1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 PETER IVAN McNEAL, ) Case No. CV 18-6964-JGB (JPR) 11 ) Petitioner, ) ORDER ACCEPTING FINDINGS AND 12 ) RECOMMENDATIONS OF U.S. v. ) MAGISTRATE JUDGE 13 ) JAMES HILL, Acting Warden, ) 14 ) Respondent. ) 15 ) ) 16 17 The Court has reviewed the Petition, records on file, and 18 Report and Recommendation of U.S. Magistrate Judge, which 19 recommends that judgment be entered denying the Petition and 20 dismissing this action with prejudice. See 28 U.S.C. 21 § 636(b)(1). On April 15, 2021, Petitioner filed Objections to 22 the R. & R., in which he largely reiterates the arguments raised 23 in his Petition and Traverse. A few of his contentions warrant 24 discussion, however.1 25 I. Insufficient Evidence 26 Petitioner argues that in denying his insufficient-evidence 27 28 1 Respondent has not responded to the Objections. 1 1 claim, the Magistrate Judge “overlook[ed]” that I.P. testified 2 that she did not immediately disclose that Petitioner had 3 assaulted her during the 2009 Thanksgiving party to either her 4 cousin Braden or her mother, Michaele. (Objs. at 4.) But I.P. 5 never said that she didn’t promptly tell her mother about the 6 assault. Rather, she observed that although she “probably” told 7 her mother “right away” about the assault, she didn’t know for 8 sure. (Lodged Doc. 15, 4 Rep.’s Tr. at 3047.) And the 9 Magistrate Judge noted that although I.P. testified that Braden 10 might have witnessed the assault, he testified that he did not 11 see anything happen to her. (See R. & R. at 7 n.5 (citing Lodged 12 Doc. 15, 3 Rep.’s Tr. at 2465, 2472-73, 4 Rep.’s Tr. at 3025, 13 3040-43).) Critically, as Petitioner does not dispute, I.P. 14 testified that a male guest at the Thanksgiving party put his 15 penis in her mouth (see Lodged Doc. 15, 4 Rep.’s Tr. at 3008-09), 16 and, as the Magistrate Judge found, other evidence corroborated 17 her account and established that Petitioner was the perpetrator — 18 including but not limited to Michaele’s testimony that on the 19 night of the party I.P. asked her why someone matching 20 Petitioner’s description had wanted to put his penis in her mouth 21 at the party and that I.P. then demonstrated what he had done to 22 her.2 (See R. & R. at 14-16.) That evidence was 23 24 2 Petitioner also appears to argue that I.P.’s statements to Michaele the night of the party were inadmissible hearsay. (See 25 Objs. at 4-6.) But the trial court found that they were admissible 26 as excited utterances (see Lodged Doc. 15, 2 Rep.’s Tr. at 334-35), and Petitioner has never challenged that finding. In any event, 27 for purposes of deciding the sufficiency of the evidence, a habeas court considers all the evidence, properly admitted or not. See 28 McDaniel v. Brown, 558 U.S. 120, 131 (2010). 2 1 constitutionally sufficient to support Petitioner’s conviction 2 even though I.P.’s parents didn’t immediately report the assault 3 to police. (See Objs. at 5.) 4 Petitioner also claims that the Magistrate Judge 5 “overlook[ed]” that although his sexual assault of M.K. might 6 have been admissible to show his propensity to commit sex crimes, 7 the prosecution still needed to establish that M.K.’s testimony 8 was truthful. (See id. at 6-7.) But the Magistrate Judge noted 9 that M.K. not only identified Petitioner as her assailant and 10 described what he did to her but that other evidence corroborated 11 her testimony.3 (See R. & R. at 16 & n. 10.) 12 At bottom, Petitioner’s insufficient-evidence arguments boil 13 down to his insistence that he was convicted “based on the 14 uncorroborated and inconsistent story of a three-year old 15 child” and the unreliable testimony of her mother. (See Objs. at 16 3; id. at 4-7.) But as the Magistrate Judge found, the arguments 17 Petitioner highlights in his objections were all presented to the 18 jury, which nevertheless credited I.P.’s and her mother’s 19 testimony. (See R. & R. at 18.) This Court can’t reweigh the 20 evidence or reassess the witnesses’ credibility. See Bruce v. 21 22 3 Petitioner suggests that the evidence concerning M.K.’s 23 assault showed that he was actually just “urinating in the bushes.” (Objs. at 30.) But M.K. testified that he exposed his penis to her 24 after “laying down in a weird position” and instructing her to “close [her] eyes and open [her] mouth” (Lodged Doc. 15, 5 Rep.’s 25 Tr. at 3640, 3647-51, 3653-54, 3682), actions inconsistent with his 26 simply urinating. Moreover, any such claim is inconsistent with his arguments that the bushes were only four, not seven, feet tall 27 and that Petitioner would not have done something inappropriate in plain view of other parents. (See id., 6 Rep.’s Tr. at 4286-87, 28 4289-92, 4297, 8 Rep.’s Tr. at 4910-12.) 3 1 Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004). 2 II. Ineffective Assistance of Counsel 3 Petitioner argues that in denying his claims that his trial 4 counsel were ineffective for failing to consult with or present 5 the testimony of a memory or a taint expert to undermine I.P.’s, 6 Michaele’s, and M.K.’s testimony, the Magistrate Judge improperly 7 found that the psychiatrist or psychiatrists whom his attorneys 8 did consult were an effective substitute for those experts. (See 9 Objs. at 13-15, 21.) But the Magistrate Judge didn’t make any 10 such finding, instead noting that Petitioner failed to meet his 11 burden to show that the psychiatrist or psychiatrists with whom 12 trial counsel consulted, who had expertise in evaluating child- 13 abuse claims (see Lodged Doc. 14, 2 Aug. Clerk’s Tr. at 290; see 14 id. at 288), didn’t consider some or all of the topics he claims 15 a memory or taint expert would have discussed.4 (See R. & R. at 16 37-38, 46.) 17 Nor did the Magistrate Judge err in relying on Gentry v. 18 Sinclair, 705 F.3d 884, 899-900 (9th Cir. 2012) (as amended Jan. 19 15, 2013), in denying Petitioner’s claims in part because he had 20 failed to provide a declaration from trial counsel explaining 21 their decision not to present expert testimony. (See Objs. at 22 22.) In Gentry, the petitioner claimed that his trial counsel 23 failed to have him evaluated by a psychologist and as a result 24 didn’t present any mitigating evidence of his mental state. 705 25 F.3d at 897, 899. The state court denied the claim, finding 26 27 4 Indeed, both the memory and the taint expert whose testimony Petitioner claims should have been presented are themselves 28 psychiatrists. (See Pet., Exs. A-G.) 4 1 “insufficient evidence” that trial counsel “neglected the issue” 2 when their declarations, which addressed other aspects of his 3 ineffective-assistance claim, didn’t discuss “why no expert 4 testimony was presented,” leaving the possibility that “an 5 evaluation was performed that provided no evidence useful to the 6 defense.” Id. at 899-900. The Ninth Circuit held that the state 7 court was not unreasonable in finding counsel’s performance not 8 deficient, emphasizing that although trial counsel submitted 9 detailed declarations in support of most of petitioner’s claims, 10 they “said nothing” about his expert-evidence claim, leaving 11 petitioner, who bore the burden of dispelling the “strong” 12 presumption that counsel’s performance was reasonable, with “no 13 evidence to indicate why the failure to present [expert] evidence 14 . . . was unreasonable under the circumstances.” Id. at 900. 15 Here as in Gentry, trial counsel submitted declarations 16 addressing Petitioner’s various ineffective-assistance claims. 17 (See Lodged Doc. 14, 2 Aug. Clerk’s Tr.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 PETER IVAN McNEAL, ) Case No. CV 18-6964-JGB (JPR) 11 ) Petitioner, ) ORDER ACCEPTING FINDINGS AND 12 ) RECOMMENDATIONS OF U.S. v. ) MAGISTRATE JUDGE 13 ) JAMES HILL, Acting Warden, ) 14 ) Respondent. ) 15 ) ) 16 17 The Court has reviewed the Petition, records on file, and 18 Report and Recommendation of U.S. Magistrate Judge, which 19 recommends that judgment be entered denying the Petition and 20 dismissing this action with prejudice. See 28 U.S.C. 21 § 636(b)(1). On April 15, 2021, Petitioner filed Objections to 22 the R. & R., in which he largely reiterates the arguments raised 23 in his Petition and Traverse. A few of his contentions warrant 24 discussion, however.1 25 I. Insufficient Evidence 26 Petitioner argues that in denying his insufficient-evidence 27 28 1 Respondent has not responded to the Objections. 1 1 claim, the Magistrate Judge “overlook[ed]” that I.P. testified 2 that she did not immediately disclose that Petitioner had 3 assaulted her during the 2009 Thanksgiving party to either her 4 cousin Braden or her mother, Michaele. (Objs. at 4.) But I.P. 5 never said that she didn’t promptly tell her mother about the 6 assault. Rather, she observed that although she “probably” told 7 her mother “right away” about the assault, she didn’t know for 8 sure. (Lodged Doc. 15, 4 Rep.’s Tr. at 3047.) And the 9 Magistrate Judge noted that although I.P. testified that Braden 10 might have witnessed the assault, he testified that he did not 11 see anything happen to her. (See R. & R. at 7 n.5 (citing Lodged 12 Doc. 15, 3 Rep.’s Tr. at 2465, 2472-73, 4 Rep.’s Tr. at 3025, 13 3040-43).) Critically, as Petitioner does not dispute, I.P. 14 testified that a male guest at the Thanksgiving party put his 15 penis in her mouth (see Lodged Doc. 15, 4 Rep.’s Tr. at 3008-09), 16 and, as the Magistrate Judge found, other evidence corroborated 17 her account and established that Petitioner was the perpetrator — 18 including but not limited to Michaele’s testimony that on the 19 night of the party I.P. asked her why someone matching 20 Petitioner’s description had wanted to put his penis in her mouth 21 at the party and that I.P. then demonstrated what he had done to 22 her.2 (See R. & R. at 14-16.) That evidence was 23 24 2 Petitioner also appears to argue that I.P.’s statements to Michaele the night of the party were inadmissible hearsay. (See 25 Objs. at 4-6.) But the trial court found that they were admissible 26 as excited utterances (see Lodged Doc. 15, 2 Rep.’s Tr. at 334-35), and Petitioner has never challenged that finding. In any event, 27 for purposes of deciding the sufficiency of the evidence, a habeas court considers all the evidence, properly admitted or not. See 28 McDaniel v. Brown, 558 U.S. 120, 131 (2010). 2 1 constitutionally sufficient to support Petitioner’s conviction 2 even though I.P.’s parents didn’t immediately report the assault 3 to police. (See Objs. at 5.) 4 Petitioner also claims that the Magistrate Judge 5 “overlook[ed]” that although his sexual assault of M.K. might 6 have been admissible to show his propensity to commit sex crimes, 7 the prosecution still needed to establish that M.K.’s testimony 8 was truthful. (See id. at 6-7.) But the Magistrate Judge noted 9 that M.K. not only identified Petitioner as her assailant and 10 described what he did to her but that other evidence corroborated 11 her testimony.3 (See R. & R. at 16 & n. 10.) 12 At bottom, Petitioner’s insufficient-evidence arguments boil 13 down to his insistence that he was convicted “based on the 14 uncorroborated and inconsistent story of a three-year old 15 child” and the unreliable testimony of her mother. (See Objs. at 16 3; id. at 4-7.) But as the Magistrate Judge found, the arguments 17 Petitioner highlights in his objections were all presented to the 18 jury, which nevertheless credited I.P.’s and her mother’s 19 testimony. (See R. & R. at 18.) This Court can’t reweigh the 20 evidence or reassess the witnesses’ credibility. See Bruce v. 21 22 3 Petitioner suggests that the evidence concerning M.K.’s 23 assault showed that he was actually just “urinating in the bushes.” (Objs. at 30.) But M.K. testified that he exposed his penis to her 24 after “laying down in a weird position” and instructing her to “close [her] eyes and open [her] mouth” (Lodged Doc. 15, 5 Rep.’s 25 Tr. at 3640, 3647-51, 3653-54, 3682), actions inconsistent with his 26 simply urinating. Moreover, any such claim is inconsistent with his arguments that the bushes were only four, not seven, feet tall 27 and that Petitioner would not have done something inappropriate in plain view of other parents. (See id., 6 Rep.’s Tr. at 4286-87, 28 4289-92, 4297, 8 Rep.’s Tr. at 4910-12.) 3 1 Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004). 2 II. Ineffective Assistance of Counsel 3 Petitioner argues that in denying his claims that his trial 4 counsel were ineffective for failing to consult with or present 5 the testimony of a memory or a taint expert to undermine I.P.’s, 6 Michaele’s, and M.K.’s testimony, the Magistrate Judge improperly 7 found that the psychiatrist or psychiatrists whom his attorneys 8 did consult were an effective substitute for those experts. (See 9 Objs. at 13-15, 21.) But the Magistrate Judge didn’t make any 10 such finding, instead noting that Petitioner failed to meet his 11 burden to show that the psychiatrist or psychiatrists with whom 12 trial counsel consulted, who had expertise in evaluating child- 13 abuse claims (see Lodged Doc. 14, 2 Aug. Clerk’s Tr. at 290; see 14 id. at 288), didn’t consider some or all of the topics he claims 15 a memory or taint expert would have discussed.4 (See R. & R. at 16 37-38, 46.) 17 Nor did the Magistrate Judge err in relying on Gentry v. 18 Sinclair, 705 F.3d 884, 899-900 (9th Cir. 2012) (as amended Jan. 19 15, 2013), in denying Petitioner’s claims in part because he had 20 failed to provide a declaration from trial counsel explaining 21 their decision not to present expert testimony. (See Objs. at 22 22.) In Gentry, the petitioner claimed that his trial counsel 23 failed to have him evaluated by a psychologist and as a result 24 didn’t present any mitigating evidence of his mental state. 705 25 F.3d at 897, 899. The state court denied the claim, finding 26 27 4 Indeed, both the memory and the taint expert whose testimony Petitioner claims should have been presented are themselves 28 psychiatrists. (See Pet., Exs. A-G.) 4 1 “insufficient evidence” that trial counsel “neglected the issue” 2 when their declarations, which addressed other aspects of his 3 ineffective-assistance claim, didn’t discuss “why no expert 4 testimony was presented,” leaving the possibility that “an 5 evaluation was performed that provided no evidence useful to the 6 defense.” Id. at 899-900. The Ninth Circuit held that the state 7 court was not unreasonable in finding counsel’s performance not 8 deficient, emphasizing that although trial counsel submitted 9 detailed declarations in support of most of petitioner’s claims, 10 they “said nothing” about his expert-evidence claim, leaving 11 petitioner, who bore the burden of dispelling the “strong” 12 presumption that counsel’s performance was reasonable, with “no 13 evidence to indicate why the failure to present [expert] evidence 14 . . . was unreasonable under the circumstances.” Id. at 900. 15 Here as in Gentry, trial counsel submitted declarations 16 addressing Petitioner’s various ineffective-assistance claims. 17 (See Lodged Doc. 14, 2 Aug. Clerk’s Tr. at 288-90.) But although 18 counsel mentioned consulting with a psychiatrist with an 19 expertise in child-abuse cases, they apparently weren’t asked to 20 elaborate on what information that expert shared and how that 21 shaped their decision not to call a memory or a taint expert 22 during trial. (Id.) As in Gentry, that left open that the 23 psychiatrist or psychiatrists addressed the various memory and 24 taint issues relevant to I.P.’s, Michaele’s, and M.K.’s testimony 25 but that counsel found that such testimony wouldn’t be “useful to 26 the defense.” 705 F.3d at 900; see Womack v. McDaniel, 497 F.3d 27 998, 1004 (9th Cir. 2007) (rejecting ineffective-assistance claim 28 when petitioner offered no evidence of counsel’s allegedly 5 1 deficient performance aside from petitioner’s own self-serving 2 statement).5 Petitioner’s argument that he was entitled to an 3 evidentiary hearing in state court to explore these issues (Objs. 4 at 23, 42-43) ignores that it was his burden to produce some 5 evidence that counsel performed deficiently. He does not allege 6 that he requested an evidentiary hearing because he was unable to 7 develop the record as to counsel’s decision not to call a memory 8 or a taint expert; indeed, not being granted a state-court 9 evidentiary hearing didn’t prevent him from obtaining counsel’s 10 explanation for various other issues he had with their 11 performance, and he hasn’t explained why this one is any 12 different. Cf. Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 13 2004) (“A federal court may not second-guess a state court’s 14 fact-finding process unless, after review of the state-court 15 record, it determines that the state court was not merely wrong, 16 but actually unreasonable.”), overruled on other grounds by 17 18 5 Petitioner argues that under the Magistrate Judge’s logic, 19 “trial counsel could avoid being found ineffective by refusing to provide a declaration.” (Objs. at 22.) But numerous cases hold 20 that a petitioner can’t be faulted and the reasoning of Gentry doesn’t apply if he asks counsel to address a particular topic and 21 counsel refuses, see, e.g., Manzano v. Montgomery, No. ED CV 22 13-02249-RGK (VBK)., 2014 WL 1670079, at *11 (C.D. Cal. Mar. 26, 2014), accepted by 2014 WL 1669974 (C.D. Cal. Apr. 25, 2014), 23 aff’d, 669 F. App’x 864 (9th Cir. 2016), and the Magistrate Judge said nothing to the contrary. This is not such a case. Indeed, 24 although one of Petitioner’s trial attorneys eventually told habeas counsel he “no longer wished to talk [to her]” (Pet., Mem. P. & A., 25 Ex. F at 143), that was in response to habeas counsel’s questioning 26 on a different topic, and Petitioner does not claim that counsel were ever asked to elaborate on why they didn’t call a memory or 27 taint expert. 28 6 1 Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014). 2 Beyond that, for the reasons discussed in the R. & R., even 3 without expert testimony Petitioner’s counsel were able to expose 4 the weaknesses in I.P.’s, Michaele’s, and M.K.’s testimony and 5 suggest to the jury that their testimony was tainted and 6 unreliable. (See R. & R. at 38-41, 46-52.) Accordingly, as the 7 Magistrate Judge also found, any deficient performance didn’t 8 prejudice Petitioner. (See id. at 41-48, 51-52.) 9 Petitioner’s objections to the Magistrate Judge’s findings 10 in denying his other ineffective-assistance claims are similarly 11 unpersuasive. For instance, he argues that in denying his claim 12 that his attorneys failed to present evidence to corroborate his 13 wife’s trial testimony that there weren’t any cupcakes at the 14 Thanksgiving party, the Magistrate Judge “overlooked” that the 15 prosecutor repeatedly emphasized I.P.’s testimony that Petitioner 16 had lured her with a cupcake. (See Objs. at 33-34.) But even 17 assuming the prosecutor capitalized on that improbable testimony, 18 the evidence that Petitioner claims counsel failed to use 19 wouldn’t have shown that there were no cupcakes at the party, as 20 the Magistrate Judge pointed out. (See R. & R. at 36.) 21 Petitioner also maintains that his attorneys were ineffective for 22 failing to establish that I.P.’s parents knew about the M.K. 23 incident before reporting I.P.’s accusation to the police, 24 insisting that testimony from the new-trial hearing “proved” they 25 had “learned about the M.K. case.” (See Objs. at 9-10.) But as 26 the Magistrate Judge explained, that testimony showed only that a 27 guest at the Thanksgiving party later learned about the M.K. 28 incident, and that in fact the hearing testimony established that 7 1} I.P.’s parents did not learn about M.K.’s case until after they had already contacted the police. (See R. & R. at 27-31.) 3 || Tellingly, as the Magistrate Judge pointed out (see id. at 29- 30), Petitioner never presented any testimony from that guest, 5 who presumably would have testified that he alerted I.P.’s 6} parents to the M.K. assault were that in fact true. Petitioner’s 7 || arguments on this score are pure speculation. 8 Having reviewed de novo those portions of the R. & R. to which Petitioner objects, the Court agrees with and accepts the 10 || findings and recommendations of the Magistrate Judge. IT 11 || THEREFORE IS ORDERED that judgment be entered denying the 12 |} Petition and dismissing this action with prejudice. 13 gq patep: June 11, 2021 ———y _ □□ JESUS} G. BERNAL . 15 U.S ISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28