1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRANDON MARKELL WISE, Case No. 2:22-cv-04054-MEMF (AS) 12 Petitioner, ORDER ACCEPTING FINDINGS AND 13 v. RECOMMENDATION OF UNITED

STATES MAGISTRATE JUDGE

14 GISELLE MATTESON, 15 Respondent. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 19 Petition, the records on file, and the Report and Recommendation (“Report”) of the 20 United States Magistrate Judge. Further, the Court has engaged in a de novo review 21 of those portions of the Report to which objections have been made. 22 The Magistrate Judge’s Report recommends the denial of habeas relief for 23 Petitioner’s claims challenging his convictions for first-degree murder and 24 attempted murder. (Dkt. No. 36). For the following reasons, Petitioner’s 25 objections to the Report (Dkt. No. 37) do not warrant a change to the Magistrate 26 Judge’s findings or recommendation. 27 Petitioner objects that the California Court of Appeal misrepresented the 28 sequence of events regarding Petitioner’s contact with the “Perkins agent” (i.e., the 1 jailhouse informant) and the detectives’ investigation. (Dkt. No. 37 at 1). 2 Petitioner explains that contrary to the Court of Appeal’s summary, he did not make 3 any incriminating statements until after the “compelling influences used by the 4 detectives,” namely the 30-40 minute “simulation,” the “false photo line-up” and 5 the false assertion that eyewitnesses had identified him in both incidents. (Dkt. No. 6 37 at 3). 7 First, this Court must assume the Court of Appeal’s recitation of the facts is 8 correct unless rebutted with clear and convincing evidence. 28 U.S.C. § 9 2254(e)(1); Deck v. Jenkins, 814 F.3d 954, 973 (9th Cir. 2016); Slovik v. Yates, 556 10 F.3d 747, 749 n.1 (9th Cir. 2009). Petitioner has failed to do so. Second, Petitioner 11 does not specify how the sequence of events was misrepresented and whether the 12 misrepresentation was on the part of the Court of Appeal or if the Court of Appeal 13 accurately summarized the evidence at trial and the evidence at trial was in error. 14 Accordingly, his conclusory objection does not show error in the California Court 15 of Appeal’s findings.1 See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) 16 (“Conclusory allegations which are not supported by a statement of specific facts 17 do not warrant habeas relief.”). Third, even assuming arguendo there was an error 18 in the recitation of the sequence of what occurred, this Court does not find that such 19 an error would entitle Petitioner to habeas relief. Whether or not Petitioner began 20 making incriminating statements only at the end of the sequence of events 21 described does not affect the analysis of Due Process or the Confrontation Clause in 22 any significant way. In fact, the Court of Appeal stated that “[i]n each of the three 23 encounters, the incriminating statements were made by the appellants well toward 24 the end of the encounter.” (Lodged Doc. 2 at 36 (emphasis added)). Similarly, its 25 analysis of Wise’s statements did not mention or rely on the alleged fact that 26

27 1 And Petitioner, by failing to specify the nature of the alleged misrepresentation, has failed to show 28 that the Court of Appeals’ rejection of Ground One and Ground Three involved an unreasonable 1 Petitioner made incriminating statements before the “compelling influences” that 2 Petitioner described. (Lodged Doc. 2 at 36–39). Rather, the Court of Appeals 3 found that those “compelling influences” did not amount to coercion. (Lodged Doc. 4 2 at 36–39). Petitioner has failed to show that the statements—even if made in the 5 order Petitioner contends—were coerced under governing law. Any such error 6 therefore would not change the Court’s determination that the state court’s rejection 7 of Ground One and Ground Three was not contrary to, or an unreasonable 8 application of, clearly established federal law, and it did not involve an 9 unreasonable determination of the facts. 10 Petitioner objects that the California Supreme Court improperly rejected 11 Ground Two, in which Petitioner raised multiple arguments challenging the 12 prosecutor’s theory of liability based on an uncharged conspiracy. (Dkt. No. 37 at 13 2). But as the Magistrate Judge’s Report carefully explained in detail, Petitioner 14 had adequate notice of the prosecutor’s theory of liability, the relevant jury 15 instructions were adequate, and appellate counsel was not ineffective for failing to 16 raise this issue on appeal. (Dkt. No. 36 at 39–49). 17 Petitioner objects that state law enforcement officers’ use of an undercover 18 informant is unconstitutional. (Dkt. No. 37 at 2). To the contrary, the 19 constitutionality of the use of undercover informants is well-established. See Hoffa 20 v. United States, 385 U.S. 293, 311 (1966) (“Courts have countenanced the use of 21 informers from time immemorial. . . . [T]he use of secret informers is not per se 22 unconstitutional.”). 23 Petitioner objects that the state used “compelling influences” to elicit self- 24 incriminating statements from him during the undercover operation, suggesting that 25 his statements were coerced. (Dkt. No. 37 at 3). As the Report discussed, however, 26 it was not objectively unreasonable for the California Court of Appeal to conclude 27 that Petitioner was not coerced. (Dkt. No. 36 at 24). The confidential informant 28 did not use threats or violence, make any promises, or intimidate Petitioner. (Id.). 1 Instead, the confidential informant established himself as a trustworthy veteran of 2 the criminal justice system who could be trusted with information about the 3 problem Petitioner was facing. (Id.). 4 Petitioner objects that the California Court of Appeal erred in finding that he 5 was not psychologically pressured by the informant or the detectives. (Dkt. No. 37 6 at 3–4). Specifically, Petitioner objects that he was psychologically pressured 7 because he was told, without any factual support, he was facing a murder charge 8 that was only “hypothetical.” (Id.) But the California Court of Appeal did not find 9 that Petitioner was pressured with an actual, concrete murder charge when he talked 10 with the informant. (Dkt. No. 36 at 21). Instead, the California Court of Appeal 11 accurately characterized the charges against Petitioner as “potential.” (Dkt. No. 9-2 12 at 37). Moreover, even if Petitioner is correct that detectives lied to him about 13 facing an actual murder charge, such deception did not mean his statements to the 14 informant were coerced or involuntary. (Dkt. No. 36 at 28 n.8 (collecting cases)). 15 Petitioner objects that the out-of-court statements of his co-defendants, 16 admitted against Petitioner at trial, violated the Confrontation Clause because the 17 “primary purpose” of the statements was testimonial. (Dkt. No. 37 at 4). As the 18 Report correctly found, however, the statements were not testimonial because they 19 were made unwittingly to jailhouse informants. (Dkt. No. 36 at 34–35). 20 Petitioner objects that he was not given adequate notice of the prosecutor’s 21 theory of liability based on an uncharged conspiracy. (Dkt. No. 37 at 5). 22 Specifically, Petitioner objects that an instruction on the theory was not discussed 23 until the jury instruction conference at the close of evidence. (Id.). As the Report 24 found, however, Petitioner had notice of the theory four days before closing 25 arguments, as well as several days earlier during a discussion of the Perkins 26 operation. (Dkt. No. 36 at 41). The Report reasonably concluded that Petitioner 27 had constitutionally adequate notice of the theory. (Id.). 28 1 Petitioner objects that the trial court erred in failing to instruct the jury with 2 CALCRIM No. 418, regarding statements made during the uncharged conspiracy. 3 (Dkt. No. 37 at 6–8). As the Report correctly found, the failure to give this 4 instruction did not lower the prosecutor’s burden of proof. (Dkt. No. 36 at 45). 5 Moreover, CALCRIM No. 418, which is given when a statement is admitted under 6 the hearsay exception for statements by coconspirators, was not warranted in this 7 case. “It has long been the law in [California] that a conspirator’s statements are 8 admissible against his coconspirator only when made during the conspiracy and in 9 furtherance thereof.” People v. Saling, 7 Cal. 3d 844, 852 (1972). Petitioner does 10 not identify an admitted statement made by a coconspirator during the conspiracy 11 and in furtherance thereof. Instead, Petitioner points to coconspirators’ statements 12 that were made, during jailhouse conversations with informants, approximately five 13 months after the crimes had occurred. (Dkt. No. 37 at 6). Because these challenged 14 statements were made after the conspiracy had ended, they were not admissible 15 under the hearsay exception for statements by coconspirators. See Saling, 7 Cal. 3d 16 at 853 (citing Krulewitch v. United States, 336 U.S. 440, 443 (1949)). Thus, 17 CALCRIM No. 418 was inapplicable. Instead, as the California Court of Appeal 18 found, the statements that Petitioner and his co-defendants made to the informants 19 were admissible as declarations against penal interest. (Dkt. No. 9-2 at 50-52). 20 Petitioner objects that his appellate counsel was ineffective for failing to raise 21 issues on appeal about the uncharged conspiracy. (Dkt. No. 37 at 8). As the Report 22 reasonably found, however, appellate counsel was not ineffective because these 23 issues were untenable or meritless. (Dkt. No. 36 at 49). 24 Petitioner objects that police operations with confidential informants are 25 unconstitutional, are targeted at lower-class citizens, and compelled Petitioner to 26 become a witness against himself. (Dkt. No. 37 at 8–10). As stated above, the 27 constitutionality of the government’s use of confidential informants is well- 28 established. See Hoffa, 385 U.S. at 311. In particular, the Supreme Court has 1 || reyected the argument that the use of confidential informants results in compulsory 2 || self-incrimination where, as here, the statements were not “the product of any sort 3 || of coercion, legal or factual.” Jd. at 304. For these reasons, Petitioner’s objections to the Report are overruled. 5 ORDER 6 IT IS ORDERED that (1) the Report and Recommendation of the Magistrate 7 || Judge is accepted and adopted: and (2) Judgment shall be entered denying the First 8 || Amended Petition and dismissing this action with prejudice. 9 10 || DATED: December 16, 2024 11 : □□ 12

MARNIE E WUSE MINS AT FRIMPONG

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