United States District Court, C.D. California
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE
STEPHEN V. WILSON U.S. DISTRICT JUDGE.
The
Court has reviewed the Petition, records on file, and Report
and Recommendation of U.S. Magistrate Judge. See 28
U.S.C. § 636. On October 8, 2014, Petitioner, through
counsel, filed objections to the R&R, in which she
addresses only her claim that the trial court violated the
Constitution in refusing to sever her trial from codefendant
Matthew Toerner’s. As to her other claim, concerning
the admission at trial of prior acts of domestic violence,
she “rests on the arguments she made . . . in her
Reply” to the Answer to the Petition. (Objections at
7.)
On July
6, 2015, following the Ninth Circuit’s decisions in
Mitchell v. Valenzuela, 791 F.3d 1166, 1169-70 (9th
Cir. 2015) (holding that magistrate judge generally may not
deny motion to stay habeas petition), and Bastidas v.
Chappell, 791 F.3d 1155, 1164-65 (9th Cir. 2015)
(holding that magistrate judge may dismiss unexhausted claims
at petitioner’s request and deny pending motion to
dismiss as moot), the Magistrate Judge issued an order giving
the parties the opportunity to object to her withdrawn report
and recommendation of September 19, 2012, and orders of
October 11, 2012, and April 3, 2013. See id. at 1164
(when magistrate judge has denied stay, that order should be
construed as report and recommendation and parties should be
given opportunity to object to it). On September 1, 2015,
Petitioner filed objections to the Magistrate Judge’s
April 3 order as well as a related April 19 order and
requested a stay and abeyance under Rhines v. Weber,
544 U.S. 269 (2005). On September 28, 2015, Respondent filed
a response and opposition to the stay request, and on October
5 Petitioner filed a reply.
Petitioner’s
objections to the court of appeal’s and R&R’s
findings concerning the severance issue cannot prevail
because, as an initial matter and as explained in the
R&R, the Supreme Court has never held that denial of a
severance motion can violate the Constitution. (See
R&R at 21-23 (citing cases).) Thus, no “clearly
established Federal law” exists under which Petitioner
can find habeas relief. See § 2254(d)(1). In
any event, her objections do not materially affect the
analysis in the R&R even were habeas relief theoretically
available.
Petitioner
contends that the court of appeal unreasonably determined the
facts in finding that one of the victim’s neighbors
testified that a “period of time” - as is
necessary for a lying-in-wait allegation - elapsed between
when she heard a car drive up to the murder victim’s
house and when the shots that killed him were fired.
(Objections at 2-3.) This argument is fully addressed in the
R&R, and for the reasons stated in it, neither the court
of appeal nor the Magistrate Judge unreasonably concluded
that the neighbor’s testimony concerning the gap
between the two events - a minute or so - demonstrated the
existence of the necessary “period of time.”
(R&R at 27-28.) Indeed, Petitioner herself told the
police, in a statement that was played for the jury, that her
two codefendants were “parked outside of [the
victim’s] place . . . and . . . as soon as [the victim]
came out - [Toerner] walked to where his back was to them and
he put three shots in his back” (Lodged Doc. I, 4
Clerk’s Tr. at 84), essentially conceding that they
were lying in wait.
Petitioner
also contends that the Magistrate Judge erred in finding that
the neighbor testified that she saw Petitioner and Toerner
scoping out the victim’s house a couple of days before
the murder. (Objections at 3 (citing R&R at 26-27).)
Petitioner claims that the neighbor actually testified that
she saw the third codefendant, Shannon Butler, who pleaded
guilty, with Toerner before the killing, and that this is
apparent from the neighbor’s testimony about the
person’s blondish hair. (Id.) In fact, the
neighbor’s testimony as to which female defendant she
saw is not clear, but she did testify that she didn’t
make her photo-lineup identification based on hair color
because she “didn’t see much of” it.
(Lodged Doc. H, 6 Rep.’s Tr. at 932.) Still, it appears
from the testimony of the police detective who showed the
neighbor two photo lineups that she did in fact identify
Butler, not Petitioner, as having been outside the
victim’s house with Toerner on two occasions before the
shooting. (See Lodged Doc. H, 7 Rep.’s Tr. at
1088-90.) Accordingly, the Court does not accept that finding
of the Magistrate Judge. Nonetheless, for all the other
reasons stated in the R&R, the jury could reasonably have
found the lying-in-wait allegation against Petitioner even
without the admission of Toerner’s statement that he
and Butler waited 30 to 40 minutes.[1]
Finally,
Petitioner contends that the court of appeal unreasonably
determined that the nature of the sentence Petitioner faced
in light of the lying-in-wait allegation was not different
from what she faced without it, and therefore her trial
should have been severed from Toerner’s because the
special circumstance could not have been alleged without his
statement. As explained above, the lying-in-wait allegation
did not rest entirely on Toerner’s statement. But in
any event, for the reasons discussed in the R&R
(see R&R at 30-31), the court of appeal was not
objectively unreasonable in concluding that this factor did
not warrant severance.
As for
Petitioner’s supplemental objections, requesting a
Rhines stay and abeyance, she also cannot prevail.
The question before the Court is whether the Magistrate
Judge’s reasoning in her orders denying
Petitioner’s Rhines-stay request as to grounds
two and five of the Petition was flawed based on the record
at that time. See Bastidas, 791 F.3d at 1164
(“The court should determine de novo whether a
stay was warranted . . . at the time [petitioner] made his
motion, and may consider the magistrate judge’s order
as a report and recommendation, along with any objections
from the parties.”). Based on the record before her at
the time, the Magistrate Judge here clearly did not err, as
Petitioner had offered essentially no evidence or argument in
support of a stay. Petitioner’s subsequently appointed
counsel’s after-the-fact arguments are beside the
point.
But
even if the Court chooses to consider them, see Akhtar v.
Mesa, 698 F.3d 1202, 1208 (9th Cir. 2012) (court must
exercise discretion in determining whether to consider
arguments raised for first time in objections to magistrate
judge’s report and recommendation), Petitioner is not
entitled to a Rhines stay because grounds two and
five of the Petition are both “plainly
meritless.” See Rhines, 544 U.S. at 277.
Ground two, an ineffective-assistance-of-counsel claim
concerning counsel’s alleged failure to investigate, is
plainly meritless because Petitioner has not submitted any
declaration from trial counsel concerning his strategic
choices or indicated that she tried to obtain one and he did
not cooperate. See Gentry v. Sinclair, 705 F.3d 884,
899-900 (9th Cir. 2012) (as amended Jan. 15, 2013)
(ineffective-assistance-of-counsel claim fails when not
supported by affidavit of trial counsel), cert.
denied, 134 S.Ct. 102 (2013).
Petitioner’s
claim of actual innocence, ground five, also fails. As an
initial matter, the U.S. Supreme Court has never recognized a
freestanding actual-innocence habeas claim. See McQuiggin
v. Perkins, 133 S.Ct. 1924, 1931 (2013) (“We have
not resolved whether a prisoner may be entitled to habeas
relief based on a freestanding claim of actual
innocence.”). The Supreme Court has suggested, however,
that the threshold showing for any such claim would be
“extraordinarily high.” Herrera v.
Collins, 506 U.S. 390, 417 (1993); see also House v.
Bell, 547 U.S. 518, 555 (2006) (noting that
Herrera likely requires “more convincing proof
of innocence” than actual-innocence gateway standard
for overcoming procedural default under Schlup v.
Delo, 513 U.S. 298 (1995)). Petitioner has not met that
standard, as she presents no new evidence in support of her
actual-innocence claim and simply reargues the evidence
introduced during her trial. (See Supp. Objections
at 10 (arguing that Petitioner is “actually
innocent” based on codefendant’s trial
testimony); see also Pet. at 6 (same)); see
Schlup, 513 U.S. at 324 (requiring claims of actual
innocence to be supported by “new reliable evidence . .
. that was not presented at trial”). Even if Petitioner
relied on the one theoretically “new” piece of
evidence she has presented, her mother’s declaration
that Petitioner’s victim husband committed an act of
domestic violence (see Supp. Objections, Ex. E), the
claim would still be plainly meritless because the
mother’s testimony would not have made it “more
likely than not that no reasonable juror would have convicted
[Petitioner] in the light of the new evidence, ”
Schlup, 513 U.S. at 327, given the trial testimony
that Petitioner had repeatedly assaulted her husband in acts
of domestic violence before she had him killed, including by
stabbing him in the leg (see R&R at 32-40).
The
Court therefore accepts the findings and recommendations of
the Magistrate Judge except her factual finding that the
neighbor identified Petitioner as having been near the
victim’s house a couple of days before the murder. IT
IS ORDERED that the Petition is denied without leave to amend
and Judgment be entered dismissing this action with
prejudice.[2]
---------
Notes:
[1]Petitioner claims that the prosecution
“acknowledg[ed] that Toerner’s confession was the
basis for the lying-in-wait allegation” against
Petitioner. (See, e.g., Objections at 5.) In fact,
the prosecutor informed the Court that he planned to seek a
lying-in-wait penalty against Petitioner before the defense
had indicated whether Toerner would testify, stating that
although he had originally believed the viability of the
allegation would depend on whether Toerner’s statement
was admitted, he “modified [his] view on that” ...