8 UNITED STATES DISTRICT COURT
9 FOR THE CENTRAL DISTRICT OF CALIFORNIA
10 Case No. 2:11-cv-08020-SSS-AGR 11 MARLON EDGARDO SIGUENZA,
12 Petitioner, 13 ORDER ACCEPTING FINDINGS v. AND RECOMMENDATION OF 14 MAGISTRATE JUDGE 15 DOMINGO URIBE, JR.,
16 Respondent. 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ 19 of Habeas Corpus, the other records on file herein, the Report and 20 Recommendation of the United States Magistrate Judge (“Report”), and the 21 Objections. Further, the Court has engaged in a de novo review of those 22 portions of the Report to which objections have been made. 23 The Report recommends denial of the First Amended Petition and 24 dismissal of this action with prejudice. [Dkt. 118]. Petitioner’s Objections 25 focus on the Report’s analysis of Grounds Six to Eight, in which Petitioner 26 claims ineffective assistance of counsel. [Dkt. 124]. The primary basis of 27 Petitioner’s objections is that his counsel failed “to present a mental-state 1 defense” at trial based on Petitioner’s alleged post-traumatic stress disorder 2 (“PTSD”). [Id. at 6]. For the reasons discussed below, however, Petitioner’s 3 Objections to the Report do not warrant a change to the Magistrate Judge’s 4 findings or recommendation. 5 Petitioner objects that the record does not adequately explain counsel’s 6 failures with regard to the PTSD defense. [Dkt. 124 at 7]. But this misstates the 7 standard, which does not require such an explanation to appear affirmatively in 8 the record. The “absence of evidence” cannot satisfy Petitioner’s burden of 9 proving ineffective assistance of counsel. Dunn v. Reeves, 141 S. Ct. 2405, 10 2410 (2021). Indeed, even if the record suggests that counsel’s conduct was 11 “far from exemplary,” the Court cannot grant relief unless the record 12 affirmatively shows “that counsel took an approach that no competent lawyer 13 would have chosen.” Id. Petitioner has not made the required showing from the 14 existing record. 15 Petitioner objects that he was unable to develop the record to prove his 16 claims. He allegedly was unable to provide a declaration from counsel because 17 counsel was unresponsive to Petitioner’s letters. [Dkt. 124 at 7]. But 18 Petitioner’s vague allegation about sending letters to counsel does not include a 19 specific allegation that he ever asked counsel to explain the failure to present a 20 PTSD defense. Petitioner therefore has not provided enough detailed 21 allegations to support a reasonable inference that he could not obtain a 22 declaration from counsel about a PTSD defense. See Porcaro v. United States, 23 832 F.2d 208, 211 (1st Cir. 1987) (per curiam) (holding that where a witness 24 allegedly will not take the time to prepare an affidavit, the petitioner must 25 submit an affidavit with the details of the refusal and the information that could 26 have been furnished); see also Garuti v. Roden, 733 F.3d 18, 25-26 (1st Cir. 27 2013) (holding that a petitioner’s non-specific and conclusory allegations about 1 his counsel, who had refused to furnish an affidavit, were insufficient to raise a 2 substantial issue). 3 Petitioner objects that counsel’s ability to secure an acquittal on 4 first-degree murder was not relevant evidence of his effectiveness. [Dkt. 124 at 5 8]. But the Report did not state that the acquittal was the determinative factor of 6 whether counsel’s performance was ineffective. It was only one circumstance 7 among others. See Eckert v. Tansy, 936 F.2d 444, 447 (9th Cir. 1991) (an 8 evaluation of counsel’s performance for objective reasonableness considers “the 9 totality of the circumstances”). Other circumstances in assessing counsel’s 10 performance included the critical fact that Petitioner never told his counsel 11 about suffering from PTSD at the time of the shooting or at any other time. 12 [Dkt. 118 at 32]. 13 Petitioner objects that the Report afforded too much weight to the 14 testimony of Justin Turman. [Dkt. 124 at 9-10]. Turman, an eyewitness, 15 testified that Petitioner methodically loaded the gun, pointed it at the victim, 16 twice stated his intention to “do this,” and then shot the victim. [Id. at 9]. 17 Petitioner argues that Turman’s testimony had no value because the jury 18 acquitted Petitioner of first-degree premeditated murder. [Id.]. To the contrary, 19 as the Report found, “Petitioner’s belief that the jury’s failure to convict him of 20 first-degree murder necessarily means it rejected Turman’s testimony is 21 speculative. Turman’s testimony supported malice aforethought, which the jury 22 believed beyond a reasonable doubt that Petitioner had when he murdered [the 23 victim].” [Dkt. 118 at 39]. The Report did not err in finding that, even if the 24 jury may have rejected Turman’s testimony about premeditation, his testimony 25 still had evidentiary value about malice. See United States v. Messina, 806 F.3d 26 55, 64 (2d Cir. 2015) (“[A] factfinder who determines that a witness has been 27 inaccurate, contradictory and even untruthful in some respects may nevertheless 1 find the witness entirely credible in the essentials of his testimony.”) (citation 2 and internal quotation marks omitted). 3 Petitioner objects that he should have been granted an opportunity for 4 factual development of his PTSD claim. [Dkt. 124 at 11]. As the Report noted, 5 no medical expert has diagnosed Petitioner with PTSD. [Dkt. 118 at 35]. 6 Petitioner argues that he should have been granted an evidentiary hearing to 7 develop that evidence. [Dkt. 124 at 11]. To the contrary, Petitioner’s 8 allegations about having PTSD were too speculative to warrant further 9 evidentiary development. Allegations based only on speculation are insufficient 10 to entitle a habeas petitioner to an evidentiary hearing, in either state or federal 11 court. See Woods v. Sinclair, 764 F.3d 1109, 1128 (9th Cir. 2014) (petitioner 12 was not entitled to an evidentiary hearing in state court “when all he could offer 13 was speculation that an evidentiary hearing might produce [helpful] testimony 14 or other evidence”); Morris v. State of Cal., 966 F.2d 448, 455-56 (9th Cir. 15 1991) (petitioner was not entitled to an evidentiary hearing in federal court 16 based on a “bare allegation” and “speculation as to the contents” of testimony; 17 “wishful suggestions cannot substitute for declaratory or other evidence.”). 18 Petitioner objects that a reasonable attorney would have been on notice of 19 the potential PTSD issue. [Dkt. 124 at 13-14]. Petitioner argues that his 20 counsel was on notice because of Petitioner’s testimony about the shooting, 21 which included descriptions such as “just one long blur,” “slow motion,” and 22 “everything frozen,” as well as Petitioner’s testimony of having no memory of 23 it. [Id.]. Yet, as the Report found, Petitioner never told his counsel about 24 suffering from PTSD, and Petitioner has never been diagnosed with PTSD. 25 [Dkt. 118 at 32, 35]. Given this context, Petitioner’s description of how he 26 perceived the shooting, by itself, was insufficient to put counsel on notice of a 27 possible PTSD defense. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir.
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8 UNITED STATES DISTRICT COURT
9 FOR THE CENTRAL DISTRICT OF CALIFORNIA
10 Case No. 2:11-cv-08020-SSS-AGR 11 MARLON EDGARDO SIGUENZA,
12 Petitioner, 13 ORDER ACCEPTING FINDINGS v. AND RECOMMENDATION OF 14 MAGISTRATE JUDGE 15 DOMINGO URIBE, JR.,
16 Respondent. 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ 19 of Habeas Corpus, the other records on file herein, the Report and 20 Recommendation of the United States Magistrate Judge (“Report”), and the 21 Objections. Further, the Court has engaged in a de novo review of those 22 portions of the Report to which objections have been made. 23 The Report recommends denial of the First Amended Petition and 24 dismissal of this action with prejudice. [Dkt. 118]. Petitioner’s Objections 25 focus on the Report’s analysis of Grounds Six to Eight, in which Petitioner 26 claims ineffective assistance of counsel. [Dkt. 124]. The primary basis of 27 Petitioner’s objections is that his counsel failed “to present a mental-state 1 defense” at trial based on Petitioner’s alleged post-traumatic stress disorder 2 (“PTSD”). [Id. at 6]. For the reasons discussed below, however, Petitioner’s 3 Objections to the Report do not warrant a change to the Magistrate Judge’s 4 findings or recommendation. 5 Petitioner objects that the record does not adequately explain counsel’s 6 failures with regard to the PTSD defense. [Dkt. 124 at 7]. But this misstates the 7 standard, which does not require such an explanation to appear affirmatively in 8 the record. The “absence of evidence” cannot satisfy Petitioner’s burden of 9 proving ineffective assistance of counsel. Dunn v. Reeves, 141 S. Ct. 2405, 10 2410 (2021). Indeed, even if the record suggests that counsel’s conduct was 11 “far from exemplary,” the Court cannot grant relief unless the record 12 affirmatively shows “that counsel took an approach that no competent lawyer 13 would have chosen.” Id. Petitioner has not made the required showing from the 14 existing record. 15 Petitioner objects that he was unable to develop the record to prove his 16 claims. He allegedly was unable to provide a declaration from counsel because 17 counsel was unresponsive to Petitioner’s letters. [Dkt. 124 at 7]. But 18 Petitioner’s vague allegation about sending letters to counsel does not include a 19 specific allegation that he ever asked counsel to explain the failure to present a 20 PTSD defense. Petitioner therefore has not provided enough detailed 21 allegations to support a reasonable inference that he could not obtain a 22 declaration from counsel about a PTSD defense. See Porcaro v. United States, 23 832 F.2d 208, 211 (1st Cir. 1987) (per curiam) (holding that where a witness 24 allegedly will not take the time to prepare an affidavit, the petitioner must 25 submit an affidavit with the details of the refusal and the information that could 26 have been furnished); see also Garuti v. Roden, 733 F.3d 18, 25-26 (1st Cir. 27 2013) (holding that a petitioner’s non-specific and conclusory allegations about 1 his counsel, who had refused to furnish an affidavit, were insufficient to raise a 2 substantial issue). 3 Petitioner objects that counsel’s ability to secure an acquittal on 4 first-degree murder was not relevant evidence of his effectiveness. [Dkt. 124 at 5 8]. But the Report did not state that the acquittal was the determinative factor of 6 whether counsel’s performance was ineffective. It was only one circumstance 7 among others. See Eckert v. Tansy, 936 F.2d 444, 447 (9th Cir. 1991) (an 8 evaluation of counsel’s performance for objective reasonableness considers “the 9 totality of the circumstances”). Other circumstances in assessing counsel’s 10 performance included the critical fact that Petitioner never told his counsel 11 about suffering from PTSD at the time of the shooting or at any other time. 12 [Dkt. 118 at 32]. 13 Petitioner objects that the Report afforded too much weight to the 14 testimony of Justin Turman. [Dkt. 124 at 9-10]. Turman, an eyewitness, 15 testified that Petitioner methodically loaded the gun, pointed it at the victim, 16 twice stated his intention to “do this,” and then shot the victim. [Id. at 9]. 17 Petitioner argues that Turman’s testimony had no value because the jury 18 acquitted Petitioner of first-degree premeditated murder. [Id.]. To the contrary, 19 as the Report found, “Petitioner’s belief that the jury’s failure to convict him of 20 first-degree murder necessarily means it rejected Turman’s testimony is 21 speculative. Turman’s testimony supported malice aforethought, which the jury 22 believed beyond a reasonable doubt that Petitioner had when he murdered [the 23 victim].” [Dkt. 118 at 39]. The Report did not err in finding that, even if the 24 jury may have rejected Turman’s testimony about premeditation, his testimony 25 still had evidentiary value about malice. See United States v. Messina, 806 F.3d 26 55, 64 (2d Cir. 2015) (“[A] factfinder who determines that a witness has been 27 inaccurate, contradictory and even untruthful in some respects may nevertheless 1 find the witness entirely credible in the essentials of his testimony.”) (citation 2 and internal quotation marks omitted). 3 Petitioner objects that he should have been granted an opportunity for 4 factual development of his PTSD claim. [Dkt. 124 at 11]. As the Report noted, 5 no medical expert has diagnosed Petitioner with PTSD. [Dkt. 118 at 35]. 6 Petitioner argues that he should have been granted an evidentiary hearing to 7 develop that evidence. [Dkt. 124 at 11]. To the contrary, Petitioner’s 8 allegations about having PTSD were too speculative to warrant further 9 evidentiary development. Allegations based only on speculation are insufficient 10 to entitle a habeas petitioner to an evidentiary hearing, in either state or federal 11 court. See Woods v. Sinclair, 764 F.3d 1109, 1128 (9th Cir. 2014) (petitioner 12 was not entitled to an evidentiary hearing in state court “when all he could offer 13 was speculation that an evidentiary hearing might produce [helpful] testimony 14 or other evidence”); Morris v. State of Cal., 966 F.2d 448, 455-56 (9th Cir. 15 1991) (petitioner was not entitled to an evidentiary hearing in federal court 16 based on a “bare allegation” and “speculation as to the contents” of testimony; 17 “wishful suggestions cannot substitute for declaratory or other evidence.”). 18 Petitioner objects that a reasonable attorney would have been on notice of 19 the potential PTSD issue. [Dkt. 124 at 13-14]. Petitioner argues that his 20 counsel was on notice because of Petitioner’s testimony about the shooting, 21 which included descriptions such as “just one long blur,” “slow motion,” and 22 “everything frozen,” as well as Petitioner’s testimony of having no memory of 23 it. [Id.]. Yet, as the Report found, Petitioner never told his counsel about 24 suffering from PTSD, and Petitioner has never been diagnosed with PTSD. 25 [Dkt. 118 at 32, 35]. Given this context, Petitioner’s description of how he 26 perceived the shooting, by itself, was insufficient to put counsel on notice of a 27 possible PTSD defense. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) 1 (holding that evidence that petitioner had been beaten the day before he fatally 2 shot someone was insufficient to put counsel on notice of a possible mental state 3 defense); Williams v. Calderon, 52 F.3d 1465 1471 (9th Cir. 1995) (“[E]ven 4 today, no psychiatrist has said [petitioner] was not sane.”); see also Michaels v. 5 Davis, 51 F.4th 904, 960-61 (9th Cir. 2022) (holding that counsel was not on 6 notice of mitigating evidence of mental illness in petitioner’s family where there 7 was no diagnosis at the time of trial and where the available evidence of mental 8 health treatment was insufficient to put counsel on notice to investigate the 9 issue). 10 Petitioner objects that the Report inadequately conveys the significance of 11 Dr. Rudnick’s letter. [Dkt. 124 at 15-16]. In the letter, written four years after 12 Petitioner was convicted, Dr. Rudnick told Petitioner, “I believe that you may 13 well qualify for a diagnosis of chronic PTSD,” but it “is less clear as to how that 14 may have influenced your behavior in the subject incident, over and above the 15 effects of drug intoxication.” [Dkt. 14-3 at 13]. Contrary to Petitioner’s 16 objection, the Report reasonably found that Petitioner’s reliance on this letter 17 was “misplaced” because Dr. Rudnick “did not offer any medical or legal 18 opinion concerning Petitioner.” [Dkt. 118 at 35]. 19 Petitioner objects that the Report erroneously considered individual 20 instances of counsel’s conduct, rather than considering counsel’s “conduct as a 21 whole.” [Dkt. 124 at 17-18]. To the contrary, the Report did properly consider 22 counsel’s conduct as a whole, by carefully analyzing and discussing each of the 23 “specific instances of [counsel’s] conduct that [allegedly] demonstrate 24 incompetent performance.” Browning v. Baker, 875 F.3d 444, 471 (9th Cir. 25 2017). Moreover, Petitioner does not persuasively argue how the Report would 26 have reached a different result by organizing its analysis in the way he insists is 27 required. For example, Petitioner argues that counsel’s selected defense of an 1 || “imperfect defense of others was a dead-bang loser” under California law. [Dkt. 124 at 18]. To the contrary, as the Report correctly found, the trial court 3 || permitted the defense in light of evidence of Petitioner’s extensive drug use, and explicitly instructed the jury on it. [Dkt. 118 at 43-44]. 5 The Court accepts the findings and recommendation of the Magistrate || Judge. Judgment will be entered denying the First Amended Petition for Writ of 7 || Habeas Corpus and dismissing this action with prejudice. 8 IT IS SO ORDERED. 10 || DATED: February 14, 2024 SUNSHINE S. SYI S United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-