(HC) Jones v. Borders

• Court: District Court, E.D. California
• Decided: June 24, 2020
• Docket: 1:18-cv-01606
• Status: Unknown

Opinion

Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 1 of 27

9 UNITED STATES DISTRICT COURT

10 FOR THE EASTERN DISTRICT OF CALIFORNIA

12 RYANN LYNN JONES, Case No. 1:18-cv-01606-DAD-JDP 13 Petitioner, FINDINGS AND RECOMMENDATIONS TO DENY THE PETITION FOR A WRIT OF 14 v. HABEAS CORPUS AND TO DECLINE TO ISSUE A CERTIFICATE OF 15 DEAN BORDERS, APPEALABILITY 16 Respondent. OBJECTIONS DUE WITHIN THIRTY DAYS 17 ECF No. 1 18

19 Petitioner Ryann Lynn Jones, a state prisoner with counsel, seeks a writ of habeas corpus 20 under 28 U.S.C. § 2254. ECF No. 1. He offers four grounds for why habeas relief is warranted: 21 first, that the California Court of Appeal made factual and legal errors that deprived him of an 22 “adequate and effective” appeal in violation of the Fourteenth and Sixth Amendment, see id. at 23 34; second, that the trial court violated due process by erroneously admitting evidence that used 24 suggestive and unreliable identification procedures, see id. at 43; third, that the prosecution 25 committed misconduct by appealing to juror emotion, resulting in a fundamentally unfair trial, see 26 id. at 48; and fourth, that cumulative errors created a fundamentally unfair trial, id. at 51. The 27 California Court of Appeal rejected the last three claims in a reasoned opinion; all four claims 28 1 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 2 of 27

1 were then rejected without comment by the California Supreme Court.1 See ECF Nos. 14-57, 14-

2 59, 14-60. For the reasons outlined below, we recommend that the court deny the petition and

3 decline to issue a certificate of appealability.

4 I. Background

5 We set forth below the facts of the underlying offenses, as summarized by the California

6 Court of Appeal. A presumption of correctness applies to these facts. See 28 U.S.C.

7 § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).

8 Report of Child in Respiratory Arrest 9 On Sunday March 22, 2009, at 5:41 p.m., Detective Jared Hughes of the Visalia police department was dispatched to investigate a 10 report of a nonbreathing child who was three and a half years old. Hughes arrived at the location two minutes later and saw defendant 11 running outside, holding a child in his arms. Sergeant Randy Lentzner arrived at about the same time. Defendant followed 12 Hughes’s instruction to place the child down on the grass. Hughes found Natalynn’s skin cool to the touch and she was pale white. 13 Natalynn had no pulse, was soaking wet, and lifeless. Hughes made sure Natalynn’s throat was clear and tilted her head back. 14 Lentzner placed a breathing mask over Natalynn’s face and gave her the first rescue breath. Hughes saw Natalynn’s chest rising. 15 They achieved a faint pulse and did not perform any chest compressions. Paramedics arrived within two minutes and took 16 over Natalynn’s care. 17 Hughes briefly spoke to defendant and viewed the apartment. Hughes then followed Natalynn to the hospital. Most of her 18 clothing had been removed. Hughes saw bruising on her chest, forehead, behind her ears, right shoulder, back, wrists, knee, inner 19 thigh, and left nostril. After Natalynn was pronounced deceased, Hughes took photographs to document her injuries. The 20 photographs were received into evidence. 21 Ryan Morgan was an EMT (emergency medical technician) paramedic dispatched to the emergency call along with his partner, 22 EMT David Rodgers. Morgan determined Natalynn was not breathing and had no pulse; the cardiac monitor showed she was 23 asystole, meaning she was dead. He and Rodgers administered life support by providing one hundred percent oxygen and performing 24 compressions on Natalynn’s chest. Natalynn was soaking wet from head to toe. It seemed strange she was so wet and still in her 25 clothes. Morgan and Rodgers testified they had seen the officers performing chest compressions. Rodgers recalled Natalynn’s 26 1 27 We agree with petitioner that respondent has not challenged the first claim—that the California Court of Appeal made factual and legal errors that deprived petitioner of an adequate appeal—on 28 exhaustion grounds. See ECF No. 18 at 7. 2 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 3 of 27

1 airway was blocked, so he performed back blows to dislodge the blockage and performed hand CPR. 2 Morgan asked what happened. Defendant said Natalynn had been 3 in her room and she had eaten pizza. Defendant then mentioned something about the bathroom and the tub. Morgan could not 4 definitely remember who told him this information.

5 It took Natalynn four minutes to arrive to the hospital by ambulance. Natalynn arrived at the hospital intubated with a tube 6 going into her lungs. Dr. Kealani Sine, a pediatric hospitalist, attended Natalynn at the hospital with the emergency room 7 physician; she had no heart rate and was dead. Dr. Sine was suspicious that Natalynn’s bruising was not caused by accidental 8 trauma. Although she was already dead, Dr. Sine ordered a full body scan of Natalynn. Dr. Sine did not have the results of the 9 scan. In Natalynn’s condition, there was no chance emergency room doctors and nurses could revive her, but due to her young age 10 they tried to do so for 15 minutes.

11 Police Investigation

12 Hughes spoke briefly to defendant, who appeared to have been crying and was pacing back and forth. Hughes briefly went to 13 Natalynn’s apartment while Natalynn was being attended to. Another officer walked defendant over to the apartment. Hughes 14 asked defendant what happened. Defendant’s initial response was he did not know. Defendant explained he was dating Natalynn’s 15 mother, Nicole Lee. Defendant told Hughes he did not live in the apartment and did not know the address. Hughes walked briefly 16 into Natalynn’s apartment. Natalynn’s room was messy. A lower dresser drawer was pulled out and toys were scattered about. 17 Defendant did not know if Natalynn had been choking on 18 something but she had been eating pizza 20 minutes earlier and was fine. Hughes followed the ambulance to the hospital and stayed 19 with Natalynn. At the hospital, Hughes talked to Troy Miller, Natalynn’s father. Miller was inconsolable. Miller was crying and 20 made several statements that Natalynn was killed. At the hospital, Hughes contacted Natalynn’s mother, Nicole Lee, 21 after Natalynn died. Lee was upset. Defendant arrived at the hospital thereafter. Lee had defendant view Natalynn with her and 22 account for some of Natalynn’s bruises. Upon seeing Natalynn’s body, Lee broke down and immediately pointed to a bruise on 23 Natalynn’s right temple. Lee asked defendant, “‘What’s this?’” Lee asked defendant about a line across Natalynn’s forehead. In 24 response, defendant turned to a nurse and asked if they had received scan reports of Natalynn’s body. 25 Lentzner also went into Natalynn’s apartment. Another officer was 26 with defendant in the apartment. Lentzner briefly went into Natalynn’s room and the bathroom. There was residual water in the 27 bathtub, which appeared to have been recently drained. Lentzner took photographs of the apartment. What looked like blood, vomit, 28 and hair was on the kitchen counter next to the sink where 3 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 4 of 27

1 defendant tried to revive Natalynn. No human tissue, blood, or hair was collected from the apartment. No holes were found in the walls 2 of the apartment. Photographs of the scene were admitted into evidence and shown to the jury. 3 Chris Moore lived in the apartment above Lee. Moore woke up late 4 on Sunday, March 22 with a hangover. Moore was functioning fine and called for a pizza. Moore heard a loud rumbling noise for 5 about 15 minutes from the apartment below and believed it came from a video game. He had not heard the noise before. At some 6 point the noise stopped.

7 Later, Moore heard a loud thumping noise on the wall at least six times. It was not like a noise caused by hammering. The noise was 8 sequential and happened very quickly. Moore described it as, “boom, boom, boom, boom, boom, boom.” Moore then heard a 9 voice saying, “‘Come on, baby, wake up, baby.’” The noise was coming from directly beneath Moore. Moore did not know the 10 people and did not go downstairs. Moore described himself as startled and shocked. 11 Linda Cavazos was also one of Lee’s neighbors. Cavazos did not 12 remember hearing anything loud or unusual on March 22, 2009, but said she kept her television on loud. She did remember hearing a 13 bunch of sirens that day.

14 Defendant’s Statements to Investigators

15 Detective Osvaldo Dominguez questioned defendant twice and recorded these sessions. The first time was the day Natalynn died 16 inside her apartment. The audio recording of the questioning was played for the jury. Defendant told Dominguez he and Natalynn 17 were in the apartment alone. Natalynn had been running around, doing crafts, and running back into her room. Defendant said he 18 heard a noise. When defendant went into Natalynn’s room to check on her, she was lying limp on the ground with her eyes rolled back. 19 Defendant took Natalynn to the sink, splashed water on her face, and pushed on her stomach. Natalynn began to vomit. Defendant 20 performed CPR. Defendant panicked because Natalynn turned blue, so he called 911. When asked if anything like this happened 21 before, defendant said one time when Natalynn was spinning around she got dizzy and fell, hitting her head on a safe in the 22 closet.

23 On March 25, 2009, Dominguez again questioned and recorded defendant about the circumstances leading to Natalynn’s death. 24 The recording of the questioning session was played for the jury. Defendant told Dominguez that on the morning Natalynn died, 25 defendant went with her and Lee to a swap meet and had lunch with his mother. They returned to their apartment about 1:15 p.m. 26 Natalynn and her mother played and made crafts until Lee left for work between 4:35 and 4:40 p.m. Defendant was alone with 27 Natalynn.

28 Defendant explained Natalynn became upset because her mother 4 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 5 of 27

1 was leaving. Natalynn was crying, running toward the door to catch her mother, and “threw a fit.” Defendant told Natalynn to stop 2 her tantrum or he would give her a spanking. Defendant swatted Natalynn on the behind twice; she calmed down and started 3 watching television.

4 According to defendant, Natalynn began to run around the kitchen island, switching directions. Natalynn cut one turn too close and 5 banged her head on the wall. Natalynn looked at defendant and asked him to come over to her. Defendant kissed Natalynn’s head. 6 She whimpered a little and then kept running around. Defendant went back to his recliner and could hear Natalynn playing with her 7 toys.

8 Defendant had been playing the video game “Resident Evil 5.” Defendant did not worry about Natalynn being alone in her room 9 because she was not very adventuresome. As he was sitting in the living room, he heard a thud like Natalynn had jumped off her bed. 10 It was a real solid sound. Defendant waited for Natalynn to cry. He waited a few seconds, heard nothing, and got up from his chair. 11 Defendant said he found Natalynn up against the dresser. He thought she had fallen asleep. Defendant bent over and spoke to 12 Natalynn, but she did not respond. Defendant thought Natalynn was unconscious. He brought her to the kitchen, splashed water on 13 her, and noticed her mouth was open and her face was clenched.

14 Defendant pushed on Natalynn’s stomach, which appeared bloated. Natalynn was not breathing. Defendant administered CPR and 15 called 911. Defendant also said that days earlier he told Natalynn to get her socks from her dresser. When defendant entered her 16 room, Natalynn was standing on her bed to reach into her dresser. She was startled and fell from the bed, again hitting her head. 17 Defendant told investigators it was okay to spank a child and he had 18 done so to Natalynn about five times. Defendant knew no one who would want to abuse Natalynn and described Lee as being easy on 19 her. Defendant thought the bruises on Natalynn were from the time she fell off her bed and the lesion on her nostril was from putting a 20 freshwater clam shell up her nose. Defendant described Natalynn as accident prone. Dominguez showed defendant Natalynn’s 21 autopsy photographs depicting extensive bruising and told him Natalynn had massive bleeding between the scalp and her skull, 22 bleeding in her brain, and bleeding in her stomach. When Dominguez asked defendant how this could have happened, 23 defendant had no explanation.

24 Defendant insisted he would never do anything to hurt Natalynn and did everything he could to save her life. When it was pointed 25 out defendant was with Natalynn and she had “hellacious bruises” that needed to be explained, defendant admitted there were “more 26 bruises than her just bumping her head.” Defendant conceded the bruises were “not from her doing” and had “to be from somewhere 27 else.”

28 Defendant was arrested on March 25, 2009, after he was questioned 5 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 6 of 27

1 by police.

2 Autopsy

3 Dr. Burr Hartman was the forensic pathologist who conducted Natalynn’s autopsy on March 24, 2009. Natalynn was 37 inches 4 tall and weighed 30 pounds. During his external examination of Natalynn, Dr. Hartman observed many bruises and contusions on 5 Natalynn’s body. There were bruises and injuries to Natalynn’s abdomen, chest, back, and head. After examining and 6 photographing Natalynn’s body, Dr. Hartman examined her internally. 7 Dr. Hartman found bruising along the midline of a portion of 8 Natalynn’s mesentery of the small colon, the transverse colon, and the sigmoid colon near the spine. Dr. Hartman described this as 9 abdominal trauma caused by a blow to the abdomen. Abdominal injuries to children do not occur from CPR because the procedure is 10 performed on the chest and mouth and the compressions used in CPR are too gentle to injure anything. Dr. Hartman described 11 Natalynn’s abdominal injuries as acute because there was fresh bleeding from them. It would be “very unusual” for a child 12 Natalynn’s age to have self-inflicted her abdominal injuries.

13 When he examined Natalynn’s skull, Dr. Hartman did not find skull fractures, but he found bleeding under the skull beneath the dura 14 mater covering the surface of the brain. Dr. Hartman explained it would be exceptional for Natalynn to have caused these injuries 15 unless she had some sort of mental illness. Dr. Hartman described the photographs he had taken of Natalynn’s body depicting the 16 bruises and injuries. The photographs were admitted into evidence.

17 Dr. Hartman explained a person has to be alive to form a bruise. In Dr. Hartman’s opinion, Natalynn’s injuries were all acute, in close 18 proximity to each other, and explained her death. Dr. Hartman concluded Natalynn died from multiple blunt force trauma to the 19 head, abdomen, and chest. Although Dr. Hartman found no injury to Natalynn’s heart, he explained a sharp blow to the chest can 20 cause commotio cordis—the stopping of the heart without showing an anatomic injury. Natalynn’s injuries occurred in close 21 succession to one another.

22 Medical Expert Opinions

23 Dr. Frederic Bruhn, a board-certified pediatrician, testified as an expert on physical child abuse. After reviewing all of Natalynn’s 24 medical records, Dr. Bruhn concluded Natalynn died from multiple blunt force trauma resulting from a nonaccidental homicide. Dr. 25 Bruhn further explained it was not likely Natalynn would have suffered subdural hematomas from falling off her dresser next to 26 her bed or from falling off her bed. 27 Dr. Joseph Cohen is a forensic pathologist who contracts to perform autopsies in Marin and Napa Counties. Dr. Cohen had conducted 28 over 6,000 autopsies, hundreds of which were performed on 6 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 7 of 27

1 children. Dr. Cohen reviewed Natalynn’s medical reports, reports of the paramedics, fire department reports, and preliminary hearing 2 testimony from defendant’s case. Dr. Cohen concluded Natalynn’s head injuries would have caused death in minutes, not hours. Dr. 3 Cohen also concluded Natalynn was already dead when paramedics and firefighters began to attend her. 4 Given the “package” of multiple bruises over Natalynn’s body, Dr. 5 Cohen did not believe her injuries were self-inflicted or accidental. There could be some bruising from administration of CPR, but not 6 to the extent of Natalynn’s bruising and not when CPR is conducted on someone already dead. Most of Natalynn’s internal injuries 7 could not have been caused by CPR, even if it was improperly performed. One exception was bruising to her hilum behind the 8 liver. A small intestine injury would not occur during CPR on a dead person. People frequently vomit during CPR or in the process 9 of dying, which would explain the presence of vomit in the lungs.

10 Although Dr. Cohen did not find Dr. Hartman’s autopsy report was perfect, the fact he did not take and study tissue samples from 11 Natalynn was immaterial to understanding how Natalynn died. While the injuries to Natalynn’s abdomen were acute, she could 12 have survived those injuries. According to Dr. Cohen, Natalynn died from multiple blunt impact injuries to her head. Dr. Cohen 13 believed Natalynn’s neurological deterioration was immediate after she was injured and she did not die from choking. 14 The defense called Max Jehle, an agricultural biologist and pest 15 management specialist. Jehle explained there is a species of freshwater mussel in California creeks and water sheds, including 16 the Kaweah Reservoir. The species is found in Mill Creek in Tulare County. The mussels can pick up bacteria in the water from 17 animal feces. Among the pathogens found in water sources is E. coli. Even in dry conditions, biofilms of bacteria can remain on the 18 shells. On cross-examination, Jehle said he had never personally tested clam shells. 19 Defendant called Dr. Harry Bonnell, a board-certified pathologist, 20 who also reviewed Natalynn’s relevant medical records. Dr. Bonnell also reviewed the testimony of Dr. Bruhn. Dr. Bonnell 21 explained that not all subdural hematomas are lethal.

22 Dr. Bonnell disagreed with the other doctors that Natalynn died from blunt force trauma. Dr. Bonnell believed Natalynn died from 23 choking and asphyxiation. Further, in Dr. Bonnell’s opinion, Natalynn’s subdural hematomas were too small to cause death. Dr. 24 Bonnell stated the bruising on Natalynn’s chest could have been caused by chest compressions given to her during CPR. Dr. 25 Bonnell cited recent forensic studies of injuries misinterpreted as being caused by third parties but were the result of CPR. Dr. 26 Bonnell believed many of Natalynn’s injuries could be explained by the CPR she received, including injuries and bruising to her upper 27 chest, abdominal bleeding, and injuries to the chin, back, and mouth. 28 7 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 8 of 27

1 Defendant called David Satterlee, a flight paramedic and expert on resuscitation. Satterlee explained that back blows like the ones the 2 paramedics gave Natalynn were inappropriate in a child older than one year. Additionally, reaching into a patient’s mouth to dislodge 3 food or other obstructions is also problematic because it can push the obstruction deeper. Satterlee thought Natalynn’s bruising on 4 her back, chin, and chest were consistent with CPR. Satterlee could not rule out the infliction of trauma on Natalynn as the cause of her 5 bruises and injuries.

6 Prior Injuries to Natalynn

7 Troy Miller, Natalynn’s father, testified he was in a relationship with Nicole Lee for six years and Natalynn was born to them in 8 June 2005. Miller and Lee separated in 2007 when Natalynn was about two years old. Lee had custody of Natalynn and initially 9 lived with their mutual friend, Jessica Rosales. Miller had Natalynn every other weekend and every other Tuesday and Wednesday. 10 Miller eventually rented a house in Tulare about a mile from the McDonald’s restaurant discussed later. 11 Miller described Natalynn as a playful, happy, polite, and well- 12 mannered child. Natalynn was healthy. Natalynn took no medications, she was not accident prone, she was active, and she 13 played well with other children. Natalynn was also respectful of adults. Miller described Natalynn as being coordinated. She liked 14 to climb up the ladder on her bunkbed. Natalynn was not a risk taker and was not hyperactive. Miller described her as calm and 15 truthful.

16 Lee started dating Andrew Rose. Natalynn liked Rose and would always talk about him. Miller told Lee that if she was going to 17 date, it would be better if she did not bring Natalynn over to the date’s home unless it was a serious, long-term relationship. Miller 18 offered to take Natalynn, and she came over to Miller’s home sometimes when Lee was dating Rose. Natalynn was always happy 19 to see her mother when Lee picked her up from Miller’s home.

20 Sometime during August 2008, Miller learned Lee was dating defendant, whom Natalynn called “Ry-ry.” Miller was concerned 21 Lee was taking Natalynn to sleep over at defendant’s house. When Lee’s relationship with defendant started, Miller did not notice 22 anything different or unusual in Natalynn’s demeanor.

23 Between September and October, however, Miller started noticing injuries on Natalynn, including bruising on her chest and abrasions 24 on her side. On one occasion, Natalynn attributed an abrasion and scratch to falling off her bike. On another, she said defendant had 25 punched her, and she demonstrated a punching motion. There was another time when Natalynn demonstrated to Miller how defendant 26 had grabbed her and thrown her into what Natalynn described as a “safety sink.” Miller later learned the safety sink was actually a 27 metal safe.

28 Miller noticed the bruises when he bathed Natalynn. In October 8 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 9 of 27

1 2008, Miller also noticed Natalynn had a bowel movement in her pants, which he found strange because she was potty trained. While 2 cleaning Natalynn, he noticed marks inconsistent with a rash. Miller asked Natalynn if someone had spanked her and Natalynn 3 got quiet, would not answer Miller, and became teary eyed. Shown a photograph depicting two bruises on Natalynn’s chest, Miller 4 explained they were knuckle sized. When asked how she got these bruises, a teary-eyed Natalynn said defendant was fighting with her. 5 Miller told Lee during a telephone conversation that Natalynn 6 informed him defendant was fighting with her and asked Lee what was going on. Lee told Miller they were just play fighting. Miller 7 told Lee he was not cool with an adult who could not control his strength when playing with his three-year-old daughter. Lee told 8 Miller to “F off” and to mind his own business.

9 Miller was shown a diagram depicting Natalynn in December 2008, with a strawberry scrape mark and abrasion on her right side. 10 Natalynn told Miller she had fallen off a bike when she was with defendant. Natalynn said defendant was watching her. Miller 11 confronted Lee and told her not to leave Natalynn alone with defendant. One time Natalynn was in pain when Miller picked her 12 up. The jury was shown a diagram depicting Natalynn’s injuries. This was the incident when Natalynn was thrown into a safe. Lee 13 had told Miller Natalynn was spinning around and fell into a box. Natalynn was upset and trembling as she related what happened. 14 She told Miller she was afraid of defendant.

15 Natalynn asked Miller to tell Lee she did not want to be around defendant anymore. When Miller asked Natalynn why, she replied 16 defendant hurts her. Miller told Natalynn they would both talk to Lee. Natalynn told Miller she could not talk to her mother and 17 Miller had to do it for her. Natalynn told Miller she wanted to live with him, not with her mother. Miller talked to Lee with Natalynn 18 present. Later, Miller called Lee on the telephone. Miller gave Lee a second warning that if this ever happened again, Miller would 19 “find that mother fucker and . . . kill him.” Lee promised never to let Natalynn around defendant again. Natalynn was elated when 20 Miller told her about her mother’s promise not to let defendant watch her again. 21 Miller was shown another diagram depicting a bruise on Natalynn’s 22 head after she supposedly ran into sliding door. For a period of time, Natalynn was very happy during February 2009 and did not 23 speak about defendant anymore. Miller never contacted the police or CPS. In March 2009, Miller understood Lee and Natalynn were 24 moving into an apartment. Natalynn never told Miller that Lee, who had apparently broken up with defendant, had gotten back 25 together with him. Miller was unaware Lee, Natalynn, and defendant were living together in the apartment in March of 2009. 26 Earlier in March 2009, Miller saw a large bruise on Natalynn, 27 depicted in a diagram at trial. The bruising subsided, but was still visible on Natalynn on March 18, 2009. Natalynn told Miller she 28 was with defendant when the injury happened. Natalynn was 9 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 10 of 27

1 constantly crying and upset during this time when he questioned her. Natalynn stayed with Miller on March 18 and he was still 2 unaware defendant was living with Lee. Natalynn was very happy during her stay with Miller, but her demeanor totally changed when 3 her mother was about to pick her up. She began crying. Lee decided to let Natalynn stay with Miller that evening. 4 The same evening, Miller bathed Natalynn and saw no new bruises 5 on her. Miller got Natalynn ready for school the next morning and Lee picked her up. Miller had to carry Natalynn out because she 6 did not want to go. Natalynn just sat in the car crying. She did not look up at Miller. Miller told Natalynn not to be upset because it 7 was Thursday, and on Friday Natalynn would be staying with him. Miller expected to see Natalynn that weekend. Instead, he received 8 a call from Lee’s mother telling him Natalynn had choked on a piece of pizza, died, and was at the hospital. Miller found Natalynn 9 with her nose smashed sideways on her face and so many bruises on her head and chest he could not count them all. 10 Ernesto Rosales (Ernesto), Jessica Rosales’s brother, said Natalynn 11 was a lovable little girl, and his sister would often take care of her. Ernesto had moved to Texas but was visiting his sister in 2008 and 12 went out with Lee and defendant to a bar. Defendant talked to Ernesto about Lee being his girlfriend and said Natalynn was a cute 13 little girl, but “he had no use for her around him.” Ernesto thought defendant was drunk when he made these comments. 14 Jessica Rosales knew Troy Miller before she knew Lee, but Rosales 15 considered Lee to be her best friend. After Lee was having problems with Miller, she and Natalynn moved in with Rosales. 16 Miller briefly moved in with Rosales and Lee, but the situation did not work out. Rosales sided with Lee and was in an argument with 17 Miller. Rosales and Lee were both working. Rosales helped Lee with babysitting and would pick up Natalynn from preschool. 18 Rosales would watch Natalynn every day while Lee was at work and on weekends if Lee was working. Rosales acted like 19 Natalynn’s mother and actually spent more time with her than Lee.

20 Rosales described Natalynn as a well-mannered, respectful, and truthful child. Natalynn was healthy until her death and did not 21 require any special medication. Natalynn was not accident prone and did not take risks. Prior to Lee dating defendant, Rosales did 22 not see injuries or bruising on Natalynn except on one occasion when she fell off her tricycle and hurt her knee. Natalynn had a 23 positive relationship with Andrew Rose while Lee dated him. Rosales never saw Natalynn injured during the time she was around 24 Rose.

25 Lee began to date defendant in August 2008. Natalynn interacted well with defendant when he first started dating Lee. At some 26 point, Lee would spend the night with defendant, who lived with his parents. Natalynn would either stay with Rosales or with Lee. 27 During October and November 2008, Natalynn seemed scared about going to defendant’s house. Natalynn asked to stay with 28 Rosales all the time. During this time period, Rosales also began to 10 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 11 of 27

1 notice injuries on Natalynn that would always occur when Natalynn was with defendant. Defendant would watch Natalynn when 2 Rosales was unavailable.

3 Rosales saw a bruise on Natalynn’s left cheek in December 2008. Rosales asked Natalynn how she was injured but Natalynn said she 4 could not remember and looked down at the ground. Rosales also saw a bruise on Natalynn’s right cheek, along with a cut on the 5 cheek and a cut, swollen lip on December 29, 2008. The lip was cut on the inside. When Rosales asked Natalynn what happened, 6 Natalynn replied she could not say “because mommie would get mad.” Rosales persisted and Natalynn told Rosales and two of 7 Rosales’s friends that defendant did it. Rosales took a photograph of this injury. This photograph was admitted into evidence and 8 shown to the jury. Rosales did not take the photograph because of the injury, but because she liked taking pictures of Natalynn. 9 Diagrams were admitted depicting burns on Natalynn’s ears and a 10 bruise on her right shoulder that Rosales saw on February 26, 2009. Rosales took Natalynn to a clinic to be examined by her friend 11 Beatrice Manriquez. Natalynn did not tell Rosales how she received these injuries. Natalynn was always happy staying with 12 Rosales for the night, but did not want to go to defendant’s house. Beatrice Manriquez confirmed she examined Natalynn at the clinic 13 and corroborated Rosales’s account of Natalynn’s injuries.

14 The first week in March 2009, Lee and Natalynn moved out of Rosales’s home and into their own apartment. Rosales later learned 15 defendant was living with Lee and Natalynn. On March 7, 2009, Lee was to bring Natalynn to Rosales’s home. Before bringing 16 Natalynn over, Lee called to explain Natalynn had had an accident. When defendant brought Natalynn, Rosales saw a large knot on her 17 head. Rosales photographed the injury, which was admitted into evidence and shown to the jury. Rosales described the knot as the 18 size of a small apple. Natalynn acted lethargic and tired. Rosales asked defendant what happened. Defendant said when Natalynn 19 was reaching into a drawer to get socks, he entered her room and said boo; Natalynn fell and hit her head. On Lee’s instructions, 20 Rosales woke Natalynn from her sleep every 20 or 30 minutes. Lee told Rosales not to take Natalynn to the emergency room. 21 Rosales saw Natalynn two or three times after that. The last time 22 Rosales saw Natalynn was on March 20, 2009. The prior injury was still on Natalynn’s forehead, but she had no new injuries. 23 Natalynn acted like a normal three-year-old. Rosales took Natalynn to a friend’s house to watch a movie. Defendant made an angry call 24 to Rosales asking where “the fuck” she was because he was waiting outside Rosales’s house to pick up Natalynn. Rosales got angry at 25 defendant and hung up on him. She and her friend brought Natalynn back to her home. 26 Defendant was next to his vehicle, yelling. Lee was looking down. 27 Defendant yelled that Natalynn was not her daughter and questioned why Rosales took so long. Rosales tried to have 28 Natalynn stay with her that evening. Rosales handed Natalynn over 11 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 12 of 27

1 to Lee and asked her why she let defendant talk that way. Lee took Natalynn. March 20, 2009, was the last time Rosales saw Natalynn. 2 Natalynn’s preschool teacher did not see Natalynn injured at 3 school. The teacher did see a substantial knot on Natalynn’s forehead prior to her death. Joclyn Paez had a small daycare and 4 started watching Natalynn when she was between a year-and-a-half and two years old. Natalynn was sometimes picked up by Miller, 5 Rosales, or Lee. Natalynn never got hurt while at the daycare and was not accident prone. Natalynn was healthy, played well with the 6 other children, and was not a climber. Natalynn’s demeanor was always excited when her father picked her up but not excited when 7 Rosales picked her up. One time Natalynn “threw a fit” when Rosales picked her up. Andrew Rose would also pick up Natalynn. 8 Natalynn liked Rose a lot.

9 Lee enrolled Natalynn into preschool. In February 2009, Lee had Paez babysit Natalynn again two days a week. When Paez cared 10 for Natalynn the second time, her behavior was changed and she was quiet and timid. Natalynn would have no reaction when Lee 11 picked her up. Paez never watched Natalynn after March 5, 2009.

12 Incidents at McDonald’s

13 Three witnesses saw defendant berate Natalynn at McDonald’s on two occasions when her mother was also there. Two witnesses 14 reported the incidents to investigators within weeks of Natalynn’s death. One witness had seen pictures of Natalynn and defendant in 15 news stories before telling investigators. One of the workers at McDonald’s recognized Natalynn and defendant from video images 16 taken by the restaurant.

17 Frank Arnold investigated Natalynn’s death for the district attorney’s office. Arnold questioned Tracy Dysart Griffin, Debra 18 Bentz, and Sabina Cardenas about incidents that had occurred at the McDonald’s at Cross and J Streets in Tulare involving defendant, 19 Lee, and Natalynn. The three witnesses were shown Department of Motor Vehicle photographs of Lee and defendant and a family 20 photograph of Natalynn. Arnold explained he used these three photographs because they were the highest quality pictures he 21 obtained.

22 Because he was not investigating a crime at the McDonald’s itself, Arnold did not use a six-pack photographic lineup with the subject 23 as one of the six people in the lineup. None of the witnesses gave Arnold a prior physical description of defendant. Arnold prepared a 24 standard photographic array that included other pictures as well as defendant’s picture, but did not use it. 25 Sabina Cardenas was questioned by Arnold a year after Natalynn’s 26 death. She worked at the McDonald’s on J Street in February 2009 between 6:00 a.m. and 1:00 p.m. on weekdays. One midmorning, 27 Cardenas was at her register when she heard a little girl crying. The little girl was sitting at a booth with a man shouting at her. There 28 was also a young lady at the table. The man yelled at the little girl 12 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 13 of 27

1 three or four times to “‘Shut the fuck up.’” The young woman was just sitting there. Cardenas was close enough to view all three 2 people, including the man.

3 Cardenas began cleaning an area near the booth the trio were sitting at. Defendant pounded the table with his fists. Cardenas identified 4 Natalynn from a photograph. She identified defendant in court as the man yelling at Natalynn. Cardenas remembered what they 5 looked like but did not see Lee as clearly because she had her head down. Cardenas would not look out into the gallery to identify Lee, 6 who was apparently observing the trial. Cardenas reported the incident to her manager. 7 On April 2, 2009, Debra Bentz talked to Arnold about an incident 8 she witnessed at the McDonald’s on J Street in February 2009. Bentz was dining in a booth with three of her grandchildren one 9 weeknight evening. The grandchildren were between 10 and 13 years old. A little girl was sitting in a high chair with a man and a 10 woman. Bentz and the man were facing one another. Bentz had not seen these people before. Bentz made eye contact with the little 11 girl and they smiled at each other.

12 While Bentz was sitting at the booth, the man suddenly raised his left arm and came down to strike the girl’s temple with his fist 13 clenched. He stopped his swing right before he would have hit the girl. The man had a grimaced look for several seconds. Bentz was 14 frightened and thought the child’s life was in danger and almost jumped up out of her seat. The man told the girl, “‘You might get 15 away with that with them, but you won’t get away with that with me.’” The girl looked at Bentz, put her head down, and looked 16 frightened. As the man spoke, he left his fist next to the girl’s head. The man appeared as though he was trying to get a grip over 17 himself. Bentz described the man’s demeanor as angry. The woman in the booth did not say or do anything. 18 Bentz got a good look at the man and the little girl. Later, Bentz 19 saw a picture on the news of the man and of a little girl who had been killed; she also saw pictures in a newspaper article. They 20 were the same people Bentz had seen in the restaurant. Bentz identified Natalynn as the girl she saw in McDonald’s by her 21 photograph and identified defendant in court as the man who threatened Natalynn. Bentz did not see Lee’s face directly because 22 Lee was sitting with her back to Bentz. Bentz saw a side view of Lee when Lee left the restaurant. Bentz did recognize Lee from her 23 picture. Bentz was never shown photographic lineups with a display of six women. Arnold did not name Lee, defendant, or 24 Natalynn when he showed Bentz individual photographs of them.

25 Bentz particularly recalled defendant’s eyes and the grimace on his face as he threatened Natalynn. Bentz was contacted twice by 26 Arnold, most recently in 2013. Arnold did show Bentz photographs of different males and Bentz identified defendant. Although she 27 was not positive, Bentz thought she was with her grandchildren on a Thursday or Friday evening because her husband works those 28 evenings and he was not with them. Bentz did not need a 13 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 14 of 27

1 photograph of defendant in order to identify him.

2 Tracy Griffin (formerly Dysart) talked to Arnold on April 1, 2009. She started working at the J Street McDonald’s in July 2008 and 3 stopped working there at the end of April 2009. In February 2009, Griffin worked from 7:00 a.m. to 3:00 p.m. between four and five 4 days a week but she did not work weekends. In February or March of 2009, after 10:30 a.m., Griffin was working the front counter 5 when she saw a little girl playing with her food and wanting her toy. A man at the table did not want the girl to play with the food 6 and the toy, he wanted her to sit down. When the girl did not comply, the man reached across the table, grabbed her by the left 7 arm, and pulled her down to sit. The girl fell to her knees in the process. Griffin had seen the man in the restaurant several times, 8 but only remembered the one incident.

9 Griffin got a fairly good look at the people at the table and could see the girl’s face; the little girl looked scared. Griffin reported the 10 incident to her manager. Arnold showed Griffin photographs. Griffin identified Natalynn from the girl in the photograph Arnold 11 showed her and identified defendant in court as the man she saw with Natalynn at McDonald’s. She got a good look at defendant in 12 the restaurant. Griffin was able to identify Lee from surveillance video of her at McDonald’s, not from seeing her on television. 13 After seeing the video, Griffin identified Lee from the photograph Arnold showed her. Griffin remembered what the trio ordered and 14 how defendant yelled at Natalynn about the “Happy Meal” toy.

15 Griffin was pregnant at one point and nearly suffered a miscarriage due to stress from this case. A man other than Arnold showed 16 Griffin pictures and she could not identify Natalynn from the pictures he showed Griffin. Griffin wanted the man to leave her 17 alone. The man kept coming to Griffin’s home. The man showed Griffin six-pack lineups that included six males including defendant 18 and six females including Lee. Griffin could not identify anyone in those lineups. Griffin remembered seeing the little girl and the man 19 who was mean to her at McDonald’s. The lineups had been prepared by Robert Gonzales, a defense investigator, and shown to 20 Griffin. The photographs Gonzales prepared were not in color but in black and white. Gonzales denied the prosecutor’s observation 21 that the pictures were “pretty blurry.”

22 Investigator Arnold obtained 600 hours of video recordings from the Tulare McDonald’s from the time period between February 21, 23 2009, and March 26, 2009. Arnold did not see defendant, Natalynn, or Lee in the recordings. Arnold did not have exact dates 24 from the witnesses. There was one booth where the video cameras did not cover. Arnold carefully viewed recordings from Friday 25 evenings but scanned the remaining video images at fast forward. A defense investigator viewed the video recordings from the Tulare 26 McDonald’s and did not see defendant, Natalynn, or Lee in the recordings. 27

28 14 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 15 of 27

1 Testimony of Defendant’s Family

2 Maria Jones, defendant’s mother, remembered she was weeding in her yard on March 21, 2009, when defendant came over with 3 Natalynn. Natalynn bent down, lost her balance, and looked disoriented. On March 22, 2009, she met defendant, Lee, and 4 Natalynn at a restaurant for lunch. Natalynn had a bruise on her forehead. At lunch, Natalynn ate a little. Later that day, defendant 5 called Maria Jones. He was very upset and said Natalynn got hurt. Maria Jones could not recall what defendant said about how 6 Natalynn was injured. Maria Jones explained that on the way to the hospital with defendant, he was too devastated to talk about what 7 happened except to say he did not know what happened to Natalynn. 8 Defendant’s brother, Kenneth Jones, testified that on March 22, 9 2009, he went to lunch with defendant, Natalynn, Lee, and his parents. He noticed a very large bruise on Natalynn’s entire 10 forehead. One of Natalynn’s nostrils was also red and appeared to be infected. When Kenneth Jones asked Natalynn how she was 11 bruised, she said she ran into a sliding glass door. Natalynn did not eat very much at lunch. Defendant told his brother he had swatted 12 Natalynn on her bottom the day of her death.

13 Kenneth Jones never heard Natalynn complain that defendant played too rough with her. Kenneth Jones asked Natalynn about a 14 monster comment she had directed toward defendant. Natalynn explained she and defendant had been playing by a window. 15 Natalynn was laughing and playful when she explained this to Kenneth Jones. Natalynn also said she thought it may have been a 16 dream.

17 Jennifer Clinton is defendant’s sister. Clinton described defendant as acting like a father to her eldest son when he was an infant and 18 had colic. Clinton was still living at home and defendant would get up at night and take care of the child. A photograph taken by 19 Clinton on March 12, 2009, was admitted showing defendant with Natalynn at a birthday party for Clinton’s second son. Defendant 20 had a very special bond with both of Clinton’s sons, including when they were both toddlers. According to Clinton, Natalynn liked to 21 play rough with her sons but defendant did not play rough with her and tried to teach Clinton’s sons not to play as rough with girls as 22 with boys.

23 Defendant’s Testimony

24 Defendant explained that on one occasion when Lee and Natalynn were sleeping at his parents’ house, Natalynn awoke from her sleep 25 to complain there were monsters at the side of the house. Defendant went outside to run off cats from the side of the house. 26 Natalynn saw defendant through a window and became scared until he showed her there was no monster. Natalynn laughed and said 27 Ry-ry was the monster.

28 Defendant’s nephews liked to jump on him and wrestle. Natalynn 15 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 16 of 27

1 became actively engaged in the horseplay with defendant and his nephews. There were times when she would cry. Defendant 2 initially denied providing daycare for Natalynn while Lee worked but conceded he and his parents along with Miller and Rosales 3 provided care as well as Natalynn’s preschool.

4 Defendant explained there was an incident when Natalynn was spinning around and fell in his bedroom. When Natalynn fell, she 5 hit an exposed safe in the closet. Natalynn seemed dazed. Defendant helped her put ice on it. Miller never picked up 6 Natalynn from defendant’s house. Usually, Lee would take Natalynn to and from Miller’s home in Tulare. Defendant did go 7 with Lee on some of these journeys.

8 Defendant denied ever stepping foot inside the McDonald’s referred to by other witnesses. Defendant had been to a 9 McDonald’s in Tulare at Bardsley, but never to the restaurant at Cross and J Street. Defendant did go to a McDonald’s in Visalia 10 with Lee and Natalynn, or with Natalynn and his mother.

11 According to defendant, there were several times when Natalynn acted out in public by crying, “throwing a fit,” refusing to eat her 12 food, going under the table, or sitting on the table. Defendant denied spanking Natalynn during any of these incidents. Defendant 13 said he did spank Natalynn on the bottom with his open hand on March 22, 2009. He denied ever using his fist on Natalynn. 14 Defendant spanked Natalynn once at his parents’ house when she started throwing toys. Another time defendant spanked her in the 15 restroom of a restaurant.

16 Defendant denied telling anyone he had no need for Natalynn. Defendant said there was conflict in his relationship with Rosales. 17 Defendant said Rosales did not tell the truth. Defendant insisted Natalynn wanted to be with him more than with Rosales and this 18 caused conflict between Rosales and defendant.

19 Defendant explained that Lee and Natalynn moved into their new apartment on March 6, 2009. The following day, defendant walked 20 into Natalynn’s bedroom and found her on top of her bed reaching into a dresser drawer to get a pair of socks. When defendant asked 21 Natalynn what she was doing, she was startled and fell off the bed and bruised her head. It looked serious to defendant, who picked 22 up Natalynn, got ice to put on her head, and drove her to Lee’s place of work. Lee looked at the injury and called her mother. 23 Defendant denied he intentionally scared Natalynn.

24 According to defendant, Natalynn ran into a sliding glass door about a week later. On March 21, 2009, Natalynn came over to 25 defendant and told him she put a shell up her nose. Defendant said he carefully worked the shell out of Natalynn’s nose with toilet 26 paper and his fingers because he did not want to push the shell further into Natalynn’s nostril. 27 On March 22, 2009, defendant went with Lee and Natalynn to a 28 swap meet and then to a store before meeting defendant’s parents 16 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 17 of 27

1 for lunch. Defendant explained Lee left for work between 4:30 and 4:45 p.m. Defendant described Natalynn as running back and forth 2 between watching television, going in her bedroom, and working on crafts with her mother at the table. When Lee left for work, 3 Natalynn began crying. Defendant warned Natalynn to stop but she continued, so defendant spanked her twice on the bottom. 4 Defendant said after he spanked Natalynn, she started running around again and ran into the wall, hitting her temple. According to 5 defendant, Natalynn whimpered a bit and rubbed her head. Natalynn’s head turned red. Defendant kissed Natalynn’s head and 6 she continued to run. As he was sitting and watching television, defendant heard a thud from Natalynn’s room and called out to her. 7 When defendant heard nothing, he walked into the room and saw Natalynn on the floor hugging a sleeping bag cover. Defendant 8 thought she had fallen asleep.

9 Defendant said he lifted Natalynn up and placed her on her bed. Natalynn’s eyes were open but the pupils were rolled back and he 10 could not see them. Defendant panicked and called Natalynn’s name but she did not respond. Defendant took Natalynn to the 11 kitchen and put her underneath the faucet to run water on her face. Natalynn made a sucking sound like she was sucking the water in. 12 Her stomach was full and bloated like there was something in it and she was not breathing. Defendant pushed Natalynn’s stomach. 13 There was no response so defendant blew air into Natalynn’s mouth. 14 Defendant brought Natalynn to the living room and laid her on the 15 carpet. He opened her mouth and was able to get his finger into the mouth as far as he could reach. Nothing came out. Defendant 16 brought Natalynn back into the kitchen, started hitting her back, and called 911. Defendant thought five or six minutes had passed from 17 when he found Natalynn in her room to when he called 911. Natalynn vomited some liquid. Defendant said he was trying to 18 save Natalynn. Defendant took Natalynn outside right when the police and paramedics arrived. Defendant asserted he did not know 19 what happened to trigger Natalynn’s condition.

20 21 People v. Jones, No. F068996, 2017 WL 2131425, at *1-13 (Cal. Ct. App. May 17, 2017), as 22 modified on denial of reh’g (June 6, 2017); see also ECF No. 14-57 at 3-25. 23 II. Discussion 24 General Federal Habeas Legal Standards 25 A federal court may grant habeas relief when a petitioner shows that his custody violates 26 federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 27 (2000). Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty 28 17 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 18 of 27

1 Act of 1996 (“AEDPA”), governs a state prisoner’s habeas petition. See Harrington v. Richter,

2 562 U.S. 86, 97 (2011). To decide a § 2254 petition, a federal court examines the decision of the

3 last state court that issued a reasoned opinion on petitioner’s habeas claims. See Wilson v. Sellers,

4 138 S. Ct. 1188, 1192 (2018). We must defer to that decision, and cannot grant habeas relief for

5 any claim that was adjudicated on the merits in the state proceeding unless it was contrary to

6 clearly established federal law or based on an unreasonable determination of the facts. See 28

7 U.S.C. § 2254(d).

8 If obtaining habeas relief under § 2254 is difficult, “that is because it was meant to be.”

9 Richter, 562 U.S. at 102. As the Supreme Court has put it, federal habeas review “disturbs the

10 State’s significant interest in repose for concluded litigation, denies society the right to punish

11 some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises

12 of federal judicial authority.” Id. at 103 (citation omitted). Our habeas review authority serves as

13 a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for

14 ordinary error correction through appeal.” Id. at 102-03 (emphasis added).

15 Petitioner’s First Claim: Due Process on Appeal

16 Petitioner’s first claim is that the California Court of Appeal’s “decision violated

17 petitioner’s Fourteenth Amendment due process right to an ‘adequate and effective’ appeal”

18 because it relied “on material factual and legal errors to affirm the trial court’s judgment and

19 sentence.” ECF No. 1 at 34 (quoting Evitts v. Lucey, 469 U.S. 387, 392 (1985)).2

20 As an initial matter, there is some dispute about the appropriate framework for evaluating 21 petitioner’s first claim, which is unpacked in a series of numbered and lettered paragraphs that

22 allege a variety of substantive errors on direct appeal (some of which appear to merge with

23 petitioner’s second and third claims, taken up below). See ECF No. 1 at 34-42. In response,

24 2 Some of petitioner’s individual allegations appear to concern purported errors of state law, 25 which cannot form the basis for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67 26 (1991). But petitioner’s traverse clarifies that he wishes to assert no state-law claims. See ECF No. 18 at 13. In addition, petitioner claims in passing that the Court of Appeal’s opinion violated 27 his Sixth Amendment right to jury fact-finding, citing Dillon v. United States, 560 U.S. 817, 828 (2010). We can find no relevance for Dillon—which does not concern issues of appellate factual 28 interpretation or fact-finding—and see no issue here warranting habeas relief under § 2254. 18 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 19 of 27

1 respondent argues broadly and simply that “federal habeas relief is unavailable to redress

2 independent claims of alleged procedural error in the state post-conviction review process.” ECF

3 No. 13 at 22; see Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“We join the majority [of

4 circuits] and affirm the district court’s holding that a petition alleging errors in the state post-

5 conviction review process is not addressable through habeas corpus proceedings.”); see also

6 Silversky v. Frink, 500 F. App’x 625, 626 (9th Cir. 2012) (“A federal habeas petition is not the

7 proper vehicle for addressing the adequacy of process provided . . . in state post-conviction

8 proceedings.”). In his traverse, petitioner contends that this response (and the cited decisions)

9 “fences out federal habeas claims directed at state habeas (or other collateral) proceedings,” but

10 does not foreclose “claims based on state direct appellate review.” ECF No. 18 at 13.

11 We think it is fair to say that there is some ambiguity regarding the cognizability of

12 certain habeas claims that stem solely from direct review of a conviction.3 However, even

13 3 Franzen’s terse holding that “a petition alleging errors in the state post-conviction review 14 process is not addressable through habeas corpus proceedings,” 877 F.2d at 26, was offered with 15 little context, and there may be some question whether its holding applies both to collateral and direct review. Its own terms appear to contemplate any “post-conviction review process,” and the 16 reasoning of more fulsome opinions on the subject may cover both direct review and collateral proceedings. See Bell-Bey v. Roper, 499 F.3d 752, 756 (8th Cir. 2007) (“Because the 17 Constitution does not guarantee the existence of state post-conviction proceedings, an infirmity in a state post-conviction proceeding does not raise a constitutional issue cognizable in a federal 18 habeas application.”) (internal quotations and citations omitted); Ochoa v. John Ontiveros, No. 19 CV-05-3787-PHXDGCDKD, 2009 WL 1125320, at *8 (D. Ariz. Apr. 27, 2009) (“Franzen and the cases it cites are based on the fact that habeas proceedings are designed to attack the basis for 20 the petitioner’s detention, and a petitioner is not detained as a result of post-conviction proceedings.”); Hoffman v. Ryan, No. CV163598PHXSPLJFM, 2017 WL 6021432, at *9 (D. 21 Ariz. Sept. 14, 2017) (“[A]bsent a showing that the incarceration was unconstitutional, habeas has 22 no interest in a purported constitutional violation, even if it occurs on post-conviction review of the criminal prosecution which resulted in the incarceration.”); see also Lackawanna Cty. Dist. 23 Attorney v. Coss, 532 U.S. 394, 402 (2001) (“[E]ach State has created mechanisms for both direct appeal and state postconviction review, even though there is no constitutional mandate that they 24 do so.”). On the other hand, the Supreme Court has stated that, “if a State has created appellate courts as an integral part of the system for finally adjudicating the guilt or innocence of a 25 defendant, the procedures used in deciding appeals must comport with the demands of the Due 26 Process and Equal Protection Clauses of the Constitution.” Evitts v. Lucey, 469 U.S. 387, 393 (1985). Evitts itself held that a criminal defendant is constitutionally entitled to effective 27 assistance of counsel on direct appeal. Id. In addition, some authorities do distinguish between “post-conviction process” and “direct review” of a conviction—and assume that a “post- 28 conviction” process refers only to a collateral attack. See Brian R. Means, Federal Habeas 19 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 20 of 27

1 assuming (without deciding) that petitioner’s appellate claims are cognizable before us now,

2 petitioner has not established that he is entitled to relief on the basis of those claims. We are

3 powerless to grant habeas relief to a state prisoner unless the state proceeding “resulted in a

4 decision that was contrary to, or involved an unreasonable application of, clearly established

5 Federal law, as determined by the Supreme Court of the United States,” or “resulted in a decision

6 that was based on an unreasonable determination of the facts in light of the evidence presented in

7 the State court proceeding.” 28 U.S.C. § 2254(d). Petitioner appears to be arguing that the

8 California Court of Appeal decision was contrary to “clearly established Federal law” under the

9 Supreme Court’s decision in Evitts v. Lucey, 469 U.S. 387 (1985).4 Petitioner puts particular

10 emphasis on Evitts’s statement (citing Griffin v. Illinois, 351 U.S. 12, 20 (1956)) that appellate

11 review must be “adequate and effective” to comply with due process, and argues that his was not.

12 But Evitts—a case concerning the ineffective assistance of appellate counsel—provides no

13 “clearly established Federal law” to support petitioner’s manifold claims here, which are that the

14 Court of Appeal opinion contained “factual mischaracterizations and omissions,” interpreted facts

15 in a manner that is “contradicted by the record,” “relied on its own appellate fact-finding and

16 credibility determinations,” “applied the wrong standard of error review,” “applied the wrong

17 standard of harmlessness,” and “failed to consider the trial record as a whole.” ECF No. 1 at 35-

18 40. Petitioner’s claim, boiled down to its essence, is that the Court of Appeal made the wrong

19 substantive decision. But the line of cases of which Evitts is a part—cases including Griffin,

20 Manual § 1:44 (2020) (“[A]lleged errors by state courts in state post-conviction processes do not 21 raise a constitutional issue cognizable in a federal habeas application. Rather, federal habeas 22 relief is available only to remedy constitutional errors at the trial or direct review level.”). Other authorities assume that a direct appeal is one category of post-conviction review. See, e.g., 23 Summers v. Schriro, 481 F.3d 710, 715 (9th Cir. 2007) (referring to “all forms of post-conviction review . . . other than direct appeal”); Kitt v. Clarke, 931 F.2d 1246, 1248 (8th Cir. 1991) 24 (referring to “postconviction proceedings other than the direct appeal”). Finally, we note that some of these issues have produced circuit splits that appear to have gone unresolved for many 25 years. See Dickerson v. Walsh, 750 F.2d 150, 152 (1st Cir. 1984). 26 4 Petitioner does not claim that the Court of Appeal decision was “based on an unreasonable determination of the facts in light of the evidence presented,” and we do not believe it was. Even 27 assuming that the Court of Appeal decision contained omissions or misinterpretations of the factual record, the alleged errors are small in the overall context of the evidence and legal issues 28 presented, and could have led to no “unreasonable determination” of the facts. 20 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 21 of 27

1 above, and Douglas v. California, 372 U.S. 353 (1963)—concern only the minimal procedural

2 safeguards that a state must offer on appeal, such as effective counsel and a copy of the trial

3 transcript. See Dews v. Kern Valley State Prison, No. 1:12-CV-00450-AWI, 2012 WL 2358643,

4 at *5 (E.D. Cal. June 20, 2012) (“Although the Constitution does not require states to grant

5 appeals as of right to criminal defendants seeking to review alleged trial court errors, if under

6 state law criminal defendants have a right to appeal criminal convictions, the procedures used in

7 deciding those appeals must comply with the requirements of the Due Process and Equal

8 Protection Clauses of the Constitution.”). These cases do not deal with the substantive issues that

9 petitioner now raises, and we know of no cases that do. Indeed, petitioner’s own filing before the

10 California Supreme Court acknowledged this when it noted that the “case law has identified

11 virtually no due process checks on the [appellate] opinion itself,” and conceded that the scope of

12 due process in this context remains “woefully unexplored.” ECF No. 14-50 at 18. Because

13 petitioner identifies no clearly “established Federal law” that the Court of Appeal violated, his

14 first claim should be denied.

15 Petitioner’s Second Claim: Identification Evidence

16 Petitioner’s second claim is that the trial court erred by erroneously admitting eyewitness

17 identification evidence that was obtained in a suggestive manner. See ECF No. 1 at 43.

18 Specifically, petitioner alleges that the trial court should not have admitted evidence of several

19 incidents at McDonald’s—in which petitioner was allegedly seen verbally abusing at the girl he

20 was convicted of murdering—because the investigator showed the witnesses only a single 21 photograph of petitioner, rather than an array. Id. The Supreme Court has held that such a

22 procedure violates due process “only if the photographic identification procedure was so

23 impermissibly suggestive as to give rise to a very substantial likelihood of irreparable

24 misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968). If the procedure used

25 was indeed suggestive, courts must ask “whether under the ‘totality of the circumstances’ the

26 identification was reliable even though the confrontation procedure was suggestive.” Neil v. 27 Biggers, 409 U.S. 188, 199 (1972). Factors considered as part of the “totality of the

28 circumstances” may include the quality of the witness’s opportunity to view the defendant, the 21 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 22 of 27

1 witness’s degree of attention, the accuracy of the witness’s prior description, the level of certainty

2 demonstrated by the witness, and the length of time between the incident and the identification.

3 See Perry v. New Hampshire, 565 U.S. 228, 239 n.5 (2012).

4 The Court of Appeal’s discussion of this issue was extensive and detailed, and we quote it

5 at length:

6 A due process violation occurs only if the identification procedure is so impermissibly suggestive as to give rise to a very substantial 7 likelihood of irreparable misidentification. (Simmons v. United States (1968) 390 U.S. 377, 384; People v. Cook (2007) 40 Cal.4th 8 1334, 1355.) A single person showup is not inherently unfair. A procedure is unfair that suggests the identity of the person 9 suspected by the police in advance of the witness’s identification. (People v. Ochoa, supra, 19 Cal.4th at p. 413.) 10 Although a single-suspect identification procedure generally is not 11 the ideal or preferred method and can pose a danger of suggestiveness, it is not necessarily unfair. (People v. Clark (1992) 12 3 Cal.4th 41, 136, abrogation on other grounds recognized in People v. Pearson (2013) 56 Cal.4th 393, 462; see People v. 13 Medina (1995) 11 Cal.4th 694, 753.) Having a witness view a single photograph of the defendant is not more impermissibly 14 suggestive than an in-court identification of the defendant sitting at the defense table in the courtroom. (People v. Yonko (1987) 196 15 Cal.App.3d 1005, 1008-1009.) Other than the use of single photographs for each subject, there is nothing else in the record to 16 suggest Arnold encouraged Cardenas or Bentz to identify defendant. (People v. Nguyen (1994) 23 Cal.App.4th 32, 39.) On 17 the other hand, the single-photograph procedure has been criticized. (See People v. Contreras (1993) 17 Cal.App.4th 813, 820.) 18 Assuming arguendo the procedure used here was unduly suggestive, we review the identification process under the totality 19 of the circumstances to determine if it was unfair. 20 Cardenas was contacted by Arnold about a year after Natalynn died. Cardenas, however, paid close enough attention to the incident and 21 had reported it to her supervisor. This incident was noteworthy because defendant told a very young child to “shut the fuck up” 22 four different times and left Natalynn crying at the table. Cardenas also cleaned the table next to defendant, Lee, and Natalynn and got 23 a good look at all three of them before they left the restaurant. Cardenas was certain of her identification at the time she made it to 24 Arnold and at defendant’s trial. Although Cardenas was reluctant to identify Lee at defendant’s trial, she explained this was because 25 she apparently did not want to look at Lee in the gallery. Cardenas was confident of her identification of defendant and Natalynn. 26 Griffin was able to identify defendant and Natalynn. Griffin made 27 a positive identification of defendant in court. Arnold showed Griffin photographs. Griffin identified Natalynn from the girl in the 28 photograph Arnold showed her and identified defendant in court as 22 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 23 of 27

1 the man she saw with Natalynn at McDonald’s. She got a good look at defendant in the restaurant. Griffin was able to identify Lee 2 from surveillance video of her at McDonald’s, not from seeing her on television or from the photograph Arnold showed her. Griffin 3 remembered what the trio ordered and how defendant had yelled at Natalynn about the Happy Meal toy. 4 Bentz apparently had a clearer view of defendant and Natalynn than 5 she did of Lee. Bentz reported the incident to Arnold less than two months after it happened and less than two weeks after Natalynn 6 died. Bentz only saw Lee from behind while she sat but could see her profile as Lee left the restaurant. It is reasonable to infer Bentz 7 also saw Lee’s body at the same time. Because Bentz did not see the front of Lee’s face during the McDonald’s incident, she 8 forthrightly told Arnold and testified at trial that Lee looked like the woman in the restaurant the day of the incident. 9 The unique circumstances of defendant’s behavior—yelling at and 10 nearly hitting a small child only three and a half years old—made both encounters uniquely memorable and noteworthy. The 11 witnesses were not identifying a single suspect to a crime occurring in a dark alley. Defendant’s conduct occurred inside a restaurant 12 with presumably good lighting. The witnesses were identifying a mother, her daughter, and the mother’s boyfriend, who were dining 13 together. Bentz and Cardenas were sure of their identifications of defendant and Natalynn. Griffin was positive of her identification 14 of defendant, Lee, and Natalynn. Also, Griffin was able to identify Lee from video recordings even though the defense investigator and 15 Arnold could not definitely find any of the trio in video recordings. All three witnesses positively identified defendant in court. Such 16 identifications need not be excluded, even where the witness previously failed to identify a suspect. (People v. Dominick (1986) 17 182 Cal.App.3d 1174, 1196-1197; see People v. Contreras, supra, 17 Cal.App.4th at p. 822.) 18 It is far less probable three independent witnesses to two separate 19 events would misidentify defendant under circumstances where the same three people were at the same restaurant in Tulare, a small 20 community. As noted above, Arnold did not directly encourage Cardenas, Griffin, or Bentz to positively identify defendant, Lee, or 21 Natalynn. Furthermore, the circumstances of the photographic identification procedure were disclosed to the jury, the witnesses 22 were subjected to thorough cross-examination, and the jury was allowed to evaluate the reliability of the witnesses’ identifications. 23 (People v. Alexander (2010) 49 Cal.4th 846, 903.) Evidence with some element of untrustworthiness is customary grist for the jury 24 mill; jurors are not so gullible they cannot intelligently measure the weight of identification testimony with some questionable feature. 25 (Ibid.) Under the totality of the circumstances, we find the identifications of defendant by Bentz, Griffin, and Cardenas were 26 reliable. We also find the identifications of Lee and Natalynn reliable under the totality of the circumstances. 27

28 People v. Jones, No. F068996, 2017 WL 2131425, at *14-15. 23 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 24 of 27

1 The Court of Appeal applied the correct standard and reached the correct result: under the

2 totality of the circumstances presented here—such as a highly memorable occurrence and

3 relatively confident identifications—the identifications were reliable, despite the degree of

4 suggestiveness involved in the single-photograph technique. This result was not contrary to or an

5 unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1).

6 Petitioner’s Third Claim: Prosecutorial Misconduct

7 Petitioner’s third claim is that the prosecution committed misconduct in the closing

8 argument—and the trial court allowed it—depriving him of due process of law. ECF No. 1 at 48.

9 Specifically, he alleges that the prosecution’s use of a so-called “golden rule” argument—asking

10 the jury to put itself in the shoes of the victim—deprived him of a fair trial. Such arguments can

11 “inappropriately obscure[] the fact that [the prosecutor’s] role is to vindicate the public’s interest

12 in punishing crime, not to exact revenge on behalf of an individual victim.” Drayden v. White,

13 232 F.3d 704, 713 (9th Cir. 2000)

14 The California Court of Appeal considered this issue. While the court conceded that some

15 of the prosecutor’s arguments were improper—and noted that objections to those arguments were

16 sustained at trial—the court concluded firmly that these limited comments did not deprive

17 petitioner of a fair trial:

18 A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct. Reversal under the federal 19 Constitution is necessary only when these methods infect the trial with such unfairness as to make the resulting conviction a denial of 20 due process. (People v. Salcido (2008) 44 Cal.4th 93, 152, citing Darden v. Wainwright (1986) 477 U.S. 168, 181.) 21 .... 22 Although the trial court did not admonish the jury to disregard the 23 prosecutor’s comments at the time they were made, immediately before closing arguments, the jury received instructions on the 24 duties of the jury focusing on how the jurors decide the facts and directing the jurors to not let bias, sympathy, or prejudice influence 25 their opinion. The jury received the reasonable doubt instruction set forth in CALCRIM No. 220, emphasizing defendant’s presumed 26 innocence and stating the jury “must impartially compare and consider all the evidence that was received throughout the entire 27 trial.” The jury was further instructed with CALCRIM No. 222 on its duty to decide the facts, evidence, the sworn testimony of 28 witnesses, and exhibits admitted into evidence. This instruction 24 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 25 of 27

1 admonishes the jury that the statements of the attorneys in opening and closing statements are not evidence and only the sworn 2 testimony of witnesses and admitted exhibits are evidence. This instruction also advised the jury not to consider matters upon which 3 the court sustained an objection.

4 Jurors are presumed to understand and follow the trial court’s instructions. (People v. Martinez, supra, 47 Cal.4th at p. 957; 5 People v. Sanchez (2001) 26 Cal.4th 834, 852.) These instructions effectively advised the jurors to focus on the evidence, avoid 6 passion in their deliberations, and to consider evidence over the arguments of counsel. Defense counsel further effectively 7 challenged the prosecutor’s argument, appealing in his own closing argument for the jury not to be moved by passion but to employ 8 reason to the evidence presented at trial. These instructions, coupled with the trial court sustaining defense counsel’s objections 9 to the prosecutor’s victim impact comments, were sufficient to overcome any sympathy or prejudice evoked by the prosecutor. 10 As noted, the scope of the prosecutor’s comments was far less 11 extensive than the prosecutor’s prolonged and far ranging comments in Vance [a related California precedent]. All of the 12 prosecutor’s challenged closing argument occurred in five pages of reporter’s transcript. The prosecutor’s closing statements were 13 about 71 pages of reporter’s transcript. Defendant counsel’s closing statements were approximately 120 pages of reporter’s 14 transcript. The jury heard testimony from some 40 witnesses, including defendant. Given the long duration of closing arguments 15 by both parties, the limited scope of the challenged argument, and the volume of testimony, we find the challenged argument to be a 16 small part of the argument to the jury and of the trial. Unlike the prosecutor’s closing argument in Vance, the prosecutor here never 17 disparaged defense counsel, limiting her disagreements with defense counsel in the interpretation of how Natalynn died based on 18 the evidence adduced at trial.

19 ....

20 It is not reasonably probable a result more favorable to defendant would have been reached absent the misconduct or with a curative 21 instruction. (People v. Arias (1996) 13 Cal.4th 92, 161 [jury failed to reach verdict after lengthy deliberations on enhancements 22 ultimately dismissed].) Given the strength of the People’s case against defendant, there is no reasonable probability the 23 prosecutor’s brief and isolated comments could have influenced the jury’s guilt determination. (People v. Martinez, supra, 47 Cal.4th 24 at p. 957; People v. Medina (1995) 11 Cal.4th 694, 759–760.) The misconduct was not prejudicial given the very strong evidence of 25 defendant’s guilt. (People v. Martinez, supra, at p. 957; People v. Mendoza, supra, 42 Cal.4th at p. 704.) We find no prejudicial error 26 under the state or federal Constitution. 27 People v. Jones, No. F068996, 2017 WL 2131425, at *17-20.

28 25 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 26 of 27

1 Here, the court identified the correct standard: “whether the comments so infected the trial

2 with unfairness as to make the resulting conviction a denial of due process.” Darden v.

3 Wainwright, 477 U.S. 168, 169 (1986). And the court amply weighed proper factors in deciding

4 whether than standard was met. See, e.g., Hein v. Sullivan, 601 F.3d 897, 912-13 (9th Cir. 2010)

5 (“In determining whether a comment rendered a trial constitutionally unfair, factors we may

6 consider are whether the comment misstated the evidence, whether the judge admonished the jury

7 to disregard the comment, whether the comment was invited by defense counsel in its summation,

8 whether defense counsel had an adequate opportunity to rebut the comment, the prominence of

9 the comment in the context of the entire trial and the weight of the evidence.”). Moreover, we

10 agree with the Court of Appeal that “the challenged argument [was] a small part of the argument

11 to the jury and of the trial,” given “the long duration of closing arguments by both parties, the

12 limited scope of the challenged argument, and the volume of testimony.” Because the Court of

13 Appeal’s analysis was proper, it was not contrary to clearly established federal law or based on an

14 unreasonable determination of the facts. The court should not grant habeas relief on petitioner’s

15 third claim.

16 Petitioner’s Fourth Claim: Cumulative Error

17 Petitioner’s fourth and final claim is that the cumulative impact of the alleged errors above

18 deprived him of a fair trial. ECF No. 1 at 51. Cumulative error applies where, “although no

19 single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the

20 cumulative effect of multiple errors may still prejudice a defendant.” United States v. Frederick, 21 78 F.3d 1370, 1381 (9th Cir. 1996). But “[b]ecause there is no single constitutional error in this

22 case, there is nothing to accumulate to a level of a constitutional violation.” Mancuso v. Olivarez,

23 292 F.3d 939, 957 (9th Cir. 2002). Thus, petitioner’s cumulative error claim fails.

24 III. Certificate of Appealability

25 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district

26 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 27 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a

28 district court to issue or deny a certificate of appealability when entering a final order adverse to a 26 Case 1:18-cv-01606-DAD-JDP Document 20 Filed 06/24/20 Page 27 of 27

1 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th

2 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial

3 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires

4 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of

5 his constitutional claims or that jurists could conclude the issues presented are adequate to

6 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v.

7 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the

8 denial of a constitutional right. Thus, we recommend that the court not issue a certificate of

9 appealability.

10 IV. Findings and Recommendations

11 The court should deny the petition for a writ of habeas corpus, ECF No. 1, and decline to

12 issue a certificate of appealability. These findings and recommendations are submitted to the

13 U.S. District Court judge presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of

14 the Local Rules of Practice for the United States District Court, Eastern District of California.

15 Within thirty days of the service of the findings and recommendations, petitioner may file written

16 objections to the findings and recommendations with the court and serve a copy on all parties.

17 That document must be captioned “Objections to Magistrate Judge’s Findings and

18 Recommendations.” The district judge will then review the findings and recommendations under

19 28 U.S.C. § 636(b)(1)(C).

20 IT IS SO ORDERED. 21

22 Dated: June 24, 2020 23 UNITED STATES MAGISTRATE JUDGE 24

25 No. 205. 26 27

28 27