Scott v. Cates

• Court: District Court, S.D. California
• Decided: March 4, 2025
• Docket: 3:22-cv-01101
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELLIS BERNARD SCOTT, Case No.: 22-cv-01101-RSH-JLB

12 Petitioner, REPORT AND 13 v. RECOMMENDATION RE: PETITION FOR 14 B. CATES, et al., WRIT OF HABEAS CORPUS 15 Respondents. [ECF No. 1] 16

17 18 Petitioner Ellis Bernard Scott (“Petitioner”), a state prisoner proceeding pro se, filed 19 a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 20 1.) Petitioner challenges his 2018 conviction in San Diego Superior Court for assault with 21 a deadly weapon. (Id. at 1; ECF No. 13-1 at 211.) This Report and Recommendation is 22 submitted to the Honorable Robert S. Huie, United States District Judge, pursuant to 23 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(d). For the reasons set forth below, the 24 Court RECOMMENDS that the Petition be DENIED. 25 I. BACKGROUND 26 A. Procedural Background 27 On March 9, 2018, a San Diego Superior Court jury found Petitioner guilty of assault 28 with a deadly weapon in violation of California Penal Code section 245(a)(1). (ECF No. 1 13-1 at 257.) The jury also found that Petitioner personally used a dangerous and deadly 2 weapon, a golf club, during the offense, within the meaning of California Penal Code 3 section 1192.7(c)(23). (Id.) In a bifurcated proceeding, Petitioner admitted having 4 suffered three prior strike convictions (Cal. Penal Code §§ 667(b)–(i), 668, 1170.12) and 5 two prior serious felony convictions (Cal. Penal Code §§ 667(a)(1), 668, 1192.7(c)), and 6 also admitted to having served three prior prison terms (Cal. Penal Code § 667.5(b)). (ECF 7 No. 13-1 at 259, 261.) The trial court sentenced Petitioner to 25 years to life plus 10 years 8 in state prison. (Id. at 211, 261.) Petitioner’s sentence was comprised of 25 years to life 9 pursuant to the Three Strikes law, plus two consecutive five-year terms for the prior serious 10 felony enhancements. (Id.) 11 Petitioner appealed his conviction to the California Court of Appeal,1 arguing that 12 the prosecutor committed prosecutorial error during rebuttal closing argument by referring 13 to evidence outside of the record, and that defense counsel provided ineffective assistance 14 in failing to object to the prosecutor’s argument. (ECF No. 13-11 at 16–29.) Petitioner 15 also asked that the matter be remanded for a mental health diversion eligibility hearing 16 under the retroactive application of the newly enacted California Penal Code section 17 1001.36 and for the trial court to determine whether to strike his two serious felony 18 enhancements under California Penal Code section 667(a)(1) due to another retroactive 19 change in the law. (Id. at 29–48.) 20 The Court of Appeal concluded that Petitioner had forfeited his claim of 21 prosecutorial error by failing to timely object to the prosecutor’s argument, and that 22 Petitioner’s related ineffective assistance of counsel claim failed for lack of prejudice. 23 (ECF No. 13-13 at 2.) The appellate court further determined that Petitioner was entitled 24 to a remand for further proceedings in the trial court given the two retroactive changes in 25 the law. (Id. at 3.) The Court of Appeal therefore reversed the judgment and remanded 26 27 1 All references in this Order to the Court of Appeal refer to the California Court 28 1 the matter to the trial court with directions to conduct a mental health diversion eligibility 2 hearing under California Penal Code section 1001.36. (Id.) The appellate court directed 3 the trial court to reinstate Petitioner’s conviction and resentence him if it determined he 4 was ineligible for diversion, or if the trial court placed Petitioner on diversion but he did 5 not successfully complete diversion. (Id.) During any resentencing proceedings, the trial 6 court was directed to consider whether to exercise its discretion to strike either or both of 7 the prior serious felony enhancements. (Id.) 8 Both Petitioner and the People filed petitions for review in the California Supreme 9 Court. (ECF Nos. 13-14; 13-15.) Petitioner’s petition for review was filed for the purpose 10 of exhausting state remedies for federal habeas corpus purposes pursuant to California Rule 11 of Court 8.508. (ECF No. 13-14 at 6.) In his petition, Petitioner reasserted his arguments 12 of prosecutorial error and ineffective of assistance of counsel. (Id. at 13–23.) On 13 March 18, 2020, the California Supreme Court summarily denied Petitioner’s petition for 14 review. (ECF No. 13-15.) The Supreme Court simultaneously granted the People’s 15 petition for review and deferred further action pending consideration and disposition of a 16 related issue in People v. Frahs, No. S252220, the lead case before the high court on the 17 issue of whether the new mental health diversion law (Cal. Penal Code § 1101.36) applied 18 retroactively to defendants whose convictions were not yet final when the new law took 19 effect. (Id.) On June 18, 2020, the California Supreme Court issued its opinion in Frahs, 20 holding that the provisions giving trial courts discretion to grant pretrial diversion for 21 defendants (like Petitioner) with mental health disorders applied retroactively. See People 22 v. Frahs, 9 Cal. 5th 618, 624 (2020). Thereafter, on July 29, 2020, the California Supreme 23 Court dismissed the People’s petition for review. (ECF No. 13-16.) \ 24 /// 25 /// 26 /// 27 /// 28 /// 1 The Court of Appeal, in turn, issued remittitur on August 13, 2020, and remanded 2 Petitioner’s case back to the trial court.2 On July 14, 2021, on remand, the trial court held 3 a hearing to determine whether Petitioner was eligible for mental health diversion and 4 concluded he was not eligible. (ECF No. 18-1 at 3.) On September 21, 2021, the trial court 5 struck two of Petitioner’s prior strikes and his three prison priors, resentencing him to 18 6 years in prison. (Id. at 1–2; see also ECF No. 18-3 at 12–13.) An amended Abstract of 7 Judgment was issued the same day and forwarded to the California Department of 8 Corrections and Rehabilitation. (Id.) Petitioner did not appeal. 9 On July 10, 2022, Petitioner filed the instant Petition for Writ of Habeas Corpus. 10 (ECF No. 1.)3 The Petition asserts two grounds for relief: (1) the prosecutor committed 11 prosecutorial error during rebuttal closing argument by referring to evidence outside of the 12 record, and (2) defense counsel provided ineffective assistance in failing to object to the 13 prosecutor’s argument. (Id. at 6–7.) On January 12, 2023, Respondent Brian Cates, 14 15 16 2 The Court takes judicial notice of the Court of Appeal docket in People v. 17 Scott, No. D074334, which indicates the appellate court issued remittitur on August 13, 2020. See People v. Scott, No. D074334, Appellate Courts Case Information, 18 https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=41&doc_id=225791 19 7&doc_no=D074334&request_token=NiIwLSEmLkw5W1BVSSFdXEtJUDw6UkxbJC NeSzlSMCAgCg%3D%3D [https://perma.cc/LX7R-4SVS]. See also Fed. R. Evid. 201(b) 20 (“The court may judicially notice a fact that is not subject to reasonable dispute because it: 21 (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be 22 questioned”); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006) (taking judicial 23 notice of court dockets in state court proceedings). Under California law, remittitur is the final step in the appellate process and consists of remitting the certificate of judgment to 24 the court below. See Cal. Penal Code § 1265(a); Cal. R. Ct. 8.272. 25 3 The petition was docketed on July 25, 2022. (See ECF No. 1.) Under the “mailbox rule,” a federal habeas petition is deemed filed at the moment the prisoner 26 delivers it to prison authorities for forwarding to the clerk of the court. Stillman v. 27 LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). In this case, that was July 10, 2022, when Petitioner signed a certification that he handed the petition to prison staff for mailing. (See 28 1 Warden of California Correctional Institution, Tehachapi of the California Department of 2 Corrections and Rehabilitation (“Respondent”), moved to dismiss the Petition as barred by 3 the one-year statute of limitations period set forth in 28 U.S.C. § 2244(d)(1). (ECF No. 4 12.) Respondent filed a Notice of Lodgment and Supplemental Notice of Lodgment in 5 support of his motion. (ECF Nos. 13, 18.) On July 27, 2023, Judge Huie issued an Order 6 Denying Respondent’s Motion to Dismiss. (ECF No. 19.) On September 25, 2023, 7 Respondent filed an Answer. (ECF No. 22.) Petitioner did not file a Traverse.4 8 B. Factual Background 9 The Court takes the following underlying statement of facts from the Court of 10 Appeal’s opinion in People v. Scott, No. D074334, slip. op. (Cal. Ct. App. Jan. 7, 2020). 11 (ECF No. 13-13.)5 12 A. The People’s evidence 13 One summer afternoon in 2017, the victim, who was homeless, was at a park in City Heights. The victim was seated on the ground next to several 14 other people. On the ground, next to the victim, was a golf club that the victim 15 had brought to the park. The victim testified that he brought the golf club to the park because he intended to use it to threaten an individual who had been 16 “messing with [his] sister.” 17 [Petitioner], who also was at the park, walked up to the group and 18 approached the victim. [Petitioner] picked up the golf club. Seconds later, 19 [Petitioner] swung the club and struck the victim in the head. [Petitioner] then swung the club at the victim a second time, striking the victim in the face and 20 21

22 23 4 Petitioner’s Traverse was initially due November 6, 2023. (ECF No. 21.) However, the Court’s order setting that deadline was returned as undeliverable on 24 September 25, 2023. (ECF No. 23.) On November 16, 2023, the Court received an updated 25 address for Petitioner and reset the deadline to file a Traverse to no later than December 26, 2023. (ECF No. 24.) No further filings have been submitted. 26 5 A state court’s findings of fact are presumed to be correct unless the petitioner 27 rebuts that presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008). Here, Petitioner has not attempted 28 1 on his arms. The victim had not said or done anything to [Petitioner] prior to being hit. 2 3 A security guard at a recreation center located in the park saw [Petitioner] strike the victim with the golf club. The security guard called 911. 4 After striking the victim, [Petitioner] was “ranting and raving” and appeared 5 to be angry and upset. The guard did not see the victim acting aggressively either before or after being struck with the club. Police arrived at the scene 6 minutes later and detained [Petitioner]. 7 Surveillance video of the incident was shown to the jury. 8 B. The defense 9 [Petitioner’s] former girlfriend, Maria Perez, testified that she was with 10 [Petitioner] at the park on the day of the incident. [Petitioner] went near the 11 restrooms. While [Petitioner] was near the restrooms, several people, including the victim, directed racial epithets at [Petitioner]. Perez saw two 12 people throw punches at [Petitioner]. 13 [Petitioner] testified that he was at the park on the day of the charged 14 offenses and that he went to use the restroom at the park. As he approached 15 the restroom, he was confronted by several men, including the victim. According to [Petitioner], the victim swung his fist at [Petitioner], who backed 16 away quickly. Another man with a tattoo indicating his affinity for white 17 supremacy asked [Petitioner], “What’s up now, motherfucker?” [Petitioner] backed out of the bathroom. 18 A few minutes later, [Petitioner] approached the men with whom he 19 had the encounter by the restroom. The men continued to insult [Petitioner]. 20 According to [Petitioner], as he walked by, someone said, “Get his ass now.” [Petitioner] thought that the victim was going to grab the golf club and hit 21 [Petitioner] with it. Fearing an attack, [Petitioner] grabbed the club and struck 22 the victim with the club. 23 (ECF No. 13-13 at 4–5 (footnote omitted).) 24 /// 25 /// 26 /// 27 /// 28 /// 1 II. LEGAL STANDARD 2 Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a 3 federal court may only grant a habeas corpus petition on behalf of a person in state custody 4 if the adjudication of the claim on the merits in State court proceedings resulted in a 5 decision that (1) “was contrary to, or involved an unreasonable application of, clearly 6 established Federal law, as determined by the Supreme Court of the United States[]” or (2) 7 “was based on an unreasonable determination of the facts in light of the evidence presented 8 in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2); see also Lockyer v. Andrade, 9 538 U.S. 63, 71–72 (2003) (“‘[C]learly established Federal law’ under § 2254(d)(1) is the 10 governing legal principle or principles set forth by the Supreme Court at the time the state 11 court renders its decision.”) (citing Williams v. Taylor, 529 U.S. 362, 405, 413 (2000)). 12 A state court’s decision may be “contrary to” clearly established Supreme Court 13 precedent (1) “if the state court applies a rule that contradicts the governing law set forth 14 in [the Supreme Court’s] cases” or (2) “if the state court confronts a set of facts that are 15 materially indistinguishable from a decision of [the Supreme] Court and nevertheless 16 arrives at a result different from [the Supreme Court’s] precedent.” Williams, 529 U.S. at 17 405–06. A state court decision may involve an “unreasonable application” of clearly 18 established federal law “if the state court identifies the correct governing legal rule from 19 [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular state 20 prisoner’s case.” Id. at 407. In order to satisfy § 2254(d)(2), the factual findings relied 21 upon by the state court must be objectively unreasonable in light of the evidence presented 22 in the state court proceeding. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 23 III. DISCUSSION 24 A. Claim 1: Prosecutorial Misconduct 25 1. Parties’ Arguments 26 In Claim 1, Petitioner argues that the prosecutor committed prosecutorial 27 misconduct during her closing argument by referring to facts outside the record. (ECF No. 28 1 at 6.) Petitioner argues that, in doing so, the prosecutor undermined Petitioner’s 1 credibility, thereby tainting the jury’s deliberations pertaining to Petitioner’s self-defense 2 claim. (Id.) 3 In his Answer, Respondent argues that Petitioner’s claim of prosecutorial 4 misconduct is procedurally barred by California’s contemporaneous objection rule, i.e., 5 defense counsel’s failure to object at trial, and that Petitioner has failed to show cause or 6 prejudice to excuse the procedural bar. (ECF No. 22-1 at 7, 12–19.) 7 2. Relevant Facts 8 During closing argument, defense counsel argued that Petitioner was entitled to 9 stand his ground and use self-defense. (ECF No. 13-7 at 201.) Defense counsel argued: 10 The fact that [Petitioner] didn’t, you know, leave the park after this 11 happened and was cooperative with the police is also circumstantial evidence 12 that he was using self-defense. 13 I mean, if he had really just randomly, or purposefully, decided that he was going to take out [the victim], then why would he stay around? Everyone 14 knows there’s a police station directly across the street. It’s only going to take 15 [a] minute or two for them to respond. If you actually are swinging this club maniacally at someone to injure them and you have no legal excuse for doing 16 so, you’re not going to stick around and wait for the police to come. You’re 17 going to take off. 18 That’s not what [Petitioner] did. Again, that’s circumstantial evidence 19 that he was acting in self-defense. 20 (Id. at 202.) 21 During her rebuttal closing argument, the prosecutor responded to defense counsel’s 22 argument: 23 [] You know, and Counsel was getting up here and saying, “Well, yeah, 24 he stayed at the park so that shows he knew it was self-defense.” No. 25 Also look at—first of all, people do that all the time. That’s how the 26 cops catch people. 27 28 1 Beyond that, what—how reasonable is the evidence with his testimony? That he’s claiming that he is so scared that they’re going to kill him—look at 2 his body language. Is he acting like someone that’s scared? 3 Is it reasonable for someone who was truly threatened, who is truly 4 fearful for their life, to just hang out? That’s not reasonable. That’s not 5 reasonable because he was not in danger. He was not being threatened. His behavior is inconsistent with someone who is fearful for their life. 6 7 (Id. at 218–19 (emphasis added).) 8 3. Court of Appeal Decision 9 Federal courts, on habeas review, “look through unexplained state court decisions 10 leaving, in effect, the denial of post-conviction relief to the last reasoned state court 11 decision to address the claim at issue.” Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 12 2007) (citing Ylst v. Nunnemaker, 501 U.S. 797, 804–06 (1991)). In this case, the Court of 13 Appeal provided the last reasoned decision on the merits of Petitioner’s claims. (See ECF 14 No. 13-13.) In its decision, the Court of Appeal analyzed Petitioner’s claim of 15 prosecutorial error as follows: 16 [Petitioner] contends that the italicized portion of the prosecutor’s 17 rebuttal argument quoted [above] constituted prosecutorial error because there was no evidence in the record supporting the prosecutor’s statements. 18 19 a. Substantive law 20 “The use of deceptive or reprehensible methods to persuade the jury constitutes [prosecutorial] misconduct.” [Footnote omitted.] (People v. 21 Sanchez (2016) 63 Cal. 4th 411, 475.) “‘“A prosecutor’s misconduct violates 22 the Fourteenth Amendment to the United States Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due 23 process.’ [Citations.] In other words, the misconduct must be ‘of sufficient 24 significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct that does not render a trial 25 fundamentally unfair nevertheless violates California law if it involves ‘the 26 use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’” (People v. Covarrubias (2016) 1 Cal. 5th 838, 894.) 27 28 1 “‘“[S]tatements of facts not in evidence by the prosecuting attorney in his argument to the jury constitute misconduct.”’” (People v. Rivera (2019) 2 7 Cal. 5th 306, 382 (Rivera).) 3 b. Forfeiture 4 In People v. Forrest (2017) 7 Cal. App. 5th 1074, 1081, the Court of 5 Appeal discussed well-established law regarding what a defendant must do in 6 order to preserve a claim of prosecutorial error for appellate review: 7 “To preserve a misconduct claim for review on appeal, “‘a 8 defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper 9 argument.”’ The underlying purpose of this requirement is to 10 “‘“encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair 11 trial had . . . .”’” ‘The objection requirement is necessary in 12 criminal cases because a “contrary rule would deprive the People of the opportunity to cure the defect at trial and would “permit 13 the defendant to gamble on an acquittal at his trial secure in the 14 knowledge that a conviction would be reversed on appeal.”’” 15 A claim of prosecutorial error is reviewable on appeal notwithstanding the lack of a timely objection if an admonition would not have cured the harm 16 resulting from the prosecutor’s remarks. (See, e.g., People v. Cunningham 17 (2001) 25 Cal. 4th at pp. 1000–1001.) 18 c. Application 19 Defense counsel made no objection at trial to the portion of the 20 prosecutor’s rebuttal argument that [Petitioner] challenges on appeal, and [Petitioner] does not contend on appeal that the asserted prosecutorial error 21 could not have been cured by an admonition. 22 [Petitioner] requests that we exercise our discretion to consider his 23 unpreserved claim because his contention is “important” and provides “a 24 textbook case” of misconduct. He also argues that we should review his unpreserved claim because he received a lengthy prison sentence under the 25 Three Strikes law. Neither of [Petitioner’s] arguments provides a compelling 26 basis for excusing [Petitioner’s] forfeiture and we decline to exercise our 27 28 1 discretion to consider [Petitioner’s] claim on appeal. However, we address below [Petitioner’s] related claim that his counsel rendered ineffective 2 assistance in failing to object to the prosecutor’s rebuttal closing argument. 3 4 (ECF No. 13-13 at 7–9.) 5 4. Analysis 6 i. Procedural Bar 7 a. Legal Standard 8 Federal courts “will not consider an issue of federal law on direct review from a 9 judgment of a state court if that judgment rests on a state-law ground that is both 10 ‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s 11 decision.” Harris v. Reed, 489 U.S. 255, 260 (1989) (quoting Fox Film Corp. v. Muller, 12 296 U.S. 207, 210 (1935)); see also Wainwright v. Sykes, 433 U.S. 72, 81 (1977) (“As to 13 the role of adequate and independent state grounds, it is a well-established principle of 14 federalism that a state decision resting on an adequate foundation of state substantive law 15 is immune from review in the federal courts.”). The state holds the burden of proving the 16 existence of an independent and adequate state procedural ground. See Bennett v. Mueller, 17 322 F.3d 573, 585–86 (9th Cir. 2003). Once the state has adequately pled the existence of 18 an independent and adequate state procedural ground as an affirmative defense, the burden 19 shifts to the petitioner to assert “specific factual allegations that demonstrate the 20 inadequacy of the state procedure, including citation to authority demonstrating 21 inconsistent application of the rule.” Id. at 586. However, the ultimate burden of proving 22 procedural default belongs to the state. Id. 23 /// 24 25 26 6 [footnote in original] If we were to exercise our discretion to consider 27 [Petitioner’s] claim, we would conclude that the prosecutorial error of which [Petitioner] complains was harmless, for the reasons outlined in connection with our rejection of 28 1 “For a state procedural rule to be ‘independent,’ the state law basis for the decision 2 must not be interwoven with federal law.” La Crosse v. Kernan, 244 F.3d 702, 704 (9th 3 Cir. 2001) (citation omitted). “A state law ground is so interwoven if ‘the state has made 4 application of the procedural bar depend on an antecedent ruling on federal law [such as] 5 the determination of whether federal constitutional error has been committed.’” Id. 6 (quoting Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000)). For a state procedural 7 rule to be adequate, it “must have been ‘firmly established and regularly followed’ by the 8 time as of which it is to be applied.” Ford v. Georgia, 498 U.S. 411, 424 (1991) (quoting 9 James v. Kentucky, 466 U.S. 341, 348–49 (1984)); see also Fields v. Calderon, 125 F.3d 10 757, 760 (9th Cir. 1997). If a federal court concludes that an asserted state procedural bar 11 was not an independent and adequate ground for the state court decision, the federal court 12 must consider the claim on the merits; if the state court never reached the merits of the 13 claim, the federal court reviews the claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167– 14 68 (9th Cir. 2002). 15 Where a state petitioner has defaulted on federal claims in state court pursuant to an 16 independent and adequate state procedural rule, federal habeas review of the claims is 17 barred unless the petitioner can show cause for the default and actual prejudice because of 18 the alleged violation of federal law. United States v. Frady, 456 U.S. 152, 167–68 (1982) 19 (citing Davis v. United States, 411 U.S. 233 (1973)) (“[T]o obtain collateral relief based on 20 trial errors to which no contemporaneous objection was made, a convicted defendant must 21 show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ 22 resulting from the errors of which he complains.”); see also Sykes, 433 U.S. at 84. 23 Cause “must be something external to the petitioner.” Coleman v. Thompson, 501 24 U.S. 722, 753 (1991), holding modified by Martinez v. Ryan, 566 U.S. 1 (2012). “[I]f the 25 procedural default is the result of ineffective assistance of counsel, the Sixth Amendment 26 itself requires that responsibility for the default be imputed to the State,” thus establishing 27 cause to excuse the default. Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)); 28 see also Loveland v. Hatcher, 231 F.3d 640, 644 (9th Cir. 2000) (“The lack of effective 1 assistance of counsel, as provided for by the Sixth Amendment, can be sufficient cause for 2 a failure to comply with a state’s procedural bar rule.”). “[I]t is not the gravity of the 3 attorney’s error that matters, but that it constitutes a violation of petitioner’s right to 4 counsel, so that the error must be seen as an external factor . . . .” Id. at 754. 5 To establish cause based on ineffective assistance of counsel, a petitioner must show 6 that counsel “made errors so serious that counsel was not functioning as the ‘counsel’ 7 guaranteed the defendant by the Sixth Amendment . . . and the deficient performance 8 prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Regarding 9 a counsel’s failure to object during closing argument, the Ninth Circuit has indicated that 10 “[b]ecause many lawyers refrain from objecting during opening statement and closing 11 argument, absent egregious misstatements, the failure to object during closing argument 12 and opening statement is within the ‘wide range’ of permissible professional legal 13 conduct.” Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013) (quoting United 14 States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993)). 15 To show “actual prejudice,” a petitioner must show “not merely that the errors at his 16 trial created a possibility of prejudice, but that they worked to his actual and substantial 17 disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 18 U.S. at 170 (emphasis in original); see also Fauber v. Davis, 43 F.4th 987, 1003 (9th Cir. 19 2022). 20 A petitioner may also overcome the procedural bar by demonstrating that “failure to 21 consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. 22 at 750; see also Murray, 477 U.S. at 496. A “fundamental miscarriage of justice” occurs 23 when “a constitutional violation has probably resulted in the conviction of one who is 24 actually innocent.” Murray, 477 U.S. at 496; see also Schlup v. Delo, 513 U.S. 298, 321 25 (1995) (stating that Murray “explicitly tied the miscarriage of justice exception to the 26 petitioner’s innocence”). 27 /// 28 /// 1 b. Analysis 2 Respondent argues that Petitioner’s prosecutorial misconduct claim is procedurally 3 barred by California’s contemporaneous objection rule. (ECF No. 22-1 at 12–14.) As the 4 Court of Appeal stated, “[t]o preserve a misconduct claim for review on appeal, a defendant 5 must make a timely and specific objection and ask the trial court to admonish the jury to 6 disregard the improper argument.” (ECF No. 13-3 at 8 (quoting People v. Forrest, 7 Cal. 7 App. 5th 1074, 1081 (2017) (internal quotation marks omitted).) Because defense counsel 8 did not object at the time of the alleged prosecutorial misconduct during trial, the court 9 concluded Petitioner’s claims were forfeited. (Id. at 2, 9.) 10 The Ninth Circuit has recognized California’s contemporaneous objection rule as an 11 independent and adequate basis for denial of a petition for habeas corpus, thus precluding 12 federal review of such a claim. See Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir. 13 2005) (finding claim was procedurally barred from habeas review where state court found 14 that petitioner failed to object at trial); Paulino v. Castro, 371 F.3d 1083, 1092–93 (9th Cir. 15 2004) (finding claim procedurally defaulted based on California’s contemporaneous 16 objection rule). Thus, Respondent has satisfied his initial burden of pleading the existence 17 of an independent and adequate state procedural ground. Bennett, 322 F.3d at 586. The 18 burden then shifts to Petitioner to “place [Respondent’s affirmative defense] in issue . . . 19 by asserting factual allegations that demonstrate the inadequacy of the state procedure, 20 including . . . inconsistent application of the rule.” Id.; see also King v. LaMarque, 464 21 F.3d 963, 966–67 (9th Cir. 2006) (shifting the burden to the petitioner after the state 22 satisfied its burden of pleading the existence of an independent and adequate state 23 procedural ground). 24 Petitioner has failed to do so here. (See generally ECF No. 1.) In his Petition, 25 Petitioner raises no specific factual allegations demonstrating the inadequacy of the state 26 procedure and provides no citation to authority demonstrating inconsistent application of 27 the contemporaneous objection rule. See Bennett, 322 F.3d at 586; cf. Roybal v. Davis, 28 148 F. Supp. 3d 958, 988 (S.D. Cal. 2015) (“Given Petitioner’s argument and citation to 1 authority showing the [state] rule has been applied inconsistently, the Court finds that 2 Petitioner has satisfied the ‘burden to place that defense in issue.’” (quoting Bennett, 322 3 F.3d at 586)). Therefore, the Court finds that Petitioner failed to satisfy his burden of 4 challenging the independence or adequacy of the state procedural bar, and his claim for 5 prosecutorial misconduct is procedurally defaulted. See Bennett, 322 F.3d at 586; see also 6 Young v. Gipson, 163 F. Supp. 3d 647, 679 (N.D. Cal. 2015) (finding a claim for 7 prosecutorial misconduct to be procedurally defaulted after concluding the 8 contemporaneous objection rule is sufficiently independent and adequate). 9 As set forth above, a federal habeas court may still address the merits of a 10 procedurally defaulted claim if the petitioner can demonstrate cause for his failure to satisfy 11 the state procedural rule and prejudice arising from the default or demonstrate that failure 12 to consider his claims will result in a “fundamental miscarriage of justice.” See Coleman, 13 501 U.S. at 749–50. Petitioner has not done so here. 14 First, Petitioner has not established cause for the procedural default. While he 15 alleges his trial counsel was ineffective for failing to object to the alleged prosecutorial 16 misconduct, as set forth in the discussion of Claim 2 below, Petitioner has not established 17 that his trial counsel’s performance fell below an objective standard of reasonableness. See 18 Strickland, 466 U.S. at 669 (a petitioner “must show that counsel’s representation fell 19 below an objective standard of reasonableness” to establish ineffective assistance of 20 counsel). 21 Generally, a failure to object during closing arguments does not constitute deficient 22 performance. See Necoechea, 986 F.2d at 1281 (“Because many lawyers refrain from 23 objecting during opening statement and closing argument, absent egregious misstatements, 24 the failure to object during closing argument and opening statement is within the ‘wide 25 range’ of permissible professional legal conduct.” (quoting Strickland, 466 U.S. at 689)); 26 Cunningham, 704 F.3d at 1159 (“Under Necoechea, [counsel’s] decision not to object to 27 [the prosecutor’s] comments, possibly to avoid highlighting them, was a reasonable 28 strategic decision.”). 1 In this case, the prosecutor’s comment, “People do that [i.e., remain on the scene] 2 all the time. That’s how the cops catch people,” was a brief, two-sentence remark, and 3 does not rise to a level of egregiousness such that reasonable counsel would necessarily 4 object. (See ECF No. 13-7 at 218.) Defense counsel’s failure to object to the prosecutor’s 5 remarks could reasonably be considered a strategic trial decision to avoid highlighting the 6 comments. See Cunningham, 704 F.3d at 1159. This is particularly true here, where the 7 prosecutor’s isolated comment was made in response to the defense assertion in closing 8 argument, “I mean, if he had really just randomly, or purposefully, decided that he was 9 going to take out [the victim], then why would he stay around? Everyone knows there’s a 10 police station directly across the street. It’s only going to take [a] minute or two for them 11 to respond.” (ECF No. 13-7 at 202.) The factual assertion that “everyone knows” there 12 was a police station across the street was similarly unsupported by evidence in the record. 13 Defense counsel may not have wanted to highlight this fact by objecting to the 14 prosecution’s counter argument. Accordingly, Petitioner has failed to show that his trial 15 counsel “made errors so serious that counsel was not functioning as the ‘counsel’ 16 guaranteed the defendant by the Sixth Amendment,” and thus fails to show cause for the 17 procedural default. Strickland, 466 U.S. at 687. 18 Second, even assuming Petitioner could establish cause, he has not established actual 19 prejudice sufficient to excuse the procedurally barred claims. See Vansickel v. White, 166 20 F.3d 953, 958 (9th Cir. 1999) (“[E]ven if [defense counsel’s conduct constituted cause], 21 we hold that [the petitioner] cannot establish prejudice because there is no reasonable 22 probability that but for counsel’s error, the result of the trial would have been different.”). 23 The evidence in this case was clearly sufficient for the jury to find Petitioner guilty, 24 independent of the prosecutor’s remark at issue. As the Court of Appeal observed, “The 25 People presented compelling, if not overwhelming, evidence of [Petitioner’s] guilt.” (ECF 26 No. 13-13 at 12.) 27 Lastly, Petitioner has not established that failure to consider the claim would result 28 in a “fundamental miscarriage of justice.” See Coleman, 501 U.S. at 750. The fundamental 1 miscarriage of justice exception to a procedural default is intended to apply only in 2 extraordinary cases when a constitutional violation results in the conviction of an innocent 3 person. Schlup, 513 U.S. at 327 (citing Murray, 477 U.S. at 496). To establish this 4 exception, the petitioner “is required to make a stronger showing than that needed to 5 establish prejudice.” Id. In this case, as found by the Court of Appeal, there is “compelling 6 evidence of [Petitioner’s] guilt, including video evidence of the incident, eyewitness 7 testimony, and inconsistencies in defense witnesses’s statements.” (ECF No. 13-13 at 11.) 8 Further, Petitioner does not argue that failure to consider the claim would result in a 9 fundamental miscarriage of justice and has failed to demonstrate the constitutional 10 violation resulted in the conviction of an innocent person. (See generally ECF No. 1.) 11 Thus, Petitioner cannot excuse his procedural default under the fundamental miscarriage 12 of justice exception. 13 c. Conclusion 14 For the foregoing reasons, federal habeas review of Petitioner’s claim for 15 prosecutorial misconduct is barred because Petitioner failed to show cause for his default 16 and actual prejudice resulting from the default, or a fundamental miscarriage of justice. 17 See Coleman, 501 U.S. at 749–50. 18 ii. Merits of Prosecutorial Misconduct Claim 19 Notwithstanding the procedural bar, the Court now turns to the merits of Petitioner’s 20 prosecutorial misconduct claim. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 21 2002) (“[C]ourts are empowered to, and in some cases should, reach the merits of habeas 22 petitions if they are . . . clearly not meritorious despite an asserted procedural bar.”); Young, 23 163 F. Supp. 3d at 679 (addressing the merits of the case after finding the underlying claim 24 for prosecutorial misconduct procedurally defaulted). 25 a. Legal Standard 26 A prosecutor’s misconduct violates a criminal defendant’s due process rights when 27 such conduct “so infected the trial with unfairness as to make the resulting conviction a 28 denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting 1 Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). The court focuses on the fairness of a 2 trial, not the culpability of the prosecutor. Smith v. Phillips, 455 U.S. 209, 219 (1982). In 3 this due process inquiry, the court considers, inter alia, “(1) whether the prosecutor’s 4 comments manipulated or misstated the evidence; (2) whether the trial court gave a curative 5 instruction; and (3) the weight of the evidence against the accused.” Tak Sun Tan v. 6 Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005); see also Darden, 477 U.S. at 180–82. The 7 prosecutor’s remarks must be weighed in the context of the entire proceeding. Darden, 8 477 U.S. at 179–82. Additionally, because 9 improvisation [during a closing argument] frequently results in syntax left imperfect and meaning less than crystal clear[,] . . . a court should not lightly 10 infer that a prosecutor intends an ambiguous remark to have its most damaging 11 meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations. 12 13 Donnelly, 416 U.S. at 647. If prosecutorial misconduct is established, and it was 14 constitutional error, the court must decide whether the constitutional error was harmless. 15 Thompson, 74 F.3d at 1576–77. 16 b. Analysis 17 In addition to finding that Petitioner’s prosecutorial misconduct claim was 18 procedurally defaulted, the Court of Appeal found that the claim failed on the merits. (See 19 ECF No. 13-13 at 9 n.6 (“If we were to exercise our discretion to consider [Petitioner’s] 20 claim, we would conclude that the prosecutorial error of which [Petitioner] complains was 21 harmless, for the reasons outlined in connection with our rejection of [Petitioner’s] related 22 ineffective assistance claim.”). The Court finds that the appellate court’s determination 23 was neither contrary to, nor an objectively unreasonable application of, clearly established 24 federal law. 25 Assuming, arguendo, that the prosecutor’s remark that “people do that [i.e., remain 26 at crime scenes] all the time,” was inappropriate because there was no evidence in the 27 28 1 record regarding this issue, it cannot be said that the comment rendered the trial 2 fundamentally unfair so as to deny Petitioner due process.8 (See ECF No. 13-7 at 218.) 3 The prosecutor’s objectionable comment was brief, a very small portion of the argument, 4 and made in response to defense counsel’s argument that Petitioner must have acted in self- 5 defense because he stayed at the park after the incident even though “everyone knows 6 there’s a police station directly across the street.” (See ECF No. 13-7 at 202.) As the Court 7 of Appeal noted, the prosecutor’s statement was a “brief and isolated remark” made only 8 once throughout the entire closing argument.9 (See ECF No. 13-13 at 11.) 9 Additionally, the statements did not play a prominent role in Petitioner’s trial, but 10 rather were just two short sentences during a rebuttal closing argument that took up just 11 fourteen pages of transcript.10 (See ECF No. 13-7 at 209–23.) As the Court of Appeal 12 observed, “The remainder of the prosecutor’s opening and rebuttal closing arguments 13 focused on the compelling evidence of [Petitioner’s] guilt, including video evidence of the 14 incident, eyewitness testimony, and inconsistencies in defense witnesses’s statements.” 15 (ECF No. 13-13 at 11.) 16 /// 17

18 19 7 See Berger v. United States, 295 U.S. 78, 84 (1935) (finding it was improper for the prosecutor to assume prejudicial facts not in evidence); Baldwin v. Adams, 899 F. 20 Supp. 2d 889, 915 (N.D. Cal. 2012) (finding it was improper for the prosecutor to argue 21 facts not in evidence). 8 See Darden, 477 U.S. at 181. 22 9 See Hein v. Sullivan, 601 F.3d 897, 916 (9th Cir. 2010) (considering the fact 23 the prosecutor’s “comment did not pervade the proceedings and was not emphasized” in finding that it did not render the trial fundamentally unfair). 24 10 See Trillo v. Biter, 769 F.3d 995, 1002 (9th Cir. 2014) (noting that “[t]he 25 erroneous unrectified comment did not play a prominent role in [the defendant]’s trial, but instead was a single statement during a closing argument that took twenty pages of 26 transcript after a long criminal trial” in finding the defendant was not deprived of a fair 27 trial); Hein, 601 F.3d at 916 (considering the fact that the “[prosecutor]’s statement . . . appeared in one paragraph of a summation that took up eighty-four pages of the transcript” 28 1 Furthermore, the trial court instructed jurors to make their decision based on the 2 evidence presented, and that counsels’ arguments were not evidence. (See ECF No. 13-7 3 at 169–70.) The trial court’s instruction further reduced the likelihood the jury’s decision 4 was influenced by the brief comment made in the rebuttal argument. See Darden, 477 U.S. 5 at 182 (considering the fact that the “trial court instructed the jurors several times that their 6 decision was to be made on the basis of the evidence alone, and that the arguments of 7 counsel were not evidence” in finding the petitioner was not deprived of a fair trial); Tak 8 Sun Tan, 413 F.3d at 1117–18 (finding that even if the prosecutor’s statements were 9 improper, “the trial court’s numerous and thorough instructions eliminated any risk that the 10 petitioners were denied due process”); Allen v. Woodford, 395 F.3d 979, 998 (9th Cir. 11 2005) (“[T]he prosecutor’s [statement] was misconduct. However, given the trial court’s 12 instruction that statements by counsel were not evidence, and given the weight of the 13 evidence against him, the prosecutor’s comments did not deprive [the petitioner] of a fair 14 trial.”). 15 Lastly, a court must look to the weight of the evidence submitted against the 16 petitioner, including eyewitness and circumstantial evidence. See id. at 181–82; see also 17 Trillo, 769 F.3d at 1001. In this case, there was ample evidence of Petitioner’s guilt. As 18 the Court of Appeal found, there was “compelling evidence of [Petitioner’s] guilt, 19 including video evidence of the incident, eyewitness testimony, and inconsistencies in 20 defense witnesses’s statements.” (ECF No. 13-13 at 11.) 21 Ultimately, even if the prosecutor’s remarks were improper because they stated facts 22 outside the record, there is no basis by which to conclude that the remarks rendered the 23 trial as a whole fundamentally unfair. See Hovey v. Ayers, 458 F.3d 892, 921 (9th Cir. 24 2006) (“Even if the prosecution’s actions were inappropriate, they do not rise to the level 25 of a due process violation that merits reversal of [the petitioner]’s conviction.”). 26 c. Conclusion 27 Based on the foregoing, the state court’s adjudication of Petitioner’s prosecutorial 28 misconduct claim is neither contrary to, nor an unreasonable application of, clearly 1 established federal law, nor is there any basis to find it is based on an unreasonable 2 determination of the facts in light of the evidence presented in the state court proceedings. 3 Accordingly, the Court RECOMMENDS that habeas relief be denied as to Claim 1. 4 B. Claim 2: Ineffective Assistance of Counsel 5 1. Parties’ Arguments 6 In Claim 2, Petitioner argues that his trial counsel provided ineffective assistance 7 under the Sixth and Fourteenth Amendments for failing to object to the prosecutor’s alleged 8 misconduct. (ECF No. 1 at 7.) He contends that there is a reasonable probability that his 9 counsel’s error affected the outcome of his trial because the prosecutor in his prior trial, 10 which resulted in a hung jury, did not rely on facts outside of the evidence. (Id.) 11 Respondent counters that Petitioner has failed to establish that the state court’s resolution 12 of his claims was contrary to, or based on an unreasonable application, of clearly 13 established Supreme Court authority. (ECF No. 22-1 at 7, 19–26.) 14 2. Court of Appeal Decision 15 In its decision, the Court of Appeal analyzed Petitioner’s claim of ineffective 16 assistance of counsel as follows: 17 [Petitioner] claims that defense counsel rendered ineffective assistance in failing to object to the prosecutor’s rebuttal closing argument quoted 18 [above]. 19 a. Relevant law governing ineffective assistance of counsel claims 20

21 To establish a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient in that it “fell below an 22 objective standard of reasonableness,” evaluated “under prevailing 23 professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland); accord, People v. Ledesma (1987) 43 Cal. 3d 171, 216.) The 24 defendant must also show that it is reasonably probable that a more favorable 25 result would have been reached absent counsel’s deficient performance. (Strickland, supra, at p. 694.) 26

27 “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result 28 1 claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 2 697.) 3 b. Application 4

5 The prosecutor’s remark that “people do that [i.e., remain at crime scenes] all the time,” was improper because there was no evidence in the 6 record with respect to this issue. (See Rivera, supra, 7 Cal. 5th at p. 335 7 [improper for prosecutor to make “‘“statement[ ] of facts not in evidence”’”].)

8 However, we need not determine whether defense counsel rendered 9 ineffective assistance in failing to object to the prosecutor’s remark because we conclude that it is not reasonably probable that [Petitioner] would have 10 achieved a more favorable result even if defense counsel had objected. (See 11 Strickland, supra, 466 U.S. at p. 697 [claims of ineffective assistance of counsel fail in the absence of a showing of prejudice].) 12

13 To begin with, the prosecutor’s statement was a “brief and isolated remark,” (People v. Cudjo (1993) 6 Cal. 4th 585, 626.) The remainder of the 14 prosecutor’s opening and rebuttal closing arguments focused on the 15 compelling evidence of [Petitioner’s] guilt, including video evidence of the incident, eyewitness testimony, and inconsistencies in defense witnesses’s 16 statements. Further, the argument to which the prosecutor was responding— 17 i.e., defense counsel’s contention that the fact that [Petitioner] remained at the scene constituted circumstantial evidence that [Petitioner] had acted in self- 18 defense—was a very minor portion of defense counsel’s closing argument. 19 Further, the trial court instructed the jury as follows: “Nothing that the 20 attorneys say is evidence. In their opening and closing arguments, the 21 attorneys discuss the case, their remarks are not evidence.” The court also instructed the jury that it was to decide the case “only on the evidence that has 22 been presented to you in this trial.” Since we “presume the jury followed 23 these instructions,” (People v. Avila (2009) 46 Cal. 4th 680, 719), such instructions mitigated any potential for prejudice stemming from the 24 prosecutor’s remarks. (Ibid. [rejecting claim of prosecutorial error premised 25 on prosecutor’s argument “not supported by any facts in the record,” in part because jury was instructed that “‘[s]tatements made by the attorneys during 26 the trial are not evidence’”].) 27 28 1 In addition to the fact that the prosecutor’s brief remark was a very minor part of the trial, an assessment of the remainder of the trial supports the 2 conclusion that [Petitioner] has failed to establish prejudice from defense 3 counsel’s failure to object to the remark. While [Petitioner] contends that this was a “close case,” the record belies that contention. The People presented 4 compelling, if not overwhelming, evidence of [Petitioner’s] guilt. 5 To begin with, at trial, the People played for the jury extremely 6 inculpatory video evidence of [Petitioner] committing the charged offense. 7 People’s Exhibit 3 is an approximately 33-second-long video clip showing [Petitioner] striking the victim with the golf club. In the video, a man, later 8 determined to be [Petitioner], walks over to a group of people at a park. The 9 victim is sitting on the ground with a group of people. [Petitioner] reaches down and picks up an object, later determined to be a golf club. [Petitioner] 10 aggressively hits the victim on the back of the head or neck area with the golf 11 club. Seconds later, with the victim still on the ground, [Petitioner] hits the victim with the club a second time. People from the victim’s group start to 12 hurriedly walk and run away. 13 People’s Exhibit 2 is an approximately eight-minute-long video clip 14 depicting approximately two and a half minutes before the commission of the 15 charged offense, and approximately five and a half minutes after its commission. For the entire two and a half minutes before [Petitioner] hits the 16 victim in the back of the head with a golf club, the victim is seated on the 17 grass. Approximately twenty seconds before the beating, [Petitioner] walks over to the victim’s group. [Petitioner] circles around the group briefly before 18 picking up the golf club and striking the victim with it. After the beating, 19 Perez runs to [Petitioner]. Perez appears to attempt to restrain [Petitioner]. Several individuals who had been near the victim at the time of the beating 20 begin to walk or run away from the area. [Petitioner] briefly walks toward 21 these individuals. Approximately 45 seconds after hitting the victim twice with the golf club, [Petitioner] returns to the victim, who is now standing. 22 [Petitioner] appears to hit the victim in the face with his hand or fist. 23 [Petitioner] can then be seen walking around the park until police arrive at the scene approximately five and a half minutes after the offense. 24

25 In addition to this video evidence, the victim and another eyewitness both testified that [Petitioner’s] beating of the victim with a golf club was 26 unprovoked. [Petitioner] acknowledged at trial that he had hit the victim with 27 a golf club.

28 1 Further, we agree with the People that [Petitioner’s] testimony that he acted in self-defense after being assaulted by the victim near the restroom in 2 the park a few minutes before he struck the victim with a golf club lacked 3 credibility, for numerous reasons. To begin with, [Petitioner] did not tell police about the alleged incident in the restroom on the day of the charged 4 offenses, either at the scene or during an interview at the police station. When 5 asked at trial whether this would have been important information to tell the police, [Petitioner] responded, “Yes. If I was a snitch, yes.” Yet, [Petitioner] 6 admitted at trial that he did tell police that the victim had allegedly swung the 7 golf club at him. During his testimony at trial, [Petitioner] acknowledged that the victim had not in fact swung the golf club at him. Further, even assuming 8 that the jury were to have believed [Petitioner’s] testimony about the alleged 9 assault in the restroom, a reasonable juror would not have found that [Petitioner’s] act in beating the victim with a golf club during a separate 10 incident several minutes later constituted self-defense. 11 To that end, we disagree with [Petitioner’s] assertion that “the 12 surveillance video did not corroborate or contradict [Petitioner’s] self-defense 13 claim.” The jury was instructed that, in order for [Petitioner] to have acted in self-defense, he had to have believed that he was in “imminent danger,” and 14 that the “immediate use of force was necessary to defend against that danger.” 15 In addition, he must have used “no more force than was reasonably necessary.” The jury was also instructed that the “[r]ight to use force in self- 16 defense continues only as long as the danger exists, or reasonably appears to 17 exist.” Thus, even assuming, strictly for the purpose of argument, that the jury believed [Petitioner’s] testimony that the victim had attempted to punch 18 him in the restroom, it is not reasonably probable that the jury would have 19 found that [Petitioner] acted in self-defense in approaching the seated victim several minutes after the alleged restroom incident, picking up a golf club, 20 violently striking the seated victim in the back of the head with the golf club, 21 and striking the victim in the head with the club a second time.

22 We are not persuaded that Perez’s former testimony in which Perez 23 testified that [Petitioner] had been assaulted near the park restroom prior to [Petitioner’s] use of the golf club, supports a finding of prejudice. The People 24 called a defense investigator as a witness at this trial. The investigator testified 25 that Perez had told him that the victim and [Petitioner] began to hit each other just before [Petitioner] swung a golf club at the victim. The investigator also 26 testified that Perez had never told him about a separate incident between 27 [Petitioner] and the victim occurring near the park restroom. The description of the incident that Perez related to the investigator was inconsistent with her 28 1 former testimony and was contrary to video evidence that was shown to the jury. Further, as with [Petitioner’s] testimony, even if the jury believed that 2 Perez had been truthful in testifying that [Petitioner] was assaulted near the 3 park restroom several minutes before he attacked the victim, the jury was unlikely to find that [Petitioner’s] later act in beating the seated victim in the 4 back of the head with a golf club constituted self-defense. 5 Thus, while we agree with [Petitioner] that the jury was required to 6 make a “credibility determination[],” it is clear that the jury determined that 7 [Petitioner’s] testimony was not credible. In light of the evidence discussed above, it is not reasonably probable that the jury would have reached a 8 different determination as to [Petitioner’s] credibility if defense counsel had 9 objected to the prosecutor’s remark.

10 Finally, we are unpersuaded by [Petitioner’s] claim that prejudice is 11 demonstrated by the fact that the jury in a prior trial was unable to reach a verdict. [Petitioner] fails to demonstrate that the evidence presented at the two 12 trials was materially similar. In fact, the evidence presented at the trials was 13 materially different, since neither [Petitioner] nor the victim testified at the prior trial. Accordingly, the fact that the prior jury was unable to reach a 14 verdict does not demonstrate prejudice resulting from defense counsel’s 15 failure to object to the prosecutor’s remark in rebuttal closing argument. (See In re Richards (2016) 63 Cal. 4th 291, 316 (conc. opn. by Corrigan, J.) 16 [“Particularly when the split is 11 to one,11 as it was in the second trial here, 17 the disagreement may be driven as much by the personality of a juror, a uniquely held world view, or even some friction during deliberations, as by 18 any weakness in the underlying case”].) 19 Accordingly, we conclude that [Petitioner] has not demonstrated that 20 he suffered prejudice as a result of defense counsel’s failure to object to the 21 prosecutor’s statement in his rebuttal closing argument, and that he has therefore failed to establish a claim of ineffective assistance of counsel. 22 23 (ECF No. 13-13 at 9–17 (footnotes other than footnote 15 omitted). 24 /// 25 /// 26 27 11 [footnote in original] The record from the prior trial indicates that the jury was 28 1 3. Analysis 2 The Sixth Amendment guarantees the right to effective assistance of counsel. 3 Strickland, 466 U.S. at 685–86. “The benchmark for judging any claim of ineffectiveness 4 must be whether counsel’s conduct so undermined the proper functioning of the adversarial 5 process that the trial cannot be relied on as having produced a just result.” Id. at 686. To 6 establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel’s 7 performance was deficient and (2) the deficient performance prejudiced the defense. Id. at 8 687. 9 “The pivotal question is whether the state court’s application of the Strickland 10 standard was unreasonable. This is different from asking whether defense counsel’s 11 performance fell below Strickland’s standard.” Harrington v. Richter, 562 U.S. 86, 101 12 (2011). The rule of Strickland requires the court to view defense counsel’s effectiveness 13 with great deference. Cullen v. Pinholster, 563 U.S. 170, 190 (2011). This, coupled with 14 AEDPA’s requirement that federal courts defer to the state court’s decision unless its 15 application of Supreme Court precedent was objectively unreasonable, results in a “doubly 16 deferential” judicial review process. See id.; Cheney v. Washington, 614 F.3d 987, 995 17 (9th Cir. 2010). “Surmounting Strickland’s high bar is never an easy task.” Padilla v. 18 Kentucky, 559 U.S. 356, 371 (2010). 19 i. Deficient Performance 20 a. Legal Standard 21 To prove deficient performance, a petitioner must demonstrate that counsel’s 22 representation fell below an objective standard of reasonableness under prevailing 23 professional norms. Strickland, 466 U.S. at 688. The relevant inquiry is not what defense 24 counsel could have done, but rather whether the choices made by defense counsel were 25 reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). “Judicial 26 scrutiny of counsel’s performance must be highly deferential,” and a “fair assessment of 27 attorney performance requires that every effort be made to eliminate the distorting effects 28 of hindsight[.]” Strickland, 466 U.S. at 689. Reviewing courts “must indulge a strong 1 presumption that counsel’s conduct falls within the wide range of professional assistance; 2 that is, the defendant must overcome the presumption that, under the circumstances, the 3 challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel v. State 4 of La., 350 U.S. 91, 101 (1955)). 5 b. Application 6 The Court of Appeal did not evaluate whether Petitioner’s trial counsel’s failure to 7 object to the prosecutor’s remark during rebuttal closing argument constituted deficient 8 performance. (See ECF No. 13-13 at 10–11 (“However, we need not determine whether 9 defense counsel rendered ineffective assistance in failing to object to the prosecutor’s 10 remark because we conclude that it is not reasonably probable that [Petitioner] would have 11 achieved a more favorable result even if defense counsel had objected.”) (citing Strickland, 12 466 U.S. at 697).) The Court must therefore review de novo whether defense counsel’s 13 performance constituted deficient performance. See Ross v. Davis, 29 F.4th 1028, 1054 14 (9th Cir. 2022) (“Because the issue of deficient performance was left unadjudicated by the 15 California Supreme Court, we review this issue de novo.”). 16 The prosecutor in this case made one improper statement, consisting of two 17 sentences, in response to defense counsel’s self-defense argument. (See ECF No. 13-7 at 18 218.) The assertion that people remain on the scene “all the time” was not supported by 19 testimony, but would likely be construed by the jury, at most, as an appeal to their common 20 sense. As addressed above, the comments did not rise to the level of “egregious 21 misstatements” to which counsel must object. In the context of closing arguments, “absent 22 egregious misstatements, the failure to object during closing argument . . . is within the 23 ‘wide range’ of permissible professional legal conduct.” Necoechea, 986 F.2d at 1281 24 (quoting Strickland, 466 U.S. at 689); see also Garcia v. Burton, 536 F. Supp. 3d 560, 602 25 (N.D. Cal. 2021) (“Some or all of the prosecutor’s statements were almost certainly 26 improper, and [defense counsel] may have succeeded in having them stricken if she had 27 objected. But the comments do not rise to the level of ‘egregious misstatements’ to which 28 1 defense counsel must object or be found to have performed deficiently.” (citations 2 omitted)). 3 Accordingly, the Court finds that it was reasonably within defense counsel’s wide 4 range of permissible professional legal conduct to not object to the prosecutor’s statements. 5 See Cunningham, 704 F.3d at 1159. Petitioner has failed to provide any evidence opposing 6 “the presumption that, under the circumstances, the challenged action ‘might be considered 7 sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel, 350 U.S. at 101). 8 Therefore, Petitioner fails to meet the first prong of the Strickland standard. 9 ii. Prejudice 10 a. Legal Standard 11 To establish that counsel’s deficient performance prejudiced the defense, a petitioner 12 must show “a reasonable probability that, but for counsel’s unprofessional errors, the result 13 of the proceeding would have been different.” Strickland, 466 U.S. at 694. “The 14 benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so 15 undermined the proper functioning of the adversarial process that the trial cannot be relied 16 on as having produced a just result.” Id. at 686. Thus, a petitioner must demonstrate that 17 counsel’s errors were “so serious as to deprive the defendant of a fair trial, a trial whose 18 result is reliable.” Id. at 687. 19 b. Application 20 Petitioner has not shown that the Court of Appeal was unreasonable in its denial of 21 Petitioner’s claim of prejudice as a result of ineffective assistance of counsel. The Court 22 of Appeal provided nearly four full pages of evidence from the trial that “presented 23 compelling, if not overwhelming, evidence of [Petitioner’s] guilt,” including video footage 24 and eyewitness testimony of Petitioner committing the charged offense. (ECF No. 13-13 25 at 12–16.) Thus, the Court of Appeal reasonably determined that there was no reasonable 26 probability that, but for counsel’s unprofessional errors, the result of the proceeding would 27 have been different. See Featherstone v. Estelle, 948 F.2d 1497, 1505–06 (9th Cir. 1991) 28 (finding counsel’s failure to object to improper closing argument did not prejudice 1 petitioner where other evidence supported a guilty verdict and the jury was told counsel’s 2 arguments were not evidence); Demirdjian v. Gipson, 832 F.3d 1060, 1074–75 (9th Cir. 3 2016) (finding that significant physical evidence offered against the defendant and a lack 4 of plausible evidence negating the evidence demonstrates it “would have been reasonable 5 to conclude [the petitioner] did not establish prejudice based on the evidence against him”). 6 The Court of Appeal also reasonably disagreed with Petitioner’s argument that 7 prejudice was demonstrated by the fact that the jury in his prior trial was unable to reach a 8 verdict. (See ECF No. 13-13 at 16–17.) The appellate court explained that the evidence 9 presented at the two trials was materially different, as neither Petitioner nor the victim 10 testified at the first trial. (See id. at 16.) The result of the first trial therefore does not 11 demonstrate that Petitioner was prejudiced by defense counsel’s failure to object to the 12 prosecutor’s remarks in the second trial. (See id. at 16–17.) Ultimately, the Court of 13 Appeal’s conclusion that Petitioner has not demonstrated that he suffered prejudice as a 14 result of his trial counsel’s failure to object to the prosecutor’s statement in her closing 15 argument was not an objectively unreasonable application of Strickland. 16 c. Conclusion 17 Based on the foregoing, the state court’s adjudication of Petitioner’s ineffective 18 assistance of counsel claim is neither contrary to, nor an unreasonable application of, 19 clearly established federal law, nor is there any basis to find it is based on an unreasonable 20 determination of the facts in light of the evidence presented in the state court proceedings. 21 Accordingly, the Court RECOMMENDS that habeas relief be denied as to Claim 2. 22 IV. CONCLUSION 23 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the District 24 Judge issue an Order: (1) approving and adopting this Report and Recommendation; and 25 (2) denying Petitioner’s habeas petition. 26 IT IS ORDERED that no later than April 1, 2025, any party to this action may file 27 written objections with the Court and serve a copy on all parties. The document should be 28 captioned “Objections to Report and Recommendation.” 1 IT IS FURTHER ORDERED that any reply to any objections shall be filed with 2 || the district court and served on all parties no later than April 15, 2025. The parties are 3 || advised that failure to file objections within the specified time may waive the right to raise 4 || those objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 5 Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991). 6 IT IS SO ORDERED. 7 Dated: March 4, 2025 -

n. Jill L. Burkhardt ? ited States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28