1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DUANE HOLLOWAY, No. 2:05-cv-02089-DJC-JDP 12 Petitioner, DEATH PENALTY CASE 13 v. ORDER 14 MICHAEL MARTEL, 15 Respondent. 16 17 Petitioner Duane Holloway is a California state prisoner under sentence of 18 death. Petitioner was convicted and sentenced to death in 1992 during a retrial after 19 his initial conviction and sentence were reversed due to juror misconduct. Petitioner 20 filed the present Petition for Writ of Habeas Corpus in 2006, and the action was stayed 21 until 2009. 22 Presently before the Court is Magistrate Judge Jeremy D. Peterson’s Findings 23 and Recommendations on Respondent’s Motion for Summary Judgment. (F&Rs (ECF 24 No. 100).) Respondents’ Motion seeks judgment based on the procedural default of 25 several of Petitioner’s claims. (ECF No. 56.) Judge Peterson initially issued Findings 26 and Recommendations on January 31, 2024. (ECF No. 94.) After Petitioner filed 27 Objections, Judge Peterson vacated the original Findings and Recommendations. 28 (ECF No. 99.) Judge Peterson issued new Findings and Recommendations on July 31, 1 2024. It is these Findings and Recommendations that are presently before the Court. 2 (See F&Rs.) 3 The Findings and Recommendations were served on all parties and contained a 4 notice to all parties that any objections to the Findings and Recommendations were to 5 be filed within fourteen days. (Id. at 43.) No objections were filed by either party. As 6 such, the Court presumes that any findings of fact are correct. See Orand v. United 7 States, 602 F.2d 207, 208 (9th Cir. 1979). The Magistrate Judge’s conclusions of law 8 are reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) 9 (“[D]eterminations of law by the magistrate judge are reviewed de novo by both the 10 district court and [the appellate] court . . . .”). Having reviewed the file, the Court finds 11 the Findings and Recommendations to be supported by the record and by the proper 12 analysis.1 13 BACKGROUND 14 In 1992, Petitioner Duane Holloway was convicted of the first-degree murders 15 of Diane Pencin and Debra Cimmino. (LD 1 at 963, 966.) The jury found true special 16 circumstances for murder during the commission of a burglary, murder during the 17 commission of attempted rape, and the commission of multiple first-degree murders. 18 (Id. at 965, 967, 970.) During the penalty phase of the trial, the jury unanimously 19 found in favor of imposing the death penalty. (Id. at 1108.) Petitioner was sentenced 20 to death. (Id. at 1230.) 21 Petitioner filed a direct appeal of that decision. The California Supreme Court 22 upheld the conviction and sentence in 2004, and the United States Supreme Court 23 denied Petitioner’s petition for writ of certiorari. (LD 24; LD 37.) Petitioner then 24 sought state habeas review. Petitioner’s first state habeas petition was denied in 2003. 25 26
27 1 The Court adopts the Findings and Recommendations in full. The Court includes further discussion only to emphasize additional support for why, on de novo review of the conclusions of law, the Court 28 finds Judge Peterson’s analysis to be correct. 1 (LD 34.) Petitioner filed a second state habeas petition, which was denied in 2009. (LD 2 40.) 3 The present habeas action was initiated in 2005 with the current operative 4 Petition for Writ of Habeas Corpus filed in 2006. (See ECF No. 1; Pet. (ECF No. 29).) 5 The Court stayed this action until Petitioner’s second state habeas proceedings were 6 completed in 2009. (ECF Nos. 36, 47.) With the stay of this action lifted, Respondent 7 filed the present Motion for Summary Judgment in which Respondent argues that 8 many of Petitioner’s claims are procedurally defaulted via California’s procedural bars. 9 (Mot. (ECF No. 56).) Petitioner filed an Opposition on May 24, 2011, though the Court 10 permitted Petitioner to later file a Revised Opposition on May 10, 2012. (See ECF No. 11 69; Opp’n2 (ECF No. 85).) Respondent’s Reply remains their original Reply. (Reply 12 (ECF No. 73).) On July 31, 2024, Judge Peterson issued new Findings and 13 Recommendations addressing the Objections filed by Petitioner. The time for 14 Objections to the new Findings and Recommendations has now passed with no party 15 filing Objections. Judge Peterson’s Findings and Recommendation on Respondent’s 16 Motion for Summary Judgment is now ready for the Court’s review. 17 DISCUSSION 18 I. Independence and Adequacy of California Procedural Bars 19 For a federal court to apply a state procedural bar to federal law claims, the 20 decision of the state court must “rest[] on a state law ground that is independent of the 21 federal question and adequate to support the judgment.” Coleman v. Thompson, 501 22 U.S. 722, 729 (1991). The former requirement — that the state law ground is 23 independent of the federal question — is not met if the basis for the state decision 24 “rest[s] primarily on federal law, or [is] interwoven with the federal law.” Cooper v. 25 Neven, 641 F.3d 322, 332 (9th Cir. 2011) (internal citations and quotation marks 26 omitted) (quoting Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003)); see Michigan
27 2 As the Court cites only to arguments raised in the Revised Opposition, the Court uses the name 28 “Opp’n” to refer to the Revised Opposition. 1 v. Long, 463 U.S. 1032, 1040–41 (1983). The latter requirement — that the state law 2 ground is adequate to support the judgment — mandates that the rule was “firmly 3 established and regularly followed.” Beard v. Kindler, 558 U.S. 53, 60 (2009) (internal 4 citations and quotation omitted). 5 A. Timeliness, Successor, and Dixon Bars 6 California state law procedurally bars habeas petition claims that are not timely 7 raised (the timeliness bar), could have been raised in a prior petition for writ of habeas 8 corpus but were not (the successor3 bar), and could have been raised on direct appeal 9 but were not (the Dixon bar). In re Clark, 5 Cal. 4th 750, 767, 782-87 (1993); In re 10 Robbins, 18 Cal. 4th 770, 780 (1998); In re Dixon, 41 Cal. 2d 756, 759 (1953). In the 11 Findings and Recommendations, Judge Peterson determined that California’s 12 timeliness, successor, and Dixon bars applied to several of Petitioner’s claims were all 13 both “independent of the federal question and adequate to support the judgment.” 14 (F&Rs at 6 (quoting Coleman, 501 U.S. at 729).) Judge Peterson’s decisions on these 15 questions are well-reasoned and correct as to each bar. 16 1. Timeliness Bar 17 Under the binding Ninth Circuit precedent of Bennett v. Mueller, 322 F.3d 573 18 (9th Cir. 2003), after the California Supreme Court’s decision in In re Robbins, 18 Cal. 19 4th 770 (1998), it is clear that California’s timeliness bar is independent of any federal 20 question. Bennett, 322 F.3d at 582–83. The Supreme Court has previously held that 21 this procedural bar is also adequate within the meaning of Coleman. Walker v. Martin, 22 562 U.S. 307, 317–21 (2011). The finding that the timeliness bar is both independent 23 and adequate is also consistent with the holding of other district courts in California. 24 See, e.g., Reno v. Davis, No. 96-cv-02768-CBM, 2017 WL 4863071, at *4–5 (C.D. Cal.
25 3 In the Findings and Recommendations, Judge Peterson uses the term “successor bar” to describe the 26 procedural bar applied to successive habeas petitions, reflecting terminology used in the parties’ briefing. This does not appear to be a widely used term for this procedural bar, with “successiveness 27 bar,” “successive bar,” or “successive petition bar” being more commonly used labels. Nonetheless, the Court continues to use the term “successor bar” here for purposes of consistency and clarity 28 between the parties’ briefing, the Findings and Recommendations, and this Order. 1 Aug. 15, 2017); Johnson v. Chappell, No. 95-cv-00305-THE, 2014 WL 1921758, at *3–4 2 (N.D. Cal. May 13, 2014). The Findings and Recommendations also correctly 3 conclude that Petitioner has not established that this bar is inadequate based on the 4 California courts’ practice of denying habeas petitions both on procedural and 5 substantive grounds. The Supreme Court has affirmatively recognized the usefulness 6 of this practice. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989). Alternative rulings 7 can be used for a variety of legitimate reasons, and their usage here does not by itself 8 call into question the independence of California’s procedural bars.4 9 2. Successor Bar 10 Judge Peterson correctly notes that, unlike the timeliness bar, the Ninth Circuit 11 and Supreme Court have not squarely addressed the independence and adequacy of 12 the successor bar. However, as stated in the Findings and Recommendations, other 13 courts have consistently found that this bar is independent and adequate on the same 14 grounds as those that support the independence and adequacy of the timeliness bar. 15 See Johnson v. Wong, No. 95-cv-00305-TEH; 2009 WL 943937, at *2–3 (N.D. Cal. April 16 7, 2009) (citing Dennis v. Brown, 361 F. Supp. 2d 1124 (N.D. Cal. 2005) (collecting 17 cases)); see also Russell v. Borders, No. 2:17-cv-02487-DMC, 2021 WL 616933, at *8- 18 10 (E.D. Cal. Feb. 17, 2021). The logic expressed by these other courts and in the 19 Findings and Recommendations is sound. 20 Petitioner has also not presented a persuasive argument for the Court to 21 deviate from the bulk of authority that supports that the successor bar is now 22 independent and adequate. As noted by Judge Peterson, the cases cited by 23 Petitioner notably concerned pre-Robbins application of the successor bar. Cases 24 concerning the usage of this bar before Robbins are not applicable, as Robbins 25 changed the California Supreme Court’s approach to successive petitions and
26 4 Judge Peterson correctly notes that California’s practice of not specifically identifying the exact basis 27 for the denial of a habeas petition has been the source of confusion and consternation from many Federal Courts. (See FAC at 12–13.) But this does mean the usage of alternative holdings renders 28 California’s timeliness bar inadequate. 1 announced consistent application of the successor bar going forward. Robbins, 18 2 Cal. 4th at 788 n.9; see Bennett, 322 F.3d at 582–83 (discussing the general change in 3 approach announced in Robbins). The Court thus finds that the successor bar is both 4 independent and adequate. 5 3. Dixon Bar 6 Finally, the Court finds Judge Peterson’s determination that the Dixon bar (the 7 bar applied to claims that could have been raised on direct appeal but were not) is 8 independent and adequate is also supported by the law. As with the timeliness bar, 9 the Supreme Court has directly addressed the Dixon bar and found it to be adequate. 10 See Johnson v. Lee, 578 U.S. 605, 609 (2016). And similar to the timeliness and 11 successor bars, the Dixon bar is also independent following the issuance of Robbins. 12 See Joyner v. McEwen, No. 12-cv-09276-R(AN), 2013 WL 5559847, at *4–5 (C.D. Cal. 13 Oct. 8, 2013); see also Mitcham v. Davis, 103 F. Supp. 3d 1091, 1099–100 (N.D. Cal. 14 2015) (discussing the independence of the Dixon bar pre- and post-Robbins and 15 collecting cases for both). 16 Based on the above, the Court finds that the presumptive application of the 17 timeliness, successor, and Dixon bars as described in the Findings and 18 Recommendations is appropriate.5 19 B. Claims Raised and Rejected in Prior Proceedings 20 The Court also agrees with Judge Peterson’s analysis regarding claims raised 21 and rejected on appeal. Specifically, as to subclaim 1.E.2, the record shows that this 22 claim, which concerns comments made by a juror during deliberations about the 23 death of the juror’s sister-in-law, was rejected by the California Supreme Court 24 because it was raised and rejected in a prior state habeas corpus proceeding. As 25 discussed in the Findings and Recommendations, where a claim is raised and rejected
26 5 Judge Peterson’s determination that the timeliness and successor bars should not apply to claims 1.C 27 and 1.F is also appropriate. Respondent has not shown that the application of procedural bars against these subclaims is appropriate, given that they were fairly presented in Petitioner’s first state habeas 28 petition. 1 in an earlier habeas proceeding, that later state court’s rejection of that claim as 2 “raised and rejected” has no effect on the federal court’s ability to conduct habeas 3 review of that claim. See Ylst v. Nunnemaker, 501 U.S. 797, 804 n.3 (1991). 4 Judge Peterson also addresses three other claims (7.B, 11, and 28) that were 5 rejected on direct appeal because Petitioner did not raise contemporaneous 6 objections during trial.6 The independence of California’s contemporaneous 7 objection rule is well established. (See F&Rs at 27 (collecting cases).) While Petitioner 8 does point to some instances where the contemporaneous objection rule was not 9 applied, as noted by Judge Peterson, these cases represent exercises of discretion or 10 exceptions that are not applicable in this case. They do not establish that the rule is 11 applied “infrequently, unexpectedly, or freakishly . . . .” Walker, 562 U.S. at 320 12 (quoting Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir. 1990)). As such, the 13 bar on these claims under the contemporaneous objection rule is applicable as it is 14 independent and adequate. 15 II. Cause and Prejudice 16 Petitioner asserts that based on his counsel’s ineffectiveness, cause and 17 prejudice exist for the Court to decline to apply the procedural bars discussed above. 18 “To establish ‘cause’ . . . the [petitioner] must ‘show that some objective factor external 19 to the defense impeded counsel's efforts to comply with the State's procedural rule.’” 20 Davila v. Davis, 582 U.S. 521, 528 (2017) (quoting Murray v. Carrier, 477 U.S. 478, 488 21 (1986)). Error by counsel occurring during trial or direct appeal proceedings may 22 constitute cause “only if that error amounted to a deprivation of the constitutional 23 right to counsel.” Id.; see Strickland v. Washington, 466 U.S. 668, 687–88 (1984). As 24 the Constitution does not guarantee counsel during collateral proceedings, attorney 25 error committed during the course of habeas proceedings cannot supply cause to
26 6 They were also rejected during subsequent habeas proceedings on the “raised and rejected” grounds 27 discussed above. This is not itself a basis to deny federal habeas review. Instead, the Court looks at the “last reasoned state court opinion” to determine if the reasons for the state denial warrant denial of the 28 federal habeas. Ylst, 501 U.S. at 803-04. 1 excuse a procedural default during those proceedings. Id. at 528–29. A narrow 2 exception to this rule permits claims based on the ineffectiveness of counsel in 3 collateral proceedings where the state requires that ineffective assistance of trial 4 counsel claims be raised in collateral proceedings and those claims are procedurally 5 barred as a result of the ineffective assistance of counsel in the collateral proceeding. 6 Martinez v. Ryan, 566 U.S. 1, 9, 17 (2012); see Davila v. Davis, 582 U.S. 521, 529 (2017). 7 The petitioner must also establish prejudice by “demonstrat[ing] that the 8 underlying [ineffective assistance of counsel] claim is a substantial one, which is to say 9 that the [petitioner] must demonstrate that the claim has some merit.” Id. at 14. 10 “’Prejudice’ requires the petitioner to show not merely that the errors at trial created a 11 possibility of prejudice, but that they worked to his actual and substantial 12 disadvantage, infecting his entire trial with error of constitutional dimensions.” Hogan 13 v. Bean, 140 F.4th 1001, 1026 (9th Cir. 2025) (cleaned up) (quoting Murray, 477 U.S. at 14 494). 15 A. Claim 31 16 Petitioner’s Claim 31 is a claim in which Petitioner asserts he was denied 17 effective assistance of counsel on appeal and during his first state habeas petition. 18 (Pet. at 279–81.) This claim is procedurally defaulted under the timeliness bar 19 discussed above. As discussed by Judge Peterson, Petitioner has not established 20 cause to excuse this default, and this claim must be dismissed. 21 Besides the limited exception recognized by Martinez, the ineffectiveness of 22 state habeas counsel does not constitute a cognizable claim. See Davila, 582 U.S. at 23 529 (“Attorney error committed in the course of state postconviction proceedings — 24 for which the Constitution does not guarantee the right to counsel — cannot supply 25 cause to excuse a procedural default that occurs in those proceedings.” (cleaned up)). 26 Thus, Petitioner’s claim based on the ineffectiveness of habeas counsel in the first 27 habeas proceedings is not a valid claim. Similarly, habeas counsel’s errors do not 28 constitute cause to excuse procedural defaults barring a petitioner from raising an 1 ineffective assistance of appellate counsel claim. The limited exception recognized in 2 Martinez is limited to claims related to the ineffectiveness of trial counsel and does not 3 apply to claims concerning the effectiveness of appellate counsel. Id. Thus, 4 Petitioner’s claim as to the ineffectiveness of appellate counsel is barred as untimely, 5 and Petitioner’s argument for cause is precluded by the Supreme Court’s decision in 6 Davila. 7 Given the above, regardless of whether Petitioner is asserting claims of 8 ineffectiveness against appellate counsel, habeas counsel, or both, as a matter of law, 9 these claims are either not cognizable or cannot be excused from procedural default. 10 B. Defaults Purportedly Excused by Habeas Counsel’s Errors 11 As an initial matter, the Findings and Recommendations recommend deferring 12 a determination of cause and prejudice for certain claims (1.A, 1.D, 5.A, 5.B, 5.C, 5.E.1, 13 5.F.2, 5.F.4, 5.N, 19.B, and 27) until upcoming requests for evidentiary hearing are 14 resolved. In light of Petitioner’s representations as to these claims, the Court agrees 15 and adopts this recommendation. Summary judgment is denied without prejudice as 16 to these claims. 17 For the remaining claims concerning the effectiveness of habeas counsel (1.E.2, 18 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.D, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 19 10.A, 19.C, and 21.B), Judge Peterson found that the record did not establish that 20 there was cause or prejudice for the procedural defaults in question. On the issue of 21 cause, Judge Peterson found that “[t]he state-court record does not supply the 22 evidence necessary to show that state habeas corpus counsel was deficient under 23 Strickland[.]” (F&Rs at 35.) Petitioner has not made any argument that the 24 requirements of section 2254(e)(2) are met or that future evidentiary development 25 would help resolve the cause and prejudice analysis. (See Opp’n at 52.) Thus, in 26 assessing whether there was cause for the default, the Court is limited to the facts in 27 the state court record. See Shinn v. Ramirez, 596 U.S. 366, 382 (2022) (“We now hold 28 that, under § 2254(e)(2), a federal habeas court may not conduct an evidentiary 1 hearing or otherwise consider evidence beyond the state-court record based on 2 ineffective assistance of state postconviction counsel.”). 3 Petitioner has not met their burden to establish cause based on the state court 4 record before the Court. Establishing cause requires that Petitioner show that “some 5 objective factor external to the defense impeded counsel's efforts to comply with the 6 State's procedural rule.” Davila, 582 U.S. at 528 (internal quotation omitted) (quoting 7 Murray, 477 U.S. at 488). Within Claim 31 of the Petition, Petitioner asserts habeas 8 counsel was rendered ineffective by limitations on the funding of investigations 9 placed by the California Supreme Court. (Pet. ¶ 784.) But as aptly identified by Judge 10 Peterson, the evidence in the state court record does not support that the funding of 11 investigations was actually an impediment to bringing these claims, as they are either 12 based solely on the trial record or information that was otherwise available to state 13 habeas counsel at the time of the first state habeas proceedings. (See F&Rs at 35-36.) 14 Petitioner does not identify any further location where the state court record provides 15 support for cause to excuse the procedural default for these claims. Notably, in 16 objecting to the now vacated initial Findings and Recommendations, Petitioner noted 17 a number of claims for which the determination of cause and prejudice could be 18 made based on the development of future evidence. (See ECF No. 98 at 2–18.) 19 Petitioner made no similar representations as to these remaining claims. (See id.) 20 Judge Peterson also found a lack of prejudice as to these remaining claims. 21 This determination was made based centrally on the fact that “the record contains no 22 argument as to the merit of any of these claims and subclaims, and petitioner does not 23 direct the court to any evidence in the record that demonstrates these claims’ and 24 subclaims’ merit.” (F&Rs at 36.) The Court finds that this determination was 25 appropriately supported by the record and proper analysis. 26 Accordingly, the Court adopts the Findings and Recommendations and finds 27 that Petitioner has not met their burden to show cause and prejudice to overcome the 28 1 procedural defaults as to claims and subclaims 1.E.2, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.D, 2 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.C, and 21.B. 3 C. Defaults Purportedly Excused by Appellate Counsel’s Errors 4 The Court concurs with Judge Peterson’s determination that Petitioner has 5 failed to establish cause via appellate counsel’s deficient performance so as to excuse 6 the application of the Dixon bar to claims 3, 4, 7.A, 7.C, 7.D, 9, 10.A, and 21.B. 7 Petitioner has not argued that the requirements of section 2254(e) are met, and 8 nothing in the state court record establishes cause. As a result, Petitioner has not met 9 the requirements to excuse the procedural default of these claims. 10 D. Defaults Purportedly Excused by Trial Counsel’s Errors 11 The Court also agrees with the recommendation of Judge Peterson as to those 12 defaults allegedly caused by the ineffectiveness of trial counsel. As the Findings and 13 Recommendations note, the state court record does provide some support for the 14 assertion that trial counsel was ineffective in connection with some of Petitioner’s 15 claims. Because of the overlap of evidence relevant to underlying questions of trial 16 counsel’s ineffectiveness and the cause and prejudice analysis for claims 7.B, 11, and 17 28, the Court will deny the Motion for Summary Judgment without prejudice as to 18 those claims. 19 III. Fundamental Miscarriage of Justice 20 Petitioner finally argues that the Court should review his claims on the basis that 21 his case falls within “the narrow class of cases implicating a fundamental miscarriage 22 of justice.” Schlup v. Delo, 513 U.S. 298, 314–15 (1995) (cleaned up) (quoting 23 McCleskey v. Zant, 499 U.S. 467, 494 (1991)). The Supreme Court has recognized that 24 “[i]n appropriate cases . . . the principles of comity and finality that inform the concepts 25 of cause and prejudice must yield to the imperative of correcting a fundamentally 26 unjust incarceration.” House v. Bell, 547 U.S. 518, 536 (2006) (internal quotations and 27 citations omitted) (quoting Murray, 477 U.S. at 495). To fall within this limited 28 exception, the petitioner has the burden to show that “more likely than not, in light of 1 the new evidence, no reasonable juror would find him guilty beyond a reasonable 2 doubt—or, to remove the double negative, that more likely than not any reasonable 3 juror would have reasonable doubt.” Id. at 538. 4 Petitioner’s argument that his case falls within this “narrow class of cases” mainly 5 rests on evidence related to the testimony of Zelma Cureton. (Opp’n at 58–61.) At 6 trial, Cureton testified about her encounter with two men who boasted about killing 7 two women. The description given by these two men at least roughly matched the 8 description of the deaths for which Petitioner was convicted. People v. Holloway, 33 9 Cal. 4th 96, 108 (2004). The newly presented evidence that Petitioner argues 10 constitutes a fundamental miscarriage of justice is largely evidence that bolsters the 11 reliability of Cureton’s testimony. (Opp’n at 60.) In addition to evidence related to 12 Cureton’s testimony, Petitioner also contends that evidence regarding the possible 13 third-party culpability of Lance Reedy, rebutting the persuasiveness of physical 14 evidence utilized by the prosecution, and concerning Petitioner’s organic brain 15 damage resulting from his alcoholism, was not presented at trial. (Id. at 61.) 16 While Petitioner has noted some evidence that was not presented to the jury, a 17 key consideration is whether Petitioner’s claim is “credible” within the meaning of the 18 miscarriage of justice analysis. To be credible, the claim must be supported by new 19 reliable evidence, meaning “exculpatory scientific evidence, trustworthy eyewitness 20 accounts, or critical physical evidence[.]” Schlup, 513 U.S. at 324. The evidence here 21 does not fall into that description of reliability. Certainly, the evidence Petitioner 22 could use the indicated evidence to support his claim of innocence to a jury, but that 23 alone does not place this evidence into the category of reliability required to establish 24 that Petitioner’s claim is credible. 25 Moreover, Petitioner has not met his burden to establish that, if this evidence 26 had been presented to a jury, it would be “more likely than not any reasonable juror 27 would have reasonable doubt.” House, 547 U.S. at 538. The evidence noted by 28 Petitioner supports alternative theories of third-party culpability and undercuts the 1 reliability of some of the prosecution’s evidence. But it does not swing the scales so 2 greatly to meet the high standard necessary. In the case of Petitioner’s most 3 persuasive argument for third-party culpability, the theory of the involvement of the 4 two men encountered by Zelma Cureton, the jury heard Cureton testify at trial about 5 these events. This theory was presented to the jury. The newly presented evidence in 6 connection with Cureton is merely evidence providing support for the reliability of 7 Cureton’s testimony. Coupled with the evidence introduced at trial as to Petitioner’s 8 guilt, it does not establish that it is more likely than not that any juror would have a 9 reasonable doubt. 10 Accordingly, the Court finds that the application of the procedural bars is not a 11 fundamental miscarriage of justice. 12 CONCLUSION 13 In accordance with the above, IT IS HEREBY ORDERED that: 14 1. The Findings and Recommendations issued July 31, 2024 (ECF No. 100) are 15 ADOPTED IN FULL; 16 2. Respondent’s Motion for Summary Judgment (ECF No. 56) is DENIED 17 without prejudice as to claims 1.A, 1.C, 1.D, 1.F, 5.A, 5.B, 5.C, 5.E.1, 5.F.2, 18 5.F.4, 5.N, 7.B, 11, 19.B, 27, and 28 of the Petition for Writ of Habeas 19 Corpus; and 20 3. Respondent’s Motion for Summary Judgment (ECF No. 56) is GRANTED as 21 to claims 1.E.2, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.D, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 22 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.C, 21.B, and 31 of the Petition for Writ of 23 Habeas Corpus. 24 //// 25 //// 26 //// 27 //// 28 //// 1 4. This matter is referred back to the assigned Magistrate Judge for further 2 proceedings. 3
4 Dated: September 26, 2025 /s/ Daniel J. Calabretta THE HONORABLE DANIEL J. CALABRETTA 5 UNITED STATES DISTRICT JUDGE 6
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