1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDWIN LAMAR MARTIN, Case No.: 3:22-cv-1563-CAB-DDL

12 Petitioner,

ORDER: (1) DENYING PETITION

13 v. FOR WRIT OF HABEAS CORPUS,

AND

14

15 BRIAN CATES, Warden, (2) DENYING CERTIFICATE OF

APPEALABILITY

16 Respondent. 17 18

19 20 I. INTRODUCTION 21 Before the Court is a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 22 § 2254 filed by Edwin Lamar Martin, (“Martin” or “Petitioner”), a state prisoner 23 proceeding pro se. [ECF No. 1.] In his Petition, Martin challenges his San Diego Superior 24 Court conviction in case number SCN383129. [See id. at 1.1] The Court has reviewed the 25 Petition, Respondent’s Answer and Memorandum of Points and Authorities in Support of 26

27 1 Page numbers for the Petition, Answer, Memorandum of Points and Authorities in Support of 28 1 the Answer [ECF Nos. 31, 31-1], the lodgments [ECF No. 32, et seq.], Petitioner’s Reply 2 [ECF No. 33] and all the supporting documents submitted by both parties. For the reasons 3 discussed below, the Court denies the Petition and denies a certificate of appealability. 4 II. FACTUAL BACKGROUND 5 This Court gives deference to state court findings of fact and presumes them to be 6 correct; Petitioner may rebut the presumption of correctness, but only by clear and 7 convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 8 35–36 (1992). The California Court of Appeal summarized the facts as follows: 9 Prosecution Case

10

G.M.

11 On December 20, 2017, 16-year-old G.M. was spending the day in a park in 12 Escondido after having run away from home the night before. Martin 13 approached her and asked if she wanted to smoke marijuana. G.M. initially declined, but eventually accepted the invitation. Although they had planned 14 to smoke the marijuana in the back of the park, Martin instead led G.M. to his 15 car and drove her to his apartment complex.

16 G.M. “had a . . . bad feeling,” but followed Martin into his apartment and 17 bedroom, where he gave her a pipe with a packed bowl of marijuana. G.M. sat on the edge of Martin’s bed smoking the marijuana while he went to the 18 bathroom. Martin returned to the bedroom naked, so G.M. stood up. Martin 19 put his hands on G.M.’s shoulders and pushed her onto his bed with “a lot” of force. He pulled down her pants and inserted his penis into her vagina. G.M. 20 told Martin “no” several times, “tried to get up,” and “tried to force him off” 21 of her, but she could not “get out from under him.” Martin ejaculated inside of G.M. and told her “it was his fantasy” to impregnate her. 22

23 Martin eventually took G.M. back to the park. About one week later, G.M. disclosed the rape to a counselor, and then to police. 24

25 G.M. testified she did not know either of Martin’s other victims in this case.

26

27

28 1 T racy 2 Tracy met Martin sometime in 2017 while she was living on the streets in 3 Escondido. In November 2017, she consensually orally copulated him at his apartment. 4

5 On the night of January 9, 2018 (about three weeks after Martin raped G.M.), Martin offered Tracy $50 to clean his apartment because his mother, with 6 whom he lived, was sick. Tracy accepted, but told Martin she “was just going 7 to clean”—she “wasn’t going to do anything else” because their prior sexual encounter, though consensual, “wasn’t a pleasant experience.” 8

9 Martin let Tracy shower at his apartment before cleaning. When she got out of the shower, he handed her a towel, “rough[ly]” took her by the arm, put his 10 hand over her mouth, and brought her to his bedroom. Tracy, who is 4’11”, 11 did not resist because she has “an extensive history of sexual abuse” and knew that if she resisted she would “get hurt.” 12

13 Once inside Martin’s bedroom, he shut the door and “barricaded it with some type of metal pole” so Tracy could not open it. Martin helped Tracy onto his 14 bed, used one hand to hold her legs over her head in a “painful” position, used 15 his other hand to cover her mouth, and inserted his penis into her vagina. Although Tracy “didn’t say no,” she “resisted, but didn’t pull away.” She 16 testified “it felt like . . . rape.” 17 After about 10 or 15 minutes, Martin took his hand off Tracy’s mouth, “pulled 18 [her] hair really tight,” “pushed [her] head down to his penis,” and forced it 19 into her mouth. Martin ejaculated in Tracy’s mouth and forced her to swallow.

20 Martin dropped off Tracy at a park the next morning. She initially told a park 21 ranger she had been “assaulted” and “victimized,” but did not “go into detail.” A few weeks later, Tracy reported the assault to police. 22

23 Tracy testified she did not know G.M., and was only a “casual acquaintance[ ]” of Martin’s other victim in this case (Norma), who had earlier introduced 24 Tracy to Martin. 25 Norma [footnote omitted] 26

27 Norma, a 38-year-old homeless woman, had an extensive history of drug use and dealing with Martin. [Footnote 2: Norma testified against Martin under a 28 1 glartaen ht oouf rism omf uJnaintuya preyr t1a2in oinr ge atorl yh emr toersntiinmgo nhyo uarbso ouft Jhaenr udarruyg 1c3o,n 2d0u1c8t. ]( Ian f tehwe 2 days after Martin sexually assaulted Tracy), Martin asked Norma if she 3 wanted to smoke a “blunt” with him. She said yes. They planned to buy rolling papers at a convenience store, but Martin instead drove Norma to his 4 apartment. 5 When Norma was hesitant to enter Martin’s apartment, he reassured her he 6 was “not a weirdo” and was “not going to do anything to [her].” Although it 7 “didn’t feel right” in her “gut,” Norma went with Martin into his apartment through the back gate. Martin locked the gate and backdoor behind them. 8 Norma sat on a chair in Martin’s bedroom, and he locked the bedroom door 9 with a pole “that straddled the doorknob and went into the ground.” Norma thought, “Oh, shit”—she “was in some kind of trouble” because there were 10 “[t]oo many locks.” 11 Martin seemed angry that Norma had been with other men but not him. His 12 demeanor became aggressive, and he showed her several weapons that he had 13 stored in his closet. [Footnote 3 omitted.] Martin handed Norma some crystal meth and snorted a line. Norma pretended to inject hers intravenously, but 14 really injected it into a cigarette filter. Martin kept asking her, “‘How are you 15 feeling?’” He pulled down his shorts and began masturbating.

16 Norma told Martin she wanted to leave, but he responded, “You are not 17 fucking going [any]where till you suck my dick.” He grabbed her by the head, started shaking it, and “cuss[ed]” at her. Norma was scared and cried. Martin 18 “got more aggressive” and told Norma “to be quiet” because “his mother was 19 in the next room.” Norma pleaded with him to let her leave.

20 Martin called Norma an “[u]ngrateful bitch” for not giving him sexual favors 21 after he gave her drugs. Martin fought and “tussle[d]” with Norma for several hours to keep her from leaving. He pushed her, grabbed her, threw her, pulled 22 her hair, and hit her. He “socked” her so hard he left knots on her legs, and he 23 threatened to kill her and “take [her] sight” from her one good eye. Whenever Norma thought about exiting through the door or a window, Martin blocked 24 her. He threatened to kill Norma, to “beat [her] ass,” and that he would “not 25 let [her] go until [she] sucked his dick.”

26 Martin tried to unbutton Norma’s pants, but she resisted and told him “[he] 27 might as well kill [her].” Martin then forced his penis into Norma’s mouth, and she orally copulated him so “that he would let [her] go.” Martin pushed 28 1 opnre etjhaec ublaactekd oinf hNeor rmmoau’tsh .h ead and pulled her hair until he ejaculated or 2

3 A few minutes later, Martin reinserted his penis into Norma’s mouth and ejaculated again. He then used his penis to aggressively rub ejaculate on 4 Norma’s face. 5 Norma asked Martin if she could leave, and he escorted her to his car to drop 6 her off somewhere. When he dropped her off, he did not bring his car to a 7 complete stop before pushing her out.

8 The next day, Norma—who was usually “uncooperative” with law 9 enforcement—reported the sexual assault to police officers she approached in a parking lot. 10

11 Norma testified she did not know G.M., and knew Tracy only to the extent of exchanging pleasantries. 12

13 Defense Evidence

14 Martin acknowledged he had had sexual encounters with G.M., Tracy, and 15 Norma, but he maintained they were all consensual. He believed the women were falsely accusing him because they were “jealous and env[ious] because 16 [he] [had] things.” He also believed the police were conspiring against him. 17 Martin’s mother testified that her bedroom and Martin’s bedroom share a 18 wall, and she did not hear any commotion coming from his room the night 19 Norma claimed they had fought for hours.

20 Prosecution Rebuttal Evidence 21 The detective who investigated Martin’s case testified about her post-arrest 22 interview of Martin. Portions of the recorded interview that impeached 23 Martin’s trial testimony were played for the jury.

24 The following statement by Martin during the interview was also played for 25 the jury: “[I]t’s pissing me off, that you[’re] going to bring some raggedy fucking bitches, drug-fiend prostitute ass bitches and believe what the fuck 26 they say, when they sucked a million dicks a fucking day.” 27 28 [ECF No. 32-14 at 2–7]; People v. Martin, No. D077515 (Cal. Ct. App. 2021). 1 III. PROCEDURAL BACKGROUND 2 A. State Court Proceedings 3 On February 16, 2018, Martin was charged with six offenses arising from the sexual 4 assault of three victims: two counts of forcible rape (Cal. Penal Code § 261(a)(2)) (counts 5 1 and 2); three counts of forcible oral copulation (Cal. Penal Code § 288a(c)(2)(A))2 6 (counts 3–5); and one count of false imprisonment by violence (Cal. Penal Code §§ 236, 7 237(a)) (count 6). [See ECF No. 32-1 at 9–12.] Each offense also carried a multiple-victim 8 enhancement allegation (Cal. Penal Code § 667.61(b), (c), (e)). [ECF No. 32-1 at 9–10.] 9 On November 20, 2019, a jury found Martin guilty on all counts and found all 10 enhancements to be true. Id. at 147–152. On March 9, 2020, the trial court sentenced Martin 11 to 45 years-to-life, plus three years in prison. [ECF No. 32-2 at 99–100.] 12 Martin appealed his conviction to the California Court of Appeal. [See ECF No. 32- 13 12.] He claimed the trial court erred when it denied his motion for a mistrial after a 14 prosecution witness testified to material that had been excluded during motions in limine. 15 See id. He also raised claims related to sentencing errors. Id. On April 29, 2021, the 16 appellate court denied relief on Martin’s claim regarding denial of his mistrial motion and 17 affirmed his conviction, but found the trial court had improperly failed to stay Martin’s 18 sentence on count six and directed he be resentenced to 45 years-to-life in prison. [See 19 ECF No. 32-14 at 21.] 20 On May 28, 2021, Martin filed a petition for review in the California Supreme Court, 21 again alleging the trial court erred in denying his motion for new trial based on improper 22 testimony. [See ECF No. 32–15.] The court denied the petition without comment or 23 citation on July 17, 2021. [ECF No. 32–16.] 24 B. Federal Court Proceedings 25 Martin filed the instant federal petition for writ of habeas corpus on October 11, 26

27 2 The California Penal Code was later amended and former § 288a(c)(2)(A) is now California 28 1 2022, raising three claims: (1) his conviction was the result of a fundamental miscarriage 2 of justice, (2) he received ineffective assistance of counsel, in violation of his Sixth 3 Amendment rights and (3) the trial court erred in denying his motion for mistrial based on 4 improper witness testimony, in violation of his right to due process. [See generally, ECF 5 No. 1.] 6 On January 17, 2023, the Court stayed the proceedings so that Martin could complete 7 exhaustion of his state court remedies as to claims one and two. [See ECF No. 7.] 8 The stay was lifted on October 29, 2024. [ECF No. 26.] After an extension of time, 9 Respondent filed an Answer on January 7, 2025. [ECF No. 31.] Martin filed a Reply on 10 February 14, 2025. [ECF No. 33.] 11 IV. SCOPE OF REVIEW 12 Martin’s Petition is subject to the provisions of the Antiterrorism and Effective 13 Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under 14 AEDPA, a habeas petition will not be granted unless the adjudication: (1) resulted in a 15 decision that was contrary to, or involved an unreasonable application of clearly established 16 federal law; or (2) resulted in a decision that was based on an unreasonable determination 17 of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. 18 § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). 19 A federal court is not called upon to decide whether it agrees with the state court’s 20 determination; rather, the court applies an extraordinarily deferential review, inquiring only 21 whether the state court’s decision was objectively unreasonable. See Yarborough v. 22 Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In 23 order to grant relief under § 2254(d)(2), a federal court “must be convinced that an appellate 24 panel, applying the normal standards of appellate review, could not reasonably conclude 25 that the finding is supported by the record.” See Taylor v. Maddox, 366 F.3d 992, 1001 26 (9th Cir. 2004). 27 A court may grant relief under the “contrary to” clause if the state court applied a 28 rule different from the governing law set forth in Supreme Court cases, or if it decided a 1 case differently than the Supreme Court on a set of materially indistinguishable facts. See 2 Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the “unreasonable 3 application” clause if the state court correctly identified the governing legal principle from 4 Supreme Court decisions but unreasonably applied those decisions to the facts of a 5 particular case. Id. Additionally, the “unreasonable application” clause requires that the 6 state court decision be more than incorrect or erroneous; to warrant habeas relief, the state 7 court’s application of clearly established federal law must be “objectively unreasonable.” 8 See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). “[A] federal habeas court may not issue 9 the writ simply because that court concludes in its independent judgment that the relevant 10 state-court decision applied clearly established federal law erroneously or incorrectly. 11 Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 12 (2000). “A state court’s determination that a claim lacks merit precludes federal habeas 13 relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 14 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. 15 Alvarado, 541 U.S. 652, 664 (2004)). 16 Where there is no reasoned decision from the state’s highest court, the Court “looks 17 through” to the underlying appellate court decision and presumes it provides the basis for 18 the higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805– 19 06 (1991). If the dispositive state court order does not “furnish a basis for its reasoning,” 20 federal habeas courts must conduct an independent review of the record to determine 21 whether the state court’s decision is contrary to, or an unreasonable application of, clearly 22 established Supreme Court law. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 23 2003). However, a state court need not cite Supreme Court precedent when resolving a 24 habeas claim. See Early, 537 U.S. at 8. “[S]o long as neither the reasoning nor the result 25 of the state-court decision contradicts [Supreme Court precedent,]” id., the state court 26 decision will not be “contrary to” clearly established federal law. Id. Clearly established 27 federal law, for purposes of § 2254(d), means “the governing principle or principles set 28 forth by the Supreme Court at the time the state court renders its decision.” Andrade, 538 1 U.S. at 72. 2 VI. DISCUSSION 3 As noted above, Martin raises three claims in his Petition: (1) his conviction 4 amounted to a fundamental miscarriage of justice, (2) his due process rights were violated 5 when the trial court denied his request for a mistrial after improper witness testimony, and 6 (3) his Sixth Amendment rights were violated by the ineffective assistance of defense 7 counsel. [See generally, ECF No. 1.] 8 A. Fundamental Miscarriage of Justice 9 In his first claim, Martin argues that “a fundamental miscarriage of justice occurred 10 in [his] case as a result of [the proceedings in state court].” [ECF No. 1 at 23–24.] 11 Martin raised this claim in a petition for habeas corpus filed with the California 12 Supreme Court. [ECF No. 32-21 at 25–37.] The court denied the petition without 13 comment or citation. [ECF No. 32-22.] Martin also raised the claim in his habeas petitions 14 before the San Diego Superior Court and the California Court of Appeals. [See ECF Nos. 15 32-17, 32-19.] Both petitions were denied via reasoned decisions, but neither the trial court 16 nor the appellate court addressed this specific claim. [See ECF Nos. 32-18, 32-20.] 17 Because no state court “furnish[ed] a basis” for its denial, this Court must conduct an 18 “independent review of the record” to determine whether the state court’s ultimate decision 19 to deny the claim was “objectively unreasonable.” See Murray v. Schriro, 745 F.3d 984, 20 996–97 (9th Cir. 2014); Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013). 21 Here, Martin’s claim fails because there is no clearly established federal law creating 22 a stand-alone due process claim based on a “fundamental miscarriage of justice.” As a 23 general matter, a “fundamental miscarriage of justice” in the habeas context refers to an 24 “exception [that] allows federal courts to excuse procedural default in the ‘truly deserving’ 25 habeas petition where there is a showing of actual innocence.” Gage v. Chappell, 793 F.3d 26 1159, 1167 (9th Cir. 2015) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995); Sawyer v. 27 Whitley, 505 U.S. 333, 336 (1992)). The exception “provides a gateway past the procedural 28 requirements imposed by AEDPA,” which might otherwise bar federal courts from 1 “consider[ing] the merits of certain procedurally defaulted habeas petitions asserting 2 constitutional violations.” Id. at 1166–67. 3 In Schulp, the Supreme Court stated that a claim of “actual innocence” brings a 4 petition within a “narrow class of cases implicating a fundamental miscarriage of justice.” 5 Schlup, 513 U.S. at 314–15 (cleaned up). By falling within this narrow class of cases, 6 petitioners can obtain review of constitutional claims despite procedural default. Id. But 7 such a claim “does not by itself provide a basis for relief.” Id. at 315. A petitioner cannot 8 state a claim for a “fundamental miscarriage of justice” without a procedural default that 9 otherwise prevents the Court from reviewing any of Petitioner’s constitutional claims here. 10 See id.; see also Beason v. Samuel, 2025 WL 905524, at *21 (S.D. Cal. 2025) (finding 11 habeas petitioner who raised a general “fundamental miscarriage of justice” claim failed to 12 state a cognizable claim on federal habeas). There has been no such default in Martin’s 13 case and as such, the narrow exception set forth in Schlup is inapplicable. 14 Therefore, after an independent review of the record, the Court finds the state court’s 15 denial of the Martin’s “fundamental miscarriage of justice” claim was not objectively 16 unreasonable. See 28 U.S.C. § 2254(d)(1). Nor was the denial based on an unreasonable 17 determination of the facts in light of the evidence presented during state court proceedings. 18 See 28 U.S.C. § 2254(d)(2). Martin is not entitled to habeas relief as to claim one. 19 B. Ineffective Assistance of Counsel 20 In his second ground for relief, Martin argues he received ineffective assistance of 21 counsel, in violation of his Sixth Amendment rights. [ECF No. 1 at 24–31.] 22 1. State Court Decision 23 Petitioner raised this claim in a petition for habeas corpus filed with the California 24 Supreme Court. [ECF No. 32-21 at 37–51.] The court denied the petition without 25 comment or citation. [ECF No. 32-22.] This Court therefore looks through to the last 26 reasoned state court decision to address the claim which, in this case, is that of the 27 California Court of Appeal. See Ylst, 501 U.S. at 805–06. In denying the claim, the 28 appellate court stated: 1 [oMbtaarinti nr]e ccoorndtse ntod se shtaisb lcisohu nas deel ffeanisleed t htaot cMonardtuinc’ts av ipcrtoimpesr a ilnl vfaebstriigcaattieodn t haenidr 2 claims that their sexual contact with Martin was nonconsensual. Martin offers 3 no evidence to suggest that if his counsel had conducted such an investigation, he would have discovered any exculpatory evidence. Instead, Martin states 4 that he recently hired a private investigator “to dig up the dirt.” He further 5 states that his private investigator is “currently investigating this case and pursuing the evidence.” 6

7 To establish ineffective assistance of counsel, Martin must demonstrate deficient performance and prejudice under an objective standard of reasonable 8 probability of an adverse effect on the outcome. (People v. Waidla (2000) 22 9 Cal.4th 690, 718.) In the context of a claim of ineffective assistance of counsel challenging the failure to investigate, a petitioner “must establish the nature 10 and relevance of the evidence that counsel failed to present or discover.” 11 (People v. Williams (1988) 44 Cal.3d 883, 937.)

12 Here, Martin offers nothing more than speculation that if his counsel had 13 performed a more thorough investigation, there is a possibility that he may have discovered exculpatory evidence. Martin appears to acknowledge that he 14 does not have any actual evidence and that his attempt to find this evidence, 15 through the services of a private investigator, is ongoing. However, without any indication that any such evidence actually exists, Martin cannot establish 16 that he was prejudiced by any alleged deficient performance by his counsel. 17 [ECF No. 32-20 at 1–2.] 18 2. Clearly Established Law 19 The Supreme Court established the legal standard for an ineffective assistance of 20 counsel claim in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, to 21 establish ineffective assistance of counsel, a petitioner must demonstrate that: (1) counsel’s 22 performance was deficient; and (2) the deficient performance prejudiced his defense. Id. 23 at 687–88. Both prongs of the Strickland test must be satisfied to establish a constitutional 24 violation and as such, the failure to satisfy either prong requires the denial of an ineffective 25 assistance claim. See id. at 687. 26 Strickland’s first prong requires a petitioner to establish that defense counsel’s 27 performance was deficient by showing that, in light of all of the circumstances, counsel’s 28 1 performance was “outside the wide range of professionally competent assistance.” Id. at 2 690; see also Richter, 562 U.S. at 105 (stating that the “question is whether an attorney’s 3 representation amounted to incompetence under ‘prevailing professional norms,’ not 4 whether it deviated from best practices or most common custom”). Judicial scrutiny of 5 counsel’s performance “must be highly deferential,” and there is a “strong presumption 6 that counsel’s conduct falls within the wide range of reasonable professional assistance.” 7 Strickland, 466 U.S. at 689; see also Pinholster, 563 U.S. at 189. “[F]ederal courts are to 8 afford ‘both the state court and the defense attorney the benefit of the doubt.’” Woods v. 9 Etherton, 578 U.S. 113, 117 (2016) (per curiam) (citation omitted). The burden to show 10 deficient performance “rests squarely on the” petitioner, and “the absence of evidence 11 cannot overcome the ‘strong presumption that counsel’s conduct [fell] within the wide 12 range of reasonable professional assistance.’” Burt v. Titlow, 571 U.S. 12, 22–23 (2013). 13 The second prong of the Strickland test requires establishing prejudice by showing 14 a “reasonable probability that, but for counsel’s unprofessional errors, the result of the 15 [trial] would have been different.” Strickland, 466 U.S. at 694. A reasonable probability 16 is a probability “sufficient to undermine confidence in the outcome.” Id. “The likelihood 17 of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112. 18 The court must consider the totality of the evidence before the jury in determining whether 19 a petitioner satisfied this standard. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010). 20 3. Analysis 21 Martin alleges defense counsel was ineffective because he failed to properly 22 investigate his case. [ECF No. 1 at 26.] Specifically, he alleges defense counsel failed to 23 adequately investigate, interview and/or call witnesses; failed to investigate prior “false 24 accusations made by witnesses; failed to obtain phone records; and failed to “expose” an 25 immunity agreement provided to one of the witnesses. [Id. at 18–19, 26–30.] He further 26 argues that the “cumulative effect” of these alleged deficiencies resulted in prejudice. [Id. 27 at 31–32.] 28 1 a. Failure to Investigate, Interview and/or Call Witnesses 2 The state court reasonably denied Petitioner’s claims that counsel was ineffective in 3 failing to locate, interview and/or call witnesses. Trial counsel “has a duty to make 4 reasonable investigations or to make a reasonable decision that makes particular 5 investigations unnecessary.” See Strickland, 466 U.S. at 691; see also Sanders v. Ratelle, 6 21 F.3d 1446, 1456 (9th Cir. 1994) (“[C]ounsel must, at a minimum, conduct a reasonable 7 investigation enabling him to make informed decisions about how best to represent his 8 client.” (emphasis in original)). 9 First, Martin alleges defense counsel failed to locate and interview witnesses from 10 the local church G.M. testified she went to shortly after she was assaulted by Petitioner. 11 [See ECF No. 1 at 28.] But Martin acknowledges that even law enforcement was also 12 unable to locate any of the people G.M. spoke to at the church and as such, he has not 13 shown counsel’s failure to locate them was unreasonable. See Hendricks v. Calderon, 70 14 F.3d 1032, 1040 (9th Cir. 1995) (“The duty to investigate and prepare a defense is not 15 limitless: it does not necessarily require that every conceivable witness be interviewed.”). 16 Moreover, even assuming these witnesses could have been found, Martin’s self-serving 17 speculation that, if interviewed, they might have given information helpful to his defense 18 is not enough to establish prejudice under Strickland. See Dows v. Wood, 211 F.3d 480, 19 486 (9th Cir. 2000) (rejecting an ineffective assistance of counsel claim based on trial 20 counsel’s failure to interview or call an alibi witness, when there was no evidence in the 21 record that the witness would have testified favorably for the defense). 22 Second, Martin claims defense counsel failed to hire and call an “expert” to testify 23 that the injuries sustained by Norma were minimal and inconsistent with her testimony that 24 he beat her for “hours.” [ECF No. 1 at 29.] But again, Petitioner’s claim rests solely on 25 his own speculation that an expert would have provided such testimony. The state court’s 26 denial of this claim was therefore reasonable. See Wildman v. Johnson, 261 F.3d 832, 839 27 (9th Cir. 2001) (finding speculation that an expert could be found and would testify at trial 28 insufficient to establish prejudice under Strickland). 1 b. Failure to Investigate Prior Accusations 2 Next, Martin argues defense counsel was ineffective for failing to investigate prior 3 “accusations” purportedly made by the G.M. and Norma, which he contends were “false.” 4 [ECF No. 1 at 27–28.] 5 Petitioner, however, offers only conclusory allegations to support his claim. Mere 6 speculation that further investigation might lead to evidence helpful to the petitioner is 7 insufficient “to demonstrate ineffective assistance of counsel for failure to investigate.” 8 Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended by 253 F.3d 1150 (2001). First, 9 as to G.M., Petitioner states she previously lied about an encounter with an individual 10 named “Eddie,” and another with “Michael and Gerardo.” [ECF No. 1 at 28.] He cites to 11 an “Exhibit 8,” [see ECF No. 1 at 28], as support but there is no such exhibit attached to 12 the Petition or Reply.3 [See generally, ECF Nos. 1, 33.] Martin’s cursory and vague claim 13 of ineffective assistance is insufficient to establish a Strickland violation. See James v. 14 Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by 15 a statement of specific facts do not warrant habeas relief”). 16 And as for Norma, Petitioner claims defense counsel failed to investigate “prior false 17 allegations” she made about her ex-husband abusing their children. [See ECF No. 1 at 29, 18 ECF No. 33.] As support, however, Petitioner again provides only conclusory statements 19 contained in his own self-serving declaration, which is insufficient to support his claim.4 20 See Dows, 211 F.3d at 486–87 (finding Strickland claims based wholly on petitioner’s self- 21 serving affidavit about counsel’s preparation and investigation presented no basis for 22

23 3 This exhibit appears to be attached to Petitioner’s state habeas petitions, [see ECF No. 32-21 at 24 522–24], but it does not support Petitioner’s suggestion that G.M. was lying about either incident. According to the report, when an investigator asked G.M. if anything like the incident with Martin 25 had happened to her before, G.M. responded that someone named “Eddie” had previously tried to 26 force her to give him oral sex and she could not remember the incident with “Michael” and “Gerardo.” Id. at 524. There is nothing in the report to show G.M. made “false” accusations. 27 4 The declaration is not attached to Martin’s federal petition but was included in exhibits to his 28 1 federal habeas relief). In sum, the state court’s denial of Martin’s claim as speculative and 2 conclusory was based on a reasonable application of Strickland. 3 c. Failure to Subpoena Phone Records 4 Next, Martin alleges trial counsel failed to “subpoena [his] phone records” to show 5 G.M. lied about calling Andy B. from Martin’s house on the day she was assaulted. [ECF 6 No. 1 at 30.] However, Martin’s speculation that records would show that no call had been 7 made from his landline to Andy B. on that day is insufficient to demonstrate prejudice. See 8 Jackson v. Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000) (holding unsupported 9 speculation and conclusory allegations regarding an attorney’s substandard performance 10 are not sufficient to show either deficient performance or prejudice ); see also Villagran v. 11 Fox, 2019 WL 5978891, at *12 (C.D. Cal. 2019) (rejecting claim that counsel was 12 ineffective for failing “to obtain relevant phone records” because any prejudice was too 13 speculative). Therefore, the state court’s denial of the claim was not unreasonable. 14 d. Witnesses Immunity Agreement 15 Martin claims defense counsel failed to investigate the “grant of immunity” given to 16 Norma “in exchange” for her testimony. [ECF No. 1 at 19.] He also asserts defense 17 counsel failed to “expose” that Norma was “still involved in using and selling drugs.” [Id. 18 at 20.] But contrary to Martin’s suggestion, defense counsel questioned Norma about the 19 immunity arrangement during cross-examination. [ECF No. 32-7 at 170.] And Norma 20 admitted the prosecutor had promised her that any testimony “related to drug activity” 21 would not be used against her in a criminal case. [Id. at 177.] Norma also testified that 22 despite a period of sobriety after the incident, she had relapsed about three months before 23 her trial testimony.5 [Id. at 161–62.] Therefore, defense counsel’s performance was neither 24 deficient nor prejudicial and, as such, the state court’s denial of the claim was not 25 unreasonable. 26 27 5 Norma also acknowledged at the beginning of her testimony that she was currently in custody for a probation violation related to an assault conviction and as such, the jury was well aware she 28 1 e. Cumulative Effect 2 Finally, Martin argues the cumulative effect of defense counsel’s errors amounted 3 to ineffective assistance of counsel. In some instances, the combined effect of multiple 4 trial errors may give rise to a due process violation if it renders a trial fundamentally unfair, 5 even if each error considered individually would not warrant relief. See Parle v. Runnels, 6 505 F.3d 922, 928 (9th Cir. 2007) (characterizing this principle as clearly established by 7 the Supreme Court). The Ninth Circuit has applied this principle in the context of 8 Strickland and has held that prejudice may result from the cumulative effect of multiple 9 deficiencies by counsel. Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995). 10 Here, as discussed above, all but one of Petitioner’s ineffective assistance of counsel 11 sub-claims are based upon conclusory and speculative allegations that are insufficient to 12 show deficient performance. And as to the sub-claim based on Norma’s immunity 13 agreement, the Court has found that counsel’s performance did not fall below an objective 14 standard of reasonableness. Where there is no single instance of deficient performance, 15 nothing can accumulate to the level of a constitutional violation. See Lopez v. Allen, 47 16 F.4th 1040, 1053 (9th Cir. 2022) (“Petitioner has failed to establish multiple errors of 17 constitutional magnitude,” and “there can be no accumulation of prejudice amounting to a 18 denial of due process.”); United States v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012) (“There 19 can be no cumulative error when a defendant fails to identify more than one error.”). 20 4. Conclusion 21 In sum, the state court’s denial of Martin’s ineffective assistance of counsel claims 22 was neither contrary to, nor an unreasonable application of, clearly established federal law. 23 See Andrade, 538 U.S. at 72; 28 U.S.C. §2254(d)(1). Additionally, Martin has failed to 24 show the state court’s decision was based on an unreasonable determination of the facts. 25 See Miller-El, 537 U.S. at 340; 28 U.S.C. § 2254(d)(2). 26 C. Denial of Motion for Mistrial 27 In ground three, Martin alleges his right to due process was violated when the trial 28 court denied his motion for a new trial based on improper witness testimony. [ECF No. 1 1 at 34–38.] 2 1. State Court Decision 3 Martin raised this claim before the California Supreme Court in his petition for 4 review, [see ECF No. 32-15 at 9–11], and it was denied without comment or citation. [ECF 5 No. 32-16.] This Court therefore looks through to the last reasoned state court decision. 6 See Ylst, 501 U.S. at 805–06. Here, that is the opinion of the California Court of Appeal. 7 In denying the claim, the appellate court stated: 8 A. Background 9 Martin moved in limine to “[e]xclude testimony from the witnesses ... regarding suspicion that [Martin] is known to have guns.” (Italics omitted.) 10 The impetus for the motion was that “[i]n one or more statements[,] witnesses 11 indicate[d] that [Martin] is known to have guns.” Martin argued the evidence should be excluded as unduly prejudicial. (Evid. Code, § 352.) 12

13 At the hearing on the motion, the prosecutor advised that although she did not expect any witnesses would testify that they knew Martin owned guns, such 14 evidence would be relevant to establish a lack of the victims’ consent. Defense 15 counsel countered that none of the victims had thus far indicated they submitted to Martin because they believed he had guns; thus, the evidence 16 would be “inconsistent with . . . multiple previous statements, and the only 17 reason to proffer that evidence . . . would be to unfairly prejudice [Martin].”

18 The trial court granted the defense motion and “exclude[d] any testimony 19 from any witness that [Martin] was a person known to have guns.” The court also ordered counsel that “potential witnesses be likewise admonished not to 20 make any reference to any knowledge that they might have had that [Martin] 21 had guns and not to make any statements that suggest that during their testimony.” 22

23 During direct examination of Norma, the prosecutor asked what was going through her mind when she saw Martin secure the bedroom door with the 24 metal pole. Norma responded that she knew she “was in some . . . kind of 25 trouble” because there were too many locks and Martin’s “attitude was getting a little different.” When the prosecutor asked how Martin’s attitude was 26 changing, Norma explained that Martin “started showing [her] weapons that 27 he had stored in his closet. . .. [T]here was a taser, some knives, a gun or something.” (Italics added.) Defense counsel immediately requested a sidebar 28 1 c onference, which the court granted. 2 During the sidebar, defense counsel reminded the court that it had granted the 3 in limine “motion dealing with weapons and not having witnesses bring them up” and “instruct[ing] the prosecutor to admonish the witnesses not to bring 4 it up.” 5 The prosecutor acknowledged she had not admonished Norma regarding the 6 in limine order, but explained that the testimony about the gun was unexpected 7 because it was the first time Norma had mentioned one. Further, the prosecutor noted she had not had a chance to meet with Norma because Norma 8 had recently been arrested for a probation violation, was in custody, and 9 arrived late to the trial. Finally, the prosecutor argued that Norma’s testimony was probative and did not violate the in limine order because the court 10 prohibited testimony that Martin was known to have guns, not that he actually 11 displayed one immediately before committing a charged offense. The prosecutor suggested Norma’s testimony was “subject to cross-examination 12 because it’s the first time we are hearing that” Martin displayed a gun, and 13 subject to cross-examination of police witnesses to establish that their search of Martin’s apartment pursuant to a warrant did not yield any weapons. The 14 prosecutor assured the court she would move on to a new line of questioning. 15 When the court asked defense counsel what remedy he sought, counsel 16 requested a mistrial. The court denied the request, explaining “that’s an 17 extraordinary remedy.” In the alternative, counsel asked that the offending testimony “be stricken and that the jurors be . . . directed to disregard the 18 information.” 19 Back in open court, the trial court instructed the jury as follows: “Ladies and 20 gentlemen, the last question and the last answer by the witness are to be 21 disregarded. You are not supposed to consider that for any purpose during this trial. The motion to exclude is granted . . ..” 22

23 Defense counsel later established through cross-examination of a police detective that a search of Martin’s residence revealed no weapons. 24

25 After the close of evidence, the trial court instructed the jury, “If I ordered testimony stricken from the record, you must disregard it and must not 26 consider that testimony for any purpose.” [Footnote 4: The Court had 27 similarly instructed the jury at the start of trial: “During this trial, the attorneys might object to questions asked of a witness. I’ll rule on those objections 28 1 adciscroergdairndg thtoa tt htees tliamwo. n. y. a[nI]df nI ootr cdoenr stihdee rt eits tfiomr oannyy tpou brpeo sster.i”c]k en, you are to 2

3 B. Legal Principles

4 “‘A trial court should grant a mistrial only when a party’s chances of receiving 5 a fair trial have been irreparably damaged . . ..’” (People v. Clark (2011) 52 Cal.4th 856, 990 (Clark); see People v. Montes (2014) 58 Cal.4th 809, 888 6 [“A motion for ‘“mistrial should be granted if the court is apprised of 7 prejudice that it judges incurable by admonition or instruction.”’”]; People v. Dunn (2012) 205 Cal.App.4th 1086, 1094 (Dunn).) “Whether a particular 8 incident is so prejudicial that it warrants a mistrial ‘requires a nuanced, fact- 9 based analysis,’ which is best performed by the trial court.” (Dunn, at p. 1094.) “We review a trial court’s order denying a motion for mistrial under the 10 deferential abuse of discretion standard.” (Dunn, supra, 205 Cal.App.4th at p. 11 1094; see Clark, supra, 52 Cal.4th at p. 990; People v. Jenkins (2000) 22 Cal.4th 900, 986 (Jenkins) [“‘Whether a particular incident is incurably 12 prejudicial is by its nature a speculative matter, and the trial court is vested 13 with considerable discretion in ruling on mistrial motions.’”].) “‘Under this standard, a trial court’s ruling will not be disturbed, and reversal of the 14 judgment is not required, unless the trial court exercised its discretion in an 15 arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’” (Dunn, at p. 1094.) 16

17 C. Analysis

18 Although the prosecutor admittedly failed to comply with the trial court’s in 19 limine order that she admonish witnesses not to testify that Martin “was a person known to have guns,” we conclude the trial court acted within the 20 scope of its discretion in denying Martin’s motion for a mistrial. 21 Martin acknowledges in his briefing that (1) “a curative instruction to 22 disregard improper testimony ordinarily is sufficient to cure the prejudice of 23 an improperly volunteered statement”; (2) “juries are presumed to follow a court’s admonishment”; and (3) “the trial court struck the improperly 24 volunteered testimony and admonished the jury.” Martin maintains this is an 25 extraordinary case to which these general principles do not apply. We disagree. 26

27 The extent of the violation of the in limine order was not extraordinary. As the Attorney General points out, Norma’s testimony that Martin showed her 28 1 aM gaurtnin d iwda ns okt,n sotwrinct ltyo shpaevake inggu,n vs.i oHlaeter tthees tiomrdoenry excoclnuvdeiynegd tehsetirm foirnsyth tahnadt 2 observations just before Martin committed a charged offense, whereas the in 3 limine ruling addressed rumor and speculation. Thus, we are left with the prosecutor’s concession that she committed an essentially technical violation 4 of the order by failing to admonish Norma regarding the scope of the order. 5 In this circumstance, the trial court reasonably concluded the violation could be cured by striking Norma’s testimony that Martin showed her a gun, and by 6 instructing the jury to disregard the stricken testimony. 7 Martin further maintains the prosecutor’s violation of the in limine order was 8 extraordinary because Norma’s testimony was irrelevant. He argues “[n]one 9 of the charged offenses were alleged to involve weapons and the People never advised the court or the defense that it intended to elicit evidence that a 10 complainant’s will was overcome by the use of a firearm.” We disagree. 11 Norma’s testimony that Martin displayed a gun before she orally copulated him was highly relevant to the issue of consent. (See People v. Daveggio and 12 Michaud (2018) 4 Cal.5th 790, 836 (Daveggio and Michaud) [evidence that 13 police found a gun and crossbow in the defendants’ van “was relevant to whether the sexual penetration of [the victim] was accomplished by force or 14 fear”]; People v. Dearborne (2019) 34 Cal.App.5th 250, 259 [the “defendant 15 press[ing] what [the victim] thought was a gun up against her side . . . surely helped induce the fear needed to overcome [her] will.”].) 16

17 Nor has Martin specifically contended or shown that the prosecutor’s failure to disclose Norma’s testimony—which the prosecutor, herself, stated was 18 unexpected—undermined the testimony’s relevance or violated any pretrial 19 discovery or disclosure obligations.

20 Next, Martin suggests that evidence of gun-possession is uniquely 21 inflammatory to juries and improperly suggests the possessor has a propensity “to brandish and use” them and is predisposed to violence. None of the 22 authorities Martin cited support this assertion. (See Jenkins, supra, 22 Cal.4th 23 at p. 1006 [involving cellmate’s testimony that the defendant confessed to committing the charged offense]; People v. Branch (2001) 91 Cal.App.4th 24 274, 278 (Branch) [involving evidence of prior sexual molestation]; People v. 25 Sam (1969) 71 Cal.2d 194, 204 [involving the defendant’s propensity to kick people “with whom he disagrees”]; cf. Daveggio and Michaud, supra, 4 26 Cal.5th at p. 836 [evidence of weapon-possession was not improper character 27 evidence where the “‘fact’ of . . . possession was relevant to prove something beyond defendants’ ‘disposition to commit’ misconduct”]; People v. Powell 28 1 (b2e0fo1r8e) t6h Ce aclh.a5rtghe 1d3 m6,u 1r6d8e r[ eavnidd ehnacde d tihsaptl athyee dd eitf emnodnantht sp eoasrsleisesre wd aas g ruenle svhaonrtt ltyo 2 the charged murder and “did not merely reflect general criminal propensity”].) 3 Finally, Martin argues that Norma’s testimony about his gun-possession “had 4 an incurable effect on [his] defense” by impeaching his testimony that all of 5 the sexual encounters with the victims were consensual. But “[e]vidence is not [unduly] prejudicial . . . merely because it undermines the opponent’s 6 position or shores up that of the proponent.” (Branch, supra, 91 Cal.App.4th 7 at p. 286.) Indeed, the “‘“‘ability to do so is what makes evidence relevant.’”’” (Daveggio and Michaud, supra, 4 Cal.5th at p. 824.) Moreover, the prosecutor 8 suggested during the sidebar several ways the defense could impeach Norma’s 9 testimony (e.g., by cross-examining her about the fact she had never mentioned it before, and by establishing through police testimony that they 10 found no weapons in Martin’s apartment when they searched it). 11 In light of the nature of the prosecutor’s violation of the in limine order, the 12 court’s striking of the offending testimony, and the court’s repeated 13 admonitions to the jury to disregard stricken testimony, the trial court did not abuse its discretion in denying Martin’s motion for a mistrial. 14

15 [ECF No. 32-14 at 8–14.] 16 2. Federal Law and Analysis 17 There is no clearly established constitutional right to move for a new trial, or to have 18 such a motion granted. Herrera v. Collins, 506 U.S. 390, 407 (1993) (“The Constitution 19 itself, of course, makes no mention of new trials.”). Moreover, issues based purely on state 20 law do not present a cognizable federal habeas claim. Estelle v. McGuire, 501 U.S. 62, 21 67–68 (1991). Thus, challenges to a state court’s denial of a motion for a new trial are 22 generally not cognizable on federal habeas. See Borges v. Davey, 656 F. App’x 303, 304 23 (9th Cir. 2016) (concluding petitioner’s contention that trial court misapplied state law in 24 denying his motion for new trial was not cognizable on federal habeas review); Broadnax 25 v. Beard, 588 F. App’x 637, 637 (9th Cir. 2014) (finding petitioner’s contention that trial 26 court erred in refusing to order new trial based on new impeachment evidence did not state 27 cognizable claim for federal habeas relief); see also Howard v. Soto, 2016 WL 1068357, 28 at *13 (C.D. Cal. 2016) (“[A] claim that a state court denied a petitioner’s state-court 1 motion for a new trial, without more, is not cognizable on federal habeas review.”); 2 Renteria v. Montgomery, 2020 WL 1426639 at *14 (C.D. Cal. 2020) (“The denial of a 3 motion for a new trial generally does not state a cognizable claim for federal habeas 4 relief.”). 5 Here, Martin alleges the denial of his motion for a new trial violated his right to due 6 process. But a petitioner may not “transform a state-law issue into a federal one merely by 7 asserting a violation of due process.” See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 8 1996); see Darby v. Allison, 2015 WL 2088935, at *5 (N.D. Cal. 2015) (concluding habeas 9 petitioner’s claim that his due process rights were violated by the denial of a new trial was 10 not cognizable because it did not present a theory as to how it violated due process). 11 In addition, Martin has not shown that Norma’s stricken testimony rendered his trial 12 fundamentally unfair. See Armstead v. Neven, 460 F. App’x 728, 730 (9th Cir. 2011) (“The 13 relevant inquiry is whether the decision of the trial court to deny the motion for a mistrial 14 made the trial fundamentally unfair.”). After Norma mentioned a gun in her testimony, the 15 trial court took prompt corrective action by striking Norma’s testimony regarding the gun 16 and admonishing the jury to disregard it. [ECF No. 32-7 at 142.] Furthermore, before both 17 opening and closing statements, the trial court instructed the jury to disregard any 18 testimony that had been stricken from the record and that they “must not consider” stricken 19 testimony “for any purpose.” [See ECF No. 32-1 at 111, ECF No. 32-6 at 12, ECF No. 32- 20 9 at 27.] The jury is presumed to have followed these instructions, see Weeks v. Angelone, 21 528 U.S. 25, 234 (2000), and Petitioner has not provided any “reason[s] to believe that the 22 jury in this case was incapable of obeying the [trial court’s] instructions” to rebut this 23 presumption. See Greer v. Miller, 483 U.S. 756, 766 n.8 (1987); see also Godwin v. Davey, 24 2018 WL 985462, at *6 (S.D. Cal. 2018) (denying habeas relief to petitioner who claimed 25 the state court “erred in denying a motion for mistrial on the ground that the stricken 26 testimony could not be cured by proper instructions to the jury”). Thus, Norma’s stricken 27 testimony did not render Petitioner’s trial fundamentally unfair. 28 Based on the above, the state court’s denial of the claim was neither contrary to, nor 1 unreasonable application of, clearly established federal law. See Andrade, 538 U.S. at 2 28 U.S.C. §2254(d)(1). In addition, the state court’s decision was not based on an 3 |}unreasonable determination of the facts. See Miller-El, 537 U.S. at 340; 28 U.S.C. 4 || § 2254(d)(2). 5 VIL CERTIFICATE OF APPEALABILITY 6 The federal rules governing habeas cases brought by state prisoners require a district 7 court that issues an order denying a habeas petition to either grant or deny a certificate of 8 || appealability. See Rules Governing § 2254 Cases, Rule 11(a). The district court may issue 9 certificate of appealability if the petitioner has made a substantial showing of the denial 10 || of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner 11 show that “reasonable jurists would find the district court’s assessment of the 12 || constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 13 || Here, the Court finds Martin has failed to make “a substantial showing of the denial of a 14 constitutional right,” and reasonable jurists would not find debatable this Court’s 15 assessment of his claims. See id. Accordingly, a certificate of appealability is DENIED. 16 VIII. CONCLUSION 17 Based on the foregoing, the Court DENIES the petition for writ of habeas corpus 18 DENIES a certificate of appealability. 19 20 || IT IS SO ORDERED. 21 22 || Dated: May 23, 2025 / (ip — 23 Hon. Cathy Ann Bencivengo United States District Judge 25 26 27 28