UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DYRELL W. JONES,

Petitioner,

v.

CHRISTIAN PFEIFFER,

Respondent.

Case No. 17-cv-00466-VC (PR)

ORDER DENYING PETITION FOR 

WRIT OF HABEAS CORPUS; 

DENYING CERTIFICATE OF 

APPEALABILITY

This is a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 filed by 

California inmate Dyrell W. Jones. The case was administratively closed so that Jones could 

exhaust his claims in state court and was reopened when Jones filed a motion to lift the stay 

indicating he had exhausted all claims. Jones filed an amended petition alleging five claims: 

(1) destruction of material exculpatory evidence; (2) ineffective assistance of trial counsel; 

(3) insufficient evidence to support the grand jury indictment; (4) cumulative trial errors; and 

(5) ineffective assistance of appellate counsel. 

The respondent filed a motion to dismiss claim one because it was procedurally defaulted 

and claim three because it was not cognizable on federal habeas review. On February 28, 2020, 

the Court issued an order denying without prejudice the motion to dismiss claim one and

granting the motion to dismiss claim three. 

The respondent has filed an answer and memorandum of points and authorities in support 

of his answer on the merits of the four remaining claims and Jones has filed a traverse. For the 

following reasons, the petition is denied and a certificate of appealability will not issue.

PROCEDURAL BACKGROUND

In 2014, a Contra Costa County jury found Jones guilty of the attempted murder of a 

peace officer and of being a felon in possession of a firearm and ammunition, with an 

enhancement for personally discharging a firearm. People v. Jones, 2016 WL 4538386, *1 

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(August 31, 2016) (unpublished). After the trial court found that Jones had several prior felony 

convictions, it sentenced him to 39 years to life in prison. Id.

On August 31, 2016, the California Court of Appeal affirmed the judgment, but 

remanded for the trial court to determine if Jones was entitled to conduct credits. Id. at 1-2. On 

November 16, 2016, the California Supreme Court denied the petition for review. Ex. H.

In January 2017, Jones filed a federal habeas petition where all the claims were 

unexhausted. This Court stayed the proceedings to allow Jones to return to state court to exhaust 

his claims. On December 26, 2017, Jones filed a petition for a writ of habeas corpus in the 

Contra Costa County Superior Court alleging the first four of his federal claims, which was 

denied in a written order on February 23, 2018. Exs. I, J. On June 19, 2018, Jones filed a 

petition for a writ of habeas corpus in the California Court of Appeal with the same four claims, 

which was summarily denied on July 17, 2018. Ex. K, ECF No. 35 at 94. On September 17, 

2018, Jones filed a petition for a writ of habeas corpus in the California Supreme Court asserting 

the first four claims and an additional claim of ineffective assistance of appellate counsel; all the

claims were summarily denied on February 27, 2019. Exs. L, M. On June 13, 2019, Jones filed 

an amended federal petition.

BACKGROUND

On May 3, 2011, City of Pittsburgh Police Officer Richard Hosier attempted to make a 

traffic stop of a Cadillac that had failed to stop at a stop sign. Reporter’s Transcript (“RT”) 872-

73, 877-90; ECF No. 37-4 at 912-13, 917-930. The driver of the Cadillac did not stop even 

though the lights on the marked patrol car were on. Id. Hosier followed the Cadillac through a 

crowded shopping center and onto a street. Id. The Cadillac stopped when it hit a wall as the 

driver attempted to make a 90-degree turn at the end of a roadway. ECF No. 37-4 at 929. 

Hosier’s patrol car stopped about one car length behind the Cadillac. ECF No. 37-4 at 930. 

After the Cadillac stopped, the driver, who was later identified as Jones, exited the vehicle. Id. 

As Jones exited the Cadillac, the windshield of Hosier’s car exploded and glass shards hit him in 

the face. ECF No. 37-4 at 931. Hosier felt at least three impacts to his car. Id. Hosier started 

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firing back at Jones. ECF No. 37-4 at 933. Jones continued to shoot at Hosier as Hosier exited 

his vehicle; Hosier returned fire until his gun jammed. ECF No. 37-4 at 936. Then, Jones began 

to walk south down a little alleyway. ECF No. 37-4 at 934. Hosier did not follow because he 

felt he was defenseless with his gun not working properly. ECF No. 37-4 at 937. Hosier 

broadcast over the police radio Jones’ description, that he was wearing a red tee shirt, and his 

direction of flight. Id. 

Later that day, Jones was taken into custody at a nearby residence. ECF No. 37-4 at 892. 

Jones’ red tee shirt was later recovered from a garbage can behind the residence. ECF No. 37-4 

at 894. The tee-shirt was wrapped around a .40 caliber semiautomatic firearm that was later 

identified as the gun Jones had used to shoot at Hosier. ECF No. 37-4 at 744-45. 

LEGAL STANDARD

A federal court may entertain a habeas petition from a state prisoner “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). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a 

district court may not grant habeas relief 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); Williams v. Taylor, 

529 U.S. 362, 412 (2000). This is a highly deferential standard for evaluating state court rulings: 

“As a condition for obtaining habeas corpus 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 for fair-minded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). 

AEDPA requires a district court to presume correct any determination of a factual issue made by 

a state court unless the petitioner rebuts the presumption of correctness by clear and convincing 

evidence. 28 U.S.C. § 2254(e)(1). 

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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 of the highest court to analyze 

whether the state judgment was erroneous under the standard of § 2254(d). Ylst v. Nunnemaker, 

501 U.S. 797, 801-06 (1991). In this case, the California Superior Court is the highest court to 

issue a reasoned decision on Jones’ claims.

DISCUSSION

I. Destruction of Evidence Claim

Jones argues the prosecution intentionally destroyed two pieces of material exculpatory 

evidence: (1) the windshield of Hosier’s patrol car; and (2) the recording of Jones’ parole 

revocation hearing that occurred after the shooting but before trial. 

A. Destruction of Windshield

1. Legal Standard––Procedural Default

A federal court will not review questions of federal law decided by a state court if the 

decision also rests on a state law ground that is independent of the federal question and adequate 

to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). In cases in which 

a state prisoner has defaulted his federal claims in state court pursuant to an independent and 

adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner 

can demonstrate cause for the default and actual prejudice as a result of the alleged violation of 

federal law, or demonstrate that failure to consider the claims will result in a fundamental 

miscarriage of justice. Id. at 750.

In its previous order, the Court noted that the state habeas courts, citing In re Dixon, 41 

Cal. 2d 756, 759 (1953), dismissed this claim because it had not been raised on appeal. The 

Court found that a dismissal under Dixon had been held to be an independent and adequate 

procedural rule and concluded, “Because the [state] court dismissed claim one on a ground that is 

an independent and adequate procedural bar, this claim is procedurally barred from federal 

habeas review unless Jones can provide cause and prejudice for the default.” The Court noted 

that, in his opposition, Jones claimed he should not be held accountable if his appellate counsel 

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failed to raise this claim and surmised Jones might be attempting to argue cause and prejudice for 

his default. See Murray v. Carrier, 477 U.S. 478, 488-89 (1986). (A claim of ineffective 

assistance of counsel may constitute cause). Therefore, the issue now is whether Jones has 

established cause and prejudice for his default, which first requires the Court to determine if 

Jones has successfully established a claim of ineffective assistance of appellate counsel.

2. Ineffective Assistance of Appellate Counsel

Because Jones submitted this claim only to the California Supreme Court which issued a 

summary denial, this Court must conduct “an independent review of the record” to determine 

whether the state court’s decision was an objectively unreasonable application of clearly 

established federal law. See Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). 

When undertaking an independent review of the record, the federal court must still apply the 

deference required by § 2254(d)(1). Harrington, 562 U.S. at 98-100.

a. Legal Standard––Ineffective Assistance of Appellate Counsel

To prevail on a claim of ineffective assistance of appellate counsel, Jones must not only 

show that appellate counsel’s failure to raise the destruction of windshield claim was objectively 

unreasonable, but also that he was prejudiced by counsel’s performance, which in this context 

means that Jones must demonstrate a reasonable probability that, but for appellate counsel’s 

failure to raise the issue, Jones would have prevailed in his appeal. Smith v. Robbins, 528 U.S. 

259, 285 (2000) (like claims of ineffective assistance of trial counsel, claims of ineffective 

assistance of appellate counsel are evaluated under the standards set forth in Strickland v. 

Washington, 466 U.S. 668 (1984)). It is important to note that appellate counsel does not have a 

constitutional duty to raise every nonfrivolous issue requested by the defendant. Jones v. 

Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997). 

The weeding out of weaker issues is widely recognized as one of the hallmarks of effective 

appellate advocacy. Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Appellate counsel 

therefore will frequently remain above an objective standard of competence and have caused his 

client no prejudice for the same reason: because he declined to raise a weak issue. Id.

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b. Legal Standard––Destruction of Evidence

The government has a duty to preserve material evidence, i.e., evidence whose 

exculpatory value was apparent before it was destroyed and that is of such a nature that the 

defendant cannot obtain comparable evidence by other reasonably available means. California v. 

Trombetta, 467 U.S. 479, 489 (1984); Grisby v. Blodgett, 130 F.3d 365, 371 (9th Cir. 1997).

Although the good or bad faith of the police is irrelevant when the police destroy material 

exculpatory evidence, when the evidence is only potentially useful there is no due process 

violation unless there is bad faith conduct by the police. Illinois v. Fisher, 540 U.S. 544, 547-48 

(2004); Arizona v. Youngblood, 488 U.S. 51, 58 (1988); United States v. Sivilla, 714 F.3d 1168 

(9th Cir. 2013). Potentially useful evidence is “evidentiary material of which no more can be 

said than that it could have been subjected to tests, the results of which might have exonerated 

the defendant.” Youngblood, 488 U.S. at 57. A Youngblood violation will be found only if the 

petitioner shows: (1) the government acted in bad faith, the presence or absence of which turns 

on the government’s knowledge of the apparent exculpatory value of the evidence at the time it 

was lost or destroyed; and (2) the missing evidence is “of such a nature that the defendant would 

be unable to obtain comparable evidence by other reasonably available means.” Sivilla, 714 F.3d 

at 1172. See, e.g., Fisher, 540 U.S. at 547-48 (no bad faith failure to preserve substance seized 

from defendant which had been tested four times and determined to be cocaine; the substance 

was only potentially useful evidence because defendant at most could hope he could conduct 

another test that might show the substance was not cocaine); Sivilla, 714 F.3d at 1172 

(government did not act in bad faith where exculpatory value of destroyed vehicle was not 

obvious).

B. Analysis of Claim of Ineffective Assistance of Appellate Counsel for Failing to 

Raise Destruction of Windshield on Appeal

Appellate counsel’s performance was not deficient for two reasons. First, appellate 

counsel would know that raising the issue on appeal would be futile––because trial counsel did 

not object to the destruction of the windshield, the claim on appeal would be procedurally 

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defaulted under People v. Chism, 58 Cal. 4th 1266, 1300 (2014), which held that Trombetta

claims that could have been raised during the trial, but were not, are forfeited on appeal. Counsel 

cannot be faulted for not submitting a futile claim on appeal. See Martinez v. Ryan, 926 F.3d 

1215, 1226 (9th Cir. 2019) (failure to raise meritless argument does not constitute ineffective 

assistance).

Second, even on the merits, counsel would know the claim was futile because failure to 

preserve the windshield was not prejudicial. During the trial, officers testified that there were 

seven bullet holes in the windshield––six tightly clustered holes in the center of the windshield

and one hole isolated from the rest. ECF No. 37-4 at 1377. Detective Edgar Sanchez, who was 

trained in crime scene investigation and reconstruction, testified that the six clustered holes in the 

windshield were made by shots originating from within the cabin of the patrol car and the one 

isolated hole was made from a bullet originating from outside the vehicle. ECF No. 37-4 at 783, 

785-86. Sanchez also found six .45 caliber casings inside the police car. ECF No. 37-4 at 811. 

The defense presented testimony from private criminalist, Peter Barnett. ECF No. 37-4 at 

1500. Barnett examined photographs of Hosier’s vehicle including the windshield, he did not 

examine the windshield itself. ECF No. 37-4 at 1504-05. From the photographs, Barnett 

concluded there was a group of six bullet holes in the center of the windshield and a seventh 

bullet hole to the left, near the top of the windshield. ECF No. 37-4 at 1516. He determined that 

at least one of the clustered holes had come from inside the patrol car. ECF No. 37-4 at 1516-17. 

He could not determine where the other five bullet holes had originated from. ECF No. 37-4 at 

1517. Barnett testified that the seventh bullet hole to the left and near the top of the windshield 

had originated from outside the vehicle. ECF No. 37-4 at 1519. 

Thus, the only difference between the testimony of the prosecution’s expert and the 

defense expert was that the prosecution’s expert opined that all six of the clustered bullet holes 

originated from inside the vehicle and the defense expert could only determine that one of the six 

clustered bullet holes originated from within the vehicle. Both experts agreed that the single 

bullet hole to the upper left of the windshield originated from outside the vehicle. Therefore, the 

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prosecution’s witness was more damaging to the prosecution’s case than the defense witness’s 

testimony. It is difficult to ascertain what further exculpatory evidence could have been obtained 

from the defense expert’s examination of the actual windshield. 

Jones argues the actual windshield would have been useful to determine who shot first.

But defense expert Barnett testified that he could not determine who shot first because the 

windshield was made of laminated glass and, “You can’t determine the sequence of bullet holes 

through laminated glass with any degree of reliability.” ECF 37-4 at 1537. Therefore, Jones’ 

own expert’s testimony establishes that the actual windshield would not have yielded 

exculpatory evidence. 

Based on the above, had appellate counsel raised this claim on appeal, it would have been 

denied even if the court reached the merits. Counsel’s performance was not deficient for failing 

to raise a weak claim. Furthermore, because the claim would have been denied, Jones cannot 

show that, but for counsel’s failure to raise this claim, the outcome of his appeal would have 

been different.

An independent review of the record shows that the California Supreme Court’s denial of 

the claim of ineffective assistance of appellate counsel based on counsel’s failure to raise the 

claim of destruction of the windshield was not contrary to or based on an unreasonable 

application of Supreme Court authority. And, because Jones has not established ineffective 

assistance of appellate counsel, he has not established cause for his default in state court.

This claim is denied because it is procedurally defaulted and, as discussed above, it is 

also denied on its merits.

C. Destruction of Probation Hearing Transcript

1. State Court Proceedings

During the trial, defense counsel moved to dismiss the case on the ground that the 

prosecution had intentionally destroyed a recording of Jones’ June 21, 2011 parole revocation 

hearing held by the California Board of Prison Terms (“BOP”). The motion stated, in relevant 

part:

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The exculpatory value of the recording is plain. The recording 

contains statements of witnesses, specifically Officer Hosier, that 

very likely conflict with Officer Hosier’s initial description of 

events and his sworn Grand Jury testimony.

The destruction of the recording denies the defense the opportunity 

to present a defense, as Mr. Jones asserts that the recording would 

actually exonerate him of the alleged crimes. . . . 

The recording was destroyed in bad faith. First, the act of the 

Pittsburgh Police Department allowing the California Department 

of Corrections to destroy the recording is plainly attributable to the 

state. . . . Detective Reposa, a police officer employed by the City 

of Pittsburg, should have known the significance of the recording.

ECF No. 35 at 38-39. 

The trial court held a hearing on the motion to dismiss. ECF No. 37-4 at 839-865. At the 

hearing both parties agreed that the recording was destroyed after one year by the BOP pursuant 

to their routine procedures. ECF 37-4 at 847, 853. After argument on the motion, the court 

denied it as follows, in relevant part:

I’m going to deny the motion to dismiss. There are a number of 

reasons. I don’t think the predicate requirements for a Trombetta

violation have been met. I don’t find the evidence was exculpatory 

and certainly not at the time that the statement was made, even if it 

was later held to be exculpatory.

I don’t believe the destruction of the evidence was done in bad 

faith. I don’t agree that the evidence is not replaceable. And I 

don’t believe that the act of destruction can be attributed to the 

Pittsburg Police Department. 

. . .

There’s no case authority that I’ve been presented with which 

would support the finding that the Pittsburgh Police Department 

and the Board of Parole Hearings are connected in the way that the 

term “prosecution team” is normally understood. If these were 

recordings that the police department had that they destroyed or 

that some other law enforcement agency in the county that was 

working on this case . . . had destroyed, that would be a different 

issue in terms of attributing the conduct to the police department. 

. . .

I think Officer Hosier testified, was available for crossexamination. And the few cases that deal with this issue have said 

that that is often sufficient to remedy what would otherwise be a 

violation on Trombetta. 

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ECF No. 37-4 at 1307-10.

The state habeas court denied this claim because Jones did not “explain how preservation 

of those statements would have helped his defense.” ECF No. 37-11 at 5.

2. Analysis

The Trombetta claim based on the destruction of the video of the parole revocation 

hearing fails. There is no question that the prosecution should have taken measures to ensure 

that the recording was not destroyed. But because the recording was only potentially 

exculpatory, the claim falls under Youngblood, which requires that the petitioner establish the 

police destroyed the evidence in bad faith. Youngblood, 488 U.S. at 58. Jones cannot establish 

bad faith on the part of the police because the police did not destroy the recording. The 

recording was destroyed by the BOP pursuant to its administrative policy which required the 

destruction of such recordings after one year. Jones has not cited authority imputing the acts of 

the BOP, a distinct state entity, to the Pittsburgh Police Department or to the Contra Costa 

County prosecutor’s office. 

The denial of this claim by the state courts was not contrary to or an unreasonable 

application of Supreme Court authority.

II. Ineffective Assistance of Counsel

Jones argues his trial counsel was ineffective by failing to impeach Officer Hosier and 

eyewitness Samuel Isaac and by failing to obtain Hosier’s personnel file. The state court, citing 

People v. Richardson, 43 Cal. 4th 959, 1038 (2008) and In re Dixon, 41 Cal. 2d at 759, denied 

all the ineffective assistance of counsel claims as barred because they could have been raised on 

direct appeal, but were not. ECF No. 37-11 at 3-4. As stated previously, the Dixon bar is an 

independent and adequate procedural rule which bars review of these claims in federal habeas 

proceedings unless Jones establishes cause and prejudice for the default. As discussed 

previously, Jones fails to do this. Therefore, these claims are procedurally barred. 

Even if they are not procedurally barred, the claims fail on the merits. 

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A. Legal Standard

To prevail on a Sixth Amendment claim for ineffectiveness of counsel, a petitioner must 

establish two things. First, he must establish that counsel’s performance was deficient, i.e., that 

it fell below an “objective standard of reasonableness” under prevailing professional norms. 

Strickland, 466 U.S. at 688. Second, he must establish that he was prejudiced by counsel’s 

deficient performance, i.e., that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A 

reasonable probability is a probability sufficient to undermine confidence in the outcome of the 

proceedings. Id.

A “doubly” deferential judicial review is appropriate in analyzing ineffective assistance 

of counsel claims under § 2254. Cullen v. Pinholster, 563 U.S. 170, 202 (2011); Premo v. 

Moore, 562 U.S. 122-23 (2011). The general rule of Strickland, i.e., to review a defense 

counsel’s effectiveness with great deference, gives the state courts greater leeway in applying 

that rule, which in turn “translates to a narrower range of decisions that are objectively 

unreasonable under AEDPA.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). When 

§ 2254(d) applies, “the question is not whether counsel’s actions were reasonable. The question 

is whether there is any reasonable argument that counsel satisfied Strickland’s deferential 

standard.” Harrington, 562 U.S. at 105.

B. Officer Hosier

Jones argues trial counsel was deficient because he failed to cross-examine Hosier on 

inconsistencies in his various statements. Jones points out that Hosier told Detective Reposa that 

he fired a single shot through his windshield, but evidence showed Hosier fired at least six shots 

from inside his patrol car. Jones also points out that Hosier told Sergeant DuPont that he fired 

two shots before his gun jammed, but at the trial, the prosecution’s expert, who tested Hosier’s

gun, found it was in working order.

A review of the record shows that counsel did cross-examine Hosier on the issues Jones 

raises. On direct examination, Hosier testified he did not know, at the time, how many rounds he 

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fired from inside the patrol car. ECF 37-4 at 933-34. Hosier testified that, after he exited his 

vehicle, he shot once at Jones and then his gun jammed. ECF 37-4 at 936. 

On cross-examination, the following colloquy took place:

Q: Earlier you testified that when – the person you’ve 

identified as Mr. Jones, when he came out of the car, you 

described the arm being extended, correct?

A: That’s correct.

Q: When you were describing the incident to Detective 

Reposa, you actually described the incident in the 

following way: “That it was so quickly, I didn’t see his 

hand come up and point at me.” Do you recall saying that?

A: No.

Q: Would looking at a transcript of the interview refresh your 

recollection?

A: It might.

ECF No. 37-4 at 974.

Defense counsel then gave Hosier a copy of the transcript to read, and when Hosier said 

that did not refresh his recollection, defense counsel played a recording of Hosier’s interview 

with Reposa. ECF 37-4 at 975. After the recording was played, counsel’s cross-examination of 

Hosier continued:

Q: Do you recall, today, sitting in the car at the time of the 

gunshots and you taking out your firearm; correct?

A: That’s correct.

Q: And firing through the windshield; correct?

A: That’s correct.

Q: And you told Detective Reposa back on May 3rd, 2011, 

that you fired a single shot through the windshield; is that 

correct?

A: That’s correct.

. . .

Q: I’m going to show you what’s been marked as Defense 

Exhibit K. . . . Okay. This photograph is the interior of

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your patrol car; is that correct?

A: That’s correct.

Q: All right. And when I refer to this photograph, it’s Defense 

Exhibit Triple K, is that an accurate depiction of your 

windshield after the incident?

A: That’s correct.

Q: Okay. The windshield appears to depict multiple bullet 

holes in the – just above the steering wheel; is that correct?

A: That’s correct.

. . .

Q: And I’m going to point with my pen right here. These 

appear to be bullet holes; is that correct?

A: That’s correct

Q: And there’s a total of one, two, three, four, five, six bullet 

holes just above – what appears to be bullet holes just 

above the dash; is that correct?

A: That’s correct

Q: And if you look to the upper left of the Defense Exhibit 

Triple K, there is a bullet hole in the upper left corner; is 

that correct?

A: That’s correct.

Q: Just beyond the bullet holes, you can see, beyond the 

windshield, the location of the – Mr. Jones’ Cadillac; is that 

correct?

A: That’s correct. 

Q: And it appears, based on this picture, that the Cadillac is 

directly in front of those bullet holes; is that correct?

A: That’s correct.

Q: When you were speaking with – I’m going to go back to 

your interview with Sergeant DuPont . . . When you were 

speaking with Sergeant DuPont on May 3rd, just after the 

incident, you indicated to him that you had fired – based on 

what you recalled, you had fired two shots; is that correct?

A: I believe I told him three.

Q: Would looking at the summary of your statement from 

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Sergeant DuPont’s report refresh your recollection?

A: It could.

[Hosier reads report]

Q: Does that refresh your recollection?

A: Yeah.

Q: Okay. . . . So you recall telling Sergeant DuPont at that 

time that you had fired two rounds – getting – to use the 

wording in here, “Getting off two rounds before the gun 

jammed;” is that correct?

A: Yeah. Because I could only see two casings in the car at 

the time.

Q: Understood. But in terms of what you told him, do you 

recall making that statement?

A: I may have said that to him. I don’t exactly recall. It was 

chaos at the moment. I may have told him two. I may have 

told him more. I don’t know.

Q: Understanding that you had just been in a situation where 

you were exchanging gunfire – very stressful situation; is 

that a fair statement?

A: Very fair statement.

Q: After you had that conversation with Sergeant DuPont, as 

we discussed just a little while ago, you had a subsequent 

interview with Detective Reposa; is that right?

A: That’s correct.

Q: And I believe you said you recalled telling the detective 

that you had fired only a single shot through the 

windshield; is that right?

A: According to the – according to my statement I did, yes.

Q: I’m going to refer back to, I think, what has been referred 

to – what is Defense Exhibit Triple K, the windshield, I 

think as we’ve discussed, indicates far more gunshots than 

that; is that a fair statement?

A: That’s correct.

ECF No. at 976-80.

As the colloquy reveals, defense counsel did exactly what Jones criticizes him for failing 

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to do. Counsel cross-examined Hosier on his inconsistent statements about how many shots he 

fired from within the patrol car. Counsel carefully laid out, for the jury to hear, that Hosier first 

told an officer he fired one shot and, in a later interview, he told a sergeant he fired two shots. 

Defense counsel then showed Hosier the photograph of the windshield of his patrol car which 

showed at least six bullets had been fired through the windshield, which experts opined had 

come from within the vehicle. 

Regarding Hosier’s statement that his gun jammed, Jones points to no statement Hosier 

made that his gun did not jam. Therefore, counsel could not impeach Hosier with a prior 

inconsistent statement on this issue. However, the prosecution’s gun expert testified that she 

tested Hosier’s gun and found the gun functioned properly. ECF 37-4 at 1075-79. Therefore, 

Hosier’s credibility about the gun jamming was placed into question by the prosecution’s own 

witness. In his closing statement, counsel emphasized the inconsistencies in Hosier’s testimony, 

including his mistake about the number of bullets he fired from within his patrol car and his 

claim that his gun jammed, which was disputed by the prosecution’s gun expert. ECF No. 37-4 

at 1741-42. He summed up Hosier’s testimony to the jury by stating, “All of these points, all of 

these issues, undermine the credibility of the officer’s testimony and the credibility of his claims 

about what happened on May 3rd, 2011.” ECF No. 37-4 at 1742.

Based on this record, Jones has failed to show defense counsel was ineffective in crossexamining Hosier.

B. Samuel Isaac

Jones points out that, when questioned by a police detective, eye-witness Samuel Isaac 

stated that Jones had his back to Hosier and that he saw Hosier pointing his weapon at Jones 

when Hosier was standing outside his patrol car. However, when asked about this by defense 

counsel, Isaac stated, “I don’t remember telling him that.” Jones also notes Isaac testified he did 

not remember telling the detective that he heard two more gunshots after seeing a black male 

running toward him or that the black male was limping. Jones argues counsel was ineffective for 

failing to adequately cross-examine Isaac on these points. ECF No. 35 at 27.

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Isaac was a defense witness. On direct examination, defense counsel elicited testimony 

from Isaac that he did not ever see a gun in Jones’ hand and he never saw Jones point a gun in 

the direction of Hosier. ECF No. 37-4 at 1225-26. This testimony was helpful to Jones’ defense. 

And, defense counsel, on cross-examining prosecution witness Detective McSorley, elicited 

testimony that, when McSorley interviewed Isaac after the shooting, Isaac told him, “when he 

looked out of his office window, he saw a police officer pointing a gun directly at a black male 

adult.” ECF No. 37-4 at 1234. Counsel also elicited the following testimony from McSorley: 

(1) Isaac told him the black male adult was running toward a drive-through and, as Isaac was 

watching, he heard two more pops, or gunshots; and, (2) Isaac told him the black male appeared 

to be limping as he was running away from the officer. ECF No. 37-4 at 1234-35. Thus, even 

though counsel did not elicit the exculpatory evidence Jones argues he should have from crossexamining Isaac, counsel did elicit this information during his cross-examination of McSorley.

Because defense counsel elicited the testimony that Jones claims he did not, Jones’ claim 

of ineffective assistance of counsel fails. 

C. Pitchess Motion

 Jones argues counsel was ineffective for failing to move for discovery of Hosier’s 

personnel file under Pitchess v. Superior Court, 11 Cal. 3d 531 (1974), codified in sections 1043 

through 1045 of the California Code of Evidence. 

In addition to holding that this claim was procedurally defaulted, the state court denied it 

on the merits, as follows:

Petitioner contends only that a Pitchess motion “should have been 

filed on EVERY officer to check, if not discredit the . . . service, 

conduct, [and] character.”

Thus, petitioner has not pleaded a prima facie showing for claim 2. 

See In re Reno, 55 Cal. 4th 428, 483 (2012) (reiterating the 

principle that “vague, conclusory allegations” in a habeas petition 

are subject to summary dismissal); In re Avena, 12 Cal. 4th 694, 

730 (1996) (rejecting an IAC claim “that [trial counsel] was 

constitutionally ineffective for failing to make a Pitchess motion 

where petitioner did “not present any evidence — other than his 

bare assertion . . . . He [did] not show, for example, what [trial 

counsel] would have discovered had he made a Pitchess motion.”) 

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(emphasis added).

ECF No. 37-11 at 4-5.

Under state law, a defendant may, in some instances, make a motion under Pitchess to 

compel the discovery of evidence in the arresting officer’s personnel file that is relevant to the 

defendant’s ability to defend against a criminal charge. People v. Mooc, 26 Cal. 4th 1216, 1219 

(2001). The motion must be supported by affidavits showing good cause for the discovery, by 

demonstrating the materiality of the information to the pending litigation and by stating upon 

reasonable belief that the police agency has the records or information at issue. Warrick v. 

Superior Court, 35 Cal. 4th 1011, 1019 (2005). The information sought must be “requested with 

adequate specificity to preclude the possibility that defendant is engaging in a ‘fishing 

expedition.’” City of Santa Cruz v. Municipal Court, 49 Cal. 3d 74, 94 (1989).

Jones theorizes that because Hosier gave “multiple inconsistent statements regarding the 

events of the shooting prior to trial,” a reasonable attorney would have moved to access his 

personnel information. ECF No. 35 at 28-29. He then speculates that the personnel file would 

provide prior incidents of use of force, allegations of excessive force, citizen complaints and 

information gathered during the officer’s pre-employment background investigation, all of which 

could be relevant to impeaching Officer Hosier’s credibility. ECF No. 35 at 29.

It seems likely that counsel should have attempted to obtain Hosier’s personnel file. 

After all, this was a case in which Hosier testified that Jones shot at him. But the Court cannot 

say that any reasonable jurist would conclude that defense counsel’s failure to seek the personnel 

file constituted deficient performance. Under California law, an affidavit supporting a Pitchess

motion must show the materiality of the information to the pending litigation. Because Jones 

only speculates about the information that would be found in Hosier’s personnel file, counsel 

could have reasonably believed that making such a motion would be futile because it would have 

been denied. See Burciaga v. Warden, 2018 WL 6133723, *11 (C.D. Cal. 2018) (mere 

speculation that there might be useful information in an officer’s personnel file does not support 

a Pitchess motion); Edmonds v. Foulk, 2015 WL 1306492, *7 (N.D. Cal. 2015) (denying 

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ineffective assistance claim because petitioner did not show what Pitchess motion likely would 

have uncovered); Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (trial counsel cannot 

have been ineffective for failing to raise a meritless motion). 

Similarly, the Court cannot say that any reasonable jurist would conclude that Jones was 

prejudiced by the failure to seek the personnel file. Jones has not shown that Hosier’s personnel 

file contained anything that would have assisted his case, let alone have persuaded the jury that 

its verdict should have been different. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir.1997) 

(mere speculation about evidence possibly contained in an officer’s personnel files is insufficient 

to demonstrate petitioner was prejudice by counsel’s failure to file Pitchess motion); Hill v. 

Curry, 2008 WL 2024987, *9-10 (N.D. Cal. May 8, 2008) (same).

Therefore, the state court’s denial of this claim was not contrary to or an unreasonable 

application of Supreme Court authority. 

III. Cumulative Error

Jones argues that the cumulative effect of the alleged constitutional errors violated his 

right to a fair trial. In some cases, although no single trial error is sufficiently prejudicial to 

warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much 

that his conviction must be overturned. Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 

2003). However, Jones has not shown that the alleged errors—even if they were indeed errors—

cast meaningful doubt on the verdict. 

IV. Ineffective Assistance of Appellate Counsel

In his petition to the California Supreme Court, Jones argued appellate counsel was 

ineffective for not raising any of the three claims addressed above. In the previous section on 

procedural default, the Court concluded Jones did not establish appellate counsel was ineffective 

for failing to raise a Trombetta claim about the destruction of the windshield. The Court has also 

concluded that Jones failed to establish his Trombetta claim about the destruction of the parole 

hearing video, his ineffective assistance of counsel claims or his cumulative error claim. 

Therefore, the California Supreme Court’s denial of this claim was not contrary to or an 

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unreasonable application of Supreme Court authority.

CONCLUSION

For the reasons stated above, the petition for a writ of habeas corpus is DENIED. A 

certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in which 

“reasonable jurists would find the district court’s assessment of the constitutional claims 

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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

IT IS SO ORDERED.

Dated: February 26, 2021

______________________________________

VINCE CHHABRIA

United States District Judge

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