Fiore

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BRIAN FIORE, Case No. 16-cv-00282-VC

Plaintiff,

ORDER DENYING PETITION FOR

v. WRIT OF HABEAS CORPUS;

DENYING CERTIFICATE OF

DWIGHT NEVEN, APPEALABILITY

Defendant. Re: Dkt. No.

Fiore’s petition for a writ of habeas corpus is denied. This order assumes the reader’s familiarity with the facts, the applicable legal standard, and the arguments made by the parties. The Court is skeptical of Fiore’s argument that de novo review should apply, particularly in light of Ochoa v. Davis, 50 F.4th 865, 888 (9th Cir. 2022). But even on de novo review, there is no “reasonable probability” that the outcome would have been different with respect to the counts at issue in this habeas petition if defense counsel had presented favorable expert testimony. See Harrington v. Richter, 562 U.S. 84, 111-12 (2011). There is no doubt that the testimony would have undercut the state’s contention at trial that Fields was in the front seat at the time he was shot, as well as the state’s contention that Fiore shot Fields. But it would not have meaningfully undercut…