(HC) Bernik v. Hatton

• Court: District Court, E.D. California
• Decided: July 17, 2023
• Docket: 2:17-cv-02348
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREY BERNIK, No. 2:17-cv-2348 DAD AC 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 SHAWN HATTON, Warden, 15 Respondent. 16 17 Petitioner is a California state prisoner proceeding through counsel with an application for 18 a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the original 19 petition, ECF No. 1, which challenges petitioner’s 2011 conviction for second degree murder. 20 Respondent has answered, ECF No. 11, and petitioner filed a traverse, ECF No. 22-1. 21 BACKGROUND 22 I. Proceedings in the Trial Court 23 A. The Evidence Presented at Trial 24 The jury heard evidence of the following facts.1 Stephan Bernik owned a landscaping 25 business. He negotiated to sell the business to Valeriy Pishtoy and accepted a deposit from him. 26 The two could not reach agreement, however, and Pishtoy asked for his deposit back. They both 27 1 This statement of facts is adapted from the opinion of the California Court of Appeal, Lodged 28 Doc. 9 at 2-4. Petitioner has expressly adopted this summary. ECF No. 1 at 10. 1 agreed to meet in a supermarket parking lot to discuss the issue. 2 At the appointed hour, each party arrived, accompanied by friends. Stephan Bernik 3 arrived in a Mazda truck that was pulling a trailer. Yury Dovgan was with him. Alex Chekayda 4 and Roman Mysin arrived in a Lexus. They came at Dovgan’s request. Petitioner, who is 5 Stephan Bernik’s son and Dovgan’s friend, arrived in a Nissan Titan pickup truck along with his 6 two brothers. 7 Dovgan had originally ridden with petitioner in the Titan, but prior to arriving at the 8 supermarket, the Mazda and the Titan stopped, and Dovgan got out. He walked over to the 9 Mazda, walked back, and put a gun next to the seatbelt buckle in the Titan. He then returned to 10 the Mazda and rode with the elder Bernik to the supermarket. 11 Accompanying Pishtoy were Hariton Prutyanu, his son Aleksandr Prutyanu, and 12 Yevgeniy Yakimov. Hariton arrived in his own car, and Yakimov and Aleksandr came in 13 Aleksandr’s car. Pishtoy and Stephan Bernik started talking. Pishtoy heard Bernik say to another 14 man, “Andrey, leave the gun.” Someone from behind Pishtoy put a rope around his throat and 15 started to hit him, while Stephan Bernik hit him from the front. A violent fight broke out, and 16 Pishtoy was seriously injured. One of his sons took him away. 17 After the fight, the parties began fleeing the parking lot. Stephan Bernik drove out of the 18 parking lot in his Mazda truck and trailer. As he did, Aleksandr’s friend Yakimov jumped onto 19 the trailer. The Nissan Titan rolled by Aleksandr, and as it did, someone from inside the truck 20 pointed a gun at him. Then the Titan left the lot. 21 Petitioner’s friend Dovgan jumped into the Lexus with Chekayda and Mysin, and they left 22 to follow Bernik’s Mazda and the Titan. Hariton and Aleksandr Prutyanu left in Hariton’s car 23 and they, too, tried to follow the Mazda. 24 As the elder Bernik drove the Mazda, Yakimov moved from the trailer to the Mazda’s 25 bed. Bernik swerved the truck back and forth while Yakimov used a knife to break the rear 26 window. With the truck still moving, Stephan Bernik opened the driver’s side door, jumped out, 27 and ran away. Yakimov also jumped out of the truck, threw his knife in some bushes, and ran 28 back to where his pickup was parked. 1 The driverless Mazda crashed into a fire hydrant. Two witnesses stopped at the accident 2 scene, and one pulled the keys out of the Mazda’s ignition. The Lexus pulled up to the scene, and 3 Dovgan exited the Lexus. Carrying a crowbar, he ran up to the Mazda, angry and yelling. One of 4 the witnesses calmed him down. Meanwhile, the Titan pulled up across the street, and a gunshot 5 from inside the Titan hit and killed Dovgan. The Titan immediately left the scene. 6 Later, the victim’s father, Vasily Dovgan, recorded a conversation he had with petitioner. 7 In the conversation, petitioner admitted he killed his friend, Vasily’s son. The recording was 8 played to the jury and a translated transcript was admitted into evidence by stipulation of the 9 parties. In the conversation, petitioner stated that at the time of the accident, he thought his father 10 had been injured or killed while driving the Mazda and had fallen over out of sight. He claimed 11 that when he arrived at the scene, there were men with daggers running around, so he started 12 shooting. He did not aim at anyone but thought, “Whoever I hit, I hit.” However, he stated that 13 as the Titan pulled away, he thought he had “finished” the person he shot. He later learned he had 14 killed “the wrong person.” 15 Petitioner testified at trial. He claimed that after the parking lot fight, he and his two 16 brothers drove off in the Titan. Before leaving the lot, he noticed some men on the other side of 17 the fight were armed with weapons; one had a knife. These men tried to block the Titan, so he 18 brandished his gun to scare them. He saw the man with the knife jump onto the Mazda’s trailer 19 and make his way to the truck’s bed. The man started hitting the truck’s window with the knife. 20 The Mazda and the Titan took different routes out of the parking lot, but both ended up on the 21 same street, with the Mazda behind the Titan. Petitioner saw the Mazda swerving back and forth 22 behind him, and his brother, who was driving the Titan, made a U-turn to go help their father. 23 The Mazda almost hit them, and then it crashed. Petitioner could not see his father, so he thought 24 his father had been stabbed and was slumped over in his seat. 25 The Titan made another U-turn and headed back to the crash site. Petitioner saw someone 26 by the Mazda who he thought was the man who had been in the back of the Mazda attempting to 27 break its window, along with some people he thought were the man’s friends. He shot one time 28 from the Titan to scare them away, and he saw someone fall. He asserted he just shot toward the 1 Mazda and did not aim at anyone. After firing the shot, the Titan immediately sped off. 2 Petitioner also did not call the police. Petitioner believed the person he shot was the person who 3 had been in the back of the Mazda, whom he thought was Yakimov. He later learned he shot 4 Dovgan. 5 B. Outcome 6 A jury convicted petitioner of second degree murder. Cal. Pen. Code, §§ 187, subd. (a), 7 189. It also found that petitioner intentionally and personally used a firearm to commit the crime, 8 resulting in death. Cal. Pen. Code § 12022.53, subds. (b), (c), and (d). The trial court sentenced 9 defendant to a total prison term of 45 years to life: 20 years to life for the murder conviction, plus 10 a consecutive 25 years to life for the firearm enhancement. 11 II. Post-Conviction Proceedings 12 Petitioner timely appealed, and the California Court of Appeal affirmed the judgment of 13 conviction on May 2, 2016. Lodged Doc. 9. The California Supreme Court denied review on 14 August 10, 2016. Lodged Doc. 16. 15 On December 2, 2016, petitioner filed a motion to recall the remittitur based on 16 ineffective assistance of appellate counsel. Lodged Doc. 10. The Court of Appeal summarily 17 denied the motion on December 22, 2016. Lodged Doc. 12. Petitioner filed a petition for 18 reconsideration on December 29, 2016, and the court denied that motion on January 5, 2017. 19 Lodged Docs. 13, 14. Petitioner filed a petition for review in the California Supreme Court 20 regarding the denial of the motion to recall the remittitur, which was denied on February 15, 21 2017. Lodged Docs. 17, 18. 22 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA 23 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 24 1996 (“AEDPA”), provides in relevant part as follows: 25 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be 26 granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 27 (1) resulted in a decision that was contrary to, or involved an 28 unreasonable application of, clearly established Federal law, as 1 determined by the Supreme Court of the United States; or 2 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 3 State court proceeding. 4 The statute applies whenever the state court has denied a federal claim on its merits, 5 whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99 6 (2011). State court rejection of a federal claim will be presumed to have been on the merits 7 absent any indication or state-law procedural principles to the contrary. Id. (citing Harris v. Reed, 8 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a 9 decision appearing to rest on federal grounds was decided on another basis)). “The presumption 10 may be overcome when there is reason to think some other explanation for the state court's 11 decision is more likely.” Id. at 99-100. 12 The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal 13 principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 14 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established 15 Federal law,” but courts may look to circuit law “to ascertain whether…the particular point in 16 issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 17 (2013). 18 A state court decision is “contrary to” clearly established federal law if the decision 19 “contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529 20 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state 21 court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to 22 the facts of the particular state prisoner’s case.” Id. at 407-08. It is not enough that the state court 23 was incorrect in the view of the federal habeas court; the state court decision must be objectively 24 unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). 25 Review under § 2254(d) is limited to the record that was before the state court. Cullen v. 26 Pinholster, 563 U.S. 170, 180-181 (2011). The question at this stage is whether the state court 27 reasonably applied clearly established federal law to the facts before it. Id. at 181-182. In other 28 words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 182. 1 Where the state court’s adjudication is set forth in a reasoned opinion, §2254(d)(1) review is 2 confined to “the state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d 3 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims 4 summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a 5 state court denies a claim on the merits but without a reasoned opinion, the federal habeas court 6 must determine what arguments or theories may have supported the state court’s decision, and 7 subject those arguments or theories to § 2254(d) scrutiny. Richter, 562 U.S. at 102. 8 DISCUSSION 9 I. Claim One: Ineffective Assistance of Counsel 10 A. Petitioner’s Allegations and Pertinent State Court Record 11 Petitioner alleges that his Sixth Amendment right to the effective assistance of counsel 12 was violated by trial counsel’s failure to bring a motion, pursuant to Cal. Penal Code § 632, to 13 exclude the illegally recorded conversation between petitioner and Vasily Dovgan. ECF No. 1 at 14 14, 18. The substance of that conversation has been summarized above. 15 B. The Clearly Established Federal Law 16 To establish a constitutional violation based on ineffective assistance of counsel, a 17 petitioner must show (1) that counsel’s representation fell below an objective standard of 18 reasonableness, and (2) that counsel’s deficient performance prejudiced the defense. Strickland v. 19 Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an 20 adverse effect on the defense. There must be a reasonable probability that, but for counsel's 21 errors, the result of the proceeding would have been different. Id. at 693-94. The court need not 22 address both prongs of the Strickland test if the petitioner's showing is insufficient as to one 23 prong. Id. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of 24 sufficient prejudice, which we expect will often be so, that course should be followed.” Id. 25 C. The State Court’s Ruling 26 This claim was raised on direct appeal. Because the California Supreme Court denied 27 discretionary review, the opinion of the California Court of Appeal constitutes the last reasoned 28 decision on the merits and is the subject of habeas review in this court. See Ylst v. Nunnemaker, 1 501 U.S. 797 (1991); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012). 2 The appellate court ruled in pertinent part as follows: 3 To demonstrate ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and the deficient 4 performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) Because of 5 the difficulties inherent in evaluating counsel’s performance, “a court must indulge a strong presumption that counsel’s conduct falls within 6 the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the 7 circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.]” (Id. at p. 689.) 8 Counsel’s performance here was not deficient. A motion to exclude 9 the conversation as an unlawful eavesdropping under section 632 would fail due to the exception contained in section 633.5. Section 10 632 prohibits a person from intentionally recording a confidential communication by an electronic recording device without the 11 consent of all parties. (§ 632, subd. (a).) Generally, no evidence obtained from such eavesdropping is admissible at trial. (§ 632, subd. 12 (d).) 13 However, section 633.5 provides an exception to section 632’s prohibitions. According to section 633.5, “[n]othing in Section . . . 14 632 . . . prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence 15 reasonably believed to relate to the commission by another party to the communication of . . . any felony involving violence against the 16 person . . . . Nothing in Section . . . 632 . . . renders any evidence so obtained inadmissible in a prosecution for . . . any felony involving 17 violence against the person . . . or any crime in connection therewith.” (§ 633.5.) 18 Section 633.5 exempts Vasily’s recording of his conversation with 19 defendant from section 632’s prohibitions, and would defeat any objection to admitting the recording. Vasily recorded the 20 conversation to obtain evidence regarding defendant’s “felony involving violence against the person.” His recording the 21 conversation was not prohibited, and the transcript of the recording was admissible. Thus, any attempt by defendant’s counsel to exclude 22 the evidence would have been denied. 23 Defendant claims section 633.5 does not apply here because, as he reads it, the statute applies only when the “felony involving violence 24 against the person” is a felony committed against the person who is recording the conversation. No felony was committed against Vasily, 25 so, defendant contends, evidence of the conversation was not admissible. 26 Defendant’s interpretation of section 633.5 is not consistent with the 27 statute’s language or the judicial precedent that interprets it. The statute applies to a “party to a confidential communication,” but its 28 scope reaches to evidence of any felony involving violence against 1 “the person.” The Legislature used the term “the person” to extend the statute’s scope beyond the communicating parties. A “person” is 2 a “human being.” (Black’s Law Dict. (10th ed. 2014) p. 1324, col. 1.) Thus, for example, the phrases “crimes against the person” or 3 “crimes against persons” refer to a “category of criminal offenses in which the perpetrator uses or threatens to use force” against a human 4 being. (Id. at p. 454, col. 2.) The Legislature’s use of the term “the person” in section 633.5 confers the same effect on the statute. It 5 applies to evidence of “any felony involving violence against the person,” or, in other words, violence against a human being. 6 Had the Legislature intended the statute to apply only to felonies 7 committed against one of the parties to the communication, it would have limited its application to any felony involving violence against 8 a “party to a confidential communication,” the same term it used to designate the persons having the communication. Instead, the 9 Legislature used the phrase “violence against the person.” “It is a general rule of statutory construction that ‘[w]hen one part of a 10 statute contains a term or provision, the omission of that term or provision from another part of the statute indicates the Legislature 11 intended to convey a different meaning.’ [Citations.]” (Klein v. United States (2010) 50 Cal.4th 68, 80.) The term “person” in section 12 633.5 means something different than “party to a confidential communication.” 13 Only two reported cases apply section 633.5 in fact situations similar 14 to this case, and both apply the meaning of section 633.5 we apply here. People v. Maury (2003) 30 Cal.4th 342, concerned anonymous 15 telephone calls made to, and recorded by, a public “hotline.” The defendant in a murder trial sought to suppress evidence of his 16 recorded calls to the hotline. As part of addressing that claim, the Supreme Court stated the taped communications were lawful under 17 section 633.5 because they concerned three murders the police suspected defendant committed. (Id. at p. 385.) The recordings were 18 lawful even though the violence was not committed against the person who recorded the calls. 19 People v. Suite (1980) 101 Cal.App.3d 680, involved recordings by 20 state university police of telephone calls to their emergency telephone line in which the defendant stated bombs were in various 21 campus buildings. The defendant claimed the recording of his calls violated section 632. The Court of Appeal disagreed, holding among 22 other things that the calls were exempt from section 632 under section 633.5. It determined a bomb threat–in this case, threats 23 involving buildings other than the one housing the police department–involved the potential for the type of violence against 24 the person made admissible under section 633.5. (Id. at pp. 688-689.) Again, the recordings were lawful even though the threats were not 25 made against the persons who recorded the calls. 26 The language of section 633.5 and the holdings of these cases indicate section 633.5 applies to recorded confidential 27 communications containing evidence that connects a party to the communication to any felony involving violence against any person, 28 not just to a felony involving violence against one of the parties to 1 the confidential communication. In this case, section 633.5 would have defeated a motion by defense counsel to exclude evidence of 2 defendant’s recorded conversation. Accordingly, we conclude defense counsel did not render ineffective assistance by not moving 3 to exclude the evidence. 4 Lodged Doc. 9 at 5-8. 5 D. Objective Reasonableness Under § 2254(d) 6 Petitioner contends that “[t]he state court’s irrational expansion of section 633.5 to all 7 cases involving crimes against any person was plainly unreasonable.” ECF No. 1 at 20:13-14 8 (emphasis in original). However, the state court’s rulings on the interpretation and application of 9 Cal. Penal Code §§ 632 and 633.5 are not proper subjects of federal habeas review. See Estelle v. 10 McGuire, 502 U.S. 62, 67 (1991) (federal habeas relief unavailable for errors of state law). The 11 sole question before this court is whether the state court was reasonable in its resolution of the 12 Strickland issue, given the state of California law. This court is bound by the state court’s 13 determination of what section 633.5 means and how it is properly applied. See Bradshaw v. 14 Richey, 546 U.S. 74, 76 (2005) (per curiam) (“We have repeatedly held that a state court’s 15 interpretation of state law, including one announced on direct appeal of the challenged conviction, 16 binds a federal court sitting in habeas corpus.”); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) 17 (“… state courts are the ultimate expositors of state law…and we are bound by their constructions 18 except in extreme circumstances not present here.”). 19 Given the state court’s resolution of the state law question, its disposition of the Sixth 20 Amendment question was the only possible outcome. Counsel cannot render deficient 21 performance by failing to make a motion that cannot have succeeded. Nor can failure to bring a 22 futile motion conceivably result in prejudice. Because there is nothing unreasonable about these 23 conclusions, § 2254(d) precludes relief on this claim. 24 II. Claim Two: Excessive Pre-Charging Delay in Violation of Due Process 25 A. Petitioner’s Allegations and Pertinent State Court Record 26 Petitioner alleges that his due process rights were violated by the unreasonable delay in 27 charging him. ECF No. 1 at 14, 22. The homicide occurred on April 12, 2006. The criminal 28 //// 1 complaint was filed on February 19, 2009. Petitioner was arrested on February 21 and arraigned 2 on February 24, 2009. 3 On October 26, 2011, prior to trial, petitioner filed a motion to dismiss on grounds that the 4 action’s filing nearly three years after the homicide violated his due process rights. 1 CT 118.2 5 Petitioner claimed he had been prejudiced by the late filing because a recording of a witness’s 6 911 call had been destroyed in the interim, and the witness’s statement to police differed from her 7 statement to the 911 operator. 1 CT 123-126. The prosecution claimed the delay was caused by 8 its initial determination that Cal. Penal Code § 632 barred admission of the taped conversation 9 between petitioner and Vasily. When the prosecution later determined its interpretation of section 10 632 was mistaken, it immediately filed charges. 1 CT 135. The trial court denied the motion to 11 dismiss, finding that the prosecution’s negligence did not prejudice defendant because there is no 12 statute of limitations on murder, and he could still call the witness and the person who received 13 the 911 call to testify. 1 RT 5-12.3 14 On appeal, petitioner did not pursue the theory that he had been prejudiced by destruction 15 of the 911 call. Lodged Doc. 7 at 13. Instead, he argued in conclusory fashion that witness 16 memories had faded with the passage of time. Id. 17 B. The Clearly Established Federal Law 18 The Sixth Amendment speedy trial guarantee does not attach until a defendant is arrested 19 or charged,4 but the Due Process Clause protects against “oppressive” pre-accusation delay. See 20 United States v. Lovasco, 431 U.S. 783, 788-789 (1977); United States v. Marion, 404 U.S. 307, 21 324 (1971). Due process may be violated where the investigative delay was undertaken to gain

22 2 “CT” refers to the Clerk’s Transcript on Appeal, Lodged Docs. 1 and 2. 23 3 “RT” refers to the Reporter’s Transcript on Appeal, Lodged Docs. 4 through 6. 4 The United States Constitution provides that criminal defendants have “the right to a speedy 24 and public trial.” U.S. Const., amend. VI; see also Doggett v. United States, 505 U.S. 647, 651 (1992). The determination whether a defendant’s right to a speedy trial was violated is a fact- 25 based inquiry that requires balancing various factors of the case including the: (1) length of delay, 26 (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). The length of delay serves as a 27 “triggering mechanism,” and if there is not a delay which is presumptively prejudicial, then there is no reason to consider the other balancing factors. Id. The Supreme Court has not applied this 28 framework in the pre-accusation context. 1 tactical advantage over the defendant. Lovasco, 431 U.S at 796. The mere possibility of 2 prejudice from extended delay is insufficient to show a due process violation. Marion, 40 U.S. at 3 325. 4 C. The State Court’s Ruling 5 The California Court of Appeal ruled as follows: 6 Defendant contends he was denied his due process right against precharging delay because the prosecution delayed arraigning him 7 for nearly three years after the homicide occurred. He claims he was prejudiced due to witnesses’ memories fading and the prosecution’s 8 negligence. We conclude defendant forfeits this claim. He does so by raising an argument on appeal that was not raised at trial, and by 9 failing to support his argument with any citations to the record. With no evidence before us, defendant fails to establish he was prejudiced. 10 […] 11 We conclude defendant has forfeited his due process claims. He 12 forfeits them on two grounds. First, he raises an argument here he did not raise at trial. He contended at trial that he was prejudiced due to 13 the destruction of a 911 recording. Before us, he omits that argument and claims he was prejudiced in part because witness memories had 14 faded. A criminal defendant “ ‘cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.’ ” (People v. Tully 15 (2012) 54 Cal.4th 952, 980.) 16 Second, defendant forfeits his claim because he failed to provide any citations to the record to show the case “was replete with witnesses” 17 who could not remember the specifics of the event. Rule 8.928(a)(1)(B) of the California Rules of Court requires a party to 18 support an argument with necessary citations to the record. Where a party does not comply with this rule, the party’s argument is deemed 19 forfeited. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) 20 Moreover, by providing no reference to the record, defendant fails to show he was prejudiced by the prosecution’s delay. “A defendant 21 seeking relief for undue delay in filing charges must first demonstrate resulting prejudice, such as by showing the loss of a material witness 22 or other missing evidence, or fading memory caused by the lapse of time. [Citation.]” (People v. Abel (2012) 53 Cal.4th 891, 908.) 23 Because we do not assume prejudice (People v. Nelson (2008) 43 Cal.4th 1242, 1250), and defendant fails to establish any, our analysis 24 of the due process claim ends here. 25 Lodged Doc. 9 at 8-10. 26 D. Procedural Default 27 Respondent contends that this claim is procedurally defaulted, and the question of default 28 is contested. See ECF No. 1 at 24; ECF No. 11 at 27-28; ECF No. 22-1 at 5-6. Federal habeas 1 review is generally barred where claims have been rejected in state court on the basis of 2 independent and adequate state law rules, including procedural barriers to their consideration on 3 the merits. Walker v. Martin, 562 U.S. 307, 315 (2011). District courts may nonetheless 4 determine a petition on its merits, bypassing an asserted procedural defense, where the underlying 5 claims lack merit. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997); see also Franklin v. 6 Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002). The undersigned chooses to bypass the procedural 7 issue presented here. 8 E. Objective Reasonableness Under § 2254(d) 9 In addition to finding the pre-accusation delay claim forfeited on procedural grounds, the 10 court of appeal held that petitioner had not made out a due process claim because he made no 11 showing of prejudice. This ruling cannot have been an objectively unreasonable application of 12 Supreme Court precedent, because the Supreme Court has never held that a due process violation 13 can be sustained in this context absent a showing of actual prejudice. See Wright v. Van Patten, 14 552 U.S. 120, 125-26 (2008) (per curiam) (if no Supreme Court precedent provides the rule on 15 which petitioner’s claim depends, the state court’s decision cannot be contrary to, or an 16 unreasonable application of, clearly established federal law). 17 In contrast to the Sixth Amendment speedy trial context, see Barker v. Wingo, 407 U.S. 18 514, 530 (1972), in the pre-accusation delay context the Supreme Court has declined to recognize 19 any presumption of prejudice based on the length of delay. Quite to the contrary, the Court has 20 explained that the existence of statutes of limitation adequately protects defendants from the 21 potential prejudice inherent in delayed charging. Lovasco, 431 U.S. at 789; Marion, 404 U.S. at 22 322. That is precisely why a showing of actual prejudice is required. In Marion, the Supreme 23 Court reversed the dismissal of charges where the district court had found a three-year delay 24 between offense and indictment offended the constitution. Due process protects against 25 fundamental unfairness at trial, and the Court held that the three-year delay in bringing charges, 26 without more, did not demonstrate that the defendants could not receive a fair trial. Marion, 404 27 U.S. at 323-24. The Court declined to “determine when and in what circumstances actual 28 prejudice resulting from pre-accusation delays requires the dismissal of the prosecution.” Id. at 1 324. Marion makes clear, however, that a showing of actual prejudice is required. 2 Petitioner’s arguments that the prosecution failed to adequately justify the delay, and that 3 the state courts failed to conduct a balancing of all factors going to the reasonableness of the 4 delay, are unavailing in the federal habeas context—absent an objectively unreasonable 5 application of Supreme Court authority by the California Court of Appeal, relief is barred. No 6 Supreme Court authority puts the burden on the prosecution to justify pre-charging delay, or 7 requires balancing a la Baker v. Wingo in this context. Particularly in light of Marion, a case also 8 involving a three-year delay and no showing of actual prejudice, the state court’s rejection of 9 petitioner’s due process claim cannot be considered objectively unreasonable. 10 III. Claim Three: Denial of New Trial Motion 11 A. Petitioner’s Allegations and Pertinent State Court Record 12 Following the jury’s verdict, petitioner moved for a new trial on grounds including newly 13 discovered evidence. 1 CT 277-285. Petitioner presented two items of evidence. The first was 14 the testimony of Dr. Boris Zhalkovsky, petitioner’s psychiatrist. Dr. Zhalkovsky had treated 15 defendant from 2004 until April 2006, less than two weeks before the homicide, for anxiety and 16 panic attacks. In an opinion rendered in June 2012, following petitioner’s November 2011 17 conviction, Dr. Zhalkovsky stated petitioner likely had a panic attack at the time of the shooting 18 arising from his perceived inability to protect his father. In Dr. Zhalkovsky’s opinion, petitioner’s 19 behavior at the time of the crime and his immediately leaving the scene demonstrated the poor 20 judgment that frequently accompanies patients with anxiety and panic attacks. 1 CT 294-297. 21 The second item of evidence consisted of a revised translation of the recorded telephone 22 conversation between defendant and Vasily Dovgan. In the version presented to the jury, 23 petitioner told Vasily that when he saw his father’s Mazda crash, he said, “That’s it, dad’s gone.” 24 The new translation provided in the motion for a new trial was, “That’s it, dad’s dead.” 1 CT 25 284-285. 26 The trial court denied the motion. It held that Dr. Zhalkovsky’s opinion did not qualify as 27 newly discovered evidence as it could have been discovered earlier with reasonable diligence. 28 Petitioner knew he had panic attacks and had received treatment for them since 2004. In addition, 1 he testified at trial and could have then explained any symptoms he may have experienced at the 2 time of the shooting. The revised transcript also did not qualify as newly discovered evidence, as 3 petitioner was asked at trial, and gave, his own explanation of what he said in the recorded 4 conversation. He also had the original translation for two years prior to trial when he could have 5 made a revision. In addition, the court ruled that Dr. Zhalkovsky’s opinion and the revised 6 transcript would not have changed the outcome of the case. 3 RT 880-887. 7 B. The Clearly Established Federal Law 8 No United States Supreme Court precedent holds that the discovery after conviction of 9 evidence inconsistent with that conviction, without more, establishes a violation of federal 10 constitutional rights or supports federal habeas relief. Even affirmative proof of actual innocence 11 does not provide a basis for federal habeas relief, because there is no “clearly established federal 12 law” that recognizes a substantive constitutional right not to be criminally convicted if innocent. 13 See Herrera v. Collins, 506 U.S. 390, 404 (1993); District Attorney’s Office v. Osborne, 557 U.S. 14 52 (2009) (recognizing that the Supreme Court has not decided the issue). 15 In procedural contexts where “actual innocence” may be relevant to federal habeas 16 proceedings, the standard is high: a petitioner must present reliable new evidence, in light of 17 which no reasonable jury would have convicted him. See Schlup v. Delo, 513 U.S. 298 (1995) 18 (actual innocence as exception to procedural default); McQuiggin v. Perkins, 569 U.S. 383 (2013) 19 (actual innocence as basis for equitable tolling of statute of limitations). Meeting this standard 20 does not entitle a petitioner to habeas relief; it only excuses a procedural defect that would 21 otherwise bar federal consideration of some other, independently cognizable claim of a 22 constitutional violation. 23 C. The State Court’s Ruling 24 The state appellate court ruled as follows: 25 “ ‘ “The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed 26 unless a manifest and unmistakable abuse of discretion clearly appears.” ’ [Citations.] ‘ “[I]n determining whether there has been a 27 proper exercise of discretion on such motion, each case must be judged from its own factual background.” ’ [Citation.] 28 1 “In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘ “1. That 2 the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to 3 render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and 4 produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.” ’ [Citations.]” (People v. 5 Delgado (1993) 5 Cal.4th 312, 328.) 6 The trial court here did not abuse its discretion in denying the motion for new trial sought on the basis of newly discovered evidence. 7 Defendant could have discovered the evidence with any diligence prior to trial. Dr. Zhalkovsky’s opinion did not qualify as newly 8 discovered evidence, as defendant knew from two years prior to the murder that he suffered anxiety and panic attacks and was being 9 treated for the condition by the doctor. If that was relevant to his defense, he could have informed his trial counsel or testified about it 10 himself when he took the stand. He did neither. The revised transcript also did not qualify as newly discovered evidence, as defendant had 11 the original transcript for two years prior to trial when he could have informed his counsel of a mistranslation. He also explained on the 12 stand what he remembered he said in the conversation. In any event, the purported mistranslation was trifling. In the context of this case, 13 defendant’s statement of “[t]hat’s it, dad’s gone,” is no different than, “[t]hat’s it. Dad is dead.” 14 Moreover, admitting the purported new evidence on retrial was not 15 likely to result in a different result. Defendant admitted on the stand and in the conversation with Vasily that he killed the victim. He 16 admitted the person he thought he shot was Yakimov. Although he now says he thought his father was dead or “gone,” he claimed at 17 trial that he was protecting his father. Yet, he immediately left the scene without checking on his father, he did not call the police, and 18 he failed to explain these actions. This was sufficient evidence to support his second degree murder conviction with or without the new 19 evidence. 20 Lodged Doc. 9 at 12-13. 21 D. Objective Unreasonableness Under § 2254(d) 22 The appellate court denied this claim under the standards applicable to motions for new 23 trials in California, without explicit consideration of any federal constitutional issue at stake. The 24 state law question is not subject to review here in any event, as it provides no basis for federal 25 habeas relief. See Estelle, 502 U.S. at 67. Assuming a sub silentio rejection of the federal issue 26 on the merits, there is nothing unreasonable about the state court’s resolution of this claim. To 27 the contrary, because the United States Supreme Court has never held that the postconviction 28 discovery of exculpatory evidence renders a conviction unconstitutional, AEDPA bars relief. See 1 Wright, 552 U.S. 120, 125-26. Accordingly, even if petitioner’s evidence could be considered 2 both “newly discovered” and exculpatory, federal habeas relief would be unavailable. 3 IV. Claim Four: Jury Tampering and Related Jury Bias 4 A. Petitioner’s Allegations and Pertinent State Court Record 5 During deliberations, the jury informed the court that some “family members of the case” 6 had had contact with some of the jurors. The court then examined the affected jurors.5 7 Juror No. 11, the jury foreperson, stated someone in the audience had asked him how 8 much jurors receive in fees for jury duty. Juror No. 11 stated he had waived the fees. After the 9 jury had finished deliberations for the day, the same person contacted three of the jurors, 10 including Juror No. 11, as they left the courthouse. He asked if they were through for the day. 11 None of the jurors responded. Minutes later, as the trio walked to their parked cars, Juror No. 11 12 noticed four people who had been in the courtroom, including the one who had questioned the 13 group moments earlier, standing around a vehicle and watching the jurors get into their cars. The 14 four people did not say anything to the jurors. 15 As Juror No. 11 drove away, he noticed one of the four people, a female, was following 16 him in her car. They both continued onto the freeway. Juror No. 11 was not certain she was 17 following him, but he performed a couple of maneuvers in traffic and outmaneuvered the vehicle. 18 He did not feel afraid from these contacts, and none of the other jurors expressed fear when they 19 heard about them. 20 Juror No. 10 had seen the same man Juror No. 11 described asking the jurors as they left 21 the courthouse if they were done for the day. The juror also saw him walk through the juror 22 parking lot. Juror No. 10 had seen a group of people outside the courthouse as the juror left for 23 the parking lot but was not sure they were watching the juror. The juror thought some of the 24 female jurors were concerned and uncomfortable about these contacts, but they were not afraid. 25 Juror No. 6 reported seeing some of the people in the courtroom audience at a restaurant 26 during lunch. One of them was the same man described by Juror Nos. 11 and 10. Juror No. 6 27

28 5 3 RT 798-862. 1 overheard a female in the group say “it’s murder,” and “left his father.” No one in the group 2 addressed or contacted the juror. 3 Juror No. 5 was with Juror No. 11 when, leaving the courthouse, a man asked them if they 4 were done for the day. The juror replied they were. Juror No. 5 also saw the group of people 5 from the courtroom audience watch as the jurors went to their parked cars. The man who had 6 inquired of them earlier was one of those who watched. 7 Juror No. 2 had also seen the group of people watching the jurors as they went to the jury 8 parking lot. Not wanting them to see her get into her car, Juror No. 2 held up and pretended to 9 use her phone. Juror No. 2 then saw a female and a male from the group walk through the juror 10 parking lot. The juror saw the male get into a car parked on the street that borders the lot. Seeing 11 this and hearing the other jurors talk about their experiences made Juror No. 2 wonder if she 12 should be worried. 13 Juror No. 12 stated he had sat down in the hallway next to a female. The juror did not 14 recognize her. The juror said good morning, the female said good morning, and she commented 15 on the weather. They exchanged a few words, and then the juror recognized the female as 16 someone he had seen in the courtroom. The juror got up and moved. 17 Juror Nos. 2, 5, 6, 10, 11, and 12 all stated these contacts would not affect their ability 18 to be fair and impartial to both the prosecution and the defense, and they could set the 19 contacts aside. The court inquired of the entire panel, and all of the jurors indicated they could be 20 fair and impartial for both sides. 21 B. The Clearly Established Federal Law 22 The Sixth Amendment right to a jury trial “guarantees to the criminally accused a fair trial 23 by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Down, 366 U.S. 717, 722 (1961). In a 24 criminal case, any private communication, contact, or tampering, directly or indirectly, with a 25 juror during a trial about the matter pending before the jury is deemed presumptively prejudicial. 26 Remmer v. United States, 347 U.S. 227, 229 (1954). The presumption is not conclusive, 27 however. What the constitution requires is a hearing at which a judicial officer “determine[s] the 28 circumstances, the impact [of the contacts] upon the juror, and whether or not [they were] 1 prejudicial[.]” Id. at 230 (ordering hearing on remand). “Due process means a jury capable and 2 willing to decide the case solely on the evidence before it, and a trial judge ever watchful to 3 prevent prejudicial occurrences and to determine the effect of such occurrences when they 4 happen.” Smith v. Phillips, 455 U.S. 209, 217 (1982). 5 C. The State Court’s Ruling 6 The California Court of Appeal ruled as follows: 7 “An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been 8 improperly influenced [citations] and every member is ‘ “capable and willing to decide the case solely on the evidence before it” ’ 9 [Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) 10 “A juror’s . . . involuntary exposure to certain events or materials other than what is presented at trial generally raises a rebuttable 11 presumption that the defendant was prejudiced and may establish juror bias. [Citation.] As relevant here, . . . [a] nonjuror’s 12 unauthorized communication with a juror during trial that concerns the matter pending before the jury likewise raises a presumption of 13 prejudice. [Citations.]” (People v. Merriman (2014) 60 Cal.4th 1, 95.) Other events outside the courtroom that may require 14 examination for probable prejudice may “include attempts by nonjurors to tamper with the jury, as by bribery or intimidation.” (In 15 re Hamilton, supra, 20 Cal.4th at p. 295.) 16 “[T]he presumption of prejudice is rebutted, and the verdict will not be disturbed, if a reviewing court concludes after considering the 17 entire record, including the nature of the misconduct and its surrounding circumstances, that there is no substantial likelihood that 18 the juror in question was actually biased against the defendant. [Citations.] Our inquiry in this regard is a ‘mixed question of law and 19 fact’ subject to independent appellate review. [Citation.] But ‘ “[w]e accept the trial court’s credibility determinations and findings on 20 questions of historical fact if supported by substantial evidence.” [Citations.]’ [Citation.]” (People v. Merriman, supra, 60 Cal.4th at 21 pp. 95-96.) 22 After reviewing the record and the nature of the misconduct, we conclude there is no substantial likelihood the jury was actually 23 biased against defendant due to the public contacts. Nothing in the record indicates the jurors understood which party the people who 24 spoke with them and watched them were supporting. The incidents of direct comments to the jurors did not concern any substantive issue 25 or evidence from the trial. Juror No. 6 overheard comments about the case, but there was no indication the comments were directed 26 towards the juror or that the juror knew which party the people supported. Some of the jurors were concerned about being watched 27 by people, but none of them expressed feeling fear or intimidation. 28 1 In addition, under the trial court’s questioning, each juror stated he or she had not been affected by the contacts and could be fair and 2 impartial to both sides. The court was entitled to rely upon those statements “to determine whether a juror can maintain his or her 3 impartiality after an incident raising a suspicion of prejudice.” (People v. Harris (2008) 43 Cal.4th 1269, 1304.) We defer to the trial 4 court’s credibility determinations when supported by substantial evidence, and the jurors’ statements are substantial. (Id. at p. 1305.) 5 Under the totality of the circumstances, there is no substantial 6 likelihood the jurors were actually biased against defendant due to the public contacts. The trial court did not err in denying the motion 7 for new trial on this basis. 8 Lodged Doc. 9 at 15-16. 9 D. Objective Unreasonableness Under § 2254(d) 10 In applying Remmer, supra, the Ninth Circuit has consistently distinguished actual 11 tampering, defined as “an effort to influence the jury’s verdict by threatening or offering 12 inducements to one or more of the jurors” and giving rise to a strong presumption of prejudice, 13 from run of the mill ex parte contacts which carry no such presumption. United States v. Dutkel, 14 192 F.3d 893, 895 (9th Cir. 1999); see also, Moody v. Chappell, 554 Fed. Appx. 588 (9th Cir. 15 2014) (finding habeas relief unavailable under § 2254(d) where jurors were contacted but not 16 threatened or bribed by trial spectators). Taking circuit precedent as a guide to the reasonable 17 application of the Supreme Court’s jury tampering jurisprudence, see Renico v. Lett, 559 U.S. 18 766, 779 (2010) (under AEDPA, circuit authority does not define but may illuminate the contours 19 of “clearly established federal law”), the state court’s ruling was eminently reasonable. 20 Nothing in the trial court record demonstrated that any spectator had threatened or offered 21 inducements to any juror. Accordingly, petitioner cannot prevail on a theory of presumed bias. 22 The trial court held a thorough hearing that explored the impact of the contacts on each of the 23 affected jurors, which is what is constitutionally required in cases of either tampering or garden 24 variety ex parte contacts. See Remmer, 347 U.S. at 230 (tampering); Smith, 455 U.S. at 217 (ex 25 parte contacts). The court was entitled to accept the jurors’ sworn testimony that they could 26 remain impartial. Murphy v. Florida, 421 U.S. 794, 800 (1975). Because there is nothing 27 objectively unreasonable, either factually or legally, in the state court’s conclusion that 28 petitioner’s jury remained impartial despite the ex parte contacts, relief is unavailable. 1 V. Claim Five: Failure to Properly Instruct the Jury on Transferred Intent 2 A. Petitioner’s Allegations and Pertinent State Court Record 3 The jury was instructed as follows pursuant to CALCRIM No. 562: 4 If the defendant intended to kill one person, but by mistake or accident killed someone else instead, then the crime, if any, is the 5 same as if the intended person had been killed. 6 CT []. 7 Relying on People v. Matthews, 91 Cal. App. 3d 1018, 1024 (1979), petitioner requested 8 that the jury be instructed further that “any defense that applied to an intended killing, applied to 9 the unintended killing as well.” 3 RT 747. The trial court denied the request. Id. 10 B. The Clearly Established Federal Law 11 Claims of error in state jury instructions are generally matters of state law, and thus may 12 not be considered on federal habeas review. See Gilmore v. Taylor, 508 U.S. 333, 343-44 (1993). 13 Federal habeas relief is available only where instructional error violated due process by rendering 14 the trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Alleged 15 instructional error “must be considered in the context of the instructions as a whole and the trial 16 record.” Id. at 72. In challenging the failure to give an instruction, a habeas petitioner faces an 17 “especially heavy” burden because “[a]n omission, or an incomplete instruction, is less likely to 18 be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977). 19 C. The State Court’s Ruling 20 The state appellate court ruled as follows: 21 Under the common law doctrine of transferred intent, “one’s criminal intent follows the corresponding criminal act to its unintended 22 consequences. . . . [T]he reasoning applies equally to carry the lack of criminal intent to the unintended consequences and thus preclude 23 criminal responsibility.” (People v. Matthews (1979) 91 Cal.App.3d 1018, 1023 (Matthews), italics omitted.) Accordingly, “the doctrine 24 of self-defense is available to insulate one from criminal responsibility where his act, justifiably in self-defense, inadvertently 25 results in the injury of an innocent bystander.” (Id. at p. 1024.) 26 Defendant argued he was not guilty of any crime due to lawful self- defense, and, alternatively, he was not guilty of murder because he 27 did not intend to kill. He requested a pinpoint instruction on transferred intent. Relying on Matthews, he sought to add the 28 following language to CALCRIM No. 562: “any defenses that 1 applied to any intended killing applied to the unintended killing as well.” The trial court denied the request, holding that CALCRIM No. 2 562 adequately explained the law. The court instructed the jury with CALCRIM No. 562 as follows: “If the defendant intended to kill one 3 person, but by mistake or accident killed someone else instead, then the crime, if any, is the same as if the intended person had been 4 killed.” 5 Defendant contends the trial court erred by refusing to give his pinpoint instruction modifying CALCRIM No. 562. He asserts the 6 instruction would have been beneficial in jury deliberations, as defendant testified he just wanted to scare people away from his 7 father. 8 The trial court did not err. A court may refuse a proposed instruction when another instruction covers the same point. (People v. Clark 9 (2011) 52 Cal.4th 856, 975.) Other instructions the court gave to the jury here fully explained the point defendant wanted addressed. The 10 court instructed the jury with a pinpoint instruction also offered by defendant, instruction No. 505a, that specifically addressed 11 defendant’s theory. The instruction read: “If the defendant acted in justifiable defense of another, but he mistakenly injured or killed a 12 bystander, he did not commit any crime against that person. In other words, the defendant is not guilty if he justifiably attempted to defend 13 another person, but by mistake he injured or killed a bystander. The prosecution has the burden of proving beyond a reasonable doubt that 14 the defendant did not act in justifiable defense of another person.” 15 Moreover, the court gave instruction No. 505a in the context of other instructions that addressed defendant’s defenses to the shooting. The 16 court instructed as follows: “If a person kills with a legally valid excuse or justification, the killing is lawful and he has not committed 17 a crime;” and “[t]he defendant is not guilty of murder or manslaughter if he was justified in killing someone in defense of 18 another.” The court went on fully to instruct on the defense of self- defense. 19 The court also gave instructions that addressed the defense of lack of 20 intent to kill. The court instructed on killing in the heat of passion and imperfect self-defense, both of which theories would have 21 reduced defendant’s crime to voluntary manslaughter due to a lack of intent. In addition, the court stated: “In order to prove murder or 22 voluntary manslaughter, the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill 23 or with conscious disregard for human life. If the People have not met either of these burdens, you must find the defendant not guilty 24 of murder and not guilty of voluntary manslaughter.” 25 The court also instructed on involuntary manslaughter, where a person kills without the intent to kill and without conscious disregard 26 for human life. It stated: “Involuntary manslaughter is a lesser offense to murder . . . . When a person commits an unlawful killing 27 but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.” The 28 court fully explained the elements of involuntary manslaughter. 1 Taken together, the court’s instructions addressed defendant’s theory based on transferred intent–that he acted in self-defense and did not 2 intend to kill. Because the theory was so fully covered, the court did not err when it refused to give defendant’s duplicative pinpoint 3 instruction. 4 Lodged Doc. 9 at 17-19. 5 D. Objective Unreasonableness Under § 2254(d) 6 The state court’s rejection of this claim involved no objectively unreasonable application 7 of clearly established due process principles. The reviewing court was required to consider the 8 instructions as a whole and in the context of the entire trial, Waddington v. Sarausad, 555 U.S. 9 179, 191 (2009), and it did so. The court correctly identified several other jury instructions that 10 covered petitioner’s transferred intent theory. It is readily apparent that the jury was permitted to 11 fully consider petitioner’s assertion of self-defense in the transferred intent context – petitioner 12 testified in support of this theory, and defense counsel argued it to the jury. The jury instructions 13 did not in any way limit consideration of the defense theory. Accordingly, there was no 14 fundamental unfairness. Even if the requested pinpoint instruction was proper as a matter of state 15 law, the failure to give it does not support federal habeas relief. See Menendez v. Terhune, 422 16 F.3d 1012, 1029 (9th Cir. 2005). 17 VI. Claim Six: Insufficient Evidence to Support Verdict 18 A. Petitioner’s Allegations and Pertinent State Court Record 19 Petitioner contends that the evidence was insufficient to disprove self-defense. 20 B. The Clearly Established Federal Law 21 Due process requires that each essential element of a criminal offense be proven beyond a 22 reasonable doubt. United States v. Winship, 397 U.S. 358, 364 (1970). In reviewing the 23 sufficiency of evidence to support a conviction, the question is “whether, viewing the evidence in 24 the light most favorable to the prosecution, any rational trier of fact could have found the essential 25 elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 26 (1974). If the evidence supports conflicting inferences, the reviewing court must presume “that 27 the trier of fact resolved any such conflicts in favor of the prosecution,” and the court must “defer 28 to that resolution.” Id. at 326. “A reviewing court may set aside the jury’s verdict on the ground 1 of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos 2 v. Smith, 565 U.S. 1, 2 (2011) (per curiam). In other words, a verdict must stand unless it was 3 “so unsupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson, 566 4 U.S. 650, 656 (2012). 5 C. The State Court’s Ruling 6 The California Court of Appeal ruled as follows: 7 Defendant contends insufficient evidence supports his conviction of second degree murder because he acted only to protect his father 8 from what he thought was an attack by a man with a knife. We disagree, as ample evidence supports the conviction. 9 To convict defendant of murder, the jury had to conclude defendant 10 (1) committed an act that caused the victim’s death, (2) acted with malice, and (3) killed without lawful excuse or justification. (§§ 187, 11 189.) Malice is either express or implied. Defendant acted with express malice if he manifested “a deliberate intention unlawfully to 12 take away the life of a fellow creature.” (§ 188.) He acted with implied malice if the killing resulted from “ ‘an intentional act, the 13 natural consequences of which are dangerous to life, which act was deliberately performed by [defendant] who knows that his conduct 14 endangers the life of another and who acts with conscious disregard for life.’ ” (People v. Blakeley (2000) 23 Cal.4th 82, 87.) 15 Substantial evidence supports the first two elements of murder. 16 Defendant’s act of shooting caused the victim’s death, and defendant acted with either express or implied malice. Defendant’s later 17 admission that he had killed “the wrong person” implies he intended to kill someone. Moreover, he intentionally and deliberately fired his 18 gun into the crowd of people gathered by the Mazda, knowing his act would endanger their lives but consciously disregarding that fact. 19 Defendant’s explanation of his thought process at the time of the shooting perfectly describes implied malice: “Whoever I hit, I hit.” 20 Sufficient evidence also supports the third element of murder; the 21 jury’s determination that defendant killed without justification. For a killing in defense of another to be justified, the defendant must 22 actually and reasonably fear that the person is in imminent danger of great bodily injury or death. (People v. Humphrey (1996) 13 Cal.4th 23 1073, 1082.) 24 Substantial evidence at trial indicated defendant did not actually believe his father was in imminent danger. Defendant shot only one 25 shot from the truck, and then he and his brother immediately left the scene without checking on their father or seeing if the shot had scared 26 people away. Defendant testified he believed all of the people surrounding the Mazda were hostile to his father, yet after firing the 27 shot, he left the scene while purportedly thinking his father was still surrounded by people defendant believed were hostile. Defendant 28 also did not seek police assistance or medical aid for his father. He 1 returned to the scene some hours later after he learned he had shot his friend. Police were there, but he did not speak with them. He 2 called his attorney. 3 This evidence was sufficient for the jury to conclude defendant did not actually fear that his father was in imminent danger of harm. 4 Because there was no actual fear, the killing was not justified, and all of the elements of second degree murder were met. 5 6 Lodged Doc. 9 at 19-20. 7 D. Objective Unreasonableness Under § 2254(d) 8 Although the state court did not cite Jackson v. Virginia or explicitly apply the federal 9 constitutional standard it prescribes, this court may not grant relief unless the state court’s 10 analysis was objectively unreasonable under Jackson. See Early v. Packer, 537 U.S. 3 (2002) 11 (even if state court fails to cite or indicate awareness of federal law, its decision must be upheld 12 “so long as neither the reasoning nor the result of the state-court decision contradicts” clearly 13 established United States Supreme Court authority). Nothing in the state court’s resolution of this 14 issue is inconsistent with Supreme Court precedent. 15 Under Jackson, the appellate court was obliged to view the evidence in the light most 16 favorable to the judgment and to consider all reasonable inferences in support of that judgment. It 17 did so. There is nothing objectively unreasonable in the conclusion that the verdict was not 18 irrational. The jury heard petitioner’s testimony in support of his self-defense theory, and 19 rejected it. Neither the state appellate court nor this court may revisit that credibility 20 determination under binding Supreme Court precedent. Particularly in light of the “double dose 21 of deference” to the verdict that is required under Jackson and the AEDPA, Boyer v. Belleque, 22 659 F.3d 957, 964 (9th Cir. 2011), federal habeas relief is unavailable. 23 VII. Claim Seven: Ineffective Assistance of Appellate Counsel 24 A. Petitioner’s Allegations and Pertinent State Court Record 25 Petitioner alleges that appellate counsel violated minimum constitutional standards by 26 failing to raise the issue that petitioner was denied his right to a fair trial when the court forced 27 him to testify with a sheriff’s deputy sitting directly behind him. ECF No. 1 at 39. 28 //// 1 At trial, a uniformed sheriff’s deputy sat behind petitioner when he was at counsel’s table 2 and also accompanied him to the witness stand and sat nearby while petitioner testified. Before 3 petitioner took the stand, defense counsel asked that the escort officer remain at counsel’s table. 4 2 RT 482. Counsel argued that petitioner had not shown himself to be dangerous at trial or during 5 his three years of incarceration, and that he had no prior criminal record. 2 RT 483. The trial 6 court rejected this request, giving the following explanation: 7 Now, insofar as whether or not the escort officer is going to be allowed to accompany the defendant to the stand, now I’ll note that 8 our escort officers actually are seated a lot closer to the defendants during the course of the trial while the defendant is seated at counsel 9 table than they ever would be at – once or if the defendant takes the stand. 10 But in this particular case, and I do understand that you know the 11 Court can exercise its discretion as long as the Court makes case specific reasons for ordering the escort officer to accompany and sit 12 by while the defendant testifies. 13 And I am going to exercise that discretion. In this particular case in the first instance we have probably the most egregious type of crime 14 that one man could commit against another which is murder. 15 So this is a very serious crime. But the Court doesn’t base its justification solely on the nature of the crime. But I also want to 16 indicate that during the course of this trial it’s pretty apparent to this Court that the defendant has a very difficult time controlling himself. 17 Simply put, I don’t think anyone looking at this record and looking 18 at this defendant and looking at the defendant’s actions during the course of this trial, could say that he has conducted himself in an 19 exemplary fashion; in fact, it’s quite the contrary. 20 I’m concerned because the defendant can’t control himself. In fact, on several occasions the defendant has had a number of outbursts 21 where we’ve essentially lost at least two days, two complete days to this trial because he could not control himself. 22 I imagine that during the course of his testimony, once again we’ll 23 go through a situation where, once again, he can’t control himself and he can’t control his emotions. It’s not as though he’s just sitting 24 there silently crying to himself and I think we’ve described it for the record he’s – you know, he rocks back and forth, he loses his 25 emotions, he starts – you know, snot starts to come out of his nose, on one occasion he started mumbling to himself. 26 And I’ll note that when the defendant starts doing that each time – 27 and I’ve had several escort officers granted. The last couple of days I’ve had the same escort officer, each time the escort officers have 28 attempted to assist the defendant in trying to control his emotions. 1 They’ve provided him – one occasion I saw a deputy provide him with water. On another occasion they provided him with some 2 Kleenex. Next he now has a box of Kleenex in front of him. 3 Be that as it may, he was still unable to control himself on at least two of those occasions the defendant started ripping at his tie, ripping 4 at his shirt and the deputies once again they really didn’t put their hands on him, they didn’t attempt to subdue him in any fashion, they 5 attempted to simply help him. But they were unable to do so. 6 So I have a very real concern based on what the defendant has demonstrated throughout the course of this trial that he’s unable to 7 control himself. And, God forbid, the defendant will be unable to control himself start ripping off his clothes and run through this 8 court. 9 I haven’t seen that yet, but based on his actions he simply is not able to control himself. 10 I think the Court would be remiss in this case if the Court were not 11 to station a deputy – let me indicate this. The deputy will be stationed a bit further away than the deputy is stationed near the defendant as 12 the defendant sits at that counsel table. 13 I intend to have a deputy simply sit closer because it is close space here the deputy is going to sit closer to the jury box than he would 14 the defendant. 15 I am not intending to have a deputy stand behind the defendant. I don’t think that’s necessary that he stand behind him. 16 But I am going to have him sit off to the side approximately – it 17 would be no more than five feet from where the defendant is seated as he testifies. 18 And, you know, as I indicated, I don’t know – I really don’t know 19 what the policy of the other courts in this county even are. I don’t know from court to court. I imagine that judges go through the same 20 type of hearing that we’re conducting right now, but I’m not basing – I want to make it clear I’m not basing my ruling on any perceived 21 policy around this courthouse. 22 And I do understand that the Court needs to balance the need for some type of heightened security risk against the additional 23 precaution inherent and prejudicial, at least to the extent that the jurors might be – the defendant might be prejudiced in the eyes of 24 the jury. 25 And I am balancing that need. But in this particular case given the actions of the defendant throughout this trial it’s clear to me that it 26 would not only assist the orderly processes of this court, but it would also benefit the defendant who is unable – simply put, has been 27 unable to control himself throughout this trial. 28 1 I don’t think anyone – like I said, I don’t think anyone looking at the case could look at the defendant and say that he is able to control 2 himself. 3 So I have a very real concern not only for the safety of this court, but also for the orderly administration of this court and I’ve described 4 that repeatedly throughout the record. 5 There were several other occasions when we – counsel approached the bench when we were considering recessing because the defendant 6 was unable to control himself. 7 And I’ll note yesterday was one of those days. And I know you went and talked to him and then the defendant for the first time yesterday, 8 although he sat there crying, he wasn’t as demonstrative as he had been on those earlier occasions. 9 So I want to make it clear that the Court has very fact specific reasons 10 for stationing a guard or a bailiff near the witness stand and I am – I am going to deny your request to have the escort officer wait at the 11 table while the defendant testifies. 12 2 RT 484-489. 13 The jury was subsequently instructed as follows: 14 The fact that a member of the Sacramento County Sheriff’s Department was sitting near the defendant while he testified is not 15 evidence. Do not speculate about the reason. You must completely disregard that circumstance in deciding the issues in this case. Do not 16 consider it for any purpose or discuss it during your deliberations. 17 3 RT 760. 18 B. The Clearly Established Federal Law 19 A criminal defendant enjoys the right to effective assistance of counsel on appeal. Evitts 20 v. Lucey, 469 U.S. 387, 391 (1985). Claims that this right has been violated are evaluated under 21 the framework of Strickland v. Washington, 466 U.S. 668 (1984). Smith v. Robbins, 528 U.S. 22 259, 285 (2000). Under Strickland, the constitution is violated when (1) counsel’s representation 23 falls below an objective standard of reasonableness, and (2) the defendant is prejudiced by the 24 unreasonable performance. Strickland, 466 U.S. at 692, 694. To demonstrate prejudice in the 25 appellate context, petitioner must show a reasonable probability that he would have prevailed on 26 appeal absent counsel’s alleged errors. Smith, 528 U.S. at 285-286. 27 C. The State Court’s Ruling 28 The claim of appellate ineffective assistance was presented to the California Court of 1 Appeal in a motion to call the remittitur, which was denied without comment. Lodged Doc. 12. 2 A petition for review was summarily denied by the California Supreme Court. Lodged Doc. 18. 3 D. Objective Unreasonableness Under § 2254(d) 4 Because the state courts rejected this claim on the merits but without a written opinion, 5 this court must determine what arguments or theories may have supported the state court’s 6 decision and subject those arguments or theories to § 2254(d) scrutiny. Harrington v. Richter, 7 562 U.S. at 102. The question remains objective reasonableness under clearly established 8 Supreme Court precedent. Id. 9 Petitioner’s appellate ineffectiveness claim could reasonably have been rejected on either 10 the performance prong of Strickland or for lack of prejudice, for the same reason: the claim had 11 little likelihood of success. Under California law, a “deputy’s presence at the witness stand 12 during a defendant’s testimony is not inherently prejudicial.” People v. Stevens, 47 Cal.4th 625, 13 638 (2009). In deciding where to station security personnel in the courtroom, a court “must 14 exercise its own discretion to determine whether a given security measure is appropriate on a 15 case-by case basis.” People v. Hernandez, 51 Cal.4th 733, 742 (2011). Such determinations are 16 reviewed for abuse of discretion. Id. at 741. Given the trial court’s extensive, case-specific 17 factual findings regarding petitioner’s inability to control himself in the courtroom, there can be 18 no reasonable likelihood that petitioner would have prevailed on appeal had counsel presented the 19 issue. Appellate counsel cannot be faulted for deciding to weed out a weak claim. See Jones v. 20 Barnes, 463 U.S. 745, 751-54 (1983). And because there is little likelihood of a different result, 21 the ineffective assistance claim fails for lack of prejudice. See Smith, 528 U.S. at 285-286. 22 CONCLUSION 23 For all the reasons explained above, the state courts’ denial of petitioner’s claims was not 24 objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS 25 HEREBY RECOMMENDED that the petition for writ of habeas corpus be denied. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(l). Within twenty-one days 28 after being served with these findings and recommendations, any party may file written 1 | objections with the court and serve a copy on all parties. Such a document should be captioned 2 || “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 3 || he shall also address whether a certificate of appealability should issue and, if so, why and as to 4 || which issues. See 28 U.S.C. § 2253(c)(2). Any reply to the objections shall be served and filed 5 || within fourteen days after service of the objections. The parties are advised that failure to file 6 || objections within the specified time may waive the right to appeal the District Court’s order. 7 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 8 | DATED: July 14, 2023 . . 9 Chthtenr—Clore_ 10 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29