1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RYAN M. DIETZ,

Petitioner,

v.

DAVE DAVEY, Warden,

Respondent.

 /

No. C 16-7165 WHA (PR)

ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS AND

DENYING CERTIFICATE OF

APPEALABILITY

INTRODUCTION

Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas corpus

challenging his conviction pursuant to 28 U.S.C. 2254. Respondent was ordered to show cause why

the writ should not be granted on the following claims: (1) instructional error; (2) insufficient

evidence; (3) exclusion of exculpatory evidence; and (4) prosecutorial misconduct. Respondent filed

an answer and a memorandum of points and authorities in support of it. Petitioner has not filed a

traverse. For the reasons set forth below, the petition is DENIED.

STATEMENT

I. PROCEDURAL BACKGROUND

On June 28, 2013, a Sonoma County jury found petitioner guilty of the first-degree murder of

Jack Romero and found true the allegations that petitioner personally used and intentionally

discharged a firearm in committing the offense. Ex. A, 3 Clerk’s Transcript (“CT”) 605-06; ECF No.

7-5 at 116-17. On November 14, 2013, the trial court sentenced petitioner to 50 years in prison. CT

714R; ECF No. 7-5 at 243. Petitioner appealed and, on May 29, 2015, the California Court of

Appeal affirmed the judgment in an unpublished decision. (Exh. F); see also People v. Dietz, 2015

WL 3429946 (Cal. App. May 29, 2015). On September 9, 2015, the California Supreme Court
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

denied review. (Exh. H). 

II. FACTUAL BACKGROUND

Petitioner and Garicka Rush were involved in a long-term live-in relationship and had three

children together. Petitioner owned a Chevy Avalanche truck and Rush owned a silver 2004 Toyota

Sienna minivan. In 2009 or early 2010, Romero became their next-door neighbor and Rush and

Romero began a sexual relationship. Rush told petitioner about the affair and they argued about it

frequently. In May or June 2011, petitioner and Rush had a heated argument after petitioner saw a

missed call or text message from Romero on Rush’s phone. Petitioner told Rush to stop seeing

Romero or she “was going to end up making him do something stupid,” and said he dreamed about

murdering Romero. 

On June 28, 2011, Rush and Romero had plans to get together, but Rush’s sister went into

labor and Rush drove her sister to the hospital in petitioner’s Chevy Avalanche. Rush stayed at the

hospital until 9:30 p.m., but falsely told petitioner on the phone that she would be there for a few

more hours, to give herself the opportunity to spend time with Romero. At about 10:00 p.m., Rush

picked up Romero at his home and they drove to the Third Street Aleworks, a restaurant in

downtown Santa Rosa. Rush parked the Avalanche behind the restaurant, on Second and D Streets. 

They walked down a dark pedestrian alley that passed by a parking garage and entered the restaurant

through the back door. When the restaurant closed at midnight, they chatted with a few people

outside the front door. At some point, Rush noticed that Romero was gone. As she continued to

talk to the people, she heard a series of loud pops which she thought were fireworks or firecrackers. 

Billy With, Alexandra Prada and Adam Beltz were changing a flat tire on With’s car nearby

when they heard gunshots. With recalled hearing five or six shots and then, after a pause, six or

seven more shots. Prada ran toward the shots and saw a man walking to a silver minivan. With also

saw the man get into a silver minivan. Beltz saw the man holster a weapon and get into “a silver

Honda Odyssey minivan.”

Rush assumed Romero had gone back to the truck or had gone around the corner to urinate. 

Rush tried to call Romero on her phone but he did not answer. When police officers arrived, they led

Rush to an area near the alley marked with yellow tape and Rush recognized the body on the ground
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

as Romero. 

The next day, petitioner called Rush and instructed her to find a large box with two shoe

boxes inside from the garage and to retrieve a bag with a box inside from the driver’s side-wheel well

compartment of the Avalanche. He told her to dispose of the boxes in different dumpsters. Rush

followed these instructions. Police officers, who had been surveilling Rush, retrieved the items she

placed in the dumpsters. The shoe boxes contained boxes of Wolf .223-caliber ammunition, typically

used in high-powered weapons. The trash bag contained a box of Winchester Smith & Wesson .40-

caliber ammunition. Officers arrested Rush at her home and, having made the connection between

petitioner and Rush, arrested petitioner at his place of employment. 

With later identified petitioner in a photo lineup as the man he had seen walking to the van

after hearing gunshots on the night of the murder. Prada identified petitioner in a live lineup as the

man who walked to the minivan. 

Google Latitude, a location-sharing application, was installed on Rush’s and petitioner’s

cellphones. The application on Rush’s phone was installed on June 16, 2011, twelve days before the

murder. Rush testified that she was not aware that this application was on her phone. The records

from petitioner’s cellphone showed, on the night of the murder at 10:00 p.m., he saw the location of

Rush’s phone at Third and D Streets in Santa Rosa. The Latitude application on petitioner’s phone

was deleted on the morning after the shooting.

Security videos from buildings near the crime scene, taken on the night of the shooting,

showed a minivan turning on D Street near the scene of the shooting at about 11:35 p.m.,

approximately thirty minutes before witnesses heard shots fired. Rush and other witnesses testified

that petitioner’s Chevy Avalanche, which Rush drove that night, was parked on Second and D

Streets. The videos showed the minivan going past the parked Avalanche, making a u-turn mid-block

and parking near the Avalanche. A detective who later drove Rush’s silver Toyota minivan past the

same cameras during a nighttime reenactment concluded the van in the videos from the night of the

shooting looked the same as Rush's Toyota minivan. 

The forensic evidence at the scene of the shooting included 11 casings fired from a single

semiautomatic weapon. The distribution of the spent cartridges suggested the shooter was moving
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

while firing the shots. Cartridge cases from the crime scene were made by Smith & Wesson, which

was the manufacturer of one box of ammunition recovered from the dumpster. The bunter marks

(marks created by a bullet manufacturing tool that produces the head stamp on cartridge cases), on

some of the cartridges recovered from the scene were similar to those on the ammunition in the box

found in the dumpster, suggesting they were manufactured and stamped by the same tool.

The coroner found a total of 11 gunshot wounds in Romero’s body. Seven of the shots

entered the back of Romero’s body, with exit wounds on the front. One of the bullets, in Romero’s

neck, was fired from a distance of one to three feet away. A wound in Romero’s buttock was at a

sharply downward angle, suggesting the shooter was positioned above Romero when he fired.

ANALYSIS

I. STANDARD OF REVIEW

A district court may not grant a petition challenging a state conviction or sentence on the

basis of a claim that was reviewed on the merits in state court unless the state court’s 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. 2254(d). The first prong applies to

questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362,

407-09 (2000), while the second prong applies to decisions based on factual determinations, Miller El

v. Cockrell, 537 U.S. 322, 340 (2003). Under 28 U.S.C. 2254(d)(2), a state court decision “based on

a factual determination will not be overturned on factual grounds unless objectively unreasonable in

light of the evidence presented in the state-court proceeding.” Id.; see also Torres v. Prunty, 223

F.3d 1103, 1107 (9th Cir. 2000). To obtain habeas relief from a federal court, “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 of fairminded agreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). 

When there is no reasoned opinion from the highest state court to consider the petitioner’s

claims, the court looks to the last reasoned opinion from the state courts. Ylst v. Nunnemaker, 501
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

U.S. 797, 801-06 (1991). The last reasoned state court decision on petitioner’s claims is the decision

by the California Court of Appeal on direct review. 

II. ISSUES PRESENTED

A. LYING-IN-WAIT INSTRUCTION

Petitioner claims his due process rights were violated because there was insufficient evidence

to support the lying-in-wait instruction as a theory for first degree murder. 

At petitioner’s trial, the jury was instructed on two theories of first-degree murder: 

(1) willful, deliberate and premeditated murder; and (2) lying-in-wait. Under California law, lying-inwait murder consists of three elements: (1) concealment of purpose; (2) a substantial period of

watching and waiting for an opportune time to act; (3) immediately followed by a surprise attack on

an unsuspecting victim from a position of advantage. People v. Morales, 48 Cal. 3d 527, 557 (1989),

overruled on other grounds in People v. Williams, 49 Cal. 4th 405 (2010). Concealment is satisfied

if a defendant’s true intent and purpose were concealed by his actions or conduct; literal concealment

from his victim is not required. People v. Sims, 5 Cal. 4th 405, 431-33 (1993). 

A challenge to a jury instruction solely as an error under state law does not state a claim

cognizable in federal habeas corpus proceedings. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). 

To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing

instruction by itself so infected the entire trial that the resulting conviction violates due process. Id.

at 72. The instruction may not be judged in artificial isolation, but must be considered in the context

of the instructions as a whole and the trial record. Ibid. A conviction based on a general verdict is

subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on

an invalid one. Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per curiam). Such instructional error is

not structural; rather, a reviewing court must apply the harmless-error analysis set forth in Brecht v.

Abrahamson, 507 U.S. 619 (1993), and determine whether the error had a “substantial and injurious

effect or influence in determining the jury’s verdict.” Ibid.

The California Court of Appeal determined there was sufficient evidence to support the lyingin-wait instruction. This conclusion is not objectively unreasonable in light of the evidence presented

in the state court proceedings. See 28 U.S.C. 2254(d)(2). 
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

The first element, concealment, was satisfied by the following evidence. From Rush’s

testimony, it was established that petitioner was jealous of Romero because Romero and Rush were

having a sexual relationship. Rush’s testimony showed she was not aware that Google Latitude, a

tracking application, was on her cellphone. From this, the jury could infer that petitioner installed

Google Latitude on Rush’s phone, unbeknownst to Rush, for the purpose of tracking her

whereabouts. The records from petitioner’s cellphone showed he saw the location of Rush’s phone

at 10 p.m. on the night of the murder at Third and D Streets in Santa Rosa. The surveillance videos

showed that petitioner drove the Toyota minivan to that location at 11:35 p.m. on the night of the

murder. Petitioner knew it was likely he would find Romero with Rush because they had been

spending time together. This evidence establishes petitioner’s planning activity to shoot Romero, a

plan which he concealed from Romero. 

The second element, a substantial period of watching and waiting for an opportunity to act, is

satisfied by the surveillance videos showing that petitioner parked the minivan near his Avalanche,

indicating he knew Rush and, most likely, Romero were close-by. Petitioner watched and waited

approximately 30 minutes for an opportunity to act. 

The third element, a surprise attack from a position of advantage, is established by the

location of the murder in a dark alleyway which allowed petitioner to perpetrate a surprise attack on

Romero from a position of advantage. The forensic evidence established, from the location of the

ejected cartridge cases, the shooter was moving from one end of the alley to the other. There were

eight entry wounds to Romero’s back, with one close range shot from 1 to 3 feet away. Given that

the shooting occurred very soon after Romero went missing, the jury could conclude that there was

little time for discussion between the two men and that the eight wounds on Romero’s back showed

that petitioner did not shoot in self-defense. In light of this evidence, a reasonable jury could

conclude that petitioner concealed his plan to shoot Romero, that he shot Romero after he watched

and waited for an opportunity to undertake a surprise attack from a position of advantage.

Petitioner attempts to rebut the Court of Appeal’s finding by arguing that there were no

eyewitnesses who saw him at the scene and, thus, there is no evidence of what he was doing or

thinking when he “allegedly encountered decedent Jack Romero.” Although no eyewitnesses saw
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

petitioner shoot Romero, two eyewitnesses identified petitioner as the man who walked to a silver

minivan after they heard many shots fired. Furthermore, the inferences that could be drawn from the

circumstantial evidence cited above amounts to sufficient evidence to support the instruction.

Even if the lying-in-wait instruction was not supported by sufficient evidence, the error did

not have a substantial and injurious effect or influence in determining the jury’s verdict because the

jury was given an alternative instruction for the verdict, first-degree murder based on premeditation

and deliberation. As discussed in the next section, substantial evidence supported this instruction.

B. INSUFFICIENT EVIDENCE 

Petitioner claims his due process rights were violated because there was insufficient evidence

to support the jury’s finding of premeditation and deliberation. Petitioner argues there was no

evidence of what happened in the alley on the night of June 28, 2011, no evidence that he knew

Romero would be at the Third Street Aleworks that night and no evidence that he had a plan to shoot

Romero. 

Under California law, deliberate and premeditated first degree murder requires the careful

weighing of considerations in forming a course of action which is thought over in advance. People v

Mendoza, 52 Cal. 4th 1056, 1069 (2011). Three categories of evidence have been found sufficient to

sustain a finding of deliberation and premeditation: (1) the defendant's actions prior to the killing

directed toward the killing, in other words, planning the killing; (2) the defendant’s prior relationship

to or conduct toward the victim from which the jury could infer motive; and (3) the manner of the

killing from which the jury could infer that the defendant must have intentionally killed according to a

preconceived design. People v. Anderson, 70 Cal. 2d 15, 26-27 (1968).

A prisoner states a constitutional claim if he alleges that the evidence in support of his state

conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 321-24 (1979). A federal court

reviewing collaterally a state court conviction does not determine whether it is satisfied that the

evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir.

1992). The federal court “determines only whether, ‘after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of the
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

crime beyond a reasonable doubt.’” Ibid. (quoting Jackson, 443 U.S. at 319). Only if no rational

trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. 

Jackson, 443 U.S. at 324. After AEDPA, a federal habeas court applies the standards of Jackson

with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). 

Generally, a federal habeas court must ask whether the state court decision reflected an unreasonable

application of Jackson to the facts of the case. Id. at 1275 (quoting 28 U.S.C. 2254(d)). 

The California Court of Appeal reasonably concluded that a rational trier of fact could have

found beyond a reasonable doubt that petitioner killed Romero with deliberation and premeditation. 

The first element, planning, was established by evidence that petitioner and Rush had repeated

arguments about her affair with Romero. During one argument, petitioner told Rush he dreamed of

killing Romero and that if she did not stop seeing Romero, “she was going to end up making him do

something stupid.” From Rush’s testimony that she did not know the Google Latitude application 

was installed on her cellphone, the jury could infer that petitioner installed it on both his and Rush’s

cellphones, unbeknownst to Rush, for the purpose of tracking her location. The jury could

reasonably have concluded that, on the night of June 28, 2011, petitioner tracked Rush’s location

using the Latitude application and, given the ongoing relationship between Rush and Romero,

petitioner would have suspected he would find them together. The surveillance video footage from

buildings near the crime-scene support the inference that petitioner drove his vehicle to the area at

least 30 minutes before the shooting, saw his Avalanche, parked nearby and waited there. From this

evidence, the jury could reasonably have found that petitioner’s planning activity began when he

installed the Latitude application on the cellphones and continued with his tracking Rush on June 28,

2011 and then waiting until Romero appeared. 

The second element, motive, was established by the evidence that petitioner was jealous of the

ongoing sexual relationship between Romero and Rush, as shown by the frequent arguments he had

with Rush to try to persuade her to end the affair. That petitioner told Rush that he dreamed of

killing Romero shows the extent of his jealousy.

The third element, the manner of killing from which the jury could infer the killing was by

preconceived design, is shown by the forensic evidence. Petitioner shot Romero eleven times, at least
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

six shots were in Romero’s back, one gunshot wound in Romero’s neck was fired at close range and

the angle of one wound suggested petitioner was standing over Romero when he fired. The bullet

casings showed that petitioner was shooting Romero as he walked toward him and kept on shooting

as Romero attempted to run away. Petitioner could have stopped after his first shot, but kept on until

he was standing over Romero while he was on the ground and shot him again to ensure that he was

dead. Billy With, a witness at the scene, heard a series of gunshots, a pause, and then several more

shots, suggesting petitioner had time to reflect as the shooting was in progress. Viewing

this evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of premeditation and deliberation beyond a reasonable doubt. See Jackson, 443

U.S. at 319. 

C. EXCLUSION OF EVIDENCE

Petitioner claims his due process rights were violated by the trial court’s exclusion of evidence

of Romero’s gang ties and Rush’s association with violent people. 

During the trial, the defense moved for the admission of evidence that Romero was associated

with a gang and routinely carried a gun to support the defense theories of self-defense and third-party

culpability. The defense also moved to admit evidence of a 2006 incident in which petitioner’s friend,

John Purkey, confronted Rush while she was with two other men and told her he would tell

petitioner, after which the two men stabbed Purkey in his leg and thumb. Defense counsel argued this

showed petitioner knew Rush kept company with violent men and suggested he was carrying a gun

for self-protection when he went to look for her, rather than to kill Romero. Petitioner argues that, if

this evidence were admitted, even if the jury found he killed Romero, it would have been without the

planning and premeditation necessary for first-degree murder.

The trial court excluded gang evidence under California Evidence Code section 352, finding

that it was more prejudicial than probative since Romero’s alleged gang ties were in 2007 or 2008,

three years before Romero’s murder. The court also excluded evidence of the Purkey incident under

section 352, finding that it was not relevant to the case because it did not involve Romero and was

remote in time. The court allowed Rush to testify that she had seen Romero with a gun. 

“[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

excluding evidence from criminal trials.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006)

(alteration in original); see also Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (due process does not

guarantee a defendant the right to present all relevant evidence). This latitude is limited, however, by

a defendant’s constitutional rights to due process and to present a defense, rights originating in the

Sixth and Fourteenth Amendments. Holmes, 547 U.S. at 324. “[W]ell-established rules of evidence

permit trial judges to exclude evidence if its probative value is outweighed by certain other factors

such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Id. at 325-26; see

Egelhoff, 518 U.S. at 42 (the exclusion of evidence does not violate the Due Process Clause unless

“it offends some principle of justice so rooted in the traditions and conscience of our people as to be

ranked as fundamental.”). The right to present a complete defense is only implicated when the

evidence the defendant seeks to admit is “relevant and material, and . . . vital to the defense.” 

Washington v. Texas, 388 U.S. 14, 16 (1967). Moreover, a violation of the right to present a defense

merits habeas relief only if the error was likely to have a substantial and injurious effect on the verdict.

Lunbery v. Hornbeam, 605 F.3d 754, 762 (9th Cir. 2010) (citing Brecht v. Abrahamson, 507 U.S.

619, 637-38 (1993)). 

The California Court of Appeal persuasively explained why evidence of Romero’s alleged

gang association and the Purkey incident were excluded. First, because no admissible evidence

showed petitioner was aware of Romero’s gang affiliation, it was not relevant to show that petitioner

was carrying a gun to protect himself from Romero. People v. Dietz, 2015 WL 3429946, *6. 

Second, there was no admissible evidence to show that Romero might have been murdered by a rival

gang member. Ibid. Third, because the Purkey incident involved people other than Romero, it could

not explain why petitioner shot Romero nor could it help in petitioner’s theory he shot Romero in

self-defense. Id. at *7 Finally, from Rush’s testimony on cross-examination, the jury knew that

Romero was involved in illegal drug activity, that he kept a handgun under his pillow and that he

often carried a gun with him when he and Rush went out; therefore, the information about Romero’s

gang ties or the Purkey incident was not likely to have changed the result of the verdict. Ibid.; see

Brecht, 507 U.S. 637-38 (violation of right to present defense warrants habeas relief only if it was

likely to have a substantial and injurious effect on the jury’s verdict). 
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

D. PROSECUTORIAL MISCONDUCT

Petitioner claims the prosecutor committed misconduct by misrepresenting the burden of

proof to the jury. 

In his rebuttal argument, the prosecutor projected a slide from a pointillist painting by the

artist Georges Seurat and made the following comments after a defense objection was overrruled:

Post-impressionist painter, George Seurat, painted with a type of art called pointillism. 

And he would take varying colors and place dots on his paintings, to draw a picture. 

And there comes a point as in Seurat’s paintings that you have to get up from your

chair and stand back and take a look at the big picture. The totality of the

circumstances in this case. There’s a lot of evidence in this case. There are a lot of

pieces to the puzzle. And sometimes you have to stand back to get a good view to

consider it all. And that’s what Seurat did. That’s what you have to do. 

Common sense, ladies and gentlemen. If it doesn’t sound right, in the general scheme

of things, considering the totality of the circumstances, if it doesn’t fit, that puzzle

piece doesn’t fit, if it doesn’t make sense to you, if it’s not, if it doesn’t sound

reasonable to you, then it’s not reasonable. But if it sounds appropriate, if the pieces

of the puzzle fit, if it makes sense, it is reasonable. To adopt the position that Ryan

Dietz did not kill Jack Romero would be unreasonable, given the fact that all the

evidence point to Ryan Dietz. Every bit of it.

Ex. B., 39 Reporter’s Transcript (RT) 3886-87; ECF No. 7-45 at 156-57.

Petitioner argues the prosecutor’s suggestion that the jury “stand back and take a look at the 

big picture” and base its verdict on the “totality of the circumstances,” told the jury to disregard the

rule, that in a circumstantial evidence case, each link in the chain of evidence necessary to establish

guilt must be established beyond a reasonable doubt. 

A defendant’s due process rights are violated when a prosecutor’s misconduct renders a trial

“fundamentally unfair.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). Under Darden, the first

issue is whether the prosecutor’s remarks were improper; if so, the next question is whether such

conduct infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005). 

Factors which a court may take into account in determining whether misconduct rises to a level of

due process violation are: (1) the weight of evidence of guilt, see United States v. Young, 470 U.S. 1,

19 (1985); (2) whether the misconduct was isolated or part of an ongoing pattern, see Lincoln v.

Sunn, 807 F.2d 805, 809 (9th Cir. 1987); (3) whether the misconduct relates to a critical part of the

case, see Giglio v. United States, 405 U.S. 150, 154 (1972); and (4) whether a prosecutor’s comment

misstates or manipulates the evidence, see Darden, 477 U.S. at 182. In determining whether a due
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12

process violation occurred, arguments of counsel generally carry less weight than instructions from

the court. Boyde v. California, 494 U.S. 370, 384 (1990). 

In denying this claim, the Court of Appeal carefully considered the instructions given to the

jury on circumstantial evidence, the presumption of innocence, the standard of proof beyond a

reasonable doubt and the sufficiency of circumstantial evidence and, in light of these instructions,

concluded, “Asking the jury to view the evidence as a whole does not suggest they could return a

verdict without finding all of the links necessary to convict.” Dietz, 2015 WL 3429946, at *10. 

The Court of Appeal’s opinion was not contrary to or an unreasonable application of Supreme

Court authority. As indicated above, arguments of counsel carry less weight than instructions from

the court. The trial court gave the following instructions:

(1) The presumption of innocence and reasonable doubt: A defendant in a criminal

case is presumed to be innocent. This presumption requires that the People proved the

defendant guilty beyond a reasonable doubt. Whenever I tell you the People must

prove something, I mean they must prove it beyond a reasonable doubt. 39 RT 3742;

ECF No. 7-45 at 12.

(2) Before you may rely on circumstantial evidence to conclude that a fact necessary

to find the defendant guilty has been proved, you must be convinced that the People

have proved each fact essential to that conclusion beyond a reasonable doubt. 39 RT

3745; ECF No. 7-45 at 15. 

(3) Also, before you may rely on circumstantial evidence to find the defendant guilty,

you must be convinced that the only reasonable conclusion supported by the

circumstantial evidence is that the defendant is guilty. If you can draw two or more

reasonable conclusions from the circumstantial evidence, and one of those reasonable

conclusions points to innocence and another to guilty, you must accept the one that

points to innocence. 39 RT 3745; ECF No. 7-45 at 15. 

(4) You must follow the law as I explain it to you, even if you disagree with it. If you

believe that the attorneys’ comments on the law conflict with my instructions, you

must follow my instructions. 39 RT 3740; ECF No. 7-45 at 10. 

Given these instructions, it was not reasonably likely that the jury interpreted the prosecutor’s

comments about the pointillist painting to mean that it did not have to find beyond a reasonable doubt

each piece of circumstantial evidence upon which it relied. See Weeks v. Angelone, 528 U.S. 225,

234 (2000) (jury is presumed to follow its instructions). In fact, in her closing argument, the

prosecutor gave the circumstantial evidence instruction to the jury, stating, “So before you may rely

on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been

proved, you must be convinced that the People have proved each fact essential to that conclusion
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13

beyond a reasonable doubt.” 39 RT 3803; ECF No. 7-45 at 73. Under these circumstances, the

prosecutor’s use of a pointillist painting to illustrate how individual pieces of evidence come together

to produce a whole picture was not improper nor did it lessen the burden of proof. In short, the

challenged comments did not constitute prosecutorial misconduct.

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. 

A certificate of appealability will not issue because reasonable jurists would not “find the

district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529

U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from the United States Court

of Appeals. 

The clerk shall enter judgment in favor of respondent, and close the file.

IT IS SO ORDERED.

Dated: July 30, 2018. 

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE