Shaw v. Sherman

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHAUN REGINALD SHAW, Case No.: 20-cv-1875-GPC (DEB)

12 Petitioner, REPORT AND 13 v. RECOMMENDATION ON PETITION FOR WRIT OF HABEAS 14 STU SHERMAN, et al., CORPUS 15 Respondents. 16 17 This Report and Recommendation is submitted to United States District Judge 18 Gonzalo P. Curiel pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d)(4) and 19 HC.2(a). 20 I. INTRODUCTION 21 On September 21, 2020, Petitioner Shaun Reginald Shaw filed a Petition for a Writ 22 of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) challenging his July 31, 2017 23 conviction and sentence in San Diego Superior Court. Dkt. No. 1. Petitioner raises two 24 ineffective assistance of counsel claims, a Brady claim, and an actual innocence claim. Id. 25 at 6–21. Petitioner also requests the Court “fashion a[n] order to bring forth [video footage 26 evidence].” Id. at 17. 27 28 1 On December 15, 2020, Respondent filed an Answer and lodged the state court 2 record. Dkt. Nos. 7, 8. On March 1, 2021, Petitioner filed a Traverse. Dkt. No. 11. On 3 April 26 and 28, 2021, the parties submitted supplemental briefing. Dkt. Nos. 13, 14. 4 Having considered the Petition, Answer, Traverse, supplemental briefs, and all 5 supporting documents, the Court RECOMMENDS DENYING the Petition for Writ of 6 Habeas Corpus. 7 II. FACTUAL BACKGROUND 8 The following facts are taken from the California Court of Appeal’s January 7, 2019 9 Opinion on Rehearing in The People of the State of California v. Shaun Reginald Shaw 10 (Case No. D072841):1 11 Shaw and William were introduced to each other by a mutual 12 friend about three weeks before the incident underlying this case. Shortly after they met, Shaw asked if he could store cars on 13 William’s property. William was hesitant but said he would think 14 it over. They did not reach an agreement. Nevertheless, over the 15 next few days, Shaw had three cars towed to and deposited in William’s driveway. At each instance, William protested. Shaw 16 responded by offering him various payments, some of which 17 were accepted and some of which were not. 18 After the third and final car—by far the nicest of the three—was 19 dropped off, William tried rather unsuccessfully to reach Shaw over the phone and by text message in the ensuing weeks. He 20 implored Shaw to remove the cars. He told Shaw that one of the 21 cars was apparently tampered with and disclaimed all responsibility for their condition. All of his text messages went 22 unanswered. William eventually enlisted the help of a friend to 23 tow the third, nicest car away. The other two remained onsite. 24 25

26 27 1 Absent clear and convincing evidence to the contrary, the Court defers to the state court’s factual determinations and presumes them to be correct. See 28 U.S.C. 28 1 It was around noon either that same day or the next that William was in his kitchen cooking when he heard a loud noise come from 2 the direction of his front door. Shaw burst through it, stumbling 3 onto the ground and holding a hatchet. He advanced toward 4 William, wielding the hatchet with his right hand and threatening, “‘Where's my mother fucking cars? I'm going to kill 5 your ass.’” The hatchet grazed William’s lip as Shaw swung it 6 up and down. 7 Shaw wrapped William in what is repeatedly described in the 8 record as a “bear hug,” and pushed him from the kitchen to the living room, all the while hitting him and again threatening to 9 “‘kill [his] ass’” if the cars were not returned. With William now 10 pinned to the ground, Shaw continued to punch him from above. He was still holding but no longer swinging the hatchet. William 11 grabbed for it, and a struggle over its possession ensued. 12 Amid the tussle, William yelled to his girlfriend (who was in the 13 bedroom) to call the police. Hearing that, Shaw stood and 14 warned, “‘I have a gun.’” William stood too, having somehow prevailed in the contest for the hatchet. He thought Shaw was 15 bluffing about the gun, so he challenged him to go get it and 16 cautioned, “‘You did everything wrong today.’” 17 William then hurried out of the house, now wearing only one 18 shoe and holding the hatchet, his phone, and the fork he was cooking with before Shaw’s unexpected entrance. As he fled, he 19 passed an SUV in his driveway with an individual inside he had 20 seen once prior with Shaw. William knocked on one or two neighbors’ doors before one answered. That neighbor called the 21 police, and law enforcement responded shortly thereafter. 22 Although he had blood on his lip, William refused medical 23 treatment. His lip eventually scarred. 24 Dkt. No. 8-16 at 3–5. 25 III. PROCEDURAL BACKGROUND 26 On March 8, 2017, the People of the State of California (“State”) filed a three-count 27 Complaint in the San Diego County Superior Court charging Petitioner with: (1) Burglary, 28 in violation of Penal Code §§ 459 and 460; (2) Assault with Deadly Weapon, in violation 1 of Penal Code § 245(a)(1); and (3) Making a Criminal Threat, in violation of Penal Code 2 § 422. Dkt. No. 8-1 at 7–13. On June 6, 2017, the State amended the Complaint and added 3 three additional charges: (4) Take and Drive a Stolen Vehicle, in violation of Vehicle Code 4 § 10851(a); (5) Buy and Receive a Stolen Vehicle, in violation of Penal Code § 496(d); 5 and (6) Hit-Run Driving, in violation of Vehicle Code § 20002(a). Id. at 49–55, 191. 6 On July 31, 2017, following a three-day trial, a jury convicted Petitioner on Counts 7 1, 2, and 3, and acquitted on Counts 4, 5, and 6. Dkt. No. 8-1 at 127–133. On 8 August 24, 2017, the Superior Court sentenced Petitioner to twenty-one years (inclusive of 9 a five-year enhancement under Penal Code § 667(a)(1)). Dkt. No. 8-1 at 178. 10 Petitioner appealed, arguing the Superior Court erred by: (1) “refus[ing] to permit 11 defense counsel to demonstrate appellant writes with his left-hand and, by inference, is 12 left-handed”; and (2) “imposing, rather than staying, the sentences on count 2 and 3.” Dkt. 13 No. 8-8 at 17, 31. On September 18, 2018, the California Court of Appeal rejected 14 Petitioner’s first argument, modified the judgment to “stay the terms imposed for assault 15 with a deadly weapon . . . and making a criminal threat,” and affirmed the judgment in all 16 other respects. Dkt. No. 8-11 at 14 (internal citations omitted). 17 On November 15 and 19, 2018, the parties filed letter briefs in response to 18 Petitioner’s request for the Court of Appeal to consider the impact of Senate Bill No. 1393, 19 which gave trial courts discretion to strike the five-year enhancement under Penal Code 20 § 667(a)(1). Dkt. Nos. 8-14, 8-15. On January 7, 2019, the Court of Appeal issued an 21 Opinion on Rehearing remanding the case for a resentencing hearing “where the [trial] 22 court should exercise its discretion to decide whether to strike the five-year enhancement 23 for [Petitioner’s] serious prior felony under section 667, subdivision (a)(1).” Dkt. No. 8-16 24 at 17. On June 28, 2019, the Superior Court resentenced Petitioner to eighteen years. Dkt. 25 No. 8-17 at 1. 26 On December 16, 2019, Petitioner filed a petition for writ of habeas corpus in the 27 California Supreme Court raising ineffective assistance of counsel and Brady claims. Dkt. 28 1 No. 8-18. On April 15, 2020, the California Supreme Court denied the petition. Dkt. 2 No. 8-19. 3 On September 21, 2020, Petitioner filed the instant Petition. Dkt. No. 1. On 4 December 15, 2020, Respondents filed an Answer asserting the state court’s rejection of 5 Petitioner’s claims is not cognizable under federal habeas corpus. Dkt. No. 7-1. On 6 March 1, 2021, Petitioner filed a Traverse asserting “significant violations” of Petitioner’s 7 “fundamental constitutional right[s].” Dkt. No. 11 at 2. 8 On April 7, 2021, the Court requested supplemental briefing on whether the 9 California courts issued any decisions denying Petitioner’s state petition. Dkt. No. 12. The 10 parties’ supplemental briefs confirmed Petitioner first filed his state petition in the 11 California Supreme Court, which summarily denied his claims. Dkt. Nos. 13, 14. 12 IV. STANDARD OF REVIEW 13 This Petition is governed by the Antiterrorism and Effective Death Penalty Act of 14 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq. Under the AEDPA, a federal court will not 15 grant a habeas petition challenging any matter adjudicated on the merits by a state court 16 unless the decision was: (1) contrary to, or involved an unreasonable application of, clearly 17 established federal law; or (2) an unreasonable determination of the facts based on the 18 evidence presented in the state court proceeding. 28 U.S.C. § 2254(d); Schriro v. 19 Landrigan, 550 U.S. 465, 473–477 (2007). 20 “Where . . . the state court’s application of governing federal law is challenged, it 21 must be shown to be not only erroneous, but objectively unreasonable.” Yarborough v. 22 Gentry, 540 U.S. 1, 5 (2003). On habeas review, federal courts “presum[e] that state courts 23 know and follow the law.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). 24 A state court’s summary denial is presumed to be a merits determination “in the 25 absence of any indication or state-law procedural principles to the contrary,” and the 26 deferential AEDPA standard of review applies. Harrington v. Richter, 562 U.S. 86, 99 27 (2011); see also id. at 98 (“Where a state court’s decision is unaccompanied by an 28 explanation, the habeas petitioner’s burden still must be met by showing there was no 1 reasonable basis for the state court to deny relief. This is so whether or not the state court 2 reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) 3 applies when a ‘claim,’ not a component of one, has been adjudicated.”). 4 V. DISCUSSION 5 Petitioner raises two ineffective assistance of counsel claims, a Brady claim, and an 6 actual innocence claim. None entitle Petitioner to habeas relief. 7 A. Ineffective Assistance of Counsel 8 Petitioner’s ineffective assistance claims assert he was denied effective assistance of 9 (1) trial counsel; and (2) appellate counsel. 10 “The Sixth Amendment guarantees criminal defendants the effective assistance of 11 counsel.” Yarborough, 540 U.S. at 5. An ineffective assistance claim is cognizable on 12 federal habeas review. Id. (“If a state court has already rejected an ineffective- 13 assistance claim, a federal court may grant habeas relief if the decision was ‘contrary to, or 14 involved an unreasonable application of, clearly established Federal law . . . .’”); see also 15 Strickland v. Washington, 466 U.S. 668, 697–98 (1984) (“An ineffectiveness claim . . . is 16 an attack on the fundamental fairness of the proceeding whose result is challenged. Since 17 fundamental fairness is the central concern of the writ of habeas corpus, no special 18 standards ought to apply to ineffectiveness claims made in habeas proceedings.”) (citation 19 omitted). 20 An ineffective assistance of counsel claim consists of two elements: (1) “deficient 21 performance”; and (2) “prejudice.” Strickland, 466 U.S. at 700. “Deficient performance” 22 is “representation f[alling] below an objective standard of reasonableness.” Id. at 688. 23 Establishing deficient performance requires overcoming a “strong presumption” that 24 counsel “rendered adequate assistance and made all significant decisions in the exercise of 25 reasonable professional judgment.” Id. at 689–90. Further, a petitioner “must identify the 26 acts or omissions of counsel that are alleged not to have been the result of reasonable 27 professional judgment.” Id. at 690. “The court must then determine whether, in light of all 28 1 the circumstances, the identified acts or omissions were outside the range of professionally 2 competent assistance.” Id. 3 “Prejudice” is established by showing “a reasonable probability that, but for 4 counsel’s unprofessional errors, the result of the proceeding would have been different.” 5 Id. at 694; see also Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (deciding the 6 “prejudice” component “focuses on the question whether counsel’s deficient performance 7 renders the result of the trial unreliable or the proceeding fundamentally unfair”). It is 8 unnecessary to address both Strickland elements if a petitioner makes an insufficient 9 showing on one. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness 10 claim on the ground of lack of sufficient prejudice . . . that course should be 11 followed.”); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy either 12 prong of the Strickland test obviates the need to consider the other.”). 13 i. Petitioner Is Not Entitled to Habeas Relief Based on Ineffective Assistance of Trial Counsel 14 15 Petitioner’s ineffective assistance of trial counsel claim alleges: (i) Home Depot 16 video footage exists; (ii) the footage would have shown Petitioner was at Home Depot 17 when the crime took place; (iii) Petitioner told counsel about this footage; (iv) counsel did 18 not subpoena Home Depot for the footage or “make any attempt to verify Petitioner’s claim 19 of alibi of whereabouts”; (v) an alibi defense was not presented at his trial; and (vi) this 20 “result[ed] in an . . . unfair outcome in the proceedings.” Dkt. No. 1 at 6–10. Petitioner also 21 alleges his trial counsel failed to gather fingerprint evidence, take photographs of the crime 22 scene, and discredit the victim at trial. Id. at 6–7. 23 A failure to adequately investigate may constitute ineffective assistance of counsel. 24 Strickland, 466 U.S. at 691. Petitioner, however, does not demonstrate either deficient 25 performance or resulting prejudice. 26 The record shows on March 27, 2017, Petitioner’s Deputy Public Defender served 27 Home Depot Loss Prevention’s custodian of records a subpoena seeking “[a]ny and all 28 video surveillance from February 18, 2017, 10 am – 3 pm.” Dkt. No. 1 at 78–82 (Subpoena 1 Duces Tecum with executed proof of service). During trial, Petitioner’s counsel stated, 2 “Your Honor, I need to cover my bases and ask if there’s any documents that are in the 3 court file responsive to a defense subpoena. . . . We had subpoenaed some video from a 4 Home Depot store.” Dkt. No. 8-4 at 37. The court responded, “Okay. We will check.” Id. 5 This record reflects trial counsel issued and followed up on the subpoena with the 6 Superior Court. The Court, therefore, infers either: (1) Home Depot did not respond to the 7 subpoena (e.g., because no video existed); or (2) Home Depot produced a video and 8 counsel chose not to introduce it into evidence (e.g., because it did not corroborate 9 Petitioner’s alibi). There is nothing in the record, however, from which the Court could 10 conclude Petitioner’s trial counsel received, but did not introduce, exculpatory video 11 footage. See Royal v. Martel, No. 08-cv-5628, 2010 WL 3932075, at *7 (N.D. Cal. 12 Oct. 5, 2010) (“Even if counsel opted not to follow up on portions of [withdrawn counsel’s] 13 initial investigation, petitioner fails to demonstrate that this decision fell below an 14 ‘objective standard of reasonableness’ under prevailing professional norms.”). 15 Petitioner also claims his trial counsel did not collect fingerprints or take 16 photographs “of things that looked out of place.” Dkt. No. 1 at 6–8. Crime scene 17 investigation, however, is not the job of a defense attorney, who typically is not retained 18 or appointed until after the scene is cleared. Petitioner also does not argue and cannot 19 establish resulting prejudice. The record reflects a crime scene specialist with San Diego 20 Crime Scene Unit, “process[ed] the hatchet for latent fingerprints,” and recovered prints. 21 Dkt. No. 8-4 at 119, 122. Also, an officer testified he photographed the scene. Dkt. 22 No. 8-4 at 96–97 (Q: “What photographs did you take besides the hatchet?” A: “From what 23 I recall, it was photos of the scene, the house, some vehicles, the hatchet . . . photos of the 24 victim as well.”); id. at 99 (Q: “Did you take photographs of a house?” A: “Yes. . . . Because 25 I was asked to take photographs at the scene.”). Petitioner makes no allegation that the 26 available fingerprints and photographs were incomplete or otherwise misleading, and 27 nothing in the record supports a conclusion that Petitioner was prejudiced by anything his 28 trial counsel did (or did not do) regarding this evidence. 1 Petitioner also alleges no medical reports corroborate the victim’s story, and the 2 victim fabricated his testimony. Dkt. No. 1 at 7. To the extent this argument relates to trial 3 counsel’s effectiveness,2 trial counsel extensively cross examined the victim and attacked 4 the victim’s credibility in her closing argument.3 The jury, whose verdict the Court may 5 not second guess, rejected this defense. See Schlup v. Delo, 513 U.S. 298, 330 (1995) 6 (“[T]he assessment of credibility of witnesses is generally beyond the scope of [habeas] 7 review.”). 8 In sum, the Court finds the California court’s rejection of Petitioner’s ineffective 9 assistance of trial counsel claim was neither contrary to nor an unreasonable application of 10 clearly established federal law. The Court, therefore, recommends denying Petitioner’s 11 first ground for relief. 12 ii. Petitioner Is Not Entitled to Habeas Relief Based on Ineffective Assistance of Appellate Counsel 13 Petitioner’s second ground for relief alleges he “was denied effective assistance of 14 appellate counsel, when counsel failed to raise[ ] ineffective [assistance] of trial counsel in 15 appellate counsel opening brief.” Dkt. No. 1 at 11. 16 The Sixth Amendment right to effective counsel extends to appellate counsel. Evitts 17 v. Lucey, 469 U.S. 387, 396 (1985). However, “[i]f trial counsel’s performance was not 18 objectively unreasonable or did not prejudice [Petitioner], then appellate counsel did not 19 20

21 2 Although raised in Petitioner’s first (ineffective assistance) claim, if it is evaluated 22 as an innocence claim, it fails the “extraordinarily high” threshold discussed below. 23 3 See, e.g., Dkt. Nos. 8-4 at 64 (Q: “The hatchet was swung at your face area? . . . And 24 with that one swing, you said, he got you on the lip?”); id. at 71 (Q: “Did you get medical 25 attention for your - -” A: “No, because I didn’t feel I needed to.” Q: “Did the police offer you medical attention? . . . Did you seek any medical treatment at any point at all?”); id. 26 at 83 (“But you never told the operator that he hit you with that hatchet?”); 8-5 at 80 (“Now, 27 you can use your common sense. If Mr. Shaw comes in busting down the door like a wild, angry savage with a hatchet, anybody, [William] or anybody’s not going to leave there 28 1 act unreasonably in failing to raise a meritless claim of ineffective assistance of counsel, 2 and [Petitioner] was not prejudiced by appellate counsel’s omission.” Moormann v. Ryan, 3 628 F.3d 1102, 1107 (9th Cir. 2010). As discussed, the Court finds no basis to conclude 4 trial counsel’s performance was ineffective. Petitioner’s ineffective assistance of appellate 5 counsel claim, therefore, also fails.4 6 The Court finds the California court’s rejection of Petitioner’s ineffective assistance 7 of appellate counsel claim was not objectively unreasonable, and therefore, recommends 8 denying Petitioner’s second ground for relief. 9 B. Brady 10 Petitioner’s third ground for relief alleges “the failure of trial counsel in gathering 11 available evidence necessary to support Petitioner’s alibi of whereabouts violated Brady v. 12 Maryland.” Dkt. No. 1 at 12. Additionally, Petitioner asserts “the prosecutor had full 13 knowledge about Petitioner’s alibi of whereabouts, but [no one] made a[n] effort to gather 14 the surveillance video footage.” Id. 15 Brady applies to the prosecution and does not impose obligations on defense 16 counsel. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the 17 prosecution of evidence favorable to an accused upon request violates due process where 18 the evidence is material either to guilt or to punishment.”); Strickler v. Greene, 527 U.S. 19 263, 281–82 (1999) (The second element of a Brady violation is “that evidence must have 20 been suppressed by the State.”) (emphasis added); Chilcote v. Sherman, No. 17-cv-0061- 21 GPC (PCL), 2017 WL 6509575, at *15 (S.D. Cal. Dec. 20, 2017) (denying habeas claim 22

23 4 Even if Petitioner could somehow establish trial counsel was ineffective, his claim 24 that appellate counsel was ineffective by failing to raise this issue on direct appeal would 25 likely still fail. Under California law, ineffective assistance of counsel claims typically are raised on collateral review, not on direct appeal. See People v. Mendoza Tello, 933 P.2d 26 1134, 1135 (1997) (ruling ineffective assistance of counsel claims are not proper on direct 27 appeal unless the record illuminates all facts necessary to resolve the claim, including the basis for counsel’s challenged decision or shortcoming). 28 1 that the trial court allegedly suppressed evidence as “clearly outside the realm of 2 Brady”), report and recommendation adopted in part, 2018 WL 3584460 (July 26, 2018). 3 In addition, other than the Home Depot footage (discussed above), Petitioner does not 4 identify any alibi evidence trial counsel failed to present. 5 Petitioner’s Brady claim also fails to the extent it implicates the prosecution. “While 6 the prosecution must disclose any [Brady] information within the possession or control of 7 law enforcement personnel, . . . it has no duty to volunteer information that it does not 8 possess or of which it is unaware.” United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 9 824 (9th Cir. 1985). In other words, “[n]o Brady violation occurs when the State does not 10 have the information to disclose.” Evans v. McDaniel, 4-cv-0562-ECR-VPC, 2008 WL 11 731560, at *8 (D. Nev. Mar. 17, 2008). Plaintiff has not identified any exculpatory 12 evidence the prosecutor withheld. 13 The Court, therefore, recommends denying habeas relief on Petitioner’s Brady 14 claim. 15 C. Actual Innocence 16 Petitioner’s actual innocence claim is also premised on the alleged Home Depot 17 video footage. Dkt. No. 1 at 12. 18 As a threshold matter, the Court addresses Respondent’s arguments that Petitioner 19 did not exhaust and has procedurally defaulted his actual innocence claim. Dkt. No. 7-1 at 20 13. A habeas petitioner must exhaust his claims by fairly presenting them to the state’s 21 highest court, either through a direct appeal or collateral proceedings. 28 U.S.C. 22 § 2254 (b)(1); Rose v. Lundy, 455 U.S. 509, 519 (1982). “[A] petitioner satisfies the 23 exhaustion requirement by fairly presenting the federal claim to the appropriate state courts 24 . . . in the manner required by the state courts, thereby ‘affording the state courts a 25 meaningful opportunity to consider allegations of legal error.’” Casey v. Moore, 386 F.3d 26 896, 915–916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). A 27 petitioner is deemed to have “procedurally defaulted” his claim if he failed to comply with 28 1 a state procedural rule or failed to raise the claim at the state level at all. Edwards v. 2 Carpenter, 529 U.S. 446, 451 (2000). 3 The Court finds Petitioner’s December 16, 2019 state petition, liberally construed, 4 raised an actual innocence claim. See, e.g., Dkt. No. 8-18 at 5 (“[S]urveillance video- 5 footage from a Home-Depot store . . . would’ve proven that Petitioner was shopping at the 6 time Petitioner was accused of committing the alleged crimes. . . . Petitioner alibi evidence 7 would’ve exonerated Petitioner . . . .”). Although Petitioner’s state petition does not contain 8 a separate section labeled “actual innocence,” he adequately raised the facts and arguments 9 forming the basis for this claim. The Court, therefore, will consider Petitioner’s actual 10 innocence claim. See White v. Cate, No. 9-cv-2900-GEB-EFB, 2011 WL 345991, at *2 11 (E.D. Cal. Feb. 1, 2011) (“It appears that petitioner nowhere used the term ‘ex post facto’ in 12 his state habeas petition or referenced the Constitution’s bar on retroactive application of 13 criminal statutes, but the argument he presented is so similar in substance to the one he 14 now seeks leave to exhaust, it raises the question whether such leave—and the concomitant 15 stay—is necessary at all. Under the liberal reading due all pro se petitions, the court could 16 construe the claim as having been exhausted and presented already.”). 17 Actual innocence claims typically are based upon an independent constitutional 18 violation. See generally Herrera v. Collins, 506 U.S. 390, 400 (1993) (“[F]ederal habeas 19 courts sit to ensure that individuals are not imprisoned in violation of the Constitution – 20 not to correct errors of fact.”). As Respondent notes (Dkt. No. 7-1 at 14), whether a federal 21 court may consider a freestanding actual innocence claim is an open question. See, e.g., 22 Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 71–72 (2009) 23 (recognizing whether a federal constitutional right to be released upon proof of 24 “actual innocence” exists “is an open question”); House v. Bell, 547 U.S. 518, 554–55 25 (2006) (expressly declining to resolve whether federal courts may entertain freestanding 26 claims of actual innocence, stating only that the petitioner fell short of the “extraordinarily 27 high” threshold suggested by the Court in Herrera); Herrera, 506 U.S. at 427 (1993) 28 (O’Connor, J., concurring) (noting because “[p]etitioner has failed to make a persuasive 1 showing of actual innocence,” “the Court has no reason to pass on, and appropriately 2 reserves, the question whether federal courts may entertain convincing claims of actual 3 innocence”). 4 If such a claim does exist, the Supreme Court noted a petitioner would have to meet 5 an “extraordinarily high” and “truly persuasive” showing of actual innocence to obtain 6 relief. Herrera, 506 U.S. at 417. The Ninth Circuit interpreted this “extraordinarily high” 7 standard to mean a petitioner must show affirmative proof of innocence. Carriger v. 8 Stewart, 132 F.3d 463, 476 (9th Cir. 1997). 9 Here, as discussed above, Petitioner has established no independent constitutional 10 violation that renders his actual innocence claim other than freestanding. And any 11 freestanding actual innocence claim fails because Petitioner submitted no affirmative proof 12 of innocence. The Court, therefore, recommends denying Petitioner’s actual innocence 13 claim. 14 D. Discovery 15 Petitioner requests the Court issue an order to “bring forth the surveillance Home- 16 Depot store video-tape footage . . . .” Dkt. No. 1 at 17. The Court construes this as a request 17 to conduct discovery. 18 A habeas petitioner is not presumptively entitled to discovery. See Rich v. Calderon, 19 187 F.3d 1064, 1068 (9th Cir.1999) (“A habeas petitioner does not enjoy the presumptive 20 entitlement to discovery of a traditional civil litigant.”) (citing Bracy v. Gramley, 520 U.S. 21 899, 903–05 (1997)). Rule 6(a) of the Rules Governing § 2254 Cases provides the court 22 may, for good cause, allow discovery and may limit its scope. Good cause exists “where 23 specific allegations before the court show reason to believe that the petitioner may, if the 24 facts are fully developed, be able to demonstrate that he is . . . entitled to relief.” Bracy v. 25 Gramley, 520 U.S. 899, 908–09 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 26 (1969)). Rule 6(b) requires a party requesting discovery to provide reasons for the request 27 and specify the information requested. “The availability of any discovery during a habeas 28 1 proceeding is committed to the sound discretion of the district court.” Campbell v. Blodgett, 2 982 F.2d 1356, 1358 (9th Cir. 1993). 3 Petitioner has not shown good cause for discovery. As discussed above, Petitioner’s 4 trial counsel subpoenaed Home Depot for the footage, which, as discussed above, the Court 5 infers either did not exist or did not corroborate Petitioner’s alibi. Petitioner’s allegations, 6 therefore, do not “show reason to believe [he] may, if the facts are fully developed, be able 7 to demonstrate that he is . . . entitled to relief.” Bracy, 520 U.S. at 908–09; see also Prentice 8 v. Baker, No. 10-cv-00743-RCJ, 2013 WL 1182065, at *2 (D. Nev. Mar. 19, 2013) 9 (“Federal habeas discovery is not meant to be a fishing expedition for petitioners to explore 10 their case in search of its existence.”) (citing Kemp v. Ryan, 638 F.3d 1245, 1260 (9th Cir. 11 2011)). The Court, therefore, denies Petitioner’s request to conduct discovery. 12 VI. CONCLUSION & RECOMMENDATION 13 For the foregoing reasons, IT IS HEREBY RECOMMENDED the Court issue an 14 Order: (1) approving and adopting this Report and Recommendation; and (2) denying 15 Petitioner’s Petition for a Writ of Habeas Corpus. 16 IT IS ORDERED that on or before August 23, 2021, any party to this action may 17 file written objections with the Court and serve a copy on all parties. The document should 18 be captioned “Objections to Report and Recommendation.” 19 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 20 the Court and served on all parties on or before September 2, 2021. 21 / / 22 / / 23 / / 24 / / 25 / / 26 / / 27 / / 28 1 The parties are advised that failure to file objections within the specified time may 2 || waive the right to raise those objections on appeal of the Court’s order. See Turner v. 3 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 4 || 1991). 5 IT IS SO ORDERED. 6 Dated: August 2, 2021 □ PTT g Honorable Daniel E. Butcher United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28