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Buchanan v. Beard

United States District Court, Ninth Circuit

May 29, 2013

RICHARD CHARLES BUCHANAN, Petitioner,
v.
JEFFREY BEARD, Secretary[1] Respondent.

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION AS MODIFIED; (2) DENYING PETITION (3) DENYING MOTION FOR AN EVIDENTIARY HEARING (4) DENYING MOTION TO EXPAND THE RECORD (5) GRANTING IN PART AND DENYING IN PART REQUEST FOR FACTUAL FINDINGS AND JUDICIAL NOTICE; and (6) DENYING CERTIFICATE OF APPEALABILITY

GONZALO P. CURIEL, District Judge.

I. INTRODUCTION

Presently before this Court is a First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"), filed by Richard Charles Buchanan ("Buchanan" or "Petitioner"). The matter was referred to United States Magistrate Judge Nita L. Stormes, pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Stormes issued a Report and Recommendation ("Report") on September 30, 2011, which recommended that the Court deny the Petition and deny Petitioner's Motion for an Evidentiary Hearing. Buchanan filed Objections to the Report on May 16, 2012. (ECF No. 112.) On June 12, 2012, Petitioner filed a Motion to Expand the Record. (ECF No. 117.) On April 15, 2013, Petitioner filed a "Motion for Leave to File Factual Determination and Judicial Notice." (ECF No. 120)

Having considered the Report and the Objections, as well as the material submitted by the parties, the Court ADOPTS the Report as modified, DENIES the Petition with prejudice, DENIES the motion for an evidentiary hearing, DENIES the request to expand the record, GRANTS IN PART AND DENIES IN PART Petitioner's motion for factual determinations and judicial notice, and sua sponte DENIES a certificate of appealability.

II. STANDARD OF REVIEW

The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Because objections were made, the Court reviews the magistrate judge's findings and recommendations de novo. 28 U.S.C. § 636(b)(1)(C); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

III. PROCEDURAL BACKGROUND

The Report accurately recounts the lengthy procedural history of Buchanan's case, and the Court therefore ADOPTS that portion of the Report in full. In short, Buchanan was convicted after a jury trial of possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)); transporting a controlled substance (Cal. Health and Safety Code § 11379(a)); possession for sale of a controlled substance (Cal. Health and Safety Code § 11378); possession of a controlled substance (Cal. Health and Safety Code § 11377(a)); making a criminal threat (Cal. Penal Code § 422); assault with a semi-automatic firearm (Cal. Penal Code § 245(b)); and kidnaping for ransom or extortion (Cal. Penal Code § 209(a)). (Lodgment No. 23, vol. 11 at 1621.) Buchanan was sentenced to 45 years-to-life plus ten years in prison. (Lodgment No. 24, vol. 4 at 901-02.)

Buchanan appealed his conviction to the California Court of Appeal and the California Supreme Court, both of which affirmed his conviction. ( See Lodgment Nos. 1-10.) Buchanan also filed petitions for writ of habeas corpus in the San Diego Superior Court and the California Court of Appeal, all of which were denied. ( See Lodgment Nos. 11-15.) In addition, Buchanan filed a petition for review of the denial of his habeas petitions in the California Supreme Court, which was denied. ( See Lodgment Nos. 16-18.)

Buchanan filed his original petition in this Court on February 22, 2010. (ECF No. 1.) The Court stayed the petition on July 23, 2010. (ECF No. 26.) The Court lifted the stay on October 4, 2010 (ECF No. 30) and Buchanan filed a First Amended Petition on December 9, 2010. (ECF No. 40.) Respondent filed an Answer on March 9, 2011, and Petitioner filed a Traverse on June 10, 2011. (ECF Nos. 51, 77.) Petitioner filed a Motion for Evidentiary Hearing on September 14, 2011. (ECF No. 99.)

On September 30, 2011, the Magistrate Judge issued a Report recommending the Petition and Motion for Evidentiary Hearing be denied. (ECF No. 101.) Petitioner filed Objections to the Report on May 16, 2012. (ECF No. 112.) Buchanan also filed a motion to expand the record on June 4, 2012. (ECF No. 117.) Finally, on April 15, 2013, he filed a request to file a motion along with a "Motion for Factual Determination and Judicial Notice." (ECF No. 120.)

IV. FACTUAL BACKGROUND

The Report correctly notes that this Court is required by 28 U.S.C. § 2254(e)(1) to defer to the factual findings made by the state appellate court. ( See Report at 2 (citing Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness)); see also Sumner v. Mata, 449 U.S. 539, 547 (1981) (stating deference is owed to findings of state trial and appellate courts); Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir. 1990) (holding factual findings of state trial and appellate courts are entitled to presumption of correctness on federal habeas corpus review).

The Report includes a summary of facts taken verbatim from the California Court of Appeal's opinion denying Buchanan's direct appeal of his conviction. In his Objections, Buchanan challenges the state court's summary of the facts related to the traffic stop. The Report quotes the appellate court, stating: "Officer Perry McIvor, a task force member, was concerned Torres' life could be in danger and contacted two patrol officers to make a traffic stop." (Report at 4.) Buchanan argues that Detective McIvor was not concerned for Torres' safety. (Obj. at 6-12.)[2] He states that there is "no documentation, police reports, etc., supporting the theory that police concerns for [Torres'] life or those of [Torres'] family members... were a focal point of [the] task force agents' action [on the day of the traffic stop]." (Obj. at 12.) He points to transcripts of radio communications between McIvor and other officers right before the stop, in which McIvor does not mention concern for Torres' safety. ( See Lodgment No. 12, Ex. 6 at 7-8.) In the transcript, there is discussion about basing the traffic stop on the fact that the license plate of the car was "barely hanging on." ( Id. at 2.) Buchanan has not overcome the presumption of correctness because there is ample evidence elsewhere in the record to support the state court's finding. McIvor testified at trial and at the suppression hearing that he was worried about Torres' safety and that he communicated these concerns to fellow officers who made the stop. ( See Lodgment No. 33, vol. 9 at 1025; Lodgment No. 27 at 79-80, 84.) This is sufficient to support the Report's factual summary. See Parke, 506 U.S. at 35-36. To the extent Buchanan appears to argue that McIvor testified untruthfully, his claim is discussed below in section V(B)(3)(a) of this Order.

Buchanan also objects to the use of the word "business" in the statement of facts - specifically, the portion which describes a recorded phone conversation during which "Brooks told Buchanan he had a connection' at Donovan that helped him with business in the prison and she was considering transferring to another institution because Triste' was threatening her and her children." ( See Report at 3.) Buchanan argues that the term "business" is an inaccurate translation of the phone conversation, which was in Spanish. The description of the conversation in the appellate court opinion, and quoted in the Report, is an accurate summary of the trial record. The transcript of the conversation states, "I have a person here, that, that, watches over the business I have here... And she has a problem with a person outside, a guy from... from... that goes by the name of Triste, some young guy." (Lodgment No. 21, vol. 1 at 21.) Buchanan has not overcome the presumption of correctness afforded state court factual findings. See Parke, 506 U.S. at 35-36. To the extent Buchanan argues the translation was inaccurate and rendered his trial fundamentally unfair, his objections are discussed in section V(B)(3)(b) of this Order.

The Court therefore OVERRULES Petitioner's Objections and ADOPTS the factual background as recited in the Report.

V. DISCUSSION

A. AEDPA Legal Standard

As a preliminary matter, the Report correctly notes that the current Petition is governed by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and that to obtain federal habeas relief with respect to claims which have been adjudicated on their merits in state court, Petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2). Those sections state:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

Buchanan does not specifically object to the standard set forth in the Report. He does, however, state that pro se pleadings must be construed liberally.[3] (Obj. at 13-14.) "A document filed pro se is to be liberally construed.'" Erickson v. Pardus, 551 U.S. (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal citations omitted). While it is true that "Pro se habeas petitioners may not be held to the same technical standards as litigants represented by counsel, " see also Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002), this does not alter the legal standard applied to federal habeas petitions under § 2254(d). Accordingly, the Court ADOPTS the legal standard set forth in the Report.

B. Analysis

As the Report notes, Buchanan raises eleven claims in his Petition: (1) the prosecution presented perjured testimony; (2) his car was stopped and searched in violation of the Fourth Amendment; (3) the prosecution presented false evidence as to what was said on some of the wiretaps; (4) the prosecutor failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (5) the trial judge exhibited bias; (6) there was excessive security imposed on him at the trial; (7) the prosecutor committed misconduct; (8) the trial court did not properly limit the scope of the gang expert's testimony; (9) trial counsel was ineffective; (10) appellate counsel was ineffective; and (11) the trial court improperly imposed a $10, 000 restitution fine. (Pet. at 6-16, ECF No. 40; Pet. Attach. C, ECF No. 40-1; Mem. of P. & A. Supp. Pet., ECF No. 40-2; Traverse, ECF No. 77.)

1. Procedural Default

The Report concluded that because the California Supreme Court presumably addressed the merits of claims one through seven, nine and eleven, those claims were not procedurally defaulted. (Report at 12-13.) Buchanan does not object to this finding. ( See Obj. at 17-18.)

Buchanan raised claims one through seven, nine and eleven in a petition for habeas corpus filed in the California Court of Appeal. ( See Lodgment No. 12.) The court denied the claims because Buchanan could have raised those issues on direct appeal, but did not. The appellate court cited In re Martinez, 46 Cal.4th 945, 956 (2009), In re Harris, 5 Cal.4th 813, 829 (1993) and In re Clark, 5 Cal.4th 750, 797-98 (1993). (Lodgment No. 15.) The rule applied by the appellate court is also known as the " Dixon rule, " under which a "defendant desiring to bring claims in a state habeas petition, must, if possible, have pursued the claims on direct appeal from his conviction." Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000) (citing In re Dixon, 41 Cal.2d 756 (1953)).

Buchanan next raised the same claims in a petition for review to the California Supreme Court. (Lodgment No. 16.) As the Report notes, that court then ordered Respondent to file a brief addressing whether Buchanan had "established a prima facie case for relief, such that this court should grant the petition for review." (Lodgment No. 17.) In his brief, Respondent argued that claims one through seven, nine and eleven were barred under Dixon. He also argued that Buchanan had failed to establish a prima facie case for relief as to the merits of the claims. ( See Lodgment No. 18 at 21-24.) The supreme court ultimately denied the petition for review without comment or citation of authority. (Lodgment No. 20.)

As discussed in the Report, this case is similar to Trigeuros v. Adams, 658 F.3d 983, 990 (9th Cir. 2011). In that case, the state superior court denied petitioner's habeas petition as untimely. A subsequent petition was denied by the appellate court, without citation. Id. at 986. Trigeuros then filed a petition with the California Supreme Court. That court requested informal briefing on the merits, and the respondent filed a brief addressing procedural bars as well as the merits. The California Supreme Court then summarily denied the petition without comment or citation. Id. The Ninth Circuit concluded that, under those circumstances, the petition had been denied on the merits because "the California Supreme Court had the timeliness question before it, and did not cite to cases involving a timeliness procedural bar." Id. at 990 (citing In re Robbins, 77 Cal.Rptr.2d 153, 959 P.2d at 340 n. 34 (1998)).

Like Trigeuros, here the state supreme court requested briefing on whether Buchanan had stated a prima facie case for relief. In its answer, the government argued that the claims were procedurally barred under Dixon and also that Buchanan's claims failed on the merits. The California Supreme Court's denial did not cite Dixon or any procedural bar. Thus, this Court presumes claims one through seven, nine and eleven were denied on the merits. See Trigeuros, 658 F.3d at 990.

The Court therefore ADOPTS the Report's conclusion that the claims are not procedurally barred.[4] Having found the claims are not procedurally defaulted, this Court also adopts the Report's finding that in addressing the merits of the claims, the appropriate standard of review requires the court to determine whether the state court's denial of the claims was contrary to, or an unreasonable application of, clearly established law. (Report at 16 (citing Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002)). In an abundance of caution, however, the Magistrate Judge reviewed the claims de novo, the applicable standard if the claims were found to be procedurally defaulted. Id. at 1167-68. ( See Report at 16-17.) To the extent the Report conducts de novo review of the claims, the Report is ADOPTED as MODIFIED to reflect the correct deferential standard of review.

2. Illegal Detention of Buchanan's Car (Claim Two)

In his Petition, Buchanan claims the state court erred in denying his motion to suppress evidence. He argues that his Fourth Amendment rights were violated when officers stopped and searched his car without a warrant or probable cause. (Pet. at 7, ECF No. 40; Pet. Attach. C at 9-12, ECF No 40-1; Mem. of P. & A. Supp. Pet. at 19-41, ECF No. 40-2; Traverse at 15-18, ECF No. 77.) The Report correctly set forth the applicable law. The Supreme Court has held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976); Woolery v. Arave, 8 F.3d 1325, 1328 (9th Cir.1993); see also Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) ("The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did, in fact, do so, or even whether the claim was correctly decided.") (citations omitted); Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990) (holding that California Penal Code Section 1538.5 provided opportunity in state court for "full and fair litigation" of Fourth Amendment claims) (quoting Stone, 482 U.S. at 481-82)).

Here, the record shows that Petitioner thoroughly litigated his search and seizure claim in a motion to suppress made pursuant to Penal Code section 1538.5. At the hearing, his attorney cross-examined detectives and argued for suppression, and the presiding judge carefully considered the motion before ruling. (Lodgment No. 27, vol. 3 at 71-120, 125-132.) Under California law, Petitioner could also have renewed the suppression motion before trial and could have challenged the denial of the motion on direct appeal, although Buchanan did not do so. See Penal Code § 1538.5(i). He did, however, raise the issue in a petition for habeas corpus to the state superior, appellate and supreme courts. ( See Lodgment Nos. 11-13, 15-16, 20.) Thus, Petitioner was afforded the full and fair opportunity for litigation contemplated by Stone. See Gordon, 895 F.2d at 613-14.

In his Objections, Buchanan asserts "no California court has provided Petitioner the necessary facilities and procedures and adequate inquiry.'" (Obj. at 20.) He states that the superior court denied his claim because he failed to provide "all available supporting evidence." ( Id. ) It is true that in its order denying Buchanan's Fourth Amendment claim, the superior court noted that Buchanan had attached only select portions of the suppression hearing transcript and that the claim was denied for failure to provide a complete record of the proceedings, which were available to Buchanan. (Lodgment 11 at 8.) But the court nonetheless went on to address the merits of Buchanan's claim at length and concluded that probable cause supported the stop. ( Id. at 8-10.) The court also addressed Buchanan's assertion that McIvor testified untruthfully about the circumstances leading up to the traffic stop. ( See id. at 14-15.) Buchanan then presented the claim to the California Court of Appeal and the California Supreme Court. Thus, he was provided an opportunity to litigate his claim. See Ortiz-Sandoval, 81 F.3d at 899.

Buchanan also argues in his Objections that his Fourth Amendment claim is not precluded by Stone because he was denied effective assistance of counsel at the suppression hearing. (Obj. at 13, 20.) Buchanan is correct that Stone v. Powell does not bar consideration of a claim that a trial attorney rendered ineffective assistance of counsel in litigating a Fourth Amendment claim. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). The Magistrate Judge addressed Petitioner's ineffective assistance of counsel claim in her Report and this Court will address his Objections in section V(B)(9)(d) of this Order. Accordingly, the Court OVERRULES Petitioner's Objections and ADOPTS the Report's findings and conclusions as to claim two.

3. Use of Perjured or False Testimony (Claims One and Three)

Buchanan claims the prosecutor presented perjured or false testimony at trial. He alleges that Detective McIvor made several false statements at a pretrial hearing and at trial, and that the prosecutor also presented inaccurate translations of the wiretapped phone calls. (Pet. at 6, ECF No. 40; Pet. Attach. C to Pet. at 6-8, ECF No. 40-1; Mem. of P. & A. Supp. Pet. at 4-18, ECF No. 40-2.) The last reasoned decision addressing these claims is the superior court's denial of Buchanan's habeas petition. ( See Lodgment No. 11.) The Report reviewed the claims de novo. However, because this Court concludes the claims are not procedurally defaulted, it reviews the claims to determine whether the state court's denial of them was contrary to, or an unreasonable application of, clearly established law. See Williams, 529 U.S. 362, 403 (2000); see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). In that regard, the Report is MODIFIED.

The Report correctly sets forth the applicable clearly established Supreme Court law. (Report at 17.) "The knowing use of perjured testimony by a prosecutor generally requires that the conviction be set aside." Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (citing United States v. Agurs, 427 U.S. 97, 103 (1976)). "The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Napue v. People of the State of Illinois, 360 U.S. 264, 269 (1959). However, the presentation of conflicting versions of events, without more, does not constitute knowing presentation of false evidence. United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002). To prevail on such claims, three things are required: (1) the testimony or evidence must be false, (2) the prosecution must have known or should have known it was false, and (3) the false testimony must be material. See Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc) (citing United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)). To establish materiality, a petitioner must show a "reasonable likelihood that the false testimony could have affected the judgment of the jury." Jackson v. Brown, 513 F.3d 1057, 1076 (9th Cir. 2008) (quoting Hayes, 399 F.3d at 985).

a. McIvor's Statements Concerning the Stop

Buchanan alleges McIvor made several false statements at the suppression hearing, and at trial, concerning the stop of his vehicle. The superior court addressed these claims and denied them, stating:

[Petitioner asserts] that a detective testified to the existence of a telephone conversation that never existed, fabricated the existence of a hanging license plate on Petitioner's vehicle as a pretext for the traffic stop, and misrepresented circumstances surrounding the initial contact with Petitioner following the traffic stop. Petitioner fails to demonstrate that the telephone call referred to did not [take place]. Even if the detective was mistaken regarding the existence of the call, Petitioner fails to demonstrate the call is material to the defense or otherwise relevant.... [Furthermore, ] this court has already ruled that reasonable suspicion existed for the traffic stop. A hanging license plate was not asserted as a basis for that stop. Regarding the claim a detective misrepresented circumstances surrounding the initial contact, the court need not accept Petitioner's uncorroborated statement. ( In re Alvernaz (1992) 2 Cal.4th 924 at p. 938.) Even assuming the truth of Petitioner's description of events, he fails to make a prima facie showing that the detective's testimony was improperly admitted or unfairly prejudicial.

(Lodgment No. 11 at 14.)

As the Report found, McIvor testified at trial that some time before August 25, 2004, he learned through wiretap conversations that a person by the name "Triste"[5] was "interfering with Mexican Mafia business." (Lodgment No. 33 at 1025.) McIvor believed that "Triste" might be a person named Jesse Gutirres, who was on parole. ( Id. at 1026.) On August 25, 2004, McIvor learned from wiretaps that Jessica Chavez had contacted Buchanan to complain about being harassed by someone named "Triste." (Lodgment No. 33, vol. 9 at 1027.) Buchanan was upset that Triste had disobeyed a direct order, and drove with another individual to Chavez's house. ( Id. at 1028.) When Buchanan left Chavez's house, McIvor believed he was headed to see Triste. Other members of the surveillance team saw Buchanan and an individual later identified as Parraz, arrive at a house, and go inside. Team members believed Triste was also inside the house. ( Id. at 1069.) Buchanan and Parraz, came out some time later with a third man, who McIvor believed to be Triste. The three men got into Buchanan's car and left. ( Id. )

While on surveillance, McIvor passed their car at some point and was able to look inside. ( Id. at 1032.) He saw who he believed, based on his physical appearance, to be Gutirres, "reaffirming [his] belief that [he] had the right Triste." ( Id. at 1032.) He testified that he was concerned for Triste's safety based on what he knew from the wiretaps. ( Id. at 1068.) He told Officer Nunez the car would have to be stopped, because of the threat. He testified that he also told Nunez that he believed there was a "parolee at large" in the car and that, if possible, the car should be stopped without disclosing the existence of the wiretaps, so as not to jeopardize the rest of the ongoing investigation. ( Id. at 1033-34.)

As an initial matter, the Magistrate Judge properly noted that to the extent Petitioner claims that Officer McIvor's purported false testimony improperly caused the court to deny the suppression motion and allow the use of unlawfully seized evidence at Buchanan's trial, the claim is not cognizable on federal habeas corpus review. (Report at 17 fn. 5, 26-27.) As discussed in section V(B)(2) of this order, federal habeas review is unavailable as to his claim that McIvor's purported false testimony led to the wrongful denial of the motion to suppress. See Moormann v. Schiriro, 426 F.3d 1044, 1053 (9th Cir. 2005) (finding that claim challenging validity of search was barred by Stone where petitioner raised issue in pre-trial evidentiary hearing, but argued on habeas review that state court's factual findings were not supported by the evidence); see also Carr v. Runnels, No. C 03-1369 PJH (PR), 2007 WL 133971, at *4-5 (N.D. Cal. Jan.16, 2007) (holding that petitioner's allegation that perjured testimony was offered at preliminary hearing did not affect adequacy of hearing procedures for litigation of Fourth Amendment claim and did not alter conclusion that Stone v. Powell applied). Therefore, only statements made a trial are relevant to this Court's inquiry.

The state court's denial of Buchanan's perjury claims was neither contrary to, nor an unreasonable application of, clearly established law. First, the Report properly found that Buchanan failed to show the prosecutor presented false testimony regarding when McIvor advised Nunez the car needed to be pulled over. (Report at 18-19.) There was some minor inconsistency in McIvor's testimony. At the preliminary hearing McIvor stated there were three people in the car when he told Nunez it needed to be stopped. At the suppression hearing, McIvor testified that he told Nunez a stop would be necessary when Buchanan and Parraz were on their way to pick up Triste. (Lodgment No. 27, vol. 3 at 81.) At trial, he testified that it was when the three were still inside the house that he advised Nunez that they would need to "scoop them up." (Lodgment No. 33, vol. 9 at 1071.)

Although there were slight discrepancies between McIvor's trial testimony and that of his preliminary hearing and suppression hearing testimony, this is insufficient to establish deliberate presentation of false testimony at trial. Petitioner has not established that any of the testimony was a deliberate lie, nor that it was the testimony at trial, as opposed to the other testimony, that was untrue. Inconsistencies in testimony alone are insufficient to establish that the testimony was perjured. See United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) ("The fact that a witness may have made an earlier inconsistent statement... does not establish that the testimony offered at trial was false); Zuno-Arce, 44 F.3d at 1423 (inconsistencies between testimony at trial and retrial not sufficient to establish presentation of false testimony).

Moreover, the Report found that even assuming the testimony was false, it was not material because there was no "reasonable likelihood that the false testimony could have affected the judgment of the jury." Hayes, 399 F.3d at 985. (Report at 19.) The majority of evidence against Buchanan came from the wiretaps and the testimony of Jessica Chavez and Torres. It is unlikely the jury's verdict would have been affected by evidence regarding when McIvor told Nunez that they would need to stop Buchanan's car (whether he did so while Buchanan and Parazz were on their way to Triste's house, or right before the three left the house, or right after they drove away).

Buchanan objects to this finding, stating that the Magistrate Judge erred "in interpreting and characterizing the, when' of it, in isolation, and applying Hayes standard (R&R at 19) to it." (Obj. at 22-23.) Petitioner argues that McIvor's purported false statements regarding the stop should be considered together because his testimony was "all over the board." ( Id. at 23.) In particular, he points to McIvor's trial testimony about the basis for the stop and argues it is contradicted by transcripts of task force radio transmissions (TAC3 talkgroup) between McIvor and other members of the task force. ( Id. at 25.)

The Magistrate Judge considered Buchanan's claims related to the TAC3 talkgroup transcript and concluded that, while McIvor made no explicit mention of a parolee at large, or fear for Triste's safety on the TAC3 talkgroup recordings, this does not show he testified falsely at trial. (Report at 19-21.) McIvor stated that he was in communication with other officers via his San Diego police radio, the task force radio, and cell phone. The TAC3 talkgroup transcript contains only task force radio communications. McIvor testified that he relayed the information to Nunez about the parolee at large and Triste's safety by cell phone.[6] (Lodgment 27, vol. 3 at 76, 80.)

The state court's denial of the claim was neither contrary to, nor an unreasonable application of, clearly established law. Nunez also testified at both the trial and the suppression hearing that McIvor called him and told him the car needed to be stopped because of concern for Triste, and that there was a parolee at large in the car. (Lodgment No. 27, vol. 3 at 36. Lodgment No. 33, vol. 9 at 970.) Nunez's partner, Officer Joel Beilstein, also corroborated the testimony. (Lodgment No. 32, vol. 8 at 892.) While there is nothing in the TAC3 talkgroup transcript about McIvor being concerned for Triste's safety, this alone does not establish that McIvor gave false testimony at trial or that, even if he did, the prosecutor knew it was false. United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (stating that the presentation of conflicting versions of events, without more, does not constitute knowing presentation of false evidence).

Wiretap conversations between Buchanan, Brooks, Chavez, Torres/Triste and others leading up to the stop, support McIvor's testimony that there was reason to be concerned for Triste's safety. Buchanan was clearly angry Torres had disobeyed a direct order. ( See e.g. Lodgment No. 21, vol. 1 at 115-17.) Based on information law enforcement had regarding Buchanan's status as a "Big Homie" in the Mexican Mafia, it was reasonable to believe that Torres' safety was in jeopardy when Buchanan went to see him. The Report properly concludes Buchanan has not shown the testimony was false, or that, even assuming it was, that it was material to the outcome. See Hayes, 399 F.3d at 985.

In his Objections Buchanan also argues McIvor's reference to a hanging license plate, heard on the TAC3 talkgroup recording, shows that he lied about his concern for Torres' safety. (Obj. at 10.) First, as the state court noted, the hanging license plate was not asserted as a basis for probable cause. (Lodgment No. 11 at 14.) Moreover, as discussed in the Report, McIvor's observation about the license plate on the dispatch recording does not establish he lied at trial. It was undisputed that officers were attempting to find other, valid bases for the stop, such as the belief Triste was a parolee at large or that the license plate was hanging down, in order to keep the existence of the wiretap a secret as long as possible. ( See Lodgment No. 27, vol. 3 at 127-28; see Lodgment No. 33, vol. 9 at 1034.) In addition, that there is no mention of fear for Torres' safety in the TAC3 talkgroup recordings (obj. at 11-12), does not contradict McIvor's testimony. And as discussed above, the wiretap recordings of telephone conversations that took place leading up to the stop, corroborate McIvor's testimony that he was concerned for Torres.

Buchanan also argues in his Objections that the Magistrate Judge erred when she failed to consider why McIvor did not immediately intervene when he learned from the wiretaps of an August 21, 2004 phone conversation, that a man named "Triste" might be in danger because he was harassing Chavez. (Obj. at 26.) At trial, however, McIvor never testified that he was concerned for Triste's immediate safety based on the initial August 21, 2004 phone conversation between Brooks and Buchanan. Nonetheless, McIvor did try to ascertain who Triste was after learning he might be interfering with Mexican Mafia business. (Lodgment No. 33, vol. 9 at 1025-26.) It was not until he learned of the August 25, 2004 conversations and Buchanan's meeting with Triste that McIvor became concerned for Triste's safety. ( Id. at 1027.)

Next, as the Report found, the TAC3 talkgroup transcript does not prove Buchanan's claims that McIvor lied when he stated that he told Nunez the people in Buchanan's car were likely armed and they would probably kill Triste. (Report at 21-22.) There is evidence in the wiretap transcripts which suggests Buchanan planned to be armed when he went to meet Triste. (Lodgment No. 27, vol. 1 at 134.) In a telephone conversation with an associate named Corrado, Buchanan stated he was going to meet Torres/Triste to talk. He added, "if he gets out of line well, uh... you know, anything goes.... We are prepared, no problem, you know?" (Lodgment No. 27, vol. 1 at 1345.) McIvor also knew that Triste had disobeyed a direct order from a "Big Homie" and based on his experience, the consequences for that were serious injury or death. (Lodgment No. 33, vol. 9 at 1086.) Thus, Buchanan has not shown McIvor's testimony was false. See Zuno-Arce, 44 F.3d at 1423. The state court's denial of this claim was neither contrary to, nor an unreasonable application of clearly established law. See Williams, 529 U.S. at 412-13.

Buchanan also argues in his Objections that McIvor never told Nunez that Buchanan's car needed to be pulled over. (Obj. at 22.) He claims that it was Agent Desarno who ordered the stop. Buchanan appears to also argue that it was Desarno (not McIvor) who specifically directed Nunez to initiate the stop. ( See P&A in Supp. Pet. at 11; see also Decl. in Supp. of Mot. at 13-14, ECF No. 112.) It is true that Agent Desarno was the first one on the TAC3 talkgroup transcript to state that the car needed to be stopped.[7] (Lodgment No. 12, Attach. C, Ex. 6 at 6.) As discussed above, however, there is testimony from McIvor, Nunez and Beilstein that McIvor was also communicating with Nunez via cell phone at around the same time.[8] Petitioner has failed to show the testimony was false. See Zuno-Arce, 44 F.3d at 1423. Even assuming, however, that it was Desarno and not McIvor who initially ordered the stop, Buchanan has not shown that it was material because there was no "reasonable likelihood that the false testimony could have affected the judgment of the jury." Hayes, 399 F.3d at 985. Testimony about which law enforcement officer directed the stop had little, if any, relevancy to the ultimate issues. To the extent Buchanan seeks to argue that it was relevant to the suppression motion, that claim is foreclosed by Stone v. Powell , for the reasons discussed above. As the Report concluded, the testimony of Chavez and Torres, and the wiretap transcripts provided bulk of the evidence against Buchanan.

Buchanan also argues in his Objections that the Magistrate Judge "errs using a call from Chavez to Buchanan, after the latter had left the house, to explain away McIvor's lie." (Obj. at 20; see also Report at 23.) While it is not entirely clear, it appears Buchanan is referring to McIvor's testimony presented at the suppression hearing, but not at trial. As discussed above, his claims of perjured testimony at the suppression hearing lead to denial of his motion to suppress, are foreclosed by Stone v. Powell. See Moormann, 426 F.3d at 1053. Even if it were not foreclosed, Buchanan would not be entitled to relief. McIvor testified at that hearing that Buchanan had placed a call to Chavez while inside the house with Triste. (Lodgment No. 27, vol. 3 at 102.) The Report concluded that McIvor's testimony that he knew Torres had not been harmed at the time of the stop, was supported by a wiretap recording of Buchanan telling Chavez "[he] was still with [him]." (Lodgment No. 21, vol. 1 at 123.) Buchanan asserts this call did not take place while they were inside the house. Wiretap recordings indicate that Buchanan told Chavez that he was driving during that particular conversation. However, this does not establish that McIvor testified falsely or that the prosecution knew it was false. United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) (stating that a witness' conflicting recollection of events does not establish that the testimony offered at trial was false); see also Geston, 299 F.3d at 1135 (mere inconsistencies in the evidence do not establish the knowing use of false testimony by the prosecutor). Even assuming McIvor was mistaken about the timing of that call, Buchanan has not shown prejudice. Torres testified that while inside the house Buchanan called Chavez, passed him the phone, and Buchanan told him to tell her "it's over... it's through." (Lodgment No. 31, vol. 7 at 723-24.) Buchanan has not shown that it was material because there was no "reasonable likelihood that the false testimony could have affected the judgment of the jury." Hayes, 399 F.3d at 985.

In his Objections, Buchanan argues that "if the judge and/or jury [had] known of McIvor's false statements they could/would have weighed in petitioner's favor at the suppression of evidence hearing and, at trial, in case." (Obj. at 26.) Buchanan also points to California Evidence Code § 780.[9] First, as discussed above, Buchanan has not shown the testimony was actually false or that, assuming it was, that the prosecutor knew it was false. See Zuno-Arce, 44 F.3d at 1423. To the extent Buchanan is again arguing that perjury resulted in the denial of his suppression motion, that claim is foreclosed. As such, his allegations related to testimony given only at the suppression hearing (and not at trial) ( see Report at 22-23) are not cognizable. Moormann, 426 F.3d at 1053. Moreover, nothing prevented the jury from evaluating McIvor's credibility at trial, pursuant to California Evidence Code section 780. In fact, the jury instructions included language similar to section 780. (Lodgment No. 22, vol. 2 at 248-49.)

Finally, Buchanan argues the Magistrate Judge "errs in downplaying McIvor perjury claim." (Obj. at 20.) He argues that when viewed together, the purported instances of false testimony amounted to prejudice because McIvor's credibility would have been damaged. As noted above, the state court concluded that "even assuming the truth of Petitioner's description of events, he failed to show a reasonable probability a different outcome would have resulted at trial." (Lodgment No. 11 at 15.)

The state court's conclusion was neither contrary to, nor an unreasonable application of, clearly established law. As the Report discussed, the case more or less depended on the testimony of Chavez, Torres and the wiretap recordings. Among other things, Chavez testified that she had discussed her continuing problems with Torres with Brooks and Buchanan on August 25, 2004. She told Buchanan that Torres was threatening to report Chavez's relationship with Brooks to correctional department officials. (Lodgment No. 21, vol. 1 at 95-97.) Buchanan called Chavez on her cell phone later that day, and at the same time, Torres called her home phone. Chavez put Torres on speaker phone so Buchanan could hear what Torres was saying. Buchanan yelled "Triste, " followed by angry profanity. Buchanan told Chavez to hang up and that he and another individual would come talk to her. Chavez knew Buchanan was a "big homie" in the Mexican Mafia and she assumed Torres would be beaten for disobeying his orders. (Lodgment No. 30, vol. 6 at 533-38.)

Eventually, Buchanan and Parraz arrived at her house. While they were there, Torres called Chavez and Buchanan took the phone from her and said, "This is the Big Homie. Man to man I want to talk to you." Chavez believed Torres gave Buchanan his address. ( Id. at 543-44.) She stated that when she did not hear from Torres later that day, she was worried because she wanted him to leave her alone but she did not want him killed. Finally, she got a call from Buchanan, who then put Torres on the phone. Torres told her he would not bother her anymore. ( Id. at 549-51.)

Torres testified that when he received a call from Brooks and Buchanan, telling him to leave Chavez alone, he did not believe it was the Big Homie Buchanan. If he had, he would not have disobeyed his direct order because he knew that if he did, he would be "smoked." (Lodgment No. 31, vol. 7 at 698-702.) On August 25, 2004, Torres called Chavez and she put Buchanan on the line. Buchanan asked Torres if he knew who he was, and stated, "I'm the man you gave your word to." ( Id. at 710.) He gave Buchanan the address where he had been staying. After the call, he began to worry that this probably was the Big Homie, and he was "pretty sure he was going to get smoked." When Buchanan and Parraz arrived, Buchanan asked Torres if he knew "what happens if you give a big homie your word and don't keep it." ( Id. at 716.) At one point Parraz flashed a gun and said "if your family wasn't here, I'd smoke you." ( Id. ) Torres stated he believed he had been "green-lighted" for disobeying Buchanan. ( Id. at 740.)

After searching Torres' pockets and establishing he did not have any money, Buchanan and Parraz asked if he had any connections they could tax.[10] Torres called a connection and made plans with to meet him to set up a tax arrangement, hoping that by doing so, Buchanan would show him leniency. ( Id. at 724.) The three left to meet Torres' connection.

This is just a brief portion of the testimony of Chavez and Torres but it illustrates the case against Buchanan was dependent on them. Their testimony is corroborated by the numerous wiretap conversations. As for the gun and drug possession charges, Nunez testified that after the stop, Buchanan refused to stand up and kept his knees pressed together as he fell out of the car. Nunez later discovered a gun in Buchanan's shorts. ( Id. at 989-90.) Methamphetamine was found inside a fanny pack Buchanan was wearing. ( Id. at 1045.) There was also videotape of Nunez handcuffing Buchanan, searching him, and finding the gun. ( Id. at 988-91.)

In sum, even considering all of the purported false statements collectively and assuming they were false, Buchanan has not shown "a reasonable probability that... the result of the proceeding would have been different.'" Jackson v. Brown, 513 F.3d 1057, 1076 (9th Cir. 2008) (emphasis omitted). Even if the jury had been convinced that McIvor committed perjury with regard to some of the specifics of the stop, the result would have been the same. There was more than enough evidence supporting the charges and McIvor's alleged testimony about the stop of Buchanan's car would not have undermined that evidence in any significant way. See Sivak v. Hardison, 658 F.3d 898, 914 (9th Cir. 2011). The state court's conclusion that Buchanan failed to show prejudice is not contrary to, or an unreasonable application of, clearly established law. Williams, 529 U.S. at 412-13.

Therefore, to the extent the Report reviews Buchanan's claims de novo, it is MODIFIED. In all other respects, the Court OVERRULES Petitioner's Objections and ADOPTS the findings and conclusions of the Report. The claim is DENIED.

b. Translations of Wiretap Conversations

Buchanan argues inaccurate translations of wiretap conversations were admitted into evidence. (Pet. at 6, ECF No. 40; Pet. Attach. C at 6-8, ECF No. 40-1.) As the Magistrate Judge noted, Buchanan points to two specific phrases in his Petition, both of which are found in the transcript of an August 21, 2004 wiretapped telephone conversation between Buchanan and Brooks ("tape 776"). (Report at 24-25; see also Pet. at 8, ECF No. 40.) First, in the transcript Brooks states, "I have a person that, that, that, watches other the business I have there." (Lodgment No. 21, vol. 1 at 21.) Buchanan claims the term "business" is an incorrect translation. Instead, he argues it should read, "I have a person here that takes care of me with what I got, her issues." ( See Lodgment 12, Attach. C, Ex. 17 at 9.) In the other instance referenced in the Petition, the transcript reports Brooks telling Buchanan, "I wanted to talk to him first and if, if he doesn't behave all right, he's fucked, and then I'll let ...


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