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Thomas v. Santoro

United States District Court, N.D. California, San Jose Division

May 31, 2017

MARK R. THOMAS, Plaintiff,


          BETH LABSON FREEMAN United States District Judge

         Before 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 hearing.

         I. BACKGROUND

         The 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.

         When 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.

         On 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 Court. Id.

         At 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. Daigle. Id.

         On 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 years.” Id.

         Petitioner 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.

         In 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.


         Under 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 that adjudication:

(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 ...

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