction Proceedings 2 Petitioner timely appealed, and the California Court of Appeal affirmed the judgment of 3 conviction on September 24, 2013. ECF No. 47-12. The California Supreme Court denied 4 review on January 16, 2014. ECF No. 47-14. 5 Petitioner’s state habeas filings have been numerous.3 Here the court notes only those 6 collateral proceedings which bear on the posture of the federal claims. 7 Prior to the commencement of this federal habeas action in June 2015, petitioner filed two 8 habeas petitions in the Sacramento County Superior Court. ECF Nos. 48-15, 48-19. Both were 9 denied before the initial federal petition was filed, ECF Nos. 48-16, 48-20, but petitioner had not 10 yet sought relief in the higher state courts. The initial federal petition was accordingly 11 accompanied by a motion for stay and abeyance pending exhaustion of state court remedies. ECF 12 No. 2. That motion was eventually granted. ECF No. 20. Petitioner filed a second amended 13 federal petition on March 22, 2019. By order filed on September 28, 2021, the assigned district 14 judge found that the claims of the second amended petition had been fairly presented to the 15 California Supreme Court in Case Nos. 5234384 and 5232389.4 ECF No. 39. Accordingly, it 16 was ordered that this case proceed on the basis of the second amended complaint. Id. 17 Respondent was ordered to answer, and the answer was filed on February 21, 2024. 18 In addition to exhausting his federal claims, during the pendency of this case petitioner 19 sought relief in state court on state law grounds. Beginning in 2020, after the California Supreme 20 Court’s ruling in In re Scroggins, 9 Cal. 5th 667 (2020), petitioner collaterally challenged the 21 jury’s special circumstance finding under People v. Banks, 61 Cal. 4th 788 (2015) and People v. 22 Clark, 63 Cal. 4th 522 (2016). Banks and Clark had narrowed application of the felony murder 23 special circumstance in the accomplice liability context. Scroggins then held that defendants 24 could challenge the sufficiency of the evidence of pre-Banks and Clark special circumstance 25 findings by means of habeas petitions. The California Court of Appeal granted habeas relief to 26

27 3 See ECF No. 47 (lodged state court record); ECF No. 48 (Answer) at 3-4 (chronology of state habeas filings). 28 4 See ECF Nos. 47-35, 47-37. 1 petitioner on August 22, 2022. ECF No. 47-38. The court found that substantial evidence did not 2 support a conclusion that petitioner acted with reckless indifference to human life, which is 3 necessary for the felony-murder special circumstance to apply to an accomplice who is not the 4 actual killer. Id. at 10, 16-17. The Court of Appeal therefore vacated the special circumstance, 5 id., and petitioner was resentenced accordingly. Petitioner was released to parole in July 2023. 6 ECF No. 42 (notice of change of address). 7 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA 8 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 9 1996 (“AEDPA”), provides in relevant part as follows: 10 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be 11 granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 12 (1) resulted in a decision that was contrary to, or involved an 13 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 14 (2) resulted in a decision that was based on an unreasonable 15 determination of the facts in light of the evidence presented in the State court proceeding. 16 17 The statute applies whenever the state court has denied a federal claim on its merits, 18 whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99 19 (2011). State court rejection of a federal claim will be presumed to have been on the merits 20 absent any indication or state-law procedural principles to the contrary. Id. (citing Harris v. Reed, 21 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a 22 decision appearing to rest on federal grounds was decided on another basis)). “The presumption 23 may be overcome when there is reason to think some other explanation for the state court's 24 decision is more likely.” Id. at 99-100. 25 The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal 26 principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 27 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established 28 Federal law,” but courts may look to circuit law “to ascertain whether…the particular point in 1 issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 2 (2013). 3 A state court decision is “contrary to” clearly established federal law if the decision 4 “contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529 5 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state 6 court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to 7 the facts of the particular state prisoner’s case.” Id. at 407-08. It is not enough that the state court 8 was incorrect in the view of the federal habeas court; the state court decision must be objectively 9 unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). 10 Review under § 2254(d) is limited to the record that was before the state court. Cullen v. 11 Pinholster, 563 U.S. 170, 180-181 (2011). The question at this stage is whether the state court 12 reasonably applied clearly established federal law to the facts before it. Id. at 181-182. In other 13 words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 182. 14 Where the state court’s adjudication is set forth in a reasoned opinion, §2254(d)(1) review is 15 confined to “the state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d 16 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims 17 summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a 18 state court denies a claim on the merits but without a reasoned opinion, the federal habeas court 19 must determine what arguments or theories may have supported the state court’s decision, and 20 subject those arguments or theories to § 2254(d) scrutiny. Richter, 562 U.S. at 102. 21 DISCUSSION 22 I. Claim One: Actual Innocence 23 A. Petitioner’s Allegations and Pertinent State Court Record 24 Petitioner alleges that he is actually innocent of committing the charged crimes, and 25 argues that in light of the evidence presented at trial and his newly presented evidence no 26 reasonable juror could find him guilty beyond a reasonable doubt. ECF No. 29 at 4. He attacks 27 the veracity and reliability of the witnesses against him and the strength of inferences to be drawn 28 from the evidence. Id. at 7-8. The exhibits referenced in this claim include excerpts of the 1 Clerk’s Transcript documenting that phone records with which petitioner was confronted during a 2 videotaped interview with police had not been entered into evidence, id. at 17-19; various 3 excerpts of the trial transcript highlighting problems with witness credibility and alleged failures 4 of proof, id. at 21-39, 45-57, 65-77; a handwritten statement from a person who reports that 5 Desirea Cunningham had been upset about petitioner’s infidelity and motivated to get revenge, id. 6 at 40-42; and a police report of a witness interview, id. at 59-63. 7 Petitioner filed a supplement which seeks to add an additional exhibit in support of this 8 claim. ECF No. 38.5 This exhibit is a portion of a transcribed jailhouse phone call between 9 petitioner and Ms. Cunningham. Id. at 3-8. In the conversation, Cunningham appears to 10 acknowledge unspecified lies that she told because she was angry with petitioner. The transcript 11 bears a document header that reads “RE: PEOPLE V MURRAY, REED, REED, OWENS 12 CASE: 10F02610.” Id. 13 B. The Clearly Established Federal Law 14 There is no “clearly established federal law” that recognizes a substantive constitutional 15 right not to be criminally convicted if innocent. See Herrera v. Collins, 506 U.S. 390, 404 (1993); 16 Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 71-72 (2009) (recognizing that the Supreme 17 Court has not decided the issue). In procedural contexts where “actual innocence” may be 18 relevant to federal habeas proceedings, the standard is high: a petitioner must present reliable new 19 evidence, in light of which no reasonable jury would have convicted him. See Schlup v. Delo, 20 513 U.S. 298 (1995) (actual innocence as exception to procedural default), McQuiggin v. Perkins, 21 569 U.S. 383 (2013) (actual innocence as basis for equitable tolling of statute of limitations). 22 C. The State Court’s Ruling 23 The California Supreme Court denied relief without comment or citation. ECF Nos. 26, 24 40. This court therefore “looks through” the silent denial to the last reasoned state court decision. 25 See Ylst v. Nunnemaker, 501 U.S. 797 (1991). Because the superior court issued the only 26

27 5 The previously assigned district judge specifically referred the request to supplement to the undersigned. ECF No. 39. Petitioner’s request is hereby granted to the extent that the transcript 28 at ECF No. 38 is considered as part of the proffered factual basis for Claims One and Three. 1 reasoned decision adjudicating this claim,6 that is the decision reviewed for reasonableness under 2 § 2254(d). See Bonner v. Carey, 425 F.3d 1145, 1148 n.13 (9th Cir. 2005). 3 The superior court ruled in pertinent part as follows: 4 To state a prima facie case, a habeas petition must state, with particularity, the facts upon which the petitioner is relying to justify 5 relief, and be supported by reasonably available documentary evidence; vague conclusory allegations are insufficient to warrant a 6 writ. (In re Swain (1949) 34 Cal.2d 300, 3030-304; People v. Duvall (1995) 9 Cal.4th 464, 474; In re Harris (1993) 5 Cal.4th 7 813, 827 fn.5.) In order to be a cognizable habeas corpus claim, newly discovered evidence must undermine the entire prosecution 8 case and point unerringly to innocence or reduced culpability. (In re Clark (1993) 5 Cal.4th 750, 766.) It is not sufficient if the evidence 9 might have weakened the prosecution’s case or presented a more difficult question for the trier of fact. 10 In this case, Petitioner has presented evidence that is neither new 11 nor points unerringly to his innocence. Instead, Petitioner’s claim is based on excerpts of trial and preliminary hearing testimony that he 12 interprets as showing that the prosecution’s witnesses presented biased, inconsistent, and unreliable testimony. Petitioner also 13 attaches a declaration made by Josephine Porter in which she claims that the Petitioner’s girlfriend Desirea Cunningham, who 14 told police that on the night of the murder she heard Petitioner talking about a robbery and the target, told her that the Petitioner 15 was cheating on her, and that it is her belief that she wanted revenge on him for the affair. She also claims that Ms. Cunningham 16 told her that the police pressured her and she switched her story. The declaration is inadmissible hearsay and speculation. Even if it 17 was admissible, this is not new evidence. As shown in Exhibits 2 and 11 attached to the petition, both the prosecutor and Petitioner’s 18 attorney questioned Ms. Cunningham on this point, including her anger toward Petitioner over the affair and whether she gave false 19 statements to the police. All of this material is part of the record and as such, not newly discovered evidence. 20 21 ECF No. 47-16 at 6-7. 22 //// 23 //// 24 6 Petitioner first brought his actual innocence claim in three state habeas petitions filed in the 25 Sacramento Superior Court. ECF Nos. 47-15, 47-19, 47-21. The superior court rejected his 26 claim in a reasoned decision. ECF Nos. 47-16, 47-20, 47-22. Petitioner renewed this claim in two subsequent petitions to the Third District Court of Appeals, which were denied. ECF Nos. 27 47-33, 47-34, 47-35, 47-36. Petitioner then presented his claim to the California Supreme Court twice. ECF Nos. 47-39, 47-41. The California Supreme Court summarily denied his claim. ECF 28 Nos. 47-40, 47-42. 1 D. Relief Is Barred By 28 U.S.C. § 2254 2 As noted above, the U.S. Supreme Court has never held that actual innocence provides a 3 free-standing constitutional basis for relief from a non-capital conviction. See Herrera, 506 U.S. 4 at 404; Osborne, 557 U.S. at 71-72. Where there is no “clearly established law” within the 5 meaning of § 2254(d), there can be no unreasonable application of federal law by the state court. 6 See Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam). Accordingly, AEDPA bars 7 relief on petitioner’s innocence claim.7 8 II. Claim Two: Judicial Bias 9 A. Petitioner’s Allegations and Pertinent State Court Record 10 Petitioner alleges that the trial judge demonstrated bias and “embroilment towards Mr. 11 Owens” by (1) permitting petitioner’s jury to hear the testimony of Channa Gates, co-defendant 12 Murray’s witness; (2) interfering with the cross-examination of Tamika Reed; and (3) permitting 13 the prosecution to present a videorecording of an interview that relied on phone records which 14 were not themselves in evidence. ECF No. 29 at 4, 10-11.8 15 B. The Clearly Established Federal Law 16 Due process requires a fair trial in a fair tribunal. In re Murchison, 349 U.S. 133, 136 17 (1955). This includes a judge with no actual bias against the defendant or interest in the outcome 18 of the case. Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). Judicial rulings alone almost never 19 establish bias; a significant “extrajudicial source” factor must be present. Liteky v. United States, 20 510 U.S. 540, 555 (1994). To prevail on a claim of judicial bias, a petitioner must present facts

21 7 Moreover, the superior court correctly found that petitioner’s claim of innocence is not supported by new evidence. To demonstrate innocence in the federal habeas context, in order to 22 defeat a procedural defense, a petitioner must produce “new reliable evidence — whether it be 23 exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324. All of the evidentiary and credibility 24 issues argued here were available at trial and were in fact argued at trial. All exhibits to the petition, with the exception of Ms. Porter’s handwritten statement, are materials from proceedings 25 in the trial court. The Porter letter addresses information that was well known to the defense and 26 to the jury: that Desirea Cunningham had retracted her statements implicating petitioner, and claimed she had lied because she was angry about his infidelity. The transcript at ECF No. 38 is 27 similarly cumulative. 8 A fourth alleged instance of bias goes to the special circumstance finding. ECF No. 29 at 11. 28 That issue is moot because the special circumstance finding was vacated. See supra at pp. 4-5. 1 sufficient to “overcome a presumption of honesty and integrity in those serving as adjudicators.” 2 Withrow v. Larkin, 421 U.S. 35, 47 (1975). There is no constitutional violation without a 3 showing of facts that objectively demonstrate a serious risk of actual bias. See Caperton v. A.T. 4 Massey Coal Co., Inc., 556 U.S. 868, 883-84 (2009). 5 C. The State Court’s Ruling 6 The superior court issued the only reasoned decision adjudicating this claim,9 and that is 7 the decision subject to review here. See Bonner, 425 F.3d at 1148 n.13. The superior court 8 denied the claim on the ground that it was barred in habeas because it could have been, but was 9 not, raised on appeal. ECF No. 47-16 at 6 (citing In re Harris, 5 Cal. 4th 813, 829 (1993); In re 10 Dixon, 41 Cal. 2d 756, 759 (1953); In re Waltreus, 62 Cal. 2d 218, 225 (1965)). 11 D. The Claim Should Be Summarily Denied on the Merits 12 Because this claim was denied in state court on state law procedural grounds, it may be 13 procedurally defaulted in federal court. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). A 14 procedurally defaulted claim may, however, be denied on the merits. See Lambrix v. Singletary, 15 520 U.S. 518, 525 (1997). To the extent there was no merits adjudication of the federal claim in 16 state court, § 2254(d) limitations on relief do not apply and the undersigned considers the claim 17 de novo. See Pirtle v. Morgan, 313 F.3d 1160, 1167-1168 (9th Cir. 2002). 18 Petitioner has not presented a prima facie case of judicial bias. Adverse rulings by the 19 judge do not support an inference that the judge was biased against petitioner, let alone biased for 20 reasons extrinsic to the proceeding, or that he had an interest in the outcome. See Liteky, 510 21 U.S. at 555; Taylor v. Regents of Univ. of Calif., 993 F.2d 710, 712 (9th Cir. 1993), cert. denied, 22 510 U.S. 1076 (1994) (adverse ruling does not show judicial bias); Hasbrouck v. Texaco, Inc., 23 842 F.2d 1034, 1046 (9th Cir. 1987), aff'd on other grounds, 496 U.S. 543 (1990) (“[e]ven if 24 9 Petitioner first brought his judicial bias claim in two state habeas petitions filed in the 25 Sacramento Superior Court. ECF Nos. 47-15, 47-19. The superior court rejected his claim in a 26 reasoned decision. ECF Nos. 47-16, 47-20. Petitioner renewed this claim in two subsequent petitions to the Third District Court of Appeals, which were denied. ECF Nos. 47-33, 47-34, 47- 27 35, 47-36. Petitioner then presented his claim to the California Supreme Court twice. ECF Nos. 47-39, 47-41. The California Supreme Court summarily denied his claim. ECF Nos. 47-40, 47- 28 42. 1 [trial] court’s rulings were erroneous . . . , they could not justify a finding of judicial bias”).10 2 Petitioner has alleged no facts which would indicate that the judge had prejudged any issue in the 3 case or had any pecuniary or personal interest in the outcome of the case. See Stivers v. Pierce, 4 71 F.3d 732, 741 (9th Cir. 1995). Accordingly, this claim fails under any standard of review. 5 III. Claim Three: Ineffective Assistance of Counsel 6 A. Petitioner’s Allegations and Pertinent State Court Record 7 Petitioner contends that his Sixth Amendment rights were violated by ineffective 8 assistance from his lawyer. ECF No. 29 at 5. First, petitioner alleges that counsel unreasonably 9 failed to call two witnesses at trial: (1) David Nelson, a friend of Dejon Murray’s who was 10 interviewed by police about his interactions with Murray immediately prior to the robbery11; and 11 (2) “Ms. Porter,” Desirea Cunningham’s friend who allegedly wrote the handwritten statement at 12 Exhibit 8 to the petition.12 Id. at 12. Second, petitioner alleges that counsel unreasonably failed 13 to object to the judge’s improper response to a jury question during deliberations. The jury had 14 asked whether the phone records referenced in a recorded interview of petitioner were themselves 15 in evidence, and sought clarification regarding a stipulation as to the facts in the video. The court 16 responded that no phone records were in evidence, and that the stipulation “was that the video 17 accurately reflected the events that took place in the interview room.” Id. at 12-13 (allegations), 18 17-19 (exhibit). Additionally, petitioner alleges that counsel unreasonably failed to object to 19 Tamika Reed’s testimony that petitioner had set up the robbery. 20 B. The Clearly Established Federal Law 21 To establish a constitutional violation based on ineffective assistance of counsel, a 22 petitioner must show (1) that counsel’s representation fell below an objective standard of 23 reasonableness, and (2) that counsel’s deficient performance prejudiced the defense. Strickland v. 24 10 There is no basis for a predicate finding of error here. On direct review, the California Court 25 of Appeal found that Channa Gates’ testimony was admissible against petitioner as a prior 26 consistent statement of Tamika Reed following Tamika’s impeachment. ECF No. 47-12 at 26-28. The appellate court also found no error in the trial court’s response to the jury question. Even 27 assuming error, the appellate court found it harmless. Id. at 24-26. 11 The report of the interview is petitioner’s Exhibit 11, ECF No. 29 at 59-63. 28 12 See ECF No. 29 at 40-42. No signature is visible. 1 Washington, 466 U.S. 668, 692, 694 (1984). In assessing counsel’s performance, the court must 2 apply a strong presumption that counsel’s representation fell within the wide range of reasonable 3 professional assistance. Id. at 689. Prejudice means that the error actually had an adverse effect 4 on the defense. There must be a reasonable probability that, but for counsel's errors, the result of 5 the proceeding would have been different. Id. at 693-94. The court need not address both prongs 6 of the Strickland test if the petitioner's showing is insufficient as to one prong. Id. at 697. “If it is 7 easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which 8 we expect will often be so, that course should be followed.” Id. 9 C. The State Court’s Ruling 10 The superior court issued the only reasoned decision adjudicating this claim,13 and that 11 decision is therefore reviewed for reasonableness under § 2254(d). See Bonner, 425 F.3d at 1148 12 n.13. The superior court ruled in pertinent part as follows: 13 To show ineffective assistance of counsel, one must show that counsel’s performance fell below an objective standard of 14 reasonableness under prevailing professional norms. (Harris, supra, 5 Cal.4th at 832-833; Strickland v. Washington (1984) 466 U.S. 15 668, 687-688.) Regarding the reasonableness of counsel’s performance, courts are directed to be highly deferential. A 16 petitioner claiming ineffective assistance must overcome a presumption that, considering all of the circumstances, counsel’s 17 actions “might be considered sound trial strategy.” (Strickland, supra, 466 U.S. at p. 689.) In addition, a petitioner “must also show 18 prejudice flowing from counsel’s performance or lack thereof, such that but for counsel’s unprofessional errors, the result of the 19 proceeding would have been different.” (Ibid.) 20 Petitioner contends that his attorney should have called two witnesses, Josephine Porter and David Nelson, to testify in his 21 defense. Again, he claims Ms. Porter’s testimony would have showed Ms. Cunningham’s motivation to lie to police. However, 22 Ms. Cunningham stated at trial that she lied to police due to her anger over another woman. As such, Ms. Porter’s testimony would 23 have merely cumulative, the failure to call her as a witness was not 24 13 Petitioner first brought his ineffective assistance of counsel claim in three state habeas 25 petitions filed in the Sacramento Superior Court. ECF Nos. 47-15, 47-19, 47-21. The superior 26 court rejected his claim in a reasoned decision. ECF Nos. 47-16, 47-20, 47-22. Petitioner renewed this claim in two subsequent petitions to the Third District Court of Appeals, which were 27 denied. ECF Nos. 47-33, 47-34, 47-35, 47-36. Petitioner then presented his claim to the California Supreme Court twice. ECF Nos. 47-39, 47-41. The California Supreme Court 28 summarily denied his claim. ECF Nos. 47-40, 47-42. 1 prejudicial. Petitioner alleges that Mr. Nelson would have testified that he saw Dejon Murray and other people, not Petitioner, planning 2 the robbery. Petitioner attaches the transcript of Mr. Nelson’s police interview in support, but throughout the interview are comments 3 from the interviewing officer that Mr. Nelson was not telling the truth and had phone records that contradicted his story. Given the 4 questionable veracity of Mr. Nelson’s testimony, counsel’s decision to not call him as a witness cannot be considered unreasonable. 5 Regarding Petitioner’s claims that his counsel was deficient for 6 failing to raise objections to testimony given by various witnesses during trial and to the jury instructions, these claims are based on 7 facts in the record and, thus, were appealable. Accordingly, they cannot be raised through petition for writ of habeas corpus. 8 9 ECF No. 47-16 at 7-8. 10 D. Objective Unreasonableness Under § 2254(d) 11 The superior court correctly identified the federal constitutional principles that apply to 12 this claim under Strickland and progeny, and it applied them reasonably. As to counsel’s failure 13 to call witnesses, the superior court accurately noted that because Deseria Cunningham’s 14 motivation for making false statements was already before the jury, additional testimony about 15 that fact would have been cumulative. There is no reasonable probability of a different result had 16 an additional witness corroborated Cunningham’s jealous anger. It was therefore not objectively 17 unreasonable for the superior court to reject this aspect of the claim for lack of plausible 18 prejudice.14 See Strickland, 466 U.S. at 694, 697. As for Nelson, it was perfectly reasonable of 19 the state court to find that the statements documented in the interview report, ECF No. 29 at 59- 20 63, had little exculpatory value. The fact that Nelson did not personally observe petitioner’s 21 involvement in planning the robbery is not inconsistent with such involvement, and the veracity 22 of Nelson’s statements was very much in question. Rejecting this aspect of the claim on the 23 performance prong cannot have been objectively unreasonable because the state court was 24 obliged under Strickland to apply a strong presumption that counsel exercised acceptable 25 //// 26

27 14 Moreover, petitioner’s conviction did not rest on Cunningham’s recanted statements. Tamika Reed’s testimony was much more significant, and a reasonable jury would likely have found 28 petitioner guilty even without any consideration of Cunningham’s statement to police. 1 professional judgment. 466 U.S. at 689. Petitioner has presented no facts that would overcome 2 this presumption. 3 Bypassing any procedural default of petitioner’s other alleged grounds for the ineffective 4 assistance claim, see Lambrix, 520 U.S. at 525, the undersigned recommends summary denial on 5 the merits. It is not outside the wide range of reasonable professional judgments for defense 6 counsel to stipulate that a video recording accurately depicts the interview it recorded.15 The 7 stipulation did not say, and the judge’s response to the jury’s question cannot reasonably be 8 interpreted to imply, that the defense accepted or the jury was to accept the truth of all 9 representations made by the police during the recorded interview (or any other statements made 10 on the recording). Accordingly, counsel’s performance in relation to the video and the jury’s 11 question is entitled to deference. As to Tamika Reed’s testimony, petitioner does not identify any 12 basis on which defense counsel could have excluded the witness. She was subject to cross- 13 examination, which is “the principal means by which the believability of a witness and the truth 14 of [her] testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974). Petitioner’s 15 allegations support neither a finding of deficient performance nor a conclusion of prejudice. The 16 claim fails under any standard of review. 17 CONCLUSION 18 For the reasons explained above, it is HEREBY ORDERED as follows: 19 1. The Clerk of Court shall substitute Derrick Carraway, Regional Parole Administrator, 20 as Respondent in this case; and 21 2. Petitioner’s request to file supplemental evidence, ECF No. 38, is GRANTED. 22 IT IS FURTHER RECOMMENDED that the petition for writ of habeas corpus be 23 DENIED. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(l). Within twenty-one days 26

27 15 There are no allegations here that the video recording was altered, edited, incomplete or otherwise did not accurately demonstrate what was said. Rather, petitioner contests the truth of 28 the representations made during the interview about what his phone records showed. 1 | after being served with these findings and recommendations, any party may file written 2 || objections with the court and serve a copy on all parties. Such a document should be captioned 3 || “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 4 || he shall also address whether a certificate of appealability should issue and, if so, why and as to 5 || which issues. See 28 U.S.C. § 2253(c)(2). Any reply to the objections shall be served and filed 6 || within fourteen days after service of the objections. The parties are advised that failure to file 7 || objections within the specified time may waive the right to appeal the District Court’s order. 8 | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 9 | DATED: December 3, 2024 ~ 10 Chthion— Chore

ALLISON CLAIRE

11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16