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Barnett v. Kernan

United States District Court, S.D. California

August 29, 2017

BRIAN KEITH BARNETT, Petitioner,
v.
SCOTT KERNAN, Secretary, Respondent.

          ORDER (1) REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; (2) ORDER DENYING PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING; AND (3) ORDER DENYING PETITIONER'S REQUEST FOR JUDICIAL NOTICE [ECF NOS. 1, 28]

          Hon. Barbara L. Major, United States Magistrate Judge

         This Report and Recommendation is submitted to United States District Court Judge Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On February 1, 2017, Petitioner Brian Keith Barnett, a state prisoner who is proceeding pro se and in forma pauperis, commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254. ECF No. 1 (“Pet.”). Petitioner challenges his conviction for assault with a deadly weapon. Id. at 2; see also ECF No. 8-1 (“Answer”) at 12.

         This Court has considered the Petition, Answer, Traverse [ECF No. 12 (“Traverse”)], Supplemental Traverse [ECF No. 22 (“Supp. Traverse”)], and all supporting documents filed by the parties. For the reasons set forth below, this Court RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be DENIED.

         FACTUAL AND PROCEDURAL BACKGROUND

         The following facts are taken from the California Court of Appeal's April 29, 2016, opinion in People v. Barnett, Appeal No. D065324:

         Prosecution Evidence

On the night of June 21, 2013, [Petitioner] and Frederick Morao had a loud argument at a residential hotel in San Diego. The two men were friends and [Petitioner] was temporarily staying with Morao. Morao had purchased methamphetamine from [Petitioner], and both had consumed “a lot” of “crystal meth” that day. The men argued about money [Petitioner] claimed Morao owed him for the methamphetamine.
Earlier in the day, Morao had witnessed Barnett hit Devon Clements (a friend of Morao's), with sufficient force to knock him down. During the argument, Morao told [Petitioner] “I ain't Devon. You ain't going to hit me like Devon.” One of the two men said something like “We'll handle this, ” or “[l]et's hit the corner” and Morao walked away from the hotel. [Petitioner] followed behind. Morao carried the bottom part of a pool cue (approximately two feet long and two inches in diameter) concealed inside his sweater. He had it with him because he knew [Petitioner] carried weapons, including a serrated knife with a four-to-five-inch blade. When [Petitioner] got close to Morao, Morao turned around, thinking [Petitioner] was going to “swing, hit me some kind” and “swung too, ” swinging the pool cue at [Petitioner]. [Petitioner] was able to disarm Morao of the pool cue before being struck. Morao then began throwing punches at [Petitioner], many of which landed.
Clements followed slowly behind the men and saw [Petitioner] holding a cylindrical object about a foot and a half long during the fight. Clements initially stated he did not see [Petitioner] use the object on Morao, but later testified it did make contact with Morao. Clements originally described the object as looking like a rolling pin and testified it was wider than the pool cue. Morao felt blows to his chest and stomach during the fight. The brief fight stopped when Morao felt like he “got enough hits in, ” and Morao and [Petitioner] separated. [Petitioner] walked away limping and yelling something. Morao joined Clements and said something like “I got him.” The two men gave each other “daps, ” a celebratory gesture. Morao and Clements then walked back toward the hotel and Morao realized he was bleeding heavily. After Morao reached the lobby, the hotel security guard called an ambulance. Morao lost consciousness after the paramedics arrived and the next thing he remembered is waking up after surgery. Morao remained in the hospital for a week.
Morao had multiple stab wounds, at least one to the left side of his stomach and one on his back. A doctor told Morao there were 14 stab wounds. Clements also recalled hearing from a police officer that Morao was stabbed 14 to 16 times and might not make it. In addition, the investigating officer, Detective Tews, recalled hearing from police officers at the scene that Morao was stabbed 14 times, but was unable to personally verify the number.
Detective Tews interviewed Morao. Morao initially told Detective Tews he had been jumped by two Hispanic men. Morao had prior felony convictions including theft, possession of methamphetamine for sale, petty theft with a prior, and robbery. He used his “felon mentality” when first speaking with the police. After learning about surveillance video of the incident, Morao told Detective Tews the truth about what happened, explaining he made up the initial story because he did not want to be a rat.
Detective Tews also interviewed [Petitioner]. [Petitioner] denied stabbing Morao. [Petitioner] told Detective Tews Morao tried to hit him with a pool cue, he took the cue away, Morao ran and was then attacked from behind by a “Hispanic dude.” [Petitioner] admitted he always carried a knife and he had a black, foot-long, serrated knife with him at the time of the incident, but denied using the knife on Morao.
On June 21, 2013, Morao was either 5'3” or 5'7” and weighed around 205 or 210 pounds. [Petitioner] is significantly taller than Morao. Morao felt threatened by the size disparity due to [Petitioner's] advantage of height and “reach.” Morao was very soft spoken and nervous during [Petitioner's] cross-examination. Morao does not like weapons, does not know anything about knives, and does not need a knife. However, [Petitioner] had promised to get Morao a knife.

         Section 1118 Motion for Acquittal

At the close of the prosecution's case, [Petitioner] moved for acquittal under section 1118. He argued there was insufficient evidence to show he used a knife. He further argued evidence showed Morao had a concealed pool cue, which he attempted to strike [Petitioner] with, [Petitioner] took the cue away from him and Morao swung and hit [Petitioner] 20 times. [Petitioner] asserted he “had an absolute right to defend himself” under those circumstances. The trial court denied the motion, noting although evidence established Morao (the smaller individual) initially had a pool cue, any force Morao used after being disarmed “did not justify the deadly force that [Petitioner] used when he stabbed him in the gut.” The court therefore ruled there was sufficient evidence for a reasonable jury to find [Petitioner] guilty.

         Defense Evidence

[Petitioner] represented himself. [Petitioner] first called Dr. Murphy, a forensic psychologist, who testified about the fight or flight syndrome and similar responses of people using crystal methamphetamine. [Petitioner] also called San Diego Police Officer Carlos Munoz (Officer Munoz), who had written a report of the incident stating Morao was stabbed 14 times. Hospital staff had informed Officer Munoz of the 14 stab wounds, but the specific source was not identified in his report and he could not recall who it was. Officer Munoz did not take pictures of any of the stab wounds.
[Petitioner] took the stand. He described his relationship with Morao as one in which Morao depended upon him to “help him out” by supplying crystal methamphetamine and testified he would come from various locations in Southern California, at his own expense, to supply Morao. The fight with Morao occurred because Morao was angry that [Petitioner's] friends would not give him a cheap price on illegal drugs. When Morao said “Let's go handle it, ” [Petitioner] anticipated a fistfight and believed he “ain't got not problem, ” as he was “fixing to whip this little chump's ass, you know, for crossing me up, plain and simple.” [Petitioner] was not worried about fighting the younger Morao, a “guy in his prime, ” because “[m]ost youngsters these days, they don't even know how to sling the fist. They can't even fight. You know, I [was] brought up using my hands to defend myself.”
[Petitioner] was attacked by Morao and “just defended [him]self.” After [Petitioner] took the pool stick away from Morao, Morao ran and [Petitioner] did not pursue him. At the time, [Petitioner] saw Clements was following behind, and thought he was going to try to help Morao, but was not worried about being “double team[ed]” by the men. [Petitioner] had a gun in one of his back pockets during the incident, but had no intention of using it. [Petitioner's] “big ol' knife” was in his other back pocket. [Petitioner] was “hit in the nose” by Morao, and there was some bleeding.
[Petitioner] testified he used only his fists on Morao and did not stab him. Instead, Morao was stabbed by a Hispanic male after [Petitioner] disarmed him and Morao ran off into the street. After [Petitioner] took Morao's weapon away, Morao “turned around and he got stabbed.”

Lodgment 8 at 2-7 (internal footnotes omitted).[1]

         Following the trial, the jury found Petitioner guilty of assault with a deadly weapon. Id. at 2; Lodgment 3 at 168. The jury also found true that Petitioner personally inflicted great bodily injury upon Morao and personally used a dangerous or deadly weapon within the meaning of California Penal Code sections 12022.7(a) and 1192.7(c)(23). Lodgments 8 at 2; 3 at 168. On January 29, 2014, the trial court sentenced Petitioner to seventeen years in state prison. Lodgment 1-12 at 1883.

         On December 5, 2014, Petitioner appealed his conviction, arguing that the trial court committed reversible error by: (1) denying his motion for acquittal under section 1118.1 because there was insufficient evidence to find Petitioner did not act in self-defense, and (2) prejudicially instructing the jury regarding self-defense after an attacker is disabled or danger ceases (CALCRIM No. 3474). Lodgment 5. On April 29, 2016, the California Court of Appeal affirmed Petitioner's conviction. Lodgment 8. On June 3, 2016, the date of Petitioner's petition for review in the California Supreme Court, Petitioner reasserted the same claims raised in his appeal. Lodgment 9. On July 27, 2016, the California Supreme Court denied the petition for review without a statement of reasoning or citation to authority. Lodgment 10.

         On January 29, 2014, the date Petitioner was sentenced, Petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal arguing that (1) his Faretta rights to due process and equal protection were violated when the county jail made decisional and statutory law available via a “kiosk” separate from the desktop with a word processer and denied him access to confidential legal phone calls and black ink pens, and (2) the thumb drive and media disc provided by the prosecution did not function, he could not contact the court clerk to calendar a hearing or obtain sufficient copies of documents for service, and the prosecutor had denied receiving his motions. Lodgment 11. On January 31, 2014, the California Court of Appeal denied the Petition as untimely, explaining that Petitioner “should have brought his complaints to the attention of the trial court before - not after - he proceeded to trial and was convicted” and that if Petitioner continued experiencing problems in filing and serving post-trial pleadings, he “should seek the trial court's assistance.” Lodgment 12.

         On May 9, 2016, Petitioner filed a second Petition for Writ of Habeas Corpus in the California Court of Appeal, arguing that: (1) the prosecutor knowingly and intentionally withheld exculpatory evidence, or alternatively, destroyed it before trial and (2) the prosecutor knowingly elicited and permitted the introduction of false testimony that the exculpatory evidence referenced in ground one does not exist. Lodgment 13. On May 17, 2016, the California Court of Appeal denied the petition, noting that Petitioner demonstrated neither the materiality of the alleged undisclosed information nor that the police or prosecution were acting in bad faith. Lodgment 14.

         On August 18, 2014, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court, arguing that the California Court of Appeal erred in finding that Petitioner did not raise his allegations of Faretta rights violations to the trial court's attention. Lodgment 15. On October 15, 2014, the California Supreme Court denied the petition without a statement of reasoning or citation to authority. Lodgment 16.

         On September 1, 2016, Petitioner filed a second Petition for Writ of Habeas Corpus in the California Supreme Court, arguing that: (1) the prosecutor knowingly and intentionally withheld exculpatory evidence of a digital recording of the initial interview with witness Devon Michael Clements and (2) the California Court of Appeal failed to hold an evidentiary hearing on the prosecution's alleged withholding of exculpatory evidence. Lodgment 17. On November 9, 2016, the California Supreme Court denied the petition without a statement of reasoning or citation to authority. Lodgment 18.

         Petitioner filed the instant Petition for Writ of Habeas Corpus on February 1, 2017. Pet.

         SCOPE OF REVIEW

         Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a) (2006 & Supp. 2016).

         The Petition was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(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 in the State court proceeding.

         In making this determination, a court may consider a lower court's analysis. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991) (authorizing a reviewing court to look through to the last reasoned state court decision). Summary denials are presumed to constitute adjudications on the merits unless “there is reason to think some other explanation for the state court's decision is more likely.” Harrington v. Richter, 562 U.S. 86, 99-100 (2011).

         A state court's decision is “'contrary to” clearly established federal law if the state court: (1) “applies a rule that contradicts the governing law set forth in [Supreme Court] cases”; or (2) “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (O'Connor, J., concurring).

         A state court's decision is an “unreasonable application” of clearly established federal law where the state court “‘identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 413). “[A] federal habeas court may not issue [a] writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable.” Id. at 75-76 (citations and internal quotation marks omitted). Clearly established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412.

         If the state court provided no explanation of its reasoning, “a habeas court must determine what arguments or theories supported or . . . 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 [the Supreme Court].” Harrington, 562 U.S. at 102. In other words, a federal court may not grant habeas relief if any fairminded jurist could find the state court's ruling consistent with relevant Supreme Court precedent. Id.

         Habeas relief also is available if the state court's adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(2) (West 2012); Wood v. Allen, 558 U.S. 290, 293 (2010). A state court's decision will not be overturned on factual grounds unless this Court finds that the state court's factual determinations were objectively unreasonable in light of the evidence presented in state court. See Miller-El, 537 U.S. at 340; see also Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that “[r]easonable minds reviewing the record might disagree” does not render a decision objectively unreasonable). This Court will presume that the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007).

         DISCUSSION

         Petitioner presents five grounds for relief. First, Petitioner claims the prosecution knowingly and intentionally withheld exculpatory evidence - a digital recording of statements made by witness Devon Michael Clements. Pet. at 6. Second, Petitioner alleges the California Court of Appeal erred by not holding an evidentiary hearing on the prosecution's alleged withholding of evidence. Id. at 7. Third, Petitioner argues his Faretta rights were violated when the San Diego County Jail (“Jail”) made decisional and statutory law available via a “kiosk” separate from the desktop with a word processer and denied him access to confidential legal phone calls and black ink pens. Id. at 8. Fourth, Petitioner asserts that the Jail's desktop computer obstructed his ability to properly review audio and video discovery produced by the prosecution, the office of assigned counsel failed to properly serve his legal documents, and Jail officials refused to provide Petitioner with sufficient copies to serve legal documents by mail. Id. at 9. Fifth, Petitioner claims the trial court erred by denying his motion for acquittal under section 1118.1 because there was insufficient evidence to find Petitioner did not act in self-defense. Id. at 10.

         A. The Prosecution's Alleged Withholding or Destruction of Exculpatory Evidence

         Petitioner alleges that the prosecution knowingly and intentionally withheld a digital recording of an interview conducted by San Diego Police Detective Christopher Tews of witness Devon Michael Clements at the Peachtree Inn Residential Hotel on June 21, 2013. Id. at 6. Petitioner further alleges that the prosecution later presented false testimony from Detective Tews that a digital recording of the interview with Mr. Clements does not exist. Id. In support, Petitioner claims that Mr. Clements acknowledged the existence of the recorded interview at the preliminary hearing held on October 8, 2013, and that Detective Tews' incident report referenced the recorded interview. Id.

         Respondent contends that Petitioner received one recording of the interview between Detective Tews and Mr. Clements from a different date and that there is not a second recording. Answer at 16. Accordingly, Respondent asserts that the prosecution neither withheld exculpatory evidence nor destroyed it. Id. In his Supplemental Traverse, Petitioner concedes that he received a copy of a recorded interview from a different date, but clarifies that he never received a copy of the June 21, 2013 interview. Supp. Traverse at 12-13, 15. Petitioner also admits that he received a copy of Detective Tews' report summarizing his June 21, 2013 interview of Mr. Clements. See ECF No. 16 at 15-21; see also Lodgment 1-8 at 902-08 (referencing the report).

         Petitioner presented his claim to the California Court of Appeal and the California Supreme Court in a Petition for Writ of Habeas Corpus. Lodgments 13, 17. The Court of Appeal denied the claim in a reasoned opinion. Lodgment 14. The California Supreme Court denied the claim without a statement of reasoning or citation to authority. Lodgment 18. The Court will therefore look through the silent denial by the state supreme court to the appellate court opinion. Ylst, 501 U.S. at 804. In denying the claim, the appellate court stated the following:

In his writ petition, [Petitioner] claims that the prosecution failed to produce exculpatory evidence or, alternatively, destroyed it before trial. [Petitioner] contends the police recorded an interview with an eyewitness to the assault, but denied the existence of the recording when [Petitioner] requested a copy before trial. He suggests the prosecution is either hiding the recording or destroyed it to prevent having to disclose it. He alleges that he asked his appellate counsel to raise this issue on direct appeal, but counsel refused to do so.
The prosecution has a duty to disclose evidence to a criminal defendant when the evidence is both favorable to the defendant and material on either guilt or punishment. (In re Miranda (2008) 43 Cal.4th 541, 575.) Evidence is material if there is a reasonable possibility that, had it been disclosed to the defense, the result of the trial would have been different. (Ibid.) “Such a probability exists when the undisclosed evidence reasonably could be taken to put the whole case in such a different light as to undermine confidence in the verdict.” (Ibid.)
[Petitioner] provides no explanation for the materiality of the alleged recording. He was provided with notes from the interview and it appears both the interviewing officer and the eyewitness testified at trial. His claim that the recording may have included additional or contradictory information is entirely speculative and [Petitioner] fails to demonstrate the materiality of the alleged undisclosed information.
To the extent [Petitioner] is claiming that the police or prosecution destroyed the exculpatory evidence contained in the recording, he makes no allegation or showing of bad faith. Thus, [Petitioner] must demonstrate the materiality of the allegedly destroyed evidence. (See, e.g., People v. Alvarez (2014) 229 ...

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