United States District Court, N.D. California, San Jose Division
MARK R. THOMAS, Plaintiff,
KELLY SANTORO, Defendant.
ORDER DENYING MOTION FOR EVIDENTIARY HEARING [Re: ECF
LABSON FREEMAN United States District Judge
the Court is Petitioner Mark Thomas' motion for
evidentiary hearing in support of his habeas petition. Mot.,
ECF 17. This motion was filed after the Response to Petition
for Writ of Habeas Corpus but Petitioner has yet to file his
traverse. The Petition for Habeas Corpus seeks relief based
on Petitioner's claim of ineffective assistance of
counsel by failing to move in limine to exclude the
prosecution's wireless phone expert on Kelly
grounds and failing to call his own experts. Petitioner
argues that an examination of the defense trial attorney
would be necessary to evaluate his ineffective assistance of
counsel claims. Id. at 1; Supp. Points and
Authorities (“Mem.”) 7-8, ECF 17-1. Respondent
opposes the motion, contending that the threshold matter
under 28 U.S.C. § 2254(d) must first be assessed prior
to determining whether an evidentiary hearing is warranted.
Opp'n 2, ECF 21. Respondent also points out that
Petitioner fails to meet the statutory requirement for an
evidentiary hearing, including demonstrating that “a
factual predicate that could not have been previously
discovered through the exercise of due diligence.” 28
U.S.C. § 2254(e)(2)(A)(ii). For the reasons set forth
below, the Court DENIES the motion for an evidentiary
following facts were undisputed at trial. At around 9:30 p.m.
on March 23, 2009, two men entered a Burger King in San Jose.
Mem. 3. Dressed in black “hoodies, ” wearing dark
gloves and masks, the two men displayed handguns and ordered
the five employees to open a safe. Id. Thereafter,
the robbers exited out the front door with money in hand.
Id. While the robbery was underway, two witnesses in
a vehicle observed the robbery taking place inside and
followed the robbers as they make their escape. Id.
One of the witnesses saw the getaway car and contacted a 911
dispatcher, providing information regarding the route, a
description of the getaway car, and the license plate number.
Id. at 4.
the getaway car entered the ramp leading back onto Lawrence
Expressway, it suddenly stopped and the two robbers jumped
out and ran into a foliage area adjacent to the ramp.
Id. Shortly thereafter, the getaway car continued on
but the police eventually swarmed around the car and arrested
the driver, Ellamae Daigle. Id. Following the arrest
of Ms. Daigle, officers traveled to the scene where the two
robbers exited her vehicle and conducted a manhunt to no
avail. Id. at 4-5. Petitioner claims he was not one
of the robbers. See Id. at 3.
December 20, 2011, Petitioner was charged with five counts of
second degree robbery. Id. at 2. On January 23,
2013, a jury trial commenced in Santa Clara County Superior
trial, Petitioner's cell phone records were introduced,
indicating numerous calls before and after the robbery
between his cell phone and the telephone numbers for his
cousin, Gisiele Thomas, his sister, Mary Magee, and Ms.
Daigle, the getaway driver. Id. at 5. An expert, Jim
Cook, also testified based on his examination of
Petitioner's cell phone records. Id. Mr. Cook
testified that on the day of the robbery, Petitioner was in
the area of his residence and Ms. Daigle's residence
until 8:03 p.m., and was at the crime scene from 8:45 p.m.
through around midnight. Id. at 6. He further
testified that Petitioner placed four calls to and from Ms.
January 31, 2013, the jury returned verdicts of guilty on all
counts. Id. at 1. On July 1, 2013, Petitioner was
sentenced to “125 years to life consecutive to 75
raised on appeal to the state appellate court the same
ineffective assistance of counsel claims made in the instant
petition. However, the state appellate court denied him
relief in a reasoned decision. Ex. 8 to Response
(“Cal.Ct.App. Order”), ECF 15-4. The state court
first found that the cell tower tracking technique had been
widely accepted and admitted into evidence in courts
throughout the nation at the time of Petitioner's trial
in January 2013. Id. at 6-7. It then concluded that
if the trial counsel reasonably determined that challenging
the expert evidence would be futile, his failure to do so
would not constitute deficient performance. Id. at
7. It further noted that even assuming his trial
counsel's performance was deficient, Petitioner failed to
show prejudice in light of the other strong evidence in
support of the guilty verdict. Id. at 8-9.
support of his federal habeas petition, Petitioner seeks to
call the following witnesses at an evidentiary hearing: (1)
“his expert witness on historic cell phone record
analysis used to locate a particular cell phone at a
particular time”; (2) “two criminal defense
attorney's [sic] regarding effective cross examination of
cell phone tracking experts”; and, (3) his “trial
attorney . . . to inquire as to why he did not call a[n]
opposing cell phone tracking expert to the stand, why he
asked so few cross examination questions, why he did not
object to certain assertions by the prosecution expert and
what strategy he had to deal with the cell phone location
evidence in general.” Mot. 2.
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court cannot grant relief on
any claim adjudicated on the merits by a state court unless
(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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented