Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 1 of 29 Page ID #:1799

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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 MUOI VAN DUONG, ) N O . C V 2 0 - 6 0 4 0 - K S 11 Petitioner, ) 12 ) v. MEMORANDUM OPINION AND ORDER ) 13 ) 14 STEW SHERMAN, Warden, ) ) 15 Respondent. ) 16 _________________________________ )

17 18 INTRODUCTION 19 20 On July 6, 2020, Petitioner, a California state prisoner proceeding pro se, filed a Petition 21 for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“the 22 Petition”). (Dkt. No. 1.) On August 2, 2021, Respondent filed an Answer to the Petition and 23 lodged the relevant state court records. (Dkt. Nos. 31-32.) On January 10, 2022, the Court 24 deemed the matter ready for submission because Petitioner had not filed a Reply. (Dkt. No. 25 45.) The parties have consented to the jurisdiction of the undersigned Magistrate Judge. (Dkt. 26 Nos. 2, 22, 26.) Briefing on this matter is now complete, and the matter is under submission 27 to the Court for decision. 28 1 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 2 of 29 Page ID #:1800

1 PRIOR PROCEEDINGS 2 3 On December 12, 2017, a Ventura County Superior Court jury convicted Petitioner of 4 resisting an executive officer with force or violence (California Penal Code (“Penal Code”) 5 § 69(a)). (2 Reporter’s Transcript (“RT”) 283-84; Clerk’s Transcript (“CT”) 114.) On the 6 same date, in a bifurcated trial, the jury found true the allegations that Petitioner had committed 7 two serious prior felonies (assault with a deadly weapon and making criminal threats) and that 8 he had served three prior prison terms (Penal Code §§ 245(a)(1), 422, 667(c)(1), 667(e)(1), 9 667.5(b)). (2 RT 323-25; CT 115-17.) On March 1, 2018, the trial court sentenced Petitioner 10 to seven years in state prison. (2 RT 334; CT 141, 143.) 11 12 Petitioner appealed the judgment of conviction. (Lodged Document (“Lodg.”) No. 4.) 13 On April 15, 2019, the California Court of Appeal issued an unpublished, reasoned opinion 14 affirming the judgment. (Lodg. No. 7.) On June 19, 2019, the California Supreme Court 15 summarily denied a Petition for Review. (Lodg. Nos. 8-9.) 16 17 On April 17, 2020, Petitioner filed a habeas petition with the Ventura County Superior 18 Court. (Lodg. No. 10 at 1.) On April 24, 2020, the Superior Court denied the habeas petition. 19 (Id.) On September 9, 2020, Petitioner filed another habeas petition with the Ventura County 20 Superior Court. (Id. at 3.) On September 14, 2020, the Superior Court denied the habeas 21 petition. (Id.) 22 23 Petitioner filed the instant Petition on July 6, 2020. (Dkt. No. 1.) On August 21, 2020, 24 the Court granted Petitioner’s request for a stay pursuant to Rhines v. Weber, 544 U.S. 269 25 (2005), so he could exhaust his unexhausted claims. (Dkt. No. 7.) On November 19, 2020, 26 Petitioner filed a habeas petition with the California Supreme Court. (Lodg. No. 11.) On 27 January 27, 2021, the California Supreme Court denied the habeas petition. (Lodg. No. 12.) 28 On February 12, 2021, the Court lifted the stay. (Dkt. No. 13.) 2 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 3 of 29 Page ID #:1801

1 SUMMARY OF THE EVIDENCE AT TRIAL 2 3 The following factual summary from the California Court of Appeal’s unpublished 4 decision on direct review is provided as background. See also 28 U.S.C. § 2254e(1) (“[A] 5 determination of a factual issue made by a State court shall be presumed to be correct” unless 6 rebutted by the petitioner by clear and convincing evidence). 7 8 On August 6, 2017, Oxnard police received a 911 call from [Petitioner’s] 9 brother Hai Duong, who said that [Petitioner] was outside and “broke . . . the door 10 . . . to the house.” Asked to explain [Petitioner’s] conduct, Hai Duong replied, 11 “he do drugs.” He identified [Petitioner] as “Timmy Duong.” 12 13 Officers Hayley Bracken, David McAlpine and Jamie Toney went to Hai 14 Duong’s house in uniform, driving marked patrol cars. The dispatcher told them 15 that [Petitioner] was on parole, was subject to restraining orders, and had an 16 outstanding arrest warrant for a parole violation. Bracken testified that they had 17 a duty to take [Petitioner] into custody on the warrant. Also, she mistakenly 18 believed that the restraining orders applied to the address; the dispatcher did not 19 mention that the orders were unconnected to Hai Duong’s home. 20 21 Bracken saw no one at Hai Duong’s front door. She entered the side yard 22 through a partially open gate and saw [Petitioner], whom she knew from a prior 23 encounter as “Timmy.” The exchange between [Petitioner] and the officers was 24 captured on body cameras. McAlpine and Toney believed [Petitioner] was under 25 the influence of drugs because he was sweating, grinding his teeth, fidgeting and 26 had rapid speech. 27 /// 28 /// 3 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 4 of 29 Page ID #:1802

1 When Bracken asked [Petitioner] if she could talk to him, he demanded to 2 know who called the police. Without identifying the caller, she assured him that 3 someone called. [Petitioner] stated that his family was inside in the house, adding 4 “they’re chicken” and “they hide.” 5 6 McAlpine testified that [Petitioner], as a parolee, can be searched and 7 detained at any time and must cooperate with police. To gauge [Petitioner’s] 8 honesty and cooperation, McAlpine asked if he was on parole, which he denied. 9 McAlpine directed [Petitioner] to relinquish the cell phone in his hand and to 10 extend his wrist. When McAlpine took hold of [Petitioner’s] left wrist to prevent 11 him from fleeing, he tried to jump and spin out of McAlpine’s grasp. McAlpine 12 described [Petitioner] as “extremely strong and resistant” to cooperating with a 13 parole search. 14 15 Bracken tried to gain control of [Petitioner’s] right arm. He hit his head 16 into her chin and mouth in a movement she and McAlpine described as a 17 “headbutt.” Toney grabbed [Petitioner’s] legs. They lowered [Petitioner] to the 18 ground and handcuffed him. Bracken had a swollen lip and a bruise inside her 19 mouth from the headbutt. 20 21 For safety reasons McAlpine did not tell [Petitioner] about the arrest 22 warrant before taking him into custody, to prevent him from devising a plan of 23 escape. After the scuffle, Toney told [Petitioner] about the warrant. He 24 demanded to see it. En route to the jail, [Petitioner] yelled that he “knocked 25 [Bracken] in [her] head, and that if [she] did not show him the warrant, he would 26 kick [her] in [her] head.” The recorded threat was played for the jury. 27 28 (Lodg. No. 7 at 2-4.) 4 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 5 of 29 Page ID #:1803

1 PETITIONER’S HABEAS CLAIMS 2 3 Petitioner presents the following grounds for federal habeas relief: 4 5 Ground One: There was no substantial evidence that Petitioner knew that the officers 6 were engaged in the lawful performance of their duty. (Dkt. No. 1 at 5.)1 7 8 Ground Two: The trial court prejudicially erred in not instructing sua sponte on assault 9 as a lesser-included offense. (Id. at 5-6.) 10 11 Ground Three: The trial court committed prejudicial error in admitting evidence 12 concerning the existence of two restraining orders against Petitioner. (Id. at 6.) 13 14 Ground Four: The arresting officers violated Petitioner’s rights under Miranda v. 15 Arizona, 384 U.S. 436 (1966). (Id.) 16 17 Ground Five: There were violations of due process and Brady v. Maryland, 373 U.S. 18 83 (1963), because the video evidence was inadequate, inaudible, and cut off. (Id.) 19 20 STANDARD OF REVIEW 21 22 I. The Antiterrorism And Effective Death Penalty Act. 23 24 Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death 25 Penalty Act of 1996 (“AEDPA”), a state prisoner whose claim has been “adjudicated on the 26

27 1 The page numbers cited from the parties’ pleadings were automatically generated by the 28 Court’s electronic filing system. 5 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 6 of 29 Page ID #:1804

1 merits” cannot obtain federal habeas relief unless that adjudication: (1) resulted in a decision 2 that was contrary to, or involved an unreasonable application of, clearly established Federal 3 law, as determined by the Supreme Court of the United States; or (2) resulted in a decision 4 that was based on an unreasonable determination of the facts in light of the evidence presented 5 in the State court proceeding. 6 7 For the purposes of Section 2254(d), “clearly established Federal law” refers to the 8 Supreme Court holdings in existence at the time of the state court decision in issue. Cullen v. 9 Pinholster, 563 U.S. 170, 182 (2011); see also Kernan v. Cuero, 138 S. Ct. 4, 9 (2017) (per 10 curiam) (“circuit precedent does not constitute clearly established federal law. . . . [n]or, of 11 course, do state-court decisions, treatises, or law review articles”) (internal quotation marks 12 and citations omitted). A Supreme Court precedent is not clearly established law under § 13 2254(d)(1) unless it “squarely addresses the issue” in the case before the state court or 14 establishes a legal principle that “clearly extends” to the case before the state court. Moses v. 15 Payne, 555 F.3d 742, 760 (9th Cir. 2009); see also Harrington v. Richter, 562 U.S. 86, 101 16 (2011) (it “‘is not an unreasonable application of clearly established Federal law for a state 17 court to decline to apply a specific legal rule that has not been squarely established by’” the 18 Supreme Court) (citation omitted). 19 20 A state court decision is “contrary to” clearly established federal law under Section 21 2254(d)(1) only if there is “a direct and irreconcilable conflict,” which occurs when the state 22 court either (1) arrived at a conclusion opposite to the one reached by the Supreme Court on a 23 question of law or (2) confronted a set of facts materially indistinguishable from a relevant 24 Supreme Court decision but reached an opposite result. Murray v. Schriro, 745 F.3d 984, 997 25 (9th Cir. 2014) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision 26 is an “unreasonable application” of clearly established federal law under Section 2254(d)(1) 27 if the state court’s application of Supreme Court precedent was “objectively unreasonable, not 28 merely wrong.” White v. Woodall, 572 U.S. 415, 419 (2014). The petitioner must establish 6 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 7 of 29 Page ID #:1805

1 that “there [can] be no ‘fairminded disagreement’” that the clearly established rule at issue 2 applies to the facts of the case. See id. at 1706-07 (internal citation omitted). Finally, a state 3 court’s decision is based on an unreasonable determination of the facts within the meaning of 4 28 U.S.C. § 2254(d)(2) when the federal court is “convinced that an appellate panel, applying 5 the normal standards of appellate review, could not reasonably conclude that the finding is 6 supported by the record before the state court.” Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir.) 7 (internal quotation marks omitted), cert. denied, 135 S. Ct. 710 (2014). So long as 8 “‘[r]easonable minds reviewing the record might disagree,’” the state court’s determination of 9 the facts is not unreasonable. See Brumfield v. Cain, 576 U.S. 305, 314 (2015). 10 11 AEDPA thus “erects a formidable barrier to federal habeas relief for prisoners whose 12 claims have been adjudicated in state court.” White v. Wheeler, 577 U.S. 73, 77 (2015) (per 13 curiam) (internal quotation marks and citation omitted). Petitioner carries the burden of proof. 14 See Pinholster, 563 U.S. at 181. 15 16 II. The State Court Decision On Petitioner’s Claim In Ground One Is Entitled To 17 AEDPA Deference. 18 19 Petitioner presented his claim in Ground One on appeal in the California Court of 20 Appeal (Lodg. No. 4 at 24-31), which rejected it in a reasoned opinion (Lodg. No. 7 at 5-12). 21 Petitioner then presented the claim in his Petition for Review with the California Supreme 22 Court (Lodg. No. 8 at 19-27), which summarily denied it (Lodg. No. 9). Thus, Section 2254(d) 23 applies, and the Court looks through the California Supreme Court’s summary denial to the 24 last reasoned decision – the decision of the California Court of Appeal on direct review – to 25 determine whether the state court’s adjudication of Petitioner’s claim in Ground One is 26 unreasonable or contrary to clearly established federal law. See Johnson v. Williams, 568 U.S. 27 289, 297 n.1 (2013) (“Consistent with our decision in Ylst v. Nunnemaker, 501 U.S. 797, 806 28 (1991), the Ninth Circuit ‘look[ed] through’ the California Supreme Court’s summary denial 7 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 8 of 29 Page ID #:1806

1 of [the petitioner’s] petition for review and examined the California Court of Appeal’s 2 opinion.”); see also, e.g., Jones v. Harrington, 829 F.3d 1128, 1136 (9th Cir. 2016) (looking 3 through California Supreme Court’s summary denial of a petition for review to the California 4 Court of Appeal’s decision on direct review). 5 6 III. Petitioner’s Remaining Claims In Grounds Two To Five Are Reviewed De Novo. 7 8 Petitioner presented his claims in Grounds Two and Three on appeal in the California 9 Court of Appeal (Lodg. No. 4 at 31-47), which rejected them in a reasoned opinion (Lodg. No. 10 7 at 6-9). Petitioner did not, however, raise these claims before the California Supreme Court, 11 either in his Petition for Review or his habeas petition. (Lodg. Nos. 8, 11.) Thus, Ground 12 Two and Three are unexhausted. Respondent argues that, despite Petitioner’s failure to 13 exhaust Grounds Two and Three before the California Supreme Court, the Court nonetheless 14 should apply deference under the AEDPA to the reasoned merits adjudication by the lower 15 state court, the California Court of Appeal. (Dkt. No. 31 at 21-22.) It is unnecessary to resolve 16 this argument. “In addressing the merits, we need not decide whether a claim ‘adjudicated on 17 the merits’ by a state [lower] court is subject to AEDPA deference under § 2254(d) if the 18 habeas petitioner failed to exhaust the claim fully in the state courts. Rather, we may ‘engag[e] 19 in de novo review when it is unclear whether AEDPA deference applies, because a habeas 20 petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de 21 novo review.’” Stevens v. Davis, 25 F.4th 1141, 1165 (9th Cir. 2022) (quoting Berghuis v. 22 Thompkins, 560 U.S. 370, 390 (2010)). 23 24 Petitioner presented his claims in Grounds Four and Five in his habeas petition with the 25 California Supreme Court (Lodg. No. 11 at 3, 7), which rejected it solely on procedural 26 grounds (Lodg. No. 12). Thus, Grounds Four and Five also are reviewed de novo. See Amado 27 v. Gonzalez, 758 F.3d 1119, 1130 (9th Cir. 2014) (“If the claim was not ‘adjudicated on the 28 8 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 9 of 29 Page ID #:1807

1 merits’ by the state court, the review is de novo.”) (quoting Pirtle v. Morgan, 313 F.3d 1160, 2 1167 (9th Cir. 2002). 3 4 DISCUSSION 5 6 Respondent raises the additional argument that Grounds Four and Five are procedurally 7 defaulted. (Dkt. No. 31 at 15, 23.) However, because it is more efficient to resolve these 8 claims on the merits, the Court elects to resolve them on that basis. See Lambrix v. Singletary, 9 520 U.S. 518, 525 (1997); Floyd v. Filson, 949 F.3d 1128, 1138 (9th Cir. 2020) (citing 10 Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)). 11 12 I. Habeas Relief Is Not Warranted For Petitioner’s Claim Of Insufficiency Of The 13 Evidence (Ground One). 14 15 In Ground One, Petitioner claims that there was no substantial evidence that he knew 16 the officers were engaged in the lawful performance of their duty (Dkt. No. 1 at 5), which is 17 an element of Petitioner’s crime of conviction of resisting an executive officer with force or 18 violence (Penal Code § 69(a)). 19 20 A. Legal Standard. 21 22 “[T]he Due Process Clause protects the accused against conviction except upon proof 23 beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 24 charged.” In re Winship, 397 U.S. 358, 364 (1970). When a habeas petitioner challenges the 25 sufficiency of the evidence supporting the jury’s verdict, “the relevant question is whether, 26 after viewing the evidence in the light most favorable to the prosecution, any rational trier of 27 fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson 28 v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Jackson does not require that 9 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 10 of 29 Page ID #:1808

1 the prosecutor affirmatively “‘rule out every hypothesis except that of guilt.’” Wright v. West, 2 505 U.S. 277, 296 (1992) (citation omitted). Further, “‘[c]ircumstantial evidence and 3 inferences drawn from it may be sufficient to sustain a conviction.’” Walters v. Maass, 45 4 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted). When the factual record supports 5 conflicting inferences, the federal court must presume – even if it does not affirmatively appear 6 on the record – that the trier of fact resolved any such conflicts in favor of the prosecution and 7 defer to that resolution. Jackson, 443 U.S. at 326; McDaniel v. Brown, 558 U.S. 120, 133 8 (2010) (per curiam). Ultimately, for Petitioner’s claim to be successful, the jury’s finding 9 must be “so insupportable as to fall below the threshold of bare rationality.” Coleman v. 10 Johnson, 566 U.S. 650, 656 (2012) (per curiam). 11 12 When, as here, both Jackson and AEDPA apply to the same claim, the claim is reviewed 13 under a “twice-deferential standard.” Parker v. Matthews, 567 U.S. 37, 43 (2012) (per 14 curiam). Accordingly, this Court’s inquiry is limited to whether the California courts’ 15 rejection of Petitioner’s insufficiency of the evidence claims was an objectively unreasonable 16 application of Jackson. See Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011); Juan H. 17 v. Allen, 408 F.3d 1262, 1275 n.13 (9th Cir. 2005). 18 19 B. Analysis. 20 21 The California Court of Appeal rejected Petitioner’s claim that the evidence was 22 insufficient to establish he knew the officers were performing their duties: 23 24 The jury was instructed that the prosecution must prove (1) [Petitioner] 25 unlawfully used force or violence to resist an officer; (2) when he acted, the officer 26 was performing a lawful duty; and (3) [Petitioner] knew the officer was 27 performing a duty. In summation, defense counsel conceded that the officers were 28 performing their lawful duty and [Petitioner] “absolutely willfully resisted.” 10 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 11 of 29 Page ID #:1809

1 [Petitioner] argues that “[t]here was no evidence to support the knowledge 2 element of the charged crime.” We disagree. Viewing the evidence in the light 3 most favorable to the verdict, any rational trier of fact could find, beyond a 4 reasonable doubt, that [Petitioner] knew the officers were performing their duties. 5 (People v. Holt (1997) 15 Cal.4th 619, 667 [standard of review].) 6 7 Section 69 “is designed to protect police officers against violent 8 interference with performance of their duties.” (People v. Martin (2005) 133 9 Cal.App.4th 776, 782.) The defendant must know the person being resisted is an 10 officer engaged in the performance of his or her duties. (People v. Hendrix (2013) 11 214 Cal.App.4th 216, 237.) The jury was instructed that “[t]he duties of a peace 12 officer include responding to calls for service, investigating crimes, enforcing 13 parole terms and conditions, and arresting persons for arrest warrants.” 14 15 Substantial evidence supports the jury’s implied finding that [Petitioner] 16 knew uniformed officers were investigating his attempts to break down his 17 brother’s door. The first thing he asked was “Who called you?” Bracken replied, 18 “Oh, I’m not sure yet. But they did call us.” Moments later, McAlpine asked 19 [Petitioner], “are you on parole?” The jury could find that when [Petitioner] 20 resisted arrest, he knew the officers were performing their duties in responding to 21 a service call and checking his parole status, satisfying the knowledge element of 22 section 69. 23 24 [Petitioner] argues that he was unaware the officers intended to arrest him 25 on a warrant. However, the testimony shows that police have safety reasons not 26 to mention an arrest warrant, to avoid giving the arrestee an opportunity to plan 27 an escape or attack upon the officers. It is especially true here, where [Petitioner] 28 was agitated, appeared to be under the influence of drugs, and acknowledged that 11 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 12 of 29 Page ID #:1810

1 family members were hiding from him in fear. It is enough that [Petitioner] knew 2 the officers entered the yard and detained him to carry out their duty to investigate 3 a citizen complaint about his violent behavior, even if he was unaware of the arrest 4 warrant. As a matter of public policy, a person who knows or should know that 5 he is being arrested by police has a duty “to refrain from using force or any weapon 6 to resist such arrest,” even if the arrest is unlawful. (§ 834a; People v. Richards 7 (2017) 18 Cal.App.5th 549, 564.) 8 9 (Lodg. No. 7 at 4-5.) 10 11 The California Court of Appeal’s rejection of Petitioner’s claim did not involve an 12 unreasonable application of “the already deferential Jackson standard.” Kyzar v. Ryan, 780 13 F.3d 940, 949 (9th Cir. 2015). The evidence presented at trial was sufficient for a rational jury 14 to find that Petitioner knew the officers were performing their duties. The officers told 15 Petitioner that “they did call us” (Supplemental Clerk’s Transcript (“Supp. CT”) 9, 31) and 16 asked Petitioner if he was on parole (Supp. CT 11, 32). From this evidence, a rational jury 17 could find that Petitioner knew the officers were performing their duties by responding to a 18 service call and by checking his parole status. 19 20 This evidence was not rendered insufficient by other evidence that, before head butting 21 Officer Bracken, Petitioner was unaware the officers intended to arrest him on a warrant.2 The 22 jury heard evidence that Petitioner, throughout the incident, repeatedly demanded to see an 23 arrest warrant (Supp. CT 5, 7; 1 RT 151, 164) or “paperwork” (Supp. CT 7, 20, 40), but that 24 the officers never showed him proof of the warrant (1 RT 124, 137). But Officers Bracken 25 and McAlpine gave multiple explanations for that action: they are not required to show a 26 27 2 It was only after Petitioner head butted Officer Bracken that Officer Toney told Petitioner that Petitioner had a warrant (Supp. CT 15, 36) and would be taken to the station on that 28 warrant (Supp. CT 20, 40). 12 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 13 of 29 Page ID #:1811

1 warrant to an arrested person (1 RT 151), the warrant is not available until the person arrives 2 at the jail (1 RT 137-38), they may decline to tell a person about the warrant because of safety 3 issues (1 RT 138), and they did not want to give Petitioner a reason to prepare for an escape 4 or an assault (1 RT 145). But the fact that the officers did not give Petitioner information 5 about the warrant before Petitioner struck Officer Bracken did not mean that Petitioner lacked 6 actual knowledge, from other sources of information, that the officers were engaged in the 7 performance of their duties. 8 9 Under California law, “[r]equiring proof of actual knowledge does not mean that a 10 defendant can avoid culpability under Penal Code section 69 merely by asserting a belief that 11 an officer had no right to detain him.” In re A.L., 38 Cal. App. 5th 15, 22 (2019). “The trier 12 of fact is not required to accept the defendant’s version of events, particularly if it is at odds 13 with other evidence.” Id. Here, a rational jury was not required to accept Petitioner’s assertion 14 that he did not know the officers were performing their duties merely because of evidence that 15 they failed to give him information about the arrest warrant. Other evidence showed that the 16 officers gave Petitioner reasons independent of the warrant for detaining him, based on a 17 service call (Supp. CT 9, 31) and a parole status check (Supp. CT 11, 32). It was not 18 objectively unreasonable for the state court to conclude that this evidence was sufficient for a 19 rational jury to find that the knowledge element of the crime of conviction was proven beyond 20 a reasonable doubt. Thus, this claim is denied. 21 22 II. Habeas Relief Is Not Warranted For Petitioner’s Claim Of Instructional Error 23 (Ground Two). 24 25 In Ground Two, Petitioner claims that the trial court prejudicially erred in not instructing 26 sua sponte on assault as a lesser-included offense. (Id. at 5-6.) 27 /// 28 /// 13 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 14 of 29 Page ID #:1812

1 Respondent argues that this claim should be denied for multiple reasons: it is barred by 2 Teague v. Lane, 489 U.S. 288 (1989); it is not cognizable in a federal habeas proceeding; and, 3 in any event, it lacks merit. (Dkt. No. 31 at 27, 30-34.) Each argument is addressed in turn. 4 5 A. The Claim Is Barred by Teague. 6 7 Respondent first argues that relief for Ground Two is barred by the non-retroactivity 8 principle of Teague, 489 U.S. 288. (Dkt. No. 31 at 30-32.) Respondent specifically argues 9 that granting relief on this claim would require the announcement of “a new rule of 10 constitutional law . . . that a defendant’s right to present a defense in a noncapital criminal trial 11 includes the right to have the jury instructed on lesser-included offenses.” (Id. at 30.) 12 13 “[N]ew constitutional rules of criminal procedure will not be applicable to those cases 14 which have become final before the new rules are announced.” Teague, 489 U.S. at 310. “In 15 general . . . a case announces a new rule when it breaks new ground or imposes a new 16 obligation on the States or the Federal Government.” Id. at 301. “To put it differently, a case 17 announces a new rule if the result was not dictated by precedent existing at the time the 18 defendant’s conviction became final.” Id. (emphasis in original). Under Teague, there were 19 two narrow exceptions to its principle of non-retroactivity. Id. at 311-13. “The first, limited 20 exception is for new rules forbidding criminal punishment of certain primary conduct [and] 21 rules prohibiting a certain category of punishment for a class of defendant because of their 22 status or offense.” O’Dell v. Netherland, 521 U.S. 151, 157 (1997) (citation and internal 23 quotation marks omitted). The second exception is for “watershed rules of criminal procedure 24 implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. (citation 25 and internal quotation marks omitted). To determine whether a habeas petitioner is entitled to 26 the application of a particular rule under Teague, a federal habeas court is to perform a three- 27 step analysis: (1) determine the date on which the defendant’s conviction became final; 28 14 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 15 of 29 Page ID #:1813

1 (2) determine whether the rule is new; and (3) if the rule is new, determine whether the rule 2 nonetheless falls within one of the two narrow exceptions. Id. at 156-57. 3 4 When Petitioner’s conviction became final in 2019, no existing precedent dictated a 5 right to a jury instruction on lesser included offenses in non-capital cases. Moreover, the Ninth 6 Circuit had held that to extend federal habeas relief for such claims in non-capital cases would 7 create a new rule under Teague. See Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995), 8 overruled on other ground by Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999) (en banc). 9 Thus, federal habeas relief cannot be granted here unless the district court, in contravention of 10 Teague, were to announce and apply a new rule that was not dictated by existing precedent 11 when Petitioner’s conviction became final. See Greenawalt v. Ricketts, 943 F.2d 1020, 1024 12 (9th Cir. 1991) (“[Teague] applies equally to all levels of the federal judiciary; a new rule 13 announced by a district court can have no greater retroactive effect than one announced 14 directly by the Supreme Court.”). 15 16 Because Petitioner’s claim that he was entitled to an instruction on a lesser-included 17 offense would require the announcement of a new rule that “is unsupported by existing case 18 law, we must decide whether it falls within either of the two exceptions to the principle that 19 we cannot adopt and apply retroactively new federal constitutional rights in state prison habeas 20 corpus proceedings.” Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990). The first exception— 21 for the decriminalization of certain primary conduct or the prohibition of punishment for a 22 class of defendants—is inapplicable here. The primary conduct in this case is the knowing 23 resistance of an officer’s execution of duties with force or violence, “the prosecution of which 24 is, to put it mildly, not prohibited by the [new] rule”; nor would the new rule place “a 25 prohibition on the imposition of a particular punishment on a certain class of offenders.” 26 Butler v. McKellar, 494 U.S. 407, 415 (1990). The second exception—for a “watershed” rule 27 of criminal procedure—no longer exists. Edwards v. Vannoy, 141 S. Ct. 1547, 1560 (2021) 28 (holding that “[t]he watershed exception is moribund” and “must be regarded as retaining no 15 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 16 of 29 Page ID #:1814

1 vitality”) (citation and internal quotation marks omitted); see also Ochoa v. Davis, 16 F.4th 2 1314, 1338 (9th Cir. 2021) (noting that Vannoy eliminated the watershed exception). Because 3 neither exception is available, federal habeas relief for Petitioner’s claim of instructional error 4 is precluded by the non-retroactivity principle of Teague. 5 6 B. The Claim Is Not Cognizable. 7 8 Respondent next argues that relief is unavailable for Ground Two because it fails to state 9 a cognizable federal question. (Dkt. No. 31 at 32.) 10 11 A criminal defendant in a capital case has a federal constitutional right to have the jury 12 instructed on a lesser-included offense in certain instances. See Beck v. Alabama, 447 U.S. 13 625, 638 (1980). But in a non-capital criminal case, such as this case, a state trial court’s 14 failure to instruct a jury on a lesser-included offense is not cognizable as a claim on federal 15 habeas review. See Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984) (in a non-capital 16 case, the “[f]ailure of a state court to instruct on a lesser offense fails to present a federal 17 constitutional question and will not be considered in a habeas corpus proceeding.”) (quoting 18 James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976) (per curiam)); see also Solis v. Garcia, 219 19 F.3d 922, 929 (9th Cir. 2000) (per curiam) (same); Windham v. Merkle, 163 F.3d 1092, 1106 20 (9th Cir. 1998) (“Under the law of this circuit, the failure of a state trial court to instruct on 21 lesser included offenses in a non-capital case does not present a federal constitutional 22 question.”). 23 24 Although an exception may exist, such that a defendant in a non-capital case would be 25 “entitled to adequate instructions on his or her theory of defense,” Bashor, 730 F.2d at 1240, 26 such an exception would not apply here. Petitioner’s theory of defense was that he did not 27 purposefully or willfully strike Officer Bracken but, instead, was trying to get away and protect 28 himself during a stressful, fast-paced, physical interaction. (1 RT 82; 2 RT 222, 234.) This 16 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 17 of 29 Page ID #:1815

1 theory of defense is inconsistent with assault, which requires “that the defendant willfully or 2 purposefully attempted a violent injury or the least touching, i.e., any wrongful act committed 3 by means of physical force against the person of another.” People v. Golde, 163 Cal. App. 4th 4 101, 108 (2008) (citation and internal quotation marks omitted). Because Petitioner’s claim 5 of entitlement to the assault instruction did not implicate his theory of defense, his claim does 6 not raise a federal constitutional question. 7 8 C. The Claim Lacks Merit. 9 10 Respondent finally argues that, in any event, Petitioner’s claim of instructional error 11 lacks merit. (Dkt. No. 31 at 32-34.) 12 13 1. Legal Standard. 14 15 As noted, a criminal defendant in a capital case has a federal constitutional right to have 16 the jury instructed on a lesser-included offense in some instances. Beck, 447 U.S. at 638. The 17 “goal of the Beck rule . . . is to eliminate the distortion of the fact-finding process that is created 18 when the jury is forced into an all-or-nothing choice between capital murder and innocence.” 19 Schad v. Arizona, 501 U.S. 624, 646-47 (1991), abrogated on other ground as stated by 20 Vannoy, 141 S. Ct. at 1556 n.4; see also Turner v. Calderon, 281 F.3d 851, 886 (9th Cir. 2002) 21 (citing Villafuerte v. Stewart, 111 F.3d 616, 622-23 (9th Cir. 1997)). 22 23 But even in that context, “[d]ue process requires that a lesser included offense 24 instruction be given only when the evidence warrants such an instruction.” Hopper v. Evans, 25 456 U.S. 605, 611 (1982) (emphasis in original). No due process violation occurs from the 26 failure to instruct on a lesser-included offense when “the record does not support such an 27 instruction.” Carriger v. Lewis, 971 F.2d 329, 336 (9th Cir. 1992) (en banc); see also Ceja v. 28 Stewart, 97 F.3d 1246, 1254 (9th Cir. 1996); Solis, 219 F.3d at 929. 17 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 18 of 29 Page ID #:1816

1 2. Background. 2 3 Although this claim is reviewed de novo, the California Court of Appeal’s discussion of 4 the claim provides background: 5 6 Assault is a necessarily included lesser offense of section 69 if the defendant is 7 alleged to have resisted an officer with force or violence. (People v. Brown (2016) 8 245 Cal.App.4th 140, 153 (Brown).) Defense counsel did not request an assault 9 instruction; instead, the jury was instructed on the offense of resisting a peace 10 officer. (§ 148, subd. (a).)[2] We review de novo the court’s failure to give a 11 necessarily included offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) 12 [2] The jury was instructed that section 148 applies if (1) Bracken 13 was lawfully performing or attempting to perform her duties; (2) 14 [Petitioner] willfully resisted her performance of those duties; and 15 (3) he knew or reasonably should have known that she was a police 16 officer performing or attempting to perform her duties. 17 18 “[A] trial court is not required to instruct the jury on a necessarily included 19 offense ‘“when there is no evidence that the offense was less than that charged.”‘” 20 (People v. Smith (2013) 57 Cal.4th 232, 245, quoting People v. Breverman (1998) 21 19 Cal.4th 142, at p. 154.) We conclude that the court was not required to instruct 22 on assault because there is no evidence that the crime was less than the charged 23 offense. 24 25 The evidence established that [Petitioner] knew why the officers were 26 there. Hai Duong called 911, saying that [Petitioner] was trying to break down 27 the door. Officers were dispatched to investigate. [Petitioner] was not visible 28 from the street. The officers sought him out by passing through a gate into a side 18 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 19 of 29 Page ID #:1817

1 yard. He immediately asked who called them and was told they were there 2 because someone called for help. He was questioned about his parole status. No 3 reasonable juror could conclude that [Petitioner] was unaware the officers were 4 carrying out their duties when he resisted them with force or violence. 5 6 Though [Petitioner] may not have known about a warrant for his arrest, an 7 officer’s duties extend beyond executing arrest warrants, and the jury was so 8 instructed. It is of no moment if [Petitioner] was unsure whether they were 9 arresting him for making criminal threats, trespassing, or a parole violation. 10 11 [Petitioner] relies on Brown, supra, 245 Cal.App.4th 140. It does not assist 12 him. Brown fought with officers who wanted to cite him for riding a bicycle 13 without a light on the sidewalk while wearing headphones. He claimed the 14 officers attacked him without provocation while he was lying face down after 15 falling; the officers claimed that he attacked them. (Id. at pp. 146-147.) An assault 16 instruction was required because there were conflicting versions of the event that 17 could allow the jury to conclude “that Brown used excessive force or violence to 18 resist arrest only in response to the officers’ unreasonable force. Under that 19 scenario, Brown could have been found not guilty of the section 69 violation, but 20 still guilty of the lesser crime of assault.” (Id. at p. 154.) 21 22 No such ambiguity exists here. Body camera images show that officers 23 approached [Petitioner] and spoke to him calmly and respectfully. After a brief 24 discussion, McAlpine took appellant’s wrist. He responded by fighting McAlpine 25 and head butting Bracken, yet suffered no injury despite his unexpected violence. 26 His case is not analogous to Brown, in which the defendant and the officers 27 described different versions of their encounter and a jury could find that Brown 28 was trying to protect himself from an unprovoked beating. No jury could make 19 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 20 of 29 Page ID #:1818

1 such a finding here. Camera images show that [Petitioner] violently resisted a 2 concededly lawful arrest made without excessive force. 3 4 (Lodg. No. 7 at 6-8.) 5 6 3. Analysis. 7 8 Even assuming that the constitutional protections stated in the Beck rule could be 9 applicable to Petitioner’s non-capital case, he has not shown that the trial court’s failure to 10 instruct the jury on the lesser-included offense of assault was a due process violation. First, 11 the absence of an assault instruction did not implicate the central concern of the Beck rule, 12 because the jury was not left with an “all-or nothing choice” between guilt and innocence. 13 Schad, 501 U.S. at 646-67; Turner, 281 F.3d at 887; Villafuerte, 111 F.3d 623. Instead, the 14 jury was given the option to find Petitioner guilty of the lesser offense of resisting, obstructing, 15 or delaying a peace officer. (2 RT 207; CT 92.) Thus, “the all-or-nothing situation found 16 intolerable in Beck was not present here.” Villafuerte, 111 F.3d at 623. 17 18 Second, given that the jury was not forced into an “all or nothing” choice, the trial court 19 had no constitutional duty to give instructions on other offenses sua sponte. “Beck did not 20 hold that a trial judge must give a lesser offense jury instruction sua sponte.” Carriger, 971 21 F.2d at 335 (emphasis in original); see also Bashor, 730 F.2d at 1240 (no due process violation 22 from the state trial court’s failure to give a lesser included offense instruction where the 23 defense failed to request it and objected to it). In particular, under the circumstances here, 24 where the jury had the option of convicting Petitioner of the lesser-included offense of 25 resisting, obstructing, or delaying a peace officer, the trial court had no constitutional duty to 26 give the jury, sua sponte, the additional option of assault. See Murtishaw v. Woodford, 255 27 F.3d 926, 955 (9th Cir. 2001) (“Contrary to [Petitioner’s] argument, Beck does not require trial 28 courts to provide sua sponte instructions on each theory that could justify a lesser included 20 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 21 of 29 Page ID #:1819

1 offense. Rather, it merely requires courts to provide instructions on the lesser included 2 offenses, thus preventing the State from forcing juries to make an ‘all or nothing’ choice[.]” 3 4 Third, the evidence did not warrant an instruction on the lesser-included offense of 5 assault. See Carriger, 971 F.2d at 336; Ceja, 97 F.3d at 1254; Solis, 219 F.3d at 929. This 6 question turns on whether a conviction on the lesser included offense “was a rational 7 alternative based on all the evidence in the case.” Vickers v. Ricketts, 798 F.2d 369, 371 (9th 8 Cir. 1986). Here, Petitioner argued that a conviction for assault could have been an alternative 9 based on evidence that he resisted the officers without actual knowledge that they were 10 performing their lawful duties. (Lodg. No. 4 at 36-37.) But despite the evidence that Petitioner 11 did not know the officers were executing an arrest warrant (1 RT 124, 137), a jury would have 12 had to conclude that Petitioner nonetheless actually knew the officers were performing their 13 duties by responding to a service call (Supp. CT 9, 31) and by checking his parole status (Supp. 14 CT 11, 32). Because Petitioner’s evidence that he lacked actual knowledge was minimal in 15 light of all the evidence in the case, a conviction for the lesser-included offense of assault was 16 not a rational alternative. See Clabourne v. Lewis, 64 F.3d 1373, 1380 (9th Cir. 1995) (no due 17 process violation from the failure to instruct on a lesser-included offense for which the 18 evidence was “minimal,” such that the jury could not rationally have found the petitioner guilty 19 of only that offense). Because federal habeas relief also is unwarranted on the merits, this 20 claim is denied. 21 22 III. Habeas Relief Is Not Warranted For Petitioner’s Claim Of Evidentiary Error 23 (Ground Three). 24 25 In Ground Three, Petitioner claims that the trial court committed prejudicial error in 26 admitting evidence concerning the existence of two restraining orders against Petitioner. (Id. 27 at 6.) 28 /// 21 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 22 of 29 Page ID #:1820

1 A. Legal Standard. 2 3 “A federal habeas court, of course, cannot review questions of state evidence law. On 4 federal habeas review, we may consider only whether the petitioner’s conviction violated 5 constitutional norms.” Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999) (citing Jammal 6 v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991)). A federal court’s “review of evidentiary 7 rulings is confined to ‘determining whether the admission of evidence rendered the trial so 8 fundamentally unfair as to violate due process.’” Larson v. Palmateer, 515 F.3d 1057, 1066 9 (9th Cir. 2008) (quoting Windham, 163 F.3d at 1103). “Only if there are no permissible 10 inferences the jury may draw from the evidence can its admission violate due process. Even 11 then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’” Jammal, 926 12 F.2d at 920 (quoting Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986)). “Only 13 under such circumstances can it be inferred that the jury must have used the evidence for an 14 improper purpose.” Jammal, 926 F.2d at 920. 15 16 B. Background. 17 18 The jury heard evidence referencing the fact that Petitioner was the subject of two 19 restraining orders. (1 RT 87-88; Supp. CT 28.) It was never proven, however, that the 20 restraining orders were connected to the person who had called 911 or to that person’s house. 21 Although this claim is reviewed de novo, the California Court of Appeal’s discussion of the 22 claim provides background: 23 24 Citing Evidence Code section 352, [Petitioner] moved to exclude evidence 25 that he was the subject of two restraining orders, which were unconnected to Hai 26 Duong and his house. The court denied his motion. The court has broad discretion 27 to determine the admissibility of evidence; we review its ruling for abuse of 28 discretion. (People v. Riggs (2008) 44 Cal.4th 248, 289-290.) 22 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 23 of 29 Page ID #:1821

1 The restraining orders were not admitted into evidence. They were 2 mentioned in the dispatch to patrol officers, to show what information they had 3 and how it affected their actions. A dispatch recording is nontestimonial evidence 4 describing police actions. (People v. Mitchell (2005) 131 Cal.App.4th 1210, 5 1224-1225.) When Bracken responded to the service call, she believed 6 [Petitioner] was violating restraining orders by trying to force his way into a home. 7 8 The court was within the bounds of reason in ruling that the evidence was 9 not unduly prejudicial. (Evid. Code, § 352; People v. Orloff (2016) 2 Cal.App.5th 10 947, 956-957.) The court instructed the jury three times that matters discussed in 11 the dispatch recording, including the restraining orders, “is not being admitted to 12 prove that what’s actually said here is true. It’s being admitted because that’s the 13 information the police had when they went to the scene to explain why they did 14 what they did” and what the police “thought was going on at the time they went 15 to the residence.” We must presume the jury followed the instructions. (People 16 v. Gonzales (2011) 51 Cal.4th 894, 940.) 17 18 The evidence against [Petitioner] was overwhelming. It is highly 19 improbable that a more favorable outcome would have been achieved if the 20 restraining orders had not been mentioned. Hai Duong called 911 seeking police 21 assistance because [Petitioner] was trying to break down his door. Three officers 22 went to the Duong residence and encountered [Petitioner]; he knew that someone 23 called them. His unprovoked violence was filmed from three angles and shown 24 to the jury. 25 26 (Lodg. No. 7 at 8-9.) 27 /// 28 /// 23 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 24 of 29 Page ID #:1822

1 C. Analysis. 2 3 Petitioner has not shown that the jury’s exposure to evidence referring to the restraining 4 orders violated his right to due process. First, the jury could have drawn permissible inferences 5 from that evidence. See Kipp v. Davis, 971 F.3d 939, 956 (9th Cir. 2020) (“[W]e have found 6 no due process violation where there were permissible inferences that the jury could draw from 7 the challenged evidence.”) (emphasis in original) (collecting cases). Although the evidence 8 of the restraining orders were not proven to be connected to the officers’ service call on the 9 night of the incident, the evidence nonetheless helped explain why the officers acted as they 10 did during their encounter with Petitioner. Indeed, Officer Bracken testified that she believed 11 the restraining orders did relate to the residence to which the officers were making the service 12 call. (1 RT 103.) Thus, evidence of the restraining orders was “relevant to a fact of 13 consequence” (i.e., the officers’ actions) and did not “lead only to impermissible inferences 14 about [Petitioner’s] character.” Windham, 163 F.3d at 1104 (quoting McKinney v. Rees, 993 15 F.2d 1378, 1381 (9th Cir. 1993)). 16 17 Second, the trial court instructed the jury about the permissible inferences that could be 18 drawn from the evidence of the restraining orders. “In such cases, ‘we must rely on the jury 19 to sort [the inferences] out in light of the court’s instructions.’” Boyde v. Brown, 404 F.3d 20 1159, 1172 (9th Cir. 2005) (alteration in original) (quoting Jammal, 926 F.2d at 920). 21 Specifically, the trial court instructed the jury that “this evidence is not being admitted to prove 22 that what’s actually said here is true,” but, rather, was being admitted “because that’s the 23 information the police had when they went to the scene to explain why they did what they 24 did.” (1 RT 85.) The trial court subsequently instructed the jury on two more occasions that 25 evidence of the restraining orders were not being offered for their truth, but to explain why the 26 officers acted as they did. (1 RT 90, 105.) Finally, the jury was instructed that “certain 27 evidence was admitted for a limited purpose” and that it could “consider that evidence only 28 for that purpose and for no other.” (2 RT 203; CT 85.) “Because we must presume that the 24 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 25 of 29 Page ID #:1823

1 jury followed its instructions to consider only the permissible inference [from the evidence], 2 . . . admission of evidence about the [restraining orders] did not violate due process.” Boyde, 3 404 F.3d at 1173. 4 5 Third, “the properly admitted evidence of [Petitioner’s] guilt was substantial.” Correll 6 v. Stewart, 137 F.3d 1404, 1417 (9th Cir. 1998). The properly admitted evidence showed that 7 the police were called to the residence because Petitioner was trying to break down the door. 8 (Supp. CT 22-23.) When the officers arrived, they told Petitioner that someone had called 9 them (Supp. CT 9, 31) and asked him about his parole status (Supp. CT 11, 32), establishing 10 that Petitioner actually knew they were engaged in the performance of their duties. Petitioner 11 head butted Officer Bracken without provocation. (1 RT 110, 147; Supp. CT 12, 13, 33, 34.) 12 While he was being transported to jail, Petitioner admitted that he had knocked Officer 13 Bracken in the head. (Supp. CT 5.) Given this evidence, “it was highly improbable that the 14 error, if any, ‘had substantial and injurious effect or influence in determining the jury’s 15 verdict[.]’” Correll, 137 F.3d at 1417 (quoting McKinney, 993 F.2d at 1380 (quoting Brecht 16 v. Abrahamson, 507 U.S. 619, 623 (1993))); see also Ghent v. Woodford, 279 F.3d 1121, 1127 17 (9th Cir. 2002) (“Several cases find the erroneous admission . . . of evidence harmless because 18 of the overwhelming evidence of the guilt of the defendant.”). Thus, this claim is denied. 19 20 IV. Habeas Relief Is Not Warranted For Petitioner’s Miranda Claim (Ground Four). 21 22 In Ground Four, Petitioner claims that the arresting officers violated Petitioner’s rights 23 under Miranda v. Arizona, 384 U.S. 436 (1966). (Dkt. No. 1 at 6.) 24 25 A. Legal Standard. 26 27 “Miranda ‘determined that the Fifth and Fourteenth Amendments’ prohibition against 28 compelled self-incrimination required that custodial interrogation be preceded by advice to the 25 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 26 of 29 Page ID #:1824

1 putative defendant that he has the right to remain silent and the right to the presence of an 2 attorney.’” Robertson v. Pichon, 849 F.3d 1173, 1183 (9th Cir. 2017) (quoting Edwards v. 3 Arizona, 451 U.S. 477, 481-82 (1981) (citing Miranda, 384 U.S. at 479))). But “the special 4 procedural safeguards outlined in Miranda are required not where a suspect is simply taken 5 into custody, but rather where a suspect is subject to interrogation. ‘Interrogation,’ as 6 conceptualized in the Miranda opinion, must reflect a measure of compulsion above and 7 beyond that inherent in custody itself.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). The 8 term “interrogation” means “express questioning or its functional equivalent.” Id. at 300-01. 9 “Absent such interrogation, there would have been no infringement of the right[.]” Edwards, 10 451 U.S. at 486. 11 12 B. Analysis. 13 14 During a hearing on the admissibility of the audiotape of Officer Bracken’s transport of 15 Petitioner to the jail, Officer Bracken testified that Petitioner was under arrest at that time but 16 she did not give Petitioner Miranda warnings. (1 RT 26.) Officer Bracken also testified that 17 she did not ask Petitioner any questions or attempt to elicit any incriminating responses from 18 him. (Id.) During the ride, Petitioner stated that he wanted to see the arrest warrant and that 19 “I kick . . . your head” and “I knock your head.” (Supp. Ct. 5, 7.) The trial court allowed the 20 audiotape of these statements into evidence because, among other things, the statements were 21 not the subject of a custodial interrogation. (1 RT 46.) 22 23 As an initial matter, Petitioner’s Miranda claim is conclusory. “It is well-settled that 24 ‘[c]onclusory allegations which are not supported by a statement of specific facts do not 25 warrant habeas relief.’” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (alteration in 26 original) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)). Petitioner’s claim is “argued 27 in a single page, without reference to the record or any document.” Jones, 66 F.3d at 204 28 26 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 27 of 29 Page ID #:1825

1 (internal quotation marks omitted). Because Petitioner’s “conclusory allegations did not meet 2 the specificity requirement,” his claim may be denied on this ground. Id. at 205. 3 4 Even if Petitioner’s claim could be construed as challenging, under Miranda, the 5 admission of his audiotaped statements to Officer Bracken in the police car (Dkt. No. 1 at 6), 6 that claim is meritless. Petitioner’s statements, though made while he was in custody, were 7 volunteered rather than the product of an interrogation. See Innis, 446 U.S. at 302 (Miranda 8 did not apply to defendant’s volunteered statement made in a police car while under arrest); 9 Cox v. Del Papa, 542 F.3d 669, 675 (9th Cir. 2008) (Miranda did not apply to petitioner’s 10 spontaneous statements to police detectives during a ride from Arizona to Nevada; “Miranda 11 applies only ‘where a suspect in custody is subjected to interrogation.’”) (emphasis in original) 12 (quoting Innis, 446 U.S. at 300). Petitioner has never alleged that Officer Bracken subjected 13 him either to “express questioning or its functional equivalent.” Innis, 446 U.S. at 300-01. 14 Thus, this claim is denied. 15 16 V. Habeas Relief Is Not Warranted For Petitioner’s Due Process And Brady Claim 17 (Ground Five). 18 19 In Ground Five, Petitioner claims that there were violations of due process and Brady v. 20 Maryland, 373 U.S. 83 (1963), because the video evidence was inadequate, inaudible, and cut 21 off. (Dkt. No. 1 at 6.) 22 23 A. Legal Standard. 24 25 “Under Brady, prosecutors are responsible for disclosing ‘evidence that is both 26 favorable to the accused and material either to guilt or to punishment.’” Browning v. Baker, 27 875 F.3d 444, 459 (9th Cir. 2017) (quoting United States v. Bagley, 473 U.S. 667, 674 (1985)). 28 “To establish a Brady violation, [Petitioner] must show: ‘(1) the evidence at issue is favorable 27 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 28 of 29 Page ID #:1826

1 to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence 2 was suppressed by the government, regardless of whether the suppression was willful or 3 inadvertent; and (3) the evidence is material to the guilt or innocence of the defendant.’” 4 Sanders v. Cullen, 873 F.3d 778, 802 (9th Cir. 2017) (quoting United States v. Sedaghaty, 728 5 F.3d 885, 899 (9th Cir. 2013)). 6 7 B. Analysis. 8 9 Each of the three officers involved in arresting Petitioner took body camera video of the 10 incident. (1 RT 109, 141, 173.) However, Officer Bracken testified that she “muted the sound 11 on my body-worn camera once we had placed [Petitioner] inside the patrol unit to have a 12 conversation with the other officers that were on the scene.” (1 RT 117.) Officer Bracken 13 further testified that the video continued to record while the sound was turned off and that she 14 “turned the sound back on as I entered my patrol vehicle to transport [Petitioner] to County 15 Jail.” (Id.) 16 17 As an initial matter, Petitioner’s Brady claim is conclusory. Petitioner’s claim is “argued 18 in a single page, without reference to the record or any document.” Jones, 66 F.3d at 204 19 (internal quotation marks omitted). Because Petitioner’s “conclusory allegations did not meet 20 the specificity requirement,” his claim may be denied on this ground. Id. at 205. 21 22 Even if Petitioner’s claim could be construed as challenging, under Brady, the 23 “inadequate,” “inaudible,” or “cut off” portions of the video evidence (Dkt. No. 1 at 6), that 24 claim is meritless. Petitioner has failed to allege what was favorable and material from the 25 video evidence. Petitioner’s claim is speculative. See Runningeagle v. Ryan, 686 F.3d 758, 26 769-70 (9th Cir. 2012) (petitioner most do more than “merely speculate” that evidence was 27 favorable and material in order to state a Brady claim) (collecting cases including Wood v. 28 Bartholomew, 516 U.S. 1, 6, 8 (1995) (“[W]here, as in this case, a federal appellate court . . . 28 Case 2:20-cv-06040-KS Document 46 Filed 07/22/22 Page 29 of 29 Page ID #:1827

1 || grants habeas relief on the basis of little more than speculation with slight support, the proper 2 || delicate balance between the federal courts and the States is upset to a degree that requires 3 || correction.”’)); see also Martinez v. Ryan, 926 F.3d 1215, 1228-29 (9th Cir. 2019) (“wholly 4 || speculative” contentions are insufficient to establish a Brady violation); Ayala v. Chappell, 5 || 829 F.3d 1081, 1110 (9th Cir. 2016) (“sparse allegations” are insufficient to establish a Brady 6 || violation). Moreover, Petitioner has failed to allege how any evidence was suppressed, in that 7 || he has failed to allege how the State impeded him from ascertaining video evidence that was 8 || supposedly favorable and material. See United States y. Aichele, 941 F.2d 761, 764 (9th Cir. 9 || 1991) (“Where, as here, a defendant has enough information to be able to ascertain the 10 || supposed Brady material on his own, there is no suppression by the government.”); see also 11 || United States v. Bond, 552 F.3d 1092, 1096 (9th Cir. 2009) (stating that the above passage 12 || from Aichele is binding precedent “at least in cases like Aichele where there was no 13 || government action to throw the defendant off the path of the alleged Brady information”). 14 || Thus, this claim is denied. 15 16 ORDER 17 18 For all of the foregoing reasons, IT IS ORDERED that the Petition is denied and that 19 || Judgment shall be entered dismissing this action with prejudice. 20 21 |} DATED: July 22, 2022 22 : ZL, 3 KAREN L. STEVENSON 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 29