1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICHARD VALDEZ, Case No. SACV 17-1935-GW (AS) 12 Petitioner, ORDER ACCEPTING FINDINGS, 13 v. CONCLUSIONS AND 14 STUART SHERMAN, Warden, RECOMMENDATIONS OF UNITED 15 Respondent. STATES MAGISTRATE JUDGE 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First 18 Amended Petition, all the records herein and the attached Report 19 and Recommendation of United States Magistrate Judge. After having 20 made a de novo determination of the portions of the Report and 21 Recommendation to which Objections were directed, the Court concurs 22 with and accepts the findings and conclusions of the Magistrate 23 Judge. However, the Court addresses certain arguments raised in 24 the Objections below. 25 26 Respondent argues that the Magistrate Judge failed to properly 27 apply AEDPA deference to the deficient-performance prong of 28 Petitioner’s Strickland claim. (Objections at 5-9). Respondent 1 misconstrues the Report and Recommendation. The Magistrate Judge 2 applied the correct, highly deferential standard applicable to 3 Strickland claims on habeas review, and appropriately concluded 4 that the state court’s determination on deficient performance was 5 objectively unreasonable, and there was no reasonable basis for 6 the state court to deny relief. See Harrington v. Richter, 562 7 U.S. 86, 105 (2011) (“When § 2254(d) applies, the question is . . . 8 whether there is any reasonable argument that counsel satisfied 9 Strickland’s deferential standard.”). 10 11 As Respondent points out, there is no explanation in the 12 record for trial counsel’s challenged actions – namely, for why 13 counsel did not move to sever Petitioner’s trial from that of his 14 separately charged co-defendant. Trial counsel died shortly after 15 trial, and apparently never addressed this issue. Respondent 16 contends that “this evidentiary deficiency alone ends the inquiry,” 17 suggesting that the Court must deny the claim simply because there 18 is no explanation from counsel. (Objections at 6). Respondent 19 cites Burt v. Titlow, 571 U.S. 12 (2013), in support of its argument 20 that establishing deficient performance requires evidence that the 21 allegedly deficient conduct actually occurred. However, in that 22 case, the Supreme Court held that, absent evidence that counsel 23 gave inadequate advice, petitioner could not prevail on his claim 24 that his counsel provided constitutionally inadequate advice on 25 whether to withdraw his guilty plea. Id. at 22-23. Here, trial 26 counsel’s alleged deficiency - his failure to move for a severance 27 – is beyond dispute. What is unknown is why counsel did not do 28 so. A lack of explanation for trial counsel’s conduct certainly 1 does not prevent the Court from determining, based on the record, 2 that the conduct was constitutionally deficient, or that the state 3 court was objectively unreasonable in concluding otherwise. See 4 Gabaree v. Steele, 792 F.3d 991, 997 n.5 (8th Cir. 2015) (“[I]t is 5 not counsel’s inability to recall the reasons for her decisions 6 that warrants relief in this case — nor could it be, for that would 7 violate the presumption that the attorney has performed reasonably. 8 Rather, it is what we can discern from the state record reasonably 9 could have been counsel’s strategy, and the unreasonable nature of 10 that strategy, that convinces us that relief is appropriate.”); 11 Alcala v. Woodford, 334 F.3d 862, 871 (9th Cir. 2003) (“Although 12 trial counsel’s lack of recollection as to why he did not present 13 this evidence does not, in and of itself, rebut the presumption 14 that counsel acted reasonably, neither does it compel us to 15 conclude that his actions were reasonable where all of the other 16 record evidence suggests otherwise.”); Williams v. Woodford, 859 17 F. Supp. 2d 1154, 1166 (E.D. Cal. 2012) (trial counsel was deficient 18 when counsel offered no explanation and the court was “aware of no 19 strategy, and the warden [had] suggested none, that could have 20 justified” counsel’s failure to call witness). 21 22 Respondent also contends that the Magistrate Judge improperly 23 “conducted an independent and direct evaluation of trial counsel’s 24 performance,” rather than “ask[ing] whether no reasonable jurist 25 could possibly agree with the state Court of Appeal’s decision.” 26 (Objections at 7). However, even while giving deference to the 27 28 1 California Court of Appeal’s brief decision on this issue,1 a review 2 of the record is necessary to determine whether that decision is 3 reasonable. See Gabaree v. Steele, 792 F.3d 991, 999 (8th Cir. 4 2015) (on habeas review, rejecting state court’s conclusion because 5 trial counsel’s purported strategy conflicted with the record). 6 Here, the Magistrate Judge appropriately conducted a careful review 7 of the record to conclude that no trial strategy - including the 8 two hypothetical strategies suggested by the Court of Appeal - 9 could support a reasonable view that counsel was not 10 constitutionally deficient. 11 12 Respondent argues that in reviewing the record, the Magistrate 13 Judge also “overlooked that counsel’s actions must be evaluated 14 from the perspective of counsel at the time of the action.” 15 (Objections at 8). However, Respondent does not identify any 16 material way in which the facts known to trial counsel would have 17 differed prior to trial, when counsel should have moved for a 18 severance. To the contrary, the facts demonstrating the 19 unreasonableness of a joint trial, as discussed at length in the 20

21 1 As explained in the Report and Recommendation, the California Court of Appeal issued the last reasoned decision denying 22 Petitioner’s claim on direct review, finding that because the record contained no explanation for counsel’s actions, this was 23 not a case where no plausible reason could possibly exist. Although the Court of Appeal suggested that Petitioner pursue his 24 ineffective assistance claim in a habeas petition, a more 25 appropriate avenue for relief for such claims, the court was unaware that no explanation was available from Petitioner’s trial 26 counsel because he had died after trial. When Petitioner later filed a habeas petition in the California Supreme Court, he 27 notified the court of this fact, and the court denied the claim without comment. 28 1 Report and Recommendation, would have been broadly apparent to 2 trial counsel at that time. Given the particular facts of the 3 case, for the reasons stated in the Report and Recommendation, no 4 fairminded jurist could disagree that trial counsel’s failure to 5 move for a severance constituted deficient performance under 6 Strickland, and the state court’s contrary decision was an 7 objectively unreasonable application of the Strickland standard. 8 9 Respondent also disputes the Magistrate Judge’s analysis 10 regarding prejudice. (Objections at 9-11). Respondent suggests 11 that AEDPA deference is applicable to this issue. (Id. at 9). 12 However, because the California Court of Appeal, in the last 13 reasoned decision, did not consider whether prejudice resulted from 14 trial counsel’s actions, the Magistrate Judge appropriately 15 reviewed this issue de novo, while also noting that the conclusion 16 would be the same under either standard in this case. See Porter 17 v. McCollum, 558 U.S. 30, 39 (2009) (“Because the state court did 18 not decide whether Porter's counsel was deficient, we review this 19 element of Porter’s Strickland claim de novo.”); Weeden v. Johnson, 20 854 F.3d 1063, 1071 (9th Cir. 2017) (applying AEDPA deference to 21 review state court’s reasoned determination regarding deficient 22 performance, but reviewing prejudice de novo because the California 23 Court of Appeal did not reach the issue (citing Rompilla v. Beard, 24 545 U.S. 374, 390 (2005); Wiggins v. Smith, 539 U.S. 510, 534 25 (2003))). 26 27 Respondent contends that any risk of prejudice in a joint 28 trial was cured by the trial court’s jury instruction, and the 1 Magistrate Judge “improperly discounted” the presumption that the 2 jurors followed this instruction. (Objections at 10). However, 3 jury instructions do not always suffice to neutralize the 4 prejudicial effect of evidence introduced against co-defendants, 5 particularly where, as here, the cases against the respective co- 6 defendants were unconnected but subject to confusion. See United 7 States v. McRae, 702 F.3d 806, 827 (5th Cir. 2012) (court was 8 “unconvinced that limiting instructions did, or could have cured 9 the prejudice of the spillover effect from the government’s case 10 against” co-defendants for unrelated charges, in part because “it 11 was easy to confuse the allegations against the defendants”); 12 United States v. Cortinas, 142 F.3d 242, 248–49 (5th Cir. 1998) 13 (limiting instructions inadequate to dispel prejudice of joint 14 trial where defendants, charged with money laundering and drug 15 possession as part of a conspiracy that also involved a violent 16 biker gang that had murdered a young boy, had withdrawn from the 17 conspiracy before biker gang joined the conspiracy); United States 18 v. Sampol, 636 F.2d 621, 647 (D.C. Cir. 1980) (jury instruction 19 could not adequately protect against prejudice of joint trial where 20 there was gross disparity in evidence against co-defendants, and 21 it was “unreasonable to expect that the jury succeeded in 22 compartmentalizing the evidence adduced at trial”); United States 23 v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971) (petitioner was 24 prejudiced by joint trial “[d]espite the trial judge's sincere 25 effort to keep the jury aware of the limitations in the 26 admissibility of evidence,” where substantial majority of trial 27 dealt with charges against co-defendants to which petitioner “had 28 no connection”). 1 Even if appropriate jury instructions could have ameliorated 2 the prejudice in this case, the instruction here was inadequate to 3 do so. Rather than a “carefully crafted” instruction to ensure a 4 clear understanding of the distinct charges and evidence against 5 the two co-defendants, see United States v. Lane, 474 U.S. 438, 6 450 n.13 (1986) (potential for prejudice from joint trial may be 7 “reduced to a minimum by carefully crafted limiting instructions”), 8 the trial court’s only apparent instruction on this matter was a 9 brief and general statement that the jury “must separately consider 10 the evidence as it applies to each defendant,” and “must decide 11 each charge for each defendant.” (7 RT 1168; 1 CT 227). For the 12 reasons discussed at length in the Report and Recommendation, the 13 risk of prejudice from the joint trial here was too great to be 14 overcome by this general instruction. 15 16 A motion for severance, on the other hand, would have assured 17 Petitioner a separate trial from his co-defendant, who had no 18 direct connection to Petitioner, and whose charges for four 19 robberies were importantly distinct and independent from 20 Petitioner’s one charged robbery, and entailed considerable 21 evidence that would have been inadmissible against Petitioner. 22 Respondent’s characterization of “other corroborating evidence” 23 against Petitioner is misleading. (See Objections at 10-11). 24 Respondent states, for example, “When police apprehended 25 [Petitioner], they found that he had shed some of those very clothes 26 in the getaway car,” referring to the clothes seen on the robbery 27 suspect. (Id. at 11). Petitioner was arrested more than a week 28 after the robbery, not within any apparent proximity of the getaway 1 car. (See 6 RT 1068-69). The only clothing linked to Petitioner 2 from the getaway car was a baseball cap, for which Petitioner 3 provided a plausible explanation in his trial testimony, as 4 discussed in the Report and Recommendation. Considering the record 5 as a whole, the Magistrate Judge correctly determined that it is 6 reasonably probable that the jury would have reached a different 7 verdict if Petitioner’s trial counsel had moved for a severance. 8 9 Respondent’s remaining contentions were addressed and 10 rejected by the Report and Recommendation. In sum, the Objections 11 do not cause the Court to reconsider its decision to accept the 12 Magistrate Judge’s conclusions and recommendations. 13 14 IT IS ORDERED that Judgment shall be entered conditionally 15 granting the First Amended Petition, directing Respondent to 16 release Petitioner unless the State of California elects to grant 17 Petitioner a new trial within ninety (90) days from the entry of 18 judgment herein, or such further time as reasonably allowed under 19 state law. 20 // 21 // 22 //

23 24 25 26 27 28 1 IT IS FURTHER ORDERED that the Clerk serve copies of this 2 || Order, the Magistrate Judge’s Report and Recommendation and the 3 || Judgment herein on counsel for Petitioner and counsel for 4 || Respondent. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY.

7 DATED: May 15, 2020. 8 9 10 Apogee Hy 44——

GEORGE H. WU

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