(HC) Martinez-Costa v. Pallares

• Court: District Court, E.D. California
• Decided: December 17, 2021
• Docket: 2:19-cv-02597
• Status: Unknown

Opinion

Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 1 of 56

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

11 CLEO MARTINEZ-COSTA, No. 2:19-cv-02597 KJM KJN P 12 Petitioner, 13 v. FINDINGS & RECOMMENDATIONS 14 M. PALLARES, 15 Respondent. 16

17 I. Introduction

18 Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of

19 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges her 2014 conviction for first-

20 degree murder and second-degree robbery. Petitioner was sentenced to prison for the period of

21 life without the possibility of parole. Petitioner claims: insufficient evidence to support a true

22 finding of acting with reckless indifference to human life; erroneous exclusion of third-party

23 culpability evidence; ineffective assistance of counsel; and prosecutorial misconduct. After

24 careful review of the record, this court concludes that the petition should be denied.

25 //

26 //

27 //

28 // 1 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 2 of 56

1 II. Procedural History

2 On April 22, 2014, a jury found petitioner guilty of the following: first-degree murder

3 (Cal. Pen. Code, 1 § 187(a) [count one]), and found related allegations of being armed with a

4 firearm (§ 12022(a)(1)) and attempted robbery during the commission of murder (§ 190.2(a)(17))

5 to be true; and attempted second-degree robbery (§§ 664/211 [count two]), and also found the

6 accompanying allegation of being armed with a firearm (§ 12022(a)(1)) to be true. (LD 1 at 27-

7 28; LD 2 at 75-76; LD 9 at 213-14.) On May 23, 2014, petitioner was sentenced to life without

8 the possibility of parole in state prison. (LD 1 at 68-69.) 2

9 Petitioner appealed the conviction to the California Court of Appeal, Third Appellate

10 District. (LD 10, LD 12 & LD 13.) The Court of Appeal affirmed the conviction on June 13,

11 2018. (LD 18.)

12 Petitioner filed a petition for review in the California Supreme Court (LD 19), which was

13 denied on September 19, 2018 (LD 20).

14 On or about April 26, 2019, petitioner filed a petition for writ of habeas corpus with the

15 Sacramento County Superior Court; that court denied the petition on July 26, 2019. (LD 21.)

16 Thereafter, on August 16, 2019, petitioner filed a petition for writ of habeas corpus with

17 the Third District Court of Appeal. (LD 22.) The state appellate court denied the petition on

18 September 12, 2019. (LD 23.)

19 On September 30, 2019, petitioner filed a petition for writ of habeas corpus with the

20 California Supreme Court. (LD 24.) The state’s highest court denied the petition on December

21 11, 2019. (LD 25.)

22 Petitioner filed the instant petition with this court on December 23, 2019. (ECF No. 1.)

23 Respondent filed an answer on April 16, 2020. (ECF No. 13.) Petitioner filed her traverse on

24 May 1, 2020. (ECF No. 15.)

25 1 All further statutory references are to the California Penal Code unless otherwise indicated. 26 2 “LD” refers to the Lodged Documents filed by respondent in this court on April 16, 2020; 27 “ECF” refers to this court’s electronic case management and filing system. All numeric page references are to those electrically assigned at the time of lodging or docketing. 28 2 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 3 of 56

1 III. Facts 3

2 In its unpublished memorandum and opinion affirming petitioner’s judgment of

3 conviction on appeal, the California Court of Appeal for the Third Appellate District provided the

4 following factual summary:

5 FACTS 6 In view of the issues raised on appeal, we will here set forth the facts relating to the commission of the charged crimes. Other facts relevant 7 to defendants' claims on appeal will be set forth, post. 8 The People's Evidence 9 On November 25, 2011, around midnight, Breaonna Nunes accompanied “Jimmy” Hiter in his red Cadillac to Hiter's apartment. 10 Nunes paid Hiter $4,000 for either a quarter- or half-pound of methamphetamine, and helped him package additional 11 methamphetamine that he was going to drop off with various buyers. 12 While Nunes was with Hiter, Hiter received a constant barrage of calls and text messages on his cell phone. When Hiter answered 13 several calls, Nunes heard the same woman's voice on the other line. 14 At one point, Hiter told Nunes that he was going to deliver methamphetamine to his ex-girlfriend's house. Later in the interview 15 with law enforcement, Costa said that she and Hiter had dated in the past. 16 Hiter and Nunes arrived at Costa's house, and Hiter parked the car on 17 the side of the road in front of the house. Hiter got out of the car and walked towards the trunk where he kept the methamphetamine in a 18 safe. Nunes then saw a man wearing a mask and wielding a semiautomatic firearm running towards them from the direction of 19 Costa's house. Nunes saw the man rack the slide on his gun, and tell Hiter, “Mother fucker, give me everything you got.” Nunes retreated 20 to the driver's seat of Hiter's car and heard a gunshot. Nunes got out of the car and saw Hiter on the ground in front of it. She saw that 21 Hiter had been shot in the area of his lower abdomen. 22 Nunes then saw Costa who was wearing brown Coach brand rain boots. Nunes heard Costa angrily say something to the effect of, 23 “Where did that little bitch go.” Costa then asked Nunes to help her move Hiter's body. Nunes refused, grabbed the car keys out of Hiter's 24 hand, and drove away. She did not call law enforcement. 25 Angela Law began dating Doria around August 2011. During their relationship, Law often saw Doria with a semiautomatic firearm 26 3 27 The facts are taken from the opinion of the California Court of Appeal for the Third Appellate District in People v. Martinez-Costa, No. C076567 (6/13/2018), a copy of which was lodged by 28 respondent as Lodged Document 18 on April 16, 2020. (ECF No. 14-18.) 3 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 4 of 56

1 tucked in the front of his waistband. Doria told Law that he made money by robbing people and selling drugs. 2 Sometime close to midnight on November 24, 2011, or early in the 3 morning of November 25, 2011, Law met with Doria at his house. They eventually left together in a minivan that belonged to the 4 mother of Doria's children. There was a bicycle and a duffle bag in the back of the van, and Doria told Law that he was going to rob 5 someone. Law saw a semiautomatic firearm in the waistband of Doria's pants. 6 Doria and Law first went to Hiter's apartment complex. While at the 7 apartment complex, Law saw a “burgundy” Cadillac leaving the complex. Doria was on the phone, and Doria said to the person he 8 was speaking to that he had seen “him” and “he” had just left. Law recognized Costa's voice through the phone. She heard Costa tell 9 Doria that Hiter was “on his way.” Doria then told Law that they were going to Costa's house. 10 Doria parked the van around the corner from Costa's house, and 11 Doria, who was wearing a loose “hoodie,” took the bicycle out of the van and rode off on it. A patrol vehicle passed Law as she waited in 12 the van and she sent a text message to Doria that read, “[D]id u see the boys.” Law heard a gunshot while she was waiting for Doria. 13 When Doria returned to the van he appeared anxious, and told her 14 that the gun had jammed. They then drove to a friend's house. Doria and Law left their friend's house to go to a doughnut shop where Law 15 spoke with her father on Doria's cell phone. Her father told her that someone had been killed near Costa's house. 16 An autopsy revealed that Hiter died from a gunshot that entered his 17 back and traveled into his chest. About $400 was found on Hiter's body. 18 At the site of the killing, law enforcement officers found a bullet 19 casing along with a live nine-millimeter round. Racking the slide on a semiautomatic handgun ejects a live round if a live round was 20 already chambered. Racking the slide is also a method that can be used to eject a live round that has jammed a semiautomatic firearm. 21 Officers also found a knit cap with “eye holes” cut out at Doria's home. 22 Towards the start of 2011, Cara Bain lived in a trailer behind Costa's 23 house for roughly six months. She knew Costa and encountered Doria several times at Costa's house. Bain was also familiar with 24 Hiter, having met him when they both attended drug court.

25 On November 27 or 28, 2011, Becky Collins chaired a meeting at the Serenity House recovery home. After the meeting, Bain approached 26 Collins and said that Hiter's murder was a “robbery gone bad.” Bain also related that she had lived with the people who had murdered 27 Hiter. Collins called the police to give them the information that Bain had provided. 28 4 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 5 of 56

1 On December 8, 2011, Detective Donald McCoy and his partner went to the Serenity House and interviewed Bain. Bain recalled that 2 Hiter would go to Costa's house and sell Costa “dope.” When at Costa's house, Hiter would show off by exhibiting large quantities of 3 drugs and cash. About one month before Hiter's murder, Costa remarked that Hiter had sold her poor quality drugs and she wanted 4 to rob him. Bain saw Hiter at Costa's house around 10 times, and he sold Costa drugs on each of those visits. Costa sold the drugs that she 5 purchased from Hiter.

6 Bain also knew Doria because he would go to Costa's to “hang out.” Bain described Doria as half-Mexican, half-White, but “more on the 7 white side.” There was an occasion when Doria gave Bain a ride to Home Depot. During the trip, Doria told Bain that he had robbed 8 drug dealers in the Bay Area. Bain recalled that Hiter sold Doria drugs on one occasion in Costa's living room. During the deal, Hiter 9 exhibited a large amount of cash and Bain later warned him to be careful around Doria because Doria robbed drug dealers. 10 During her testimony at trial, Bain denied giving information 11 regarding the murder to Collins. She also denied providing information to detectives in a subsequent interview at the Serenity 12 House. Cara Bain was also referred to as Cara King. A recording of her interview was played for the jury. 13 Gina Ballejos was Costa's next door neighbor. In November 2011, 14 Ballejos and Costa spoke nearly every day, and used methamphetamine together on occasion. The night of November 24, 15 2011, and into the early morning hours of November 25, Ballejos and Costa were “partying for Thanksgiving.” She did not recall receiving 16 a text message from Costa that told her to not go to Costa's house. The morning of November 25, she heard a gunshot and called Costa. 17 Officer Henry McClusky was dispatched to Costa's house at 3:50 18 a.m. the morning of the shooting. Officer McClusky spoke with Ballejos after arriving, and Ballejos informed him that she called 19 Costa at 3:38 a.m., after hearing a gunshot.

20 Angel McElroy, Costa's daughter, spent November 24, 2011, at Costa's house. She left around midnight. The following day, around 21 7:30 or 8:00 a.m., she returned to Costa's house after hearing that a shooting had occurred there. She left immediately after learning that 22 Hiter had been murdered, and made several phone calls to Costa and Doria. At that time, according to McElroy, Doria was an 23 acquaintance whom she had not seen for roughly a month prior to the murder. About one month after Hiter's murder, McElroy was dating 24 Doria.

25 On November 25, 2011, around noon, McElroy received a call from her then boyfriend Jeffrey Hayden. During the phone call, McElroy 26 told Hayden that Doria had murdered Hiter. McElroy explained that her statement to Hayden was based on a conversation with her 27 brother, who did not like Doria and thought that Doria might have “had something to do with it.” 28 5 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 6 of 56

1 Detective Mark Johnson testified to cell phone records. He testified that when a call is made or received, it “pings” off a cell tower. Cell 2 tower records show the location of the tower that a particular call was routed through, whether made or received. The cell tower records for 3 Nunes and Hiter's cell phones were consistent with Nunes's account of where she went with Hiter the night he was murdered. The records 4 for Law and Doria's cell phones were consistent with Law's testimony regarding their locations the night of the murder. Records 5 for Doria's cell phone showed that a call was made or received at 3:33 a.m., and the call was routed through a cell tower near Costa's 6 house.

7 Cell phone records showed that Costa made numerous calls and sent numerous text messages to both Hiter and Doria in the hours leading 8 up to Hiter's murder. At 1:37 a.m. Costa called Hiter. At 1:38 a.m. she sent Doria a text message that read, “I jus cald him n he sai hey 9 hold on a sxec ill call u bac so maby he at home now.” At 3:18 a.m. Costa and Hiter exchanged calls and, seconds later, Costa texted 10 Doria, “He call to say he on the road il c u when I c him on camera.” At 3:35 a.m. Costa sent a text to Ballejos: “Dont come over.” At 3:38 11 a.m. Law sent a text to Doria: “did u see the boys.”

12 At 3:44 a.m. Costa called 911. In the call, Costa reported that a woman driving a red Cadillac possibly struck Hiter with the car. A 13 recording of that call was played for the jury.

14 Detective Donald McCoy interviewed Costa on November 25, 2011, and on December 6, 2011. 15 During the first interview, Costa explained that she had 16 Thanksgiving dinner with her family and was cleaning up late that night when her dog started barking. Costa looked outside and heard 17 the sound of a person snoring. Upon further examination, she saw Nunes get out of Hiter's car. Nunes refused to help Costa move Hiter 18 and, instead, got into the car and sped away.

19 Costa said that she and Hiter dated for roughly two months about 10 years before Hiter's death. Hiter and Costa spoke on the phone a 20 couple of times that night. Hiter asked Costa if he could come over to her house. Costa admitted that Hiter showed up at her house 21 around 10:00 or 11:00 p.m. Costa asked him to leave, and he said that he would return after the children at the house had gone to sleep. 22 Costa then sent her neighbor Gina Ballejos a text message that told Ballejos to not come over to Costa's house. Costa sent the text 23 anticipating that Hiter would return to her house. Costa did laundry while she waited for Hiter. She never heard a gunshot. 24 Detective McCoy interviewed Costa on December 6, 2011, to 25 determine whether Costa knew Doria. Costa knew Doria because he was going to repair her heating and air conditioning system. She 26 described Doria as a White male in his late twenties. Costa knew that Doria drove a minivan, and described him as having the mentality of 27 a child and as being “fuckin' crazy.” Recordings of the interviews were played for the jury. 28 6 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 7 of 56

1 Doria's Defense Evidence

2 In his defense, Doria introduced portions of four interviews of Nunes which were played for the jury. 3 In the November 28, 2012 interview, Nunes said she knew that 4 Hiter's killer was White because of the way he spoke.

5 In the December 9, 2011 interview, Nunes stated she previously thought the shooter was “Chaos,” but that the shooter was not Chaos 6 and that she was constantly second-guessing herself.

7 In her February 28, 2012 interview, she explained, “Chaos is just, ah, some guy that, um, I just thought that might have killed Jimmy, shot 8 him.” However, she clarified she did not personally know him, but he was reputed to be a “psycho.” She denied Chaos was at the 9 location of the crime, but mentioned his “distinctive voice.”

10 In the May 9, 2012 interview Nunes, when asked again about Chaos, stated: “But—but that—that Chaos dude, I don't even know why I 11 think he said—said Chaos, I really, I don't know why. I didn't—I really have no idea why I said that. I think that I heard one of my 12 friends saying it, oh it was just Chaos or something like that. So that's why I—I think I said that.” She reiterated she did not know Chaos, 13 although she had spoken to him the year before.

14 The parties stipulated that “Chaos, otherwise known as Justin Winn, is approximately five-feet-six to five-foot-eight inches tall and 15 approximately 145 to 165 pounds. [¶] It is further stipulated that there was no mention of Chaos in the first interview that occurred ... on 16 November 29, 20[11] between Miss Nunes and Detective Johnson.” The trial court refused Doria's request to offer evidence that Angela 17 Law was with Chaos when she was apprehended by officers in February 2012, approximately three months after Hiter's murder. 18 Costa's Defense Evidence 19 Costa presented no evidence on her own behalf. 20

21 (People v. Martinez-Costa, slip op. at *2-5.)

22 IV. Standards for a Writ of Habeas Corpus

23 An application for a writ of habeas corpus by a person in custody under a judgment of a

24 state court can be granted only for violations of the Constitution or laws of the United States. 28

25 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

26 application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502

27 U.S. 62, 67-68 (1991).

28 // 7 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 8 of 56

1 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas

2 corpus relief:

3 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 4 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - 5 (1) resulted in a decision that was contrary to, or involved an 6 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 7 (2) resulted in a decision that was based on an unreasonable 8 determination of the facts in light of the evidence presented in the State court proceeding. 9

10 28 U.S.C. § 2254(d).

11 For purposes of applying § 2254(d)(1), “clearly established Federal law” consists of

12 holdings of the United States Supreme Court at the time of the last reasoned state court decision.

13 Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct.

14 38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v.

15 Taylor, 529 U.S. 362, 412 (2000)). Circuit court precedent “may be persuasive in determining

16 what law is clearly established and whether a state court applied that law unreasonably.” Stanley,

17 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit

18 precedent may not be “used to refine or sharpen a general principle of Supreme Court

19 jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall

20 v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per

21 curiam)). Nor may it be used to “determine whether a particular rule of law is so widely accepted

22 among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as

23 correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it

24 cannot be said that there is “clearly established Federal law” governing that issue. Carey v.

25 Musladin, 549 U.S. 70, 77 (2006).

26 A state court decision is “contrary to” clearly established federal law if it applies a rule

27 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

28 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003). 8 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 9 of 56

1 Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the

2 writ if the state court identifies the correct governing legal principle from the Supreme Court’s

3 decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 4 Lockyer v.

4 Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 529 U.S. at 413; Chia v. Cambra, 360 F.3d

5 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply

6 because that court concludes in its independent judgment that the relevant state-court decision

7 applied clearly established federal law erroneously or incorrectly. Rather, that application must

8 also be unreasonable.” Williams v. Taylor, 529 U.S. at 411. See also Schriro v. Landrigan, 550

9 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its

10 ‘independent review of the legal question,’ is left with a ‘“firm conviction”’ that the state court

11 was ‘“erroneous”’”). “A state court’s determination that a claim lacks merit precludes federal

12 habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s

13 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541

14 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal

15 court, a state prisoner must show that the state court’s ruling on the claim being presented in

16 federal court was so lacking in justification that there was an error well understood and

17 comprehended in existing law beyond any possibility for fair-minded disagreement.” Richter,

18 562 U.S. at 103.

19 If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

20 court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

21 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

22 (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of

23 § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by

24 considering de novo the constitutional issues raised”).

26 4 Under § 2254(d)(2), a state court decision based on a factual determination is not to be 27 overturned on factual grounds unless it is “objectively unreasonable in light of the evidence presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford, 28 384 F.3d 628, 638 (9th Cir. 2004)). 9 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 10 of 56

1 The court looks to the last reasoned state court decision as the basis for the state court

2 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

3 If the last reasoned state court decision adopts or substantially incorporates the reasoning from a

4 previous state court decision, this court may consider both decisions to ascertain the reasoning of

5 the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a

6 federal claim has been presented to a state court and the state court has denied relief, it may be

7 presumed that the state court adjudicated the claim on the merits in the absence of any indication

8 or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption

9 may be overcome by a showing “there is reason to think some other explanation for the state

10 court’s decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803

11 (1991)). Similarly, when a state court decision on petitioner’s claims rejects some claims but

12 does not expressly address a federal claim, a federal habeas court must presume, subject to

13 rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289,

14 298 (2013) (citing Richter, 562 U.S. at 98). If a state court fails to adjudicate a component of the

15 petitioner’s federal claim, the component is reviewed de novo in federal court. Wiggins v. Smith,

16 539 U.S. 510, 534 (2003).

17 Where the state court reaches a decision on the merits but provides no reasoning to

18 support its conclusion, a federal habeas court independently reviews the record to determine

19 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

20 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

21 review of the constitutional issue, but rather, the only method by which we can determine whether

22 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no

23 reasoned decision is available, the habeas petitioner still has the burden of “showing there was no

24 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.

25 A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

26 Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze

27 just what the state court did when it issued a summary denial, the federal court must review the

28 state court record to determine whether there was any “reasonable basis for the state court to deny 10 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 11 of 56

1 relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories . . . could

2 have supported the state court’s decision; and then it must ask whether it is possible fairminded

3 jurists could disagree that those arguments or theories are inconsistent with the holding in a prior

4 decision of [the Supreme] Court.” Id. at 101. The petitioner bears “the burden to demonstrate

5 that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d

6 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

7 When it is clear, however, that a state court has not reached the merits of a petitioner’s

8 claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

9 habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462

10 F.3d 1099, 1109 (9th Cir. 2006).

11 V. Petitioner’s Claims

12 A. Insufficiency of the Evidence

13 Petitioner claims the evidence is insufficient to support a true finding that she acted with

14 reckless indifference to human life. (ECF No. 1 at 5-6; ECF No. 15 at 10-20.) Respondent

15 maintains the state appellate court reasonably rejected petitioner’s claim; therefore, she is not

16 entitled to relief in these proceedings. (ECF No. 13 at 20-26.)

17 The last reasoned rejection of petitioner’s first claim is the decision of the California

18 Court of Appeal for the Third Appellate District on petitioner’s direct appeal. The state court

19 addressed this claim as follows:

20 The Special Circumstance Reckless Indifference Finding 21 Costa argues there is insufficient evidence to support the jury's 22 special circumstance finding that Costa acted with reckless indifference to human life. Specifically, she argues something more 23 than being an aider and abettor in the underlying attempted robbery must be shown in order to affirm the jury's reckless indifference 24 finding. In denying Costa's motion for a new trial for lack of sufficient evidence, the trial court said: “[Defendant's attorney's] 25 argument that there is insubstantial evidence to support a special 26 circumstance murder conviction does not, frankly, comport with the evidence that the Court heard in this case. [¶] ... [¶] 27 “The jury clearly found beyond a reasonable doubt that there was 28 evidence to support the special circumstance murder, and I have to 11 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 12 of 56

1 agree from what I heard in this case, there was overwhelming evidence, really, that Ms. Martinez–Costa is the one who set up this 2 robbery, and without Ms. Martinez–Costa, Mr. Hiter would be alive 3 today. I have no doubt based on what I heard in this case.”

4 “A defendant convicted of first degree murder with at least one special circumstance found true will be sentenced to either death or 5 life imprisonment without the possibility of parole. (Pen. Code, § 190.2 ....) One of these special circumstances is the felony-murder 6 special circumstance under which a murder occurred during the commission or attempted commission, or the immediate flight after 7 commission, of one of eleven specified felonies. (§ 190.2, subd. 8 (a)(17)(i-xi).) A felony-murder special circumstance is applicable to a defendant who is not the actual killer if the defendant, either with 9 the ‘intent to kill’ (§ 190.2, subd. (c) ), or ‘with reckless indifference to human life and as a major participant, aids, abets, counsels, 10 commands, induces, solicits, requests, or assists in the commission 11 of [one of the eleven enumerated felonies].’ (§ 190.2, subd. (d) ....)” (People v. Estrada (1995) 11 Cal.4th 568, 571–572, original italics.) 12 As recognized by the California Supreme Court in People v. Banks 13 (2015) 61 Cal.4th 788 (Banks), special circumstances felony murder under section 190.2, subdivision (d) “imposes both a special acts reus 14 requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life.” (Banks, supra, at 15 p. 798.) 16 To be a major participant, the “defendant's personal involvement 17 must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder.” (Banks, supra, 61 Cal.4th at 18 p. 802.) In assessing a defendant's role, the following factors may be utilized: “What role did the defendant have in planning the criminal 19 enterprise that led to one or more deaths? What role did the defendant 20 have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the 21 crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in 22 a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did 23 the defendant do after lethal force was used?” (Id. at p. 803.) 24 These factors are not necessarily determinative, but are meant to 25 inform the court's decision. (See Banks, supra, 61 Cal.4th at p. 803 [noting “[n]o one of these considerations is necessary, nor is any one 26 of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant's participation ‘in 27 criminal activities known to carry a grave risk of death’ [citation] 28 was sufficiently significant to be considered ‘major’ [citations]”].) 12 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 13 of 56

1 In assessing the mental requirement, the court “look[s] to whether a defendant has ‘“knowingly engag[ed] in criminal activities known to 2 carry a grave risk of death.”’” (Banks, supra, 61 Cal.4th at p. 801 3 [citing People v. Estrada, supra, 11 Cal.5th at p. 577; Tison v. Arizona (1987) 481 U.S. 137, 157 [95 L.Ed.2d 127, 144]].) “The 4 defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating 5 reckless indifference to the significant risk of death his or her actions create.” (Banks, supra, at p. 801.) Notably, “[a]wareness of no more 6 than the foreseeable risk of death inherent in any armed crime is 7 insufficient; only knowingly creating a ‘grave risk of death’ satisfies the constitutional minimum.” (Banks, supra, 61 Cal.4th at p. 808.) It 8 is also not enough to be a major participant in a crime listed under section 189. (Id. at p. 810 [“[w]hether a category of crimes is 9 sufficiently dangerous to warrant felony-murder treatment, and whether an individual participant has acted with reckless indifference 10 to human life, are different inquiries”].) 11 In People v. Clark (2016) 63 Cal.4th 522 (Clark), the California 12 Supreme Court considered whether a defendant who planned an armed robbery had the requisite mental state for the reckless 13 indifference to human life special circumstance of felony murder. (Id. at pp. 614–623.) Relying on the seminal Supreme Court of the 14 United States decision, Tison v. Arizona, supra, 481 U.S. 137, it 15 noted that whether a defendant has acted with reckless indifference has both an objective and subjective component. (Clark, supra, 63 16 Cal.4th at p. 617.) “The subjective element is the defendant's conscious disregard of risks known to him or her[,]” while the 17 objective element asks “what ‘a law-abiding person would observe in the actor's situation.’ [Citation.]” (Ibid.) 18 “When reviewing a challenge to the sufficiency of the evidence, we 19 ask ‘“whether, after viewing the evidence in the light most favorable 20 to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ 21 [Citations.]” (Banks, supra, 61 Cal.4th at p. 804, original italics.) “Because the sufficiency of the evidence is ultimately a legal 22 question, we must examine the record independently for ‘“substantial 23 evidence—that is, evidence which is reasonable, credible, and of solid value”’ that would support a finding beyond a reasonable doubt. 24 [Citation.] These same standards apply to challenges to the evidence underlying a true finding on a special circumstance. [Citation].” 25 (Ibid.) 26 Whether substantial evidence supports a finding of reckless indifference to human life is a case specific inquiry for which there 27 is no magic formula. Rather, we look at the totality of the 28 circumstances to determine whether there is substantial evidence 13 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 14 of 56

1 Costa “‘“knowingly engag[ed] in criminal activities known to carry a grave risk of death.”’” (Banks, supra, 61 Cal.4th at p. 801; In re 2 Loza (2017) 10 Cal.App.5th 38, 55 [the totality of the circumstances 3 supported the reckless inference finding].)

4 Here, we hold substantial evidence supports the jury's determination that Costa acted with reckless indifference to human life. 5 The evidence showed that Costa lured Hiter—a drug dealer who she 6 believed had sold her inferior methamphetamine—to her home in the dead of night to be robbed by Doria, another drug dealer, who she 7 believed had the mentality of a child and was “fuckin' crazy.” That 8 Costa recruited Doria to rob Hiter suggests that she knew Doria was capable of violence. We note that, as a matter of common sense, 9 taking money and drugs from a drug dealer is an inherently dangerous activity. 10 Here, the record shows both Doria and Hiter used and sold drugs and 11 Costa knew that. Moreover, Doria was a dangerous person, who 12 carried a gun at all times. He was known in his circle of acquaintances, of which Costa was one, to at least claim to have used 13 a firearm to rob people, was known to have been previously involved in a shootout while robbing a dealer, and was known as a person 14 considered capable of murder. 15 Costa's own son harbored concerns about Doria's violent tendencies and the danger he posed to Costa, which one can reasonably infer he 16 expressed to his mother, further supporting Costa's subjective 17 awareness of the risk incurred by enlisting Doria to rob Hiter.

18 Costa's awareness of the heightened potential for grave danger during the robbery may also be inferred from Costa texting her friend 19 not come to Costa's house shortly before the botched robbery, arguably to keep the friend safe and avoid witnesses to the crime. 20 That Hiter would not be a passive victim and was capable of 21 defending himself from an armed assailant may be inferred from his apathy concerning a warning that Doria might try to rob him if he 22 flashed money in front of him again. All of these factors notwithstanding, Costa arranged the robbery for her own purposes 23 and participated in it knowing she was bringing together two violent drug dealers who were quite likely armed with firearms. 24

25 In light of all these facts and circumstances and the reasonable inferences that can be drawn therefrom, there is substantial evidence 26 in the record to support the jury's ultimate finding that objectively the robbery Costa orchestrated posed a grave risk of death and that 27 subjectively she was aware that her active participation, indeed her organization, of the robbery of Hiter, posed a grave risk of his death 28 14 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 15 of 56

1 and, therefore, that she acted with a reckless indifference to human life. 2

3 (People v. Martinez-Costa, slip op. at *11-13.) Applicable Legal Standards 4 The law on sufficiency of the evidence is clearly established by the United States Supreme 5 Court. Pursuant to the United States Supreme Court's holding in Jackson v. Virginia, 443 U.S. 6 307 (1979), the test on habeas review to determine whether a factual finding is fairly supported by 7 the record is “whether, after viewing the evidence in the light most favorable to the prosecution, 8 any rational trier of fact could have found the essential elements of the crime beyond a reasonable 9 doubt.” Jackson, 443 U.S. at 319; see also Lewis v. Jeffers, 497 U.S. 764, 781 (1990). Thus, 10 only if “no rational trier of fact” could have found proof of guilt beyond a reasonable doubt will a 11 petitioner be entitled to habeas relief. Jackson, 443 U.S. at 324. Sufficiency claims are judged by 12 the elements defined by state law. Id. at 324, n. 16. 13 If confronted by a record that supports conflicting inferences, a federal habeas court “must 14 presume–even if it does not affirmatively appear in the record–that the trier of fact resolved any 15 such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326. 16 Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a 17 conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). 18 After the enactment of the AEDPA, a federal habeas court must apply the standards of 19 Jackson with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 20 2005). In applying the AEDPA's deferential standard of review, this court must presume the 21 correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1). 22 In Cavazos v. Smith, 565 U.S. 1 (2011), the United States Supreme Court further 23 explained the highly deferential standard of review in habeas proceedings, by noting that Jackson 24

25 makes clear that it is the responsibility of the jury—not the court— to decide what conclusions should be drawn from evidence admitted 26 at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could 27 have agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence 28 challenge simply because the federal court disagrees with the state 15 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 16 of 56

1 court. The federal court instead may do so only if the state court decision was “objectively unreasonable.” 2 Because rational people can sometimes disagree, the inevitable 3 consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they 4 must nonetheless uphold.

6 Id. at 2.

7 Section 190.2(a)(17) provides that “The penalty for a defendant who is found guilty of

8 murder in the first degree is death or imprisonment in the state prison for life without the

9 possibility of parole if one or more of the following special circumstances has been found under

10 section 1904 to be true: … The murder was committed while the defendant was engaged in, or

11 was an accomplice in, the commission of, attempted commission of, or the immediate flight after

12 committing, or attempting to commit, the following felonies: [¶] (A) Robbery in violation of

13 Section 211 or 212.5.” Subdivision (d) of section 190.2 provides:

14 Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major 15 participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in 16 paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first 17 degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special 18 circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4. 19

20 Relevant Background

21 Counsel for petitioner served a written motion for new trial on May 22, 2014. (LD 1 at

22 34-43.) The People filed a written opposition thereto. (LD 1 at 29-33.) On May 23, 2014, the

23 trial court considered the motion:

24 [DEFENSE COUNSEL] MR. SMITH: I have a motion for new trial pending. 25 THE COURT: Mr. Smith filed a motion for new trial. I believe it 26 was yesterday or the day before. The People have also responded to that motion. They were able to respond to it yesterday, and I have 27 reviewed the motion for new trial, as well as the opposition. 28 Would you like to make any further arguments, Mr. Smith? 16 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 17 of 56

1 MR. SMITH: I think anyone who reviews this case in its totality should be deeply disturbed. This is a case in which the evidence 2 pretty obviously shows that Mr. Doria pulled this thing off for his own purposes, following a plan of action that he has used before. 3 There’s no - - no evidence that Ms. Martinez-Costa was gonna be cut 4 in on any of the benefits for Mr. Doria’s robbery, and there’s no actual evidence that she knew in advance that there was going to be 5 a robbery.

6 Two other females were involved, Angela Law, who went along and acted as a lookout, and Breaonna Nunes, who was surprisingly with 7 Mr. Hiter when she showed up - - when he showed up on Bell Avenue, and who, instead of calling 9-1-1 at any time, fled with his 8 car and his money and his dope.

9 Apparently the reason that Ms. Martinez-Costa was selected to be the person who was prosecuted in this case has nothing to do with the 10 fact that she was the older of three.

11 I find the detective’s assertion that he excused Ms. Nunes from any responsibility for this because he thought she was acting like a victim 12 to be beyond ludicrous and unworthy of anything that would call itself a system of justice. 13 In any event, what we are left with is the evidence, and that evidence 14 is based on some inferences drawn from rumors and speculation that “carabine” the thought that she had reached a conclusion that Ms. 15 Martinez-Costa somehow had something to do with this because of a comment she allegedly made the preceding summer, expressing 16 anger and frustration about the quality of some dope.

17 As has been pointed out, subsequent to that, Mr. Hiter bailed Ms. Martinez-Costa out of a financial jam, and there was no evidence that 18 she had any murderous grudge against him that carried on after that.

19 The evidence is suspicion at most. It’s circumstantial, and what it lacks is any scintilla of concrete evidence showing that Ms. 20 Martinez-Costa was in on a robbery plot. Had there been a single text message saying something like well, you know, when do I get 21 my cut, or how much do I get, are you gonna bring a gun, any - - anything like that, then I would have nothing to talk about, but there’s 22 [no] such evidence in this case.

23 And that leaves us in the position that’s - - suspicion is not evidence. This case is based on suspicion and it is not founded on solid 24 substantial evidence that should be present to impose the kind of penalties that are at issue in this case. 25 Subsidiary to this is the Widget-stamping approach to the special 26 circumstance allegation, which has been used, as it is so often, to just say that anybody who is - - has liability for an underlying felony, 27 whether or not they were an active participant, whether or not they had a subjective awareness that the actual conduct in the case pos[]ed 28 disregard for human life is just automatically sent down the tubes for 17 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 18 of 56

1 the extreme penalty just based on their aiding and abetting liability.

2 I think the special circumstance is intended to mean more than that. The facts of the Tyson and the Estrada cases suggest very directly 3 what that “something more” would consist of.

4 There’s no evidence of a subjective intent to kill or a subjective disregard for human life because she wasn’t physically a participant 5 in the events that led to Mr. Hiter’s death.

6 I would ask that a new trial be granted.

7 THE COURT: Ms. Park, would you like to be heard?

8 [PROSECUTOR] PARK: To say that Ms. Cleo Costa was not a major participant in this case would be to ignore all the cell phone 9 evidence.

10 All of the cell phone evidence shows is that the only contact Mr. Hiter had was with Ms. Costa. Immediately thereafter, after she has 11 contact either by text message or by telephone, she immediately contacts Mr. Doria. We went over so many cell phone records that 12 went one right after the other. The connection was with Ms. Costa and … Mr. Hiter. Then Ms. Costa with Mr. Doria. 13 To say that she didn’t know that there was a robbery when Mr. Doria 14 and Ms. Law are casing his apartment is lacking any shred of common sense. This occurs about 3:00 in the morning that she is, 15 quote, blowing up Mr. Hiter’s phone to get him to the Bell Avenue address. 16 There are so many prongs that I have already put in my motion that 17 Mr. Doria would not have known without Ms. Costa’s knowledge, and I don’t feel that she was simply an aider and abettor, she was the 18 major participant. She’s the one who set this entire - - all of the things that happened in motion. 19 Had she not been part of this case, how would Mr. Doria even know 20 where Mr. Hiter lived?

21 How would Mr. Doria know when to come to the Bell Avenue address? 22 She set this entire thing up. She’s the one who lured Mr. Hiter to that 23 address.

24 To say in - - quoting Mr. Smith, that she was a hapless woman who was drawn into Mr. Doria’s robbery plot is very inconsistent with the 25 evidence that we heard.

26 She’s the one who set this in motion. She is the most - - in my view, the most culpable in this case. 27 I agree that Mr. Doria is the one who actually pulled the trigger, but 28 had Mr. - - Ms. Costa not been involved in this case, we would never 18 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 19 of 56

1 be here.

2 So I very much disagree with Mr. Smith’s assertion of the facts.

3 Ms. Bain’s portion of this trial was very small. I don’t feel, as Mr. Smith put it in his motion, that she was the linchpin in this case. I 4 very much disagree.

5 The cell phone evidence, her own statements, her lack of reaction when somebody she claims to have had a loving relationship with is 6 very telling. There’s nothing about her crying or being upset. She, in fact, denies even knowing Mr. Hiter until she’s called on it by the 7 detectives in this case.

8 She is a major participant. She was convicted based on her own words, the cell phone records and the testimony of Ms. Nunes and 9 Ms. Law.

10 And I would submit it on that.

11 MR. SMITH: Counsel’s argument makes my point regarding the special circumstance, which is that you need more. Just being an 12 aider and abettor to a robbery means subjective awareness, participation in the actual conduct that causes death, and that’s 13 what’s missing in this case as far as the special circumstance goes.

14 THE COURT: The Court has considered the arguments of counsel and the case law in this area. 15 Mr. Smith’s argument that there is insubstantial evidence to support 16 a special circumstance murder conviction does not, frankly, comport with the evidence that the Court heard in this case. 17 And your motion for new trial based on that is denied. 18 The jury clearly found beyond a reasonable doubt that there was 19 evidence to support the special circumstance murder, and I have to agree from what I heard in this case, there was overwhelming 20 evidence, really, that Ms. Martinez-Costa is the one who set up this robbery, and without Ms. Martinez-Costa, Mr. Hiter would be alive 21 today. I have no doubt based on what I heard in this case.

22 (LD 9 at 222-27.)

23 Analysis

24 As stated by the state appellate court, in order to prove an aider and abettor guilty of the

25 felony murder special circumstance, “the prosecution must show that the aider and abettor had

26 intent to kill or acted with reckless indifference to human life while acting as a major participant

27 in the underlying felony.” § 190.2(c), (d) (italics added). To be a major participant, the aider and

28 abettor must be a noticeable or conspicuous member, one of the larger or more important 19 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 20 of 56

1 members of a kind or group. People v. Proby, 60 Cal.App.4th 922, 931 (1998). To harbor

2 “reckless indifference to human life,” the prosecution must show that the defendant has a

3 “subjective awareness of the grave risk to human life created by his or her participation in the

4 underlying felony.” People v. Estrada, 11 Cal.4th 568, 578 (1995); People v. Proby, at 928.

5 In this case, the state court reasonably determined that petitioner was a major participant.

6 The California Supreme Court has enumerated five factors relevant to determining whether an

7 individual is a major participant in a crime: (1) what role the individual had in planning the

8 criminal plot that led to the death; (2) what role the individual had in supplying or using lethal

9 weapons; (3) the awareness the individual had of particular dangers posed by the nature of the

10 crime, weapons used, or past experience or conduct of the other participants; (4) whether the

11 individual was present at the scene of the killing, in a position to facilitate or prevent the actual

12 murder, and did his or her actions play a particular role in the death; and (5) what the individual

13 did after lethal force was used. People v. Banks, 61 Cal.4th 788, 803 (2015).

14 Following a review of this record, it was not objectively unreasonable for the state

15 appellate court to find there was sufficient evidence to support the jury’s finding that petitioner

16 was a major participant. (See, e.g., LD 6 at 266-68 [Nunes’ testimony concerning calls/texts to

17 victim], 276-78 [Nunes: woman present at scene], 282-85 [Nunes: petitioner woman at scene];

18 LD 7 at 55-57 [Nunes: petitioner present at scene], 89-94 [Law’s testimony concerning Doria’s

19 calls/texts with a woman], 104-06 [Law: petitioner’s voice on calls with Doria], 75-78 [Law:

20 Doria known to carry gun, commit robbery], 133-36 [Law: Doria armed], 176-77 [Bain: does not

21 recall telling detectives victim carried a lot of cash], 178-80 [Bain: testified she did not remember

22 telling detective Doria robbed drug dealers, Doria’s associates were armed & that Doria told her

23 he shot a dealer], 195 [Bain: does not recall petitioner informing her victim had a safe and

24 petitioner intended to take safe], 204-05 [Ballejos’ testimony concerning text from petitioner to

25 stay away], 223 [Detective Johnson’s testimony petitioner was present at scene, in home], 223-25

26 [Johnson: petitioner called 911 to report hit and run], 231-36 [Johnson: petitioner’s cell used to

27 place 911 call], 264-74 [Johnson: cell phone records], 277-79 [Johnson: various texts involving

28 petitioner, victim, Doria, Ballejos], 304-08 [Johnson: additional text messages], 281-12 [Johnson: 20 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 21 of 56

1 testimony re cell phone tower pings for Nunes, victim, Law & Doria], 312-13 [Johnson:

2 petitioner’s physical phone never found], 326 [Johnson: during interview, Law said she observed

3 Doria with gun]; LD 8 at 42-43 [Johnson: during interview, Law said she’d seen Doria with a

4 “tweaker type ski mask”] 5, 67 [Detective McCoy’s interview with Bain played], 78 [McCoy:

5 testimony concerning 911 call by petitioner], 79 & 119 [McCoy: asked petitioner to bring cell

6 with her to police department; she declined], 80-83 & 100 [McCoy: petitioner’s phone not found],

7 102 [McCoy: petitioner provided inaccurate phone number], 109 & 135 [McCoy: Law

8 interviewed and said Doria advised petitioner set up crime], 151 [McCoy: in interview, Law said

9 Doria always armed], 152 [McCoy: Law’s statements re conversation between Doria and

10 petitioner], 153 [McCoy: in interview, Law said Doria left ignition running, lights off, wearing

11 gloves, took off on bike, returned asking if she’d heard, didn’t know if shot once or twice, gun

12 jammed], 158-65 & 171 [Collins’ testimony re Bain’s comments about knowing who murdered

13 victim, robbery gone bad], 181-86 [Officer Tennis: petitioner’s statements to him at scene], 203

14 (McElroy admits she told detective she did not have phone number for Doria].) 6

15 The state court also reasonably determined that petitioner acted with reckless indifference

16 to human life. Reckless indifference to human life “encompasses a willingness to kill (or to assist

17 another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that

18 death as the outcome of his actions.” People v. Clark, 63 Cal. 4th 522, 617 (2016). It requires a

19 subjective component, which is the individual's “conscious disregard of risks known to him or

20 her,” and an objective component, which considers “what a law-abiding person would observe in

21 the actor's situation.” Id. (internal quotation marks & citations omitted). Similar to the major

22 participant element, the California Supreme Court has enumerated five factors relevant to a

23 determination of whether an individual acted with reckless indifference to human life: (1)

24 knowledge and use of weapons; (2) physical presence at the crime and opportunity to prevent the

25 crime or aid the victim; (3) duration of the crime; (4) knowledge of the likelihood of killing; and

26 5 See also ECF No. 16-3 at 62-66 (Detective Shrum: black ski mask located during search of 27 Doria’s home).

28 6 See also ECF No. 16-3 at 23-24, 34-35. 21 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 22 of 56

1 (5) efforts to minimize the risks of the violence during the crime. Id. at 618-23.

2 Following a review of the record, the state appellate court’s finding that petitioner acted

3 with reckless indifference to human life was not objectively unreasonable. (See, e.g., LD 6 at

4 266-68 [Nunes’ testimony concerning calls/texts to victim], 276-78 [Nunes: woman present at

5 scene], 282-85 [Nunes: petitioner woman at scene]; LD 7 at 55-57 [Nunes: petitioner present at

6 scene], 223 [Detective Johnson’s testimony petitioner was present at scene, in home], 223-25

7 [Johnson: petitioner called 911 to report hit and run], 231-36 [Johnson: petitioner’s cell used to

8 place 911 call], 326 [Johnson: during interview, Law said she observed Doria with gun]; LD 8 at

9 78 [Detective McCoy’s testimony concerning 911 call by petitioner], 151 [McCoy: in interview,

10 Law said Doria always armed], 181-86 [Officer Tennis: petitioner’s statements to him at scene];

11 ECF No. 16-3 at 68 & 70 [Shrum: during search of petitioner’s home, operational surveillance

12 camera connected to live feed monitor in southwest bedroom].)

13 “[I]t is the responsibility of the jury - not the [habeas] court - to decide what conclusions

14 should be drawn from evidence admitted at trial” (Cavazos, 565 U.S. at 2), and that the

15 undersigned “must presume—even if it does not affirmatively appear in the record—that the trier

16 of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.”

17 Jackson, 443 U.S. at 326; see also Cudjo v. Ayers, 698 F.3d 752, 763 (9th Cir. 2012) (“Supreme

18 Court precedent makes clear that questions of credibility are for the jury to decide”). From this

19 record, it is readily discerned the jury resolved any conflicts in testimony in favor of the

20 prosecution.

21 With specific regard to petitioner’s argument that she did not fail to render aid to the

22 victim, that, rather, she called 911 and performed CPR, the undersigned notes the jury was free to

23 disbelieve petitioner’s statements. The jury may have believed petitioner’s actions were merely

24 an attempt to distance herself and evade responsibility. The record establishes petitioner’s 911

25 call was played for the jury (LD 8 at 78) and it was for the jury to determine, in light of other

26 evidence – including, e.g., evidence from which it can be inferred petitioner delayed calling 911

28 // 22 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 23 of 56

1 (see LD 7 at 205-09, 279 [six-minute gap], 295; LD 8 at 173-78) 7 - whether petitioner rendered

2 aid to the victim. Notably too, this record reflects the issue of petitioner’s 911 call was a subject

3 of closing arguments. (Cf. LD 9 at 173-74 [defense closing argument: petitioner “called 911 and

4 tried to give C.P.R.” “Listen to the emotion in her voice. That’s no B.S. She’s - - she’s not, you

5 know, a trained actress. And I don’t think even Meryl Streep could have shown the same - - same

6 genuine emotion and the genuine horror that she showed when she was on the phone, saw what - -

7 what was happening, realized that it was Jimmy Hiter”] to 186 [rebuttal argument: “Mr. Smith

8 characterize[s] her call to 911 as emotional. Listen to that call. It’s hardly emotional”] & 189-90

9 [rebuttal argument: “Miss Costa did call 911. But think about it. She wanted to do it first. But

10 her first concern was to try to get Mr. Hiter’s body out of the road that’s why she called 911, and

11 that’s why she told the operator that it was a hit and run”].)

12 Given this court's need to afford the state court the additional layer of deference required

13 by Juan H., 408 F.3d at 1274, and also to presume the correctness of the state court's factual

14 findings under 28 U.S.C. § 2254(e)(1), the undersigned finds petitioner's contention that the

15 evidence of her reckless indifference was constitutionally deficient to be wholly unpersuasive.

16 Under Juan H., the AEDPA only requires that this court decide whether the Third District Court

17 of Appeal's decision was contrary to or an unreasonable application of clearly established federal

18 law, i.e., whether the adjudication of sufficient evidence under Jackson was objectively

19 unreasonable or whether “fairminded jurists” could disagree about the conclusion. Wiggins v.

20 Smith, 539 U.S. at 511; Richter, 562 U.S. at 101. It was not objectively unreasonable. Nor did

21 the state court’s adjudication involve an unreasonable application of the facts. 28 U.S.C.

22 § 2254(d). For the reasons discussed above, the undersigned concludes that the state court's

23 adjudication was objectively reasonable. Therefore, it is recommended petitioner’s first claim be

24 denied.

26 7 27 The jury also heard Nunes’ testimony that petitioner asked her to help move the victim’s body; Nunes thought petitioner wanted to dispose of body. (See LD 6 at 292-93, 301-02, 324; LD 7 at 28 33, 58-59.) 23 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 24 of 56

1 B. Third Party Culpability Evidence

2 Petitioner claims the trial court erroneously excluded third party culpability evidence in

3 violation of her constitutional rights to present a defense. (ECF No. 1 at 8-9; ECF No. 15 at 20-

4 25.) Respondent contends the claim is procedurally barred, and in any event, the state court’s

5 rejection of the claim was reasonable. (ECF No. 13 at 27-33.)

6 Initially, the undersigned addresses respondent’s assertion of a procedural bar. Generally,

7 “[a] federal habeas court will not review a claim rejected by a state court ‘if the decision of [the

8 state] court rests on a state law ground that is independent of the federal question and adequate to

9 support the judgment.’” Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting Beard v. Kindler,

10 558 U.S. 53, 55 (2009)). However, a reviewing court need not invariably resolve the question of

11 procedural default prior to ruling on the merits of a claim. Lambrix v. Singletary, 520 U.S. 518,

12 524-25 (1997); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“Procedural

13 bar issues are not infrequently more complex than the merits issues presented by the appeal, so it

14 may well make sense in some instances to proceed to the merits if the result will be the same”);

15 Busby v. Dretke, 359 F.3d 708, 720 (5th Cir. 2004) (noting that although the question of

16 procedural default should ordinarily be considered first, a reviewing court need not do so

17 invariably, especially when the issue turns on difficult questions of state law). Where deciding

18 the merits of a claim proves to be less complicated and less time-consuming than adjudicating the

19 issue of procedural default, a court may exercise discretion in its management of the case to reject

20 the claim on the merits and forgo an analysis of procedural default. Franklin, 290 F.3d at 1232

21 (citing Lambrix, 520 U.S. at 525). In the interests of judicial economy, the undersigned elects to

22 forego an analysis of procedural default in favor of a merits analysis.

23 The last reasoned rejection of petitioner’s claim is the decision of the California Court of

24 Appeal for the Third Appellate District on petitioner’s direct appeal. The state court addressed

25 this claim as follows:

28 24 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 25 of 56

1 Evidence of Third-Party Culpability 2 Doria argues the trial court abused its discretion in excluding evidence that witness Angela Law “was linked to another potential 3 suspect in the Hiter shooting” and that this exclusion violated his 4 federal due process right to present a defense.

5 Costa attempts to join this challenge on appeal, but she has forfeited the issue because she did not preserve it in the trial court. Doria raised 6 the issue twice in the trial court, but Costa's attorney failed to join Doria's argument and stated on the record, “I'm staying out of this,” 7 and that it was “their issue.” (See People v. Panah (2005) 35 Cal.4th 8 395, 481 [“Since defendant did not seek admission of the testimony as third party culpability evidence, he forfeited any claim that it was 9 improperly excluded for that purpose”].)

10 “‘We repeatedly have indicated that, to be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate 11 that a reasonable doubt exists concerning his or her guilt, must link 12 the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to 13 such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is 14 substantially more prejudicial than probative under Evidence Code section 352. [Citations.]’ [Citation.] 15 “In People v. Hall (1986) 41 Cal.3d 826 [Hall], we held that ‘the 16 third-party evidence need not show “substantial proof of a 17 probability” that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt.’ (Id. at p. 18 833.) ‘Our holding [in Hall] did not, however, require the indiscriminate admission of any evidence offered to prove third- 19 party culpability. The evidence must meet minimum standards of relevance: “evidence of mere motive or opportunity to commit the 20 crime in another person, without more, will not suffice to raise a 21 reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual 22 perpetration of the crime.” (Hall, supra, 41 Cal.3d at p. 833.) We also reaffirmed that such evidence is subject to exclusion under Evidence 23 Code section 352. [Citation.]’ (People v. Edelbacher[ (1989) ] 47 24 Cal.3d 983, 1017.)” (People v. McWhorter (2009) 47 Cal.4th 318, 367–368.) 25 A trial court's ruling on third party culpability evidence is reviewed 26 for an abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1242 (Prince).) 27 Here, as previously set forth, the trial court allowed the admission of 28 25 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 26 of 56

1 recorded statements of Nunes which, at least in part, suggested that she may have believed at one point that an individual known as 2 Chaos killed Hiter. Doria complains the trial court should have gone 3 further; that the trial court abused its discretion when it refused to also admit testimony that would link Chaos to Law because they 4 were seen together some months after the murder.

5 The trial court excluded this testimony, noting, “There is really not [sic] other evidence that I can see in here in any significant way links 6 [Chaos] to this case or to this crime. He hasn't been placed at the scene, near the scene. [¶] The most is that—the closest he can get to 7 the case is that [Chaos] apparently knew one of the other people in 8 this case, Miss Crystal—no, I'm sorry, Miss Law, whose name apparently was Crystal. [¶] That part I think is too tentative, and I 9 have excluded that as being irrelevant just because months after the crime she was—when she was arrested, she was found in his 10 presence. I don't think there is any probative aspect to that and I have 11 excluded that under 352 ....”

12 The trial court did not abuse its discretion when it excluded the proffered testimony as irrelevant and as not sufficiently probative of 13 third party culpability.

14 Whether Law may have been in the same place as Chaos when she was arrested by authorities months after the murder is not capable of 15 raising a reasonable doubt as to Doria's guilt for Hiter's killing. As 16 the trial court found, this proposed testimony was not probative. It was simply irrelevant. (People v. Brady (2010) 50 Cal.4th 547, 558 17 [“to be relevant, the evidence must link this third person to the actual commission of the crime”].) 18 Further, assuming some marginal relevancy, the trial court properly 19 exercised its discretion in excluding it under Evidence Code section 352 and the rationale of Hall recognizing “we do not require that any 20 evidence, however remote, must be admitted to show a third party's 21 possible culpability.” (Hall, supra, 41 Cal.3d at p. 833.) The remoteness of Law's association with Chaos and the import of that 22 later association, without more—and Doria did not offer more—had the potential for simply confusing the issues and misleading the jury 23 which potential far outweighed what little probative value the 24 evidence may have had. (See People v. Linton (2013) 56 Cal.4th 1146, 1183 [upholding exclusion of “‘highly speculative’” expert 25 testimony under Evid. Code, § 352]; People v. Stitely (2005) 35 Cal.4th 514, 549–550 [upholding exclusion of evidence that could 26 lead to speculative inferences].) 27 Finally, as recognized by the California Supreme Court in Hall and Prince, the exclusion of third party evidence through application of 28 26 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 27 of 56

1 the ordinary rules of evidence does not violate a defendant's constitutional right to present a defense. (Prince, supra, 40 Cal.4th 2 at p. 1243; Hall, supra, 41 Cal.3d at pp. 834–835 [exclusion of third 3 party culpability evidence under Evid. Code, § 352 does not violate federal due process].) 4

5 (People v. Martinez-Costa, slip op. at *5-7.) 6 Applicable Legal Standards

7 Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in

8 the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution

9 guarantees criminal defendants “a meaningful opportunity to present a complete defense” and the

10 right to present relevant evidence in their own defense. Holmes v. South Carolina, 547 U.S. 319,

11 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)).

12 However, the United States Supreme Court has not “squarely addressed” whether a state

13 court's exercise of discretion to exclude testimony violates a criminal defendant's right to present

14 relevant evidence. Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009). Nor has the Supreme

15 Court clearly established a “controlling legal standard” for evaluating discretionary decisions to

16 exclude the type of evidence at issue here. Id. at 758.

17 Evidence of potential third-party culpability must be admitted when, under the “facts and

18 circumstances” of the individual case, its exclusion would deprive the defendant of a fair trial.

19 Thus, in Chambers v. Mississippi, 410 U.S. 284, 303 (1973), exclusion of evidence of a third-

20 party confession was found to violate due process where the excluded evidence was highly

21 corroborated, and the excluded testimony was crucial to the defense. Likewise, in Lunbery v.

22 Hornbeak, 605 F.3d 754, 760-61 (9th Cir. 2010), the exclusion of a statement by a third-party that

23 he had killed defendant's husband deprived defendant of the right to present a defense because the

24 “excluded testimony ... bore substantial guarantees of trustworthiness and was critical to

25 [defendant's] defense.” Conversely, where the proffered evidence of third-party culpability

26 simply affords a possible ground of suspicion pointing to a third-party and does not directly

27 connect that person with the actual commission of the crime, that evidence may be properly

28 excluded. People of Territory of Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993) (citing Perry 27 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 28 of 56

1 v. Rushen, 713 F.2d 1447, 1449 (9th Cir. 1983)).

2 “A defendant’s right to present relevant evidence is not unlimited, but rather is subject to

3 reasonable restrictions,” such as evidentiary and procedural rules. United States v. Scheffer, 523

4 U.S. 303, 308 (1998). In fact, “state and federal rulemakers have broad latitude under the

5 Constitution to establish rules excluding evidence from criminal trials,” id., and the Supreme

6 Court has indicated its approval of “well-established rules of evidence [that] permit trial judges to

7 exclude evidence if its probative value is outweighed by certain other factors such as unfair

8 prejudice, confusion of the issues, or potential to mislead the jury,” Holmes v. South Carolina,

9 547 U.S. at 326. Evidentiary rules do not violate a defendant’s constitutional rights unless they

10 “infring[e] upon a weighty interest of the accused and are arbitrary or disproportionate to the

11 purposes they are designed to serve.” Id. at 324 (alteration in original) (internal quotation marks

12 omitted); see also Scheffer, 523 U.S. at 315 (explaining that the exclusion of evidence pursuant to

13 a state evidentiary rule is unconstitutional only where it “significantly undermined fundamental

14 elements of the accused’s defense”). In general, it has taken “unusually compelling

15 circumstances . . . to outweigh the strong state interest in administration of its trials.” Perry v.

16 Rushen, 713 F.2d at 1452.

17 Relevant Background

18 The trial court first considered the prosecution’s motion in limine concerning third party

19 culpability evidence on April 2, 2014. (LD 6 at 44; see also LD 1 at 243-66.) Specifically, as to

20 Jason Winn, aka Chaos, 8 the court heard argument from the parties and ultimately determined

21 Nunes’ statements concerning Chaos being the shooter based on “a white voice, whatever that is,

22 and had a higher pitched voice than the detective,” were “far too speculative.” (LD 6 at 64-76.)

23 The issue arose again on April 8, 2014, following selection and swearing in of the jury and

24 alternates (LD 6 at 200-03):

26 8 Doria’s defense counsel also initially sought to proffer third party culpability evidence in the 27 form of an admission by “Mr. Silva” and a possible admission by “Insanity,” an individual whom counsel had thus far been unable to identify or locate. No further references to these individuals 28 as culpable third parties appear in the record. 28 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 29 of 56

1 [CO-DEFENDANT’S COUNSEL] MR. ORTIZ: Judge, I think the issue is regarding the voice of the shooter. 2 As I argued in limine, our -- - one of our defenses is that it’s maybe 3 this Chaos person who was responsible for the shooting.

4 At one point Miss Nunes thought it could be him or might be him. He fits the description of what Miss Nunes said that the person 5 physically was like, tall, skinny, white.

6 THE COURT: But there is some ambiguity in the statement that she’s given - - 7 MR. ORTIZ: Correct. 8 THE COURT: - - as to whether or not she can say that voice was - - 9 whether she’s saying that voice was Chaos or that voice just was similar to his - - shared some qualities. 10 MR. ORTIZ: Right. 11 THE COURT: In other words, it was a distinctive voice but we don’t 12 know what she meant by that.

13 MR. ORTIZ: Right.

14 And I would like some leeway, at leas[t] initially, as to why she said Chaos in the first place. 15 The reason is - - is this. When you read through the transcript and 16 you watch the interviews, my review of the first interview, there is no mention of a - - a Chaos. 17 In the second interview, that’s when she raises the question of oh, for 18 the first time based on my review of the transcripts and watching the interviews. But the way she brings it up is I told you about Chaos. 19 Now, I’m second-guessing myself.

20 I don’t find that anywhere in the prior statements where she told them that - - that it was Chaos. I don’t know if it happened outside the 21 interview room with the officers or what. So I would like to be able to ask her about that. 22 THE COURT: Okay. And can someone remind me again? What is 23 this person named Chaos, what is his relationship to other people in this case? What’s his - - what’s his - - do we know his actual name 24 or - -

25 MR. ORTIZ: Yeah. Justin. I have it in my - - Justin Winn.

26 THE COURT: Winn, W-i-n-n. Winn?

27 MR. ORTIZ: Correct.

28 THE COURT: Okay. And he’s related to someone in this case as a 29 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 30 of 56

1 friend or as a boyfriend.

2 MR. ORTIZ: They all know each other. As you will see during the - - through the trial, all these people are connected and - - and she’s 3 met him a couple times. She’s given statements as to when she met him and how many times but - - 4 THE COURT: Okay. 5 MR. ORTIZ: That he’s just part of this group. 6 THE COURT: Miss Park, is it your understanding that Mr. Ortiz is 7 calling this witness direct exam or did you want to call this witness to begin direct? 8 [PROSECUTOR]: I would like - - like to call the witness, your 9 Honor.

10 THE COURT: Is she here?

11 [PROSECUTOR]: Yes.

12 (LD 6 at 203-06.) Breonna Nunes then testified during a California Evidence Code section 402

13 hearing. (LD 6 at 207-23.) Specifically, during direct examination regarding her comments to

14 detectives about Chaos, Nunes testified that during her first interview with detectives she

15 indicated she “heard the shooter’s voice” (LD 6 at 207); during a subsequent interview she recalls

16 “the name Chaos” arose (LD 6 at 208). Nunes testified she had met Chaos “a few times” (LD 6 at

17 208), perhaps only once prior to the victim’s death (LD 6 at 209), that he was not a close friend

18 (id.), that she’d heard people talk about him (id.); people told her Chaos “just doesn’t care. That

19 he’s just crazy like off the hook, you know, um, yeah.” (Id.) Nunes acknowledged telling

20 Detective Johnson that Chaos may have been the shooter; asked why, Nunes replied, “Because

21 that’s just what I was hearing.” (LD 6 at 209-10.) She continued, “Yeah. And then I was just

22 assuming I guess, maybe believing what I was hearing but --.” (LD 6 at 210.) Nunes “threw out

23 the name Chaos” as a combination of what people had told her and assumptions she herself made.

24 (Id.) She acknowledged that she eventually told the detective she did not even know why she

25 “threw out the name Chaos.” (Id.)

26 During cross-examination, Nunes admitted telling detectives that she was “second-

27 guessing” herself regarding Chaos. (LD 6 at 212-13.) During testimony regarding the shooter’s

28 description, Nunes testified that she “assumed that the shooter was white because more of his 30 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 31 of 56

1 voice” and acknowledged telling the detectives she knew the shooter was white “’cuz of his

2 mouth through the mask” and his voice, that “his voice wasn’t ghetto.” (LD 6 at 215-16.) Nunes

3 recalled saying Chaos had a “[h]igh pitch” voice, and “really distinctive.” (LD 6 at 216.) When

4 asked “that’s one of the reasons why you thought it was Chaos, right, because of this voice that

5 you recognized? [¶] Isn’t that right, what you thought at the time at least,” Nunes replied, “Not

6 necessarily.” (LD 6 at 216.) Asked again, Nunes testified, “The voice, yes.” When asked if the

7 shooter’s voice “sounded like Chaos’s voice,” Nunes stated, “Everyone, maybe Chaos, not - - I

8 guess, yes.” (LD 6 at 217.) Nunes indicated she had seen Chaos in the company of a “girl” once

9 since the shooting. (LD 6 at 217-18.) The trial court clarified with the witness that she had

10 spoken with Chaos once prior to the shooting; she had heard him speak “a few times, just like

11 over the phone and stuff like that, around people.” (LD 2 at 218.) Nunes thought she could

12 recognize his voice. (Id.) When asked by the trial court whether in Nunes’s opinion the voice

13 she heard the night of the shooting was Chaos, she replied “No” and “No, I don’t - - I don’t think,

14 no.” (LD 6 at 219.) Asked what she could say today about the shooter’s voice, Nunes stated she

15 “believe[d] it was a white guy” “’cuz it didn’t - - like I said it didn’t sound like ghetto or anything

16 like that you know.” (Id.) Asked again by the trial court whether she recognized “the voice of

17 the shooter,” Nunes replied, “Today, no. No. I - - I - - I - - I don’t.” (Id.)

18 The parties continued argument to the court following Nunes’s testimony (LD 6 at 223-

19 28.) The trial court then ruled as follows:

20 THE COURT: All right. I am gonna exclude any questioning of her about Chaos because there are multiple statements she’s given. 21 It does sound to me like ultimately it is so ambiguous is the problem 22 what she said, even - - even if she did. I’m gonna assume for a minute that she told a detective somewhere or some officer that she thought 23 it was Chaos. 24 It must - - based on the statement, December 9th, it sounds like she’s referencing something. And maybe it was a - - while they’re walking 25 to the interview room and so it’s not tape-recorded. I don’t know. 26 But somewhere in there if she’s thinking it’s him, it sounds like because there has been talk or maybe it’s because Chaos is just such 27 a crazy guy that maybe it aroused her suspicion and he’s connected to this group somehow. 28 31 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 32 of 56

1 But - - but let’s assume for a moment she says that. If she’s - - if she then excludes it and says it’s not and gives some reasons why it isn’t, 2 and then later in February talks about it again, February of 2012, talks about it again, and clearly you impeached her with this distinctive 3 voice thing, which is something she is not recalling now as - - as being something that was very distinctive, I still - - I’m trying to take 4 those interviews in - - into - - in - - into account with what she’s saying here today which is really that she didn’t have a very good 5 baseline for even discussing or identifying a voice.

6 I mean, she’s spoken to him only maybe one other time and has heard him speak in front of other people a few times. She doesn’t recall 7 his voice as being particularly distinctive at - - today.

8 I don’t have any other - - you don’t have any other evidence at - - evidence at moment (sic) anyway that I take it that he has a 9 distinctive voice. And distinctive obviously is a relative term. And she is identifying the shooter’s voice as - - as being white, whatever 10 that means.

11 But it sounds like really what that means is she’s only excluding African Americans and maybe people with a heavy accent of some 12 kind.

13 So when I take all that together, it just - - it sounds like ultimately if that goes in front of the []jury, that it is - - it’s ambiguous, it’s 14 confusing. And unless you can tie this up in another way, it is irrelevant. And it seems to me and that’s why I’m gonna exclude it 15 [number] one because it’s not relevant.

16 And two, because even if there was some relevancy at this time, it seems that it is - - it is going to be confusing I think to the jury. It is 17 somewhat of a chasing something down a rabbit hole at the moment because there’s nothing to tie it up for you. 18 And so I’m gonna - - and because it is really third-party culpability 19 that - - you know, that that is the issue. And it has to be - - there has to be some real substantial evidence of it. 20 And at this point you don’t have it. And so that - - that is the main 21 relevancy for which you introduced this to show that maybe it is Chaos was the actual shooter. 22 And if this is the only evidence that you have, and it sounds like that’s 23 all you have at the moment, I don’t think it’s sufficiently relevant or probative to put in front of the jury. 24 And I think it is - - can be prejudicial obviously to the People’s case 25 because there is no other evidence out there about this Chaos at the moment. 26 And so until you can or unless you can present some other 27 information or put some other information together that would point the finger at Mr. Chaos, I am gonna exclude it at this time. 28 32 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 33 of 56

1 I am not precluding it for all time. If you can - - I think it’s - - we can revisit this issue is all I’m going to say. I am not promising that 2 you can get it in. We can revisit this issue if you find some other evidence, if you find Mr. Chaos as to the shooter. 3 MR. ORTIZ: Okay. I just want to clarify what my argument was. 4 THE COURT: Okay. 5 MR. ORTIZ: My argument is you look at the two ends of the 6 spectrum. We have the initial statement by Miss Nunes where she says either it’s Chaos or I think it’s Chaos. 7 And then we fast-forward to February when she’s explaining why 8 that very first time she said it was Chaos, because she’s saying his voice is very distinctive and that’s why I said his name. 9 And then in between there, in between those two dates, she has 10 several interviews and she’s back-tracking. And she’s saying she doesn’t know why and doesn’t know why she’s saying his name. 11 But I think all that is of an effort to protect herself. I - - I think that’s 12 for this jury to decide.

13 All I care about is why she made that first statement. Is if what she is saying I made that first statement because his voice is very 14 distinctive and that’s why I said his name, which is my reading of the transcript, that’s what I want in. Everything else can be used to 15 explain it away.

16 I see this no different really than the argument we had on similar issue regarding Miss Bain. She is saying - - and I know she is more 17 specific there.

18 But part of the problem is, you know, our argument was, you know, she - - and she told us this from her own mouth, this is all rumors and 19 hearing from other people. I never heard any of these things being said. And - - and now that’s being used against us in regard to Miss 20 Nunes.

21 THE COURT: The difference is Miss Bain was unequivocal in her statement to the detectives and then is going to be - - and she’s now 22 saying she either did not say that flat-out or she lied about it when - - when she did say it because she was drug addled, a-d-d-l-e-d, which 23 is very different than what - - what Miss Nunes is testifying to.

24 She’s saying she was ambiguous at the time she was saying it. Sounds like the detective never did really nail her down and say are 25 you saying this is Chaos? And that would have been good if somebody would have said that and that would have clarified that 26 issue.

27 But it sounds like at least from what you’ve read back to me, both of the is - - Miss Park and you both have given me bits and pieces of 28 that transcript. 33 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 34 of 56

1 It sounds like there are hints at it. There are references to it. And then no one ever says to me are you telling me that you recognize 2 this voice and that the shooter was actually Chaos and you know that because he has such a distinctive voice? And her answer being yes, 3 that is what I’m saying. If someone would have done that, we would not be in this position. 4 But sounds like there was just - - it was just so ambiguous, like maybe 5 it was and she’s referring to one of the other people are saying, and so it’s all very ambiguous. 6 And so it is different I think than - - than Miss Bain’s situation. It’s 7 not just direct impeachment of something, and you wanted it some for something that is different. You wanted - - you wanted it in to 8 show that Chaos is the shooter or could possibly be the shooter.

9 And - - and yet it’s so ambiguous that that’s not really what she said clearly, and so it’s not just direct impeachment of that. 10 So unless you have something more substantial, I think under third- 11 party liability law, which is what I think you need, I think you need something more than - - than an ambiguous statement that Chaos has 12 a distinctive voice, and that’s why I was thinking it might be him based on what I heard. 13 Anyway, I think we - - I think you know what I’m saying. I 14 understand what you’re saying. I understand what your argument is, and I think we’ve made a record of it. 15

16 (LD 6 at 228-33.)

17 During trial, Doria’s counsel asked the trial court to reconsider its earlier ruling. (LD 16-3

18 at 73.) The court heard argument from counsel (LD 16-3 at 74-88 [Nunes’s statements and Law

19 being found in Chaos’ presence months after murder]) and ruled Nunes’s statements about Chaos

20 could not come in for purposes of third-party culpability. (LD 16-3 at 88; see also LD 16-4 at 4-

21 14.)

22 Analysis

23 The Third District Court of Appeal’s denial of petitioner’s claim was neither contrary to,

24 nor did it involve an unreasonable application of, Supreme Court precedent.

25 First, the undersigned finds the decision - that the trial court did not violate petitioner's

26 federal constitutional rights by excluding proffered evidence of third-party culpability - is not

27 contrary to or an unreasonable application of clearly established federal law because the Supreme

28 Court has not squarely established precedent on the issue. See Knowles v. Mirzayance, 556 U.S. 34 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 35 of 56

1 111, 122 (2009) (“it is not an unreasonable application of ‘clearly established Federal law’ for a

2 state court to decline to apply a specific legal rule that has not been squarely established by [the

3 United States Supreme Court]”); Wright v. Van Patten, 552 U.S. 120, 126 (2008) (relief is

4 “unauthorized” under § 2254(d)(1) when the Supreme Court's decisions “give no clear answer to

5 the question presented, let alone one in [the petitioner's] favor,” because the state court cannot be

6 said to have unreasonably applied clearly established federal law); Moses v. Payne, 555 F.3d at

7 758-59; Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) (“Between the issuance of Moses and

8 the present, the Supreme Court has not decided any case either ‘squarely address[ing]’ the

9 discretionary exclusion of evidence and the right to present a complete defense or ‘establish[ing]

10 a controlling legal standard’ for evaluating such exclusions”).

11 Even setting aside the issue of clearly established federal law, however, relief is

12 unwarranted.

13 Although the exclusion of trustworthy and necessary exculpatory evidence violates due

14 process, the proffered evidence here was nothing more than speculation; there was no other direct

15 or circumstantial evidence linking Justin Winn aka Chaos to the victim’s murder. As referenced

16 above, this record establishes the evidence proffered by petitioner in support of her third-party

17 culpability claim was speculative and lacking any link to the victim’s murder over and above that

18 speculation and, therefore, not relevant. People of Territory of Guam v. Ignacio, 10 F.3d at 615;

19 United States v. Rubio-Topete, 999 F.2d 1334, 1339-40 (9th Cir. 1993) (defendant not deprived

20 of due process right to present a defense when excluded evidence “was marginally relevant, at

21 best,” and would have added little, if anything, to defendant’s defense). The proffered evidence

22 may have been crucial to the defense in the sense identity of the murderer was key, but the

23 proffers were in no way highly corroborated. Chambers v. Mississippi, 410 U.S. at 303.

24 Other than Nunes’s ambiguous reference to Chaos, there is no other evidence tying Chaos

25 to the victim’s murder. Nor did Law being Chaos’ presence months after the murder connect

26 Chaos to Hiter’s murder. Holmes v. South Carolina, 547 U.S. at 327 (exclusion appropriate

27 where third-party culpability evidence does not sufficiently connect the other person to the

28 crime); United States v. Vallejo, 237 F.3d 1008, 1023 (9th Cir. 2001) (holding that third party 35 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 36 of 56

1 culpability evidence is only admissible if it tends to prove that a person other than the defendant

2 committed the charged crime); Spivey v. Rocha, 194 F.3d 971, 978 (9th Cir. 1999) (“there must

3 be direct or circumstantial evidence linking the third person to the actual perpetration of the

4 crime”). Here, there is simply no connection or link tying Chaos to this crime, nor does the

5 proffered third-party culpability evidence tend to prove a person other than petitioner and Doria

6 committed the murder.

7 The decision of the California Court of Appeal is not “so lacking in justification that there

8 was an error well understood and comprehended in existing law beyond any possibility for

9 fairminded disagreement.” Richter, 562 U.S. at 103. Under the circumstances of this case,

10 petitioner has not met her “heavy” burden to show a due process violation resulting from the trial

11 court's decision to exclude the alleged third-party culpability evidence.

12 Assuming arguendo that the trial court's exclusion of this evidence was constitutional

13 error, the error could not have had a “substantial and injurious effect or influence in determining

14 the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

15 There was significant evidence linking Doria and petitioner to this crime. For example,

16 cell phone records evidence that Doria and Law were present at the victim’s apartment complex

17 when the victim and Nunes drove off in his vehicle prior to his murder. (LD 7 at 264-74, 277-79,

18 288-97, 309.) Those same records place Doria and Law near petitioner’s home just prior to the

19 murder. (LD 7 at 309-11.) Law testified she was with Doria and that Doria asked her to knock

20 on the victim’s door to be sure no one was home. (LD 7 at 80-84, 86-88, 124.) Law heard

21 Doria’s side of a conversation Doria had with a woman concerning the victim’s whereabouts; she

22 recognized the voice as belonging to petitioner. (LD 7 at 89-94, 104-06.) Further, Law testified

23 that Doria parked near petitioner’s home, left the vehicle running with its lights off, took a bike

24 out of the back of the vehicle and then rode off in the direction of petitioner’s home. (LD 7 at 95-

25 99, 132.) Minutes later, Law testified, she heard a gun, and then Doria returned stating the gun

26 jammed; he seemed anxious, and asked whether she’d heard a gunshot. (LD 7 at 101, 113.)

27 Nearby, at about 3:38 a.m., petitioner’s neighbor Gina Ballejos heard a gunshot and called

28 petitioner. (LD 7 at 205-06, 211, 279; LD 8 at 174-76.) Petitioner texted Ballejos “don’t come 36 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 37 of 56

1 over” at about this time. (LD 7 at 278.) Petitioner made a 911 call at 3:46 a.m. reporting a hit

2 and run. (LD 7 at 278, 295; LD 8 at 78.)

3 Other than Nunes’s equivocal statements about Chaos and Law being found in Chaos’

4 presence months after the murder, there is no evidence linking or connecting Chaos to the

5 victim’s murder. There is, however, significant documentary and testimonial evidence linking

6 petitioner and Doria to the murder. The trial court’s exclusion of the proffered third-party

7 culpability evidence, even were it error, would not have had a substantial and injurious effect or

8 influence on the jury’s verdict. Brecht, 507 U.S. at 623.

9 In sum, the state court’s decision was not contrary to, or an unreasonable application of,

10 clearly established Supreme Court authority. 28 U.S.C. § 2254(d). Thus, the undersigned

11 recommends this claim be denied.

12 C. Ineffective Assistance of Counsel

13 Next, petitioner argues her constitutional rights to the effective assistance of counsel were

14 violated on various bases. (ECF No. 1 at 10-14; ECF No. 15 at 25-40.) Respondent counters the

15 state court reasonably denied petitioner’s various ineffective assistance of counsel claims, barring

16 relief in these proceedings. (ECF No. 13 at 33-44.)

17 Petitioner presented her ineffective assistance of counsel claims in a petition for writ of

18 habeas corpus filed with the Sacramento County Superior Court; that court denied the claims in a

19 reasoned decision. (LD 21.) Those same claims were also made in petitions for writ of habeas

20 corpus to the Third District Court of Appeal (LD 22) and California Supreme Court (LD 24); both

21 courts denied the claims (LD 23 & 25).

22 Applicable Legal Standards

23 To prevail on a claim of ineffective assistance of counsel, a petitioner must show that her

24 trial counsel’s performance “fell below an objective standard of reasonableness” and that “there is

25 a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

26 would have been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).

27 Under the first prong of the Strickland test, a petitioner must show that counsel’s conduct

28 failed to meet an objective standard of reasonableness. Strickland, 466 U.S. at 687. There is “a 37 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 38 of 56

1 ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable

2 professional assistance.” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689).

3 Petitioner must rebut this presumption by demonstrating that her counsel’s performance was

4 unreasonable under prevailing professional norms and was not the product of “sound trial

5 strategy.” Strickland, 466 U.S. at 688-89. Judicial scrutiny of defense counsel’s performance is

6 “highly deferential,” and thus the court must evaluate counsel’s conduct from her perspective at

7 the time it occurred, without the benefit of hindsight. Id. at 689. “[S]trategic choices made after

8 thorough investigation of law and facts relevant to plausible options are virtually

9 unchallengeable.” Strickland, 466 U.S. at 690.

10 The second prong of the Strickland test requires a petitioner to show that counsel’s

11 conduct prejudiced her. Strickland, 466 U.S. at 691-92. Prejudice is found where “there is a

12 reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

13 would have been different.” Id. at 694. A reasonable probability is one “sufficient to undermine

14 confidence in the outcome.” Id. at 693. “This does not require a showing that counsel’s actions

15 ‘more likely than not altered the outcome,’ but the difference between Strickland’s prejudice

16 standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’”

17 Richter, 562 U.S. at 112 (quoting Strickland, 466 U.S. at 693). “The likelihood of a different

18 result must be substantial, not just conceivable.” Id.

19 Background and Analysis

20 Petitioner presented several bases upon which to present her claims of ineffective

21 assistance of counsel. Each is addressed below.

22 Failure to File Discovery Motions

23 First, petitioner complains trial counsel “failed to investigate and prepare for trial” and

24 “made no discovery motions.” She contends trial counsel filed only a motion for new trial. (ECF

25 No. 1 at 11; ECF No. 15 at 28.)

26 The state superior court considered the claim and ruled as follows:

27 Petitioner first claims ineffective assistance of trial counsel, in failing to bring any discovery motion. 28 38 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 39 of 56

1 Petitioner, however, fails to state with particularity what discovery in the prosecution’s and law enforcement’s possession had not been 2 given to the defense team, let alone whether such material not disclosed to the defense would have been reasonably likely to have 3 made a difference in the outcome of the trial. Nor does petitioner attach a copy of any such withheld material in support of the claim. 4 As such, the claims fails and is denied (In re Swain (1949) 34 Cal.2d 300; In re Harris (1993) 5 Cal.4th 813, 827 fn. 5; Strickland v. 5 Washington (1984) 466 U.S. 668).

6 (LD 21 at 2.)

7 The state superior court’s decision is not unreasonable. Petitioner’s claim is in fact

8 conclusory and speculative. James v. Borg, 24 F.3d 20, 26 (9th Cir.1994) (the claim is

9 conclusory and unsupported and should be rejected as such); Villafuerte v. Stewart, 111 F.3d 616,

10 632 (9th Cir. 1997) (petitioner’s ineffective assistance claim denied where he presented no

11 evidence concerning what counsel would have found had he investigated further, or what

12 lengthier preparation would have accomplished). Petitioner failed to identify what particular

13 motion for discovery should have been made on her behalf let alone establish she would have

14 prevailed on the motion. See Kimmelman v. Morrison, 477 U.S. 365, 382 (1986) (to prevail

15 under Strickland, petitioner must establish that foregone motion would have been meritorious).

16 Notably too, the undersigned’s review of the record indicates counsel for co-defendant Doria did

17 not file any motion for discovery. (LD 1.) Further, there is a reference in the record that prior to

18 jury trial commencing, the matter was briefly delayed to allow petitioner’s counsel to “follow-up”

19 on “some developing discovery.” (LD 6 at 34.) Petitioner’s counsel noted his follow up would

20 include whether it “would create an obligation on my part to find a witness and deal with an

21 unresolved issue, but hopefully the issue will be resolved.” (LD 6 at 35.) During the subsequent

22 court proceedings, the prosecution advised the court both defense counsel had been provided with

23 a witness statement, and petitioner’s counsel expressly indicated he would not be seeking a

24 continuance following its receipt. (LD 6 at 39-40.) Notably too, at the previous court

25 appearance, counsel for petitioner stated on the record that he did not seek a second jury, as co-

26 defendant Doria’s counsel was considering, in light of petitioner’s statement to law enforcement.

27 (LD 6 at 37-38.) These actions infer tactical decision making on the part of petitioner’s counsel.

28 See Strickland, 466 U.S. at 687-90 (reasonable tactical decisions, including decisions with regard 39 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 40 of 56

1 to the presentation of the case, are “virtually unchallengeable”).

2 The state court’s decision was not contrary to, or an unreasonable application of, clearly

3 established Supreme Court authority. 28 U.S.C. § 2254(d). Thus, the undersigned recommends

4 this sub-claim of ground three be denied.

5 Failure to Oppose People’s Motion in Limine re Prior Conduct

6 Next, petitioner complains trial counsel was ineffective for failing to oppose the

7 prosecution’s motion in limine concerning “prior conduct.” (ECF No. 1 at 11.)

8 As to this claim, the state superior court ruled:

9 Petitioner also claims ineffective assistance of trial counsel, in failing to oppose the prosecution’s motion in limine to admit petitioner’s 10 prior conduct into evidence. 11 In support, petitioner has attached as Exhibit B the prosecution’s written motions in limine, which included a motion to be allowed to 12 introduce petitioner’s prior convictions of crimes involving moral turpitude should petitioner testify. Petitioner, however, fails to attach 13 reporter’s transcript of the trial showing the colloquy that ensued on this matter. Indeed, the court’s yellow sheet minute orders for the 14 trial, contained in the court’s underlying file for Case No. 12F00180, show that on April 15, 2014, “[o]utside the presence of the jury the 15 Court and counsel discussed with moral turpitude crimes would be brought into evidence if either defendant chooses to testify.” Nor 16 does petitioner set forth what argument petitioner’s counsel should have made, that was not made at the time, that would have been 17 reasonably likely to have resulted in the court excluding petitioner’s prior convictions, let alone that such a ruling would have been 18 reasonably likely to have made a difference in the trial, as petitioner chose not to testify. As such, the claim fails and is denied (Swain; 19 Harris; Strickland). 20 (LD 21 at 2-3.)

21 The state superior court’s ruling is not unreasonable. This record reveals the People filed

22 their motions in limine on March 27, 2014 and April 2, 2014. (LD 1 at 243-66, 287-93.) Further,

23 a review of the record reveals that on April 2, 2014, the court addressed the prosecution’s original

24 and supplemental motions in limine. (LD 6 at 44, 48-119.)

25 With particular regard to the prosecutor’s request regarding the ability to impeach

26 defendants with prior convictions involving moral turpitude if defendants were to testify, counsel

27 for both defendants indicated decisions had not yet been made. Petitioner’s counsel specifically

28 stated: “It can wait. I can - - making no representation as to whether or not my client will testify 40 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 41 of 56

1 one way or the other. We can resolve those issues if and when it becomes necessary;” co-

2 defendant’s counsel agreed, and the trial court determined it would “take that up at a later time if

3 the defendants decide they would like to testify.” (LD 6 at 86-87.) Counsel for petitioner did not

4 oppose the issue concerning petitioner’s prior convictions involving moral turpitude, asserting the

5 issue was not ripe as no decision had been made with regard to whether petitioner would testify

6 on her own behalf. This tactic was not unreasonable.

7 Significantly, evidence concerning petitioner’s prior conviction arose during the testimony

8 of prosecution witness Cara Bain. (LD 7 at 165-98.) Following Bain’s direct examination,

9 petitioner’s counsel cross-examined Bain; the following colloquy occurred:

10 Q. Now, during the time that you lived with Miss Costa, did you ever hear her say anything to the effect she wanted to rob Jimmy 11 Hiter? 12 A. No. 13 Q. Did she ever complain about getting bad dope from him? 14 A. No. 15 Q. Of your own personal knowledge, did you ever see Cleo Costa do anything of a violent nature to anybody? 16 A. No. 17 Q. Did you ever hear her, you know, talk, you know, big talk about, 18 you know, I’m going to kick his ass and that kind of - - 19 A. No. 20 Q. – kind of violent talk? 21 A. No. 22 Q. Would you characterize Miss Costa as a violent or a not (sic) violent person? 23 A. A nonviolent person. 24

25 (LD 7 at 189.)

28 // 41 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 42 of 56

1 Following that exchange, on redirect, 9 the prosecution asked Bain the following:

2 [PROSECUTOR]: … One other thing that I want to ask you about, Mr. Smith asked you about whether or not you knew if Cleo 3 Martinez-Costa was a violent person. [¶] Do you remember that? 4 A. Yes. 5 Q. Okay. And you said no? 6 A. No. Yeah. 7 Q. Have you heard that in 1993, that Miss Costa-Martinez actually shot - - fired a firearm and shot somebody in the stomach? 8 A. No. 9

10 (LD 7 at 195-96.)

11 A reference to the fact petitioner’s counsel opened the door during cross-examination of

12 Bain, allowing for the prosecutor’s reference to petitioner’s prior conviction appears in the record

13 during a discussion outside the jury’s presence concerning impeachment evidence against the

14 defendants. When the trial court indicated petitioner’s prior conviction for assault with a firearm

15 could be used if defendant were to testify, the following exchange occurred:

16 MR. SMITH: Well, I would object to it. It’s 21 years old. And it’s also factually, at least the elements, similar to what we’re dealing 17 with so I ask that it be excluded or sanitized. 18 [PROSECUTOR]: Your Honor, may I respond? 19 THE COURT: Yes. 20 MS. PARK: The reason why I put the remaining crimes in my motion is that on the remoteness issue the courts talk about if since 21 the time of the conviction the defendant had led a blameless life, than the remoteness issue kicks in. 22 However, this particular defendant had ongoing crimes, that’s why I 23 put that in there. 24 Furthermore, as the Court recalls, during Cara Bain’s testimony, it eventually came in. 25 THE COURT: Right. It came in for - - under character evidence. 26 9 27 The prosecutor requested a side bar immediately prior to redirect and the trial court acknowledged “a sidebar and conversation in chambers” prior to the commencement of the 28 redirect examination. (LD 7 at 193.) 42 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 43 of 56

1 When - - when she was presented as a person who didn’t have a character for violence and then she was impeached or that witness 2 was impeached with that, had you heard that she’d been convicted of this prior? 3 MR. SMITH: Which she answered in the negative. 4

5 (LD 16-3 at 97-98 (italics added).) The record makes clear that the information about petitioner’s

6 prior conviction was used for impeachment purposes during Bain’s testimony, and that the trial

7 court would have permitted use of the information had petitioner elected to testify. She did not.

8 Petitioner’s counsel elicited testimony from Bain speaking to petitioner’s character. The

9 prosecutor was entitled to probe the issue further by asking Bain about the incident.

10 In any event, petitioner fails to explain what trial counsel should have argued to support

11 her assertion, nor does she show the motion would have been successful. An attorney's failure to

12 make a meritless objection or motion does not constitute ineffective assistance of counsel. See,

13 e.g., Jones v. Smith, 231 F.3d 1227, 1239 n.8 (9th Cir. 2000) (citing Boag v. Raines, 769 F.2d

14 1341, 1344 (9th Cir. 1985)). “’[F]airminded jurists could disagree’ on the correctness of the state

15 court’s decision” and, as a result, petitioner is not entitled to relief. Richter, 562 U.S. at 101. The

16 undersigned recommends petitioner’s sub-claim of ground three be denied.

17 Failure to Support Third Party Culpability Evidence Efforts

18 Next, petitioner complains trial counsel provided ineffective assistance by failing to

19 support co-defendant Doria’s efforts to obtain additional testimony from Nunes regarding her

20 statements about Justin Winn aka Chaos when interviewed by detectives. Petitioner asserts “the

21 third-party culpability defense was critical to showing that a different individual had been

22 identified” and that petitioner and Doria were not guilty. (ECF No. 1 at 11-13.)

23 The state superior court considered the claim and ruled as follows:

24 Petitioner also claims ineffective assistance of trial counsel, in failing to call witnesses or present evidence on petitioner’s behalf at trial. 25 Specifically, petitioner argues that there was a possibility that a person known as “Chaos” could have been established as having 26 committed the crime, as witness Nunes had told police that she had later seen “Chaos” with Angela Law, who had said she had been with 27 codefendant Doria at the time of the shooting and that it was “Chaos” who was the shooter, but that the court had excluded the statement 28 under Evid. Code § 352. She claims that this could have established 43 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 44 of 56

1 third-party culpability and that her defense counsel had waived the issue at trial while codefendant Doria had alone sought admission of 2 the evidence.

3 Only codefendant Doria raised the issue on appeal, of whether the trial court had abused its discretion in excluding the Angela Law 4 evidence that night have established third-party culpability. Had petitioner also raised the issue in the trial court and on appeal, 5 however, petitioner would not have prevailed, as the Third District rejected Doria’s claim on appeal. The Third District noted that the 6 trial court had actually allowed the admission of the recorded statements of Nunes that had suggested in part that Nunes may have 7 believed at one point that “Chaos” had killed the victim, and that Doria had complained only that the trial court should have allowed 8 testimony that would linked “Chaos” to Law because they were seen together some months after the murder. The Third District noted that 9 the trial court had excluded that part because it did not link “Chaos” to the crime, and held that this was not abuse of discretion. The Third 10 District also held that even if it had had marginal relevancy, the exclusion had been proper under Evid. Code § 352. As such, even if 11 petitioner had joined in Doria’s motion at trial and in the claim on appeal, petitioner would not have prevailed. Without a showing that 12 she would have prevailed petitioner cannot establish ineffective assistance of trial counsel on this claim (Strickland). 13 Petitioner nevertheless claims that defense counsel should have 14 sought the introduction of the recording of jail telephone calls in which individuals other than petitioner and Doria were purportedly 15 identified as the perpetrators. In support, petitioner attaches Exhibit I, which is a printout of the Sacramento Police Department’s 16 narrative text hardcopy, of a sheriff's deputy’s hearsay summary of what the deputy purported to hear during certain jail phone 17 recordings, and the deputy’s quotations from those recordings.

18 A review of Exhibit I reveals that the deputy sheriff stated that on December 3, 2013, Deputy Lacey Nelson had told the reporting 19 deputy that on November 22, 2013 inmate Christia Saunders had told Nelson that Saunders had had a conversation with Nunes, and that 20 Nunes had stated that Nunes and another female were actually the ones who had set up the victim and killed him (page 11 of Exhibit I). 21 Nelson also told the reporting deputy that Saunders had stated that on November 14 or November 15 between 10 and 11 p.m., Saunders 22 made a phone call from the jail using inmate Janet Simpson’s PIN and that during this case the “other apparent suspect” made 23 statements that verified that petitioner was not involved in the murder but that “they” were going to let petitioner “take the fall for it.” 24 However, the content of that is not included in the deputy sheriff’s summary of the calls the deputy sheriff had monitored that were 25 made on Simpson’ PIN on November 14; no calls were listed in the report for November 13. The deputy sheriff stated in the report that 26 the report showed all the conversations that the deputy sheriff could identify during a certain time period that included those days. 27 The contents of Exhibit I contain multiple hearsay. The gist of what 28 was disclosed does not show that the declarant had personal 44 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 45 of 56

1 knowledge of whether petitioner had been involved in the murder. Nor does petitioner now attach any declaration under penalty of 2 perjury from Christia Saunders that would set forth what testimony Saunders would have given at trial, had it been presented, that would 3 have been reasonably likely to have made a difference in the outcome of the trial (Harris; Strickland). In addition, the court’s yellow sheet 4 minutes orders for April 14, 2014 show that petitioner’s counsel had intended to put Christia Saunders on the stand for the defense and 5 that the clerk had scheduled Saunders to be transported for that purpose, but that on April 17, 2014, petitioner’s counsel rested 6 without presenting any witnesses, inferring that counsel had changed his mind about presenting Saunders as a likely tactical choice that 7 could have been based on something counsel had been given in discovery. As such, petitioner fails to set forth a prima facie case for 8 relief on this claim, requiring its denial. (In re Bower (1985) 38 Cal.3d 865). 9

10 (LD 21 at 3-5.)

11 The state court’s determination is not unreasonable. With regard to the third-party

12 culpability proffer by counsel for Doria as it concerns Nunes’s statements about Chaos, the

13 undersigned has recommended petitioner’s claim as asserted in ground two be denied. See

14 discussion, ante. In terms of trial counsel’s assistance, petitioner’s claim fails similarly. The

15 state superior court’s determination that even had petitioner’s trial counsel supported and joined

16 in codefendant Doria’s motion, the evidence would have been excluded for the reasons previously

17 addressed despite petitioner’s assertions otherwise. As more fully referenced in ground two, see

18 V.B., ante, petitioner cannot establish prejudice in the form of a reasonable probability of a

19 different result had the evidence been admitted; there was substantial evidence of petitioner and

20 codefendant Doria’s guilt. And evidence that Nunes observed Law after the murder in the

21 presence of Chaos and that Nunes brought up Chaos during interviews with detectives does not in

22 any way serve to exculpate petitioner. That evidence in comparison to the other evidence

23 admitted at trial would have added nothing more than the conceivability of a different result,

24 rather than a reasonable probability of a different result. Richter, 562 U.S. at 112. Even

25 assuming trial counsel’s actions were deficient, those actions did not prejudice petitioner.

26 Strickland, 466 U.S. at 691-694.

27 The same can be said of the state superior court’s determination regarding Christia

28 Saunders, statements purportedly made by Nunes to Saunders and calls made by Saunders using 45 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 46 of 56

1 another inmate’s PIN while confined in jail.

2 Trial counsel for petitioner initially sought the testimony of Christia Saunders and Janet

3 Simpson. (LD 2 at 3; see also LD 21 at 134-36.) Outside the presence of the jury, on April 14,

4 2014, petitioner’s counsel addressed the trial court as follows:

5 [PETITIONER’S COUNSEL]: Miss Park and I have been exchanging communications between potential witnesses in the 6 defense case. In particular, the two jail inmates that I’ve already submitted paperwork. 7 And I am informed today that one of those two inmates, Janet 8 Simpson, has a month worth of phone calls that were recorded out of the jail that have not previously been discovered which Detective 9 McCoy is now working diligently transcribing and copying and they’re going to discover them to me. 10 Neither Miss Park nor I have any idea what’s in these cases - - calls, 11 if there’s any significance to them. But it’s something that I’m going to have to deal with. 12 And until I have at least a chance to get into ‘em, I have no idea if it 13 means anything or what it means. But I’m just letting the court know that’s out there. 14 THE COURT: Okay. And is that witness - - you were gonna call 15 that witness possibly tomorrow or Wednesday? 16 MR. SMITH: Well, I - - I mean, if there is - - if there is some discovery, I have to - - I have to know that discovery because it 17 pertains to that witness. 18 Frankly, I’m leaning heavily not - - toward not calling Janet Simpson at least on anything other than a tangential issue. 19 I will be recalling Angela Law in the defense case. And depending 20 on her answers to some questions that I have for her, may put on either Simpson or Christie Saunders, who is the other jail inmate who 21 was made the phone calls. 22 ....................................................... 23 As I said, this is a month’s worth of audiotapes with Janet Simpson. And I have to know what’s in those tapes to know what, you know, 24 can of worms I might be opening by putting her on the stand so I have to deal with that. 25

26 (LD 8 at 90-91.) Ultimately, petitioner’s counsel called neither Simpson, Law nor Saunders to

27 the stand. (LD 9 at 60 [defense rests without presenting testimony]; LD 2 at 20 [same].)

28 // 46 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 47 of 56

1 An attorney is not required to present trial testimony from every witness suggested by

2 defendant. United States v. Wadsworth, 830 F.2d 1500, 1509 (9th Cir. 1987) (trial tactics are

3 clearly within the realm of powers committed to the discretion of defense counsel). To succeed

4 on a claim that counsel was ineffective in failing to call a favorable witness, a federal habeas

5 petitioner must identify the witness, provide the testimony the witness would have given, show

6 the witness was likely to have been available to testify and would have given the proffered

7 favorable testimony, and demonstrate a reasonable probability that, had such testimony been

8 introduced, the jury would have reached a verdict more favorable to the petitioner. See Alcala v.

9 Woodford, 334 F.3d 862, 872-73 (9th Cir. 2003). While petitioner did identify the witness

10 (Saunders) and reference testimony the witness would have purportedly given (Nunes’s

11 statements to Saunders & Saunders’ calls while incarcerated), and even assuming petitioner

12 established availability and favorable testimony, petitioner did not demonstrate a reasonable

13 probability that had the evidence been introduced the jury would have reached a more favorable

14 verdict.

15 Further, a review of Exhibit I to petitioner’s state habeas petition (LD 21 at 137-48) fully

16 supports the state superior court’s findings. It can be reasonably inferred from both a review of

17 the record and petitioner’s exhibit that trial counsel reasonably concluded that presenting the

18 testimony of Saunders or Simpson, or Law as it pertained to the substance of the recorded jail

19 conversations, would indeed have opened the proverbial “can of worms.” Credibility would

20 certainly be an issue for Saunders had she testified. It can be inferred from this record that trial

21 counsel elected not to call Saunders after having had a chance to investigate her claims and assess

22 Saunders’ credibility. See Morris v. California, 966 F.2d 448, 456-57 (9th Cir. 1991), cert.

23 denied, 506 U.S. 831 (1992) (where the record does not reveal counsel's actual reason for making

24 a tactical decision, the Court need not determine counsel's actual reason so long as that decision

25 falls within the range of reasonable representation).

28 // 47 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 48 of 56

1 In any event, fairminded jurists could disagree as to the findings of the state superior court

2 as to petitioner’s habeas claim. And for that reason, petitioner is not entitled to relief in these

3 proceedings. Richter, 562 U.S. at 101. Accordingly, the undersigned recommends this sub-claim

4 of ground three be denied.

5 Failure to Object

6 Petitioner next complains that trial counsel provided ineffective assistance by failing to

7 object or move for mistrial following a question posed to Bain by the prosecutor that elicited

8 information concerning petitioner’s prior conviction for assault with a firearm. (ECF No. 1 at

9 13.)

10 The Sacramento County Superior Court ruling provides as follows:

11 Petitioner also claims ineffective assistance of trial counsel, in that counsel failed to object to the prosecutor’s misconduct in asking 12 witness Bain, after Bain had been cross-examined by petitioner’s counsel, whether Bain was aware that petitioner had shot a man in 13 the stomach. In support, petitioner attaches as Exhibit J a portion of trial transcript showing that the prosecutor had reminded the witness 14 Bain upon further examination by the prosecutor that petitioner’s counsel had asked whether or not Bain knew if petitioner was a 15 violent person and that Bain had said no, then asked Bain if Bain had heard that in 1993 petitioner had actually fired a firearm and shot 16 somebody in the stomach, to which Bain answered “no” (RT-467— RT-468). 17 Petitioner fails to show that the prosecutor had committed 18 misconduct, as trial counsel had obviously opened the door to allow the question when counsel had asked Bain if Bain knew if petitioner 19 was a violent person. As the prosecutor had not committed misconduct, trial counsel was not ineffective in failing to object to 20 the question from the prosecutor. 21 Regardless, in light of the overwhelming evidence of guilt as summarized by the Third District Court of Appeal in its opinion on 22 the appeal of the matter, petitioner fails to show that had the prosecutor not posed the question to Bain it would have been 23 reasonably likely that the outcome of the trial would have been different (Strickland v. Washington (1984) 466 U.S. 668). 24

25 (LD 21 at 5-6.)

26 The state court’s determination is not unreasonable. Trial counsel did not perform

27 deficiently by failing to object to the prosecutor’s question to Bain because the question was a

28 valid one on redirect examination following petitioner’s counsel’s inquiries on cross. (See V.B., 48 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 49 of 56

1 ante.) Counsel is not required to make a meritless objection. Jones v. Smith, 231 F.3d at 1239

2 n.8 (citing Boag v. Raines, 769 F.2d at 1344). Nor can petitioner establish that in the absence of

3 trial counsel’s objection she was prejudiced. The question was clearly proper and any objection

4 by trial counsel would have been overruled, meaning the jury would have learned the information

5 either way.

6 For the foregoing reasons, the undersigned recommends this sub-claim of ground three be

7 denied.

8 Failure to Offer Entire 911 Tape Recording into Evidence

9 Next, petitioner contends trial counsel was ineffective for a failure to introduce the entire

10 911 recording into evidence, claiming an edited version offered by the prosecution removed

11 evidence “that could have completed negated the mens rea aspect as to” petitioner in the form of

12 petitioner performing CPR and inquiring into the ambulance’s arrival. (ECF No. 1 at 13.)

13 The state court’s holding on the issue is as follows:

14 Petitioner also claims ineffective assistance of trial counsel, in that counsel failed to seek to introduce the remaining portions of the 911 15 tape that [s]he claims was partially played for the jury by the prosecution. Petitioner alleges that the 911 tape had been edited to 16 delete the parts in which petitioner asked where the ambulate was and had stated that she was performing CPR on the victim. She 17 claims that had the jury heard this evidence, it would have negated the mens rea component for petitioner. In support, petitioner attaches 18 Exhibit K, which appears to be a transcript of the entire text of the 911 call, and which was marked as an exhibit from the People. 19 Petitioner fails to specifically identify which parts of the 911 call 20 were actually edited out, nor does [s]he attach any reasonably available documentary evidence to support [her] assertion that the 21 tape was played and that it had in fact been edited. 22 Regardless, upon review of the transcript as well as review of the Third District’s summary of the trial evidence contained in the 23 opinion on appeal, it appears that even if such had occurred it was harmless error. Witness Nunes had testified at trial that immediately 24 after the shot was fired, Nunes got out of the car and saw the victim on the ground in front of it and that the victim had been shot in his 25 lower abdomen. Nunes then immediately saw petitioner, and heard petitioner angrily say something like “where did that little bitch go”; 26 petitioner then asked Nunes to help petitioner move the body and Nunes refused. Witness Ballejos, petitioner’s next door neighbor, 27 testified that [she] heard the gunshot, then called petitioner at 3:38 a.m., meaning that the gunshot had occurred just before 3:38 a.m. 28 Petitioner called 911 six minutes later, at 3:44 a.m. Petitioner would 49 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 50 of 56

1 have heard the gunshot, but told the 911 operator that she had heard a commotion outside that was a noise “like a shot or somethin’” but 2 then, when switched to the fire department, changed her story to that she thought the girl who was driving a car hit the person with her car. 3 She was asked if there were any obvious injuries and she replied that she didn’t see anything and that that was why she was saying that she 4 thought he got hit by a car or something. In light of the additional evidence of planning on petitioner’s part, the jury most likely 5 surmised that she was lying on the 911 tape, and that if the jury had heard the parts that she now claims were not played the jury either 6 would not have believed it or most likely would have thought that if she were in fact attempting CPR on the victim it was all for show, 7 knowing that the paramedics would be there as quickly as possible. As such, the claim fails and is denied (Swain; Harris; Strickland). 8

9 (LD 21 at 6-7.)

10 The 911 call was played for the jury; by agreement of the parties that portion was not

11 transcribed by the court reporter. (LD 8 at 78 [during McCoy’s testimony]; see also LD 2 at 2.)

12 A transcript of the call appears in the record. (LD 4 at 4-12.) The transcript includes petitioner’s

13 inquiries to the dispatcher about the need for and arrival of an ambulance, as well as to

14 petitioner’s efforts to perform CPR. (LD 4 at 8-12.)

15 The state court’s determination was not unreasonable.

16 Notably, the undersigned’s review of the record reveals nothing to indicate the 911 call

17 and/or the transcript for that call was in any way edited or redacted. In fact, the opposite is true.

18 Significantly, a review of the record reveals reference to the 911 call and petitioner performing

19 CPR during the People’s opening statement. (LD 6 at 241.) In his opening statement, petitioner’s

20 trial counsel stated: “Cleo Costa … calls 911” and “She stayed on the phone with 911 and she

21 administered - - tried to administer C.P.R. You’ll hear a recording of all this as it happened.” (LD

22 6 at 255-256.) Sacramento Police Officer John Tennis testified he was the first to respond to the

23 call for service and took a statement from petitioner; he specifically noted petitioner’s reference

24 to having called 911 and to performing CPR until the fire department arrived. (LD 8 at 179-85.)

25 Additionally, during closing arguments to the jury, petitioner’s counsel argued as follows:

26 She wasn’t expecting what happened. And that’s why she at least initially didn’t realize that it was a shooting. Thought maybe it was 27 a hit and run accident out there on the street, and went out there and called 911 and tried to give C.P.R. while she was on the phone. 28 50 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 51 of 56

1 (LD 9 at 173.)

2 There is nothing in this record to indicate the 911 call was edited or revised in any way.

3 As a result, the state court’s determination that trial counsel was not ineffective for failing to

4 admit the entirety of the 911 call was not unreasonable. The jury was plainly made aware of the

5 fact petitioner attempted to perform CPR on the victim.

6 Even so, had the 911 recording been edited to delete references to petitioner’s CPR efforts

7 and her references to the immediate need for the ambulance to arrive, that evidence would not

8 serve to negate mens rea. The jury was presented with other evidence speaking to the issue. For

9 example, the jury was presented with evidence that there existed a delay between the time a

10 gunshot was heard and petitioner making her call to 911. (LD 7 at 206, 209, 277-79, 295; LD 8 at

11 68, 76-78, 176-77.) The jury also learned that petitioner’s phone – from which that 911 call was

12 made – was never recovered despite petitioner having been specifically asked by law enforcement

13 to bring that phone with her to the police department the morning of the incident. (LD 7 at 231;

14 LD 8 at 79-83, 100, 102, 119.)

15 There is no indication in the record that counsel performed deficiently, nor is there is any

16 indication of prejudice. Strickland, 466 U.S. at 687-94.

17 Cumulative Effect

18 To the degree petitioner claims trial counsel’s purported failings amount to cumulative

19 evidence of ineffective assistance of counsel (ECF No. 1 at 13), that sub-claim too should be

20 denied.

21 The Ninth Circuit has concluded that under clearly established United States Supreme

22 Court precedent the combined effect of multiple trial errors may give rise to a due process

23 violation if it renders a trial fundamentally unfair, even where each error considered individually

24 would not require reversal. Parle v. Runnels, 505 F.3d 922, 927 (9th. Cir. 2007) (citing Donnelly

25 v. DeChristoforo, 416 U.S. 637, 643 (1974), and Chambers v. Mississippi, 410 U.S. at 290).

26 “The fundamental question in determining whether the combined effect of trial errors violated a

27 defendant's due process rights is whether the errors rendered the criminal defense ‘far less

28 persuasive,’ Chambers, 410 U.S. at 294, and thereby had a ‘substantial and injurious effect or 51 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 52 of 56

1 influence’ on the jury's verdict.” Parle, 505 F.3d at 927 (quoting Brecht v. Abrahamson, 507 U.S.

2 at 637).

3 The undersigned has addressed each of petitioner’s claims that trial counsel provided

4 ineffective assistance of counsel and has concluded that no error of constitutional magnitude

5 occurred. The undersigned also concludes that the alleged errors, even when considered together,

6 did not render petitioner’s defense “far less persuasive,” nor did they have a “substantial and

7 injurious effect or influence on the jury’s verdict.” Accordingly, petitioner is not entitled to relief

8 on her claim of cumulative error.

9 To conclude, the state court's decision concerning the various bases upon which petitioner

10 asserted ineffective assistance of counsel was not contrary to, or an unreasonable application of,

11 clearly established Supreme Court authority. 28 U.S.C. § 2254(d). Thus, the undersigned

12 recommends ground three be denied in its entirety.

13 D. Prosecutorial Misconduct

14 Finally, petitioner asserts the prosecutor committed misconduct when a question was

15 posed to witness Bain that resulted in the jury learning of petitioner’s prior conviction for assault

16 with a firearm. (ECF No. 1 at 15-16; ECF No. 15 at 40-42.) Respondent maintains the state

17 court’s decision was reasonable and relief is barred. (ECF No. 13 at 44-46.)

18 Petitioner presented this claim to the Sacramento County Superior Court in a petition for

19 writ of habeas corpus alleging a number of ineffective assistance of counsel claims. More

20 specifically, petitioner alleged counsel was ineffective for failing “to object to the prosecutor’s

21 misconduct in asking witness Bain, after Bain had been cross-examined by petitioner’s counsel,

22 whether Bain was aware that petitioner had shot a man in the stomach.” (LD 21.)

23 The undersigned has previously excepted the state court’s findings as a part of the

24 discussion concerning the sub-claims asserted in ground three of the pending federal petition.

25 (See V.C., ante.)

26 Applicable Legal Standards

27 The court may grant habeas relief on a prosecutorial misconduct claim only if the

28 misconduct rises to the level of a due process violation. Sechrest v. Ignacio, 549 F.3d 789, 807 52 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 53 of 56

1 (9th Cir. 2008). A violation of a defendant’s rights occurs if the government knowingly uses

2 false evidence in obtaining a conviction. Giglio v. United States, 405 U.S. 150, 153-54 (1972);

3 Napue v. Illinois, 360 U.S. 264, 269 (1959). It is clearly established that “a conviction obtained

4 by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood

5 that the false testimony could have affected the jury’s verdict. United States v. Bagley, 473 U.S.

6 667, 680 n.9 (1985); see also Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004) (“The

7 due process requirement voids a conviction where the false evidence is ‘known to be such by

8 representatives of the State’”) (quoting Napue, 360 U.S. at 269). Due process is violated in such

9 circumstances regardless of whether the false testimony was obtained through the active conduct

10 of the prosecutor, or was unsolicited. Napue, 360 U.S. at 269 (“[t]he same result obtains when

11 the State, although not soliciting false evidence, allows it to go uncorrected when it appears”);

12 Hysler v Florida, 315 U.S. 411 (1942); Mooney v. Holohan, 294 U.S. 103 (1935). This rule

13 applies even where the false testimony goes only to the credibility of the witness. Napue, 360

14 U.S. at 269; Hayes v. Brown, 399 F.3d 972, 986 (9th Cir. 2005).

15 To establish a claim where a prosecutor has purportedly introduced perjured testimony,

16 the petitioner must first establish that the testimony was false. United States v. Polizzi, 801 F.2d

17 1543, 1549-50 (9th Cir. 1986). Next, the petitioner must demonstrate that the prosecution

18 knowingly used the perjured testimony. Id. And lastly, the petitioner must show that the false

19 testimony was material. United States v. Juno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). False

20 evidence is material “if there is any reasonable likelihood that the false [evidence] could have

21 affected the judgment of the jury.” Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010) (quoting

22 Bagley, 473 U.S. at 678). Mere speculation regarding these factors is insufficient to meet the

23 required burden on the petitioner. United States v. Aichele, 941 F.2d 761, 766 (9th Cir. 1991).

24 In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held “that

25 the suppression by the prosecution of evidence favorable to an accused upon request violates due

26 process where the evidence is material either to guilt or to punishment, irrespective of the good

27 faith or bad faith of the prosecution.” The duty to disclose such evidence is applicable even

28 though there has been no request by the accused. United States v. Agurs, 427 U.S. 97, 107 53 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 54 of 56

1 (1976). The duty encompasses impeachment evidence in addition to exculpatory evidence.

2 Bagley, 473 U.S. at 676. A Brady violation may also occur when the government fails to turn

3 over evidence that is “known only to police investigators and not to the prosecutor.” Youngblood

4 v. West Virginia, 547 U.S. 867, 870 (2006) (quoting Kyles v. Whitley, 514 U.S. 419, 437, 438

5 (1995) [“the individual prosecutor has a duty to learn of any favorable evidence known to the

6 others acting on the government’s behalf in the case, including the police”]).

7 As stated in Strickler v. Greene, 527 U.S. 263, 281-82 (1999), three components are

8 required to establish a Brady violation: “[t]he evidence at issue must be favorable to the accused,

9 either because it is exculpatory, or because it is impeaching; the evidence must have been

10 suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” See

11 also Banks v. Dretke, 540 U.S. 668, 691 (2004); Silva v. Brown, 416 F.3d 980, 985 (9th Cir.

12 2005). “The prosecutor, although ‘not required to deliver his entire file to defense counsel,’ is

13 required to turn over evidence that is both favorable to the defendant and material to the case.”

14 Amado v. Gonzalez, 758 F.3d 1119, 1134 (9th Cir. 2014) (quoting Bagley, 473 U.S. at 675).

15 A defendant is prejudiced by a Brady violation if the evidence that was not produced is

16 material. Amado v. Gonzalez, 758 F.3d at 1134. Evidence is material if “’there is a reasonable

17 probability’ that the result of the trial would have been different if the suppressed documents had

18 been disclosed to the defense.” Strickler, 527 U.S. at 289. “The question is not whether

19 petitioner would more likely than not have received a different verdict with the evidence, but

20 whether ‘in its absence he received a fair trial, understood as a trial resulting in a verdict worthy

21 of confidence.” Id. (quoting Kyles, 514 U.S. at 434); see also Silva, 416 F.3d at 986. Once the

22 materiality of the suppressed evidence is established, no further harmless error analysis is

23 required. Kyles, 514 U.S. at 435-36; Silva, 416 F.3d at 986. “When the government has

24 suppressed material evidence favorable to the defendant, the conviction must be set aside.” Silva,

25 416 F.3d at 986.

26 Analysis

27 As previously discussed, the prosecutor’s question to Bain – resulting in the jury learning

28 of petitioner’s prior conviction for assault with a firearm – occurred on redirect examination and 54 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 55 of 56

1 was proper follow up after petitioner’s counsel questioned Bain on cross-examination.

2 Petitioner’s counsel opened the door for admission of this evidence when he asked Bain whether

3 she considered petitioner to be a violent person; Bain responded petitioner was a “nonviolent

4 person,” allowing for the prosecutor to ask during rebuttal whether Bain was aware of petitioner’s

5 prior conviction.

6 There was no prosecutorial misconduct. “[I]ncorporating inadmissible evidence into

7 questioning can constitute prosecutorial misconduct.” United States v. Sine, 493 F.3d 1021, 1032

8 n. 8 (9th Cir. 2007) (citing United States v. Sanchez, 176 F.3d 1214, 1222 (9th Cir.1999)).

9 However, “the ‘opening the door’ principle allows parties ‘to introduce evidence on the same

10 issue to rebut any false impression that might have resulted from the earlier admission.’” Id. at

11 1037 (quoting United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988)). Here, Bains's

12 testimony that she believed petitioner to be a non-violent person left a misleading impression and

13 opened the door to evidence to rebut that impression. See United States v. Mendoza-Prado, 314

14 F.3d 1099, 1105 (9th Cir. 2002) (per curiam) (holding that testimony that implied that defendant

15 was law-abiding and hard-working opened the door to rebuttal evidence); United States v. Garcia-

16 Guizar, 160 F.3d 511, 522 (9th Cir. 1998) (“We have emphasized that [w]here the defendant

17 opens the door to an argument, it is fair advocacy for the prosecution to enter” [citations &

18 internal quotation marks omitted]); Fletcher v. Soto, 693 Fed. Appx. 724, 727 (9th Cir. 2017) (no

19 prosecutorial misconduct because the challenged testimony arose only after petitioner opened the

20 door to it). The undersigned disagrees with petitioner’s assertion that the “prosecutor utilized Ms.

21 Bain to introduce this evidence” as the issue arose only after petitioner’s counsel elicited Bain’s

22 testimony that petitioner was a nonviolent person on cross-examination. The prosecutor fairly

23 inquired into the area on rebuttal.

24 Given the foregoing, the undersigned agrees with respondent that petitioner “has not even

25 established that the prosecutor engaged in any improper questioning, much less that the state

26 superior court’s ruling contravened any clearly established Supreme Court precedent” (ECF No.

27 13 at 46). The undersigned further agrees that even if the prosecutor’s question amounted to

28 error, any such error did not have a substantial and injurious effect on the jury’s verdict. As noted 55 Case 2:19-cv-02597-KJM-KJN Document 17 Filed 12/17/21 Page 56 of 56

1 elsewhere in these findings, there was substantial evidence of petitioner’s guilt apart from any

2 reference to petitioner’s prior conviction, as well as any prejudice arising from the reference,

3 allowing for, at a minimum, fairminded jurists to disagree. For these reasons, the undersigned

4 recommends this claim be denied.

5 VI. Conclusion

6 Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of

7 habeas corpus be denied.

8 These findings and recommendations are submitted to the United States District Judge

9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

10 after being served with these findings and recommendations, any party may file written

11 objections with the court and serve a copy on all parties. Such a document should be captioned

12 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files

13 objections, she shall also address whether a certificate of appealability should issue and, if so,

14 why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253

15 “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28

16 U.S.C. § 2253(c)(3). Any response to the objections shall be filed and served within fourteen

17 days after service of the objections. The parties are advised that failure to file objections within

18 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

19 F.2d 1153, 1156 (9th Cir. 1991).

20 Dated: December 14, 2021

22 Mart2597.157 23

28 56