Frausto v. Ndoh et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
EDGAR LOPEZ FRAUSTO,
Plaintiff,
v.
ROSEMARY NDOH; XAVIER
BECERRA,
Defendants.
Case No. 19-cv-0544-BAS-LR
ORDER:
1. OVERRULING PLAINTIFF’S
OBJECTIONS
(ECF No. 35);
2. ADOPTING REPORT AND
RECOMMENDATION
(ECF No. 34); AND
3. DENYING FIRST AMENDED
PETITION FOR WRIT OF
HABEAS CORPUS
(ECF No. 20)
Petitioner Edgar Lopez Frausto, a state prisoner, filed a first amended petition for a
writ of habeas corpus (“petition”) in district court. (ECF No. 20.) Presently before the Court
is a Report and Recommendation (“R&R”) from Magistrate Judge Lupe Rodriguez, Jr.
recommending denial of the petition. (ECF No. 34.) Petitioner filed an objection to the
R&R, to which the state government did not respond. (ECF No. 35.)
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For the reasons stated in this Order, the Court overrules Plaintiff’s objections to the
R&R, approves and adopts the R&R in its entirety, and denies the petition.
I. 	BACKGROUND
A. 	Procedural
On October 23, 2015, a jury convicted Petitioner of first-degree murder (Cal. Penal
Code § 187(a)), kidnapping for ransom with the infliction of great bodily harm (Cal. Penal
Code § 209(a)), and returned true findings on the special circumstances of kidnapping (Cal.
Penal Code § 190.2(a)(17)(b)), torture (Cal. Penal Code § 190.2(a)(18)), and criminal street
gang activity (Cal. Penal Code § 186.22(b)). (R&R at 5, ECF No. 34.) The trial court
declared a mistrial on additional murder charges due to juror misconduct. (Id.) Petitioner
was sentenced to two consecutive life terms in state prison without the possibility of parole.
(Id.)
A separate jury convicted Petitioner of making criminal threats against sheriff’s
deputies (Cal. Penal Code § 422), while he awaited trial on the murder and kidnapping
charges. (Id.) The trial court sentenced him to sixty years to life. (Id.)
Petitioner filed a consolidated appeal of both convictions to the California Court of
Appeal. Petitioner argued the following with respect to his murder and kidnapping case:
(1) the trial court erred by failing to conduct an inquiry after it was advised of potential
juror bias; (2) insufficient evidence corroborated the accomplice’s testimony; and (3) a
rebuttal witness gave improper opinion on the veracity of the accomplice. (Id.) Petitioner
argued the following with respect to his criminal threats case: (1) the trial court improperly
removed a juror during deliberations; (2) the prosecutor committed misconduct during
rebuttal argument by mischaracterizing the presumption of innocence and diluting the
burden of proof; and (3) the California Court of Appeal should independently review sealed
police personnel records. (Id.)
The California Court of Appeal determined that: (1) the trial court had no sua sponte
duty to inquire regarding the alleged juror misconduct; (2) corroborating evidence
supported the accomplice testimony; (3) the rebuttal witness did not improperly vouch for
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the accomplice’s veracity; (4) the trial court did not err in removing a holdout juror during
deliberations; (5) the prosecutor did not commit misconduct because there was no
reasonable likelihood the jury understood or misapplied the prosecutor’s argument; and (6)
the trial court did not abuse its discretion when it denied Petitioner’s motion. (Id. at 5–6.)
Petitioner then filed a petition for review in the California Supreme Court, raising
the same claims he raised before the state appellate court. (Id. at 6.) The California Supreme
Court denied the petition on May 9, 2018. (Id.)
B. 	State Habeas
On August 8, 2017, Petitioner filed a habeas petition in the California Court of
Appeal, alleging that: (1) a juror committed misconduct by lying on her questionnaire and
providing other jurors with extraneous information, and (2) trial counsel rendered
ineffective assistance by failing to investigate juror misconduct and to move for a new trial.
(Id.)
The California Court of Appeal issued an order to show cause, returnable before the
Superior Court of San Diego County, requiring the prosecution to demonstrate why the
relief sought in the petition should not be granted. (Id.) In response to this order to show
cause, the Superior Court conducted a four-day evidentiary hearing and denied the petition
on the merits. (Id.)
Petitioner then sought relief in the California Court of Appeal, which adopted the
Superior Court’s reasoning and denied the petition. (Id.) Petitioner further presented his
habeas claims to the California Supreme Court, which denied relief on July 24, 2024. (Id.
at 7.)
C. 	Federal Petition
On March 22, 2019, Petitioner—then proceeding pro se—commenced federal
habeas corpus proceedings pursuant to 28 U.S.C. § 2254. (Id.; ECF No. 1.) The Court
stayed the matter on July 31, 2019, pending resolution of the related state habeas petition.
(R&R at 7; ECF No. 9.) After retaining counsel, Petitioner filed a first amended petition.
(R&R at 7; ECF No. 20.) The petition asserts the following: (1) the trial court erred by
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allowing counsel for the prosecution’s principal witness, a cooperating accomplice, to
testify regarding her client’s credibility, and (2) juror misconduct denied Petitioner his right
to a fair and impartial jury, based on a juror’s association with a rival gang, disclosure of
extrinsic evidence during deliberations, and statements during deliberations reflecting bias
against Petitioner. (R&R at 7; ECF No. 20-1.)
Respondent filed an answer to the petition. (R&R at 7; ECF No. 29.) Petitioner filed
a traverse, and Respondent filed a sur-reply. (R&R at 7; ECF Nos. 31, 33.)
D. 	Report and Recommendation
In Judge Rodriguez’s R&R, he addressed each of Petitioner’s arguments. He found
that: (1) Petitioner’s improper-vouching claim does not warrant habeas relief because, (a)
the prosecutor’s conduct was not misconduct at all, and even if it were, it fell short of a due
process violation under 28 U.S.C. § 2254(d)(1), and (b) the state courts’ determinations
were not unreasonable in light of the evidence presented under 28 U.S.C. § 2254(d)(2); and
(2) habeas relief on Petitioner’s juror misconduct claim is unwarranted because the state
courts did not unreasonably determine the facts in light of the evidence presented in state
court proceedings under 28 U.S.C. § 2254(d)(2).
II. 	LEGAL STANDARDS
A. 	Scope of Review
The district court reviews de novo those portions of a magistrate judge’s report and
recommendation to which objections are made. 28 U.S.C. § 636(b)(1)(C). The district court
may “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” Id. “The statute [28 U.S.C. § 636(b)(1)(c)] makes it clear,”
however, “that the district judge must review the magistrate judge’s findings and
recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-
Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). “Neither the
Constitution nor the statute requires a district judge to review, de novo, findings and
recommendations that the parties themselves accept as correct.” Id. Objections must be
written and specific. See Fed. R. Civ. P. 72(b)(2) (stating that a “party may serve and file
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specific written objections to the proposed findings and recommendations” of the
magistrate judge).
B. 	Federal Habeas Corpus
To obtain federal habeas relief, a petitioner must show 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 of 1996 (“AEDPA”), federal habeas
relief is unavailable for claims adjudicated on the merits in state court unless one of two
exceptions applies. 28 U.S.C. § 2254(d); see Woodford v. Visciotti, 537 U.S. 19, 24–25
(2002) (per curiam) (“[A] federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the state-court decision applied [the law]
incorrectly.”); Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (discussing that “Section
2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in
the state criminal justice systems,’ not a substitute for ordinary error correction through
appeal” (citation omitted)). AEDPA states in relevant part:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim—
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2) 	resulted 	in 	a 	decision 	that 	was 	based 	on 	an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
First, the exception for clearly established federal law. Clearly established federal
law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as
of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412
(2000).
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A state-court decision is “contrary to” clearly established federal law if it: (1)
“applies a rule different from the governing law set forth in [Supreme Court] cases,” or (2)
“decides a case differently than [the Supreme Court] has done on a set of materially
indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002); Williams, 529 U.S. at
405–06.
An “unreasonable application” of clearly established federal law occurs where the
state court “identifies the correct governing legal principle [from the Supreme Court’s
decisions] but unreasonably applies that principle to the facts of the prisoner’s case.”
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 413). “[A]
federal habeas court may not issue [a] writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 75–76 (citation omitted).
Second, the exception for unreasonable determination of the facts. A federal court
may not overturn a state court’s factual determinations unless they were objectively
unreasonable in light of the evidence presented in state court. See Wood v. Allen, 558 U.S.
290, 301 (2010); Rice v. Collins, 546 U.S. 333, 341–42 (2006) (noting that reasonable
disagreement 	among 	jurists 	does 	not 	render 	a 	state 	court 	decision 	objectively
unreasonable).
Moreover, a district court presumes that the state court’s factual findings are correct,
and a petitioner may overcome that presumption only by “clear and convincing evidence.”
28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473–74 (2007) (explaining
that federal habeas courts “presume the correctness of state courts’ factual findings unless
applicants rebut this presumption with ‘clear and convincing evidence’”).
III. 	ANALYSIS
Petitioner lodges two objections to the R&R. Petitioner first argues that the
prosecutor in fact committed misconduct and that the misconduct rose to the level of a due
process violation. (Objection to the R&R (“Obj.”) at 6–8, ECF No. 35.) Second, Petitioner
asserts that juror misconduct did in fact occur, citing corroborating accounts from other
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jurors and the remark “haven’t you convicted him yet?” as demonstrating actual bias. (Obj.
at 8–9.)
A. 	Prosecutorial Misconduct Claim
Petitioner contends that the prosecutor improperly vouched for the accomplice’s
credibility by eliciting testimony that the prosecution required corroboration of the
accomplice’s statements before offering him a cooperation agreement. Petitioner also
argues that the prosecutor elicited the accomplice’s attorney’s opinion that the accomplice
was credible.1
Generally, prosecutorial misconduct claims may be raised on federal habeas review.
See Darden v. Wainwright, 477 U.S. 168, 181 (1986). The appropriate standard of review
is the “narrow one of due process[.]” Id. A defendant’s due process rights are violated when
a prosecutor’s misconduct renders a trial “fundamentally unfair.” 	Id. One form of
prosecutorial misconduct is vouching for the credibility of a witness. United States v.
Young, 470 U.S. 1, 18–19 (1985). A prosecutor may not vouch for the credibility of a
witness or express his personal opinion regarding the guilt of the accused because such
statements “can convey the impression that evidence not presented to the jury, but known
to the prosecutor, supports the charges against the defendant” and “the prosecutor’s opinion
carries with it the imprimatur of the Government and may induce the jury to trust the
Government’s judgment rather than its own view of the evidence.” Id.
Here, the Court starts with the state courts’ analysis. The California Court of Appeal
noted that the accomplice’s attorney never said the accomplice testified truthfully. (R&R
at 15); see United States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004) (finding no plain
error where a prosecutor merely elicited a witness’s obligation under a plea agreement “to
tell the truth”). Petitioner concedes this but argues that the line of questioning nonetheless
vouched for the accomplice’s truthfulness in “effect.” (Opp’n at 7.) That argument,
however, requires the Court to venture beyond the constraints of AEDPA.
1 The Report & Recommendation (“R&R”) notes that the vouching claim may be procedurally
defaulted but nevertheless proceeds to find that the claim fails on the merits. (R&R at 14–17.)
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Because the prosecutor never explicitly vouched for the accomplice’s truthfulness,
reasonable jurists could disagree as to whether any misconduct occurred. In other words,
the Court cannot say the state courts’ ruling was “so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103. Moreover, even if United States
v. Francis, 170 F.3d 546 (6th Cir. 1999), were persuasive, it does not constitute clearly
established federal law under AEDPA because it is not a Supreme Court decision.
The California Court of Appeal also found that there was no evidence indicating that
the jury relied on information outside the record or that it was relieved of its responsibility
to evaluate corroborating evidence. (R&R at 15.) Thus, even if the prosecutor’s questioning
was improper, it did not rise to the level of a due process violation. The jury instructions
here made clear that the jurors retained the duty to assess credibility and corroboration for
themselves. See United States v. Necoechea, 986 F.2d 1273, 1280 (9th Cir. 1993), as
amended on denial of reh’g (Apr. 15, 1993) (finding that jury instructions cured the
vouching errors, even as regard to an “important witness”). The jurors here were instructed
that they “alone must judge the credibility or believability of the witness” and “may
consider anything that reasonably tends to prove or disprove the truth or accuracy of that
testimony.” (R&R at 20.) The jurors were further instructed that they “may use the
statement or testimony of an accomplice to convict the defendant” only if “[t]he
accomplice’s statement or testimony is supported by other evidence that [they] believe,”
and that they “should give that statement or testimony the weight [they] think it deserves
after examining it with care and caution and in the light of all the other evidence.” (Id. at
20–21.)
Accordingly, the Court finds no unreasonable application of clearly established
federal law under 28 U.S.C. § 2254(d)(1), and no unreasonable determination of the facts
in light of the evidence under 28 U.S.C. § 2254(d)(2).
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B. 	Juror Misconduct Claim
Petitioner next argues juror misconduct, stating that the state court and magistrate
judge did not discuss the evidence of misconduct. (Obj. at 8.) But these courts did. (R&R
at 28, 31, 33.)
The Sixth Amendment guarantees a criminal defendant the right to trial by an
“impartial jury.” U.S. Const. amend. VI. An impartial trier of fact means “a jury capable
and willing to decide the case solely on the evidence before it.” McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (citation omitted). Voir dire is one mechanism
for ensuring an impartial jury, exposing “possible biases, both known and unknown, on the
part of potential jurors.” Id. Actual bias also threatens impartiality, “typically found when
a prospective juror states that he can not be impartial, or expresses a view adverse to one
party’s position and responds equivocally as to whether he could be fair and impartial
despite that view.” Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007). A hearing helps
determine “whether the incident [of alleged bias] complained of was harmful to the
petitioner.” Remmer v. United States, 347 U.S. 227, 230 (1954).
Here, the state trial court found no juror misconduct following a multi-day
evidentiary hearing. (R&R at 6, 24.) As relevant, Juror No. 8 was the only juror who
claimed that Juror No. 6 concealed information on her questionnaire. (Id. at 29.) The trial
court identified three reasons for discounting Juror No. 8’s testimony: he raised this
allegation for the first time in his fifth note to the court, after being sent back to deliberate
following the recording of two verdicts; his evident frustration with being returned to
deliberations suggested that his bias toward other jurors affected his recollection; and,
despite his assertion that Juror No. 6’s comments were loud enough for everyone to hear,
no other juror recalled hearing such statements. (Id.) The trial court also found no
corroborating evidence of Juror No. 8’s testimony in Juror No. 5’s account: Juror No. 5
testified only that Juror No. 6 had a teacher who “may have been related to either the
Arellano-Felix or Los Palillos cartel,” which is consistent with Juror No. 6’s written
disclosure that she had “a teacher last name Arellano-Felix [sic]” and did not know whether
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they were related. (Id.) The trial court likewise found no independent indication of bias in
Juror No. 6’s testimony. (Id.)
The trial court also determined that no juror other than Juror No. 8 recalled outside
information being introduced into deliberations and concluded that the defense failed to
show Juror No. 6 obtained or introduced cartel-related information from extrinsic sources
during trial. (Id. at 31.)
Finally, Juror No. 2, the foreperson, was the sole juror to testify that he heard Juror
No. 6 state “he hasn't been found guilty yet?,” and that deliberations were restarted as a
result. (Id. at 33.) The trial court found that Juror No. 6’s alleged statement did not
demonstrate bias against Petitioner, reasoning that Juror No. 6 had listened to more than a
month and a half of testimony, formed an opinion based on the evidence rather than
prejudice, and there was no evidence that Juror No. 6 harbored bias or was not open and
thoughtful during deliberations. (Id.)
The California Court of Appeal affirmed the trial court’s findings as supported by
the record and was unpersuaded by Petitioner’s arguments to the contrary. (Id. at 24–25.)
And the California Supreme Court denied further relief. (Id. at 24.) Upon reviewing the
record, the Court finds the state courts’ factual determinations objectively reasonable. See,
e.g, Cook v. LaMarque, 593 F.3d 810, 827 (9th Cir. 2010) (affirming no violation of the
plaintiff’s Sixth Amendment right to an impartial jury, despite introduction of extrinsic
information, where the trial court held a hearing).
Petitioner has failed to rebut by clear and convincing evidence the presumption that
the factual findings are correct. (R&R at 30); 28 U.S.C. § 2254(e)(1). Instead, Petitioner’s
objections reflect disagreement with the outcome of the state court and R&R proceedings.
Accordingly, the Court finds no unreasonable determination of the facts in light of the
evidence under 28 U.S.C. § 2254(d)(2).
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IV. 	CONCLUSION
After conducting a de novo review of the objections to the R&R’s reasoning, the
Court concludes that Judge Rodriguez’s reasoning is sound. Accordingly, the Court
OVERRULES Petitioner’s objections (ECF No. 35), APPROVES AND ADOPTS the
R&R in its entirety (ECF No. 34), and DENIES the petition (ECF No. 20).
IT IS SO ORDERED.
DATED: March 6, 2026
Hon. Cynthia Bashant, Chief Judge
United States District Court
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