Case 2:19-cv-01681-CAS-JEM Document 152 Filed 01/06/23 Page 1 of 8 Page ID #:7587

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 DONIVAN DIAZ, ) Case No. 2:19-cv-01681-CAS (JEM) ) 12 ) Petitioner, ) ORDER ACCEPTING FINDINGS 13 ) AND RECOMMENDATIONS OF ) v. ) UNITED STATES MAGISTRATE 14 ) JUDGE ) 15 RAYMOND MADDEN, ) ) 16 ) Respondent. ) 17 ) 18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the records and files 20 herein, including the petition for writ of habeas corpus (Dkts. 1–4, “Petition”), the 21 first amended petition (Dkt. 13, “FAP”), respondent’s answer (Dkt. 59), 22 petitioner’s reply (Dkt. 75), respondent’s supplemental answer (Dkt. 135), 23 petitioner’s supplemental reply (Dkt. 139), the Report and Recommendation of the 24 United States Magistrate Judge (Dkt. 142, “Report”), and petitioner’s objections to 25 the report (Dkt. 148, “Objection”). Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. 26 R. Civ. P. 72(b), the Court has conducted a de novo review of the matters to which 27 objections have been stated. Petitioner’s assertions and arguments have been Case 2:19-cv-01681-CAS-JEM Document 152 Filed 01/06/23 Page 2 of 8 Page ID #:7588

1 reviewed carefully. The Court, however, concludes that nothing set forth in the 2 Objection or otherwise in the record for this case affects, alters, or calls into 3 question the findings and analysis set forth in the Report. Therefore, the Court 4 concurs with and accepts the findings and recommendations of the Magistrate 5 Judge. 6 Diaz, a prisoner in California state custody, was convicted of first degree 7 murder under Cal. Penal Code § 187(a). Additionally, pursuant to Cal. Penal Code 8 § 190.2(a), the jury found the existence of a felony-murder special circumstance, 9 requiring death penalty or, in this case, life imprisonment without parole. See 10 Report at 2. Petitioner filed an appeal in the California Court of Appeal, which 11 affirmed the judgment, and filed a petition for review in the California Supreme 12 Court which summarily denied the petition. Id. at 3. Diaz has filed a petition for 13 writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting 60 claims for relief.1 14

15 1 Petitioner’s remaining claims are: (1) insufficient evidence to support 16 conviction; (2) violation of right to a speedy trial; (3) violation of due process and 17 fair trial rights by prosecutor’s untimely disclosure of evidence; (6) violation of 18 right to be present at critical stages of the trial; (7) violation of rights to due 19 process and impartial jury by trial court’s failure to conduct inquiry into possible 20 juror misconduct; (9) violation of right to present a defense by the exclusion of 21 third party culpability evidence; (10) violation of due process rights by 22 prosecutorial misconduct during closing argument; (11) ineffective assistance of 23 trial counsel by failing to object to prosecutorial misconduct; (12) ineffective 24 assistance of trial counsel by failing to challenge a search warrant; (14) ineffective 25 assistance of trial counsel by failing to investigate and present evidence of 26 alternative suspects; (15) ineffective assistance of trial counsel by failing to present 27 certain statements of witness Robert Lattier; (16) ineffective assistance of trial

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2 counsel by failing to present certain statements of witness Chauncey Cherry; (17) 3 ineffective assistance of trial counsel by failing to present certain statements of 4 witness Porscha Chambers; (18) ineffective assistance of trial counsel by failing to 5 present certain statements of witness Paula Cherry; (19) ineffective assistance of 6 trial counsel by; (20) violation of due process rights by the prosecution’s elicitation 7 of false testimony; (23) violation of due process rights by uncorroborated 8 accomplice statements; (25) ineffective assistance of trial counsel by failing to 9 present the statements of the victim’s neighbors; (27) ineffective assistance of trial 10 counsel by failing to file a motion under People v. Luttenberger, 50 Cal.3d 1 11 (1990); (28) ineffective assistance of trial counsel by failing to present certain 12 electronic evidence; (29) ineffective assistance of trial counsel by failing to present 13 DNA evidence recovered from the victim’s home; (34) ineffective assistance of 14 trial counsel by failing to obtain a recording of an interview of witness Freddie Lee 15 Williams; (35) prosecution’s failure to disclose an exculpatory recording of an 16 interview of witness Freddie Lee Williams; (36) prosecution’s failure to disclose 17 impeachment evidence relating to witness Porscha Chambers; (37) ineffective 18 assistance of trial and appellate counsel by failing to seek DNA testing; (46) 19 prosecution’s knowing presentation of false evidence; (47) violation of due process 20 rights by the unlawful removal of his counsel of record without notice; (51) 21 ineffective assistance of trial counsel by failing to present evidence that would 22 have undermined the prosecution’s case; (52) prosecution’s withholding of 23 exculpatory DNA evidence; (56) petitioner’s actual innocence; (57) ineffective 24 assistance of trial counsel by failing to present and investigate circumstances 25 surrounding serological evidence in the case; (58) insufficient evidence to support 26 the felony-murder special circumstance findings by the jury; (FAP 1) prosecution’s 27 misconduct in by arguing facts not in evidence during a rebuttal argument; and

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1 Respondent filed a motion to dismiss petitioner’s habeas petition. Dkt. 111. 2 The Magistrate Judge has recommended dismissal of all of petitioner’s habeas 3 claims with prejudice. First, the Magistrate Judge set forth the applicable 4 standards of review for each of petitioner’s claims. Specifically, 28 U.S.C. § 5 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 6 1996, establishes a deferential standard of review to state court proceedings: a 7 habeas petition “shall not be granted with respect to any claim that was adjudicated 8 on the merits in State court proceedings unless the adjudication of the claim - (1) 9 resulted in a decision that was contrary to, or involved an unreasonable application 10 of, clearly established Federal law, as determined by the Supreme Court of the 11 United States; or (2) resulted in a decision that was based on an unreasonable 12 determination of the facts in light of the evidence presented in the State court 13 proceeding.” Here, the Magistrate Judge evaluated Grounds One through Ten of 14 petitioner’s habeas petition using the AEDPA standard of review. Because the 15 formulation of petitioner’s other asserted grounds for habeas relief made it 16 “difficult to determine for each claim whether the AEDPA standard applies,” the 17 Magistrate Judge evaluated those claims de novo. See Report at 19–20. 18 Accordingly, the Court first reviews petitioner’s claims the Magistrate Judge 19 evaluated under the AEDPA standard, and then the remaining claims the 20 Magistrate Judge evaluated de novo. 21 Claims evaluated under the AEDPA: Applying the above AEDPA 22 standard of review to the relevant state court proceedings, the Magistrate Judge 23 recommended that Grounds 1– 3, 6–7, and 9–10 be dismissed without prejudice. 24 See Report at 22–62. Petitioner has objected to the dismissal of these claims, but 25

26 (FAP 2) ineffective assistance of appellate counsel by failing to raise FAP Ground 27 1 on appeal. See Report at 15–17. 4 Case 2:19-cv-01681-CAS-JEM Document 152 Filed 01/06/23 Page 5 of 8 Page ID #:7591

1 for Grounds 1–3, 7, and 9–10, petitioner has simply restated evidence in the record 2 or repeated his pre-existing arguments. See Objection at 5–23. For these claims, 3 the Court concludes that nothing set forth in the Objection or otherwise in the 4 record for this case affects, alters, or calls into question the findings and analysis 5 set forth in the Report that the state court’s rejection of these claims was not 6 “contrary to, or an unreasonable application of, clearly established federal law as 7 set forth by the United States Supreme Court.” 8 Petitioner raises a substantive objection to the Magistrate Judge’s 9 recommended dismissal of Ground 6, the violation of the right to be present at 10 critical stages of the trial. As the Magistrate Judge explained in the Report, a 11 defendant “has a due process right to be present in his own person whenever his 12 presence has a relation, reasonably substantial, to the fulness of his opportunity to 13 defend against the charge.” Report at 47 (quoting Kentucky v. Stincer, 482 U.S. 14 730, 745 (1987) (internal quotation omitted). The trial court held seventeen 15 proceedings outside the presence of petitioner (but with his counsel present). Id. at 16 45. Applying the AEDPA standard, the Magistrate Judge found that the state 17 court’s determination that those proceedings “concerned procedural, evidentiary, 18 and housekeeping matters for which Petitioner was not required to be present” was 19 a reasonable application of the relevant due process case law. Id. at 46–48. 20 Petitioner’s objection focuses on the fact that he had been discussing with his 21 counsel that he potentially desired to testify on his own behalf. See Objection at 22 18. However, petitioner entirely ignores the record highlighted by the Magistrate 23 Judge reflecting that the trial court did not make rulings on any evidentiary 24 discussions until all co-defendants were present. More crucially, petitioner does 25 not claim that his absence for some parts of the trial proceedings caused him to be 26 unable to testify on his behalf at any point throughout the entire trial. Accordingly, 27 the Court concurs with and accepts the findings and recommendations of the 5 Case 2:19-cv-01681-CAS-JEM Document 152 Filed 01/06/23 Page 6 of 8 Page ID #:7592

1 Magistrate Judge with respect to Ground 6. 2 Claims evaluated de novo: Applying a de novo standard of review for the 3 other claims in this habeas petition, the Magistrate Judge recommended dismissal 4 with prejudice of all remaining claims. Petitioner has objected to the dismissal of 5 these claims, but for Grounds 11, 14–20, 23, 25, 28–29, 34–37, 47, 51–52, 57–58, 6 and First Amended Grounds 1 and 2, petitioner has simply restated evidence in the 7 record or repeated his pre-existing arguments. See Objection at 11–64. For these 8 claims, the Court again concludes that nothing set forth in the Objection or 9 otherwise in the record for this case affects, alters, or calls into question the 10 findings and analysis set forth in the Report that the state court’s rejection of these 11 claims was not “contrary to, or an unreasonable application of, clearly established 12 federal law as set forth by the United States Supreme Court.” 13 Petitioner raises a substantive objection to the Magistrate Judge’s 14 recommended dismissal of Ground 46. Specifically, petitioner alleges that the 15 prosecutor knowingly presented false testimony by witness Porscha Chambers that 16 she had given detectives information of the whereabouts of victim Andrew Todd 17 Cherry’s stolen computer. As the Magistrate Judge set forth in his report, to 18 demonstrate the violation of due process as a result of a conviction obtained by the 19 knowing use of false evidence, a “petitioner must show that ‘(1) the testimony (or 20 evidence) was actually false, (2) the prosecution knew or should have known that 21 the testimony was actually false, and (3) the false testimony was material.’ ” 22 Report at 60 (quoting Sanders v. Cullen, 873 F.3d 778, 794 (9th Cir. 2017)). 23 Chambers had initially testified at trial that she saw a black laptop at 24 petitioner’s house, that petitioner had told her it was Cherry’s laptop, and that 25 petitioner later asked her for help getting Cherry’s laptop from a computer shop. 26 See Report at 67–68 (internal citation omitted). Chambers further testified that she 27 gave detectives a paper with information about the computer shop, but when 6 Case 2:19-cv-01681-CAS-JEM Document 152 Filed 01/06/23 Page 7 of 8 Page ID #:7593

1 shown a paper at trial, she testified that the handwriting was not hers, and a 2 detective subsequently testified that Chambers was not the one who gave him the 3 information about the computer shop. Id. at 68. 4 The Magistrate Judge determined that while Chambers’ “testimony that she 5 gave the police the paper with information about the computer shop was 6 inaccurate, ‘mere inconsistencies or honestly mistaken witness recollections 7 generally do not satisfy the falsehood requirement.’ ” Id. (citing United States v. 8 Renzi, 769 F.3d 731, 752 (9th Cir. 2014)). Here, Chambers testified consistently 9 that she did not recognize the paper and that the handwriting was not her own both 10 on direct and cross examination. Moreover, the Magistrate Judge explained that 11 petitioner made no showing that the prosecutor “knew that Chambers’ testimony 12 that she gave the police the information was false” and that the “discrepancy was 13 immaterial” because “the jury did not need to infer that petitioner had Cherry’s 14 laptop from Chambers’ testimony about the computer shop.” Id. 15 While petitioner’s objection focuses on the fact that the prosecution should 16 have known the information was false because the prosecution stated to have 17 reviewed the recorded police interview of Chambers, petitioner’s objection 18 nonetheless fails to make any showing that the discrepancy was material. 19 Objection at 26. The Court concurs with the Magistrate Judge’s analysis with 20 respect to Ground 46 and his recommendation that it be dismissed. 21 Finally, petitioner has requested an evidentiary hearing, dkt. 39. The 22 Magistrate Judge found that petitioner is not entitled to an evidentiary hearing, 23 because claims reviewed under the AEDPA standard are limited to the record that 24 was before the state court that adjudicated the claim on the merits,” while an 25 evidentiary hearing in connection with claims reviewed de novo is not warranted 26 when “the record refutes the applicant’s factual allegations or otherwise precludes 27 habeas relief.” Report at 96 (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011); 7 Case 2:19-cv-01681-CAS-JEM Document 152 Filed 01/06/23 Page 8o0f8 Page ID #:7594

1 || Schriro v. Landrigan, 550 U.S. 465, 474 (2007)). The Court agrees that an 2 || evidentiary hearing is not warranted under the circumstances. 3 Having completed its de novo review, the Court accepts the findings and 4 || recommendations set forth in the Report. In accordance with the foregoing, the 5 || Court concludes that Judgment should be entered DISMISSING this action 6 || WITH PREJUDICE. ’ Dated: January 6,2023 ae a dngde 8 CHRISTINA A. SNYDER 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27