The opinion of the court was delivered by: Honorable Dale S. Fischer United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition") and all of the records herein, including the attached Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"), petitioner's objections to the Report and Recommendation ("Objections"), and the Declaration of Kathryn A. Young ("Young Declaration") with attached exhibits submitted in connection with the Objections.*fn1 The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made. The Court concurs with and adopts the findings, conclusions, and recommendations of the United States Magistrate Judge and overrules the Objections.*fn2
Petitioner contends that the trial court violated several of his constitutional rights when it denied his mid-trial request for a reasonable continuance. (Objections at 2-22). At trial, Alejandro Esparza ("Esparza") testified that petitioner had been placed with Esparza in two different holding tanks while waiting to testify at petitioner's second trial, and that petitioner had essentially threatened Esparza in order to dissuade him from implicating petitioner at trial. (Objections at 3-4; RT 268-72). Petitioner alleges that on the same day the jury reached a verdict, the defense investigator was able to obtain statements from three inmates who allegedly had been in one of the tanks with Esparza and petitioner but had not heard petitioner make the alleged threats. (Objections at 4-5). The gravamen of petitioner's arguments in the Objections is that admission of Esparza's testimony as to petitioner's alleged threats was so prejudicial that the trial court constitutionally erred when it denied petitioner a "reasonable" continuance of "three business days" to permit defense counsel to investigate and present rebuttal evidence, specifically the statements from the three inmates.
Petitioner's conclusion that he is entitled to federal habeas relief, however, rests on several flawed assumptions. First, the record does not support petitioner's assertion that Esparza's testimony about the alleged threats was the "only difference" between a hung jury at petitioner's first trial and a conviction at the second. As petitioner recognizes, at petitioner's first trial, Esparza refused to answer any of the prosecutor's questions, so the prosecution presented evidence of petitioner's involvement in the shooting, in part, by introducing a tape recording and transcript of Esparza's oral statement to the police and a copy of Esparza's signed written statement. (RT 203-06; Petitioner Luis Manuel Landeros Castro's Additional Briefing (Docket No. 39) at 3-4). At petitioner's second trial, Esparza gave live testimony which included specific details about petitioner's involvement in the crime, and a statement that he had declined to answer the prosecutor's questions at the first trial because he had feared retaliation from petitioner. (RT 171-206).
Second, the record also does not support petitioner's assertion that testimony based on the statements from the three inmates who were allegedly with petitioner and Esparza in the holding tanks would necessarily refute Esparza's testimony about petitioner's alleged threats. As the Report and Recommendation correctly explains, even if these witnesses testified that they did not hear petitioner make the alleged threats, such testimony would not have established that the threats were never made.*fn3 (Report and Recommendation at 17-18, 19 n.7). Even so, as the Magistrate Judge correctly noted, given the damaging and specific nature of Esparza's testimony about petitioner's involvement in the crime, and the fact that defense counsel had used other effective methods to attack Esparza's credibility and to refute his testimony of intimidation, the failure to permit collateral impeachment on the issue of the alleged threats was unlikely to have impacted the jury's decision. (Report and Recommendation at 19-20).
Finally, even assuming, for purposes of analysis, that testimony based on the post-trial statements obtained from the three inmates may have impeached Esparza's credibility and/or refuted his testimony about petitioner's alleged threats, petitioner does not establish that the trial court's denial of a continuance violated his constitutional rights. Contrary to petitioner's suggestion, whether the denial of a continuance was arbitrary or unreasonable -- and thus violated due process -- is determined from the circumstances evident at the time of the denial, not from later developments or with the benefit of hindsight. See Ungar v. Sarafite, 376 U.S. 575, 589 (1964) ("There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.") (emphasis added).
Here, as detailed in the Report and Recommendation, when petitioner requested a continuance at trial, the possibility that an investigation regarding the alleged threats would have revealed any valuable information was speculative, and counsel declined to provide any estimate regarding the amount of time that would have been needed to conduct the proposed investigation. (Report and Recommendation at 17-19). In light of the record before the trial court at the time, the trial court's denial of petitioner's request for a continuance was not arbitrary or unreasonable.
Similarly, petitioner's other claims of constitutional error lack merit since they rely primarily on the same flawed assumptions the Court rejects above. Even so, as detailed in the Report and Recommendation, petitioner fails to demonstrate that any constitutional violation, to the extent one occurred at all, had a substantial and injurious effect on the jury's verdict. (Report and Recommendation at 20-24).
In short, petitioner fails to demonstrate that the trial court's denial of the request for continuance and the California appellate courts' affirmance of such a determination were objectively unreasonable.
IT IS HEREBY ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. Petitioner's renewed requests for discovery and for appointment of new counsel are denied.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Report and Recommendation, and the Judgment herein on counsel for petitioner and respondent.
LET JUDGMENT BE ENTERED ...