United States District Court, C.D. California
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF
VALERIE BAKER FAIRBANK United States District Judge.
to 28 U.S.C. § 636, the Court has reviewed the Petition,
the other records on file herein, the Report and
Recommendation of the United States Magistrate Judge
(“Report”) and the Objections. Further, the Court
has engaged in a de novo review of those portions of
the Report and Recommendation to which objections have been
made. The Court accepts the findings and recommendation of
the Magistrate Judge.
Petitioner's Motion for Leave to Amend Grounds One
and Two After the Report was issued, Petitioner filed a
motion for leave to amend Grounds One and Two of his petition
for writ of habeas corpus (“Petition”). (Dkt. No.
64.) Petitioner explains that upon reviewing the Report, he
“recognized that the traverse contained inadequate
briefing with respect to ground one: (Insufficient Evidence)
and two: (Brady Violation).” (Motion at 2.)
Petitioner seeks to cure the inadequate briefing by amending
the Petition. (Id. at 2-3.)
petition for writ of habeas corpus must “(1) specify
all the grounds for relief available to the petitioner; (2)
state the facts supporting each ground; (3) state the relief
requested; (4) be printed, typewritten, or legibly
handwritten; and (5) be signed under penalty of perjury by
the petitioner or by a person authorized to sign it for the
petitioner under 28 U.S.C. § 2242.” Rule 2(c) of
the Rules Governing Section 2254 Cases in the United States
proposed amendments do not change the grounds for relief in
Ground One (insufficient evidence of dissuading a witness)
and Ground Two (Brady violation). (Petition at 19,
does not identify any new facts in his proposed amendments to
Grounds One and Two. Petitioner cites the same footage and
testimony. (Compare Petition at 19-25 & Amended
Reply, Dkt. No. 45 at 7-13 with Dkt. No. 64 at 4-8.)
The court reaches the same conclusion on Ground Two.
(Compare Petition at 26-30 & Amended Reply, Dkt.
No. 45 at 13-16 with Dkt. No. 64 at 8-11.)
Accordingly, Petitioner's motion for leave to amend
Grounds One and Two is DENIED WITHOUT PREJUDICE AS
UNNECESSARY. See Bonin v. Calderon, 59 F.3d 815, 846
(9th Cir. 1995) (affirming denial of leave to amend habeas
petition when proposed amendments were “duplicative of
existing claims”). This ruling does not preclude
Petitioner from raising any fact or argument in his proposed
amendments, all of which have been considered in connection
with Grounds One and Two.
Ground One: Dissuading a Witness
argues that there was insufficient evidence to support his
conviction for dissuading a witness, Mr. Bell. Petitioner
bears the burden of demonstrating that no rational trier of
fact could have agreed with the jury, and that the state
court's decision was objectively unreasonable.
Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam).
California Supreme Court summarily denied Ground One. (LD
11.) “[A] habeas court must determine what arguments or
theories . . . could have supported, the state court's
decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior
decision of this [Supreme] Court.” Harrington v.
Richter, 562 U.S. 86, 102 (2011). “[A] state
prisoner must show that the state court's ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
crime of dissuading a witness requires that the prosecution
prove four elements beyond a reasonable doubt: (1) Bell was a
witness or victim; (2) Petitioner, with the specific intent
to do so, prevented or dissuaded or attempted to prevent or
dissuade Bell from attending or giving testimony at any
trial, proceeding or inquiry authorized by law; (3)
Petitioner acted knowingly and maliciously; and (4) the act
of preventing, dissuading, or the attempt thereto, was
accompanied by force or by an express or implied threat of
force or violence upon the person or property of Bell.
(Report at 18); People v. Young, 34 Cal.4th 1149,
states that, at page 19 of the Report, the magistrate judge
appeared to misconstrue Bell's testimony about the
assault as testimony about the dissuading charge. On page 19,
the magistrate judge reviewed Bell's testimony at trial
that he did not want to testify, felt pressured when he spoke
to police and was afraid of being labeled a snitch. (Report
argues that the relevant evidence consists of Bell's
conflicting testimony about the attacks at the Twin Towers
jail and the courthouse holding cell; Bell's preliminary
hearing testimony; Officer Ortiz's testimony about these
altercations; and video of the altercation in the courthouse
habeas court considers “‘all of the evidence
admitted by the trial court, ' regardless whether that
evidence was admitted erroneously.” McDaniel v.
Brown, 558 U.S. 120, 131 (2010) (citation omitted). The
prosecution called Bell to testify at trial. Bell testified
that there was an altercation with Petitioner at the Twin
Towers jail on the day Bell testified at the preliminary
hearing. (4RT 916-17.) Bell did not want to answer any more
questions. (Id. at 917.) The morning of the
preliminary hearing, Bell was put in the same jail cell with
Petitioner and others. Bell and Petitioner got into an
altercation, pushing and shoving each other. They stopped; no
deputy broke it up. Petitioner had a bunch of papers,
including statements by Bell and Bell's brother.
(Id. at 931-35.) The next time Bell saw Petitioner,
they were in the courthouse holding tank with other inmates.
(Id. at 937.) They got into a fight. Petitioner said
he had paperwork that Bell had written a statement. Bell was
afraid because he did not want to be labeled as a snitch.
(Id. at 938-39.) Bell testified at the preliminary
hearing. Bell testified at trial that “if it was up to
me, I would walk out that door, but I can't.”
(Id. at 940.)
prosecutor questioned Bell about his prior testimony. Bell
had testified at the preliminary hearing that Petitioner
confronted him at the jail with paperwork and they got into a
“fistfight altercation.” (Id. at
942-43.) Petitioner said Bell snitched on him. (Id.
at 942.) Petitioner had shown him paperwork with Bell's
name and statements. Other inmates said they had seen the
paperwork. (Id. at 945.) Bell identified the
paperwork at the preliminary hearing. (Id. at
946-47.) Bell further testified that before the second
fistfight, Petitioner showed the paperwork, ...