United States District Court, S.D. California
October 19, 2005.
LAFAYETTE CUNNINGHAM, Petitioner,
JAMES E. HALL, Warden, and Bill LOCKYER, Attorney General of the State of California, Respondents.
The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
ORDER (1) OVERRULING PETITIONER'S OBJECTIONS; (2) ADOPTING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; (3) DENYING
PETITIONER'S MOTION FOR JUDICIAL NOTICE; AND (4) DENYING PETITION
FOR WRIT OF HABEAS CORPUS
Petitioner Lafayette Cunningham ("Petitioner"), a state
prisoner appearing pro se, has filed a petition for writ of
habeas corpus challenging his conviction pursuant to
28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b)(1) and CivLR HC.2 of this
District, the Honorable Leo S. Papas, United States Magistrate
Judge, submitted a Report and Recommendation ("Report"),
recommending that the instant Petition be denied in its entirety.
Petitioner filed Objections to the Report. Respondent did not
file a Reply to Petitioner's Objections. Having fully reviewed
the matters presented, this Court OVERRULES Petitioner's
Objections, ADOPTS the Report, DENIES the Petition for writ
of habeas corpus relief and DENIES the Motion for Judicial
On March 18, 2001, the California Superior Court sentenced
Petitioner to state prison for nine years after being convicted
for possession and sale of cocaine. Lodg. No. 1 at 84. The
evidence presented that resulted in Petitioner's conviction
included an informant's testimony and a videotape from a camera
attached to the informant's clothing during the drug transaction.
Lodg. No. 2 at 2-3. On August 7, 2002, the California Court of
Appeal affirmed the judgment on direct appeal. Lodg. No. 2. The
California Supreme Court denied a petition for review on October
16, 2002. Lodg. No. 4. Petitioner's writ of habeas corpus filed
in the California Supreme Court was denied on July 14, 2004.
Lodg. No. 6. Petitioner filed the instant petition on August 27,
2004. Doc. No. 1. Respondent filed an Answer on November 24, 2004
(Doc. No. 12), and Petitioner filed a Traverse on February 2,
2005. Doc. No. 18. In his petition, Petitioner alleged: (1)
actual innocence; (2) ineffective assistance of counsel; (3)
prosecutorial misconduct and fundamental unfairness; (4)
erroneous denial of a Marsden motion seeking
self-representation; and (5) the cumulative affect of trial
errors caused a fundamentally unfair trial. Doc. No. 1.
Magistrate Judge Papas' Report, recommending that the instant
Petition be denied in its entirety, and that Petitioner's Motion
for Judicial Notice be denied, was filed on March 3, 2005. Doc.
No. 19. Petitioner filed his Objections to the Report on April 1,
2005. Doc. No. 20. No Reply to the Petitioner's Objections was
1. Legal Standard
a. Scope of Review of Magistrate Judge's Report and
The District Court's role in reviewing a Magistrate Judge's
Report and Recommendation is set forth in 28 U.S.C. § 636 (b)(1).
Under this statute, the District Court "shall make a de novo
determination of those portions of the report . . . to which
objection is made," and "may accept, reject, or modify, in whole
or part, the findings or recommendation made by the magistrate
[judge]." It is well settled, under Rule 72(b) of the Federal
Rules of Civil Procedure, that a District Court may adopt those
parts of a Magistrate Judge's Report to which no specific
objection is made, provided they are not clearly erroneous.
Thomas v. Arn, 474 U.S. 140, 153 (1985).
b. Scope of Review of Federal Habeas Petitions
Federal habeas review is granted only if the state court's
denial of relief: (1) resulted in a decision that was either
"contrary to," or was an "unreasonable application" of, "clearly
established federal law" as set forth by the United States
Supreme Court; or (2) was based on an "unreasonable
determination" of the facts in light of the evidence presented in
the state court proceeding. See 28 U.S.C. § 2254.
The Magistrate Judge's Report found that Petitioner is not
entitled to habeas relief as to any claim presented by the
Petitioner. Furthermore, the court found that Petitioner failed
to make a sufficient showing in regards to his request to expand
the record with his Motion for Judicial Notice. Report at 31.
Therefore, the Magistrate Judge recommended that both the
Petition and the Motion for Judicial Notice be denied. On April
1, 2005, Petitioner filed an Objection to the Magistrate Judge's
After reviewing Petitioner's Objection, the Court finds that
Petitioner does not specifically object to the Magistrate Judge's
findings and conclusions as to his first, third, or fifth claim.
However, the Court finds that Petitioner does specifically object
to the Magistrate Judge's findings and conclusions as to his
second and fourth claims and the recommendation that Petitioner's
Motion for Judicial Notice be denied.
a. Claims One, Three, and Five
As to claim one, the Magistrate Judge found that Petitioner
does not satisfy the requirements of demonstrating a claim of
actual innocence, under Schlup v. Delo, 513 U.S. 298 (1995),
because he relies only on evidence which was either actually
produced at trial or was available at trial but not produced.
Report at 8. The Magistrate Judge further found that Petitioner
was attempting to present a freestanding claim of actual
innocence, which is not cognizable on a federal habeas Petition,
except perhaps in a capital case where there is no state avenue
open to process the claim. See Report at 8, citing Herrera v.
Collins, 506 U.S. 390 (1993). Thus, the Magistrate Judge found
that Petitioner's first claim fails. As to claim three, the Magistrate Judge found that Petitioner did not allege
prosecutorial misconduct of sufficient significance to result in
denial of his fundamental right to a fair trial. See Report at
16, citing Greer v. Miller, 483 U.S. 756 (1987). For example,
the Magistrate Judge found that "[t]he prosecution was under no
duty to discover the identity of the people in the yard and turn
that information over to the defense, or to independently
determine whether, in the prosecutor's opinion, the audio portion
of the videotape, which defense counsel could just as easily
listen to, contained exculpatory evidence." Report at 20.
Therefore, the Magistrate Judge found Petitioner's third claim to
be without merit. Report at 22. As to claim five, the Magistrate
Judge found that the cumulative error doctrine, under U.S. v.
Frederick, 78 F.3d 1370 (9th Cir. 1996), does not apply in that
there were no errors by the state court to accumulate. Report at
26. Furthermore, under the cumulative error doctrine, the
defendant is more likely to be prejudiced if the government's
case is weak. See Report at 26, citing Frederick,
78 F.3d 1370. The Magistrate Judge also found that the government's case
was not weak. Report at 26. Therefore, the Magistrate Judge found
Petitioner's fifth claim to be without merit. Report at 27. This
Court's independent review of the record reveals that the
Magistrate Judge presented a well-reasoned analysis of the first,
third, and fifth claims. Accordingly, this Court adopts the
Magistrate Judge's findings and conclusions that Petitioner is
not entitled to habeas relief as to his first, third, or fifth
b. Claim Two
Petitioner objects to the Magistrate Judge's findings regarding
his ineffective assistance of counsel contained in claim two.
Petitioner asserts that his counsel should have reviewed a
videotape that was recorded from a hidden camera on the
informant's clothing during the drug transaction, and
investigated two individuals on the videotape as possible
exculpatory witnesses to the drug transaction. Obj. at 8.
Petitioner reiterates his concern that the jury did not hear the
audio portions of the videotape. Obj. at 5. The jury viewed the
video, although it was difficult to watch because when it was
recorded it was hidden on the informant's body and swerved with
every movement. Lodg. No. 2 at 10. The jury also heard testimony
from experienced agents who had studied the video frame-by-frame
and testified that Petitioner was on the videotape. Id. The audio was not presented to the jury
because it was of insufficient quality to make a transcript
available to the jury, as required under a state evidentiary
rule. Lodg. No. 8 at 117-120.
To show ineffective assistance of counsel, the Petitioner must
show: (1) that counsel made errors so serious that defendant did
not receive `counsel' as guaranteed by the Sixth Amendment; and
(2) counsel's deficient performance prejudiced the defense. See
Report at 10, citing Strickland v. Washington, 466 U.S. 668
(1984). Claim two was presented to the state supreme court in a
habeas petition, which was denied without opinion. Lodg. No. 6.
Because there was no reasoned state court opinion on claim two,
the Magistrate Judge conducted an independent review of the
record to determine whether the state supreme court decision was
objectively reasonable. Delgado v. Lewis, 223 F.3d 976, 982
(9th Cir. 2000). The Magistrate Judge found that even if
Petitioner could show that counsel was deficient in failing to
identify and interview the two possible witnesses to the drug
transaction and failing to determine if the videotape had
adequate audio quality, Petitioner provided no information from
which the Court could find prejudice. Report at 13. Petitioner
was identified by a witness, the informant, who testified to
personally knowing the Petitioner. Report at 11-12. Petitioner's
allegation that counsel was deficient is based solely on
speculation that the two witnesses would have testified that
Petitioner was not the person who sold the informant drugs, and
speculation that the audio would have been understandable and
contained exculpatory evidence.
The jury was in the position to determine the credibility of
the informant's testimony and view the videotape to determine
whether the informant approached Petitioner or one of the other
individuals present at the time of the drug transaction.
Petitioner's speculation that exculpatory evidence could have
been provided by the audio from the videotape or from
interviewing the two individuals that were also present at the
time of the drug transaction is insufficient to establish that he
was deprived "of a fair trial, a trial whose result is reliable."
Strickland, 466 U.S. at 687. This Court's independent review of
the record and de novo review of the relevant law brings this
Court to conclude that Petitioner did not suffer from ineffective
assistance of counsel and is not entitled to habeas relief on
this claim. Accordingly, this Court adopts the Magistrate Judge's findings and conclusions that
Petitioner is not entitled to habeas relief as to his second
c. Claim Four
The Magistrate Judge recommends denial of claim four upon
finding that Petitioner's Marsden*fn1 motion was not
erroneously denied. Petitioner objects, asserting that the
Marsden motion was denied without conducting an adequate
inquiry. Obj. at 11-12. Petitioner alleges that the state trial
judge did not sufficiently question him at the Marsden motion,
which in turn denied Petitioner a fair trial and denied him the
right to represent himself, in violation of the Sixth and
Fourteenth Amendments. Id.
The Sixth Amendment requires that the trial court make an
inquiry into defendant's grounds for a Marsden motion. Schell
v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc); Hudson
v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982). Although the Sixth
Amendment "guarantees defendants in criminal cases the right to
adequate representation,  those who do not have the means to
hire their own lawyers have no cognizable complaint so long as
they are adequately represented by attorneys appointed by the
courts." Schell, 218 F.3d at 1025-1026, quoting Caplin &
Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989).
The transcript of the Marsden hearing was lodged by
Respondent (Lodg. No. 9), and carefully reviewed by the
Magistrate Judge, who determined there was no basis for
Petitioner's claim that his Marsden motion should have been
granted. Report at 24-25. In addition to the Magistrate Judge's
thorough analysis of claim four, the state appellate court issued
an opinion regarding claim four, and found that the trial court
did not abuse its discretion in concluding that Petitioner did
not make a sufficient showing to justify discharge of his
appointed counsel. See Report at 23-24. Claim four was
presented to the state supreme court in the petition for review.
Lodg. No. 3. That petition was denied by an order which stated:
"Petition for review DENIED." Lodg. No. 4. Because the state
supreme court did not articulate its rationale for denying claim
four, this Court applies the following rebutable presumption:
"Where there has been one reasoned state judgment rejecting a federal claim, later
unexplained orders upholding that judgment or rejecting the same
claim rest upon the same ground." Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991). Therefore, the opinion of the state appellate
court was reviewed as the last reasoned decision by the state
The state appellate court denied the claim after making
determinations that the trial judge thoroughly listened to and
considered Petitioner's reasons why he wanted new counsel. Lodg.
No. 2 at 4-5. Petitioner's chief complaint was that defense
counsel failed to obtain crucial information about the
informant's criminal history. Id. However, defense counsel was
aware of informant's prior drug conviction even though he had not
yet received a copy of her rap sheet, and the trial court
concluded that counsel was ready to proceed. Id. After an
independent review of the record and de novo review of the
relevant law, this Court finds no instances of ineffective
counsel and no basis for Petitioner's claim that his Marsden
motion should have been granted.
The adjudication by the state appellate court of claim four was
neither contrary to, nor involved an unreasonable application of,
clearly established federal law, and was not based on an
unreasonable determination of the facts in light of the state
court proceedings. Accordingly, this Court adopts the Magistrate
Judge's findings and conclusions that Petitioner is not entitled
to habeas relief as to his fourth claim.
d. Motion for Judicial Notice
Finally, Petitioner objects to the Magistrate Judge's failure
to expand the record by not granting his Motion for Judicial
Notice. Petitioner believes that the Magistrate Judge should have
obtained and listened to the audiotape and determined whether it
was audible. Obj. at 5-6. Petitioner also reiterates his belief
that a declaration by Elsa Haines should be lodged with the
Court. Obj. at 7. Petitioner alleges that Elsa Haines was a
witness to the drug transaction and could have provided
exculpatory evidence. Id. Petitioner states that he included
these items with the habeas petition he filed in the state
supreme court, and requests that this Court acquire and lodge
these records. Motion for Judicial Notice at 1-2.
As explained above, Petitioner has failed to demonstrate that
the audio portion of the videotape introduced at his trial was of
sufficient quality to understand or that it contains exculpatory evidence, and Petitioner fails to explain why he was
not presented with an adequate opportunity to review and
challenge the contents of the recordings at his trial. Petitioner
states that Elsa Haines' declaration would have placed a person
named "James" in the yard at the time of the drug transaction,
and that "James" and the informant had contact on the day in
question. Obj. at 7. Even if Elsa Haines' declaration contains
this information, it is not exculpatory. The informant testified
that Petitioner gave her the name James at the time of the drug
transaction, but that she already knew him prior to that incident
and knew him as Lafayette. Lodg. No. 8 at 60-62. The informant
further testified that many people do not use their real names on
the street. Id. As explained above, the jury was in the
position to evaluate the informant's credibility, and the
prosecution did not have a weak case. Therefore, the Court denies
Petitioner's Motion for Judicial Notice.
CONCLUSION AND ORDER
For the reasons set forth above, IT IS HEREBY ORDERED that the
Magistrate Judge's Report is ADOPTED in its entirety,
Petitioner's objection is OVERRULED, petitioner's motion for
judicial notice is DENIED and the instant petition is DENIED
IN ITS ENTIRETY.
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