TUMBLING v. MERCED IRRIGATION DISTRICT

as not presently suffering from any physical illness, he currently was taking medication to treat schizophrenia, paranoia, and possibly other psychiatric and psychological conditions. Martinez, 309 Md. at 127-28, 522 A.2d at 952. . . . Noting as "particularly relevant" the defendant's affirmative response to the question as to whether the waiver decision was induced or coerced, we determined that the trial judge could not ignore the response and the record did not support the notion that the defendant, under those circumstances, voluntarily waived his right to a jury trial. Martinez, 309 Md. at 135, 522 A.2d at 955.

In State v. Hall, supra, 321 Md. at 183, 582 A.2d at 510, we determined that, based on the record before the trial court, the judge could be satisfied fairly that the defendant knowingly and voluntarily waived his right to a jury trial, as required under Maryland Rule 4-246. We highlighted the fact that the trial court did not ask explicitly the defendant whether he understood what he had been told or whether his election was the result of any physical or mental duress or coercion. Id. This Court, nonetheless, concluded that the waiver was knowing and voluntary. In doing so, we emphasized that, in addition to waiving his right in open court following an exchange with the court, the defendant "on two prior occasions, the first in writing, and the second during in-court plea negotiations, [] also waived his right to a jury trial; on each occasion, he was also represented by counsel." Id Based on the "totality of the circumstances," we determined that the defendant's waiver was knowing and voluntary. Hall, 321 Md. at 183, 582 A.2d at 509.

Most recently, in Abeokuto v. State, 391 Md. 289, 324, 893 A.2d 1018, 1038 (2006), a majority of the Court held that the defendant knowingly and voluntarily waived his right to trial by jury for the guilt/innocence phase of a capital proceeding. We emphasized again that the "trial court is not required to engage in a fixed litany or boilerplate colloquy with a defendant." Abeokuto, 391 Md. at 320, 893 A.2d at 1036. We noted also that "[n]o facts from the record demonstrate[d] that the court had reason to ask [the defendant] whether he had been coerced or threatened to waive his right to a jury trial or whether anyone, including defense counsel or the prosecutor, promised [the defendant] anything in exchange for his waiver." Abeokuto, 391 Md. at 320-21, 893 A.2d at 1036. While we noted that the record might raise the need for specific consideration of voluntariness because the defendant's mental health was an issue before trial (ultimately resolved in favor of competency) and that the defendant may have been taking a prescription medication prescribed while incarcerated pre-trial, the trial judge, immediately before conducting the jury waiver inquiry, heard testimony on the defendant's mental and medication states. Abeokuto, 391 Md. at 321, 893 A.2d at 1036.Therefore, we concluded that because those matters had been inquired into immediately prior to the waiver inquiry, "questions directed to those areas were not required in this case" during the waiver colloquy, there having been both an adequate and contemporary consideration of that information. Id.

Ex. 20 at 6-13.

b. Decision of the Court of Appeals

The Court of Appeals considered the voluntariness of the jury trial waiver and rejected the claim:

As the cases, supra, recognize, there is no specific ritual or fixed litany required of trial judges in assessing the voluntariness of defendants' jury trial waiver. We therefore begin our analysis with the premise that there is no uniform requirement explicitly to ask a defendant whether his or her waiver decision was induced or coerced, unless there appears some factual trigger on the record, which brings into legitimate question voluntariness. In contrast to the circumstances in Martinez, Kang's colloquy responses did not trigger a requirement that the trial judge inquire further as to voluntariness.

Id. at 13.

Maryland's highest court next considered whether the waiver was knowing:

Kang argues additionally that his jury trial waiver was not knowing because the trial judge (1) did not "make any efforts to ascertain whether Kang understood the nature of the rights he was waiving" and (2) the trial judge "did not make sure that the proceedings were translated from English to Korean." Kang's arguments on this ground shall fail as well. . . . Rule 4-246(b) provides that the trial judge must be satisfied only that the defendant possesses knowledge to fulfill the "more flexible `knowingly'" requirement. State v. Bell, 351 Md. 709, 720, 720 A.2d 311, 316-17 (1998). As we stated, supra, as to voluntariness, the questioner is not required to engage in a fixed litany to assess whether a defendant's jury trial waiver is knowing. The contours of the required examination depend upon the facts and circumstances of each case.

In Tibbs v. State, 323 Md. 28, 31, 590 A.2d 550, 551 (1991), we held that the "record [wa]s woefully deficient to establish that [the defendant] knowingly and voluntarily relinquished his right to a jury trial."

. . . .

While the inquiry in the present case is not clothed in the finest cashmere, the colloquy conducted by the trial judge is certainly not a "naked" inquiry as in Tibbs. It more than adequately demonstrates that Kang possessed "some knowledge" of his right to a jury trial. See Bell, 351 Md. at 727, 720 A.2d at 320 (Citations omitted). The "byte-sized" questions asked by the trial judge in the present case included a colloquy as to the fundamentals of a jury trial, including that the defendant possessed the right to a trial by a judge or jury; a jury consists of 12 individuals who are chosen from the defendant's peers; and a jury's decision must be unanimous and, thus, all 12 must be in agreement (the trial judge described an example of unanimity). See Abeokuto, 391 Md. at 350 n. 23, 893 A.2d at 1054 n. 23 (noting the preference during the waiver colloquy of jury sentencing rights to present the defendant with information in small, intellectual "bytes" and then inquire discretely after each "byte" whether he or she understands). Kang responded that he understood each of these questions. . . . Thus, we conclude the substance of the colloquy conducted by the trial judge was adequate in informing Kang and ascertaining his awareness of his fundamental jury rights.

Next, Kang argues that the trial judge should have ensured functionally and on the record that the waiver proceedings were translated for him from English to Korean. Prior to the preliminary hearings, Kang filed a request with the court to appoint a Korean-English languages interpreter. Subsequently, at the start of the first day of the trial proceedings, a Korean-English interpreter was present and duly sworn. Moments later, the trial judge voir dired Kang in English regarding his jury trial waiver. Following that, after a brief statement from by court, the State gave its opening statement:

[PROSECUTOR]: Your Honor, can I just — I note for the record that I couldn't help but notice that I haven't heard any translation.

[DEFENSE COUNSEL]: I was about to ask the Court's indulgence, Your Honor. The translator was writing everything down while it was going on and we are going to ask that he repeat it.

THE COURT: I guess that is somewhat unusual. I certainly want Mr. Kang to have the benefit of a translation but is there a reason why —

[DEFENSE COUNSEL]: Mr. Kang understand[s] English fairly well and we just wanted to make sure he was getting all of the pieces while that was going on.

THE INTERPRETER: Your Honor, may I? THE COURT: Sure.

THE INTERPRETER: Mr. Kang specifically asked me to translate the things that he feel[s] that he did not understand prior to the opening of the trial.

* * *

THE COURT: So, just so I am clear on it. Are you only translating certain things if Mr. Kang indicates he doesn't understand?

THE INTERPRETER: That is correct, your Honor.

This Court recognizes the presumption that the actions of a trial court are correct and the party claiming error bears the burden of rebutting that presumption. . . . .

Kang contends that the prosecutor's statement ("Your Honor, can I just — I note for the record that I couldn't help but notice that I haven't heard any translation.") indicates that the jury waiver colloquy was not translated for him into Korean, and because the record does not conclusively show that the voir dire was translated, Kang did not understand the rights he was waiving. As the Court of Special Appeals also noted, Kang, 163 Md. App. at 29, 877 A.2d at 177, trial transcripts rarely indicate whether dialogue is being translated simultaneously. As a result of the prosecutor's statement following the State's opening argument, however, the trial judge engaged in the following exchange with Kang to ensure his satisfaction with the translation services of the interpreter:

[PROSECUTOR]: . . . [Defense Counsel] had indicated that his client is satisfied.

[DEFENSE COUNSEL]: Yes, Your Honor. While [the court was] recessed, I spoke to [the interpreter] and my client and my client is very satisfied that [this interpreter] can do the job. There apparently had been some problems in the past with other interpreters.

[This interpreter] was not one of them and my client is prepared to be voir dired by Your Honor just to make sure that the State's concerns and my concerns are covered and that he is confident with [the interpreter].

THE COURT: Very well. Mr. Kang, let me ask you. It is critically important that you understand everything that is said at this time and that you be able to fully participate in this trial whether that involves discussing matters with your counsel, understanding the testimony or testifying at this trial if you choose to do that.

What I want to do is I want to be absolutely sure that you are satisfied with the services of [this interpreter] as the interpreter and that you are comfortable with your ability to communicate with him and understand through him what has been said at this trial.

Have you had an opportunity to discuss this matter with [the interpreter] this morning?

THE DEFENDANT: Yes.

THE COURT: Are you satisfied with [this interpreter's] services as an interpreter?

THE DEFENDANT: I am satisfied.

THE COURT: Are you satisfied with [this interpreter] serving as the interpreter that you will be able to understand what is being said by others and will be able to communicate fully with your counsel and with the Court?

THE DEFENDANT: Yes.

THE COURT: [Interpreter], I need to have you then state what it is that Mr. Kang is saying. The problem I am having is I know that Mr. Kang has some English skills and is able to communicate to some extent in English, but just to be consistent, I am going to either need to have you or Mr. Kang answer one or two questions.

THE INTERPRETER: Yes, your Honor.

THE COURT: When you said, yes, Mr. Kang understands that and is satisfied[,] is that what I understand?

THE DEFENDANT: Yes.

THE COURT: All right. Very well. [Defense counsel], are you satisfied at this point that we can proceed and have your client be able to fully participate in this trial and understand what is being said?

[DEFENSE COUNSEL]: Yes, I am, your Honor.

THE COURT: Very well. Now, at this point, the only thing we have done is we have proceeded with an opening statement by the State and at that point I understand that Mr. Kang was having that statement translated for him by [the interpreter]. Has Mr. Kang now had that opening statement translated to his satisfaction so that we can proceed or do you need some time to go over that with him?

THE DEFENDANT: I understood all.

Kang continued to indicate his satisfaction with the quality and quantity of translation throughout the trial. The following exchange occurred immediately after the last question during the defense's cross-examination of Caroline Kang, the defendant's daughter, on the second day of trial:

[PROSECUTOR]: Your Honor, I actually didn't notice, but [my co-counsel] did — I have a situation where the translator is not translating again.

THE COURT: Well, I had understood that, based on our colloquy yesterday, that [the interpreter] and Mr. Kang were both satisfied that there was sufficient translation for him to understand whatever was taking place in the proceeding.

[THE INTERPRETER]: Sure, I did ask him again. He specifically asked me not to. He understood, he understands. That's what he tells me.

THE COURT: All right. That was [the interpreter's] response, just for the record. Mr. Kang, let me just ask you, are you satisfied that you understand what is being said in the proceedings at this time?

MR. KANG: Yes, I am satisfied.

THE COURT: All right, very well.

In fact, as the Court of Special Appeals also noted, Kang, 163 Md.App.at 34, 877 A.2d at 179-80, during the hearing on post-trial motions, Kang's attorney expressly waived simultaneous translation:

THE COURT: Just back up for a second, you know, I [] notice[d] our interpreter is not interpreting.

* * *

THE COURT: Well, [Defense Counsel], why don't you have a brief discussion with our interpreter and make sure you all —

[DEFENSE COUNSEL]: I think this [issue] came up at trial too.

Could we have a husher for a few minutes?

THE COURT: Sure.

* * *

[DEFENSE COUNSEL]: Your Honor, we had a discussion with our client and if there's something he thinks he doesn't understand, [at] some point he's going to ask the interpreter to clarify. . . .

THE COURT: I just want to make sure, [Defense Counsel], you're satisfied —

[DEFENSE COUNSEL]: I am satisfied.

THE COURT: — that your client has the opportunity —

[DEFENSE COUNSEL]: We are.

THE COURT: — to understand or participate —

[DEFENSE COUNSEL]: Yes, your Honor.

THE COURT: — to the full extent that he wishes to in this hearing, all right? Go ahead.

The record also shows that Kang demonstrated his ability to converse in English. As the Court of Special Appeals noted, Kang, 163 Md. App. at 33, 877 A.2d at 179, Kang had been an employee of the U.S. Postal Service for 17 and 1/2 years; Kang proclaimed that he spoke English "[w]ell[,]" but "not very well;" Kang's attorney described to the court that "Mr. Kang understand[s] English fairly well . . .;" and, in fact, during trial, Kang answered some of the State's questions during cross-examination using English. Even when Kang apparently encountered language difficulties, the record demonstrates that Kang continued to be satisfied with the translation from his interpreter. Thus, the record is persuasive that the jury trial waiver was likely not the result of language deficiency; we conclude Kang's waiver was knowing.

We find no requirement of simultaneous, word-for-word translation, whether on or off the record Thus, given the varying comprehension levels of defendants for whom English may be a second language and the intricacies of interpreting different languages, at this juncture, we shall not proclaim a single bright-line rule requiring simultaneous, word-for-word translation in all cases in which an interpreter is appointed. In the present case, we are satisfied that Kang had an opportunity to understand and participate in his criminal proceedings. Moreover, every indication is that Kang did just that.

Accordingly, we conclude that the trial judge, based on this record, reasonably could be satisfied that Kang knowingly and voluntarily waived his right to a jury trial.

Ex. 20 at 13-22 (footnotes omitted unless indicated otherwise).

In footnotes, the Court of Appeals observed that the transcript does not specify whether the answers were spoken by Kang or by the interpreter on behalf of Kang. Ex. 20 at 12 n. 3.
Further, the Court of Appeals noted that five days before trial, Kang, through his counsel, filed a Motion to Waive Jury Trial. Then, immediately before trial, defense counsel indicated that Kang had agreed to waive jury trial:

As the Court of Special Appeals noted in its opinion, Kang, 163 Md.App. at 36, 877 A.2d at 181, this Court has recognized the presumption that criminal defendants who are represented by counsel have been informed of their constitutional rights. See, e.g., Bell, 351 Md. at 727, 720 A.2d at 320 (Citations omitted); Thanos v. State, 330 Md. 77, 91, 622 A.2d 727, 733 (1993) (Citations omitted); Gilliam v. State, 320 Md. 637, 652, 579 A.2d 744, 751 (1990) (Citation omitted). But see Abeokuto v. State, 391 Md. 289, 348 n. 21, 893 A.2d 1018, 1052 n. 21 (2006) (noting that the presence of an attorney will not mitigate an inaccurate or incomplete court advisement of a jury sentencing right).

Ex. 20 at 15 n. 4.

The right to a trial by jury must "be jealously preserved," and the defendant's consent to waiver must be express and intelligent. Courts must determine the validity of waivers not "as a mere matter of rote but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from [jury trials] or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity." Patton, 281 U.S. at 312-13.

See Patton v. United States, 281 U.S. 276, 312 (1930), overruled on other grounds by Williams v. Florida, 229 U.S. 78, 92 (1970); see also Adams v. United States, 317 U.S. 269, 271 (1942) ("[A]n accused, in the exercise of a free and intelligent choice, and with the considered approval of the court, may waive trial by jury. . . . There is nothing in the Constitution to prevent an accused from choosing to have his fate tried before a judge without a jury. . . ."). In order for a waiver "to be valid under the Due Process Clause, it must be `an intentional relinquishment or abandonment of a known right or privilege.'" Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

In this case, the Court of Appeals appropriately considered whether Kang had waived his right to a jury trial voluntarily, knowingly and intelligently. It concluded that Kang understood the proceedings, and his jury trial waiver was not the product of a language deficiency.

The state court's finding that Kang demonstrated sufficient ability to communicate in English so as to understand the jury waiver is supported in the record. Kang responded appropriately to the trial judge's queries during the waiver colloquy. Kang told the court that he was satisfied with the translation. His counsel also told the court that Kang understood English fairly well. Further, Kang knew that a translator was present during the waiver colloquy. Neither Mr. Kang nor his counsel sought translation. As Kang had had an interpreter at his pre-trial hearings, he knew that he could request the interpreter's assistance. As the Court of Appeals observed, the trial transcript also shows that Kang replied to some of the State's questions during cross-examination in English. Kang had lived in the United States for 23 years and had been employed by the U.S. Postal Service for almost 18 years when he was arrested. Ex. 23 at 83. He had submitted a written waiver of a jury trial days before the inquiry in open court. Ex. 23 at 136-37.

The Court of Appeals concluded that the trial judge was able to observe Kang's demeanor, tone and facial expressions as he responded during the waiver colloquy. See Ex. 20 at 12. This Court concurs.

See, e.g., Ex. 7 at 66-67.

Rule 23(a) of the Federal Rules of Criminal Procedure states three requirements for waiving a jury trial: "1) the defendant waives a jury trial in writing; 2) the government consents; and 3) the court approves." Fed.R.Crim.P. 23(a). All the Constitution requires is a knowing, voluntary, and intelligent waiver. See United States v. Boynes, 515 F. 3d 284, 286 (4th Cir. 2008). Maryland requires a waiver inquiry on the record in open court. See Md. R. 4-246.

The determination of the state courts is entitled to deference. The state court's findings are accorded a presumption of correctness and are supported in the record. The state court's determination was neither contrary to, nor an unreasonable application of, clearly established federal rights.

2. Ineffective Assistance of Counsel

a. Jury Trial Waiver

Kang also contends that trial counsel was ineffective for failing to insure that his jury trial waiver was knowing and voluntary. Kang says the decision to waive his right to a jury trial was "thrust upon him on the eve of trial" and its significance was not explained. Pet. at 23. Kang claims that the post-conviction court ignored "whether trial counsel overstepped his role in the matter of a jury trial waiver and whether this was violative of Petitioner's right to effective counsel." Id. at 25. Kang asserts that waiving a jury trial is not simply a matter of trial tactics, but rather a decision "personal" to the defendant, and the decision is a basis for post-conviction relief under Strickland. Id. He argues that the post-conviction court improperly relied on Tucker v. Warden, 243 Md. 331 (1966). Pet. at 24.

At the post-conviction hearing, Kang's trial counsel Subin testified that he met with Kang before trial "two dozen times," not including their telephone conversations. Ex. 23 at 152-53, 118. Initially, Kang and Subin met alone. Later, at Subin's suggestion, Kang was accompanied by his brother-in-law, Mr. Cha. Mr. Cha attended, in part to convey to Kang "subtleties in language that need to be explained." Id. at 119. All conversations were conducted in English.

Mr. Cha (Young Don Cha) is also called "Mr. Chung" by the post-conviction court. See Ex. 23.

Subin testified that he did not have any difficulty communicating with Kang. Id. at 153. Subin testified that he and Kang continuously discussed whether to choose a jury or bench trial and the significance of each decision. Id. at 123-24, 157. Subin explained to Kang that a bench trial would take some of the emotion out of the trial. Id. at 123-24. Subin told the post-conviction court that he consulted with very experienced trial counsel to inform his recommendation to Kang. About two weeks before the motions hearing, Subin recommended a bench trial. Id. at. 132, 159-60. Subin testified, "I waited, I gave him several days to consider this and consider his choice and what I was advising but made very clear to him that this was his choice. And I would[,] whether I felt one way or the other, weakly or strongly . . . abide by his wishes." Id. at 137. On November 11, 2003, Kang signed a letter waiver of jury trial witnessed by his brother-in-law, Mr. Cha. Id. at 136-37.

The post-conviction court found that Subin had explained the consequences of the waiver, and Kang's waiver was knowing and voluntary:

[T]he petitioner alleges that his counsel failed to allow him to make a knowing, voluntarily, and intelligent election between a Court and jury trial. The Court of Appeals has made a legal determination that when the petitioner appeared before Judge Debelius at the beginning of his trial, he made a knowing, voluntary, and intelligent waiver of his right to a jury trial. Petitioner's counsel acknowledges that the waiver has been determined to be valid, pursuant to Rule 4-246. However, he asks this Court to go beyond the four corners of the waiver colloquy in open court, and find that the petitioner was one, coerced into the waiver by his attorney; two, did not understand his right to a jury trial; three, that it was his attorney's choice and not his own choice to have a court trial; and four, that there was a reasonable probability that the recommendation for a Court trial and a waiver of a jury trial changed the outcome of the case.

. . . The petitioner admits that he signed a letter prepared by his attorney, Mr. Subin. However, he claims he had to leave work hurriedly to come over to sign the letter and then rush back to work. He says he was given little explanation by Mr. Subin, paid cursory attention to it, signed it, and left. Mr. Subin indicates that he had been discussing the issue of taking a court trial for a couple of weeks. . . .

There is no evidence that the petitioner didn't have every opportunity to review the letter, or to take it with him before signing it, or discuss the matter in greater detail with Mr. Chung (phonetic sp.), his confidant. The petitioner, Mr. Kang, acknowledged that Mr. Subin told him that by taking a court trial the emotion would be removed. . . .

. . . [T]he Court finds that the petitioner voluntarily signed the letter. And this Court further finds that the petitioner had every opportunity to read, and digest the letter, and discuss it with Mr. Subin. Furthermore, Mr. Chung and the petitioner admit that they had a meeting with Mr. Subin on Sunday before the trial, November 16th, which was two days after signing the letter at Mr. Subin's office, according to the respondent.

And I emphasize, neither one of them brought up the issue of the selection of a court trial when they met with Mr. Subin on the eve of the trial, which was Sunday before the trial at Mr. Subin's office. Had they had any reservations, concerns, or misunderstandings, about not having a jury trial, it is reasonable to conclude that at the Sunday meeting they would have demanded the opportunity to discuss it.

In the waiver letter of November the 11, 2003, State's Exhibit 1, the petitioner not only waived a jury trial, selected a court trial, but also affirms in that letter that he trusts his attorney and understands his attorney's recommendation. And I emphasize recommendation as opposed to decision, to give up his right to a jury trial. The letter which the petitioner signed says, "I agree to waive my right to a jury trial and have a judge of the Circuit Court try the case."

. . . The Court finds that it was not only permissible for Mr. Subin to make a recommendation as to the type of trial, but that it might very well have been ineffective assistance of counsel had he not made a recommendation.

Furthermore, during Judge Debelius's inquiry, the petitioner had every opportunity to protest and state it wasn't his decision to waive a jury trial, but that it was his attorney's. Neither the petitioner nor Mr. Chung testified that Mr. Subin threatened or forced them to make the decision. If the decision was Mr. Subin's rather than the petitioner, the petitioner was given every opportunity before Judge Debelius to address the issue. The petitioner chose not to, and this Court concludes that he freely and voluntarily waived his right to a jury trial.

I don't find that Mr. Subin's conversing with the petitioner in English caused any communications problems. The petitioner came to the United States in 1984. Worked for the Postal Service for 18 years. Conversed with Mr. Subin in English. Conversed with Mr. Chung in English. In fact, helped his wife and business by making calls for her in English. And was examined by a doctor in English. The Court finds that the petitioner's concern about whether or not to have a jury trial is without merit. And is an afterthought by the petitioner, and is an attempt to avoid serving his 15-year sentence.

Ex. 24 at 19-23. The post-conviction court's determination that Kang's waiver was informed and voluntary is supported by the record and is a proper application of Supreme Court precedent.

The post-conviction court next considered and rejected the claim that Subin's recommendation to proceed with a bench trial instead of a jury trial constituted ineffective assistance:

The second asset — aspect to be resolved under the waiver of the jury trial issue is whether or not Mr. Subin's recommendation to have a court trial was ineffective assistance of counsel. Tucker v. Warden Maryland Penitentiary, 243 Md. 331, at 331 (1966), held, "The decision to submit to a trial by the Court rather than a jury is one of tactics. And the selection of one, rather than another, is not grounds for post-conviction relief." This should be the end of discussion, however I'll address the issue.

The petitioner's assertion that he would have had a greater chance of acquittal with a jury trial is conclusory. This Court draws no such conclusion from the facts in the record. The petitioner's attorney argues that most, if not all, attorneys would go with a jury trial, given that set of facts. There — however, there is no evidence to support that claim. I cannot take judicial notice of that. However, I do agree with the petitioner that by selecting a court trial, the petitioner gave up his opportunity to have a hung trial, and that there would be a greater likelihood of a reversal on appeal had there been a jury trial.

If one's main goal is to hope for an error to seek remand or reversal that [sic] a jury trial would be mandated in every case. That logic would suggest that counsel's recommendation for a court trial would always be deemed ineffective assistance of counsel. Declaring recommendations of court trials by lawyers, per se ineffective assistance of counsel, would be however contrary to Tucker v. Warden Penitentiary.

Although this Court agrees with the petitioner's counsel that an attorney must always be, "looking down the road," that is appellate issues, his primary focus should be on acquittal on all or at least on the major counts. Furthermore, the petitioner presents no statistics or findings as to the percentage of hung juries in attempted murder cases.

Now, let's analyze Mr. Subin's recommendations for a court trial. Mr. Subin admittedly was a trial attorney with no jury trial experience. Mr. Subin testified that he discussed the issue of trial selection with several experienced trial attorneys, one of which was a public defender and one of which, later, was appointed to the Circuit Court. Discussing the matter with other experienced trial attorneys was a proper and appropriate way to arrive at a recommendation. Mr. Subin concluded that by electing a court trial the emotional factor would be removed from the case.

I find that was a realistic expectation and consideration. The outcome of the trial must be considered, the outcome of the case, the trial must be considered in evaluating Mr. Subin's judgment. . . .

Now, let's take a look at outcome. As the petitioner states on page 15 of his petition, Mr. Kang was facing a possible life sentence on the charges of attempted first degree murder. Further, the case against him hinged on the words, on his word versus that of his wife's. The indictment confirms what the petitioner was facing and a look at the transcript and Judge Debelius' summation verifies that this was truly a situation of credibility between the husband and wife.

Had this been a jury trial . . . the petitioner could have easily been convicted of attempted first degree murder.

However, the petitioner was acquitted of attempted first and second degree murder and convicted of first and second degree assaults. The Court is aware that Judge Debelius did go outside the guidelines on the first and second degree assault. However, the petitioner could have received a life sentence or many more years than 15, had he been convicted of attempted first degree murder.

I find that a trial judge is much better equipped to separate the technical differences between attempted murder and first degree assault. That is, the Court would not allow emotion to enter into its verdict. Also — also, the jury could have developed a tremendous dislike for the petitioner, because of all of his prior abuses and his actions after the hanging. Not only after they would have found he attempted to hang his wife, he never took her to a hospital. Never called 911 to determine the extent of her injuries. And, in fact, he berated her verbally for doing something so stupid in the fact that they had children.

The event occurred on February 8, 2003, and the petitioner didn't actually take his wife to even get any medical attention until the 10th of February. By his own admission, he lied to the doctor when he did take her to a doctor. The only first-aid he applied was putting some salve on her neck to cover, I guess, the ligatures.

Furthermore, it would be reasonable to assume that if his wife had really attempted to commit suicide, he would have called 911 immediately and tried to get her psychiatric help. Then on top of everything else, the evidence shows that 11 days later the wife testified that on February 19th, the petitioner pushed her to the floor in her bed and their 11-year-old daughter called the police.

Judge Debelius must have found that when the petitioner kicked out the chair from beneath his wife as she was tied up, that he never intended to actually kill her, but merely inflict serious injury. That distinction could have easily been missed or rejected by a jury. The test is not what most other lawyers might have done, but whether or not it was ineffective assistance of counsel to cho[o]se a court trial over a jury trial.

I find that the petitioner had a favorable result, especially considering the fact that Judge Debelius did not believe his story. I find no reason to believe a jury would have believed his story either. . . . Sanitizing the case of emotion made sense, therefore I find that the petitioner failed to overcome the presumption that the recommendation to elect a court trial under these circumstances was a sound trial strategy.

Ex. 24 at 23-28.

The post-conviction court's determination withstands scrutiny. The post-conviction court's decision, which is supported by the record, is clear: Subin recommended to his client that he elect a bench trial. In making this recommendation, Subin explained his reasoning to Kang. But, the actual decision whether to waive the right to a jury trial remained "personal" to Kang, and Subin was ready to proceed with a jury trial if Kang so decided.

Reviewing the ineffective assistance claim under Strickland, Ex. 24 at 7, the state post-conviction court found Subin's recommendation to proceed to a judge trial reasonable in light of the probable emotional testimony of Mrs. Kang and her young daughter. Further, the post-conviction found Kang was unable to sustain his burden to show prejudice. The post-conviction court noted that Kang faced attempted murder charges, and a trial judge was better able to differentiate between attempted murder and first-degree assault, especially given the highly emotional testimony. The state-court adjudication was neither contrary to, nor an unreasonable application of, clearly established federal law. Nor is it based on an unreasonable determination of facts in light of the evidence.

b. Failure to Object to Prior Bad Acts Testimony

Kang faults trial counsel for failing to object to "numerous instances of bad acts evidence, which are presumptively inadmissible" under Maryland law. Pet. at 26. In rejecting this claim, the state post-conviction court held:

Clearly Mr. Subin should have objected to the admission of evidence of prior bad acts on the part of the petitioner. His objections should have been automatic responses without the need for reflection. Prior acts such as these ones in this case should always be objected to. However, under the authority of Rule 5-404(b), I find that those prior bad acts would have been admissible to prove motive and intent.

Furthermore, there was no evidence presented at the post-conviction hearing that any of those prior bad acts didn't take place. The petitioner apparently didn't deny these prior bad acts. I find that the evidence was extremely relevant to the case. When the charges [are] that a man has attempted to kill his wife, motive and intent are the essence of relevancy. And I find that the probative value outweigh[s] the prejudice in this case. Revelation of prior abuse during their marriage was relevant to the analysis of the suicide note, and an understanding of the calm demeanor of the victim as she was marched to what she thought was her execution.

The petitioner raises a couple of other objections. The petitioner points out that Mr. Subin failed to object to testimony regarding prior child abuse of his children. I find that that testimony also fits under the exceptions of Rule 5-404(b). Judge Debelius said, "What I do believe is this, I think that Mr. Kang is a very angry man. Not only was he fighting with his wife, he was mean to his children, and . . . he would have the predisposition, the intent, and the motive to commit the offense. Nothing in his family life seemed to make him happy or content." This confirms that those prior bad acts proved to Judge Debelius that the petitioner had a motive and intended to harm his wife.

Ex. 24 at 13-14.

Kang predicates this claim solely on the state post-conviction court's application of state law. When conducting habeas review, "a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991); see also Cagle v. Branker, 520 F. 3d 320, 324 (4th Cir. 2008). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle, 502 U.S. at 67-68.

The bad acts testimony was admissible under Maryland law to prove motive and intent. As the evidence was admissible under state law, the failure to object was not prejudicial and the state post-conviction ruling was not an unreasonable application of Strickland.

c. Failing to Object Properly to the Victim's Prior Consistent Statements

Kang claims trial counsel was ineffective because the continuing objection did not preserve the issue for appeal. Kang reasons that had the objection been made properly, it is probable that the conviction would have been reversed.

At trial, Mrs. Kang testified that Kang placed a noose around her neck and attempted to hang her. On cross-examination, Subin did not reference Mrs. Kang's pretrial inconsistent statements. Subsequent witnesses called by the prosecution adduced evidence of Mrs. Kang's prior consistent testimony. Subin made a continuing objection on hearsay grounds.

The post-conviction court considered and rejected this claim:

Number seven, the petitioner alleges that counsel was ineffective in failing to object to prior consistent statements of the victim. So, I ruled on that last one that even if he had objected, the evidence would have come in, and therefore wouldn't have changed the outcome of the case.

Number seven, the petitioner alleges that counsel was ineffective in failing to object to prior consistent statements of the victim. Mr. Subin's cross examination of Mrs. Kang clearly implied that she fabricated her story. That the petitioner tried to kill her. The petitioner's defense theory was that Mrs. Kang attempted suicide and the defendant/petitioner heroically saved her. Rule 5-802.1(b), as interpreted by Holmes v. State, 350 Md. 412 (1998), requires the statements to proceed the alleged fabrication, improper influence, or motive. I find that a motive to fabricate by Mrs. Kang took place on the date of the suicide/murder which was February 8th of 2003. All of the consistent statements the State offered were made after that date. Therefore, I conclude that these prior consistent statements were not admissible under 802.1(b).

However, under Holmes v. State, I find that the statements were admissible under 5-616(c)(2). Had Mr. Subin had a proper continuing objection under Rule 4-323(b), I find Judge Debelius would have overruled all continuing objections to prior consistent statements by Mrs. Kang, just as he did on November 18, 2003, page 77, lines 12 and 13, and lines 23 and 24 when Samuel Lee (phonetic sp.) was testifying. I don't know which exception to the rule Judge Debelius used, because he didn't officially state, but I do find that Rule 5-616(c)(2) was the correct one.

I also find that those statements were relevant. I don't find that the Court's reference to statements on November 20, 2003, at page 154, lines 18 to 25, and page 55, lines 1 and 2, indicated that Judge Debelius had accepted them as substantive evidence. I find that he was accepting them for rehabilitative purposes. The petitioner's theory was that Mrs. Kang attempted suicide. I don't find that Mr. Subin properly making a continuing objection would have changed the admissibility of the evidence. In other words, I believe it was proper for rehabilitative purposes.

Furthermore, had all the other prior consistent statements been excluded, I don't find the outcome of the case would have changed. If we look at Judge Debelius's comments on November 20, 2003, starting at page . . . 153, line 2, "What I do believe is this", quoting Judge Debelius, "I think that Mr. Kang is a very angry man. There's, there's good and there's bad in everybody." You're going to page, line 11, "I find his testimony fantastic at points," emphasis added by this Court.

"Where [there was] inconsistent testimony about the lights being off, but him observing Mrs. Kang's face being purple and her tongue being out, and then he turned the lights on. And first there was some vagueness as to whether the lights were on and then it was a light behind him, or not the light where Mrs. Kang was. And then the testimony that Mrs. Kang was in the dark room with the door closed."

And then on page 154, line 11, "The testimony with regard to Mr. Kang placing his wife . . . on the bench and telling her to wait there while he didn't know whether she was conscious or not, although there was some vagueness there at first, the testimony suggested that he believed her to be conscious. If she was hanging from her neck by a rope, how he could possibly place her on a bench is fantastic. There's also testimony that confirms Mrs. Kang's version of what happened. She told her pastor what happened and he made a very credible witness.

"She went to Dr. Kim's office and told Dr. Kim what had happened. Something she was afraid to do in front of her husband. And I find her husband's presence at the doctor's visits and speaking on her behalf to the doctor, to be one more element of control."

One second. At 156, line 6 to 20, "What do I really believe? I think Mr. Kang is a very disturbed man. I think that it served me as not beyond the pale to believe that his intent was to kill Mrs. Kang. What I do believe, really, I believe that he did intend to kill Mrs. Kang, but legally the question is, am I convinced of that beyond a reasonable doubt. And I have wrestled with that. I think Mr. Kang was disturbed, angry, jealous, resentful. I think he was wrestling within himself, with his own feelings and his own intention. I believe that when he placed her on that stool, he could well have intended that that be the place of her death. But I can't say that I'm convinced of that beyond a reasonable doubt."

This language from Judge Debelius in his summation convinces this Court that had the prior consistent statements not come in, that the outcome would not have been different. Specifically the petitioner alleges that Mr. Subin should have objected to a witness Kung Ali's (phonetic sp.) testimony that Mrs. Kang came to stay with her three years before the incident, because she had a fight with her husband. The record reveals that Mr. Subin did object to that line of questioning on several occasions.

What more could a lawyer do? His effectiveness for post-conviction relief purposes, can't be judged by whether or not the objection is sustained. Regardless, I find that the evidence was admissible as a prior bad act under 5-404(b).

Ex. 24 at 14-18.

The decision of the state post-conviction court is supported in the record and constitutes a reasonable application of Supreme Court precedent to the facts. The record shows that Subin repeatedly attempted to impeach and discredit Mrs. Kang during cross-examination. Ex. 4 at 107-49; Ex. 5 at 4-11. The post-conviction court determined that Kang had not been prejudiced by counsel's performance in light of the other evidence adduced at trial. The determination of the state court is entitled to deference and will not be disturbed.

Whether Mrs. Kang's prior consistent statements were admissible at trial is a matter of state evidentiary law. A federal habeas review is limited to "deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle, 502 U.S. at 68; no federal law was implicated by the admission of this testimony.

C. Certificate of Appealability

The court finds that Kang is not entitled to a certificate of appealability ("COA"). A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Id. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). To make such a showing, the defendant "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). When a district court dismisses a habeas petition solely on procedural grounds, a COA will not issue unless the petitioner can demonstrate both "(1) `that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right' and (2) `that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'" Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack, 529 U.S. at 484). Petitioner has not made the requisite showing in these circumstances. Denial of a COA does not prevent petitioner from seeking permission to file a successive petition or pursuing his claims upon receipt of such permission.

III. Conclusion

For the reasons stated above, Kang's petition will be denied.

Date September 23, 2010

may establish "pretext in two ways: (1) indirectly, by showing that the employer's proffered explanation is `unworthy of credence' because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer." Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9 ^th Cir. 2000) (citing Godwin v. Hung Wesson, Inc., 150 F.3d 1217, 1220-21 (9th Cir. 1998)). Plaintiff must provide "specific, substantial evidence" that the reasons given were a pretext for discrimination. Bradley, 104 F.3d at 270. In addition, Plaintiff must establish that there was a causal connection between his protected status and the adverse employment action. Mixon v. Fair Employment and Housing Com., 192 Cal. App. 3d 1306, 1317 (1987).

To oppose this motion, plaintiff must show that the "claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First National Bank of Arizona, 391 U.S. at 290. "A disparate treatment plaintiff can survive summary judgment without producing any evidence beyond that constituting his prima facie case, if that evidence raises a general issue of material fact regarding the truth of the employer's proffered reasons." Chuang, 225 F.3d at 1127 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)). If Plaintiff demonstrates through specific evidence that a genuine issue of material fact exists, defendants' summary judgment motion must be denied. In a Fed.R.Civ.P. 56 motion, however, this Court does not resolve factual issues. Chuang, 225 F.3d at 1124 (ultimate question of employment discrimination is conducted most appropriately by a factfinder, not on summary judgment).

Here, the Court finds that plaintiff produced direct evidence as to his discrimination claims. There is direct evidence of possible racial animus. For instance, racially derogatory terms were used by supervisors and used to refer to plaintiff in particular. The term "nigger" has been used. Plaintiff has been referred to as a "a typical black man" by plaintiff's supervisor, Jem Brown, who had a hand in demoting plaintiff. (Doc. 111-2, Franco depo. p. 31.) Plaintiff has also been referred to as "boy" and that he should have "stayed in his place." Chuang, 225 F.3d at 1128 (egregious and bigoted insult is direct evidence of discriminatory animus). Thus, plaintiff has offered direct evidence of a possible "culture" of racial animus. "With direct evidence, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial." Chuang, 225 F.3d 1115, 1128 (9^th Cir. 2000).

Further, plaintiff has presented indirect evidence that MID's proffered reasons for demoting plaintiff are not worthy of credence. Plaintiff presents evidence that he was performing his position as Supervisor of Customer Service and then Supervisor of Water Services adequately. Plaintiff was never given a disciplinary action, negative review or any written indication that his performance as a supervisor was lacking in any way. Plaintiff presents evidence that MID has a policy of progressive discipline and had his performance been substandard, he should have been so informed through the progressive discipline policy. Since there was no communication to plaintiff that his performance was substandard and defendant claims plaintiff was transferred based upon his substandard performance, there is evidence to enable a reasonable trier of fact to conclude that he was transferred for some other reason. Given the evidence of possible racial animus, and lack of documentary discipline, the jury could reasonably conclude that his transfer was based upon discriminatory reasons.

MID argues that there is no racial animus or culture. MID argues that plaintiff has always been an African-American man, has been promoted as an African-American man, was demoted as an African-American and remains employed at MID as an African-American man. (Doc. 112, Reply p. 5.) MID argues that consistent treatment of plaintiff, as an African-American, demonstrates no racial animus towards plaintiff.

MID's argument, however, is a factual dispute based upon reasonable inferences a jury could make after considering the evidence.

MID further argues that the "same actor" inference is applicable to this case. (Doc. 112, Reply p. 7.) MID argues that Garith Krause recommended plaintiff's promotion to Supervisor of Customer Service on February 1, 2005. (Doc. 97-2, Joint Facts, # 13, (Exh. 11)). Garith Krause approved plaintiff reassignment to Supervisor of Water Customer Service. (Doc. Joint Facts, 38.) And Garith Krause also approved the reassignment to Chemical Spray Technician. (Doc. 97-2, Joint Facts, #52.) MID argues "regardless of whether plaintiff believe Jem Brown or Robert Blum was involved in the decisions at issue, Garith Krause was involved in all three of the decisions and the same actor inference applies." (Doc. 12, Reply, p. 7.)

Under Title VII, where the same person both hired and fired plaintiff, and both actions occur within a short period of time, a "strong inference" arises that there was no discriminatory motive. Bradley v. Harcourt, Brace Co., 104 F.3d 267, 270 (9th Cir. 1996). The "same actor" inference also applies to cases in which plaintiff was not actually fired but merely demoted or offered less favorable job assignments. Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1096-1097 (9th Cir. 2005). The "same actor" inference, however, may be weakened by other evidence and is "insufficient to warrant summary judgment for the defendant if the employee has otherwise raised a genuine issue of material fact." Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 573-574 (6th Cir. 2003) (en banc).

Here, the evidence is unclear whether Garith Krause was the relevant decision maker for both the promotions and the demotions. MID presents evidence that Krause "approved" the employment decision, but plaintiff presents evidence, which is supported by the Personnel Action Forms, that Robert Blum and Jem Brown were involved. Garith Krause was the General Manager for MID, and presumably he would have been "involved." (Doc. 110, Tumbling decl. ¶ 16.) But the evidence also shows that Jem Brown was plaintiff's immediate supervisor and the possible decision maker. (Doc. 110, Tumbling decl. ¶ 15, 37.) As state above, there is an issue of fact as to whether Jem Brown was racially biased against plaintiff and from which a jury could conclude that he influenced the decision. The same actor inference does not warrant summary judgment where, as here, plaintiff has established a prima facie case and produced direct evidence of pretext. Compare Bradley v. Harcourt, Brace Co., 104 F.3d 267, 270-71 (9th Cir. 1996)) (relying in part on the same-actor inference in granting summary judgment against plaintiff where she "did not produce any evidence showing [her employer's] proffered reasons were pretexts for an improper discriminatory motive"); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1287 (9th Cir. 2000) (relying in part on the same-actor inference in granting summary judgment against plaintiff where she "ha[d] not cast doubt on the sincerity of [defendant's] explanation"), cert. denied, 533 U.S. 950 (2001). Accordingly, plaintiff has rebutted the same actor inference and therefore, summary judgment is denied for the race discrimination claims.

This finding of a factual dispute does not alter the Court's ruling that the 300-day statute of limitations bars claims which occurred prior to 300 days before the EEOC Charge was filed under Title VII and that the one year statute of limitations bars claims under the FEHA.

D. Section 1981 Claim Against MID

The seventh claim for relief alleges race discrimination in violation of 42 U.S.C. § 1981. The Civil Rights Act of 1866 ( 42 U.S.C. § 1981) provides all persons of different races, ancestry or ethnic characteristics the same rights as white citizens to enforce contracts and to equal benefit of the law.

A four year statute of limitations applies to claims for discrimination under 42 U.S.C. § 1981.

Plaintiff alleges that he was treated less favorably in his terms and conditions of employment in various ways (15 actions are listed). (Doc. 1, Complaint ¶ 106.) Plaintiff challenges his demotions and treatment related to his demotion to Supervisor of Water Customer Service (Doc. 1, Complaint ¶ 38-40) and then his transfer and demotion and related treatment as a Chemical Spray Technician. (Doc. 1, Complaint ¶ 43-45.)

Defendant argues that plaintiff must show that "the conduct complained of [resulted] from an official policy or custom in order to render the municipality liable." Defendant argues there is no evidence of a "written policy of race discrimination" and no evidence of a custom or practice of race discrimination. (Doc. 97, Moving papers p. 21.) Defendant argues that there is no evidence of a practice or policy of race discrimination in employment at MID.

1. Plaintiff must Show Violation was Caused by a Custom or Policy

As with claims under 42 U.S.C. § 1983, a municipality may be held liable for § 1981 claims only if the plaintiff alleges and proves that his injury resulted from a municipal policy, practice, or custom. Federation of African Am. Contrs. v. City of Oakland, 96 F.3d 1204, 1214-15 (1996) (1991 amendment to § 1981 preserves "policy or custom" requirement in suits against state actors). Like claims under § 1983, no respondeat superior liability exists for § 1981 claims, and the rule articulated in Monell v. Dept. of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), applies to § 1981 claims. Municipalities are answerable only for their own decisions, and cannot be held vicariously liable for the constitutional torts of their agents. See Federation of African Am. Contrs, 96 F.3d at 1215.

"To impose liability on a local governmental entity for failing to act to preserve constitutional rights, a section 1983 plaintiff must establish: (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy `amounts to deliberate indifference' to the plaintiff's constitutional right; and (4) that the policy is the `moving force behind the constitutional violation.'" Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006), (quoting Monell, 436 U.S. at 690).

A plaintiff may satisfy the principles of Monell liability by demonstrating that an "official municipal policy" of some sort caused the constitutional tort in question. A plaintiff may demonstrate a "policy" in one of three ways: (1) an employee acting pursuant to an expressly adopted official policy; (2) an employee acting pursuant to a longstanding practice or custom; or (3) an employee acting as a "final policymaker." See, e.g., Christie v. Iopa, 176 F.3d 1231, 1235-40 (9th Cir.), cert. denied, 528 U.S. 928 (1999); see Delia v. City of Rialto, ___ F.3d ___, 2010 WL 3504502 (9^th Cir. 2010) (no established a practice, so permanent and well-settled so as to constitute a custom.) Plaintiff must prove that there is a policy, practice, or custom adopted by Defendants that led to his injuries. Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006); see also Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986) (holding that a local government entity cannot be held liable under § 1983 unless the plaintiff alleges "that the action inflicting injury flowed from either an explicitly adopted or a tacitly authorized [governmental] policy"), cert. denied, 479 U.S. 1054 (1987).

(A) Express Official Policy

Plaintiff does not present evidence that the conduct at issue here was the result of an express or official policy. Plaintiff does not produce evidence of any policy, officially adopted and promulgated by the MID. In fact, the evidence reflects that Defendant has an official policy that prohibits employment discrimination, including discrimination based on sex or race.

(B) Long Standing Policy or Widespread Custom or Practice

Plaintiff argues that MID has a "widespread practice" of disregarding it own employment/personnel policies. (Doc. 103, Opposition p. 28.) Plaintiff argues it is the custom and practice of MID to not enforce, train or comply with its own policies that created the racial discrimination experienced by plaintiff.

Plaintiff argues that "[i]n violation of its Policies, MID admits it does not enforce requirements that it post job positions, advertise job positions, actively recruit minorities and atone for past discrimination, test employees' knowledge and qualifications prior to hiring or promoting, conduct competitive interviews to identify qualified individuals for job spots, obey the Affirmative Action policy, hire relatives, or enforce the Policies regarding non-discrimination in hiring, promotion and employment." (Doc. 103, Opposition p. 28.)

In the absence of a formal governmental policy, a plaintiff must show a "longstanding practice or custom which constitutes the standard operating procedure of the local government entity." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), cert. denied, 520 U.S. 1177 (1997). The custom must be so "persistent and widespread" that it constitutes a "permanent and well settled city policy." Id. "Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Id.

MID argues that in a § 1981 claim, plaintiff must show that the race-based discrimination he suffered as a result of an official policy or custom. MID argues that there is no evidence that the District had a practice or policy of race discrimination in employment.

MID relies upon its formal non-discrimination policy, but it is well-established that the routine failure to follow a general policy can itself constitute an actionable custom. Redman v. County of San Diego, 942 F.2d 1435, 1445 (9th Cir. 1991) (en banc), cert. denied, 502 U.S. 1074, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992). A policy can be one of action or inaction. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9^th Cir. 2006). "The continued adherence by policymakers `to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action — the `deliberate indifference' — necessary to trigger municipal liability." Long, 442 F.3d at 1186.

Here, plaintiff has pointed to instances of failure to follow policies which raise issues of fact that demotions and employment-related conduct were violative of his constitutional rights. Despite the MID formal policies, plaintiff has produced evidence of incidents of gender preference and possible race preference based upon routine failure to follow acceptable and formal policy. For instance, plaintiff has presented evidence that the MID management were unfamiliar with formal policies. Persons were promoted, included plaintiff, based upon criteria other than that required by promotion/demotion policies. Gillette v. Delmore, 979 F.2d 1342, 1346, 1349 (9^th Cir. 1992) ("A section 1983 plaintiff may attempt to prove the existence of a custom or informal policy with evidence of repeated constitutional violations for which the errant municipal officials were not discharged or reprimanded."), cert. denied, 510 U.S. 932 (1992). Resolution of whether the MID had in existence a custom or practice of inaction to the detriment of plaintiff involves a fact-intensive analysis of evidence of the existence of the custom. At summary judgment, "[n]ormally, the question of whether a policy or custom exists would be a jury question." Trevino, 99 F.3d at 920. Thus, plaintiff's evidence concerning the apparent belief of the management that gender preference and racial comments, and disregard of contrary written policies, were acceptable provide a basis for an inference of a widespread custom.

(C) Final Policymaking Authority

Plaintiff argues that liability is further premised upon a decision of a "final policymaker." Plaintiff argues Jem Brown was a "final policy maker." Jem Brown was the supervisor of the Customer Services Group and plaintiff's supervisor when he demoted plaintiff. (Doc. 103, Opposition p. 29; Doc. 110 Tumbling Decl. ¶ 20.)

Absent a policy or custom, a municipality may still be liable for an isolated constitutional violation when the person causing the violation has "final policymaking authority." See City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality) ("[O]nly those municipal officials who have `final policymaking authority' may by their actions subject the government to § 1983 liability.").

MID argues that the employment decision were not made by a final policy maker. The fact that a city employee has independent decision-making power does not render him a final policymaker for purposes of municipal liability. MID argues that the final policy maker was Garith Krause.

The identification of policymaking officials is a question of state law. Christie, 176 F.3d at 1235. In this case, the relevant areas of policy making are employment-related decisions, particularly demotions and promotions. Neither party has cited the relevant state law to determine who is a policy making official in personnel matters. "[T]he identification of those officials whose decisions represent the official policy of the local government unit is . . . a legal question to be resolved by the [court]" before trial. Christie, 176 F.3d at 1235. "The fact that a particular official-even a policymaking official-has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable." Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83, 106 S.Ct. 129 (1986).

For purposes of Monell liability, when determining whether an individual has final policymaking authority, "we ask whether he or she has authority in a particular area, or on a particular issue." McMillian v. Monroe County, 520 U.S. 781, 785, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (emphasis added). For a person to be a final policymaker, he or she must be in a position of authority such that a final decision by that person may appropriately be attributed to the District. For example, in Jett v. Dallas Indep. Sch. Dist., the plaintiff contended that he was transferred because of his race. In determining whether a school district superintendent was a final policymaker, the Court focused on the question of whether the superintendent "possessed final policymaking authority in the area of employee transfers." 491 U.S. 701, 738, 109 S.Ct. 2702; see Christie, 176 F.3d at 1236-37 (to determine whether an official is a final policymaker, "courts consider whether the official's discretionary decisions are `constrained by policies not of that official's making' and whether the official's decisions are `subject to review by the municipality's authorized policymakers.'")

Plaintiff argues that Jem Brown admits he is a policy maker for the Customer Services Department. Plaintiff argues that Manager Jem brown had primary oversight and supervisory control of the Customer Services Group. Plaintiff argues that General Manager Garith Krause testified that he delegated control over the Customer Service Group to Jem Brown and that he had policy making decisions over the Group.

Plaintiff's argument, however, equates Jem Brown's finaldecisionmaking authority with that of final policymaking authority on behalf of MID. "If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability." City of St. Louis v. Praprotnik, 485 U.S. 112, 126, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 484 n. 12, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Plaintiff has not offered evidence that Jem Brown was a policy maker, as opposed to a decision maker. See Gillette v. Delmore, 979 F.2d 1342, 1350 (9th Cir. 1992) (holding that a fire chief that possessed discretionary authority to hire and fire employees was not responsible for establishing city employment policy). MID does not dispute that Jem Brown has authority to make certain employment decisions but argues that he is not a "policy maker." Indeed, plaintiff's evidence focuses upon Jem Brown's authority to make decisions, but does not point to evidence he makes employment policies for MID. This is corroborated by the evidence of the written employment actions involving plaintiff's demotions which were signed, and approved, by other individuals at MID.

Plaintiff has not cited any state law which establishes that a person in Jem Brown's position is an employment policy maker for MID. Plaintiff has burden of proof of his elements. The party opposing the motion must submit evidence sufficient to establish the elements that are essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Here, plaintiff has the burden of proof that the employment decision was the result of a final policymaker. Plaintiff's evidence does not show that Jem Brown is a policy maker, as opposed to a decision maker. Plaintiff has failed to carry his burden by either citing state law under which Jem Brown may be considered a policy maker, or by producing evidence in which Jem Brown made policy decisions.

4. Issues of Fact for § 1981 Claim

The Ninth Circuit applies the same analytical framework for § 1981 claim as a Title VII claim. Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1412 (9th Cir. 1987) (applying Title VII standards to a42 U.S.C. § 1981 claim). The "crux" of disparate treatment claims is "the elusive factual question of intentional discrimination." Mustafa v. Clark County School Dist., 157 F.3d 1169, 1180 (9^th Cir. 1998). "[B]ecause of the inherently factual nature of the inquiry, the plaintiff need produce very little evidence of discriminatory motive to raise a genuine issue of fact."

Because the Court has found a factual question as to the claims of discrimination under Title VII, the claim under § 1981 likewise raises issues of fact.

E. Retaliation Claim

Plaintiff claims that defendant violated the anti-retaliation provisions of Title VII and the California FEHA in retaliating against him for complaining about racial discrimination and gender discrimination. (Doc. 1, Complaint ¶ 74.) These statutes prohibit employers from taking adverse actions against employees who complain about discrimination in the work place. Title VII provides that it is an:

unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, . . . because he has opposed any practice made an unlawful employment practice by this subchapter, . . . 42 U.S.C. § 2000e-3(a).

To establish a prima facie case of retaliation under Title VII, "[t]he plaintiff must show (1) that she was engaging in a protected activity, (2) that she suffered an adverse employment decision, and (3) that there was a causal link between the protected activity and the adverse employment decision." E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir. 1989); see Flait v. N. Am. Watch Corp., 3 Cal.App.4th 467, 476, 4 Cal.Rptr.2d 522 (1992)).

The legal standard for a retaliation claim is the same under Title VII and the FEHA. Surrel v. California Water Serv. Co., 518 F.3d 1097, 1107 (9^th Cir. 2008). Under the burden-shifting scheme of Title VII and the FEHA, after the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a legitimate, non-retaliatory explanation for the adverse employment action. Winarto v. Toshiba America Electronics Components, Inc., 274 F.3d 1276, 1284 (9^th Cir. 2001). If the employer rebuts the inference of retaliation, the burden of production shifts back to the plaintiff to show that the defendant's explanation is merely a pretext for impermissible retaliation. Winarto, 274 F.3d at 1284. Pretext may be shown either (1) directly by persuading the jury that a discriminatory motive more likely than not motivated the employer or (2) indirectly by showing that the employer's proffered explanation is unworthy of credence. Winarto, 274 F.3d at 1284. To establish pretext, "very little" direct evidence of discriminatory motive is sufficient, but if circumstantial evidence is offered, such evidence has to be "specific" and "substantial." Id.

Defendant argues that plaintiff cannot show he engaged in a protected activity. Plaintiff argues in his opposition that he engaged in the following protected activity:

— complained in April 2005 to Jem Brown and Robert Blum about gender discrimination.

— in August 2007, complained to Robert Blum about race discrimination.

— repeated complaints to General Manager Garith Krause when prior complaints went unaddressed.

— complained throughout his employment until June 27, 2007 of gender and racial discrimination.

— complaints continued until he was demoted to the field. (Doc. 103 Opposition, p. 31.)

1. Plaintiff's Discovery Response

In its reply brief, MID argues that none of these specific complaints was provided in plaintiff's answer to interrogatories. Particularly, when asked in Interrogatory No. 21 to "describe each complaint" made, plaintiff answered:

"I do not recall any dates at this time, but I had multiple conversations with Mike Higgins about Veronica Cavazos. I had multiple conversations with Jem Brown about Linda Davidson and Kristine Morris not sharing information with me. I also talk [sic] to Bob Blum about Linda and Kristine not sharing information with me, and I talk [sic] with him about Mike Higgins verbally harassing me. I also had conversations with Garith Krause about Mike Higgins having his hand down Veronica's blouse. Discovery in this matter is ongoing and Plaintiff reserves his right to amend his response." (Fact 77, Exhibit 48.)

MID argues that this interrogatory response is vague and fails to provide any specifics about race and gender discrimination. MID argues that the more specific complaints in plaintiff's opposition should be excluded pursuant to Rule 37(c)(1)'s self-executing evidentiary sanction for failure to supplement any response to his interrogatory.

MID's argument goes to the issue of whether plaintiff can demonstrate he engaged in "protected activity." According to the interrogatory response provided in discovery, plaintiff complained about (1) persons not sharing information, (2) unspecified "verbal harassment," (3) Higgin's hand down a female's blouse. In his opposition, however, plaintiff said that he complained about substantially different conduct — race and gender discrimination. Certainly, at the time plaintiff answered the interrogatory, he knew to whom he had complained and about which topics, yet failed to disclose the information. Pursuant to Rule 26(e), a party has a duty to supplement or correct earlier interrogatory answers upon learning that the earlier answer "in some material respect . . . incomplete or incorrect." Plaintiff offered no justification in his opposition or explanation for the noted discrepancy in the evidence.

The Court then requested the parties supplement their briefing as to whether an evidentiary sanction was warranted, under Rule 37, for plaintiff's purported failure to comply with the supplemental disclosure provisions of Rule 26(e)(1).

Plaintiff filed a supplemental brief explaining that while he did not supplement his interrogatory response, he had testified in his deposition as to the incidents of his complaints about racial and gender discrimination. Plaintiff argues that supplementation was not required pursuant to Rule 26(e)(1)(A), because the information had been provided by incorporating the deposition into his interrogatory answer.

The duty under Rule 26(e) to supplement applies only "if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Rule 26(e)(1)(A). The Advisory Committee Notes (1993) to Rule 26(e) clarify the "otherwise" clause requirement: "There is, however, no obligation to provide supplemental or corrective information that has been otherwise made known to the parties in writing or during the discovery process, as when a witness not previously disclosed is identified during the taking of a deposition."

Plaintiff argues that in discovery, he cited to his deposition transcript wherein he informed management that he felt he was discriminated against on the basis of race and gender. (Doc. 110, Exh. 412 Tumbling depo. P. 275 et seq.) The Court notes that plaintiff's deposition, however, was taken before he responded to the interrogatories. His deposition was taken on October 6 and 7, 2009 and he responded to the interrogatories on October 30, 2009. In this situation, where the deposition preceded the interrogatory responses, plaintiff is not relieved of his obligation to properly respond and to supplement under Rule 26(e). The specific complaints he made were not "otherwise" made know to defendants because the interrogatory answer was after the deposition. Plaintiff was required provide complete information.

The Court notes that Rule 33 requires that each interrogatory must be responded to "separately and fully." An answer to an interrogatory should be complete in itself and should not refer to the pleadings, or to depositions or other documents, or to other interrogatories. Batts v. County of Santa Clara, 2010 WL 1027990 (N.D.Cal. 2010); Anderson v. Fresno County, Human Services System, 2007 WL 1865657, 3 (E.D.Cal. 2007) (When a party propounds an interrogatory that requests an answer to a question, a party responds inappropriately by simply designating documents, because the interrogatory did not call for records.); Continental Ill. Nat'l Bank Trust Co. of Chicago v. Caton, 136 FRD 682, 686 (D KS 1991) ("see page 44 of Jones deposition transcript" improper). Incorporation by reference is an improper form of answer.

Further, the fact that plaintiff "incorporated by reference" the entirety of his deposition into his interrogatory response does not relieve him of his obligations under Rule 26(e). The duty to supplement or correct prior disclosures or discovery responses arises "if the party learns that in some material respect the disclosure or response is incomplete or incorrect." Rule 26(e)(1)(A). The interrogatory responses were provided after the deposition testimony and thus were required to be complete.

A plaintiff may be relieved of the failure to disclose the required information if plaintiff was substantially justified or the failure is harmless. Plaintiff has the burden of proving he was substantially justified and the harmlessness. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9^th Cir. 2001). Plaintiff has not argued that he was substantially justified in failing to supplement. His position is that he did not need to supplement, at all, because he was deposed previously and he then incorporated the deposition into his interrogatory response. The Court therefore finds plaintiff was not substantially justified in failing to supplement his interrogatory response.

Next, the Court must consider whether the failure to supplement is harmless. To determine harmlessness, a court should consider five factors: whether the opposing party was prejudiced, the public policy favoring disposition of cases on their merits, the availability of less drastic sanctions, the court's need to manage its docket, and the public's interest in expeditious resolution of litigation. Wendt v. Host Intern., Inc., 125 F.3d 806 (9^th Cir. 1997).

Applying the five factors, the prejudice to defendant that would result from allowing plaintiff to alter drastically the scope and nature of his claims at this point far outweighs the factors which might favor allowing plaintiff to enhance his retaliation claim. A party is entitled to know all of the facts and evidence that underlie the opposing party's case, long before dispositive motions. The inadequately disclosed facts which form the basis of the retaliation claim were critical for defendant to properly prepare its defense. While public policy favors disposition of cases on their merits, that policy must be balanced with the liberal disclosure and discovery policies of the Federal Rules of Civil Procedure. Requiring the parties to comply with the Rules of Civil Procedure and with the court's scheduling order promotes achieving such goals by giving full disclosure to the parties, minimizing the cost and delay of discovery and eliminating the need for unnecessary trial preparation. Plaintiff merely said the facts are somewhere "in my deposition" and this is a failure to properly respond. The Court finds that the failure to supplement and fully respond to the interrogatory are not harmless and cannot be corrected by less drastic measures at this dispositive motion stage. Therefore, pursuant to Rule 37(c), the Court limits the retaliation claim to the facts in his answer to interrogatory 21.

2. No issue of Fact as to Protected Activity

For protection against retaliation, an employee must have opposed an employment practice made unlawful by the statute. 42 U.S.C. § 2000e-3(a); Gov.C. § 12940(h). The opposition must be to a policy or practice of an employer rather than its subordinates. Silver v. KCA, Inc., 586 F.2d 138, 140-141 (9th Cir. 1978) (opposition to coworker's racial slurs that were never reported to employer was not opposition to an employment practice and therefore outside coverage of retaliation provision).

Plaintiff has not raised an issue of fact that he engaged in protected activity. Plaintiff complained about (2) persons not sharing information, (2) unspecified "verbal harassment," (3) Higgin's hand down a female's blouse. Plaintiff's complaints that Linda Davidson and Kristine Morris would not share information with him do not rise to "protected activity," under Title VII or the FEHA. There is no inference that failure to share employment information is a "prohibited act." Further, plaintiff does not support this claim that his complaint for "verbal harassment" was based upon any protected basis.

In any event, the evidence shows that these complaints are barred by the statute of limitations, having occurred in 2004 through 2006.

3. No Causal Link Between the Protected Activity and the Adverse Employment Decision

"To establish causation, the plaintiff must show by a preponderance of the evidence that engaging in the protected activity was one of the reasons for the adverse employment decision and that but for such activity the decision would not have been made." Kraus v. Presidio Trust Facilities Division/Residential Management Branch, 704 F.Supp.2d 859 (N.D. Cal. 2010) (citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002)).

While plaintiff complained about Higgin's hand down a female's blouse, and arguably, this is a complaint based upon sexual harassment, there is no evidence that he was retaliated against based upon this complaint. It is undisputed that Higgins was not involved in plaintiff's demotion to Supervisor of Water Operations in May 2006. (Doc. 97, Joint Facts #38.) It is also undisputed that Higgins was not involved in plaintiff's demotion to Chemical Spray Technician. (Doc. 99, Exh. 35, Personnel Action.) Therefore, plaintiff has failed to raise an issue of fact that he engaged in protected activity for which he was retaliated.

E. Failure to Prevent Discrimination and Harassment under the FEHA

Plaintiff's fifth claim is pursuant to the FEHA for failure to prevent discrimination and harassment. Defendant argues the if the court grants summary judgment on all other discrimination and harassment claims, it must grant summary judgment on this claim as well.

Government Code section 12940(k) provides that it is unlawful for "an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." The California Supreme Court has stated that FEHA "makes it a separate unlawful employment practice" for an employer to violate section 12940(k). State Dept. of Health Servs. v. Super. Ct., 31 Cal. 4th 1026, 6 Cal.Rptr.3d 441, 79 P.3d 556 (2003). Plaintiff must establish a claim for discrimination before a failure to prevent discrimination claim can be stated. See Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004); Trujillo v. North County Transit Dist., 63 Cal.App. 4th 280, 289 (1998) ("[T] here's no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn't happen") (internal quotation marks omitted).

To the extend the Court has ruled claims on discriminatory conduct are untimely which form the basis for this claim, the conduct is barred under this claim as well.

F. Whistleblower Action Pursuant to Labor Code § 1102.5

Plaintiff's sixth claim for relief alleges whistle blower retaliation under California Labor Code § 1102.5. Plaintiff was transferred to the Chemical Spray Technician position on June 27, 2008. Plaintiff alleges this transfer was in retaliation for his "whistleblowing" about a Board member's receipt of irrigation water at a lower rate than permitted under MID regulations.

Cal. Lab. Code § 1102.5 protects employees who report or merely object to unlawful business practices by making it unlawful to retaliate against them. An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal law, or noncompliance with a state or federal regulation. Labor Code § 1102.

Prior to bringing an action under Section 1102.5, a plaintiff is required to exhaust all administrative remedies. Campbell v. Regents of Univ. of Cal., 35 Cal. 4th 311, 317, cert. denied, 546 U.S. 938 (2005). The administrative remedy for a Section 1102.5 claim is the presentment of a government tort claim.

California Government Code § 945.4 provides that no suit for money or damages may be brought against a public entity until a written claim has been presented to the public entity, and has been acted upon by the public entity or deemed to have been rejected. The filing of a government tort claim satisfies the exhaustion requirement, absent any other administrative remedy, such as an internal grievance procedure. See Neveu v. City of Fresno, 2005 WL 2562717, at *6 (E.D.Cal. 2005) ("At the pleading stage, Plaintiff's allegation that there were no adequate internal administrative remedies and that he exhausted the only available administrative remedy (i.e., the filing of a government tort claim), is sufficient to survive a motion to dismiss."); Campbell, 35 Cal. 4th at 333 (plaintiff failed to exhaust internal grievance procedure before filing claim).

The limitations period for presenting a tort claim is six months. Claims for personal injury (including wrongful death) or property damage must be presented "not later than six months after the accrual of the cause of action." Gov. Code § 911.2. A cause of action for tortious discharge or other challenged employment act accrues upon the occurrence of the challenged employment act. Romano v. Rockwell International, 14 Cal. 4th 479, 491 (1996).

Here, plaintiff did not file a government claim with MID until September 9, 2008, which is 15 months after the alleged retaliatory conduct, when he was demoted to a Chemical Spray Technician. Since plaintiff did not timely file a government claim, the cause of action arising from this conduct is time-barred.

Plaintiff does not dispute that he was required to present a government tort claim prior to filing suit. (Doc. 103, Opposition p. 32.) Plaintiff does not argue that he timely submitted a claim. Rather, plaintiff argues that MID should be equitably estopped from arguing that plaintiff untimely presented a government claim. (Doc. 103, Opposition p. 32.) Plaintiff argues, as he did supra, that individual MID Board members contacted him and "instructed him" to not take any action and he would be reinstated. ( Id.) He argues that he was induced not to file a claim, and relied upon the Board Members' representations.

For the same reasons as the Court found that equitable estoppel does not bar the statute of limitations in the Title VII and FEHA, the Court finds that the equitable estoppel does not bar the defense of failure to exhaust administrative remedies. Accordingly, summary adjudication will be granted on this claim for failure to exhaust administrative remedies.

CONCLUSION

For the foregoing reasons, the Court GRANTS, in part, and DENIES, in part, MID's motion as follows:

— GRANTS the motion for summary adjudication on the first and third claims for relief under Title VII as to discriminatory conduct which occurred more than 300 days before the filing of the June 10, 2008 EEOC Charge.

— GRANTS the motion for summary adjudication on the second, fourth and fifth claims for relief under the FEHA as to discriminatory conduct which occurred more than one year before the filing of the June 10, 2008 EEOC Charge.

— GRANTS the motion for summary adjudication on the fourth claim for relief for retaliation.

— GRANTS the motion for summary adjudication on the sixth claim for relief under Labor Code § 1102.5 for failure to exhaust administrative remedies.

— DENIES, in part, and GRANTS, in part, the motion for summary adjudication on the seventh claim for relief under 42 U.S.C. § 1981, as more fully set forth in the order.

IT IS SO ORDERED.