1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL L. MCKUIN No. 2:19-cv-02153 DAD DB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROBERT NEUSCHMID, 15 Respondent. 16 17 Petitioner Michael McKuin, a state prisoner, proceeds pro se and in forma pauperis with a 18 petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a judgment of 19 conviction entered on October 17, 2016 in the San Joaquin County Superior Court. Petitioner was 20 convicted of first degree murder. Petitioner now claims: (1) ineffective assistance of appellate 21 counsel; (2) there is insufficient evidence to support his conviction; and (3) ineffective assistance 22 of trial and appellate counsel for failing to contest the admissibility of DNA expert testimony. For 23 the reasons set forth below, this Court recommends denying the petition for habeas relief. 24 BACKGROUND 25 I. Facts Established at Trial 26 The California Court of Appeal for the Third Appellate District provided the following 27 summary of the facts presented at trial: 28 //// 1 1.0 Background 2 At the time of her death in late December 2012, the victim[] and defendant were in the process of divorcing after separating in 2009. 3 Their son was three years old, and they had joint custody of him. Apparently “[i]t was ridiculous how much they argued over this 4 child.” The victim lived with her parents, and had recently begun dating another man. Defendant was living on Page Court in Modesto 5 with another woman (whom he had been dating since 2010), her older child, and a roommate. The girlfriend was pregnant with 6 defendant’s child (who was born in January 2013). 7 Defendant, his mother and his sister (the latter of whom were both still close to the victim), and the victim’s mother all noted that the 8 victim often ran late, and it was not unusual for her to change plans at the last minute (including picking up her child from defendant or 9 his mother). Defendant asserted that the victim had even gone a month without having their child in her custody, and told an 10 investigator that she would go “AWOL” from their son’s life. However, defendant’s mother and sister also noted that when the 11 victim was unable to come at a designated time, she would call to let them know (or ask defendant’s mother to pick up the child for her). 12 The victim was glued to her cell phone, keeping it with her at all times (even in bed). 13 On Christmas Eve 2012, defendant and the victim had a heated 14 confrontation about her failure to deliver their son to defendant as scheduled. This confrontation occurred at the victim’s parents’ home 15 with the parents present. Ultimately, defendant left the child with the victim. 16 Defendant and his girlfriend asserted that they believed his son may 17 have been molested while in the victim’s custody, based on the behavior of defendant’s son with the girlfriend’s daughter and the 18 son’s remarks when challenged. They learned this shortly before Christmas. They filed a report apparently on Christmas Day 2012 19 with the Stanislaus County Sheriff’s Department. 20 On December 26, 2012, defendant and the victim attended a custody hearing at the Modesto courthouse. As he later told an investigator, 21 he had a dispute with the victim at the hearing about returning the child to her custody because of his belief that the son had been 22 molested. The mediator intervened and directed defendant to return the child to the victim until the next day as scheduled, and left the 23 custody arrangements unchanged. They then called child protective services, and “Tonya” interviewed the victim and told defendant that 24 it was okay for the child to be there. 25 2.0 The New Year’s Eve Timeline 26 On New Year’s Eve 2012, the victim made plans to go to an adventure movie with her family and her son (because defendant 27 would be working). She spoke with her mother around 2:00 p.m. and asked her to join them, noting that she was on her way from her 28 boyfriend’s home to defendant’s home to get her son. She also texted 1 a friend about her plans at 1:30 p.m., saying she was going to pick up coffee and then get her son. Her boyfriend testified that shortly 2 before 3:00 p.m., they were still eating in the car at a fast-food restaurant; the victim then dropped him off at his house before 3 driving to defendant’s, which was about five miles away. 4 At 2:53 p.m., the victim’s phone received a text from defendant’s phone, asking if she would be there by 3:00 p.m. to pick up their son; 5 a text responded, “Yes, I’m on my way.” Records show defendant’s phone was in the vicinity of his home; the victim’s phone company 6 did not keep location records for texts. Defendant’s phone then received a text from the victim’s phone at 3:26 p.m. stating, “Here.” 7 Defendant testified that he looked outside but did not see the victim; he later told his sister that he had also sent the victim a text asking 8 where she was, although cell phone records do not reflect any text activity on his phone between 3:26 p.m. and a 4:18 p.m. text from 9 his mother’s phone asking if the victim had picked up the child (his mother’s phone was in the vicinity of her residence at all times). 10 Defendant’s phone also received a zero-duration call from a nearby friend right after the 3:26 p.m. text; the friend left a message on voice 11 mail at 3:48 p.m. 12 After texting defendant, his mother’s phone texted the victim at 4:20 p.m. to ask if she had the child. The mother’s phone finally received 13 a text from defendant’s phone at 4:48 p.m. that stated the victim had not yet arrived; defendant’s friend also received a text at the same 14 time from defendant’s phone telling him to “hold on” while he awaited the victim’s arrival. Thereafter, defendant’s phone remained 15 in the vicinity of his home through 6:55 p.m., during which time he did not respond to incoming texts or calls. Defendant explained that 16 he had plugged in the phone in the bedroom to charge it during this time and he was in the living room. His girlfriend’s phone was also 17 in the vicinity of their home for the entire period of noon to midnight on that day. The girlfriend and defendant testified that they had been 18 at home all day until they went to his mother’s house. 19 At 5:10 p.m., defendant’s mother received an odd text from the victim’s phone, which apologized for deciding not to pick up her 20 child. It was unusual because it contained misspellings, referred to the victim’s son as “him” instead of her pet name for him, and used 21 the word “sorry,” none of which was characteristic for the victim. 22 Among the texts to defendant that went unanswered was one at 5:14 p.m. from his mother’s phone, relating that she had just gotten a text 23 that the victim was not coming, and asking defendant to call her about her picking up the child. His mother’s phone then received a 24 two-second call originating from the victim’s phone that did not connect; the records were thus able to determine the phone’s location 25 as being in the vicinity of where the victim’s body was later recovered. This call was shortly followed by two apologetic texts to 26 defendant’s phone at 5:29 p.m. After this, the phone was disconnected from the network as a result of being turned off or 27 destroyed. 28 1 After the period of inactivity, there was a call at 6:56 p.m. from defendant’s phone to his nearby friend. Defendant, the girlfriend, and 2 their children drove to the home of defendant’s mother to drop off laundry. Defendant’s mother did not see who was with defendant, 3 who came inside by himself to drop off the clothes (at trial, she testified she thought it was defendant’s friend and their two sons; at 4 the time, she told an investigator that it was the girlfriend). She was aware defendant would be at the friend’s house, because that is where 5 she was to pick up her grandson. 6 The girlfriend testified that after they came home, defendant went over to the home of his friend with his son to play video games until 7 he left for work at 10:00 p.m. His mother picked up the child there about 8:00 p.m. Defendant’s friend initially told police that defendant 8 was there only briefly before 6:00 p.m.; at trial, he agreed with defendant’s mother and girlfriend that defendant had been with him 9 for a few hours playing games. Defendant’s phone was in the vicinity of his job throughout his shift. His phone sent one more text to the 10 victim’s phone at 10:21 p.m. 11 3.0 The Car Sightings 12 A nearby resident noticed the victim’s car parked on the shoulder of River Road at about 4:00 p.m. on December 31 as she was driving to 13 Modesto. No one was in the car or around it. When the resident returned from Modesto at about 5:30 p.m., the victim’s car was 14 parked facing oncoming traffic on the south side of River Road. She passed by the car twice more that evening, going to a party at 6:30 15 p.m. and returning close to midnight. This location is about nine and a half miles from defendant’s home. 16 Another couple was driving west on River Road to Modesto for 17 dinner at about 5:30 p.m., and saw a green Honda and a small silver or white car both parked on the north side shoulder, both with their 18 tail lights on. On their return after midnight, the green car was on the south side facing traffic. The witness could see a woman in the car, 19 who appeared to be sleeping with her mouth open and her head atilt. 20 A third driver was driving through the same location heading west on his way home from Oakdale shortly before 6:00 p.m. He also saw 21 the green car on the south shoulder of the road, and a silver-grey compact on the north shoulder, both with their tail lights on. On the 22 following morning on his way to work, he saw officers around the green car, and he reported his observations. (He also believed he had 23 seen the car there on the morning of New Year’s Eve, when it was in fact still in the victim’s possession.) 24 Defendant has a brown convertible Mustang with a black roof, and a 25 green Dodge. His nearby friend owns a primer-grey Accord that is nonoperational because it does not have a smog certificate. The 26 friend’s mother-in-law had come by his house about 5:00 p.m. to pick up his son on New Year’s Eve; when questioned three months later, 27 she remarked that she did not see his car at that time, although it was there when she returned an hour later to drop off a pizza. At trial, she 28 did not remember the detective asking about her son-in-law’s car. 1 4.0 The Circumstances of the Body 2 Responding to a report of an unspecified “collision,” officers located the victim’s car on River Road just east of McHenry Avenue around 3 3:30 a.m. on January 1, 2013. The vicinity is pitch black, illuminated only by a flashing light at the intersection about a quarter-mile away. 4 The car was covered with frost (it being about 30 degrees). Its front windows were open, the keys were in the ignition, and the contents 5 of the car, including the victim’s purse, were neatly positioned and did not appear to be disturbed. What seemed to be vomit was on the 6 floor behind the driver’s seat. Identifying the car through registration records and the victim’s driver’s license, the officers noted matted- 7 down grass in a trail leading away from the driver’s door. As they followed the trail, the slope of the hill rapidly declined. With their 8 flashlights, they could see the victim’s frost-covered body at the bottom of the ravine. The record does not indicate anything at the 9 scene connected defendant with the victim’s body. 10 We do not need to describe at length the autopsy findings, as nothing other than DNA evidence connects the victim’s death specifically 11 with defendant. Although her body had multiple other injuries, indications that her wrists and ankles had been firmly gripped, and 12 indications of defensive wounds in a struggle, the cause of death was slow asphyxiation from compression of the mouth and nose with a 13 soft object, which resulted in vomiting. The pathologist believed she had died between 3:00 p.m. and 6:00 p.m. on New Year’s Eve, within 14 two to four hours after her last meal with her boyfriend. The pathologist did not discuss how long the body may have been lying 15 at the bottom of the ravine. 16 The only DNA evidence sufficient to identify defendant as the contributor was found underneath one of the victim’s fingernails. 17 DNA evidence under another fingernail was only a partial profile consistent with portions of defendant’s profile, but insufficient to 18 match him; the expert nonetheless was of the opinion that defendant was the contributor.2 DNA evidence retrieved from the interior of the 19 victim’s car was too incomplete to be interpreted. Only a single fingerprint from the car was sufficient for analysis, but it did not 20 match anyone involved with the victim or anyone in the fingerprint database. 21 [N.2 To be precise, the expert should have testified only that the 22 DNA was consistent with defendant’s profile, and not provided any statistical evidence because it is for the jury to determine the weight 23 to be given the evidence. (People v. Her (2013) 216 Cal.App.4th 977, 982.) Defendant does not contend any prejudicial error arose from 24 this testimony.] 25 Defendant testified that notwithstanding the heated interactions with the victim on Christmas Eve and at the custody hearing on December 26 26 (the latter including him airing his suspicions of their son’s molestation occurring on her watch that he had reported to the 27 police), he and the victim still had sexual relations on the following day at her home while their son watched a video and (at the victim’s 28 invitation) on the evening of December 29 when the rest of the 1 household was asleep. This was part of a surreptitious course of conduct of three to six rendezvous every month since their separation 2 three years before. In the course of their sexual activity, defendant’s skin cells and saliva would have gathered underneath the victim’s 3 fingernails. A defense expert asserted that a study had shown that a third party’s DNA could persist under fingernails even with vigorous 4 washing with a nail brush. 5 5.0 Aftermath 6 In the mid-afternoon on New Year’s Day, representatives from both the San Joaquin and Stanislaus County Sheriff’s Departments went 7 to defendant’s home to interview him. They did not announce their purpose in asking defendant to come with them to make a statement; 8 the latter assumed it was in connection with the molestation report he made to Stanislaus County authorities. Defendant gave consent to 9 a search of his home. (Nothing in the record indicates that the search resulted in any probative evidence.) Law enforcement took defendant 10 and his girlfriend to the San Joaquin County Sheriff’s Office in French Camp. 11 At the station, defendant initially began talking about the reasons he 12 reported the possible molestation, and the confrontation with the victim at the custody mediation.3 Defendant had been calm up to this 13 point. About a half-hour into the interview, the interrogator first revealed that the victim was dead; defendant appeared stunned, and 14 began to cry. After the interview, a technician took photos of defendant’s hands and face. His knuckles were reddened, there was 15 an abrasion on his palm close to the wrist, and redness between his eyebrows, on the base of his nose, and on his cheek. Defendant and 16 his girlfriend testified that he had a skin condition (they believed was eczema) that made his skin sensitive to his work environment at 17 a truck stop and caused redness on his face and hands, and caused his knuckles to crack and bleed. 18 [N.3 The girlfriend testified that she also assumed this interview 19 related to the molestation report.] 20 Defendant then went to his mother’s home. He was visibly distraught, and was having difficulty talking. He said only that his 21 son was in the custody of child protective services (without explaining the reason) and asked her to try and retrieve him. He did 22 not mention that the victim was dead. 23 On the following day, defendant went to his mother-in-law’s home. She ran out to hug him in the driveway and told him everything 24 would be all right. Because he looked sad, and his eyes were swollen as if he had been crying, she assumed he knew about the victim. But 25 when asked if he had heard about the victim, he said he had not, and she then explained that she was dead. He reacted as if he was hearing 26 this news for the first time, and became upset. Defendant was a pallbearer at the victim’s funeral. 27 Defendant never called his sister to tell her that the victim was dead. 28 She found out about the death through social media. 1 (ECF No. 19-16 at 2–10); People v. McKuin, No. C083248, 2017 WL 6616376, at *1–5 (Cal. Ct. 2 App. Dec. 28, 2017). 3 II. Procedural Background 4 A. Judgment 5 A jury convicted petitioner of first degree murder. (ECF No. 19-5 at 65.) The trial court 6 sentenced him to 25 years to life in state prison. (Id. at 161.) 7 III. State Appeal, State Habeas, and Federal Proceedings 8 Petitioner timely appealed his conviction, raising an insufficiency of the evidence 9 argument. The California Court of Appeal affirmed the conviction. (ECF No. 19-16.) Petitioner 10 sought review in the California Supreme Court. (ECF No. 19-17.) On March 14, 2018, the 11 California Supreme Court summarily denied review. (ECF No. 19-18.) 12 Petitioner sought habeas corpus relief in the California courts, which denied his petitions. 13 (ECF Nos. 19-19 to 19-26.) 14 The present petition was filed on October 16, 2019. (ECF No. 1.) Respondent has filed an 15 answer. (ECF No. 18.) Petitioner filed a traverse on May 18, 2021. (ECF No. 38.) 16 STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS 17 A court can entertain an application for a writ of habeas corpus by a person in custody 18 under a judgment of a state court on the ground that he is in custody in violation of the 19 Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal writ is not 20 available for an alleged error in the interpretation or application of state law. See Wilson v. 21 Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); Park v. 22 California, 202 F.3d 1146, 1149 (9th Cir. 2000) (stating that “a violation of state law standing 23 alone is not cognizable in federal court on habeas.”). 24 This Court may not grant habeas corpus relief with respect to any claim the state court 25 adjudicated on the merits unless the adjudication of the claim: 26 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 27 determined by the Supreme Court of the United States; or 28 1 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 2 State court proceeding. 3 28 U.S.C. § 2254(d). For purposes of applying § 2254(d)(1), “clearly established Federal law” 4 consists of holdings of the United States Supreme Court at the time of the last reasoned state court 5 decision. Greene v. Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 6 2011) (citing Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). Circuit court precedent “‘may be 7 persuasive in determining what law is clearly established and whether a state court applied that 8 law unreasonably.’” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th 9 Cir. 2010)). But it may not be “used to refine or sharpen a general principle of Supreme Court 10 jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall 11 v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam) (citing Parker v. Matthews, 567 U.S. 37 (2012)); 12 see also Carey v. Musladin, 549 U.S. 70, 76–77 (2006). Nor may circuit precedent be used to 13 “determine whether a particular rule of law is so widely accepted among the Federal Circuits that 14 it would, if presented to th[e] [Supreme] Court, be accepted as correct.” Marshall, 569 U.S. at 64. 15 A habeas corpus petition can invoke § 2254(d)(1) in two ways. First, a state court decision 16 is “contrary to” clearly established federal law if it either applies a rule that contradicts a holding 17 of the Supreme Court or reaches a different result from Supreme Court precedent on “materially 18 indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams, 529 U.S. 19 at 405–06). Second, “under the ‘unreasonable application’ clause, a federal habeas court may 20 grant the writ if the state court identifies the correct governing legal principle from th[e] 21 [Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s 22 case.’” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 413); Chia v. 23 Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A] federal habeas court may not issue the writ 24 simply because that court concludes in its independent judgment that the relevant state-court 25 decision applied clearly established federal law erroneously or incorrectly. Rather, that 26 application must also be unreasonable.” Williams, 120 S. Ct. at 1522; see also Schriro v. 27 Landrigan, 550 U.S. 465, 473 (2007); Andrade, 538 U.S. at 75. “A state court’s determination 28 1 that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 2 disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 3 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a 4 condition for obtaining habeas corpus from a federal court, a state prisoner must show that the 5 state court’s ruling on the claim being presented in federal court was so lacking in justification 6 that there was an error well understood and comprehended in existing law beyond any possibility 7 for fairminded disagreement.” Richter, 562 U.S. at 786–87. 8 A petitioner may also challenge a state court’s decision as being an unreasonable 9 determination of facts under § 2254(d)(2). Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 10 2012). Challenges under this clause fall into two categories; first, the state court’s findings of fact 11 “were not supported by substantial evidence in the state court record,” or second, the “fact- 12 finding process itself” was “deficient in some material way.” Id.; see also Hurles v. Ryan, 752 13 F.3d 768, 790–91 (9th Cir. 2014) (If a state court makes factual findings without an opportunity 14 for the petitioner to present evidence, the fact-finding process may be deficient, and the state 15 court opinion may not be entitled to deference). Under the “substantial evidence” category, the 16 court asks whether “an appellate panel, applying the normal standards of appellate review,” could 17 reasonably conclude that the finding is supported by the record. Hibbler, 693 F.3d at 1146 (9th 18 Cir. 2012) (quoting Taylor v. Maddox, 366 F.3d 992, 999–1000 (9th Cir. 2004), overruled on 19 other grounds by Murray v. Schriro, 745 F.3d 984, 999–1001 (9th Cir. 2014)). The “fact-finding 20 process” category, however, requires the federal court to “be satisfied that any appellate court to 21 whom the defect [in the state court’s fact-finding process] is pointed out would be unreasonable 22 in holding that the state court’s fact-finding process was adequate.” Hibbler, 693 F.3d at 1146–47 23 (quoting Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004)). The state court’s failure to hold 24 an evidentiary hearing does not automatically render its fact-finding process unreasonable. Id. at 25 1147. Further, a state court may make factual findings without an evidentiary hearing if “the 26 record conclusively establishes a fact or where petitioner’s factual allegations are entirely without 27 credibility.” Perez v. Rosario, 459 F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 28 F.3d 1045, 1055 (9th Cir. 2003)). 1 If a petitioner overcomes one of the hurdles posed by section 2254(d), this Court reviews 2 the merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see 3 also Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (en banc). For claims upon which a 4 petitioner seeks to present new evidence, the petitioner must meet the standards of 28 U.S.C. § 5 2254(e)(2) by showing that he has not “failed to develop the factual basis of [the] claim in State 6 court proceedings” and by meeting the federal case law standards for the presentation of evidence 7 in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S. 170, 186 (2011). 8 This Court looks to the last reasoned state court decision as the basis for the state court 9 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 10 “[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from 11 a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the 12 reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en 13 banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim 14 has been presented to a state court and the state court has denied relief, it may be presumed that 15 the state court adjudicated the claim on the merits in the absence of any indication or state-law 16 procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be 17 overcome if “there is reason to think some other explanation for the state court’s decision is more 18 likely.” Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court 19 rejects some of petitioner’s claims but does not expressly address a federal claim, a federal habeas 20 court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. 21 Johnson v. Williams, 568 U.S. 289, 293 (2013). When it is clear that a state court has not reached 22 the merits of a petitioner’s claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does 23 not apply, and a federal habeas court reviews the claim de novo. Stanley, 633 F.3d at 860. 24 ANALYSIS 25 Petitioner asserts three grounds for relief, one sufficiency of the evidence claim and two 26 ineffective assistance of counsel claims. 27 //// 28 //// 1 I. Claim Two: Sufficiency of the Evidence 2 Petitioner claims that there is insufficient evidence to support his conviction for first 3 degree murder. (ECF No. 1 at 4; ECF No. 38 at 23-27.) In response, respondent argues that the 4 state court reasonably rejected petitioner’s sufficiency of the evidence claim. (ECF No. 19 at 14– 5 18.) 6 A. State Court Opinion 7 Petitioner raised this claim in his direct appeal. In the last reasoned state court decision, 8 the California Court of Appeal considered and rejected the claim: 9 Our focus is on whether it is reasonable to find defendant guilty based on this evidence. Whether the evidence could also support finding 10 another person guilty is irrelevant. 11 With respect to the issue of identity, a reviewing court can set aside a verdict only where the evidence in support is “so weak as to 12 constitute practically no evidence at all.” (People v. Braun (1939) 14 Cal.2d 1, 5; accord, People v. Mohamed (2011) 201 Cal.App.4th 13 515, 521.) In People v. Daya (1994) 29 Cal.App.4th 697, this court noted that it was sufficient to establish identity where there was 14 ample evidence of motive and opportunity, coupled with significant evidence of consciousness of guilt. (Id. at pp. 708–712.) Moreover, 15 the Supreme Court’s remarks with respect to fingerprints are of equal significance in the post-DNA era: “ ‘Fingerprint evidence is the 16 strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant.’ ” (People v. Johnson (1988) 47 Cal.3d 576, 17 601.) 18 In the present case, there was ample evidence of motive in the continuous and heated disputes between defendant and the victim 19 regarding their shared custody of their son. Into this already combustible relationship, just before her death defendant added the 20 fuel of suspicions that their child was molested while under her watch. 21 As for opportunity, mere moments away from defendant’s house the 22 victim was still adhering to her announced intention of picking up her son and taking him to a movie with other members of her family; 23 nothing in the record would account for a truly last-minute change of plans. It is therefore rational to infer that the text message “Here” at 24 3:26 p.m. was in fact from the victim on her arrival at defendant’s home, even absent any corroboration that she arrived. It is difficult 25 to align the evidence of the car sightings with defendant’s ability to suffocate the victim, transport her to River Road and dump her down 26 the embankment, place the texts and two-second call from the victim’s phone between 5:10 p.m. and 5:29 p.m.in the vicinity of 27 River Road, and have the means of returning home in a second car before going to his mother’s house. However, it was for the jury to 28 reconcile the earliest sighting at 4:00 p.m. (ignoring the impossible 1 sighting on the morning of New Year’s Eve) and the sighting of a woman still in the car at near midnight with the timeline of the killing 2 and disposal of the body. It would not have been irrational for the jury to assume the participation of the extremely pregnant 3 girlfriend—who also did not have any interaction with anybody else all afternoon—in at least the disposal of the body (given a motivation 4 to assist the father of her soon-to-be-born daughter), limiting her activity to driving with the children to pick up defendant; the 5 sightings of the second car accord with the activity on the victim’s phone, at a time when extreme darkness would have helped cover the 6 disposal of the body even before the second car arrived. That the witnesses did not see defendant around the car does not mean he was 7 not down the embankment at the time they passed. 8 It is true the record lacks any evidence of where the murder may have taken place, or any connection between defendant and the victim’s 9 car. However, the body had defendant’s DNA under one fingernail and consistent partial DNA under another (and there was not any 10 evidence that anyone else matched this partial profile). Defendant’s explanation for this borders on the ludicrous; while it may not be 11 uncommon for former spouses to continue to have intimate relations with one another, it simply does not seem plausible that the victim 12 would be interested in having sex with defendant on December 27th (and summon him for an encore on the 29th) after a heated argument 13 on the 24th, being reported to child protective services on the 25th (leading to an interview with a social worker on the 26th), and having 14 a face-to-face argument at the custody hearing on the 26th about the molestation accusation. While there might be other plausible reasons 15 for the victim to have defendant’s DNA under her fingernail(s), that does not mean it was irrational for the jury to conclude the transfer 16 occurred while defendant was smothering her. 17 Furthermore, the jury could have rationally taken this specious explanation as evidence of consciousness of guilt. Although we do 18 not believe that deviation from some presumed template of grief also unerringly points to consciousness of guilt, defendant’s failure to 19 speak of the victim’s death to his mother or sister (both of whom were still close to the victim), and to act as if he was unaware of her 20 death when talking to the victim’s mother are nevertheless curious, and thus to some extent would support a rational inference of 21 additional consciousness of guilt. 22 Accordingly, this evidence is sufficient to support the verdict. This is not to say that it is the conclusion we might reach in the first 23 instance, or that it leads inevitably to a finding of guilt. But it is sufficient to establish that the verdict was not based merely on 24 speculation. We therefore reject defendant’s argument. 25 (ECF No. 19-16 at 10–12.) 26 //// 27 //// 28 //// 1 B. Discussion 2 A petitioner is entitled to habeas corpus relief on a sufficiency of the evidence claim, “if it 3 is found that upon the record evidence adduced at the trial no rational trier of fact could have 4 found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979); 5 see also Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011). This inquiry involves two steps. 6 First, the federal court must review the evidence in the light most favorable to the prosecution. 7 Jackson, 443 U.S. at 319. If there are conflicting factual inferences, the federal court must 8 presume the jury resolved the conflicts in favor of the prosecution. Id. at 326 (“[A] federal habeas 9 corpus court faced with a record of historical facts that supports conflicting inferences must 10 presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any 11 such conflicts in favor of the prosecution, and must defer to that resolution.”); McDaniel v. 12 Brown, 558 U.S. 120, 133 (2010) (per curiam). Second, the federal court will “determine whether 13 the evidence at trial, including any evidence of innocence, could allow any rational trier of fact to 14 find the essential elements of the crime beyond a reasonable doubt.” United States v. Nevils, 598 15 F.3d 1158, 1165 (9th Cir. 2010) (en banc). 16 Although this Court’s review is grounded in due process under the Fourteenth 17 Amendment, the Jackson standard “must be applied with explicit reference to the substantive 18 elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16; Juan H. 19 v. Allen, 408 F.3d 1262, 1275–76 (9th Cir. 2005). This Court will look to state law to establish 20 the elements of the offense and then turn to the federal question of whether the state court was 21 objectively unreasonable in concluding that there was sufficient evidence supported the 22 conviction. See Johnson v. Montgomery, 899 F.3d 1052, 1056 (9th Cir. 2018). 23 “After AEDPA, we apply the standards of Jackson with an additional layer of deference.” 24 Juan H., 408 F.3d at 1274; see Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). On 25 direct appeal at the state level, “it is the responsibility of the jury—not the court—to decide what 26 conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the 27 jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have 28 agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). On habeas review, “a 1 federal court may not overturn a state court decision rejecting a sufficiency of the evidence 2 challenge simply because the federal court disagrees with the state court. The federal court 3 instead may do so only if the state court decision was ‘objectively unreasonable.’” Id. (quoting 4 Renico v. Lett, 559 U.S. 766, 773 (2010)). 5 Petitioner was convicted of first degree murder, which is the “unlawful killing of a human 6 being…with malice aforethought.” Cal. Penal Code § 187(a). Here, the state court’s finding that 7 there was sufficient evidence to support the conviction was not objectively unreasonable. The 8 state court reasonably found that the record showed that petitioner had motive and opportunity to 9 commit the crime and had consciousness of guilt. As to motive, petitioner and the victim were 10 engaged in “continuous and heated” custody disputes, and “just before her death[,] [petitioner] 11 added the fuel of suspicions that their child was molested under her watch.” (ECF No. 19-16 at 12 11; see also ECF No. 19-9 at 73–74; ECF No. 19-10 at 86–91.) Regarding his opportunity to 13 commit the crime, the state court noted that while in close proximity to petitioner’s house, the 14 victim expressed that she was on her way to pick up their son from petitioner’s house around 15 3:00pm and take him to the movies with her family. (ECF No. 19-16 at 11; see also ECF No. 19-9 16 at 47–49; ECF No. 19-10 at 164–65, 188–89.) At 3:26pm, the victim sent the text message 17 “[h]ere” to petitioner, but no one corroborated her arrival. (ECF No. 19-16 at 11; ECF No. 19-10 18 at 98–99; ECF No. 19-11 at 65.) 19 Although the car sightings at the crime scene provided some conflicting information, the 20 state court correctly identified that “it was for the jury to reconcile the earliest sighting at 4:00pm 21 (ignoring the impossible sighting on the morning of New Year’s Eve) and the sighting of a 22 woman still in the car at near midnight with the timeline of the killing and disposal of the body.” 23 (ECF No. 19-16 at 11.) On habeas review, this Court must resolve such conflicts in favor of the 24 prosecution. Jackson, 443 U.S. at 326. Despite no evidence of “where the murder may have taken 25 place, or any connection between [petitioner] and the victim’s car,” there was circumstantial 26 evidence connecting petitioner to the crime including his DNA profile under two of the victim’s 27 fingernails. (ECF No. 19-16 at 12; see also ECF No. 19-10 at 826.) The state court rejected as 28 implausible petitioner’s explanation that he had intimate relations with the victim on December 1 27 and 29; just days before, petitioner and the victim had heated arguments regarding child 2 custody and child molestation accusations. (ECF No. 19-16 at 12 (“While there might be other 3 plausible reasons for the victim to have defendant’s DNA under her fingernail(s), that does not 4 mean it was irrational for the jury to conclude the transfer occurred while defendant was 5 smothering her.”)) Lastly, the state court noted that petitioner showed consciousness of guilt by 6 faking knowledge of her death and providing an implausible explanation for his DNA under the 7 victim’s fingernails. (Id.) Because fairminded jurists could disagree with the state court’s 8 decision that there was sufficient evidence to support the guilty verdict, this Court recommends 9 denying habeas relief on this claim. 10 II. Claims One and Three: Ineffective Assistance of Counsel 11 In claims one and three, petitioner argues that both his trial and appellate counsel provided 12 constitutionally ineffective assistance of counsel. In claim one, petitioner asserts that his appellate 13 counsel should have argued that the evidence was “insufficient as a matter of law to support guilt 14 beyond a reasonable doubt,” instead of raising “an inferior issue of proof of identity.” (ECF No. 1 15 at 4; ECF No. 19-25 at 8, 28-29.) In claim three, he contends that both trial and appellate counsel 16 should have objected to the admissibility of DNA expert testimony. (Id. at 5.) 17 A. State Court Opinion 18 Petitioner raised these claims for the first time in a state habeas petition. (ECF No. 19-25.) 19 The California Supreme Court summarily denied the petition. (ECF No. 19-26.) “Where a state 20 court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be 21 met by showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. 22 at 98. 23 B. Discussion 24 To state an ineffective assistance of counsel claim, petitioner must show that (1) his 25 counsel’s performance was deficient, falling below an objective standard of reasonableness, and 26 (2) his counsel’s deficient performance prejudiced the defense. Strickland v. Washington, 466 27 U.S. 668, 687–88 (1984). For the deficiency prong, “a court must indulge a strong presumption 28 that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, 1 the defendant must overcome the presumption that, under the circumstances, the challenged 2 action ‘might be considered sound trial strategy.’” Id. at 689 (citation omitted). For the prejudice 3 prong, the petitioner “must show that there is a reasonable probability that, but for counsel’s 4 unprofessional errors, the result of the proceeding would have been different. A reasonable 5 probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. 6 “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and 7 when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105 (internal citations 8 omitted); see also Landrigan, 550 U.S. at 473. When § 2254(d) applies, the “question is whether 9 there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, 10 562 U.S. at 105. 11 As to petitioner’s first claim—that appellate counsel was ineffective for failing to argue 12 the insufficient evidence standard under Jackson v. Virginia, 443 U.S. 307 (1979)—the state 13 court’s rejection of this claim was not objectively unreasonable. In the opening appellate brief, 14 petitioner’s appellate counsel cited Jackson and argued that “[t]he constitutional aspect of a 15 sufficiency challenge is that, to satisfy the Due Process Clause, substantial evidence must exist 16 for each element.” (ECF No. 19-13 at 36.) The opening brief also noted that the “parties agreed 17 below the only question for the jury to decide was who killed [the victim].” (Id.) Because the 18 murderer’s identity was the only issue before the jury, the state court could have reasonably 19 concluded that petitioner’s appellate counsel was not deficient. 20 In claim three, petitioner asserts that his trial and appellate counsel were ineffective 21 because they failed to object to the prosecution’s DNA expert’s statistical evidence testimony. 22 (ECF No. 1; see also ECF No. 19-15 at 29.) Petitioner does not provide any additional facts or 23 law to support his claim, but he seems to be referring to a footnote in the state court’s opinion 24 stating, “[t]o be precise, the expert should have testified only that the DNA was consistent with 25 defendant’s profile, and not provided any statistical evidence because it is for the jury to 26 determine the weight to be given the evidence…Defendant does not contend any prejudicial error 27 arose from this testimony.” (ECF No. 19-16 at 8 n.2.) During trial, an expert testified that for one 28 fingernail sample, the “second contributor profile is consistent with [petitioner’s] profile.” (ECF 1 No. 19-10 at 18.) For the second sample, the “minor partial profile is consistent with [petitioner’s] 2 profile.” (Id. at 21.) The expert also testified that he did a statistical analysis to see “how rare or 3 how common that profile is in a given population” and concluded that the DNA belonged to 4 petitioner. (Id. at 19.) 5 After reviewing the record, this Court concludes that the California Supreme Court could 6 have reasonably concluded that counsel’s failure to raise this issue at trial or on appeal did not 7 constitute prejudicial error. Petitioner does not dispute the expert’s testimony that petitioner’s 8 DNA was a contributor in two samples. He provides no explanation as to how, but for counsels’ 9 error in not objecting to the statistical testimony, the absence of this evidence would have created 10 reasonable probability of a different result. Mere speculation that it would have been different is 11 not enough to warrant habeas relief. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) 12 (“Conclusory allegations which are not supported by a statement of specific fact do not warrant 13 habeas relief.”) Because the state court’s determination was not contrary to, or an unreasonable 14 application of clearly established federal law, this Court recommends denying habeas relief on 15 these claims as well. 16 CONCLUSION 17 Petitioner fails to meet the standards set out in 28 U.S.C. § 2254(d) by showing the state 18 court decision on any claim was contrary to or an unreasonable application of clearly established 19 law as determined by the Supreme Court, or resulted in a decision based on an unreasonable 20 determination of the facts. 21 Further, it is RECOMMENDED that petitioner’s petition for a writ of habeas corpus (ECF 22 No. 1) be denied. 23 These findings and recommendations will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. The document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 28 shall be served on all parties and filed with the court within seven (7) days after service of the 1 | objections. Failure to file objections within the specified time may waive the right to appeal the 2 | District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. □□□□□ 951 3 | F.2d 1153 (9th Cir. 1991). In the objections, the party may address whether a certificate of 4 | appealability should issue in the event an appeal of the judgment in this case is filed. See Rule 11, 5 | Rules Governing § 2254 Cases (the district court must issue or deny a certificate of appealability 6 | when it enters a final order adverse to the applicant). 7 | Dated: April 6, 2023 8 9 10 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18