RAUL A. VALENCIA, Case No. 1:19-cv-00398-NONE-JDP Petitioner, FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR A WRIT OF HABEAS v. CORPUS AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DUE WITHIN 30 DAYS Respondent. ECF No. 1 Petitioner Raul A. Valencia, a state prisoner without counsel, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. Petitioner claims that: (1) his trial and appellate counsel were ineffective; (2) the prosecutor engaged in misconduct; and (3) the California Court of Appeal erred when it denied him habeas relief. See generally ECF No. 1. For the reasons set forth below, we recommend that the court deny the petition and decline to issue a certificate of appealability. I. Background In 2013, a Stanislaus County jury convicted petitioner of three counts of robbery. ECF No. 20 at 8. The jury also found that petitioner personally used a firearm in two of the robberies and that his co-defendant was armed during the other robbery. Id. Petitioner was sentenced to thirty-two years and eight months in state prison. Id. We set forth below the pertinent facts, as summarized by the California Court of Appeal.1 A presumption of correctness applies to these facts. See 28 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015). On January 14, 2013, four robberies were reported over a roughly three-hour period of time in Stanislaus County. The first robbery was reported around 5:17 p.m. and occurred at a Millennium Food and Liquor. The victim of that robbery and a separate witness told the police that two suspects approached the store. One stood at the door while the other approached the victim, pointed a gun at him, and took both money and alcohol. A third witness, who was not contacted by the police, allegedly told the victim that the suspects fled in a black Volvo. Surveillance cameras at the store captured images of the suspects and of a black car leaving the scene under circumstances suggesting the car was used by the suspects in the robbery. A picture was taken of the surveillance video, showing the black car, and was emailed to other officers. The second robbery was reported at approximately 5:31 p.m. and occurred at a Golden West Market. This robbery again involved two male suspects, one of which was armed with a gun. Money was taken from the register.
The third robbery was reported at approximately 8:00 p.m. and occurred at a Country Market. Once again a gun was used. The fourth robbery was reported at approximately 8:33 p.m. and occurred at a Viva Market. The robbery was done by two suspects, one of which had a gun. The suspects fled in a used, but newer, black car, which was believed to be a Volvo.
At approximately 9:04 p.m., Modesto Police Officer William Jones and his partner, Officer Watson, were patrolling an area very near to three of the reported robberies. Officers Jones and Watson had received a notice to be on the lookout for a black Volvo and had received and viewed the image of the vehicle emailed after the first robbery. As Officer Jones was driving, he saw a black Volvo approach from the opposite direction. This was the first black Volvo Officer Jones had seen while on patrol and it closely matched both the description and the picture of the car believed to be involved in the reported robberies. Although the windows were tinted, Officer Jones believed he saw three individuals in the car. Based on these facts, Officer Jones initiated a traffic stop on the vehicle.
1 These facts are taken from the Court of Appeal’s opinion on petitioner’s direct appeal of his conviction, in which petitioner claimed that the trial court erred when it denied his motion to exclude evidence. ECF No. 21-6. His direct appeal was rejected on the merits in a reasoned decision and he did not seek California Supreme Court review. ECF No. 21-8. Petitioner then sought habeas relief in the state courts, exhausting the claims presented here. ECF No. 20 at 8-9. People v. Valencia, No. F0716202017, Cal. App. Unpub. LEXIS 884 (Feb. 7, 2017); ECF No. 21-8. Officers Jones and Watson found Patricio Sandoval, Antonia Valencia, and petitioner inside the car that they pulled over. ECF No. 21-5 at 58. The officers searched the suspects and the vehicle, finding cash on all suspects, including $675 on petitioner, as well as a handgun, gray jacket, and, in the trunk, a bottle of Crown Royal. Id. at 59-64. The suspects were handcuffed and placed in a police patrol vehicle. Id. at 12-13. They were then individually removed from the vehicle, while handcuffed, and shown to the victims. Id. All four of the witnesses were given a Simmons admonishment and asked to identify any persons involved in the robbery. 2 Id. at 10, 20, 40, 88. Nagi Saad, the first witness, did not identify any of the suspects as involved in the robbery. Id. at 97. Bupinder Singh, the second witness, identified Sandoval and petitioner as two of the robbers and stated that he was “100%” certain about his identifications. Id. at 92. Singh stated that he did not recognize Antonio Valencia. Id. At trial, Singh was unable to identify petitioner as one of the robbers. Id. at 123. The third witness, Fares Alwarafi, in addition to being shown the suspects, was shown the gray jacket and handgun found in the back of the suspects’ car. ECF No. 21-5 at 21-22. Alwarafi identified the jacket as the one worn by the gunman and the gun as that used in the robbery. Id. at 22-23. Alwarafi was unsure whether the suspects he was shown were involved in the robbery. Id. at 23. At trial, Alwarafi testified that the gunman was wearing a gray jacket, but he did not identify petitioner as an individual involved in the robbery. Id. at 177. A police officer interviewed witness Ana Verduzco at the scene of the robbery. ECF No. 21-5 at 10-11. The officer showed Verduzco photographs of the suspects, possibly describing
2 In California, it is common to give a Simmons admonishment to a witness before he or she is asked to identify a criminal suspect. See Simmons v. United States, 390 U.S. 377 (1968). The admonishment states: “You will be asked to look at a subject. The fact that the subject is shown to you should not influence your judgment. You should not conclude or guess that the subject is the person who committed the crime. You’re not obligated to identify anyone. It is just as important to free innocent persons from suspicions as to identify guilty parties. Please do not discuss the case with other witnesses, nor indicate in any way that you have identified someone.” ECF No. 21-5 at 89. them as individuals who “had just committed a robbery in the Modesto area.” Id. There is no evidence in the record that Verduzco made a positive identification of any of the suspects during this photographic lineup. Verduzco was then brought to the scene of the traffic stop. Id. at 12. The police officer gave her a Simmons admonishment and asked her to identify any persons involved in the robbery. Id. at 10. Verduzco stated that she believed petitioner was one of the robbers, but she was uncertain. Id. at 14. However, she stated that petitioner’s build and clothing matched that of one of the robbers. At trial, Verduzco was unable to identify petitioner as one of the robbers. Id. at 129. II. Discussion A federal court can grant habeas relief when a petitioner shows that his custody violates federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 (2000).3 Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), governs a state prisoner’s habeas petition. See Harrington v. Richter, 562 U.S. 86, 97 (2011). To decide a § 2254 petition, a federal court examines the decision of the last state court to have issued a reasoned opinion on petitioner’s habeas claims. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). In general, § 2254 requires deference to the state court system that produced the relevant conviction and sentence. Under AEDPA, a petitioner can obtain relief on federal habeas claims that have been “adjudicated on the merits in state court proceedings” only if the state court’s adjudication resulted in a decision (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The petitioner’s burden is great. See Harrington v. Richter, 562 U.S. 86, 103 (2011) (“[To gain relief under § 2254(d)(1), a petitioner] must show that the state court’s ruling . . . was so lacking in justification that there was an error well understood and 3 This court has jurisdiction over the petition pursuant to 28 U.S.C. § 2241(a): “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” comprehended in existing law beyond any possibility for fairminded disagreement.”); see Davis v. Ayala, 576 U.S. 257, 271 (2015) (quoting § 2254(e)(1)) (“[Under § 2254(d)(2), s]tate-court factual findings . . . are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’”). If obtaining habeas relief under § 2254 is difficult, “that is because it was meant to be.” Richter, 562 U.S. at 102. As the Supreme Court has put it, federal habeas review “disturbs the State’s significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.” Id. at 103 (citation omitted). Our habeas review authority serves as a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. at 102-103. Most of petitioner’s current claims—specifically, his claims of ineffective assistance of trial and appellate counsel and prosecutorial misconduct— were presented to the Stanislaus County Superior Court in a habeas petition. ECF No. 21-9. That court rejected the claims on the merits in a reasoned decision. ECF No. 21-10. The California Court of Appeal denied the petition “without prejudice to petitioner demonstrating exhausting [sic] his legal remedies by first petitioning the superior court where he was convicted,”4 ECF No. 21-12, and the California Supreme Court summarily denied review, ECF No. 21-14. Because the superior court issued the last reasoned decision on the claims, we review the decision of that court, applying the deferential standard of § 2254. See Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003) (explaining that “[b]ecause, here, neither the court of appeal nor the California Supreme Court issued a reasoned opinion on the merits of this claim, we look to the trial court’s decision” on federal habeas review). The lone additional claim, that the California Court of Appeal erred when it denied petitioner habeas relief, was summarily rejected by the California Supreme Court. ECF No. 21-
4 It appears that petitioner raised the same claims in his superior court and Court of Appeal habeas petitions. ECF Nos. 21-9, 21-11. The Court of Appeal did not identify which claims were unexhausted. 14. Because the California Supreme Court summarily rejected this claim, we must conduct an independent review of the record to determine whether the state court’s final resolution of the case constituted an unreasonable application of clearly established federal law; nonetheless, we give deference under AEDPA to that decision. See Greene v. Lambert, 288 F.3d 1081, 1088-89 (9th Cir. 2002); Himes v. Thompson, 336 F.3d 848, 853 & n.3 (9th Cir. 2003) (“Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.”). A. Ineffective Assistance of Counsel Petitioner argues that his trial counsel was ineffective because he: (1) failed to call a witness who had described the gunman as a “white male with medium length hair,” ECF No. 1 at 19; (2) failed to elicit testimony from Singh that he had previously been unable to identify petitioner, id.; (3) unnecessarily asked witnesses whether petitioner had an accent, id.; (4) failed to highlight discrepancies between the witnesses’ testimony during the investigation and at trial, id. at 20-21, 54, 58, 67, 73, 85; (5) had a conflict of interest, id. at 21-22, 95-97; and (6) improperly conceded probable cause at the preliminary hearing and at a hearing to set aside a charge,5 id. at 22, 98—and, additionally, (7) that his appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel on appeal, id. at 107. The two-step inquiry from Strickland v. Washington, 466 U.S. 668, 687 (1984), guides our review. Under Strickland, a criminal defendant first must show some deficiency in performance by counsel that is “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Id. Second, the defendant must show that the deficient performance caused him prejudice. Id. This requires petitioner to show “that there
5 Additionally, petitioner makes the general claims that his trial counsel “failed to proffer any defense whatsoever,” ECF No. 1 at 21, and “failed to investigate . . . and prep for trial in all regards,” id. at 21. We reject these arguments—the record reveals that his counsel investigated his case, prepared for trial, and mounted a defense. Petitioner also appears to claim that he was forced to proceed with his counsel against his wishes because he is a “layman of law and had no other option.” Id. at 22. Although petitioner may have been unsatisfied with his appointed counsel, petitioner has given the court no reason to think that his constitutional rights were violated by his counsel’s representation, and accordingly we reject his claim. is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. On habeas review, when filtered through § 2254(d)’s fairminded-jurist standard, the Strickland requirements become even more deferential, and we must ask “whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. If there is even one reasonable argument that counsel did not violate the Strickland standard—even if the state court has not identified the argument—then the petitioner cannot obtain habeas relief. See id. at 106. In general, strategic choices made by counsel receive a “heavy measure of deference.” See Strickland, 466 U.S. at 690-91 (explaining that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation”). “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. In addressing petitioner’s counsel’s performance, we must ask whether his strategic choices were reasonable under “prevailing professional norms.” Id. at 688. 1. Failure to call a witness Petitioner argues that his counsel was ineffective when he failed to call a witness named Corbin who had described the gunman who robbed Singh as a “white male with medium length hair.” ECF No. 1 at 19. The superior court rejected petitioner’s claim on the merits in a reasoned decision, which we review under the deferential standard of § 2254. The superior court found that petitioner had failed to explain why the jury would have credited Corbin’s testimony over the testimony of Singh, and accordingly that petitioner had failed to show that he was prejudiced by the absence of the testimony. ECF No. 21-10 at 2. To establish prejudice from the failure to call a witness, petitioner would need to show that the witness was likely to have been available to testify, the witness would have testified in support of the petitioner, and the witness’ testimony would have created a reasonable probability that the jury would have reached a verdict more favorable to the petitioner. See Alcala v. Woodford, 334 F.3d 862, 872-73 (9th Cir. 2003). Petitioner has failed to meet the first prong of Alcala. At the hearing on petitioner’s motion for a new trial, the prosecution stated that they Corbin may have had evidence which would assist in the state’s case and had attempted to secure Corbin as a witness but were unsuccessful. ECF No. 21-5 at 259. Petitioner has failed to show that his own counsel would have fared better in securing Corbin’s presence at trial, much less that Corbin would have given the testimony that petitioner sought and that the testimony would have created a reasonable probability of a more favorable verdict. Accordingly, the undersigned recommends that petitioner’s claim be denied. 2. Failure to impeach Singh Petitioner claims that his counsel was ineffective because he failed to elicit from Singh testimony that Singh had previously been unable to identify petitioner. ECF No. 1 at 19. The superior court rejected petitioner’s claim on the merits in a reasoned decision, which we review under the deferential standard of § 2254. The superior court found that petitioner’s counsel had “spent large amounts of time” exploring the issue of identity when questioning witnesses and that petitioner had failed to show how additional questioning would have changed the jury’s verdict. ECF No. 21-10 at 1. Lawyers have “no duty to pursue investigations likely to be fruitless or even harmful,” and “they have no duty to inject evidence likely to open the door to additional evidence that would be harmful.” Stanley v. Schriro, 598 F.3d 612, 636-37 (9th Cir. 2010); see Bell v. Cone, 535 U.S. 685 (2002) (holding that counsel made a reasonable strategic decision to waive closing argument because it prevented unfavorable evidence from being presented to the jury). This issue was considered at a post-trial hearing on petitioner’s motion for a new trial, at which petitioner recounted a conversation he had with his counsel during the trial. ECF No. 21-5 at 243. Petitioner stated that he had confronted his trial counsel and had asked why he did not attempt to highlight that Singh had not been able to identify petitioner at trial.6 Id. According to petitioner, his counsel responded, “What if he would have said it was you?”—revealing that
6 Singh had identified petitioner as a robber during the field identification. ECF No. 21-5 at 91- 92. However, at trial, Singh stated that he was only able to identify Sandoval as a robber; he did not identify petitioner. Id. at 242 counsel had made a strategic decision not to highlight this discrepancy in order to avoid potentially harmful testimony. Id. At the post-trial hearing, moreover, his counsel took many opportunities to highlight discrepancies in Singh’s testimony during closing argument. See ECF No. 21-5 at 142-47, 151. Giving the deference to counsel’s strategic choices that is required under Strickland, we cannot find that petitioner’s counsel’s actions were deficient. Neither can we find that this counsel’s actions prejudiced petitioner. Indeed, it seems quite possible that the line of questioning petitioner sought would have hurt him. As it was, the jury witnessed Singh’s inability to identify petitioner at trial, which could reasonably be expected to cast doubt on the reliability of Singh’s initial identification of petitioner. Petitioner has failed to show that the outcome of the trial would have been better for petitioner had his counsel attempted to impeach Singh with his earlier testimony. 3. Questioning about the gunman’s accent Petitioner argues that his counsel’s line of questioning regarding his accent, or lack thereof, was unnecessary. ECF No. 1 at 19. The superior court rejected this argument on the merits in a reasoned decision, and so we apply the deferential standard of § 2254. The superior court found that any error by petitioner’s counsel was not the sort of “tactical error” warranting reversal. ECF No. 21-10 at 1. Attorneys are not expected to be “flawless,” and they may not be “faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities.” Harrington v. Richter, 562 U.S. 86, 110 (2011). The entire performance of the attorney must be considered; it is “difficult to establish ineffective assistance when counsel’s overall performance indicates active and capable advocacy.” Id. at 111. During the police officers’ investigation, Verduzco told officers that the gunman “sounded like a Mexican guy.” ECF No. 21-4 at 234. At trial, counsel elicited testimony from Singh and Verduzco regarding petitioner’s accent and both testified that the robber spoke without an accent.7 ECF No. 21-4 at 164-66, 234. When it became clear that neither witness recalled 7 A police officer also testified that, when questioned by the prosecution whether petitioner had an accent, there was “nothing that I recall out of the ordinary” about petitioner’s speech. ECF petitioner having an accent, petitioner’s counsel discontinued the line of questioning. Considering Verduzco’s prior statements, petitioner’s counsel could have reasonably expected the witnesses to testify that the gunman had an accent. We cannot find that petitioner’s counsel’s performance was deficient for this “reasonable calculation.” Moreover, even if these lines of questioning constitute error, petitioner has failed to show any prejudice arising from them. The jury did not hear petitioner speak during the trial, and we have no indication that the jury knew whether he had an accent or not.8 Petitioner has failed to show that the witnesses’ testimony served to inculpate him, and therefore he has failed to show that the outcome would have been better for petitioner absent these questions. 4. Discrepancies between the witnesses’ testimony during the investigation and at trial Petitioner argues that his counsel was ineffective because he failed to highlight various discrepancies between the witnesses’ testimony during post-robbery interviews with police officers, at the in-field identifications, and during trial. Specifically, petitioner argues that his counsel should have: highlighted that petitioner’s clothing at arrest was different than the gunman’s clothing during the robbery, as evidenced by a surveillance video and a photo, ECF No. 1 at 20; highlighted discrepancies in Alwarafi’s testimony regarding petitioner’s clothing, id. at 20-21, 58, 54; cross-examined detectives Rivera and Gonzales concerning differences in the gunman’s clothing described by eyewitnesses and petitioner’s clothing at arrest, id. at 20; and cross-examined Verduzco on her testimony regarding petitioner’s clothing at the photographic lineup and in-field identifications, id. at 73, 85. The superior court rejected petitioner’s claim on the merits in a reasoned decision, which we review under the deferential standard of § 2254. The superior court noted that petitioner’s counsel “spent large amounts of time” questioning witnesses’ identifications and that petitioner “failed to show how counsel could have done more No. 21-5 at 64. 8 Petitioner states that he “never took . . . the stand” during the trial. ECF No. 1 at 19. to make the point that in some cases the identifications of petitioner as the suspect were not absolute.” ECF No. 21-10 at 1-2. Petitioner has not shown deficient performance. Contrary to his assertions, his counsel highlighted the discrepancies between the clothing seen on the gunman and petitioner’s clothing at arrest. Defense counsel reminded the jury that Alwarafi only identified the gray jacket after the robbery but did not identify petitioner as the robber during the in-field identification. ECF No. 21-5 at 146-47. Petitioner’s counsel elicited testimony from Deputy Gonzales that the gunman in the surveillance video wore a covering over his face, a blue sweatshirt, and black pants.9 Id. at 6. On cross examination of Officer Rivera, petitioner’s counsel called into doubt the reliability of a still photo taken of the gunman from the surveillance video and moved to strike Rivera’s testimony regarding the photo. Id. at 54-56. Petitioner also questioned Rivera in an effort to discredit the reliability of the identification of the black Volvo. Id. at 59-60. Petitioner’s counsel cast doubt on Verduzco’s testimony. Shortly after the robbery, Verduzco told an officer that the robber had been wearing a dark sweatshirt, but that she was uncertain whether petitioner was the robber. ECF No. 21-4 at 11, 29. And although petitioner argues that his counsel should have cross-examined Verduzco regarding the photographic lineup, he has neither pointed to any evidence that Verduzco made a positive identification of petitioner during the photographic lineup, nor given any indication that the jury was aware that Verduzco had been shown the photographic lineup.10 Subsequently, Verduzco was unable to definitively identify petitioner as the gunman at either the in-field identification or trial.11 ECF No. 21-5 at 246. At trial, petitioner’s counsel questioned Verduzco about her primary focus on the gun 9 Petitioner argues that his counsel should have used Gonzales’ police report containing Alwarafi’s post-robbery statements to highlight the discrepancies in Alwarafi’s testimony regarding the clothing of the gunman. However, petitioner’s counsel highlighted the discrepancies in Alwarafi’s own testimony—additional testimony regarding the police report would have been cumulative. ECF No. 21-5 at 146-47; ECF No. 21-10 at 1. 10 We have only found mention of the photographic lineup at the preliminary hearing and at petitioner’s post-trial hearing on his motion for a new trial. ECF No. 21-5 at 253. 11 At trial, petitioner’s counsel asked Verzduzco, “do you remember what his [robber’s] clothes looked like?” and Verduzco answered “No, I don’t.” Id. at 247. during the robbery, and she testified that she did not remember much about the appearance of the gunman. ECF No. 21-4 at 153, 232-34. In closing, petitioner’s counsel urged the jury to “focus on the non-identification . . . focus on the clothing, focus on the descriptions . . . the reasonable doubt . . . [c]arloads of reasonable doubt” and argued that the difference in clothing demonstrated that petitioner was not the robber. ECF No. 21-5 at 156. He specifically emphasized that “Verduzco said she only recognized the guy with the blue sweatshirt and [petitioner] wasn’t wearing that.” Id. Petitioner has not shown that his counsel needed to do more to highlight the discrepancies in the witnesses’ testimony. Giving deference to counsel’s strategic decisions, we cannot find that his choice constituted deficient performance. Moreover, petitioner has failed to show that he was prejudiced by his counsel’s decisions. The prosecution itself made the jury aware of the difference between the gunman’s clothing and petitioner’s clothing at the time of his arrest, introducing both surveillance video footage of one of the robberies and a photo of petitioner at the time of his arrest. The prosecution addressed the difference in clothing during closing arguments, suggesting that petitioner could have changed his clothing between the robbery and arrest. ECF No. 21-4 at 160; ECF No. 21-5 at 66-67. The prosecution also made the jury aware of the discrepancies in Alwarafi’s testimony, even stating that Alwarafi “may have been mistaken.” ECF 21-5 at 126. And despite the difference in clothing, the jury could have found similarities between the gunman and petitioner—such as similar body frames and heights—probative of his guilt. At the time of his arrest, petitioner was found with a large amount of cash and a bottle of Crown Royal whiskey—a type of liquor that had been stolen during one of the robberies. ECF No. 21-5 at 60- 63. Petitioner was found by police officers in a black Volvo with Sandoval, who was identified by every victim as one of the robbers. See id. at 14, 23, 91. The jury was charged with determining what significance, if any, to accord the discrepancy in clothing, in light of the other evidence presented at trial. See United States v. Brady, 579 F.2d 1121, 1127 (9th Cir. 1978) (noting that “it is the exclusive function of the jury to determine the credibility of the witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts”). The undersigned recommends that this claim be denied. 5. Counsel Conflict of Interest Petitioner argues that his counsel had a conflict of interest because he believed that petitioner was guilty. ECF No. 1 at 21-22, 95-97. Although the superior court did not explicitly address this claim, we assume that the court rejected the claim on the merits and accordingly give the superior court’s decision deference under § 2254. See Johnson v. Williams, 568 U.S. 289, 301 (2013). We cannot find that the superior court’s rejection of petitioner’s claim was an unreasonable application of clearly established federal law. A counsel’s conflict of interest can violate a defendant’s Sixth Amendment rights where the petitioner can show an “actual,” not speculative, conflict—and that the conflict “adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); see Mickens v. Taylor, 535 U.S. 162 (2002). Petitioner has not done so. We can find no U.S. Supreme Court case that protects a criminal defendant from an attorney who believes him to be guilty. Moreover, petitioner’s only support for his claim that his attorney thought he was guilty is that his counsel stated to him privately, “you did four robberies.” ECF No. 1 at 22. Petitioner has presented no proof that his counsel’s alleged belief presented an actual conflict of interest, much less that this supposed conflict adversely affected his counsel’s performance. Petitioner’s claim should be denied. 6. Concession of probable cause Petitioner argues that his counsel was ineffective when he conceded probable cause at the preliminary hearing, ECF No. 1 at 22, 98, and in his motion to set aside his charge for the robbery of Alwarafi, id. at 22, 103. Although the superior court did not explicitly address this claim, we assume that the court rejected it on the merits and accordingly give the superior court’s decision deference under § 2254. See Williams, 568 U.S. at 301. Although “federal habeas corpus relief does not lie for errors of state law,” Estelle v. McGuire, 502 U.S. 62, 67 (1991), a habeas petitioner can gain relief on an ineffective assistance of counsel claim if he can show both that his attorney was ignorant of “a point of law that [was] fundamental to his case,” and that his attorney failed “to perform basic research on that point of state law.” Hinton v. Alabama, 571 U.S. 263, 274 (2014) (explaining that such a failure is a “quintessential example of unreasonable performance under Strickland”). Here, petitioner has failed to demonstrate that his counsel was ignorant of the relevant state law—that is, the law governing preliminary hearings and motions to set aside charges. Under Cal. Penal Code § 872(a), a trial court may “hold a defendant to answer on felony charge” at the preliminary hearing where there is “sufficient cause to believe that the defendant is guilty.” Sufficient cause exists if facts have been presented that would “lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” People v. Ortiviz, 74 Cal. App. 3d 537, 541 (1977). A finding of sufficient cause “may be based in whole or in part upon the sworn testimony of a law enforcement officer . . . relating the statements of declarants made out of court offered for the truth of the matter asserted.” Cal. Pen. Code § 872(b). After a defendant has been held to answer for a charge, he can move to set aside the charge on the theory that he “has been committed without reasonable or probable cause.” Cal. Pen. Code § 995(a)(2)(B). Petitioner has failed to show that his counsel’s performance was deficient. At the preliminary hearing, multiple police officers testified to petitioner’s involvement in the robbery, one of them stating that Singh was “100%” certain of his identification of petitioner shortly after the robbery. ECF No. 21-5 at 92. Petitioner’s counsel then stated that Singh’s identification was sufficient for “preliminary hearing purposes” and that the evidence of the robbery of Singh was “clear.”12 ECF No. 21-1 at 120-23. In his motion to set aside the Alwarafi charge, petitioner’s counsel acknowledged that petitioner “was definitively identified as the gunman” in the Singh robbery. Id. at 187. Petitioner’s counsel’s statements were supported by the record; he had no duty to make futile arguments. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (explaining that attorneys have no duty to raise meritless arguments).
12 Notably, at the preliminary hearing petitioner’s counsel argued that there was insufficient evidence to hold petitioner to answer for the robbery of Alwarafi, ECF No. 21-5 at 121, and then later moved to have this charge dropped, id. at 187. Counsel’s actions suggest that that he attempted to highlight weaknesses in the government’s case while also offering the court realistic assessments. Moreover, petitioner has failed to show how he was prejudiced by his counsel’s concession. Because the evidence of probable cause was sufficient to hold petitioner to answer for the robbery of Singh, the court could have found probable cause despite counsel’s concession. And petitioner has failed to show how counsel’s brief mention of Singh’s positive identification in his motion to set aside the Alwarafi charge had any effect on the outcome of the trial. 7. Ineffective assistance of appellate counsel Petitioner argues that his appellate counsel was ineffective because he failed to argue on direct appeal that petitioner’s trial counsel was ineffective. ECF No. 1 at 5, 8, 22, 107. The superior court rejected petitioner’s claim on the merits in a reasoned decision, which we review under the deferential standard of § 2254. The superior court found that, because petitioner failed to show that his trial counsel was ineffective, he necessarily also failed to show that his appellate counsel was ineffective for failing to argue ineffectiveness on appeal. ECF No. 21-10 at 3. The superior court’s determination was not contrary to clearly established federal law. A defendant’s right to appellate representation does not include a right to present non-viable arguments. See McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 436 (1988); Morrison v. Estelle, 981 F.2d 425, 429 (9th Cir. 1992) (explaining that appellate counsel cannot be found ineffective for failing to raise an argument that would not have been successful). Even if petitioner’s ineffective assistance of counsel claims had merit, no U.S. Supreme Court decision holds that a “defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.” Jones v. Barnes, 463 U.S. 745, 751 (1983). Here, petitioner’s claims of ineffective assistance of trial counsel are meritless; he has failed to meet the requirements of Strickland. We cannot find that his appellate counsel was deficient for failing to argue ineffective assistance of trial counsel, or that petitioner was prejudiced by appellate counsel’s failure to raise this claim.13 The undersigned recommends that this claim be denied. B. Prosecutorial Misconduct Petitioner argues that the prosecution knowingly presented false evidence concerning Alwarafi’s description of the gunman’s clothing. ECF No. 1 at 7. The superior court rejected the claim, unconvinced by petitioner’s argument that any evidence presented by the prosecution that contradicted the police report must be false. The court stated that “nothing in the record shows why the information in the police report is the correct version of the facts.” ECF No. 21-10 at 3. We review the superior court’s opinion—the last reasoned opinion on this claim—under the deferential standard of § 2254. Napue v. Illinois governs our inquiry into claims that a prosecutor presented false evidence at trial. 360 U.S. 264 (1959). To prevail on a Napue claim, “the petitioner must show that (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony (or evidence) was actually false, and (3) that the false testimony (or evidence) was material.” Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010) (quoting United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)). False evidence is “material” when there is a “reasonable likelihood that the evidence could have affected the judgment of the jury.” United States v. Bagley, 473 U.S. 667, 680 (1985); see United States v. Agurs, 427 U.S. 97, 104 (1976). According to the police report, Alwarafi initially told officers that the gunman wore a blue sweatshirt. ECF No. 1 at 7. At trial, however, Alwarafi testified that the gunman was wearing a gray jacket. Id. at 62. In the closing statement, the prosecutor stated that “there are differences here in Mr. Alwarafi’s testimony.” ECF No. 12-5 at 125. The prosecutor theorized that perhaps petitioner had dressed in layers that day or that Alwarafi was mistaken about petitioner’s clothes altogether. See id. at 126. The prosecutor then urged the jury to “look at the way . . . Alwarafi testified” and to “consider how that testimony was.” Id. at 127.
13 Petitioner raised this claim unsuccessfully in his state habeas petitions Petitioner has failed to show that the evidence presented by the prosecutor at trial was “actually false.” Inconsistent witness statements do not establish a Napue violation. See United States v. Bingham, 653 F.3d 983, 995 (9th Cir. 2011); United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) (“The fact that a witness may have made an earlier inconsistent statement . . . does not establish that the testimony offered at trial was false.”); United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (finding no prosecutorial misconduct where “[a]t most, the prosecutor presented contradictory testimony”). Alwarafi’s inconsistent statements were addressed directly by the prosecutor, and there is no proof that the prosecutor mischaracterized the testimony. Because petitioner has failed to meet the first prong of Napue—since he cannot show that the testimony was actually false—we need not analyze the remaining prongs.14 The superior court’s rejection of petitioner’s claim was not contrary to clearly established law. Therefore, his claim should be denied. C. California Court of Appeal’s Denial of Habeas Petition Petitioner argues that the Court of Appeal erred when it rejected his habeas petition as untimely under state procedural rules. ECF No. 1 at 10. Because the California Supreme Court summarily rejected this claim, we review that decision under the standard announced in Greene, 288 F.3d at 1088-89. As a preliminary matter, “[a] federal habeas petition is not the proper vehicle for addressing the adequacy of process provided . . . in state post-conviction proceedings.” Silversky v. Frink, 500 F. App’x 625, 626 (9th Cir. 2012). Moreover, we are bound on federal habeas review by a state court’s interpretation of state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle, 502 U.S. at 67-68 (“[I]t is not the province of a federal habeas court to reexamine 14 If we were to analyze the remaining prongs, petitioner would have difficulty showing that the prosecutor’s statements were material, i.e., that they affected the judgment of the jury. Petitioner’s counsel sought to rebut the prosecution’s theory of the case in his closing argument, attempting to cast doubt on Alwarafi’s testimony and identification. ECF No. 21-5 at 133; 148. The jury was then free to make credibility determinations about all the evidence presented, including Alwarafi’s testimony. See Jackson v. Denno, 378 U.S. 368, 386 (1964) (noting that questions of witness credibility are for the jury to resolve). Moreover, the inconsistencies in Alwarafi’s testimony may have cast doubt on his credibility, advantaging petitioner. state-court determinations on state-law questions.”). Therefore, we recommend that petitioner’s claim be denied.15 III. Certificate of Appealability A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to show that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the denial of a constitutional right. Thus, we recommend that the court not issue a certificate of appealability. IV. Findings and Recommendations We recommend that the court deny the petition for a writ of habeas corpus, ECF No. 1, and decline to issue a certificate of appealability. These findings and recommendations are submitted to the U.S. District Court judge presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty days of the service of the findings and recommendations, petitioner may file written objections to the findings and recommendations with the court and serve a copy on all parties. That document must be captioned “Objections to Magistrate Judge’s Findings and 15 Moreover, petitioner has given us no reason to believe that his constitutional rights were violated by the Court of Appeal’s rejection of his habeas petition. Despite the Court of Appeal’s ruling, petitioner was able to present the same claim to the California Supreme Court in his petition for review. ECF No. 20 at 28. Cow 4.49 UV □□□ □□ INE VR MUO ot PR vere AY ot VI a
Recommendations.” The district judge will then review the findings and recommendations under 28 US.C. § 636(b)(1)(C). ° p : —N prssann — Dated: _ September 2, 2020 UNI STATES MAGISTRATE JUDGE No. 206. 19