ORDER ADOPTING REPORT AND RECOMMENDATION; AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
LARRY ALAN BURNS, District Judge.
Petitioner Grant Balderree, a prisoner in state custody, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to Magistrate Judge William Gallo for report and recommendation, pursuant to 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Judge Gallo issued his report and recommendation (the "R&R"), to which Balderree has filed objections.
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed.R.Civ.P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of 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). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." Id.
The background facts are taken from the R&R. Because most of them are uncontested, the Court repeats only the minimum here, to put its decision in context. On June 12, 2007, police sought to arrest Balderree pursuant to an arrest warrant. They waited in unmarked vehicles, including a silver SUV and a brown SUV, outside a residence in the City of La Mesa where they thought he was. When the officer driving the silver SUV decided someone may have identified him as a police officer, he left, and radioed for marked police vehicles to set up a perimeter. About 20 minutes later, officers in the brown SUV saw Balderree leave the residence and begin driving away. They followed him, and the officer in the silver SUV also returned. As Balderree drew within about 40 or 50 feet of the silver SUV, he turned around and began driving back towards where the brown SUV was. The officer driving the brown SUV positioned it at an angle to try to prevent Balderree from escaping, and the officer in the silver SUV activated police lights and the siren.
What happened next is the bone of contention. Witnesses testified that Balderree drove towards the gap between the front of the brown SUV and an unoccupied parked truck and accelerated through it, striking both vehicles and pushing the brown SUV out of the way. At trial, Balderree's counsel argued he had inadvertently struck the police vehicle while trying to drive past it. (This is the "inadvertent strike" defense.) Balderree's version of the facts, which he now urges, is that he was rammed by the brown SUV. (This is the "ramming" defense.)
Balderree was convicted of assault with a deadly weapon against a police officer, resisting a police officer, and vandalism resulting in damage exceeding $400. Balderree's petition raised four claims: ineffective assistance of trial counsel ("IAC"), a Brady violation resulting from video evidence prosecutors withheld, improper admission of prior high speed vehicular flight from police, and insufficient evidence It is unchallenged that the prosecution's theory of the case, if proved, would support convictions on all counts.
Balderree pursued habeas remedies through California's courts at the Superior Court, Court of Appeal, and Supreme Court level. The Court of Appeal's decision is the last reasoned decision, except as to one issue (discussed below) where the Superior Court's decision is the last reasoned decision.
Not all of Balderree's claims require a great deal of discussion, and the Court will address the most straightforward first. The R&R sets forth the legal standards and background for each claim, which the Court repeats here only as necessary for purposes of discussion.
Balderree's theory is that the unmarked police vehicles have dashboard cameras, and that police failed to turn over video of the incident in response to his attorney's request, in violation of Brady v. Maryland, 373 U.S. 83 (1962). The R&R correctly pointed out that the Brady claim and the IAC rest on contradictory allegations: the IAC claim rests, in part, on the assumption that his counsel failed to request the video recordings, while the Brady claim is seriously undermined, if not destroyed, if that is the case.
A more serious problem for Balderree is that it isn't even clear that the video recordings he seeks ever existed. He claims it is common knowledge that all black-and-white police units in the City of La Mesa are equipped with video devices. The R&R points out he doesn't have any evidence of this, and that even if the units were equipped with video devices, there is no evidence they were turned on. And even if they were turned on, there is no evidence they captured any useful information. The silver and brown SUVs were unmarked vehicles, and Respondent's uncontroverted evidence shows that unmarked police vehicles are not equipped with video devices. They deny they had any video evidence.
Balderree's objections claims that "there is a strong possibility that one or more [video devices in police units] captured some, if not all, of the accident." (Obj. to R&R, 16:22-24.) He asks the Court to hold an evidentiary hearing to find out if the units did have video devices and, if so, whether the video devices captured any footage of the accident. "In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Here, however, the hearing would be meaningless because Balderree has no evidence to present. All he has is his own speculation that a video recording of the accident might exist. Even accepting his allegations as true, he would not be entitled to relief.
What he actually seems to want is discovery, so that he can uncover evidence that would entitle him to a hearing. But habeas petitioners have no right to discovery in federal court. Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir. 2003) (en banc). Federal courts have discretion to grant discovery when certain conditions are met, id., but those conditions are not met here.
Improper Admission of Previous High-Speed Vehicular Flight from Police
The state trial court, relying on Cal. Evid. Code § 1101, ruled that evidence of two prior high-speed vehicular chases in which Balderree was involved were admissible, because they tended to prove absence of mistake, motive, and knowledge. Specifically, the prior chases were offered to show that Balderree's ramming the brown SUV was not a mistake, that he wanted to escape from them, and that he knew how police officers conduct vehicular pursuits. The R&R pointed out that there is no Supreme Court decision forbidding the admission of propensity evidence, and that the state court decision could not have been contrary to the Supreme Court's holdings. See 28 U.S.C. § 2254(d)(1).
Balderree objects that the evidence admitted against him was false, because one of the chases occurred when he was driving a Winnebago, and a Winnebago cannot travel very fast. This is a weak argument, and the state court's finding in support of admissibility was not unreasonable. Trying to evade police while driving a Winnebago would be a desperate and foolish act, but suspects wishing to flee police generally have little choice of vehicle and commonly make use of whatever is at hand or whatever they happen to be driving.
Balderree also argues that there must be some Supreme Court precedent forbidding the admission of prior bad acts evidence, but there he is wrong. See Jennings v. Runnels, 493 Fed.Appx. 903, 906 (9th Cir. 2012) ("[T]he Supreme Court has not held that propensity evidence violates due process.") In fact, under the circumstances the R&R describes, Balderree's two prior chases were not even admitted as propensity evidence. Rather, they were ...