Nunez v. Gamboa, No. 3:2021cv02046 - Document 38 (S.D. Cal. 2023)
Court Description: ORDER Denying First Amended Petition For Writ Of Habeas Corpus And Granting A Limited Certificate Of Appealability. Signed by District Judge James E. Simmons, Jr on 9/1/2023.(All non-registered users served via U.S. Mail Service)(ddf) .
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Nunez v. Gamboa Doc. 38 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ISAIAS LOPEZ NUNEZ, Case No.: 21cv2046-JES (SBC) Petitioner, 12 13 v. 14 MARTIN GAMBOA, Warden, Respondent. 15 ORDER DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING A LIMITED CERTIFICATE OF APPEALABILITY 16 17 Presently before the Court is a First Amended Petition for a Writ of Habeas Corpus 18 pursuant to 28 U.S.C. § 2254 by Isaias Lopez Nunez, a state prisoner proceeding pro se 19 and in forma pauperis. (ECF No. 17.) Respondent has filed an Answer and lodged the 20 state court record. (ECF Nos. 22, 23.) Petitioner has filed a Traverse.1 (ECF No. 36.) 21 I. 22 BACKGROUND A jury found Petitioner guilty of twelve counts of rape of a child under fourteen 23 years old, three counts of committing a lewd act on a child under fourteen years old, and 24 that the offenses were committed against multiple victims. (Lodgment No. 1, ECF No. 25 26 27 28 1 Although this case was referred to United States Magistrate Judge Steve B. Chu pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a Report and Recommendation nor oral argument are necessary for the disposition of this matter. See S.D. Cal. CivLR 71.1(d). 1 21cv2046-JES (SBC) Dockets.Justia.com 1 23-1 at 224-38.) He was sentenced to consecutive terms of 15-years to life on all fifteen 2 counts for a total term of 225 years to life in state prison. (Id. at 239.) 3 Petitioner appealed, raising claim one presented here, that he was sentenced on the 4 three lewd act counts under current law rather than the law in effect at the time of the 5 offenses in violation of ex post facto principles. (Lodgment No. 3, ECF No. 23-11.) The 6 state appellate court found the claim forfeited by a failure to object at sentencing and that 7 it failed on the merits. (Lodgment No. 6, ECF No. 23-14.) A petition for review to the 8 California Supreme Court raising the claim was summarily denied. (Lodgment Nos. 7-8, 9 ECF Nos. 23-15, 23-16.) 10 After the original federal Petition was filed in this action, the Court granted 11 Petitioner’s motion for stay and abeyance to exhaust state court remedies as to claim two, 12 ineffective assistance of trial counsel. (ECF No. 11.) After exhaustion, Petitioner filed the 13 First Amended Petition containing both claims and requesting an evidentiary hearing. 14 (ECF No. 17.) 15 Respondent answers that federal habeas relief is unavailable because claim one is 16 procedurally defaulted and without merit, claim two is untimely and without merit, and 17 the state court adjudication of both claims is objectively reasonable. (ECF No. 22.) 18 19 II. TRIAL PROCEEDINGS The following statement of facts is taken from the appellate court opinion on direct 20 appeal. The Court defers to state court findings of fact and presumes they are correct. 21 Sumner v. Mata, 449 U.S. 539, 545-47 (1981). 22 23 24 25 26 27 Defendant and his wife had six children, four girls and two boys. Es.N. was the oldest girl, followed by E.N., M.N., C.N., and two younger boys. Defendant and his wife were violent and physically abusive toward each other. The children were all taken to the Polinsky Children’s Center when E.N. was a young teen and M.N. and C.N. were about six to eight years old. E.N. did not mention the abuse because defendant had told her the children would be separated if she talked to police or social workers. Es.N. did not return home with the family. The children’s mother left the family after they returned home, leaving the children alone with defendant. 28 2 21cv2046-JES (SBC) 1 Counts 1–6: Aggravated Sexual Assault (Rape by Force or Duress) of and Lewd Act on a Child Under 14, E.N., November 30, 1994 through September 13, 1997 2 3 E.N. was born in September 1983. She was 35 years old when she testified at trial. Starting when E.N. was five years old, defendant penetrated E.N.’s vagina with his fingers when he washed her and told her to touch his penis when he took showers with her. Defendant did this about three times per week, until E.N. was seven or eight years old. From the time E.N. was about eight or nine, defendant penetrated her vagina with the tip of his penis every other day for about a year. Defendant inserted his penis all the way into E.N.’s vagina when she was 10, although she told him that it hurt. E.N. asked why he hurt her. Defendant said, “You’re a big girl now. You can take it.” After a break of a few days, defendant had intercourse with E.N. every day from then on until she turned 17 years old. E.N. felt like she could not say no to Defendant. 4 5 6 7 8 9 10 11 12 E.N. left home when she was 17. She told police about the abuse when she was 32 years old, and her sisters talked to the police after E.N. 13 14 Counts 7–14: Aggravated Sexual Assault (Rape by Force or Duress) of and Lewd Act Upon a Child Under 14, C.N., January 1, 1997-May 30, 2003 15 16 C.N., the youngest girl in the family, was born in May 1989. From the time C.N. was five until she was about 10 years old, Defendant touched her vagina almost every other day. When C.N. was 10 and continuing thereafter, defendant inserted part of his penis into her vagina. He penetrated her vagina completely when she was about 13 years old, and continued to rape her about every other day until she turned 18 years old. 17 18 19 20 21 Count 15: Lewd Act on a Child Under 14, M.N., January 1, 1996 - May 30, 2003 22 23 M.N. was born in June 1988. She was 30 when she testified at trial. Defendant first penetrated M.N.’s vagina with his penis when she was about six years old. He took her into the bedroom, put M.N. on the bed and forcibly pulled down her pants and underwear. Defendant raped M.N. and touched her vagina with his bare hand about once a week from the time she was six or seven until she was 15 years old. 24 25 26 27 28 /// 3 21cv2046-JES (SBC) 1 2 3 4 Defendant’s Admissions E.N. and C.N. made a pretext call to defendant. E.N. accused defendant of having sex with her and C.N. throughout their childhood. Defendant apologized. Defendant called C.N. a week later and offered to give her $200 if she would stay silent. 5 6 (Lodgment No. 6, People v. Nunez, D075261, slip op. at 2-4 (Cal.Ct.App. Aug. 10, 7 2020).) 8 9 III. PETITIONER’S CLAIMS (1) The trial court abused its discretion and denied Petitioner due process under ex 10 post facto principles by failing to sentence him under the law as it existed at the time of 11 the offenses, which, unlike current law, provided discretion to consider probation and 12 concurrent or lesser sentences on the three lewd act counts. (ECF No. 17 at 12, 15-41.) 13 (2) Petitioner was denied his right to the effective assistance of counsel by trial 14 counsel’s failure to: (1) excuse for cause seven jurors, (2) investigate and present medical 15 evidence of Petitioner’s hearing loss, (3) move to exclude the pretext call, (4) introduce 16 medical examinations of the victims and testimony of the examining doctor, and 17 (5) object to improper argument by the prosecutor. (Id. at 12, 41-65.) 18 IV. DISCUSSION 19 A. 20 Petitioner argues here, as he did in state court, that during the entire period of the Claim One 21 charged offenses, January 1, 1996 through May 30, 2003, the law in effect granted the 22 trial court discretion to consider probation eligibility and concurrent or lesser sentences 23 on the three counts of committing lewd acts on a child, but the trial court abused its 24 discretion and denied him due process under ex post facto principles when it imposed 25 sentence on those counts under the law as it existed at the time of sentencing which did 26 not allow for such discretion. (ECF No. 17 at 12, 15-41.) He argues the claim was not 27 forfeited by a failure to object because state law does not require an objection at 28 sentencing to the application of an ex post facto law, and that any default should be 4 21cv2046-JES (SBC) 1 excused based on his actual innocence and ineffective assistance of counsel at sentencing. 2 (Id. at 16-17, 41.) 3 Claim one was presented to the state supreme court in a petition for review of the 4 appellate court opinion. (Lodgment No. 7, ECF No. 23-15.) It was denied in an order 5 which stated: “The petition for review is denied.” (Lodgment No. 8, ECF No. 23-16 at 1.) 6 Claim one was also presented to the state appellate court on direct appeal and denied in a 7 reasoned opinion. (Lodgment Nos. 3-6, ECF Nos. 23-11, 23-12, 23-13, 23-14.) This 8 Court applies a presumption, which no party has attempted to rebut, that the silent denial 9 by the state supreme court adopted the reasoning of the appellate court. See Ylst v. 10 Nunnemaker, 501 U.S. 797, 803-04 (1991); see also Avila v. Galaza, 297 F.3d 911, 918 11 (9th Cir. 2002) (federal habeas courts look to the last reasoned decision of a state court 12 which adjudicated a federal claim on the merits). The appellate court stated: 13 14 15 16 17 18 When defendant committed lewd acts on each of the victims, the law permitted trial courts to grant probation to offenders who were relatives even when there were multiple victims. The law in effect when the court sentenced Defendant no longer provided for a discretionary grant of probation. Defendant contends that the trial court was not aware of its discretion to grant probation when it sentenced him, and therefore violated the ex post facto prohibition by imposing sentences on the three lewd-act convictions under the current, more severe law. Defendant forfeited any error, and in any event, he has not established error. 19 20 21 22 23 24 25 26 27 28 Proceedings Below Defendant was convicted of committing a lewd act on E.N. between January 1, 1996, and December 31, 1996; committing a lewd act on C.N. between January 1, 1996, and May 30, 2003; and committing a lewd act on M.N. between January 1, 1996, and May 30, 2003; with true findings as to all counts that Defendant committed sexual offenses on multiple victims. The One Strike law, section 667.61, provides for a punishment of 15 years to life (§ 667.61, subd. (b)) for defendants who commit a lewd act against a child under the age of 14 (id. at subd. (c)(8)) against multiple victims (id. at subd. (e)(4)). Such Defendants are not eligible for probation. (§ 1203.066, subd. (a)(7).) Before 2006, however, a court had discretion under former section 1203.066, subdivision (c), to grant probation in some circumstances 5 21cv2046-JES (SBC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to defendants who committed lewd acts on more than one child and who were related to the children or members of their household. Here, the probation report stated that defendant was “absolutely ineligible for a grant of probation pursuant to (section) 1203.066 (, subdivision) (a)(7) in that he has been convicted of (section) 288 (, subdivision) (a) and (section) 269.” The prosecutor’s sentencing statement said that defendant was statutorily ineligible for probation because he was convicted of sections 269 and 288, subdivision (a), with true findings pursuant to sections 1203.066, subdivision (a)(7) and 667.61, subdivisions (b), (c) and (e). Defense counsel submitted to the court on sentencing. At sentencing, the court said with respect to the trial testimony, “The things that I heard touched me very, very much. And there’s nothing that can be said here or done here to rectify it. . . . There’s nothing I can do today that can replace your childhood or bring back any happiness that you deserved.” With respect to the convictions, the court said, “It was 9 years of pure Hades for these children.” The court concluded that every count of which defendant was convicted was a “separate and distinct act with multiple victims pursuant to (section) 269(, subdivision) (c) (consecutive sentences mandatory).” It then said, “Accordingly, probation is denied, and I am going to—and maybe it’s for me that I want everyone to know, and maybe it’s just for me, for my satisfaction, that probation is denied.” Legal Principles Both the United States and the California Constitutions prohibit criminal or penal laws that are ex post facto. (U.S. Const., art. I, § 10, cl. 1; Cal. Const. art. I, § 9.) Laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts” are unconstitutional. (Collins v. Youngblood (1990) 497 U.S. 37, 43; People v. Alford (2007) 42 Cal.4th 749 (Alford).) “California's ex post facto law is analyzed in the same manner as the federal prohibition.” (Alford, at p. 755, citing People v. Grant (1999) 20 Cal.4th 150, 158.) Once the Legislature has statutorily afforded a benefit, that benefit may only be taken away prospectively. (People v. Williams (1987) 196 Cal.App.3d 1157, 1160 (Williams).) In Williams, the court had struck the enhancements for two prior serious felony convictions after the defendant pleaded guilty. Subsequent law prohibited the striking of the enhancements. (Id. at p. 1159.) The People appealed, seeking imposition of the 6 21cv2046-JES (SBC) 1 2 3 4 5 6 7 8 9 10 enhancements pursuant to the new law. (Ibid.) The appellate court held that application of the new law would have violated the ex post facto clause, and therefore the trial court did not err in striking the defendant’s prior conviction enhancements. (Id. at pp. 1160–1161.) The court explained, “It is irrelevant to an ex post facto determination that a defendant could have received the same sentence under the old law as he definitely will under the new law. (Citations.) . . . By making mandatory what was previously discretionary, the Legislature has changed the standard by which punishment will be imposed to defendant's disadvantage. Applying these laws to defendant thus runs afoul of the ex post facto clause.” (Id. at p. 1160.) Because the law permitted probation at the time that defendant committed his acts, he must be afforded the possibility of probation at the time he was sentenced. One Strike Law 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The current version of section 667.61, the “One Strike” law, mandates a prison term of 15 years to life for anyone convicted of a lewd act in violation of section 288, subdivision (a) if it was pleaded and proved that the defendant had committed that crime against more than one victim. (§ 667.61, subds. (b), (c)(8) & (e)(4).) The statute in effect when defendant abused the children was different. Before 2006, the One Strike law’s sentencing mandate applied to persons convicted of a lewd act in violation of section 288, subdivision (a) “unless the defendant qualifie(d) for probation under subdivision (c) of Section 1203.066.” (Former § 667.61, subd. (c)(7), eff. to Sept. 19, 2006.) Former section 1203.066, subdivision (a) made a person “convicted of committing a violation of Section 288 or 288.5 against more than one victim” presumptively ineligible for probation. (Former § 1203.066, subd. (a)(7), eff. to Dec. 31, 2005 [Footnote: Further references to former section 1203.066 are to this version effective until December 31, 2005]; People v. Wills (2008) 160 Cal.App.4th 728, 736.) The defendant could overcome that presumption if the court found five criteria: (1) the defendant was related to the victim or a member of the victim’s household; (2) a grant of probation was in the best interest of the child; (3) rehabilitation was feasible; (4) the defendant was removed from the household until the court determined that returning the defendant would be in the best interest of the child; and (5) there was no threat of physical harm to the child if the defendant was granted probation. (Former § 1203.066, subd. (c).) The defendant had the burden of establishing all five criteria. (People v. Groomes (1993) 14 7 21cv2046-JES (SBC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal.App.4th 84, 89 (Groomes).) Even if all the factors were satisfied, the court “‘retain(ed) the discretion’ to find the defendant unsuitable for probation and to order imprisonment.” (People v. Wutzke (2002) 28 Cal.4th 923, 932, fn. 7; former § 1203.066, subd. (c)(5).) The trial court was required to “state its reasons on the record for whatever sentence it impose(d) on the defendant.” (Former § 1203.066, subd. (c).) Forfeiture Defendant failed to ask the court to consider probation at the time of sentencing and thus has forfeited his claim on appeal. Sentencing claims are forfeited if not timely asserted. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) Defendant asserts that violations of ex post facto rules are not forfeited, in reliance on People v. Hiscox (2006) 136 Cal.App.4th 253, 258– 259 (Hiscox). In Hiscox the trial court imposed punishment based on a law that was effective only after November 20, 1994. The lewd act offenses, however, could have occurred before that date, because the guilty verdict was based on “generic” testimony, i.e., “‘testimony describing a series of essentially indistinguishable acts of molestation.’” (Id. at p. 256.) Imposition of a punishment on offenses that occurred before the enactment of that punishment were unauthorized by law, as well as ex post facto. A claim of unauthorized punishment is never forfeited because it cannot be imposed under any circumstance. (Id. at p. 258.) Hiscox is not applicable here, because the sentence imposed on defendant was authorized by the existing law. Defendant failed to ask the court to consider probation, and has forfeited his claims on appeal by failing to bring this contention to the attention of the trial court. (Scott, at p. 353.) Ineffective Assistance of Counsel Defendant counters that if this issue was forfeited, it was due to ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, defendant must prove two elements: (1) trial counsel’s deficient performance and (2) prejudice as a result of that performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Bell (2019) 7 Cal.5th 70, 125 (Bell).) Representation is deficient if it falls below an objective standard of reasonableness under the prevailing norms of practice. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland, at p. 689; Bell, at p. 125.) To show prejudice, the defendant has the burden of showing a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability 8 21cv2046-JES (SBC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is a probability sufficient to undermine confidence in the outcome.” (Strickland, at p. 694; Bell, at p. 125.) If “it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” (Strickland, at p. 697; People v. Bonilla (2018) 29 Cal.App.5th 649, 654.) Even assuming, without deciding, that counsel erred in not asking the court to consider probation, there is no reasonable likelihood that defendant would have obtained a more favorable result in this case. The court expressed its opinion of the victims’ lives as children: pure hell. Defendant’s lewd touchings involved substantial sexual contact, against three very young girls, hundreds of times. There is no reasonable probability that the trial court would have granted probation to defendant on three counts, while sentencing him to 12 other consecutive terms of 15 years to life. No Error In addition to the lack of prejudice if counsel performed deficiently in failing to request probation, we find no error on the merits. Sentencing decisions are reviewed for an abuse of discretion. To demonstrate an abuse of discretion, the defendant has the burden of clearly showing that the sentencing decision was irrational or arbitrary. “‘In reviewing the matter on appeal, a trial court is presumed to have acted to achieve legitimate sentencing objectives in the absence of a clear showing the sentencing decision was irrational or arbitrary.’” (People v. Ferguson (2011) 194 Cal. App.4th 1070, 1091.) The court must also be aware of its sentencing discretion. An abuse of discretion exists when the court makes a statement, or other evidence shows, that the court is not aware of its discretion. (People v. Bolian (2014) 231 Cal. App.4th 1415, 1421 (Bolian).) To meet this burden, the defendant must “affirmatively demonstrate error on the face of the record.” (People v. Davis (1996) 50 Cal. App.4th 168, 172.) On appeal, we indulge all intendments and presumptions to support the court’s decision. The defendant bears the burden of affirmatively showing error. (People v. Hurtado (2019) 35 Cal.App.5th 871, 878 (Hurtado).) We presume sentencing courts know and follow the law. Therefore, we affirm when the record is silent on the court’s reasoning and decisionmaking. “Error may not be presumed from a silent record.” (People v. Brown (2007) 147 Cal. App.4th 1213, 1229; Bolian, supra, 231 Cal. App.4th at p. 1421; Davis, supra, 50 Cal. App.4th at p. 172.) 9 21cv2046-JES (SBC) 1 Defendant has not shown a statement from the court or other evidence that it considered the 15-year-to-life terms mandatory for the three lewd acts. On the contrary, the court considered probation and denied it. The court briefly described the damage done by Defendant, its hope that the victims could recover, and its inability to change the past. The court found each count a separate act, then said, “Accordingly, probation is denied, and I am going to—and maybe it’s for me that I want everyone to know, and maybe it’s just for me, for my satisfaction, that probation is denied.” We acknowledge that the prosecutor and probation officer both told the court that probation was not permissible, but we are not persuaded that the court followed those statements, especially in light of the court’s own statements. We presume that the court is informed on the law and not dependent on the parties’ statements of law. The record shows that the court considered probation. Defendant has not produced affirmative proof to the contrary. (Hurtado, supra, 35 Cal. App.5th at p. 878; Bolian, supra, 231 Cal. App.4th at p. 1421; Davis, supra, 50 Cal. App.4th at p. 172.) “The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal. App.4th 305, 310.) 2 3 4 5 6 7 8 9 10 11 12 13 14 We conclude that Defendant has not borne his burden of affirmatively showing error, because the court considered probation and denied it. Further, the court’s comments about the effect of the multiplicity of sexual assaults on the children, the suffering the victims experienced when young, and the inability of even a lifetime sentence to rectify the harm to the victims, demonstrate the court’s determination that probation for defendant would not be in the best interest of the victims. (See former § 1203.066, subd. (c)(2).) The court could not have found all five prerequisites for probation. (Groomes, supra, 14 Cal.App.4th at p. 89.) 15 16 17 18 19 20 21 Any possible error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (harmless error standard for federal constitutional error).) Even if the court had granted probation on the three counts of committing a lewd act, Defendant was still facing a sentence of 180 years to life on his 12 other convictions. Granting probation on the three lewd-act convictions would have had no appreciable effect on defendant’s sentence. 22 23 24 25 26 27 (Lodgment No. 6, People v. Nunez, D075261, slip op. at 4-12.) /// 28 10 21cv2046-JES (SBC) 1 1. Procedural Default 2 Respondent first contends claim one is procedurally defaulted in this Court because 3 it was denied by the state court under California’s contemporaneous objection rule, which 4 precludes raising a claim on appeal that was forfeited by lack of objection at trial. (ECF 5 No. 22-1 at 9-10.) As quoted above, the state appellate court found claim one forfeited by 6 defense counsel’s failure to object at sentencing but went on to deny the claim on the 7 merits. The fact that the state court addressed the merits of the claim in addition to 8 finding it forfeited under state law does not prevent the claim from being procedurally 9 defaulted in this Court. Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (en banc). 10 In order to preclude federal habeas review based on a procedural default, a state 11 procedural bar must rest on a state ground which is “independent” of federal law and 12 “adequate” to bar federal review. Coleman v. Thompson, 501 U.S. 722, 735 (1991). To be 13 “independent” the state law basis for the decision must not be interwoven with federal 14 law. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). To be “adequate,” the state 15 procedural bar must be “clear, consistently applied, and well-established at the time of 16 the petitioner’s purported default.” Calderon v. Bean, 96 F.3d 1126, 1129 (9th Cir. 1996). 17 Respondent has the initial burden of pleading as an affirmative defense that a 18 failure to satisfy a state procedural rule forecloses federal review. Bennett v. Mueller, 322 19 F.3d 573, 586 (9th Cir. 2003). If Respondent is successful, the burden shifts to Petitioner 20 to challenge the independence or adequacy of the procedural bar. Id. If Petitioner satisfies 21 that burden, the ultimate burden falls on Respondent. Id. 22 The Ninth Circuit has recognized California’s contemporaneous objection rule as 23 an adequate and independent state procedural rule. See Zapata v. Vasquez, 788 F.3d 24 1106, 1111-12 (9th Cir. 2015) (recognizing California contemporaneous objection rule as 25 an adequate and independent state ground that barred federal habeas review). Respondent 26 has therefore carried the initial burden. The burden has shifted to Petitioner, which he 27 may satisfy “by asserting specific factual allegations that demonstrate the inadequacy of 28 the state procedure.” Bennett, 322 F.3d at 586. Petitioner concedes that California’s 11 21cv2046-JES (SBC) 1 contemporaneous objection rule is an independent and adequate state ground. (ECF No. 2 36 at 12.) Accordingly, the Court finds claim one is procedurally defaulted. 3 Petitioner argues that any default should be excused because state law did not 4 require an objection at sentencing, because his trial counsel rendered constitutionally 5 ineffective assistance by failing to ensure the court was aware of its sentencing discretion 6 and failing to retain an expert to provide a psychological assessment of his suitability for 7 probation, and because he is actually innocent. (ECF No. 17 at 16-17, 41.) Petitioner is 8 unable to avoid default based on his contention that state law did not require an objection 9 at sentencing, as that argument was explicitly addressed and rejected by the appellate 10 court based on a determination of state law. See Peltier v. Wright, 15 F.3d 860, 862 (9th 11 Cir. 1994) (“‘[S]tate courts are the ultimate expositors of state law,’ and [federal habeas 12 courts] are bound by the state’s construction except where it appears that its interpretation 13 is an obvious subterfuge to evade the consideration of a federal issue.”), quoting 14 Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). 15 The Court can, however, address the merits of a procedurally defaulted claim if 16 Petitioner can demonstrate cause for the failure to satisfy the state procedural rule and 17 prejudice arising from the default, or if a fundamental miscarriage of justice would result 18 from the Court not reaching the merits of the defaulted claim. Coleman, 501 U.S. at 750. 19 If Petitioner can show he received constitutionally ineffective assistance of counsel at 20 sentencing, he may be able to establish cause to excuse the default. See Edwards v. 21 Carpenter, 529 U.S. 446, 451 (2000) (noting that although the Supreme Court has “not 22 identified with precision exactly what constitutes ‘cause’ to excuse a procedural default, 23 [it has] acknowledged that in certain circumstances counsel’s ineffectiveness in failing 24 properly to preserve the claim for review in state court will suffice.”), citing Murray v. 25 Carrier, 477 U.S. 478, 488-89 (1986). As to actual innocence, if Petitioner “presents 26 evidence of innocence so strong that a court cannot have confidence in the outcome of 27 the trial unless the court is also satisfied that the trial was free of nonharmless 28 constitutional error, the petitioner should be allowed to pass through the gateway and 12 21cv2046-JES (SBC) 1 argue the merits of his underlying claims.” Schlup v. Delo, 513 U.S. 298, 316 (1995). 2 Even assuming Petitioner could satisfy those provisions, federal habeas relief is not 3 available on the merits of claim one for the reasons discussed below. The Court will 4 therefore deny habeas relief without addressing whether Petitioner can establish cause 5 and prejudice or a fundamental miscarriage of justice sufficient to excuse the default. See 6 Ayala v. Chappell, 829 F.3d 1081, 1096 (9th Cir. 2016) (approving of district court’s 7 determination that development of the record regarding procedural default was 8 unnecessary where claim clearly failed on the merits), citing Franklin v. Johnson, 290 9 F.3d 1223, 1232 (9th Cir. 2002) (“Procedural bar issues are not infrequently more 10 complex than the merits . . ., so it may well make sense in some instances to proceed to 11 the merits if the result will be the same.”) 12 2. Merits 13 In order to obtain federal habeas relief with respect to a claim which was 14 adjudicated on the merits in state court, a federal habeas petitioner must first demonstrate 15 that the state court adjudication of the claim: “(1) resulted in a decision that was contrary 16 to, or involved an unreasonable application of, clearly established Federal law, as 17 determined by the Supreme Court of the United States; or (2) resulted in a decision that 18 was based on an unreasonable determination of the facts in light of the evidence 19 presented in the State court proceeding.” 28 U.S.C. § 2254(d). If Petitioner can satisfy 20 either provision, or they do not apply, a de novo review is required to determine whether 21 a federal constitutional violation has been established. Hardy v. Chappell, 849 F.3d 803, 22 820 (9th Cir. 2016); see also Fry v. Pliler, 551 U.S. 112, 119 (2007) (holding that 23 § 2254(d) “sets forth a precondition to the grant of habeas relief . . ., not an entitlement to 24 it.”) 25 A state court’s decision may be “contrary to” clearly established Supreme Court 26 precedent (1) “if the state court applies a rule that contradicts the governing law set forth 27 in [Supreme Court] cases” or (2) “if the state court confronts a set of facts that are 28 materially indistinguishable from a decision of [the Supreme] Court and nevertheless 13 21cv2046-JES (SBC) 1 arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 2 U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established federal 3 law occurs “if the state court identifies the correct governing legal rule from [the 4 Supreme] Court’s cases but unreasonably applies it to the facts of the particular state 5 prisoner’s case,” or “either unreasonably extends a legal principle from our precedent to a 6 new context where it should not apply or unreasonably refuses to extend that principle to 7 a new context where it should apply.” Id. at 407. 8 Clearly established federal law “refers to the holdings, as opposed to the dicta, of 9 [Supreme Court] decisions as of the time of the relevant state-court decision.” Williams, 10 529 U.S. at 412. “Factual determinations by state courts are presumed correct absent clear 11 and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the 12 merits in a state court and based on a factual determination will not be overturned on 13 factual grounds unless objectively unreasonable in light of the evidence presented in the 14 state-court proceeding, § 2254(e)(1).” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 15 Petitioner claims that by applying the law in effect at the time he was tried and 16 sentenced, which did not give the trial judge discretion to consider probation or 17 concurrent sentences on the three lewd act counts, rather than the law in effect at the time 18 of the offenses which provided such discretion, his federal due process rights were 19 violated under ex post facto principles. (ECF No. 17 at 12, 15-41.) Respondent answers 20 that the state court reasonably found that this claim lacked evidentiary support because 21 the trial judge’s comments at sentencing demonstrated that any assumed misapprehension 22 of the law the trial judge held was belied by the fact that the judge exercised discretion to 23 deny probation or run the sentences concurrent, and that Petitioner has identified no 24 overlooked evidence which may have changed the judge’s opinion. (ECF No. 22-1 at 11.) 25 As quoted above, the state appellate court found that the trial court was 26 presumptively aware it had discretion to sentence Petitioner to probation on the three 27 lewd act counts, and the record supported a finding that the trial judge was aware of that 28 discretion because he considered and denied probation on those counts, thus applying the 14 21cv2046-JES (SBC) 1 law in effect at the time of the offenses. It found that the trial court observed that those 2 three counts involved hundreds of lewd acts involving substantial sexual contact against 3 three very young girls which made their lives “pure hell” which even a lifetime sentence 4 for Petitioner would not rectify, concluded there was no reasonable probability the trial 5 judge would have granted probation on those three counts or run the sentences concurrent 6 while sentencing Petitioner to consecutive terms of fifteen years to life on the other 7 twelve counts, and noted that probation on the three lewd act counts would have no 8 appreciable effect on what would still be a sentence of 180 years to life on the remaining 9 twelve counts of rape. (Lodgment No. 6, People v. Nunez, D075261, slip op. at 9-12.) 10 “It is settled, by decisions of this Court so well known that their citations may be 11 dispensed with, that any statute . . . which makes more burdensome the punishment for a 12 crime, after its commission . . . is prohibited as ex post facto.” Collins v. Youngblood, 497 13 U.S. 37, 42 (1990), quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925). Application of 14 a statute which removes discretion from a sentencer constitutes an ex post facto violation. 15 Murtishaw v. Woodford, 255 F.3d 926, 965 (9th Cir. 2001), citing Lindsey v. Washington, 16 301 U.S. 397, 399-401 (1936) (“[T]he ex post facto clause looks to the standard of 17 punishment prescribed by a statute, rather than the sentence actually imposed. The 18 Constitution forbids the application of any new punitive measure to a crime already 19 consummated, to the detriment or material disadvantage of the wrongdoer.”) 20 Thus, clearly established federal law provides that in order to constitute an ex post 21 facto violation, a law must be applied to events occurring before its enactment and “must 22 disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29 (1981). 23 Here, the state court determined that the old law was applied because the trial court was 24 presumptively aware of its discretion to impose probation or run the three lewd act 25 sentences concurrent, that the record supported that the presumption because the trial 26 judge exercised that discretion in considering whether probation was appropriate and 27 rejected it emphatically, and was not likely to run the sentences concurrent in light of 28 running the other twelve sentences consecutive. The trial judge, after commenting on 15 21cv2046-JES (SBC) 1 what the victims said at the sentencing hearing and how Petitioner’s actions affected their 2 lives, and after stating that: “The things that I heard [during trial] touched me very, very 3 much,” then concluded: “Accordingly, probation is denied, and I am going to -- and 4 maybe it’s just for me, for my satisfaction, that probation is denied.” (ECF No. 23-10 at 5 12.) Even assuming that passage could be reasonably understood to communicate that the 6 trial judge thought the law did not provide discretion to impose probation and was 7 exercising discretion for his own satisfaction, it is still objectively reasonable for the state 8 court to find the trial judge was aware of and exercised discretion to consider probation 9 because the presumption of correctness of that state court finding has not been rebutted. 10 See Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (holding that in order to satisfy § 11 2254(d)(1), “[i]t is not enough that a federal habeas court, in its independent review of 12 the legal question, is left with a firm conviction that the state court was erroneous. … 13 Rather, that application must be objectively unreasonable.”) (quote marks and citations 14 omitted); see also Miller-El, 545 U.S. at 240 (in order to satisfy § 2254(d)(2), a petitioner 15 must show “the [state court] conclusion to be ‘an unreasonable determination of the facts 16 in light of the evidence presented in the State court proceeding.’ Thus, we presume the 17 [state] court’s factual findings to be sound unless [petitioner] rebuts the ‘presumption of 18 correctness by clear and convincing evidence.’”), quoting 28 U.S.C. § 2254(d)(2)&(e)(1). 19 In addition, the record supports a finding that Petitioner was not disadvantaged by the 20 change in law because the trial court applied the old law, explicitly considered and 21 rejected probation as allowed under the old law, and presumably considered and rejected 22 running the sentences consecutive as allowed under the old law. See Weaver, 450 U.S. at 23 29 (holding that in order to constitute an ex post facto violation, a law must be applied to 24 events occurring before its enactment and “must disadvantage the offender affected by 25 it.”) 26 The state court adjudication of claim one is not objectively unreasonable within the 27 meaning of 28 U.S.C. § 2254(d)(1) because the state court did not apply a rule that 28 contradicts the governing law set forth in the Supreme Court cases cited above, or arrive 16 21cv2046-JES (SBC) 1 at a result different from those cases, nor unreasonably apply that precedent to 2 Petitioner’s claim or unreasonably extend or refuse to extend those legal principles to his 3 case. Williams, 529 U.S. at 405-07; see also Harrington v. Richter, 562 U.S. 86, 102 4 (2011) (“If this standard is difficult to meet, that is because it was meant to be. As 5 amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court 6 relitigation of claims already rejected in state proceedings. It preserves authority to issue 7 the writ in cases where there is no possibility fairminded jurists could disagree that the 8 state court’s decision conflicts with [the Supreme] Court’s precedents.”) (citation 9 omitted). Neither is there any basis in the record to find the state court adjudication 10 involved an objectively unreasonable determination of the facts under 28 U.S.C. 11 § 2254(d)(2). Miller-El, 537 U.S. at 340. 12 Habeas relief is denied with respect to claim one because: (1) it is procedurally 13 defaulted, and (2) assuming Petitioner could overcome the default, the adjudication of the 14 claim by the state court is objectively reasonable within the meaning of 28 U.S.C. 15 § 2254(d)(1)-(2).2 Petitioner’s request for an evidentiary hearing is denied because one is 16 not necessary where, as here, the federal claim can be denied based on the state court 17 record and the allegations, even if true, do not provide a basis for habeas relief. Campbell 18 v. Wood, 18 F.3d 662, 679 (9th Cir. 1994); see also Schriro v. Landrigan, 550 U.S. 465, 19 474 (2007) (“It follows that if the record refutes the applicant’s factual allegations or 20 otherwise precludes habeas relief, a district court is not required to hold an evidentiary 21 hearing.”) 22 /// 23 24 25 26 27 28 Although a federal habeas court would ordinarily determine whether an alleged federal constitutional error is harmless, see Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), and the application of harmless error by a state court such as occurred here is ordinarily subject to § 2254(d) deference, see Mitchell v. Esparza, 540 U.S. 12, 18 (2003), the Ninth Circuit has declined to find ex post facto error at sentencing with respect to the removal of sentencing discretion to be a trial-type error subject to harmless error review in federal court. Williams v. Roe, 421 F.3d 883, 888 (9th Cir. 2005). 2 17 21cv2046-JES (SBC) 1 B. 2 Petitioner alleges in claim two that he received ineffective assistance of counsel by Claim Two 3 trial counsel’s failure to: (1) excuse for cause seven jurors, (2) investigate and present 4 medical evidence of Petitioner’s hearing loss, (3) seek to exclude the pretext call, 5 (4) introduce medical examinations of the victims from 1996, and (5) object to portions 6 of the prosecutor’s closing argument. (ECF No. 17 at 41-65.) 7 The only state court to which this claim was presented is the state supreme court in 8 a habeas petition. (Lodgment No. 9, ECF No. 23-17 at 3-6, 17-159.) That petition was 9 denied in an order which stated: “Petition for writ of habeas corpus denied.” (Lodgment 10 No. 10, ECF No. 23-18 at 1.) The silent denial of claim two by the state supreme court is 11 presumptively a decision on the merits of the claim. Hunter v. Aispuro, 982 F.2d 344, 12 347-48 (9th Cir. 1992); Richter, 562 U.S. at 99-100 (holding that an unexplained denial 13 of a claim by the California Supreme Court is an adjudication on the merits entitled to 14 AEDPA deference unless “there is reason to think some other explanation for the state 15 court’s decision is more likely.”) “Federal habeas review is not de novo when the state 16 court does not supply reasoning for its decision, but an independent review of the record 17 is required to determine whether the state court clearly erred in its application of 18 controlling federal law.” Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000); see also 19 Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (holding that when the state court 20 reaches the merits of a claim but provides no reasoning to support is conclusion, 21 “although we independently review the record, we still defer to the state court’s ultimate 22 decision.”) The Court “must determine what arguments or theories . . . could have 23 supported the state court’s decision; and then it must ask whether it is possible fairminded 24 jurists could disagree that those arguments or theories are inconsistent with the holding in 25 a prior decision of this Court.” Richter, 562 U.S. at 102. 26 27 28 1. Timeliness Respondent first contends claim two is untimely because it was presented to the state court after the one-year federal statute of limitations expired. (ECF No. 22-1 at 1118 21cv2046-JES (SBC) 1 13.) Petitioner replies that his original federal Petition, which contained only claim one, 2 was filed within the one-year federal statute of limitations, and that this Court extended 3 the limitations period for claim two when it granted his motion for stay and abeyance 4 which Respondent did not oppose. (ECF No. 36 at 14-15.) 5 A one-year period of limitations applies to a federal petition for a writ of habeas 6 corpus by a person in custody under a state court judgment which runs from the latest of: 7 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 8 9 10 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D). The limitations period began to run under § 2244(d)(1)(A) on the day Petitioner’s conviction became final on direct appeal. There is no basis in the record to find a different commencement date under § 2244(d)(1)(B)-(D) because Petitioner does not rely on a state-created impediment or new case law, and because, as is clear from the discussion on the merits of claim two below, the nature of the ineffective assistance of trial counsel claims indicates he was aware of the claims at the time of trial. See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (limitation period began to run when petitioner knew or should have known or through diligence could have discovered important facts, not when he became aware of their legal significance). Because Petitioner did not seek certiorari in the United States Supreme Court, his 28 19 21cv2046-JES (SBC) 1 conviction became final on the last day he could have sought such relief. Miranda v. 2 Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). He had 150 days to do so following the 3 October 14, 2020, denial of his state supreme court petition for review on direct appeal. 4 See Order List, 589 U.S. (extending time to seek certiorari from 90 to 150 days for 5 deadlines falling after March 19, 2020). 150 days from October 14, 2020, fell on 6 Saturday March 13, 2021, and the last day to file a certiorari petition was Monday March 7 15, 2021. See Fed. R. Civ. P. 6(a)(1)(C) (“if the last day is a Saturday, Sunday or legal 8 holiday, the period continues to run until the end of the next day that is not a Saturday, 9 Sunday or legal holiday.”) The one-year limitations period began running the next day, 10 March 16, 2021. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 2002) (the one-year 11 limitations period begins when the period to file certiorari expires). A federal habeas 12 petition was due within one year, no later than March 15, 2022. See 28 U.S.C. 13 § 2244(d)(1)(A). The original federal Petition, which contained only claim one, was 14 constructively filed by Petitioner on December 1, 2021, the date he handed it to prison 15 authorities for mailing to the Court, see Houston v. Lack, 487 U.S. 266, 276 (1988), over 16 three months before the limitations period was set to expire. 17 On the same day Petitioner filed his original federal Petition, he filed a motion for 18 stay and abeyance seeking to return to state court to exhaust claim two under King v. 19 Ryan, 564 F.3d 1133 (9th Cir. 2009) (permitting stay of fully exhausted petition where 20 statute of limitations may result in loss of potentially meritorious claim). (ECF No. 3.) 21 That motion was granted as unopposed on June 7, 2022, seven months after it was filed 22 and four months after the statute of limitations expired, and this action was stayed under 23 King. (ECF Nos. 10-11.) Petitioner constructively filed his state habeas petition in the 24 state supreme court presenting claim two on May 25, 2022. (Lodgment No. 9, ECF No. 25 23-17 at 73.) He therefore filed his state habeas petition while his stay motion was 26 pending in this Court a little over two months after the limitations period expired, absent 27 tolling. See Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (recognizing that the 28 federal one-year limitations period is statutorily tolled while state collateral review 20 21cv2046-JES (SBC) 1 proceedings are pending and subject to equitably tolling when extraordinary 2 circumstances beyond a prisoner’s control make it impossible to timely file a federal 3 petition). 4 Respondent correctly observes that a petition for state post-conviction relief filed 5 after the expiration of the federal one-year statute of limitations does not toll the 6 limitations period. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (statutory 7 tolling unavailable for state habeas petition filed after the limitations period expired). The 8 presumption that the silent denial of claim two by the state supreme court is a decision on 9 the merits does not excuse this Court from determining whether the state habeas petition 10 was nevertheless untimely in state court for federal statute of limitations purposes. See 11 Evans v. Chavis, 546 U.S. 189, 198 (2006) (holding that in the absence of a clear 12 indication that a petition was timely or untimely, a federal court “must itself examine the 13 delay in each case and determine what the state courts would have held in respect to 14 timeliness.”) 15 Petitioner argues that by granting his unopposed motion for stay this Court 16 extended the limitations period, to which Respondent did not object, and in addition that 17 the limitations period should be equitably tolled while he was seeking help to identify and 18 present claim two to the state court. (ECF No. 36 at 14-15.) Because Petitioner’s stay 19 motion was filed prior to expiration of the statute of limitations, if the Court had granted 20 his unopposed motion prior to the expiration of the statute of limitations, rather than 21 seven months after it was filed, he could have been eligible for statutory tolling if he had 22 filed his state habeas petition when his stay motion was granted. See 28 U.S.C. § 23 2244(d)(2) (“The time during which a properly filed application for State post-conviction 24 or other collateral review with respect to the pertinent judgment or claim is pending shall 25 not be counted toward any period of limitation under this subsection.”) It was Petitioner’s 26 failure to file his state habeas petition before the federal limitations period expired which 27 precludes statutory tolling however, as the limitations period was not tolled merely by the 28 filing of his federal petition. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (absent 21 21cv2046-JES (SBC) 1 some other basis for tolling, the statute of limitations is not tolled while a federal habeas 2 petition is pending). Nevertheless, had the Court granted the stay under Rhines v. Weber, 3 544 U.S. 269 (2005) rather than King, claim two could be timely in this Court even 4 though the one-year statute of limitations expired before it was first presented to the state 5 court. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (holding that a state prisoner 6 may timely file “a ‘protective’ petition in federal court and ask[] the federal court to stay 7 and abey the federal habeas proceedings until state remedies are exhausted.”), citing 8 Rhines, 544 U.S. at 277 (noting that “granting a stay effectively excuses a petitioner’s 9 failure to present his claims first to the state courts.”); King, 564 F.3d at 1140 (“When 10 implemented, the Rhines exception eliminates entirely any limitations issue with regard 11 to the originally unexhausted claims, as the claims remain pending in the federal court 12 throughout.”) Furthermore, even if claim two is untimely, Petitioner’s claim of 13 entitlement to equitable tolling would need to be addressed prior to dismissal of the claim 14 as untimely. See e.g. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en 15 banc) (finding district court erred in dismissing a habeas petition as untimely without first 16 pursuing factual development of equitable tolling claim). 17 As set forth below, claim two is clearly without merit. Because the one-year statute 18 of limitations expired while Petitioner’s stay motion was pending and because the Court 19 would need to consider the availability of equitable tolling, the Court finds judicial 20 efficiency is served by addressing the merits of claim two rather than deciding whether it 21 was presented within the one-year federal limitations period. See Franklin, 290 F.3d at 22 1232 (“[C]ourts are empowered to, and in some cases should, reach the merits of habeas 23 petitions if they are . . . clearly not meritorious despite an asserted procedural bar.”) 24 25 2. Merits To show constitutionally ineffective assistance of counsel, counsel’s performance 26 must have been deficient, which “requires showing that counsel made errors so serious 27 that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 28 Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s deficient 22 21cv2046-JES (SBC) 1 performance must also have prejudiced the defense, which requires showing that 2 “counsel’s errors were so serious as to deprive [Petitioner] of a fair trial, a trial whose 3 result is reliable.” Id. To establish prejudice, Petitioner must demonstrate a reasonable 4 probability that the result of the proceeding would have been different absent the error. 5 Id. at 694. A reasonable probability is “a probability sufficient to undermine confidence 6 in the outcome.” Id. Both deficient performance and prejudice must be shown, although a 7 reviewing court need not examine both prongs if either one is not established. Id. at 687. 8 Review under Strickland is “highly deferential” of a state court decision, and 9 federal habeas review is “doubly” deferential when applying § 2254(d) to a state court 10 adjudication of an ineffective assistance of counsel claim. Cullen v. Pinholster, 563 U.S. 11 170, 190 (2011). “When § 2254(d) applies, the question is not whether counsel’s actions 12 were reasonable. The question is whether there is any reasonable argument that counsel 13 satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. 14 15 a) Excuse jurors for cause Petitioner contends trial counsel should have sought to excuse for cause seven 16 potential jurors, none of whom served on his jury, after they made statements during voir 17 dire regarding their personal views on and experiences with child molestation. (ECF No. 18 17 at 41-50.) Respondent answers that because none of the seven jurors sat on 19 Petitioner’s jury, this claim is obviously without merit. (ECF No 22-1 at 14.) Petitioner 20 replies that the jurors’ “inflammatory statements impregnated all the other impaneled 21 jurors to convict [Petitioner] with bias statements.” (ECF No. 36 at 16.) 22 Petitioner has not explained how trial counsel could have challenged the jurors for 23 cause based on the statements they made during voir dire before they made the 24 statements, or how challenging them for cause after they made their statements would 25 have cured any potential contamination of the other jurors. To the extent he contends 26 counsel should have sought to disqualify the entire jury panel based on the statements of 27 those jurors during void dire, he has not shown any biased juror sat on his jury and there 28 is no basis to presume bias arising from the voir dire answers identified in the Petition. 23 21cv2046-JES (SBC) 1 See Adams v. Texas, 448 U.S. 38, 45 (1980) (a jury must be comprised of individuals 2 who “will consider and decide the facts impartially and conscientiously apply the law as 3 charged by the court.”); Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (“Only in 4 ‘extreme’ or ‘extraordinary’ cases should bias be presumed.”) The state supreme court 5 could have reasonably denied this claim on the basis that Petitioner did not show 6 deficient performance or prejudice from trial counsel’s failure to seek to excuse the 7 potential jurors for cause or move to disqualify the panel. See Richter, 562 U.S. at 110 8 (“Representation is constitutionally ineffective only if it ‘so undermined the proper 9 functioning of the adversarial process’ that the defendant was denied a fair trial.”), 10 quoting Strickland, 466 U.S. at 686. 11 b) Medical evidence of Petitioner’s hearing loss 12 Petitioner contends trial counsel should have: (1) called doctor Catnick from 13 Mercy Hospital and an unnamed doctor from Kaiser Hospital to testify about ear 14 surgeries he underwent as a child and an adult, and seek to introduce medical records of 15 those surgeries, and (2) obtain and introduce evidence from a hearing test he took in June 16 2018, of copy of which is attached to the Petition as Exhibit 2 (ECF No. 17-4 at 1-4), 17 which he contends indicates his hearing is deficient and impaired and could have 18 established he could not hear and had to read lips to understand what was being said to 19 him. (ECF No. 17 at 50-59; ECF No. 17-1 at 1.) He states that he testified at trial that he 20 has problems with his hearing, needs to be close to someone to hear them, and received 21 the pretext call on an outside deck where trucks back up to make deliveries while he was 22 scrubbing equipment so he could not hear everything his daughters said and thought they 23 were talking about physical abuse not sexual abuse. (ECF No. 17 at 7-8.) Although he 24 repeatedly argues that it is reasonably probable that the results of his trial would have 25 been different had this evidence been introduced, and that the state court rejection of this 26 claim was contrary to or involved an unreasonable application of clearly established 27 federal law, he does not indicate why, other than to show he might not have heard what 28 his daughters were saying during the pretext call. (Id. at 52-55.) 24 21cv2046-JES (SBC) 1 Respondent answers that Petitioner has not presented documentation that ear 2 surgery occurred or a declaration from counsel, and speculation that such evidence was 3 available and exculpatory is insufficient to warrant relief. (ECF No. 22-1 at 14-15.) 4 Respondent also argues that even though Petitioner attaches the audiology report to the 5 Petition, there is no declaration from counsel regarding why it was not introduced, and it 6 is possible counsel could have reasonably decided not to argue to the jury that Petitioner 7 could not hear his daughters during the pretext call as that argument is refuted by the 8 evidence that Petitioner carried on a telephone conversation and responded coherently to 9 statements and questions during the call. (Id. at 15.) Petitioner replies that he does not 10 need a declaration from counsel because he has submitted his own declaration. (ECF No. 11 36 at 18-19.) His declaration attached to the First Amended Petition recounts the efforts 12 he made to convince trial counsel to obtain his medical records. (ECF No. 17-1 at 1-2.) 13 As quoted above, the state court found that: “E.N. and C.N. made a pretext call to 14 defendant. E.N. accused defendant of having sex with her and C.N. throughout their 15 childhood. Defendant apologized. Defendant called C.N. a week later and offered to give 16 her $200 if she would stay silent.” (Lodgment No. 6, People v. Nunez, D075261, slip op. 17 at 4.) A transcript of the pretext call is in the record, and it shows Petitioner was engaged 18 in a lengthy, detailed conversation without any indication he had difficulty 19 communicating with his daughters. (See ECF No. 23-1 at 117-53.) Defense counsel 20 argued to the jury in closing that the pretext call was insufficient to carry the 21 prosecution’s high burden of proof because: (a) Petitioner testified he suffered hearing 22 loss as a result of maggots in his ear as a child leading to ear surgery as a child and as an 23 adult, (b) a babysitter testified about his difficulty hearing, (c) background noise 24 interfered with the call, (d) Petitioner and his daughters spoke Spanish during the call but 25 the English translation provided to the jury was misleading in that it stated they were 26 referring to sexual abuse when they were in fact referring to physical abuse, and (e) it 27 was undisputed that the daughters pushed the mute button on their phone at some point 28 but it was unclear when, precluding any admission if Petitioner was not responding to 25 21cv2046-JES (SBC) 1 what they were saying. (ECF No. 23-8 at 47-54.) Attached to the First Amended Petition 2 is a letter from Petitioner’s appellate counsel indicating that at Petitioner’s request 3 appellate counsel investigated whether trial counsel was ineffective for failing to hire an 4 expert witness to testify about his hearing loss. (ECF No. 17-4 at 18.) Appellate counsel 5 did not raise that issue on appeal despite presenting an ineffective assistance of trial 6 counsel argument regarding the failure to object at sentencing. (ECF No. 23-11 at 35-38.) 7 In light of the evidence in the record that Petitioner was able to coherently carry on 8 a conversation with his daughters during the pretext call which included admissions of 9 guilt but no indication Petitioner had difficulty communicating, the state court could have 10 reasonably denied this claim on the basis that counsel was not deficient in failing to 11 present additional evidence of Petitioner’s ear surgeries or hearing test, or that Petitioner 12 was not prejudiced by that failure, because counsel did in fact argue there was such 13 evidence in the record which, coupled with the uncertainty of the translation, background 14 noise, and use of the mute button, created reasonable doubt as to whether Petitioner made 15 admissions. See Strickland, 466 U.S. at 689 (“There are countless ways to provide 16 effective assistance in any given case. Even the best criminal defense attorneys would not 17 defend a particular client in the same way.”) 18 19 c) Exclude the pretext call Petitioner contends trial counsel should have objected to introduction of the 20 recorded pretext call and sought to have it excluded on the basis that he had difficulty 21 hearing what his daughters were saying. (ECF No. 17 at 55-57.) Respondent answers that 22 the pretext call was properly admitted under state hearsay rules, and because Petitioner’s 23 challenge goes to the weight of the evidence and not its admissibility, defense counsel 24 could not have rendered ineffective assistance by making a meritless objection. (ECF No. 25 22-1 at 15.) Petitioner replies that the call was not admissible, and counsel should have 26 sought to exclude it. (ECF No. 39 at 17-18.) 27 The state court could have reasonably denied this claim on the basis that counsel 28 was not deficient in failing to seek to exclude introduction of the pretext call because it 26 21cv2046-JES (SBC) 1 was clearly admissible under state law. See People v. Riel, 22 Cal.4th 1153, 1189 (2000) 2 (a defendant’s “silence, evasion, or equivocation may be considered as a tacit admission 3 of the statements made in his presence.”); People v. Simmons, 28 Cal.2d 699, 712 (1946) 4 (the theory behind an adoptive admission “is that the natural reaction of an innocent man 5 to an untrue accusation is to enter a prompt denial.”) The state court could have also 6 reasonably found that counsel’s decision to argue there was reasonable doubt as to 7 whether the call constituted an admission rather than raise a useless evidentiary objection 8 was a reasonable tactical decision. Strickland, 466 U.S. at 690 (“[T]he court should 9 recognize that counsel is strongly presumed to have rendered adequate assistance and 10 made all significant decisions in the exercise of reasonable professional judgment.”); 11 Richter, 562 U.S. at 105 (“When § 2254(d) applies, the question is not whether counsel’s 12 actions were reasonable. The question is whether there is any reasonable argument that 13 counsel satisfied Strickland’s deferential standard.”) 14 15 d) Victims’ medical examinations Petitioner contends trial counsel should have called a medical examiner from the 16 Polinsky Center who examined the victims in 1996 and introduce medical reports 17 generated from the examinations, which would have shown the victims were all virgins 18 and were never touched sexually. (ECF No. 17 at 59-61.) Respondent answers that 19 Petitioner has failed to establish that such evidence exists, and that in any case defense 20 counsel argued to the jury that the prosecution’s failure to present evidence regarding 21 such examinations was a basis for reasonable doubt that the victims were sexually 22 abused. (ECF No. 22-1 at 15-16.) Petitioner replies that his own declaration states that he 23 asked counsel numerous times to go to the Polinsky Center and to obtain examination 24 records and introduce them at trial, and to call the person who examined his daughters to 25 testify. (ECF No. 36 at 19-20; ECF No. 17-1 at 2.) 26 Defense counsel argued to the jury they could draw a reasonable conclusion from 27 the prosecution’s failure to present evidence of examinations conducted on the victims at 28 the Polinsky Center, where the children lived for up to three weeks before being returned 27 21cv2046-JES (SBC) 1 home, that “there was a finding at that time that [Petitioner] did nothing wrong.” (ECF 2 No. 23-8 at 47.) Petitioner presents a letter from his appellate counsel stating that, at 3 Petitioner’s request, appellate counsel investigated whether trial counsel was ineffective 4 for failing to obtain medical records of the victims. (ECF No. 17-4 at 18.) Appellate 5 counsel did not raise the issue on appeal despite presenting an ineffective assistance of 6 trial counsel argument for failure to object at sentencing. (ECF No. 23-11 at 35-38.) 7 Although Petitioner has presented evidence that he requested his trial and appellate 8 counsel to determine whether evidence of physical examinations of the children at the 9 Polinsky Center existed, there is no indication in the record such evidence exists, and his 10 trial counsel used the lack of such evidence to argue that the prosecution’s failure to 11 present such records permitted the jury to draw a reasonable inference that any 12 examinations conducted on the victims exonerated Petitioner. The state court could have 13 reasonably denied relief as to this claim on the basis that Petitioner had shown neither 14 deficient performance nor prejudice because he failed to overcome the “strong 15 presumption that counsel’s conduct . . . might be considered sound trial strategy.” 16 Strickland, 466 U.S. at 689; see also Bible v. Ryan, 571 F.3d 860, 891 (9th Cir. 2009) (no 17 Strickland prejudice where evidence was “speculative in nature.”); Richter, 562 U.S. at 18 105 (habeas relief unavailable if “there is any reasonable argument that counsel satisfied 19 Strickland’s deferential standard.”) 20 21 e) Prosecutor’s closing argument Finally, Petitioner contends his trial counsel should have objected to those portions 22 of the prosecutor’s argument which were improper and expressed personal opinions of 23 his guilt and credibility. (ECF No. 17 at 61-65.) Respondent answers that Petitioner has 24 failed to identify any objectionable statements by the prosecutor, and that defense counsel 25 could have reasonably decided not to object to avoid drawing attention to an issue or 26 because he believed the statements would allow him to respond in rebuttal. (ECF No. 22- 27 1 at 16.) Petitioner replies that he has identified improper argument and that the state 28 court unreasonably applied Strickland in denying this claim. (ECF No. 36 at 20-21.) 28 21cv2046-JES (SBC) 1 Petitioner contends the prosecutor expressed personal opinions as to his guilt and 2 credibility in opening statements and closing argument, but the passages quoted in the 3 First Amended Petition do not contain any such opinions or improper argument, they 4 merely comment on the evidence. (See ECF No. 17 at 62-63.) “Prosecutors have 5 considerable leeway to strike ‘hard blows’ based on the evidence and all reasonable 6 inferences from the evidence.” United States v. Henderson, 241 F.3d 638, 652 (9th Cir. 7 2000); see also United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991) (“In a case 8 that essentially reduces to which of two conflicting stores is true, it may be reasonable to 9 infer, and hence to argue, that one of the two sides is lying.”), citing United States v. 10 Birges, 723 F.2d 666, 672 (9th Cir. 1984) (“It is neither unusual nor improper for a 11 prosecutor to voice doubt about the veracity of a defendant who has taken the stand.”) 12 Defense counsel did in fact object twice during the prosecutor’s closing argument 13 regarding misstatement of the evidence. (ECF No. 23-8 at 23, 62.) 14 Petitioner points out that the prosecutor referred to him as a “monster” three times 15 during closing argument, twice at the very beginning of argument (see ECF No. 23-8 at 16 17: “This case is about the intersection between the defendant being a good father and a 17 monster.”; id. at 18: “[I]t was during the controlled call when she was talking about how, 18 but for the fact that he had sex with them all the time, he was a good dad. And both of 19 those things can be true. You can do good things for your children, but you can also be a 20 monster.”), and once at the very end of argument. (Id. at 63: “When the door was closed 21 and the lights were off and they thought they were safe in their little beds asleep and the 22 defendant would come in in the middle of the night, take their clothes off, and have his 23 way with them, that’s the monster.”) In order to rise to the level of a due process 24 violation, “the prosecutors’ comments [must have] ‘so infected the trial with unfairness 25 as to make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 26 U.S. 168, 181 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see 27 also Greer v. Miller, 483 U.S. 756, 765-66 (1987) (“To constitute a due process violation, 28 the prosecutorial misconduct must be of sufficient significance to result in the denial of 29 21cv2046-JES (SBC) 1 the defendant’s right to a fair trial.”) (quote marks omitted); Smith v. Phillips, 455 U.S. 2 209, 219 (1982) (“[T]he touchstone of due process analysis in cases of alleged 3 prosecutorial misconduct is the fairness of the trial, not the culpability of the 4 prosecutor.”) 5 The prosecutor in Darden referred to the defendant as an “animal” and “made 6 several offensive comments reflecting an emotional reaction to the case.” Darden, 477 7 U.S. at 179-80. However, the Supreme Court found the trial was not rendered 8 fundamentally unfair by that improper argument because the jury was instructed that their 9 decision was required to be based on the evidence and that argument of counsel was not 10 evidence, and because the heavy weight of the evidence against the defendant reduced 11 any likelihood of an influence on the jury’s decision. Id. at 181-82. 12 As in Darden, the jury here was instructed that their decision must be based on the 13 evidence presented and that argument of counsel is not evidence. (See ECF No. 23-4 at 5- 14 6 (“Remember, the lawyers are not witnesses. Since it’s your duty to decide the case 15 solely on the evidence which you see or hear in the case, you must not consider as 16 evidence any statement the lawyers make during trial.”); ECF No. 23-8 at 4 (“If you 17 believe the attorneys’ comments on the law conflict with my instructions, you must 18 follow my instructions.”); id. at 6-7 (“Nothing the lawyers say is evidence. In their 19 opening statements and closing arguments, the lawyers discussed the case, but their 20 remarks are not evidence.”).) The prosecutor also reminded the jury that: “What we say is 21 not evidence. What the lawyers say is not evidence.” (ECF No. 28-8 at 57.) 22 The prosecutor’s use of the term “monster” to describe Petitioner constituted a 23 description of Petitioner’s conduct toward the victims, which included, as previously 24 noted, hundreds of instances of sexual abuse which the trial judge found made their lives 25 “pure hell.” The state court could have reasonably found that the prosecutor’s use of the 26 term “monster” to describe Plaintiff fell within the permissible scope of closing 27 argument, and even if it was objectionable Petitioner was not prejudiced by the failure to 28 object because the statements did not deprive him of a fair trial since the evidence of guilt 30 21cv2046-JES (SBC) 1 was strong and the jury was instructed they were required to base their verdict on the 2 evidence and that the statements of the attorneys are not evidence. See Tan v. Runnels, 3 413 F.3d 1101, 1112 (9th Cir. 2005) (“[U]nder Darden, the first issue is whether the 4 prosecutor’s remarks were improper and, if so, whether they infected the trial with 5 unfairness.”) 6 Thus, the state court could have reasonably denied this final aspect of claim two on 7 the basis that counsel only objected when appropriate, did not make the inappropriate 8 objections Petitioner contends should have been made, or, if an objection could have 9 been made, made a tactical decision not to call attention to that aspect of the prosecutor’s 10 argument. See Clabourne v. Lewis, 64 F.3d 1373, 1383 (9th Cir. 1995) (“[R]easonably 11 competent counsel might have many valid reasons for failing to object to the form of 12 opposing counsel’s questions or interrupt opposing counsel during opening and closing 13 statements.”); Richter, 562 U.S. at 110 (“Representation is constitutionally ineffective 14 only if it ‘so undermined the proper functioning of the adversarial process’ that the 15 defendant was denied a fair trial.”), quoting Strickland, 466 U.S. at 686. 16 The Court denies federal habeas relief as to claim two on the basis that, assuming 17 the claim is timely, the adjudication by the state court is objectively reasonable within the 18 meaning of 28 U.S.C. § 2254(d)(1)-(2). Petitioner’s request for an evidentiary hearing is 19 denied because one is not necessary where, as here, the federal claim can be denied based 20 on the state court record and Petitioner’s allegations, even if true, do not provide a basis 21 for habeas relief. Campbell, 18 F.3d at 679; Schriro, 550 U.S. at 474. 22 23 V. CERTIFICATE OF APPEALABILITY The Court is required to grant or deny a Certificate of Appealability when entering 24 a final order adjudicating a 28 U.S.C. § 2254 habeas petition. See Rule 11, rules foll. 28 25 U.S.C. § 2254. “[T]he only question [in determining whether to grant a Certificate of 26 Appealability] is whether the applicant has shown that ‘jurists of reason could disagree 27 with the district court’s resolution of his constitutional claims or that jurists could 28 conclude the issues presented are adequate to deserve encouragement to proceed 31 21cv2046-JES (SBC) 1 further.’” Buck v. Davis, 580 U.S. 100, 115 (2017), quoting Miller-El, 537 U.S. at 327. 2 Under that standard, because defense counsel did not object at sentencing 3 regarding application of an ex post facto law resulting in a forfeiture and default of the 4 claim, the Court finds that the issues involved in claim one are adequate to deserve 5 encouragement to proceed further, and that a Certificate of Appealability is appropriate 6 limited to claim one. See Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (en 7 banc) (the standard for granting a certificate of appealability is lower than that for 8 granting habeas relief, and a court must resolve doubts whether a certificate should issue 9 in the petitioner’s favor). 10 VI. CONCLUSION AND ORDER 11 The First Amended Petition for a Writ of Habeas Corpus (ECF No. 17) is 12 DENIED and the Court ISSUES a Certificate of Appealability limited to claim one of 13 the First Amended Petition. The Clerk of Court shall enter judgment accordingly. 14 15 16 IT IS SO ORDERED. Dated: September 1, 2023 17 18 19 20 21 22 23 24 25 26 27 28 32 21cv2046-JES (SBC)
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