(HC) Daniel Frazer v. McDowell

• Court: District Court, E.D. California
• Decided: April 21, 2021
• Docket: 1:20-cv-01092
• Status: Unknown

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 DANIEL FRAZER, Case No. 1:20-cv-01092-DAD-SAB-HC

11 Petitioner, FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION 12 v. FOR WRIT OF HABEAS CORPUS

13 NEIL MCDOWELL, 14 Respondent.

15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. 18 I. 19 BACKGROUND 20 On July 31, 2015, Petitioner was convicted after a jury trial in the Merced County 21 Superior Court of two counts of first-degree robbery. (8 CT1 1929, 1931). Petitioner was 22 sentenced to an imprisonment term of twenty-five years to life. (9 CT 2297). On January 31, 23 2019, the California Court of Appeal, Fifth Appellate District affirmed the judgment. People v. 24 Frazer, No. F073793, 2019 WL 396856 (Cal. Ct. App. Jan. 31, 2019), as modified on denial of 25 reh’g (Feb. 25, 2019). On February 25, 2019, the California Court of Appeal, Fifth Appellate 26 District denied Petitioner’s petition for rehearing. (LD2 24). On May 15, 2019, the California 27 1 “CT” refers to the Clerk’s Transcript on Appeal lodged by Respondent on October 30, 2020. (ECF Nos. 13–15). 1 Supreme Court denied Petitioner’s petition for review. (LDs 27, 28). All seven of Petitioner’s 2 state habeas petitions were denied. (LDs 31–42). 3 On August 6, 2020, Petitioner filed the instant federal petition for writ of habeas corpus. 4 (ECF No. 1). In the petition, Petitioner asserts that he is entitled to habeas relief on the following 5 grounds: (1) presentation of false evidence by the prosecution; (2) violation of the Equal 6 Protection Clause; (3) violation of Petitioner’s right to a speedy trial; and (4) violation of the 7 Confrontation Clause. (ECF No. 1 at 4–5).3 Respondent filed an answer, and Petitioner filed a 8 traverse. (ECF Nos. 12, 16). 9 II. 10 STATEMENT OF FACTS4

11 On February 15, 2011, [Frazer] was charged by complaint with two counts of robbery (Pen. Code, § 21115) and three enhancements for prior convictions 12 (§§ 667, subds. (b)-(i), 1170.12, 668) and was arraigned on the complaint on May 13, 2013. At his arraignment, [Frazer] waived his right to counsel and exercised 13 his right to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). Following a preliminary hearing, [Frazer] was held to answer to the 14 charges on November 8, 2013. A first amended information was filed on January 29, 2015, charging [Frazer] with two counts of robbery (§ 211) and four 15 enhancements for prior convictions (§§ 667, subds. (b)-(i), 1170.12, 668). Trial commenced on July 15, 2015. 16 Prosecution Case 17 The charges alleged in the information arose out of a bank robbery that occurred 18 on November 6, 2009, against two tellers working at the bank. The primary issue in the case was identity. The robbery occurred in Livingston, California, at 19 approximately 10:21 a.m. The robber entered the bank with a lunch box-sized cooler. He wore a mask with cutouts for his eyes and nose, eye glasses, and latex 20 gloves. He approached a teller, J.S., and demanded “100s and 50s.” She gave him the money, and the robber went to the window of the other teller, S.S., and 21 demanded “100s and 50s.” S.S., too, handed over money. The robber did not display a weapon or use a note. 22 S.S. testified the robber had a similar skin tone and build to [Frazer]. J.S. testified 23 the complexion of the robber was the same as [Frazer]’s and that they had the same eyes. 24 An expert witness in cellular technology testified he had reviewed cell phone 25 records related to [Frazer]’s phone and that at 9:58 a.m. on the day of the robbery, [Frazer]’s cell phone connected to the cell site that covered the same location as 26 3 Page numbers refer to the ECF page numbers stamped at the top of the page. 27 4 The Court relies on the California Court of Appeal’s February 25, 2019 opinion for this summary of the facts of the crime. See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009). 1 the bank where the robbery occurred, raising an inference he was in the vicinity of the robbery when it occurred. 2 The prosecution offered evidence of three other robberies that took place in San 3 Joaquin County on September 11, 2009, October 6, 2009, and December 4, 2009, to prove identity pursuant to Evidence Code section 1101, subdivision (b). 4 [Frazer] was apprehended after the December 4, 2009, robbery at the end of a high-speed chase. At the time, he denied the September and October robberies, 5 though DNA evidence later tied him to those robberies. He pled guilty to the December 4, 2009, robbery and testified at trial he committed all three. 6 The September 11, 2009, robbery occurred at approximately 11:30 a.m. [Frazer] 7 wore a mask with cutouts for his eyes and surgical gloves. He yelled at the tellers that he wanted “100s and 50s.” He did not use a gun or a note during the robbery. 8 The October 6, 2009, robbery occurred at the same bank as the September 9 robbery at approximately 10:45 a.m. [Frazer] wore a mask with cutouts for his eyes and surgical gloves. He approached two tellers and demanded 50’s and 100’s 10 from each.

11 The December 4, 2009, robbery took place in the same town as the first two robberies at a different bank at approximately 10:04 a.m. [Frazer] approached the 12 teller window and yelled that he wanted “100s and 50s.” He did not use a gun or a note. He was carrying a spray bottle. After he was arrested, he told law 13 enforcement he never uses weapons because he does not want to hurt anyone and “[y]ou don’t need a gun to rob a bank.” He said he typically carries something in 14 his hand to give the appearance he has a reason to be walking around the bank, and this is why he carried the spray bottle. 15 Defense Case 16 A detective testified that J.S. was unable to identify [Frazer] in a photo lineup. 17 [Frazer] also testified. He denied committing the charged November robbery and admitted to committing the three uncharged robberies. [Frazer] also testified he 18 never used a gun or note and wore his glasses during all his robberies.

19 [Frazer] was found guilty of both counts of robbery. A bifurcated bench trial was held on October 16, 2015, on [Frazer]’s prior convictions. The prosecution 20 dismissed two of the alleged prior convictions, and the trial court found the remaining two allegations true. [Frazer] was sentenced to a term of imprisonment 21 of 25 years to life on count 1 and a concurrent term of 25 years to life on count 2. 22 Frazer, 2019 WL 396856, at *1–2 (footnote in original). 23 III. 24 STANDARD OF REVIEW 25 Relief by way of a petition for writ of habeas corpus extends to a person in custody 26 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws 27 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed 1 by the U.S. Constitution. The challenged conviction arises out of the Fresno County Superior 2 Court, which is located within the Eastern District of California. 28 U.S.C. § 2241(d). 3 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 4 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its 5 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th 6 Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is 7 therefore governed by its provisions. 8 Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred 9 unless a petitioner can show that the state court’s adjudication of his claim: 10 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 11 determined by the Supreme Court of the United States; or

12 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 13 State court proceeding. 14 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97–98 (2011); Lockyer v. Andrade, 538 15 U.S. 63, 70–71 (2003); Williams, 529 U.S. at 413. 16 As a threshold matter, this Court must “first decide what constitutes ‘clearly established 17 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at 71 18 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this 19 Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as 20 of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In other words, 21 ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles 22 set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition, 23 the Supreme Court decision must “‘squarely address [] the issue in th[e] case’ or establish a legal 24 principle that ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in 25 . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of 26 review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. 27 Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. 1 end and the Court must defer to the state court’s decision. Musladin, 549 U.S. 70; Wright, 552 2 U.S. at 126; Moses, 555 F.3d at 760. 3 If the Court determines there is governing clearly established Federal law, the Court must 4 then consider whether the state court’s decision was “contrary to, or involved an unreasonable 5 application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C. 6 § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the 7 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question 8 of law or if the state court decides a case differently than [the] Court has on a set of materially 9 indistinguishable facts.” Williams, 529 U.S. at 412–13; see also Lockyer, 538 U.S. at 72. “The 10 word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character 11 or nature,’ or ‘mutually opposed.’” Williams, 529 U.S. at 405 (quoting Webster’s Third New 12 International Dictionary 495 (1976)). “A state-court decision will certainly be contrary to 13 [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the 14 governing law set forth in [Supreme Court] cases.” Id. If the state court decision is “contrary to” 15 clearly established Supreme Court precedent, the state decision is reviewed under the pre- 16 AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc). 17 “Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if 18 the state court identifies the correct governing legal principle from [the] Court’s decisions but 19 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. 20 “[A] federal court may not issue the writ simply because the court concludes in its independent 21 judgment that the relevant state court decision applied clearly established federal law erroneously 22 or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see also Lockyer, 23 538 U.S. at 75–76. The writ may issue only “where there is no possibility fair minded jurists 24 could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.” 25 Richter, 562 U.S. at 102. In other words, so long as fair minded jurists could disagree on the 26 correctness of the state court’s decision, the decision cannot be considered unreasonable. Id. If 27 the Court determines that the state court decision is objectively unreasonable, and the error is not 1 structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious 2 effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). 3 The Court looks to the last reasoned state court decision as the basis for the state court 4 judgment. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); Stanley v. Cullen, 633 F.3d 852, 859 5 (9th Cir. 2011). If the last reasoned state court decision adopts or substantially incorporates the 6 reasoning from a previous state court decision, this Court may consider both decisions to 7 ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 8 2007) (en banc). “When a federal claim has been presented to a state court and the state court has 9 denied relief, it may be presumed that the state court adjudicated the claim on the merits in the 10 absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 11 99. This presumption may be overcome by a showing “there is reason to think some other 12 explanation for the state court’s decision is more likely.” Id. at 99–100 (citing Ylst v. 13 Nunnemaker, 501 U.S. 797, 803 (1991)). 14 Where the state courts reach a decision on the merits but there is no reasoned decision, a 15 federal habeas court independently reviews the record to determine whether habeas corpus relief 16 is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 17 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional 18 issue, but rather, the only method by which we can determine whether a silent state court 19 decision is objectively unreasonable.” Himes, 336 F.3d at 853. While the federal court cannot 20 analyze just what the state court did when it issued a summary denial, the federal court must 21 review the state court record to determine whether there was any “reasonable basis for the state 22 court to deny relief.” Richter, 562 U.S. at 98. This Court “must determine what arguments or 23 theories . . . could have supported, the state court’s decision; and then it must ask whether it is 24 possible fairminded jurists could disagree that those arguments or theories are inconsistent with 25 the holding in a prior decision of [the Supreme] Court.” Id. at 102. 26 /// 27 /// 1 IV. 2 REVIEW OF CLAIMS 3 A. Procedural Default 4 Respondent contends that all four of Petitioner’s claims are procedurally defaulted 5 because the California Supreme Court denied each of the claims as barred by state procedural 6 rules and alternatively rejected them on the merits. (ECF No. 12 at 18–19). A federal court will 7 not review a petitioner’s claims if the state court has denied relief on those claims pursuant to a 8 state law procedural ground that is independent of federal law and adequate to support the 9 judgment. Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). This doctrine of procedural 10 default is based on the concerns of comity and federalism. Id. at 730–32. However, there are 11 limitations as to when a federal court should invoke procedural default and refuse to review a 12 claim because a petitioner violated a state’s procedural rules. Procedural default can only block a 13 claim in federal court if the state court “clearly and expressly states that its judgment rests on a 14 state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). In determining whether a state 15 procedural ruling bars federal review, the Court looks to the “last reasoned opinion on the 16 claim.” Ylst, 501 U.S. at 804. See id. at 802 (defining an unexplained order as one “whose text or 17 accompanying opinion does not disclose the reason for the judgment”). 18 All four of the claims raised in the instant federal petition were presented in a state 19 habeas petition filed in the California Supreme Court. (LD 41). In denying the petition, the 20 California Supreme Court stated:

21 The petition for writ of habeas corpus is denied. Individual claims are denied, as applicable. (See People v. Duvall (1995) 9 Cal.4th 464, 474 [a petition for writ of 22 habeas corpus must include copies of reasonably available documentary evidence]; In re Waltreus (1965) 62 Cal.2d 218, 225 [courts will not entertain 23 habeas corpus claims that were rejected on appeal]; In re Lessard (1965) 62 Cal.2d 497, 503 [courts will not entertain habeas corpus claims that raise Fourth 24 Amendment violations]; In re Dixon (1953) 41 Cal.2d 756, 759 [courts will not entertain habeas corpus claims that could have been, but were not, raised on 25 appeal]; In re Swain (1949) 34 Cal.2d 300, 304 [a petition for writ of habeas corpus must allege sufficient facts with particularity].) 26 27 (LD 42 (emphasis added)). 1 “[A] procedural default based on an ambiguous order that does not clearly rest on 2 independent and adequate state grounds is not sufficient to preclude federal collateral review.” 3 Valerio v. Crawford, 306 F.3d 742, 774 (9th Cir. 2002) (en banc) (internal quotation marks 4 omitted) (quoting Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir.1996)). Where a state court 5 denies a habeas petition containing multiple claims, does not “specify which claims were barred 6 for which reasons,” Valerio, 306 F.3d at 775, and “affords no basis for choosing between a state 7 law ground that would bar federal review, and one that would not, that decision cannot bar 8 federal review,” Koerner v. Grigas, 328 F.3d 1039, 1052 (9th Cir. 2003). See id. (“Under some 9 circumstances, a federal court will be able to resolve an ambiguous order. For example, if the 10 order affirms a previous lower court order that relies on the same grounds and specifies which 11 grounds are applicable to which claims, there is no reason to assume that the appellate court 12 applied different grounds to different claims.”). 13 Here, the California Supreme Court’s denial did not “specify which claims were barred 14 for which reasons,” Valerio, 306 F.3d at 775, and only noted that Petitioner’s claims were denied 15 “as applicable” with citation to multiple cases with parentheticals describing various procedural 16 bars. (LD 42). In the answer, Respondent reviews the state court record to make educated 17 conjectures as to which procedural bars the California Supreme Court relied on to deny each 18 individual claim. However, the Ninth Circuit has rejected the suggestion “that such an 19 unresolvable ambiguity exists only where, after reviewing the record, the federal court cannot 20 guess at which grounds might be applicable to which claims,” finding that such a “formulation is 21 overstated.” Koerner, 328 F.3d at 1052. See id. at 1056 (Beezer, J., dissenting) (“If a state court 22 opinion is ambiguous on its face, [the Koerner majority] opinion makes it impossible to find a 23 procedural default . . . .”). The Ninth Circuit recognized that “where a state supreme court order 24 expressly relies on different grounds than the lower court decision that it affirms, yet fails to 25 explain which ground applies to which claim . . . federal courts generally will not be able to 26 resolve the resulting ambiguity.” Id. at 1052. Similarly, in the instant case, the California 27 Supreme Court expressly relied on different grounds than the lower court decisions and failed to 1 1126, 1131 (9th Cir. 1996) (district court properly declined to dismiss petition on procedural 2 default grounds because ambiguous state-court order did not specify which claims the court 3 rejected pursuant to Waltreus and which it rejected pursuant to Dixon). 4 Accordingly, the Court will proceed to the merits of Petitioner’s claims. “Because the 5 state court ruled on procedural grounds without addressing the merits of [the] claim[s], see 28 6 U.S.C. § 2254(d), our review is de novo, see Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 7 2005).” Bergna v. Benedetti, 721 F. App’x 729, 730 (9th Cir. 2018). 8 B. False Evidence 9 In his first ground for relief, Petitioner asserts that the prosecution presented false 10 evidence, in violation of the Fourteenth Amendment. Specifically, Petitioner alleges that the 11 prosecution presented: (1) false testimony at the preliminary hearing regarding the presence of a 12 gray beanie at Petitioner’s residence that linked him to the robbery; and (2) a false affidavit at 13 trial regarding Petitioner’s cell phone records. (ECF No. 1 at 4). 14 1. Legal Standard 15 “The knowing use of false evidence by the state, or the failure to correct false evidence, 16 may violate due process.” Towery v. Schriro, 641 F.3d 300, 308 (9th Cir. 2010) (citing Napue v. 17 Illinois, 360 U.S. 264, 269 (1959)). “To establish a Napue claim, a petitioner must show that ‘(1) 18 the testimony (or evidence) was actually false, (2) the prosecution knew or should have known 19 that the testimony was actually false, and (3) . . . the false testimony was material.’” Towery, 641 20 F.3d at 308 (quoting United States v. Zuno–Arce, 339 F.3d 886, 889 (9th Cir. 2003)). In 21 assessing materiality, the Court must determine whether “there is ‘any reasonable likelihood that 22 the false testimony could have affected the judgment of the jury.’” Soto v. Ryan, 760 F.3d 947, 23 958 (9th Cir. 2014) (quoting Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005)).6 A court need 24 not review all three Napue prongs if a petitioner’s argument fails at any one of the prongs. See 25 Panah v. Chappell, 935 F.3d 657, 664 (9th Cir. 2019); Towery, 641 F.3d at 308. 26 6 “There is nothing in Napue, its predecessors, or its progeny, to suggest that the Constitution protects defendants 27 only against the knowing use of perjured testimony. Due process protects defendants against the knowing use of any false evidence by the State, whether it be by document, testimony, or any other form of admissible evidence.” 1 2. Testimony Regarding Gray Beanie 2 a. Relevant Factual Background 3 At the preliminary hearing, Detective John Ramirez of the Livingston Police Department 4 testified that he spoke with a witness, Marie Snell, who was present during the Livingston 5 robbery. (2 CT 451–52). Ramirez testified that Snell told him that the culprit was a “black male, 6 tall, wearing blue overalls, with a green beanie on his head demanding money.” (2 CT 453). 7 Ramirez later testified that Snell told him the robber wore a gray beanie. (2 CT 467). Ramirez 8 also testified that he spoke with Detective Sweeten of the Ripon Police Department who told 9 Ramirez that a gray beanie was among the items discovered when the Ripon Police Department 10 executed a search warrant. Ramirez could not recall if the search was of Petitioner’s property. (2 11 CT 467–68). 12 At the conclusion of the preliminary hearing, Petitioner was held to answer on the charge 13 of robbery. (3 CT 590–96). Petitioner later moved to dismiss the case against him based on 14 Detective Ramirez’s inaccurate testimony that a gray beanie had been found during the search of 15 Petitioner’s property. (2 Aug. CT7 4–8). Although both defense counsel and the prosecution 16 agreed that “no beanie was recovered during execution of a search warrant of defendant’s 17 property,” the trial court denied the motion to dismiss because “[u]pon reviewing the evidence 18 and disregarding Ramirez’s testimony about the gray beanie, there was sufficient evidence to 19 support a holding order.” (2 Aug. CT 13). 20 At trial, Detective Sweeten testified that he was not involved in the search of Petitioner’s 21 residence and did not tell Detective Ramirez that a gray beanie had been discovered during the 22 search. (2 RT8 328–29; 3 RT 589–90). Sweeten testified that Ramirez would have been 23 inaccurate if Ramirez testified at the preliminary hearing that Sweeten told Ramirez that a gray 24 beanie was found during the search. (2 RT 330). 25 At trial, Officer Kenneth Husmen, who executed the search warrant, testified that a gray 26 beanie was not found during the search of Petitioner’s residence. (3 RT 541–42). Detective

27 7 “Aug. CT” refers to the Augmented Clerk’s Transcript on Appeal lodged by Respondent on October 30, 2020. (ECF No. 13–15). 1 Sharon Johnson, who participated in the search, reviewed her report and testified that it would be 2 inaccurate if someone indicated that a gray beanie was found during the search. (2 RT 262–63). 3 At trial, Detective Ramirez acknowledged that he testified at the preliminary hearing that 4 Detective Sweeten had told him that a gray beanie was found during the search. (4 RT 685–86). 5 At trial, Sergeant Timothy Bailey testified that he was in a patrol vehicle and pursued 6 Petitioner’s fleeing vehicle. Petitioner lost control of his vehicle and crashed. (1 RT 161–67). 7 Bailey testified that he discovered a “black knit stocking type beanie hat” at the scene. (1 RT 8 170). Bailey also logged into evidence “one large grey ski mask slash ski mask with eye holes.” 9 (2 RT 218). 10 b. Analysis 11 As made evident by the proceedings on Petitioner’s motion to dismiss and the testimony 12 presented at trial, Detective Ramirez’s testimony at the preliminary hearing regarding a gray 13 beanie was incorrect. However, errors at a preliminary hearing do not support federal habeas 14 relief because such errors do not affect the constitutionality of the conviction but rather affect the 15 validity of the probable cause determination, which is not a constitutional prerequisite to a 16 charging decision. Gerstein v. Pugh, 420 U.S. 103, 125 n.26 (1975). It is an “established rule that 17 illegal arrest or detention does not void a subsequent conviction.” Id. at 119 (citing Frisbie v. 18 Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886)). Additionally, “[i]t is well 19 settled that deprivations of constitutional rights that occur before trial are no bar to conviction 20 unless there has been an impact upon the trial itself. A conviction after trial . . . ‘represents a 21 break in the chain of events which has preceded it in the criminal process.’” Rose v. Mitchell, 22 443 U.S. 545, 576 (1979) (Stewart, J., concurring) (footnote omitted) (quoting Tollett v. 23 Henderson, 411 U.S. 258, 267 (1973)). 24 Here, Petitioner fails to establish that Detective Ramirez’s inaccurate testimony at the 25 preliminary hearing had an impact on the trial itself. Although Petitioner called Detective 26 Ramirez as a witness at trial and Ramirez acknowledged that he testified at the preliminary 27 hearing that Detective Sweeten had told him that a gray beanie was found during the search, the 1 preliminary hearing testimony. In fact, Detective Sweeten explicitly testified that Ramirez would 2 have been inaccurate if Ramirez testified at the preliminary hearing that Sweeten told Ramirez 3 that a gray beanie was found during the search. (2 RT 330). 4 Based on the foregoing, Petitioner has not established that there is “any reasonable 5 likelihood that the false testimony could have affected the judgment of the jury.” Hayes, 399 6 F.3d at 978. Accordingly, Petitioner is not entitled to habeas relief on the ground that the 7 prosecution knowingly presented false testimony at the preliminary hearing regarding a gray 8 beanie. 9 3. Affidavit Regarding Cell Phone Records 10 a. Relevant Factual Background9

11 On July 22, 2015, [Frazer]’s advisory counsel filed a written objection to the admission of cell phone records. Attached to it were several documents that 12 appeared to indicate the prosecutor had attempted to obtain [Frazer]’s authenticated cell phone records but was informed by AT&T the records had been 13 purged by Cricket:

14 • An invoice dated March 2, 2010, issued by Cricket to DOJ/FBI – Modesto/Stockton for $55 for subscriber information and call history for 15 [Frazer]’s phone number.

16 • A subpoena duces tecum dated May 14, 2015, issued by the prosecution to Cricket for [Frazer]’s call detail records. 17 • AT&T’s response to the May 14, 2015, subpoena duces tecum, which 18 indicated “usage records for this particular network are only stored for a rolling six months,” and because the request did not fall within the time 19 frame for which records are stored, “no usage records are available for us to produce.” 20

21 • A fax cover sheet from the prosecutor to AT&T, dated May 27, 2015, which states: 22 “This request is URGENT (because we are coming up for Jury Trial). 23 “Please provide the records that are requested in the attached Subpoena 24 Duces Tecum. The address to mail the records and declaration is the Merced County Superior Court. The address is located on the subpoena. 25 “Attached are the records we have received from Cricket but we need 26 CERTIFIED Copies with a filled out Declaration of Custodian of Records (which is attached). 27 9 The Court relies on the California Court of Appeal’s February 25, 2019 opinion for this summary of the relevant 1 “It is ok to discuss any matters related to this request with either Jim Cook 2 or Chris Cook.”

3 Attached to the fax cover sheet was a subpoena duces tecum dated May 27, 2015, and a blank form declaration of custodian of records. 4 • An email sent from another employee from the prosecutor’s office to 5 AT&T dated May 27, 2015, with the same language as the fax. Again, no documents purported to be attached to the email were attached to the 6 objection.

7 • AT&T’s response to the prosecutor’s May 27, 2015, request stated the same language as the first response, indicating no usage records were 8 available to produce because the request did not fall within six months of the period for which the records were requested. 9 • An unsigned document purportedly authored by James Finklea, dated June 10 6, 2015. The document states James Finklea is a compliance security analyst and serves as the custodian of records for AT&T. It states “[a]fter 11 a thorough search of the documents relied on in the course of my duties ..., I was unable to find any information responsive to your request regarding 12 [[Frazer]’s phone number.]”

13 • An affidavit signed by Dana Morgan-Williams dated June 17, 2015. She 14 identified herself as a legal compliance analyst and custodian of records. The affidavit states: “Attached to this Affidavit are true and correct copies 15 of subscriber information and/or call detail issued by AT&T for the following accounts: [¶] [[Frazer]’s phone number]. [¶] The attached copies 16 of billing records are maintained by AT&T in the ordinary course of business. I maintain and routinely rely on these documents in the course of 17 my duties as Custodian of Records and Legal Compliance Analyst.” In one instance, the document states James Finklea, not Dana Morgan- 18 Williams, was sworn by the notary. It is not clear what documents, if any, were attached to this affidavit. 19 • A Cricket subpoena compliance document dated July 21, 20 2015,10 addressed to DOJ/FBI – Modesto/Stockton, which states: “The call detail records information you requested is not available for the time 21 frame designated. Non-billed call switch data is purged at approximately six months.” There is no telephone number listed on this document, but 22 one of the reference numbers on this document matches one on the Cricket invoice dated March 2, 2010. 23 The objection was based on the ground raised in this appeal—that the records 24 could not be properly authenticated because they had been purged by Cricket years earlier and were not in possession of AT&T. The court held a hearing 25 pursuant to Evidence Code section 402 the same day, July 22, 2015, in response to [Frazer]’s objection. The prosecution’s wireless expert testified. 26 27 10 [Frazer]’s points and authorities in support of his written objection describes this document as one supplied in 1 The expert witness testified he had been in the wireless industry for over 28 years and had been trained by virtually every major carrier: Cricket, AT&T, Contel, 2 GTE Mobile Net, Sprint, Nextel, Boost, Metro PCS, Verizon, T-Mobile, Mountain Cellular, Golden State Cellular, “just to name a few.” He identified call 3 detail records related to [Frazer]’s phone number.11 The records covered the period from 9/2/2009 through 12/5/2009. The expert testified he received copies 4 of the records in 2010 from the Livingston Police Department. A copy of the application for the records by the U.S. Attorney’s Office, and the order signed by 5 a U.S. Magistrate, dated February 8, 2010, was received into evidence for the purpose of the hearing. In May 2015, AT&T purchased Cricket. From then 6 forward all Cricket custodian of records requests were directed to AT&T.

7 The expert witness testified that in preparation for trial in 2015, the prosecution had served a subpoena on AT & T. In response, they received a letter saying the 8 records were only maintained for six months and thus had been purged from Cricket’s system. The expert testified that, because the records had been purged, 9 the prosecution sent another subpoena to AT & T for certification with the copies of the records it possessed (from the 2010 search warrant) attached. He testified it 10 is a common practice for people who have received the records to send them back to the carrier for authentication and the appropriate documentation. 11 The prosecution received a response to the subpoena dated June 23, 2015, with an 12 affidavit and the records attached. The affidavit read: “My name is [J.N.]. I am over the age of 18 and qualified to make this affidavit. I am employed by AT & T 13 as a Legal Compliance Analyst and also serve as the Custodian of Records for AT & T/Cricket. I have been employed by AT & T since October 9, 2006. Attached 14 to this Affidavit are true and correct copies of subscriber information and call detail issued by AT & T/Cricket for the following accounts: [¶] [[Frazer]’s phone 15 number] [¶] The attached copies of billing records are maintained by AT & T/Cricket in the ordinary course of business. I maintain and routinely rely on 16 these documents in the course of my duties as Custodian of Records and Legal Compliance Analyst.” 17 The expert opened the disc provided by AT & T and identified the call detail 18 records related to [Frazer]’s phone number for the period of 9/2/2009 at 8:32:04 through 12/5/2009 at 22:37:19. The expert testified this was consistent with the 19 hard copy he had received back in 2010.

20 The expert testified he was not personally present at the facility when the records were generated, but he was very familiar with Cricket at the time the records were 21 generated. He testified that the time at which the particular entries were produced is reflected by specific dates and times within the call detail records. 22 The expert testified he knew the records attached to the affidavit were accurate 23 because he compared the attached records to the copies he had in his files from 2010, and they were the same. The other reason he knew they were accurate was 24 because he had reviewed “hundreds of thousands” of Cricket records, and the format, cell site list, acronyms and characters used, and accompanying documents 25 of how to read the records were all consistent with the Cricket records he had reviewed. Cricket had formatting distinctive from other cellular companies. The 26 cell site information was unique in that they used an alpha character and then a numeric value after that character to depict the market place and the related sector 27 11 [Frazer]’s name was reflected in the carrier subscriber information in the document. During trial, [Frazer] 1 of a specific cell site. The actual cell site number itself was encoded as well. Cricket also had specialized coding. The expert gave an example that a data 2 connection would be referenced on a call detail record by pound 777 and if someone accessed their voicemail, it would be 99. The expert testified there are 3 also other unique characters and special features unique to Cricket depicted in their records. 4 After hearing the testimony and some argument, the court stated that it seemed 5 J.N.’s affidavit complied with Evidence Code sections 1271, 1560, 1561, and 1562 and thus the burden had shifted to the defense to refute the information in 6 the affidavit. The court indicated the defense’s position seemed to be based on prior affidavits by others stating the records had been purged. The court noted the 7 newest affidavit was signed by someone in a different position in that she is a legal compliance analyst and a custodian of the records. The court held there was 8 ample evidence the records were reliable. [Frazer]’s advisory counsel continued to clarify the objection: 9 “[ADVISORY COUNSEL]: ... Part of the primary point is, there is no 10 evidence that the 2010 documents were certified. So essentially what has happened, fast forward 2015, AT & T ... is certifying documents that 11 weren’t in their possession and certified documents that there has never been in evidence that they’ve been certified, and that’s putting the cart 12 before the horse.... If there is fault with part one of analysis, the proper authentication at the very beginning you then can’t cure it by giving 13 uncertified documents to a non-creator of the documents to simply certify these are the records. It’s clear that the People gave them these uncertified 14 documents so how can we now certify them? [¶] ... [¶]

15 “THE COURT: I’m accepting your version as what happened.... But what changes is that because Cricket had this distinctive format that is a legal 16 analyst and if the affidavits are presumed correct, there is a basis for her to authenticate based on the Cricket formatting that was distinctive and that 17 would appear in the records that were sent to her. [T]hat’s the basis for the Court’s ruling.” 18 The court overruled the objection to the admission of the cell phone records. 19 The expert witness testified before the jury at length regarding how cell phones 20 work. He testified cellular phones are transceivers that pickup signals from their carriers’ antennas or “cell sites.” A computer sends out a signal looking for all 21 customers in its network. When someone makes a call, the computer determines what cell site is closest to the caller. When one is traveling away from the cell site 22 to which it was originally connected, the computer switches the phone to a closer cell site to avoid the call being dropped. When a call, text, or data is placed or 23 received, it creates a “fingerprint” on the carrier’s network, and then goes to the customer’s bill, which shows the date and number of the call. This is all done by a 24 “big computer.”

25 The expert explained the records to the jury and showed that on November 6, 2009, at approximately 9:59 a.m., [Frazer]’s phone was connected to the sector of 26 the cell site which covered the vicinity of the crime scene. The expert explained that according to the cell site data, [Frazer]’s phone appeared to be traveling south 27 based on the cell site switches that occurred. Frazer, 2019 WL 396856, at *12–14 (footnotes in original). 1 b. Analysis 2 Petitioner asserts that the affidavit authenticating Petitioner’s cell phone records was 3 false, specifically the statement that “[t]he attached copies of billing records are maintained by 4 AT&T/Cricket in the ordinary course of business” given that “AT&T was only in possession of 5 the records at the time J.N. certified them as authentic because the prosecutor had provided 6 them.” (ECF No. 16 at 8 (quoting 7 CT 1784; Frazer, 2019 WL 396856, at *16)). 7 The Court need not decide whether J.N.’s affidavit “was sufficiently misleading to satisfy 8 the first Napue prong, because to satisfy its second prong [Petitioner] would in any event still 9 have to show that the state knowingly created a false impression.” Towery, 641 F.3d at 309. In 10 the instant case, the prosecution did not knowingly create a false impression. Rather, the 11 prosecution was transparent with respect to the origins of the cell phone records and the manner 12 in which AT&T provided its affidavit of authentication. It is clear from the state court record that 13 the trial court was aware that Petitioner’s cell phone records were initially obtained in 2010 from 14 Cricket, the prosecution supplied a copy of said records to AT&T in order for AT&T to 15 authenticate and supply the appropriate certification, and AT&T itself did not generate 16 Petitioner’s cell phone records. (2 RT 232–36, 336–60). 17 Based on the foregoing, Petitioner is not entitled to habeas relief on the ground that the 18 prosecution knowingly presented a false affidavit regarding Petitioner’s cell phone records. 19 C. Equal Protection 20 In his second claim for relief, Petitioner asserts that the prosecution violated equal 21 protection by presenting a false affidavit to circumvent evidentiary rules regarding cell phone 22 records. Petitioner contends that in similarly situated cases, this was not done. (ECF No. 1 at 4). 23 “The Equal Protection Clause of the Fourteenth Amendment commands that no State 24 shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is 25 essentially a direction that all persons similarly situated should be treated alike.” City of 26 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 27 216 (1982)). Courts “have recognized successful equal protection claims brought by a ‘class of 1 similarly situated and that there is no rational basis for the difference in treatment.” Vill. of 2 Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citing Sioux City Bridge Co. v. Dakota 3 County, 260 U.S. 441 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 4 488 U.S. 336 (1989)). 5 As set forth in section IV(B)(3)(b), supra, Petitioner has not demonstrated that 6 prosecution knowingly presented a false affidavit regarding Petitioner’s cell phone records; in 7 fact, the record clearly establishes that the prosecution was transparent with respect to the origins 8 of the cell phone records and the manner in which AT&T provided its affidavit of authentication. 9 Consequently, Petitioner is not entitled to habeas relief on the basis that the prosecution violated 10 the Equal Protection Clause by presenting a false affidavit to circumvent evidentiary rules 11 regarding cell phone records. Petitioner’s second claim for relief should be denied. 12 D. Speedy Trial 13 In his third claim for relief, Petitioner asserts that his right to a speedy trial under the Due 14 Process Clause and the Sixth Amendment was violated when the prosecution waited until 15 February 11, 2011 to charge him for the robbery even though Petitioner was a suspect by January 16 6, 2010. (ECF No. 1 at 5, 31). 17 A speedy trial is a fundamental right guaranteed by the Sixth Amendment and imposed 18 upon the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North 19 Carolina, 386 U.S. 213, 223 (1967). “On its face, the protection of the [Sixth] Amendment is 20 activated only when a criminal prosecution has begun and extends only to those persons who 21 have been ‘accused’ in the course of that prosecution.” United States v. Marion, 404 U.S. 307, 22 313 (1971). Therefore, “it is either a formal indictment or information or else the actual restraints 23 imposed by arrest and holding to answer a criminal charge that engage the particular protections 24 of the speedy trial provision of the Sixth Amendment.” Id. Here, as Petitioner is challenging a 25 pre-charging delay, the Sixth Amendment is not applicable and he is not entitled to habeas relief 26 on this ground. 27 However, the Supreme Court has recognized that “[i]n the first stage [of a criminal 1 against fundamentally unfair prosecutorial conduct,” Betterman v. Montana, 136 S. Ct. 1609, 2 1613 (2016), and “has a limited role to play in protecting against oppressive delay,” United 3 States v. Lovasco, 431 U.S. 783, 789 (1977). The Due Process Clause maybe violated if the 4 “delay undertaken by the Government [is] solely ‘to gain tactical advantage over the accused’” 5 or “reckless,” but “to prosecute a defendant following investigative delay does not deprive him 6 of due process, even if his defense might have been somewhat prejudiced by the lapse of time.” 7 Lovasco, 431 U.S. at 795 & n.17, 796 (quoting Marion, 404 U.S. at 324). 8 In order to succeed on a due process claim for pre-charging delay, a petitioner “must 9 satisfy both prongs of a two-part test. First, he must prove ‘actual, non-speculative prejudice 10 from the delay.’” United States v. Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007) (quoting 11 United States v. Huntley, 976 F.2d 1287 1290 (9th Cir. 1992)). “Second, the length of the delay 12 is weighed against the reasons for the delay, and [the petitioner] must show that the delay 13 ‘offends those fundamental conceptions of justice which lie at the base of our civil and political 14 institutions.’” Corona-Verbera, 509 F.3d at 1112 (internal quotation marks omitted) (quoting 15 United States v. Sherlock, 962 F.2d 1349, 1353–54 (9th Cir. 1989)). 16 “[E]stablishing prejudice is a ‘heavy burden’ that is rarely met,” and “[g]eneralized 17 assertions of the loss of memory, witnesses, or evidence are insufficient to establish actual 18 prejudice.” Corona-Verbera, 509 F.3d at 1112 (first quoting Huntley, 976 F.2d at 1290; then 19 quoting United States v. Manning, 56 F.3d 1188, 1194 (9th Cir. 1995)). Thus, the petitioner 20 “must show both that lost testimony, witnesses, or evidence ‘meaningfully has impaired his 21 ability to defend himself,’ and ‘[t]he proof must demonstrate by definite and non-speculative 22 evidence how the loss of a witness or evidence is prejudicial to [his] case.’” Corona-Verbera, 23 509 F.3d at 1112 (alterations in original) (quoting Huntley, 976 F.2d at 1290). 24 Here, Petitioner does not meet his burden of establishing prejudice. Petitioner claims that 25 he was prejudiced because AT&T/Cricket no longer possessed copies of his cell phone records.12 26 (ECF No. 1 at 20). However, Petitioner does not demonstrate how AT&T’s lack of possession of 27 12 The Court notes, however, that the prosecution possessed a copy of the cell phone records from Cricket pursuant 1 Petitioner’s cell phone records was prejudicial to his defense. Accordingly, Petitioner is not 2 entitled to habeas relief on this ground. 3 E. Confrontation Clause 4 The Sixth Amendment’s Confrontation Clause, made applicable to the states by the 5 Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403 (1965), provides that “[i]n all 6 criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses 7 against him,” U.S. Const. amend. VI. The Supreme Court has “limited the Confrontation 8 Clause’s reach to testimonial statements.” Michigan v. Bryant, 562 U.S. 344, 354 (2011). 9 “Business and public records are generally admissible absent confrontation not because they 10 qualify under an exception to the hearsay rules, but because—having been created for the 11 administration of an entity’s affairs and not for the purpose of establishing or proving some fact 12 at trial—they are not testimonial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009). 13 The Ninth Circuit has held that “a routine certification by the custodian of a domestic 14 public record . . . and a routine attestation to authority and signature . . . are not testimonial in 15 nature.” United States v. Weiland, 420 F.3d 1062, 1077 (9th Cir. 2005). See Melendez-Diaz, 557 16 U.S. at 322–23 (noting that “a clerk’s certificate authenticating an official record—or a copy 17 thereof—for use as evidence,” “though prepared for use at trial, was traditionally admissible”); 18 United States v. Gal, 606 F. App’x 868, 875 (9th Cir. 2015) (holding that no Confrontation 19 Clause “violation occurred because an affidavit offered only to authenticate a record is not 20 testimonial”); United States v. Anekwu, 695 F.3d 967, 971 (9th Cir. 2012) (holding that the 21 district court did not commit plain error by admitting certificates of authentication for foreign 22 public and business records). 23 Here, the document challenged by Petitioner is an affidavit authenticating Petitioner’s 24 cell phone records. Based on the cases set forth above, Petitioner has not established a violation 25 of the Confrontation Clause, and he is not entitled to habeas relief on this ground. 26 /// 27 /// 1 V. 2 RECOMMENDATION 3 Based on the foregoing, the undersigned HEREBY RECOMMENDS that the petition for 4 | writ of habeas corpus be DENIED. 5 This Findings and Recommendation is submitted to the assigned United States District 6 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 7 | Rules of Practice for the United States District Court, Eastern District of California. Within 8 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 9 | written objections with the court and serve a copy on all parties. Such a document should be 10 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 11 | objections shall be served and filed within fourteen (14) days after service of the objections. The 12 | assigned District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 13 | § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time 14 | may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 15 | 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 7 IT IS SO ORDERED. 2 ee 1g | Dated: _ April 21, 2021 LF 9 UNITED STATES MAGISTRATE JUDGE

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