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McCreary v. Diaz

United States District Court, S.D. California

December 16, 2019

RALPH DIAZ, Secretary, Respondent.



         Jeffrey Steven McCreary (hereinafter “Petitioner”), is a state prisoner proceeding pro se and in forma pauperis with a Second Amended Petition for a Writ of Habeas Corpus filed under 28 U.S.C. § 2254. (Electronic Case Filing [“ECF”] No. 19.) He challenges his San Diego Superior Court conviction for first degree murder with the personal use of a firearm, for which he was sentenced to 100 years-to-life in state prison, enhanced by two prior felony convictions. (Id. at 1-2.) He claims his federal constitutional rights were violated by the denial of his motion to substitute counsel to file a motion for a new trial (claim one), introduction of evidence he had been in prison (claim two), omission of an element of the firearm use enhancement from the verdict form (claim three), use of his prior convictions to enhance his sentence (claim four), failure to give an instruction on aiding and abetting in response to a jury question (claim five), insufficient evidence of kidnapping (claim six), failure of the prosecutor to timely disclose a witness (claim seven), ineffective assistance of trial counsel (claims eight, eleven and twelve), prosecutorial misconduct and ineffective assistance of trial counsel for failing to object (claims nine and ten), failure of the state habeas court to hold an evidentiary hearing (claim thirteen), and because he is actually innocent (claim fourteen). (Id. at 6-20.) Petitioner requests an evidentiary hearing. (Id. at 19.)

         Respondent has filed an Answer and lodged the state court record. (ECF Nos. 24-25, 36.) Respondent argues habeas relief is unavailable because claims three, eight through twelve, and fourteen are procedurally defaulted, claims two, four, five, thirteen and fourteen do not present cognizable claims, and the state court adjudication of all federal claims is neither contrary to, nor involves an unreasonable application of, clearly established federal law, nor based on an unreasonable determination of the facts. (ECF No. 24 at 2-11.) Petitioner has filed a Traverse. (ECF No. 29.)

         For the foregoing reasons, Petitioner's request for an evidentiary hearing is denied, the Petition is denied, and the Court declines to issue a Certificate of Appealability.


         On March 27, 2012, Petitioner and his codefendant Destin Lee Withers were charged with murdering Denise Rodriguez. (ECF No. 25-32 at 11-12.) It was alleged both men were armed with and personally and intentionally discharged a semi-automatic handgun resulting in the victim's death. (Id.) It was further alleged Petitioner had two prior felony convictions which constituted strikes under California's Three Strikes law, and Withers had three prior felony convictions which constituted prison priors. (Id. at 12-13.)

         Petitioner and Withers were jointly tried before a single jury. They both testified and named each other as the killer, and on June 13, 2014, were both found guilty of first-degree murder. (ECF No. 25-33 at 258.) The jury returned true findings that Petitioner was armed with and personally used a 9mm semi-automatic firearm, and that Withers was not armed with and did not personally use a 9mm semi-automatic firearm. (Id.)

         On June 17, 2014, at a bifurcated bench trial, the court made true findings on all prior conviction allegations as to both defendants. (Id. at 260.) On January 21, 2015, a hearing was held on Petitioner's motion to substitute his appointed public defender for new counsel for the purpose of filing a new trial motion. (Id. at 264.) The court denied that motion, as well as his motions for a new trial and to strike his priors. (Id.) On January 28, 2015, he was sentenced to 25 years to life on the first-degree murder count, tripled as a result of his two prior strikes, plus a consecutive term of 25 years to life for the firearm enhancement, for a total of 100 years to life in state prison. (Id. at 263-64.)

         Petitioner appealed, raising claims one though seven presented here. (ECF Nos. 25-35, 25-36 and 25-37.) The appellate court consolidated his appeal with Withers' and affirmed. (ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. (Cal.App.Ct. Sept. 26, 2016).) He presented the same claims in a petition for review in the California Supreme Court (ECF No. 25-39) which was summarily denied on January 18, 2017. (ECF No. 25-40.)

         Petitioner raised claims eight through twelve presented here in a habeas petition filed in the superior court on August 31, 2017 (ECF No. 25-41), and in the appellate court on October 30, 2017 (ECF No. 25-43), which were both denied on procedural grounds. (ECF No. 25-42, In re McCreary, No. NCN1500, order (Cal.Sup.Ct. Sept. 6, 2017); ECF No. 25-44, In re McCreary, No. D073026, order (Cal.App.Ct. Oct. 31, 2017).) He then raised those same claims in a state supreme court habeas petition. (ECF No. 25-45.) The petition was denied on February 14, 2018, with an order that stated: “The petition for writ of habeas corpus is denied on the merits. (See Harrington v. Richter (2011) 562 U.S. 86, citing Ylst v. Nunnemaker (1991) 501 U.S. 797, 803.)” (ECF No. 25-46, In re McCreary, No. S245567, order (Cal. Feb. 14, 2018).)

         Petitioner filed a second round of state habeas petitions in the superior court on April 13, 2018 (ECF No. 25-47) and in the appellate court on May 23, 2018 (ECF No. 25-49), raising, among other claims, claim fourteen here, which were both denied on procedural grounds. (ECF No. 25-48, In re McCreary, No. HCN1519, order (Cal.Sup.Ct. Apr. 19, 2018); ECF No. 25-50, In re McCreary, No. D074018, order (Cal.App.Ct. May 25, 2018).) He raised the same claims in a state supreme court habeas petition on July 30, 2018. (ECF No. 25-51.) This action was stayed pending disposition of that petition, which was denied with an order that stated: “The petition for writ of habeas corpus is denied. (See In re Clark (1993) 5 Cal.4th 750, 767-789 (courts will not entertain habeas corpus claims that are successive).)” (ECF No. 25-52, In re McCreary, No. S250337, order (Cal. Jan. 16, 2019).)


         The following facts are taken from the appellate court opinion affirming Petitioner's convictions on direct appeal.

A. The People's Case
1. The Del Dios drug apartment
Jonathan Nick Griffith, a drug user and dealer, testified for the prosecution under a grant of immunity. He had convictions for auto theft, drug possession, and being under the influence. At the time of trial in this matter, Griffith was in custody for a parole violation for possessing methamphetamine.
Griffith testified that he shared a “crash-pad” apartment (the Del Dios apartment) with a man he identified as “Vid” at an apartment complex on Del Dios Highway in Escondido that was a regular place for people to come by, hang out, and take drugs. Griffith's bedroom was the “party spot.” Griffith had known McCreary, whose nickname is “Lucky, ” for 20 years and they were close friends. McCreary came by the apartment four or five times each week, and Griffith often gave him methamphetamine because they were friends.
McCreary often carried a semiautomatic .45-caliber handgun, and he owned a bulletproof vest. McCreary acted as an “enforcer” for Griffith in connection with Griffith's various illegal activities.
David “Weasel” Renteria and Vid were friends, and Renteria would regularly hang out at the Del Dios apartment and use drugs. Renteria was a Chula Vista gang member who had been to prison for committing several assaults, including one on a police officer, and for auto theft. He was about six feet two inches tall and weighed about 230 to 240 pounds. Renteria was about two inches taller than Withers, and he was about five inches taller than McCreary and outweighed him by about 80 pounds.
2. McCreary meets the victim, Rodriguez, on January 28, 2012, and brings her to the Del Dios apartment
In early 2012 McCreary had a crush on Jackie “Looney” Bravatti. [Footnote: The principal events from which this case arose occurred during a five-day period from January 28 to February 1, 2012, the day Rodriguez was fatally shot. All further dates are to calendar year 2012 unless otherwise specified.] On January 28 Bravatti called McCreary and asked him to pick up Denise Rodriguez and her baby. Although McCreary did not know Rodriguez, he did as Bravatti asked, and he and Griffith drove Rodriguez and her baby to the Del Dios apartment.
McCreary and Griffith left the apartment to buy beer and when they returned Rodriguez and Renteria were in the bathroom having sex. Rodriguez and Renteria used methamphetamine together and then had sex several more times that night. The next morning Renteria told Rodriguez he was married and then he left the apartment.
After Renteria left, Griffith saw Rodriguez crying hysterically on the bed. Griffith asked her what was wrong and attempted to console her by offering her something to calm her nerves.
Griffith testified he later heard from McCreary and Withers that Rodriguez was claiming Renteria had forcibly raped her. Griffith indicated he knew Renteria had not raped Rodriguez because he had heard Renteria and Rodriguez while they were having sex in the bathroom.
3. Withers meets Rodriguez at the Del Dios apartment on January 29
Withers met Rodriguez at the Del Dios apartment on January 29, the day after she arrived there, when he came to the apartment complex to buy methamphetamine from Griffith. Rodriguez told Withers and McCreary she had been forcibly raped, but she did not say who had raped her.
Withers drove Rodriguez and her baby from the Del Dios apartment to his house. Kassandra Barr and Leila Penman were at Withers's house when Withers and Rodriguez arrived there. Rodriguez and the baby stayed at Withers's house with Penman. In Withers's presence Rodriguez told Penman that someone had given her a “hot shot” (bad drugs that caused her to pass out) and that men had taken turns raping her. Rodriguez later appeared to give an inconsistent story by telling Penman that one of the people who raped her was her boyfriend (Renteria).
Meanwhile, Withers and Barr left to see Christina Thornbrough and her then-boyfriend, Gary Cross. After Withers told them Rodriguez had been raped, she was in danger, and she and her baby needed to stay in a safe place somewhere, Cross and Thornbrough agreed to let Rodriguez and her baby stay at Thornbrough's house, where Cross was living.
4. Withers was a trained street fighter
Cross testified that Withers was a big, formidable guy who was very good at street fighting. Withers trained as a street fighter and did mixed martial arts. Cross referred to Withers as “Captain Save-a-Ho” because of his willingness to help women. According to Cross, the help Withers provided to women included being an “enforcer, ” which he did in lieu of calling the police to “square things.” After Cross's niece, Michelle Lentz, was beaten by her boyfriend, Cross called Withers to protect her. Withers beat up the boyfriend and later assured Lentz the boyfriend would never bother her again.
5. Withers's investigation regarding Rodriguez's rape and bad drugs allegations
On January 30 - the day after Thornbrough and Cross agreed to let Rodriguez and her baby stay the night with them - Withers, Barr, and Withers's friend, Christopher (“Mexican Chris”), picked Rodriguez up from Thornbrough's house and took her to the Del Dios apartment to investigate her claim she had been given bad drugs and raped. Rodriguez left her baby with Thornbrough. Barr stayed in the car while Withers, Rodriguez, and Mexican Chris went inside the apartment. Rodriguez, who was crying, sat on the couch. Withers, who appeared to be looking for Renteria and was saying he wanted to get justice, angrily went down the hall to the master bedroom, where he met with McCreary, Griffith, Griffith's girlfriend Phoneny Sitaket, Mexican Chris, and Vid. Withers eventually calmed down, but still seemed concerned when Griffith told him Renteria had not raped Rodriguez. Griffith indicated that he had heard Renteria and Rodriguez having sex in the bathroom and that it was consensual.
Rodriguez continued to cry in a dramatic and exaggerated way and appeared to be seeking attention. At some point Withers's truck was towed because he had parked in a fire lane, and McCreary drove him and Barr to the tow yard. Rodriguez remained at the Del Dios apartment while Withers spent a long time recovering his impounded truck.
6. Rodriguez calls Renteria to ask for a ride from the Del Dios apartment to her parents' home
That same day, January 30, while Withers was trying to recover his truck, Rodriguez telephoned Renteria and asked him to give her a ride. Renteria picked up Rodriguez from the Del Dios apartment and drove her to Thornbrough's house. When they arrived, Renteria went inside to get the baby and then drove Rodriguez and her baby to Rodriguez's parents' apartment. Renteria went inside with Rodriguez, met her parents, and talked with her father. Renteria had locked his keys in his car. When he and Rodriguez's father were unable to unlock it, Renteria left the car where it was and took a taxi home.
7. Withers's retaliatory theft of Renteria's car
The next day, January 31, with the assistance of Gerald Gallentine, Withers and Rodriguez stole Renteria's car from the parking lot where Renteria had left it the day before. Griffith testified that Withers “took (the car) from (Renteria) for raping (Rodriguez), or supposedly raping (her).” Gallentine testified that Rodriguez said that the car they were taking belonged to her boyfriend (Renteria) and that he would be angry when he found out. Gallentine also testified that Rodriguez gave Withers permission to take the car and that he (Gallentine) did not believe they were stealing Renteria's car. Rodriguez also said her boyfriend would know she took the car because she knew his keys were inside it. According to Gallentine, Withers told him not to worry because the guy had done something bad to Rodriguez.
Rodriguez rode with Withers in Renteria's car to Gallentine's house as Gallentine followed them in his car. Later they went to Withers's house. When they arrived, McCreary and Griffith were in Withers's master bedroom with Barr. Withers told Rodriguez to remain in the living room with Gallentine, and then he went into his bedroom and smoked methamphetamine with McCreary and Griffith. Rodriguez walked into the bedroom and, when she saw McCreary and Griffith, she became angry and started screaming at McCreary that she had been given bad dope and had been raped.
Withers asked Gallentine to take Rodriguez out of the bedroom and take her home. Rodriguez would not calm down and she continued screaming and yelling. Withers told Rodriguez, “Shut the fuck up.” He told Gallentine, “Get rid of this bitch. Get this bitch out of here.” Gallentine testified he did not want Rodriguez in his car, so he left Withers's house without her.
Rodriguez told Withers he should not have stolen Renteria's car, and Withers replied, “What do you mean? You're the one that told me to do this.” Rodriguez continued to scream and yell, and then tried to leave, but Withers shoved her against a wall. He then took her into a bathroom for about 20 minutes.
Renteria went back with his wife to get his car from the parking lot where he had left it after locking the keys inside, but discovered it was gone. Renteria called Rodriguez, who told him, “Oh, I think you're going to be mad.” Renteria testified that Withers then got on the phone, brought up Rodriguez's claim that Renteria had raped her, and told Renteria he had stolen Renteria's car in retaliation for Renteria's supposedly raping Rodriguez.
8. Rodriguez's murder on February 1 and McCreary's disposal of her body
Later that same day, January 31, McCreary texted Withers, “(I'm) in negotiations on a throw away, too little advanced notice for anything clean and my personal takes too long to clean and assemble which is why I don't usually pack backups. (T)here will be rental, but I'll throw in $60 cash towards that.” (Italics added.) At trial, an investigator for the district attorney's office testified that the term “throw away” means an untraceable gun.
That night Withers drove McCreary and Rodriguez in Withers's Mercedes to the Mount Vernon Inn. They went into a room occupied by Joshua Rayborn, Rayborn's girlfriend, Monica Rodriguez (Monica), and Monica's friend, Christopher Harris. They all smoked methamphetamine. At some point something angered Withers and he threw the meth pipe they were smoking against a wall.
Sometime after midnight, February 1, Withers and McCreary left the Mount Vernon Inn and Withers drove them in his Mercedes to the Del Dios apartment to confront Renteria. Rodriguez remained at the Mount Vernon Inn with Rayborn, Monica, and Harris.
Outside the Del Dios apartment, Withers and McCreary prepared themselves to beat Renteria. Withers texted Griffith to send Renteria outside, but Renteria refused to go outside.
Withers and McCreary eventually went inside the Del Dios apartment and spoke with Renteria. Griffith and Renteria were able to convince Withers and McCreary that Renteria had not raped Rodriguez, that she had consented to having sex with Renteria. Withers promised to return Renteria's car, apologized to Renteria, and they shook hands.
Renteria testified he heard Withers call the Mount Vernon Inn and say either, “Put that bitch in a corner” or “Put that bitch on the phone.” Withers was now angry that Rodriguez had lied to him about being raped. Renteria testified that after Withers's phone call ended, he heard McCreary say to Withers, “I got it” or “I'll take care of it.” Withers and McCreary left a few minutes later.
Withers and McCreary returned to the Mount Vernon Inn in Withers's Mercedes and got Rodriguez. Withers grabbed Rodriguez by her arm and put her in his car. Withers then got back into his car and, with McCreary sitting in the front passenger seat and Rodriguez in the backseat, he drove away from the Mount Vernon Inn.
Rodriguez was screaming and yelling, and she tried to open the car door and get out. McCreary turned around and fired four gunshots into Rodriguez.
After McCreary shot Rodriguez, Withers drove McCreary and Rodriguez's body to Withers's home. Withers went inside and came back out carrying a blanket. Barr, who was staying in Withers's home, testified she saw Withers's Mercedes in the driveway with the engine idling. Barr overheard Withers, who had exited the car and walked over to the passenger's side, tell McCreary, who had moved over into the driver's seat, “Take the car” and “clean that mess.” Barr had seen Withers walk out of the house and to the Mercedes with the blanket, and she saw him put the blanket in the car through the front passenger-side window. Withers told McCreary he would contact him later.
McCreary then drove Withers's Mercedes to an undeveloped cul-de-sac on Lawrence Welk Court and left Rodriguez's body there. McCreary texted Withers and told him, “I have the spot, it'll be perfect.” Someone passing by on a bicycle found the body, which was wrapped in a green blanket, and called 911.
9. Testimony of Ming and additional testimony of Gallentine
Ming, a prosecution witness who was in custody for stealing an automobile and was testifying pursuant to a cooperation agreement with the district attorney's office, testified that he met Withers while in custody and that his cell was catty-corner from Withers's and they could see each other from their cells. He would speak with Withers during free time in the common area. Withers spoke to Ming “a lot, ” almost every day, about his involvement in Rodriguez's murder. Withers told Ming he was angry at Rodriguez for lying to him about being raped. Withers indicated to Ming that there was a plan to kill Rodriguez, but Withers told Ming, “The bitch wasn't supposed to get shot in my backseat.” Withers told Ming that he asked McCreary on numerous occasions to “man up” and take the blame.
Ming also testified that Withers asked him to lie on his behalf by falsely telling Withers's investigator that he ran into McCreary on the streets after the shooting, McCreary was “strung out on drugs, ” and McCreary told him, “Hey, I just shot this chick in the back of (Withers's) car. (Withers) had no idea about it.” Ming further testified that Withers told him he grabbed Rodriguez by her arm and put her in his car.
During the trial in this matter, Gallentine, like Ming, was in custody and testified for the prosecution pursuant to a cooperation agreement with the district attorney's office. Gallentine testified that when McCreary drove Withers's Mercedes to Gallentine's house and Gallentine agreed to take possession of the car, McCreary spoke to him about someone's having been murdered in the car, but McCreary did not tell Gallentine who had been murdered. McCreary showed Gallentine a bullet hole in the car. McCreary asked Gallentine, “Did (Withers) tell you what's up?” Gallentine testified that when he asked McCreary what he meant, McCreary replied, “I blasted somebody in the back” or “I blasted someone in the backseat.”
Gallentine also testified he was taken into custody in July 2013, and he indicated that his cell was near Withers's. While they were in custody, Withers asked Gallentine to lie on his behalf. Specifically, Withers asked him to tell Withers's investigator that when McCreary came to his house, McCreary said, “I shot this girl; Withers didn't know anything about it.” Gallentine testified that he got the impression from talking with Withers that Withers was in the car when Rodriguez was killed. Gallentine also testified that Withers told him Rodriguez was trying to open the car door and get out of the car before she was shot.
10. Defendants' arrests and their recorded incriminating statements
Shortly after midnight on February 2, Withers was detained during a traffic stop and following a search of his vehicle and his person he was arrested for being a felon in possession of ammunition. Later at the police station Withers calmly told the arresting officer he wanted to provide information about a homicide. Escondido police detectives were notified.
On February 3 Withers placed a recorded and transcribed telephone call to McCreary, who implicated himself as the person who shot Rodriguez. During the call, Withers asked McCreary about his (Withers's) car. Withers then asked McCreary, “You didn't put fuck, you didn't put any bullet holes in my shit, did you?” McCreary replied, “There, there, there was, there was one, that, um, I, I, I started working on it . . . .” Withers then confronted McCreary about the four gunshots McCreary fired inside Withers's Mercedes during the murder: “Fuck, you didn't have to fuckin' shoot four fuckin' times, idiot. That was crazy.” McCreary replied: “No, no I didn't. I didn't. I know, I know I don't either. Um, I used to do a real quick double but uh, um . . . I don't know, I don't know what happened.” Indicating he (Withers) was driving when McCreary shot Rodriguez, Withers then told McCreary: “Yeah I (was) fucking . . . driving on the fuckin' side of the road and all of a sudden you fucking pop four rounds, I was like holy shit.” McCreary responded by laughing.
McCreary was arrested the next day, February 4, while he was driving Withers's other vehicle, a Ford Explorer. [Footnote: Police detectives found Withers's Mercedes at Gallentine's house. Gallentine testified that McCreary unexpectedly brought the Mercedes to his house after Withers was arrested, and Gallentine allowed McCreary to take Withers's Ford Explorer, which was in Gallentine's possession.] One of the arresting officers, San Diego County Sheriff's Deputy Juan Lozoya, testified that when he activated the red emergency lights and siren on his unmarked vehicle, the Ford Explorer McCreary was driving swerved and accelerated during what Deputy Lozoya indicated were evasive maneuvers. When McCreary accelerated again and turned into the driveway of an apartment complex, both wheels on the passenger side of the Ford Explorer came off the ground. McCreary stopped when the Explorer bounced back on all four wheels and approached a rolling wrought iron gate.
The officers instructed McCreary, who was looking outside the driver's side door of the Explorer, to get on the ground but McCreary did not comply. McCreary resisted as the officers pulled him out of the Explorer and onto the ground, and he continued to struggle after he was on the ground. Deputy Lozoya testified that when McCreary went down to the ground, he pulled both of his hands in towards his waistband and underneath his stomach as he lay face down on the ground. Deputy Lozoya instructed McCreary to get both of his hands out and behind his back. Deputy Lozoya grabbed McCreary's left hand and attempted to pull it out from under McCreary, but McCreary continued to resist.
Eventually the officers were able to subdue and handcuff McCreary. One of the officers, who was conducting a pat down of McCreary's person, asked McCreary whether he had any weapons on him, and McCreary replied, “The gun's in the car.”
11. Ballistics evidence
Expert testimony by a criminalist established that the nine millimeter FEG semiautomatic handgun the police found in the Ford Explorer McCreary had been driving immediately prior to his arrest matched the bullets that were recovered from Rodriguez's body.
12. Autopsy and forensic re-creation of the shooting
Bethann Schaber, M.D., a forensic pathologist, testified that an autopsy determined the cause of Rodriguez's death was multiple gunshot wounds to her upper torso. Specifically, three bullets entered Rodriguez's body through the back of her right shoulder and went through her chest cavity, injuring both of her lungs and large blood vessels coming off of the heart, including the aorta and the pulmonary artery. One of the bullets went through her spine. Two of the bullets were found inside Rodriguez's body, and one was found at the scene when it fell out of Rodriguez's clothing and stayed after exiting her body.
Working with a criminalist from the San Diego County Sheriff's Regional Crime Lab who was a firearms expert, Dr. Schaber participated in a simulated re-creation of the shooting inside the Mercedes to determine Rodriguez's position when she was shot. Dr. Schaber testified that she handled the body positioning aspect of the re-creation, and the firearms expert handled the bullet trajectory aspect. A female model, who pretended to be Rodriguez and whose height was about the same as Rodriguez's, sat in the back seat of the Mercedes during the re-creation of the shooting. Dr. Schaber determined that in order for Rodriguez to be shot through the back of her right shoulder by someone in the front passenger seat, she had to be twisted to some degree in her upper body towards the car door. Dr. Schaber indicated it was possible Rodriguez was holding onto the door handle when she was turned towards the door and was shot.
B. Defenses
Withers and McCreary both testified. Each indicated there was no plan to kill Rodriguez when she got into Withers's Mercedes with them and they left the Mount Vernon Inn. They both indicated Rodriguez willingly got into the Mercedes. Each testified that the other shot Rodriguez, who was in the back seat, from the front passenger seat. Each indicated that the other's shooting of Rodriguez was unexpected and that they each feared the other after Rodriguez was shot.

(ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 5-18.)


         (1) Petitioner's rights under the Sixth and Fourteenth Amendments were violated by the denial of his motion to substitute counsel for a new trial motion. (ECF No. 19 at 6.)

         (2) Petitioner's Fourteenth Amendment right to due process was violated by the inadvertent introduction of evidence he had been in prison. (Id. at 7.)

         (3) Petitioner's rights under the Sixth and Fourteenth Amendments were violated because the verdict form states the jury found he personally used a firearm, whereas he was charged with and sentenced for personally and intentionally discharging a firearm, and there was no jury finding of intentionality. (Id. at 8.)

         (4) Petitioner's Fourteenth Amendment right to due process was violated by the refusal of the sentencing judge to dismiss his two strike priors which arose from the same conduct on the same day twenty-three years earlier. (Id. at 9.)

         (5) Petitioner's rights under the Sixth and Fourteenth Amendments were violated when the trial judge referred the jury to their instructions rather than further instructing them in response to their question whether the failure to help a victim who dies constitutes aiding and abetting murder. (Id. at 10.)

         (6) Petitioner's rights under the Sixth and Fourteenth Amendments were violated because there is insufficient evidence of kidnapping. (Id. at 11.)

         (7) Petitioner's Fourteenth Amendment right to due process was violated by the prosecutor's delay in disclosing Jason Ming's testimony to the defense. (Id. at 12.)

         (8) Petitioner's rights under the Sixth and Fourteenth Amendments were violated by ineffective assistance of trial counsel in failing to call Roxanne Chavez to testify the murder weapon belonged to Withers and he was the shooter. (Id. at 13.)

         (9) Petitioner's rights under the Sixth and Fourteenth Amendments were violated “by the prosecutor's cumulative misconduct and multiple trial errors” and trial counsel's failure to object and request the jury be admonished. (Id. at 14.)

         (10) Petitioner's rights under the Sixth and Fourteenth Amendments were violated by the prosecutor's knowing use of false testimony regarding the manner of death, and by trial counsel's failure to object and request a mistrial. (Id. at 15.)

         (11) Petitioner's rights under the Sixth and Fourteenth Amendments “were violated when the jury heard improper illegal prejudicial evidence of serious prior prison terms, ” and by his trial counsel's failure to object or request a mistrial. (Id. at 16.)

         (12) Petitioner's rights under the Sixth and Fourteenth Amendments were violated by ineffective assistance of counsel when his trial attorney failed to present argument or evidence at his sentencing hearing. (Id. at 17.)

         (13) Petitioner's Fourteenth Amendment right to due process was violated by the failure of the state habeas courts to hold an evidentiary hearing. (Id. at 18.)

         (14) Petitioner's rights under the Fifth, Sixth and Fourteenth Amendments were violated because he is actually innocent. (Id. at 19-20.)


         For the following reasons, the Court finds only claim three procedurally defaulted, and that neither an evidentiary hearing nor a Certificate of Appealability are warranted. The Petition is denied because the state court adjudication of Petitioner's claims is neither contrary to, nor involves an unreasonable application of, clearly established federal law, and is not based on an unreasonable determination of the facts.

         A. Standard of Review

         To obtain federal habeas relief with respect to a claim which was adjudicated on the merits in state court, a federal habeas petitioner must demonstrate that the state court 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.” 28 U.S.C.A. § 2254(d) (West 2019). Even if § 2254(d) is satisfied, a petitioner must show a federal constitutional violation occurred in order to obtain relief. Fry v. Pliler, 551 U.S. 112, 119-22 (2007); Frantz v. Hazey, 533 F.3d 724, 735-36 (9th Cir. 2008) (en banc).

         A state court's decision may be “contrary to” clearly established Supreme Court precedent (1) “if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases” or (2) “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an “unreasonable application” of clearly established federal law, “if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407. To satisfy § 2254(d)(2), a petitioner must show the factual findings relied upon by the state court are objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

         B. Claim One

         Petitioner alleges in claim one that his rights under the Sixth and Fourteenth Amendments were violated by the denial of his Marsden[1] motion to relieve his appointed public defender after trial and appoint new counsel to file a new trial motion. (ECF No. 19 at 6.) The trial judge conducted a Marsden hearing at which Petitioner's public defender identified five issues Petitioner wanted to raise on a new trial motion: (1) trial counsel refused to call Roxanne Chavez to testify the gun belonged to Withers and he was the shooter, (2) Petitioner belatedly recognized a juror as a customer of a store where Petitioner once worked as someone who may have harbored ill will toward him, (3) the prosecutor inadvertently showed the jury an unredacted transcript of Petitioner's police interview and inadvertently played the corresponding audio for the jury where a reference was made to him having served time in prison, and although trial counsel objected she failed to ask the court to admonish the jury, (4) trial counsel did not object or seek an admonition when the prosecutor reenacted in an excessively emotional manner during closing argument what the victim was doing and saying in the back seat of the car, and (5) trial counsel failed to object to evidence regarding how quickly the victim died on the basis it conflicted with a stipulation at the preliminary hearing she died immediately when shot. (See ECF No. 25-38, People v. Withers, et al., No. D067156/D067470, slip op. at 40-41.) Petitioner said he also wished to raise claims his trial counsel had not communicated with him sufficiently to prepare him to testify and did not provide him with one of his prior statements until shortly before he was cross-examined so his testimony would not appear rehearsed. (Id. at 42.) Trial counsel said she made tactical decisions in all those respects but could not “very well file a motion to protest my own strategic decision, ” and she recommended that new counsel be appointed because new counsel “could possibly review the same information” and find a basis to file a new trial motion. (Id. at 41.)

         Respondent answers that the state appellate court rejection of claim one, on the basis the trial court conducted an adequate hearing where it heard all grounds on which Petitioner wanted to file a new trial motion and found no basis for a new trial and no ineffective assistance of counsel, is objectively reasonable within the meaning of 28 U.S.C. § 2254(d). (ECF No. 24-1 at 31-42.)

         Petitioner presented this claim to the state supreme court in his petition for review. (ECF No. 25-39 at 7-11.) That petition was summarily denied without citation of authority or a statement of reasoning. (ECF No. 25-40.) The claim was also presented to the state appellate court on direct appeal. (ECF No. 25-35 at 33-53.) The claim was denied on the merits in a written opinion affirming the conviction. (ECF No. 25-38.)

         There is a presumption that “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991). As no basis to rebut that presumption appears in the record, the Court will look through the silent denial by the state supreme court to the appellate court opinion on direct appeal as to claims one through seven. As to claim one, the appellate court stated:

McCreary contends the court erred in denying his postverdict motion for the appointment of new counsel to represent him in bringing a motion for a new trial. We reject this contention.
1. Background: McCreary's Marsden motion and his related motion for new counsel to represent him in presenting a new trial motion
In late January 2015, about six months after the jury returned its verdicts and shortly before McCreary's sentencing hearing, the court conducted a Marsden hearing at the request of McCreary's trial counsel, Cassandra Kinchen. (1MCT 76 (6/13/14 verdicts); 2MCT 560 (1/28/15 sentencing); 3RT 2388:8-9; 30RT 4000:13-18; see RT vol. 30-A (“30-ART”) 4001-4026 (sealed RT of Marsden hearing in reddish-orange envelope in McCreary's doghouse)). Both McCreary and Kinchen were present; the prosecutor was not. McCreary indicated he wanted the court to appoint new counsel to represent him, and he told the court Kinchen would not do “a few things” he wanted her to do.
At the court's invitation and with McCreary's acquiescence, Kinchen then spoke on McCreary's behalf and informed the court that he wanted her to file a motion for a new trial based on several grounds, but she had conducted an investigation and had decided not to pursue such a motion. The court asked Kinchen, “Why is that, because you feel there is no legal merit or what?” Kinchen responded, “Well, I can't say no legal merit. I would simply say strategic decisions would indicate I would not have used certain information.”
Kinchen then described the five principal issues McCreary wanted to raise in a new trial motion: (1) a defense witness Kinchen knew about but decided not to call at trial came forward after the verdict with additional information McCreary thought was important; (2) as the jury was about to return its verdicts following the month-long trial, McCreary belatedly recognized one of the male jurors, whose name he did not know, as a customer with whom he had interacted at a store where he had worked, and who McCreary believed might have harbored ill will towards him; (3) Kinchen objected but, for tactical reasons, did not ask the court to admonish the jury during the prosecutor's cross-examination of McCreary near the end of the trial when the jury was mistakenly shown an unredacted transcript of his police interview and heard the corresponding audio recording that made one reference to McCreary's having served time in prison; (4) Kinchen did not object and seek an admonishment during the prosecutor's closing arguments when the prosecutor reenacted, in a manner McCreary thought was overly passionate, what the prosecutor thought the victim, Rodriguez, was doing and saying in the back seat of Withers's car; and (5) Kinchen failed to object to evidence at trial regarding how quickly Rodriguez died, which differed from a stipulation at the preliminary hearing that she died immediately when she was shot.
Kinchen then told the court, “(M)y decision not to file a motion for new trial is based on my investigation, and also my interpretation of the information.” She stated that her “not objecting, not having the jury admonished that close to the end of trial was a strategic decision.” She explained, “I can't very well file a motion to protest my own strategic decision. However, another attorney could possibly review the same information and decide to proceed with the information. They could decide to proceed with that witness, when I did not. They could decide that the jury should have been admonished when I did not. (¶) (F)or that reason, I can't file a motion, but perhaps another attorney can.”
The court asked McCreary whether Kinchen had “cover(ed) the grounds” he believed required the filing of a new trial motion. McCreary replied, “It was perfect.” The court then asked McCreary, “So she's a good attorney?” McCreary answered, “Yes.”
The court then asked Kinchen about her qualifications and experience as a criminal defense attorney. Kinchen replied that she had worked about 24 years as a criminal defense attorney for the public defender's office, and she had done at least 100 trials.
In addition to the five grounds he asserted for a new trial motion, McCreary also complained that Kinchen had not communicated enough with him prior to trial to prepare him for testifying, and he disagreed with Kinchen's decision not to provide him with one of his statements until shortly before his cross-examination by the prosecutor so that his testimony would not appear rehearsed.
The court solicited additional information from both Kinchen and McCreary regarding McCreary's Marsden request for appointment of new counsel. Kinchen informed the court she had discussed McCreary's testimony with him before he testified, she went over the areas she would go into on direct examination, and she let McCreary know the prosecutor's cross-examination would be “pretty aggressive” if he chose to testify. She reminded McCreary he should “stick to the truth as to what the story was.”
Regarding the first of the five grounds McCreary was asserting in support of his request for the appointment of new counsel for the purpose of bring a new trial motion - Kinchen's decision not to call a witness McCreary thought she should have called - McCreary told the court he did not recall whether Kinchen explained her reasons for not calling the witness.
Regarding his second claimed ground for a new trial motion, McCreary acknowledged that during jury selection he did not recognize the juror he said he recognized after trial when the jury was about to return its verdicts. Kinchen informed the court that McCreary first told her about the juror after the verdict came in. Kinchen indicated that she followed up and two investigators interviewed the juror, who acknowledged he was a customer at the store where McCreary had worked, but stated he did not recall having any interaction with McCreary and he did not recognize him. Kinchen also informed the court the juror told the investigators that he did not know anybody at the store and that he was very attentive about who the parties in this case were because he was looking for any reason to get off the jury and he could not find one. McCreary, however, told the court, “I think over a period of seeing the guy every week for several years, he would build a bad opinion of me.” Kinchen added that her investigators questioned the juror, and he said he did not know anyone at the store.
The court turned to McCreary and, referring to his request for the appointment of new counsel for the purpose of bring a new trial motion, told him, “So that creates a problem for what your request is; okay?” McCreary replied, “Yes, sir.” The court explained: “There's . . . a problem with that in the sense that you didn't bring this to anybody's attention until the verdict was read, or right before the verdict was read.” The court added, “I'm kind of concerned about the fact that you sat here for over a month and never brought it to anybody's attention.”
Shortly thereafter, the court told McCreary, “(Y)our contact with that guy was so minimal that you sat here in the same courtroom with a guy who would decide your fate for over a month and (you) didn't recognize him. So that creates some concern for me that if there was all this ill will that he harbored towards you, you would have immediately said, ‘Oh, my gosh. We have to get that guy off the jury because he doesn't like me.' And that never happened during jury selection (or) during the entire course of the trial.”
Regarding the third ground - Kinchen's tactical decision to not ask the court to admonish the jury when it heard near the end of the trial one reference to McCreary's having served time in prison - Kinchen explained to the court that, although she objected, in her opinion “it was too late in the trial” to ask that the jury be admonished. Indicating agreement with Kinchen's statement, the court observed that lawyers in similar situations frequently “weigh out in their head, ‘Okay. Do I want to make a motion to strike and draw attention to it? It might not have been something anyone even saw. Or let it slide and not draw attention to it.”
The court then addressed McCreary's fourth asserted ground for a new trial: Kinchen's failure to object and ask that the jury be admonished during the prosecutor's closing arguments when the prosecutor reenacted what she thought Rodriguez was doing and saying in the backseat of Withers's car. The court stated it believed the prosecutor's argument was based on someone's testimony, and it observed attorneys commonly “get passionate when they make their arguments.” Kinchen told the court McCreary's concern was that there was no testimony regarding what Rodriguez said in the backseat of the car before she was shot and that the prosecutor “made it up.”
Prompted by the court, Kinchen acknowledged the prosecutor's reenactment occurred during the prosecutor's closing argument. The court then told Kinchen and McCreary, “(W)hat the attorneys say is not evidence in opening and in closing.” Kinchen responded, “Well, (McCreary) has a concern that the jury was not notified that what was said during the (prosecutor's) closing was not evidence.” The court replied, “Oh no. I instructed them multiple times (that) what attorneys say is not evidence. I do that in every trial, and it's one of the actual jury instructions that I read to the jury.” [Footnote: The court instructed the jury under CALCRIM No. 222 that “(n)othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.”] When the court started looking at the jury instructions it gave in this case, McCreary said, “I believe you, Your Honor.”
The court also addressed McCreary's fifth and last asserted ground for a new trial: Kinchen's failure to object to trial evidence regarding how quickly Rodriguez died, which differed from a stipulation at the preliminary hearing that she died immediately when she was shot. Kinchen argued that, at trial, the prosecutor violated the preliminary hearing agreement about how quickly Rodriguez died, adding that the prosecutor “went with” what Kinchen asserted was Withers's testimony that Rodriguez did not die immediately. Indicating it did not see how McCreary was prejudiced, the court told Kinchen, “I imagine the stipulation was for purposes of preliminary examination and any motions that flowed therefrom.” Kinchen replied, “Correct.” Noting that the “stipulation was a limited stipulation that was designed only to get through the preliminary hearing, ” the court explained that “there's no legal grounds . . . by which I could hold the (prosecutor) to that stipulation for purposes of trial when it was . . . only limited to the preliminary hearing.” Indicating that all of the four prior asserted grounds for the new trial motion McCreary wanted to bring were insufficient, the court stated with respect to the fifth ground, “So that's insufficient grounds as well.”
a. Court's findings and rulings on McCreary's two postverdict motions
i. McCreary's Marsden motion
The court first ruled on McCreary's Marsden motion, which was based on his general claim that the representation Kinchen had provide him was inadequate. Still outside the presence of the prosecutor, the court explained that “(r)ight now the issue of the Marsden hearing is whether (there are) sufficient grounds to appoint other counsel based on (Kinchen's alleged) incompetence, inadequate representation, failure to properly investigate, having contrary interest in Mr. McCreary . . . .”
The court denied McCreary's Marsden motion, noting that Kinchen was “a very experienced trial lawyer” who had “devoted her career to criminal defense.” The court found that Kinchen “was not incompetent in any way, ” and she “more than adequately represented (McCreary).” The court also found Kinchen had “completely investigat(ed) everything.” As an example, the court noted that when McCreary told Kinchen about the juror he claimed he belatedly recognized, “(s)he sent an investigator out to the (juror's) house, ” the juror “sent (the court) a letter because of it, ” and she “subpoenaed documents from the store” where McCreary worked and allegedly had interracted with the juror. The court told McCreary that Kinchen had “aggressively represented you throughout the trial.” The court then reviewed some of the incriminating evidence supporting the jury's finding that McCreary was the shooter. Stating that Kinchen “was handed a case with the evidence and the facts that she can't change, ” the court found she “did an excellent job with what she had to work with.”
ii. McCreary's motion for appointment of new counsel to represent him in bringing a motion for a new trial
After denying McCreary's Marsden motion, the court told Kinchen, “(T)he next question is do we appoint counsel to file a motion for new trial that you can't file because of a conflict?” Seeking clarification the court asked her, “So it's your position then that for a motion for new trial to be filed, it would have to be investigated by new counsel to determine if there was ineffectiveness of counsel; correct?” Kinchen replied, “Correct, based on their assessing the evidence in a different way than I assessed (it).” Following further discussion with Kinchen and McCreary regarding the five grounds for a new trial that he was asserting, the court recessed the hearing for a few minutes in order to bring back the prosecutor. [¶] When the prosecutor returned, the court told her that “(McCreary's) Marsden motion ha(d) been denied” and “(t)he next issue (was) whether or not the Court should appoint substitute counsel to investigate certain issues regarding considering a motion for a new trial.” The court stated it had researched the issue.
Citing and discussing three cases - People v. Sanchez (2011) 53 Cal.4th 80, People v. Smith (1993) 6 Cal.4th 684 (Smith), and People v. Stewart (1985) 171 Cal.App.3d 388 (Stewart), disapproved on other grounds in Smith, at pages 694, 696 - the court denied McCreary's motion for appointment of new counsel to represent him in bringing a motion for a new trial “for the same reason” it had denied McCreary's Marsden motion. Noting it had heard from Kinchen, the court stated, “I won't go into detail now that we are in the presence of the prosecutor, but (McCreary) has not made a colorable claim of ineffective assistance of counsel or any other grounds for a new trial motion.” (Italics added.) Citing Sanchez, supra, 53 Cal.4th 80, the court found “there was no showing during the Marsden hearing that would indicate in any way that (McCreary's) right to counsel has been substantially impaired, either during the trial or now that we are in a (postconviction) status.” The court stated “there weren't any credibility issues or contradictory statements between (McCreary) and (Kinchen)” and Kinchen was “quite credible, ” and it “accept(ed) her representations and her explanations that (she) made during the Marsden hearing.”
2. Applicable legal principles
a. Ineffective assistance of counsel
A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland, supra, 466 U.S. at pp. 684-685; People v. Frye (1998) 18 Cal.4th 894, 979 (Frye).) To establish a denial of the right to effective assistance of counsel, a defendant must show (1) his or her counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (Strickland, at pp. 687-688, 691-692; Frye, at p. 979.) To demonstrate prejudice, a defendant asserting an ineffective assistance claim on appeal must show a reasonable probability he or she would have received a more favorable result had counsel's performance not been deficient. (Strickland, supra, at pp. 693-694; Frye, at p. 979.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, at p. 694.)
Strickland explained that “(j)udicial scrutiny of counsel's performance must be highly deferential (because) (i)t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” (Strickland, supra, 466 U.S. at p. 689, italics added.) Strickland also explained that reviewing courts “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” (Ibid., italics added.)
b. Substitution of new court-appointed counsel
“Criminal defendants are entitled to competent representation. If a defendant cannot afford to hire an attorney, one must be appointed for the ...

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