(HC) Pierson v. Martinez

• Court: District Court, E.D. California
• Decided: May 30, 2024
• Docket: 2:23-cv-00884
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MARLIN JUAN PIERSON, No. 2:23-cv-00884-DJC-EFB (HC) 11 Petitioner, 12 v. FINDINGS AND RECOMMENDATIONS 13 L.A. MARTINEZ, Warden, 14 Respondent. 15 16 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 17 28 U.S.C. § 2254. ECF No. 1. Petitioner was convicted in Shasta County Superior Court of 18 residential burglary; he was sentenced under the “Three Strikes” law to a sentence of 25 years to 19 life. Id. Petitioner now alleges that the prosecutor committed misconduct and that his counsel 20 was ineffective. Id. He has also filed a motion for default judgment. ECF No. 13. For the 21 reasons that follow, the petition for writ of habeas corpus and the motion for default judgment 22 must both be denied. 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 I. BACKGROUND 2 The relevant facts, as relayed by the California Court of Appeal1, are:

3 Maria R. testified that, on the morning of the burglary, she propped her garage door open with a bucket as she left to take her son to school. The door leading into 4 her apartment from the garage was closed but unlocked. When she returned, she saw a white SUV-type vehicle in the parking lot. She saw a person wearing 5 “something like a ski mask,” going through the passenger floor or glove compartment area. She did not pay too much attention; it was cold that morning 6 and she thought it was a new tenant. As she opened her garage door, she heard the front door “being ruffled with.” She thought it was her husband, Anthony R., who 7 was actually asleep. When Anthony woke up, they realized someone else must have been in the house. Maria noticed her Apple watch was missing and her 8 couch had been “messed with.” She called the police and she and Anthony began tracking her watch through her iPhone. 9 During this process, Anthony and Maria met with Officer Ryan Ellis at a 10 convenience store. While Anthony went home, Maria and Officer Ellis tracked the watch to a nearby Walmart, where Maria noticed the same white SUV-type vehicle 11 she had seen in her parking lot that morning. Defendant and codefendant Mike Leyva were walking away from the vehicle. Officer Ellis detained defendant and 12 Leyva and found an Apple watch in Leyva’s back pocket.

13 Maria recognized defendant as a person who used to visit the apartment next to hers. Anthony also testified he knew defendant “a little bit” because his former 14 neighbor is a relative of defendant and Anthony had seen defendant “maybe a handful” of times. 15 Defendant denied knowledge of a burglary but admitted he was at the apartment 16 complex and wearing a ski mask earlier that day.

17 Codefendant Leyva testified that defendant asked him to commit the burglary. Defendant told Leyva that the R.’s were making “ghost guns”, guns without serial 18 numbers, in the apartment and he wanted to get them. Leyva said he and defendant spoke about this weeks prior and, on the morning of the incident, 19 defendant drew a map of the layout of the apartment and outfitted them both with a mask and bulletproof vest. Defendant told Leyva that the residents leave the 20 garage door open, and Leyva planned to enter and exit through the open garage.

21 Leyva admitted that he entered the residence and when he noticed Maria returning, he took an Apple watch and charger, left through the front door, then drove with 22 defendant to defendant’s house. At defendant’s house, they took off the vests and masks, then went to Walmart to buy a phone card. Defendant asked whether he 23 “got anything” and Leyva answered in the negative; Leyva was not sure whether he told defendant about the watch. 24 Leyva testified that he was subsequently charged in this matter and entered an 25 open plea of guilty; he had not been sentenced at the time of his testimony against defendant. He admitted that he hoped to receive a favorable recommendation from 26 the prosecution regarding his sentence but stated he was testifying because of his

27 1 The facts recited by the state appellate court are presumed to be correct where, as here, the petitioner has not rebutted the facts with clear and convincing evidence. 28 U.S.C. § 28 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (as amended). 1 own desire to tell the truth. Leyva also told the jury that he agreed to commit the burglary because defendant was “a little intimidating” and explained defendant 2 was roughing up a girlfriend, with whom Leyva was friends.

3 The prosecution charged defendant with first degree burglary, with the allegation that another person, other than an accomplice, was present during the commission 4 of the offense. (Pen. Code, §§ 459, 462.) (footnote omitted). The prosecution also alleged that defendant suffered two prior serious felonies for purposes of the 5 Three Strikes law and sentence enhancements. (§§ 1170.12, 667, subd. (a).) The jury found defendant guilty of first degree burglary and found true the allegation 6 that a person was present during the commission of the office. In a separate hearing, the trial court found true the prior strike allegations. The trial court 7 denied defendant’s Romero motion and sentenced defendant to 25 years to life under the Three Strikes law. 8 9 People v. Pierson, 2022 WL 610594, *1-2 (Cal. Ct. App. March 2, 2022); ECF No. 14-9 at 2-4. 10 II. STANDARDS OF REVIEW 11 An application for a writ of habeas corpus by a person in custody under a judgment of a 12 state court can be granted only for violations of the Constitution or laws of the United States. 28 13 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or 14 application of state law. Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 15 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000). 16 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas 17 corpus relief:

18 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 with respect to any 19 claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 20 (1) resulted in a decision that was contrary to, or involved an unreasonable 21 application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 22 (2) resulted in a decision that was based on an unreasonable determination of the 23 facts in light of the evidence presented in the State court proceeding. 24 Under § 2254(d)(1), “clearly established federal law” consists of holdings of the United 25 States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 26 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S.34 (2011); Stanley v. 27 Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 28 (2000)). Circuit court precedent “may be persuasive in determining what law is clearly 1 established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859 2 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not 3 be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific 4 legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 569 U.S. 58, 64 5 (2013) (citing Parker v. Matthews, 567 U.S. 37, 47-49 (2012) (per curiam)). Nor may it be used 6 to “determine whether a particular rule of law is so widely accepted among the Federal Circuits 7 that it would, if presented to th[e] [Supreme] Court, be accepted as correct.” Id. Further, where 8 courts of appeals have diverged in their treatment of an issue, there is no “clearly established 9 Federal law” governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006). 10 A state court decision is “contrary to” clearly established federal law under § 2254(d)(1) if 11 it applies a rule contradicting a holding of the Supreme Court or reaches a result different from 12 Supreme Court precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 13 640 (2003). Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court 14 may grant the writ if the state court identifies the correct governing legal principle from the 15 Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s 16 case.2 Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 17 360 F.3d 997, 1002 (9th Cir. 2004). A federal habeas court “may not issue the writ simply 18 because that court concludes in its independent judgment that the relevant state-court decision 19 applied clearly established federal law erroneously or incorrectly. Rather, that application must 20 also be unreasonable.” Williams, 529 U.S. at 412; accord Schriro v. Landrigan, 550 U.S. 465, 21 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its 22 independent review of the legal question, is left with a ‘firm conviction’ that the state court was 23 ‘erroneous.’”). “A state court’s determination that a claim lacks merit precludes federal habeas 24 relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 25 2 Under § 2254(d)(2), a state court decision based on a factual determination is not to be 26 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, 27 384 F.3d 628, 638 (9th Cir. 2004)).

28 1 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 2 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal 3 court, a state prisoner must show that the state court’s ruling on the claim being presented in 4 federal court was so lacking in justification that there was an error well understood and 5 comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 6 U.S. at 103. 7 If the state court’s decision meets the criteria set forth in § 2254(d), a reviewing court 8 must then conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford, 527 9 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en 10 banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) 11 error and that, if there is such error, we must decide the habeas petition by considering de novo 12 the constitutional issues raised.”). 13 In evaluating whether the petition satisfies § 2254(d), a federal court looks to the last 14 reasoned state court decision. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 15 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates 16 the reasoning from a previous state court decision, the court may consider both decisions to 17 ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 18 2007) (en banc). “When a federal claim has been presented to a state court and the state court has 19 denied relief, it may be presumed that the state court adjudicated the claim on the merits in the 20 absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 21 99. This presumption may be overcome by a showing “there is reason to think some other 22 explanation for the state court’s decision is more likely.” Id. at 99-100 (citing Ylst v. 23 Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner’s 24 claims rejects some claims but does not expressly address a federal claim, a federal habeas court 25 must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson 26 v. Williams, 568 U.S. 289, 293 (2013). 27 Where the state court reaches a decision on the merits but provides no reasoning to 28 support its conclusion, a federal habeas court independently reviews the record to determine 1 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. 2 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo 3 review of the constitutional issue, but rather, the only method by which we can determine whether 4 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no 5 reasoned decision is available, the habeas petitioner still has the burden of “showing there was no 6 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 99-100. 7 When it is clear, however, that a state court has not reached the merits of a 8 petitioner’s claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply 9 and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; 10 Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 11 1056 (9th Cir. 2003). 12 III. ANALYSIS 13 A. Prosecutorial Misconduct 14 Petitioner maintains that Leyva’s testimony against him was the result of prosecutorial 15 misconduct. Specifically, petitioner maintains that the prosecutor used “deceptive and 16 reprehensive methods to influence” Leyva to testify. ECF No. 1 at 5. In its written denial of 17 petitioner’s state habeas petition, the Superior Court addressed this claim as follows3:

18 This petition seeks relief alleging two grounds. First, it alleges prosecutorial misconduct, and second, ineffective assistance of counsel. The second is 19 dependent on the first.

20 Petitioner’s grounds center around the use of a witness and testimony by his co- defendant, Michael Leyva. After Leyva plead to the burglary, he, through his 21 attorney, contacted the Deputy District Attorney, Toby Powell, to offer himself as a witness for the prosecution. In addition to pending the residential burglary 22 sentencing, Leyva was pending misdemeanor charges. Attached to the petition is a transcript of a recorded discussion between Leyva and Powell which, though in- 23 artful, identifies the ‘agreement’ that Leyva tell the truth and the DA can argue for a more favorable sentence in the case and act favorably in the misdemeanor case. 24 Leyva did testify. In essence Leyva admitted he entered the residence at the 25 3 Neither issue raised in this federal habeas petition was addressed by the state appellate 26 court in a reasoned opinion. Rather, when petitioner appealed the Superior Court’s denial of his prosecutorial misconduct and ineffective assistance of counsel claims, the state appellate court 27 denied the appeal in a one-line postcard denial. ECF No. 14-16 at 87. Thus, while petitioner properly exhausted these claims (and respondent so acknowledges (ECF No. 12)), the last 28 reasoned opinion is that of the Superior Court. 1 petitioner’s direction to steal within the residence while petitioner waited outside in a van. Petitioner wore a ski mask while he waited. Leyva ran from the house 2 after stealing a watch when the female victim arrived at the residence. The male victim had been inside sleeping the entire time. Later, after tracking the stolen 3 watch by the use of a tracking application on the watch, Leyva and the petitioner were arrested. 4 . . .

5 Petitioner’s contention is that Powell’s actions in both obtaining Leyva’s agreement to testify and during his examination of Leyva were “deceptive and 6 reprehensive” and amount to egregious misconduct. The petitioner points to the following as the alleged egregious acts: 7 1. Shared the Police report with Leyva to refresh memory. (During Leyva’s 8 testimony.)

9 2. Met with Leyva and spoke with him about his testimony prior to trial. . . .

10 3. The DDA recommending a more lenient sentence in the pending burglary and some favorable resolution of a pending misdemeanor. 11 4. Giving Leyva immunity for his testimony in the misdemeanor case. 12 5. The DDA’s express desire to focus more on, and being more interested in, the 13 prosecution of petitioner based on petitioner’s prior serious criminal history.

14 It is important to note that all of the above were known to petitioner before trial or were actually happening in front of petitioner during the trial. It is also true that 15 none of the above-mentioned conduct on the part of the prosecutor is out of line. For example, it is perfectly acceptable under the evidence code to refresh a 16 witness’s memory by the use of written material, including a police report. It is also perfectly reasonable to meet with and discuss testimony with a witness before 17 trial, particularly where, as here, that conversation is recorded and provided to the defense. 18 In short, none of the specific actions petitioner describes is misconduct. What 19 petitioner then asserts is that, because all of these things happened, there must have been a secret meeting between DDA Powell and Leyva in which improper tactics 20 were employed to persuade Leyva to do something. That ‘something’ is actually not stated with specificity. The ‘leap of logic’ the petitioner asks this court to 21 engage in is this: Based upon petitioner’s interpretation of the actual, known, and legal acts of the prosecutor, the court should assume that a secret action was taken 22 that amounts to prejudicial prosecutorial misconduct. 23 ECF No. 14-13 at 1-2. 24 A criminal defendant’s due process rights are violated when a prosecutor’s misconduct 25 renders a trial fundamentally unfair. Darden v. Wainwright, 477 U.S. 168, 181 (1986). However, 26 such misconduct doe not, per se, violate a petitioner’s constitutional rights. Jeffries v. Blodgett, 5 27 F.3d 1180, 1191 (9th Cir. 1993) (citations omitted). Claims of prosecutorial misconduct are 28 reviewed “‘on the merits, examining the entire proceedings to determine whether the prosecutor’s 1 [actions] so infected the trial with unfairness as to make the resulting conviction a denial of due 2 process.’” Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (citation omitted); see also Greer 3 v. Miller, 483 U.S. 756, 765 (1987); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); 4 Turner v. Calderon, 281 F.3d 851 868 (9th Cir. 2002). Relief on such claims is limited to cases 5 in which the petitioner can establish that prosecutorial misconduct resulted in actual prejudice. 6 Johnson, 63 F.3d at 930 (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). Put 7 another way, prosecutorial misconduct violates due process only when it has a substantial and 8 injurious effect or influence in determining the jury’s verdict. See Ortiz-Sandoval v. Gomez, 81 9 F.3d 891, 899 (9th Cir. 1996). Finally, it is the petitioner’s burden to state facts that point to a 10 real possibility of constitutional error in this regard. O’Bremski v. Maass, 915 F.2d 418, 420 (9th 11 Cir. 1990). 12 Here, petitioner has failed to demonstrate that the decision of the state court regarding 13 alleged prosecutorial misconduct was contrary to or an unreasonable application of, clearly 14 established Supreme Court precedent, or that it was based on an unreasonable determination of 15 the facts of this case. To begin with, petitioner cannot rebut the state court’s reasonable 16 conclusion that “none of the specific actions petitioner describes is misconduct.” ECF No. 14-13 17 at 2. Petitioner has not identified any controlling case law establishing that, for example, it is 18 misconduct for a prosecutor to refresh a witness’ recollection with a document or to meet with a 19 witness, even if that witness is an accomplice. As such, petitioner cannot demonstrate that 20 anything in the state court decision contravened clearly established federal law. See Carey, 549 21 U.S. at 77. Petitioner does speculate that the prosecution used “deceptive and reprehensive 22 methods to influence a witness to testify against petitioner at trial in violation of due process” 23 (ECF No. 1 at 5), but he does not provide any support for his position. He conclusorily alleges 24 that the prosecutor coerced Leyva to fabricate his testimony against petitioner, but his primary 25 support of this allegation is a potentially leading question the prosecutor asked in open court 26 while questioning Leyva. ECF No. 1-1 at 10-12. On this record, the state court’s rejection of 27 petitioner’s claim of prosecutorial misconduct was reasonable. 28 //// 1 B. Ineffective Assistance of Counsel 2 Petitioner also maintains that his counsel failed to object to the alleged prosecutorial 3 misconduct and failed to expose the alleged misconduct to the jury. ECF No. 1 at 8. In its 4 written denial of petitioner’s state habeas petition, the Superior Court addressed this claim as 5 follows:

6 The allegation here is simple. Petitioner contends that his attorney was incompetent for failure to either stop the testimony of Leyva based upon the above 7 described ‘egregious’ conduct of the prosecutor or to otherwise ferret the conduct out and expose that evidence to the jury. 8 . . .

9 When presented with a petition for a writ of habeas corpus, a court must first determine whether the petition states a prima facie case for relief; that is, whether 10 it states facts that, if true, entitle the petitioner to relief, and also whether the stated claims are for any reasons procedurally barred.” (People v. Romero (1994) 8 Cal. 11 4th 728, 737.) Vague or conclusory allegations are insufficient to state a prima facie case. “We are entitled to and we do require of a convicted defendant that he 12 allege with particularity the facts upon which he would have a final judgment overturned.” (In re Swain (1949) 34 Cal. 2d 300, 304). The petition should “state 13 fully and with particularity the facts on which relief is sought.” People v. Duvall (1995) 9 Cal. 4th 464, 474). Finally, “conclusory allegations made without any 14 explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing. (People v. Karis (1988) 46 Cal. 3d 612, 656). 15 In his Petition, petitioner does state facts. He even attaches material, such as 16 transcripts and other writings, which confirm those facts. Those factual assertions come from material provided to the defense before petitioner’s trial as well as 17 testimony taken at the trial; Leyva’s testimony. However, these are not the facts upon which petitioner seeks relief. If that were so, he should have brought the 18 matter on appeal. It is, rather, what petitioner concludes from the stated facts and attachments that fails. Petitioner concludes that from the stated facts, and those 19 contained in his attachments, that some secret and undisclosed meetings and agreements were made between the prosecutor Powell and the witness Leyva that 20 were designed to make the case against petitioner stronger. This conclusion is petitioner’s, but it is not fact. This court sees no facts sufficient to conclude 21 anything other than the known contacts and tactics between Powell and Leyva ever actually occurred. Even if something did it is even further speculative that 22 misconduct occurred. The petition on the first ground shall be denied.

23 It follows that because the first ground falls for lack of factual support that it was not ineffective assistance of counsel to have failed to prevent it or expose it in 24 evidence before the jury. Likewise, the petition fails to make a prima facie case on ground two. 25 26 ECF No. 14-13 at 3. 27 //// 28 /// 1 The Sixth Amendment guarantees the effective assistance of counsel. The United States 2 Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland, 3 466 U.S. at 687-88. To support a claim of ineffectiveness of counsel, a petitioner must first show 4 that considering all the circumstances, counsel’s performance fell below an objective standard of 5 reasonableness. Id. After a petitioner identifies the acts or omissions that are alleged not to have 6 been the result of reasonable professional judgment, the court must determine whether, in light of 7 all the circumstances, the identified acts or omissions were outside the wide range of 8 professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). 9 Second, a petitioner must establish that he was prejudiced by counsel’s deficient performance. 10 Strickland, 466 U.S. at 693-94. Prejudice is found where “there is a reasonable probability that, 11 but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 12 Id. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the 13 outcome.” Id. See also Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing 14 court “need not determine whether counsel’s performance was deficient before examining the 15 prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to 16 dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice. . . . that course 17 should be followed.” Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 18 466 U.S. at 697). 19 In assessing an ineffective assistance of counsel claim, “[t]here is a strong presumption 20 that counsel’s performance falls within the ‘wide range of professional assistance.’” Kimmelman 21 v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689.). There is also a 22 strong presumption that counsel “exercised acceptable professional judgment in all significant 23 decisions made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. 24 at 689). 25 Petitioner cannot demonstrate that the state court’s decision rejecting petitioner’s claim of 26 ineffective assistance of counsel was an unreasonable application of clearly established federal 27 law, or that it was based on an unreasonable determination of the facts of this case. As the state 28 court properly concluded, petitioner’s claim for ineffective assistance is based on his claim of 1 prosecutorial misconduct, in that petitioner alleges that his attorney was incompetent for failing to 2 either stop Leyva’s testimony, or to expose the alleged misconduct to the jury. ECF No. 1. 3 Petitioner’s ineffective assistance claim, premised as it is on the notion that the prosecutor 4 engaged in misconduct, necessarily fails. As discussed supra, the prosecutor did not, as petitioner 5 suggests, commit misconduct. Rather, the record reflects that petitioner’s trial counsel could 6 reasonably have determined that nothing in the prosecutor’s conduct warranted an objection. See 7 Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (holding that failure to take a futile or 8 meritless action is not deficient performant); see also Lowry v. Lewis, 21 F.3d 344, 346 (1994) 9 (finding that effective assistance does not require a lawyer “to file a motion which he knows to be 10 meritless on the facts and the law.”). Given that petitioner cannot demonstrate incompetency on 11 the part of his counsel, he also cannot demonstrate prejudice, and his claim must be denied. See 12 Strickland, 466 U.S. at 687-88. 13 C. Motion for Default Judgment 14 Petitioner has also brought a motion for default judgment, alleging that respondent did not 15 timely file an answer to his petition. ECF No. 13. This court ordered respondent to file an 16 answer within 60 days of June 21, 2023. ECF No. 7. Respondent filed an answer on July 28, 17 2023, well within the court-ordered deadline.4 ECF No. 12. Accordingly, petitioner’s motion for 18 default judgment must be denied. 19 IV. RECOMMENDATION 20 For the reasons stated above, it is hereby RECOMMENDED that both the petition for writ 21 of habeas corpus and the motion for default judgment (ECF No. 13) be DENIED. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 27 4 Respondent’s answer was served by mail on petitioner, according to the proof of service. 28 ECF No. 12 at 12. 1 || within the specified time may waive the right to appeal the District Court's order. Turner v. 2 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). In 3 | his objections petitioner may address whether a certificate of appealability should issue in the 4 || event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing § 5 || 2255 Cases (the district court must issue or deny a certificate of appealability when it enters a 6 | final order adverse to the applicant).

8 || Dated: May 29, 2024 Lat ibttied FeLACHM EDMUND F. BRENNAN 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12