(HC) Thao v. Swarthouth, No. 2:2009cv03572 - Document 30 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 06/24/11 ORDERING that petitioner's request for an evidentiary hearing on claims 1 and 2 of the first amended petition for writ of habeas corpus 18 be denied. Also, RECOMMENDING that sub-claims 1(a), 1(b), 1(c) and 1(d) of the first amended petition be dismissed due to petitioner's failure to exhaust those sub-claims in state court, and that all remaining claims be denied on the merits. Referred to Judge William B. Shubb. Objections due within 21 days.(Plummer, M)
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(HC) Thao v. Swarthouth Doc. 30 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CHARLIE CHONG THAO, 11 12 Petitioner, No. CIV S-09-3572 WBS DAD P vs. 13 SWARTHOUTH, Warden, 14 Respondent. 15 16 ORDER & FINDINGS AND RECOMMENDATIONS / Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. The petition before the court challenges petitioner’s 18 judgment of conviction entered in the Sacramento County Superior Court in 2007 for residential 19 burglary, commercial burglary, robbery, kidnapping for the purpose of robbery, false 20 imprisonment, and criminal threats. Petitioner seeks federal habeas relief on the grounds that (1) 21 his trial counsel rendered ineffective assistance by failing to investigate and prepare for trial, 22 specifically by failing to (a) make a discovery motion; (b) prepare jury instructions; (c) hire an 23 investigator or conduct an independent investigation; (d) consult with a “facial expressionist 24 expert”; (e) have an investigator meet with petitioner; (f) object to the admission of petitioner’s 25 confession based on a Miranda violation; (g) seek to exclude petitioner’s confession based on 26 coercion; (h) call defense witnesses to testify about petitioner’s state of mind; (i) call the county 1 Dockets.Justia.com 1 jail psychiatric staff; and (j) obtain a psychiatric evaluation or consult with a psychiatrist; (2) his 2 appellate counsel rendered ineffective assistance by failing to raise the ineffective assistance of 3 trial counsel claims listed above on appeal; and (3) that he is actually innocent. Petitioner also 4 seeks an evidentiary hearing on Claims 1 and 2. 5 Upon careful consideration of the record and the applicable law, the undersigned 6 will recommend that petitioner’s application for habeas corpus relief be denied, in part due to his 7 failure to exhaust all of his claims in state court and in part on the merits. The undersigned will 8 also deny petitioner’s request for an evidentiary hearing. 9 PROCEDURAL BACKGROUND 10 On November 15, 2007, a Sacramento County Superior Court jury found 11 petitioner guilty of residential burglary and commercial burglary in violation of California Penal 12 Code § 4591; robbery in violation of § 211; kidnapping for the purpose of robbery in violation of 13 § 209(b)(1); false imprisonment in violation of § 236; and making criminal threats in violation of 14 § 422. (Lod. Doc. 1 (hereinafter “CT”) at 169-170.) On December 14, 2007, petitioner was 15 sentenced to life in state prison with the possibility of parole, plus seven years. (CT 227-230.) 16 Petitioner appealed his judgment of conviction to the California Court of Appeal 17 for the Third Appellate District. On October 21, 2008, in a reasoned opinion the state appellate 18 court reduced petitioner’s sentence to life in prison with the possibility of parole, plus four years 19 and eight months, but otherwise affirmed the judgment. (Lod. Doc. 6 at 11.) Petitioner then 20 filed a petition for review with the California Supreme Court. (Lod. Doc. 7.) On December 23, 21 2008, the California Supreme Court summarily denied that petition. (Lod. Doc. 8.) 22 On December 28, 2009, petitioner filed his original federal habeas petition in this 23 court. (Doc. No. 1.) On January 13, 2010, petitioner filed a habeas corpus petition in the 24 Sacramento County Superior Court, which was denied on March 2, 2010. (Lod. Docs. 9, 10.) 25 1 26 Subsequent statutory references are to the California Penal Code unless otherwise indicated. 2 1 On March 18, 2010, the magistrate judge previously assigned to this case recommended that the 2 petition be dismissed on procedural grounds. (Doc. No. 7.) On April 6, 2010, petitioner filed a 3 habeas corpus petition in the California Supreme Court. (Lod. Doc. 11.) On May 11, 2010, the 4 previously assigned magistrate judge vacated his earlier findings and recommendations. (Doc. 5 No. 9). By order dated June 22, 2010, this case was reassigned to the undersigned magistrate 6 judge.2 (Doc. No. 11.) On October 6, 2010, the undersigned dismissed the original habeas 7 petition and granted petitioner leave to file an amended petition. (Doc. No. 13.) On October 13, 8 2010, the California Supreme Court summarily denied petitioner’s habeas corpus petition. (Lod. 9 Doc. 12.) On November 23, 2010, the undersigned issued findings and recommendations 10 recommending that the federal habeas petition be dismissed without prejudice on procedural 11 grounds. (Doc. No. 16.) 12 On December 7, 2010, petitioner filed his first amended petition (hereinafter 13 “FAP”). (Doc. 18.) On January 13, 2011, the undersigned vacated the prior findings and 14 recommendations and ordered a response to the FAP. (Doc. No. 19.) Respondent filed an 15 answer on March 14, 2011. (Doc. No. 22.) Petitioner filed a traverse on April 18, 2011. (Doc. 16 No. 27.) 17 18 19 20 21 22 23 24 25 26 2 The order of reassignment noted that petitioner had raised “the exact same challenges to the same conviction . . . in an earlier petition to this court, Case No. CIV S-09-3536 WBS DAD.” (Doc. No. 11 at 1.) In that action (hereinafter “Thao I”), in an order dated January 29, 2010, the undersigned observed that “it appears [petitioner] did not raise any of the claims set forth in his pending federal petition on appeal or in any subsequent petitions for post-conviction relief to the California Supreme Court.” (Thao I, Doc. 9 at 2.) Accordingly, the undersigned recommended that the petition be dismissed due to petitioner’s failure to exhaust his claims in state court (id. at 4), and the assigned district judge entered judgment adopting those recommendations on March 5, 2010. (Thao I, Doc. 13.) Thereafter, petitioner completed pursuing a second round of review in the California Supreme Court. (See Lod. Doc. 12, described above). Accordingly, the exhaustion analysis set forth in Thao I is not applicable to this action. See Kuhlmann v. Wilson (1986) 477 U.S. 436, 449 (1986) (“‘'[A] subsequent application for a writ of habeas corpus . . . need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.'”) 3 1 FACTUAL BACKGROUND 2 In its unpublished memorandum and opinion, shortening petitioner’s sentence as 3 described above but in all other respects affirming his judgment of conviction on appeal, the 4 California Court of Appeal for the Third Appellate District provided the following factual 5 summary: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In November 2006, L.P., branch manager and vice-president of a bank in Elk Grove, California, lived with her husband and daughter in the City of Galt. On the morning of November 3, 2006, L.P.’s husband left the house to go to work at approximately 6:00 a.m. The couple’s daughter left for school at approximately 7:10 a.m. As L.P. prepared for work, still wearing her robe and slippers, she heard the doorbell ring. She looked through the peephole but did not recognize the person standing there. When L.P. opened the door, defendant pointed a gun at her and entered the home. L.P. screamed. Defendant told her to be quiet and said, “Give me your money.” L.P. gave defendant $75 that was sitting on the kitchen counter, and $40 to $50 from her purse. She told defendant that was all the money she had. He said, “Let’s go to the bank.” When L.P. said the bank was closed, defendant said, “You have the key. Get the key now.” L.P. retrieved her keys from the bedroom and got into the back seat of defendant’s car as instructed. Defendant climbed into the driver’s seat and placed the gun on his lap. Defendant drove to the bank where L.P. worked. During the drive, L.P. recognized defendant as a customer of the bank and her daughter’s former tutor. When they arrived at the bank, defendant donned a black mask. L.P. unlocked the back door and entered the bank with defendant following behind her. L.P. silenced the alarm and opened the vault door. Unable to access the vault money without a second key, L.P. opened the safe deposit box containing her till money instead and gave defendant the contents -approximately $5,000, including $35 in “bait” money. FN2 Defendant said, “That’s not enough. I want more.” Although L.P. kept telling defendant she could not open the file cabinet to access the cash in the vault, defendant insisted she had a key. Finally, L.P. suggested that defendant shoot open the box containing the second access key. Defendant grabbed a tool and pried the lock box open. L.P. opened the cabinet and placed the cash, including “bait” money and an electronic tracking device, into defendant’s backpack. Defendant said, “Let’s go,” and they left the bank. As she exited the bank, L.P. reset the alarm and locked the doors. Defendant ordered L.P. back into the car, and then climbed into the driver’s seat. He laid the gun on his lap and told L.P. he was taking her home. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 FN2. L.P. described “bait” money as bills from which the serial numbers have been recorded for tracking purposes in the event of a robbery. Defendant initially headed in the direction of L.P.’s home. During the drive, L.P.’s cell phone rang twice, and defendant took it from her. As he neared Galt, defendant turned away from L.P.’s home and down a rural road unfamiliar to L.P. Defendant stopped the car and told L.P. not to identify him, threatening that he and some of his friends would hurt L.P. and her family if she did. When L.P. promised not to tell, he told her to get out of the car and told her to keep walking and not to stop to talk to anyone. L.P. got out of the car and started walking. Defendant drove away, but returned once, reminded her to “do what he said and keep walking,” and then drove off. As L.P. walked towards her home, two people stopped and offered help. L.P. declined, fearing defendant would follow through on his threats. As she neared her home, L.P.’s husband, driving by on his way to check on her after hearing the bank had been robbed, stopped and picked her up. They drove back home, notified police and then drove to the Galt Police Department to report the incident. Bank surveillance cameras recorded the defendant and L.P. in the bank that morning. L.P. provided police with a description of defendant and his vehicle and informed them he had worked at the Elk Grove Learning Center and had tutored their daughter. Police obtained defendant’s name and address from the Learning Center, but were unable to find defendant in Sacramento County. 15 16 17 18 19 20 21 22 23 24 The next day, defendant was apprehended in San Francisco following a high-speed chase through the city. Defendant had in his possession the backpack used in the robbery, along with over $22,000 in cash. Police later recovered over $55,700 in cash, the electronic tracking device and the “bait” money, along with the pants, ski mask and replica pistol used by defendant in the robbery. Defendant admitted L.P.’s version of events, and told police he planned the crimes and acted alone. FN3 FN3. At trial, defendant testified he and L.P. planned the bank robbery and agreed to meet in San Francisco the next day to split the proceeds. By complaint, deemed to be the information, defendant was charged with first degree residential burglary (count one), first degree robbery (count two), kidnapping for the purpose of robbery (count three), second degree commercial burglary (count four), second degree robbery (count five), false imprisonment (count six) and criminal threats (count seven). 25 26 Defendant was tried by a jury and found guilty on all counts. The court imposed a sentence of life with the possibility of parole on 5 1 count three, plus a consecutive aggregate term of seven years comprised of the middle term of four years on count one; one year four months (one-third the middle term) on count two; the middle term of two years on count four; one year (one-third the middle term) on count five; the middle term of two years on count six; and eight months (one-third the middle term) on count seven. The court stayed execution of the sentences for second degree commercial burglary (count four) and false imprisonment (count six) pursuant to section 654. 2 3 4 5 6 (Lod. Doc. 6 at 1-5)3 7 8 ANALYSIS I. Standards of Review Applicable to Habeas Corpus Claims 9 An application for a writ of habeas corpus by a person in custody under a 10 judgment of a state court can be granted only for violations of the Constitution or laws of the 11 United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the 12 interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 14 1149 (9th Cir. 2000). 15 16 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief: 17 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 - 18 19 20 (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 21 22 (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. 23 24 ///// 25 3 26 As noted, petitioner’s sentence was modified on appeal to a term of life with the possibility of parole plus four years eight months. (Lod. Doc. 6 at 11.) 6 1 For purposes of applying § 2254(d)(1), “clearly established federal law” consists 2 of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. 3 Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 4 (2000)). Nonetheless, “circuit court precedent may be persuasive in determining what law is 5 clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 6 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010). 7 A state court decision is “contrary to” clearly established federal law if it applies a 8 rule contradicting a holding of the Supreme Court or reaches a result different from Supreme 9 Court precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 10 (2003). Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may 11 grant the writ if the state court identifies the correct governing legal principle from the Supreme / 12 Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s case.4 13 Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 14 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ 15 simply because that court concludes in its independent judgment that the relevant state-court 16 decision applied clearly established federal law erroneously or incorrectly. Rather, that 17 application must also be unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. 18 Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal 19 habeas court, in its independent review of the legal question, is left with a ‘firm conviction’ that 20 the state court was ‘erroneous.’”). “A state court’s determination that a claim lacks merit 21 precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of 22 the state court’s decision.” Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) 23 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for 24 4 25 26 Under § 2254(d)(2), a state court decision based on a factual determination is not to be overturned on factual grounds unless it is “objectively unreasonable in light of the evidence presented in the state court proceeding.” Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (quoting Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004)). 7 1 obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s 2 ruling on the claim being presented in federal court was so lacking in justification that there was 3 an error well understood and comprehended in existing law beyond any possibility for fairminded 4 disagreement.” Harrington,131 S. Ct. at 786-87. 5 If the state court’s decision does not meet the criteria set forth in § 2254(d), a 6 reviewing court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. 7 Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th 8 Cir. 2008) (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because 9 of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by 10 11 considering de novo the constitutional issues raised.”). The court looks to the last reasoned state court decision as the basis for the state 12 court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 13 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning 14 from a previous state court decision, this court may consider both decisions to ascertain the 15 reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en 16 banc). “When a federal claim has been presented to a state court and the state court has denied 17 relief, it may be presumed that the state court adjudicated the claim on the merits in the absence 18 of any indication or state-law procedural principles to the contrary.” Harrington, 131 S. Ct. at 19 784-85. This presumption may be overcome by a showing “there is reason to think some other 20 explanation for the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 21 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides 22 no reasoning to support its conclusion, a federal habeas court independently reviews the record to 23 determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; 24 Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is 25 not de novo review of the constitutional issue, but rather, the only method by which we can 26 determine whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 8 1 853. Where no reasoned decision is available, the habeas petitioner still has the burden of 2 “showing there was no reasonable basis for the state court to deny relief.” Harrington, 131 S. Ct. 3 at 784. 4 When it is clear, however, that a state court has not reached the merits of a 5 petitioner’s claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a 6 federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. 7 Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 8 2003). 9 II. Petitioner’s Claims 10 A. Ineffective Assistance of Trial Counsel 11 In his FAP petitioner alleges that his trial counsel rendered ineffective assistance 12 by failing to investigate and prepare for trial. Specifically, petitioner lists the following ways in 13 which his attorney’s performance allegedly fell short of Sixth Amendment standards: trial 14 counsel failed to (a) make a discovery motion; (b) prepare jury instructions; (c) hire an 15 investigator or conduct an independent investigation; (d) consult with a “facial expressionist 16 expert”; (e) have an investigator meet with petitioner; (f) object to petitioner’s confession being 17 admitted into evidence based on a Miranda violation; (g) seek to exclude petitioner’s confession 18 based on the ground that it was obtained through coercion; (h) call defense witnesses to testify 19 about petitioner’s state of mind; (i) call the county jail psychiatric staff as defense witnesses at 20 trial; and (j) obtain a psychiatric evaluation or consult with a psychiatrist. (FAP, Attached Mem. 21 of P. & A. at 5-10.) 22 Respondent attacks most of these sub-claims on both procedural and substantive 23 grounds. (Answer at 1) (“Petitioner’s claim that his trial counsel was ineffective is in part 24 untimely, in part unexhausted, and in part procedurally defaulted. [] Petitioner’s trial counsel was 25 not ineffective[.]”) As discussed below, the court finds some of petitioner’s ineffective 26 assistance of counsel sub-claims to be clearly unexhausted and, therefore, will deny relief with 9 1 respect to those sub-claims on failure to exhaust grounds. As to timeliness, because AEDPA’s 2 statute of limitations is not jurisdictional, see Green v. White, 223 F.3d 1001, 1003-04 (9th Cir. 3 2000), the court elects to deny relief as to petitioner’s remaining ineffective assistance of counsel 4 sub-claims on the merits rather than reach the tolling issues raised by respondent. 5 Similarly, a reviewing court need not invariably resolve the question of procedural 6 default prior to ruling on the merits of a claim where the default issue turns on difficult questions 7 of state law. Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997); see also Busby v. Dretke, 359 8 F.3d 708, 720 (5th Cir. 2004); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002 9 (“Procedural bar issues are not infrequently more complex than the merits issues presented by the 10 appeal, so it may well make sense in some instances to proceed to the merits if the result will be 11 the same.”)) . Under the circumstances presented here the court finds that petitioner’s ineffective 12 assistance of trial counsel claim, to the extent it is not unexhausted, can be resolved more easily 13 by addressing it on the merits. Accordingly, this court will assume that petitioner’s ineffective 14 assistance claim is not procedurally defaulted. 15 1. Exhaustion of State Remedies 16 Respondent argues that the following ineffective assistance sub-claims must be 17 dismissed due to petitioner’s failure to exhaust those sub-claims in state court: (a) failure to make 18 a discovery motion; (b) failure to prepare jury instructions; (c) failure to hire an investigator or 19 conduct an independent investigation; (d) failure to consult with a “facial expressionist expert”; 20 (h) failure to call defense witnesses to testify about petitioner’s state of mind; and (i) failure to 21 call the county jail psychiatric staff as defense witnesses at trial. Respondent asserts that none of 22 these sub-claims were presented in either of petitioner’s two petitions filed with the California 23 Supreme Court, the first on direct review and the second seeking habeas relief. (See Lod. Docs. 24 7, 11.) 25 26 State courts must be given the first opportunity to consider and address a state prisoner’s habeas corpus claims. See Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (citing Rose 10 1 v. Lundy, 455 U.S. 509, 518-19 (1982)); Scott v. Schriro, 567 F.3d 573, 583 (9th Cir. 2009) 2 (“All exhaustion requires is that the state courts have the opportunity to remedy an error, not that 3 they actually took advantage of the opportunity.”); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) 4 (“Habeas petitioners have long been required to adjudicate their claims in state court - that is, 5 ‘exhaust’ them - before seeking relief in federal court.”); Farmer v. Baldwin, 497 F.3d 1050, 6 1053 (9th Cir. 2007) (“This so-called ‘exhaustion requirement’ is intended to afford ‘the state 7 courts a meaningful opportunity to consider allegations of legal error’ before a federal habeas 8 court may review a prisoner’s claims.”) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). 9 In general, a federal court will not grant a state prisoner’s application for a writ of habeas corpus 10 unless “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. 11 § 2254(b)(1). A state will not be deemed to have waived exhaustion unless the state, through 12 counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3). 13 A petitioner satisfies the exhaustion requirement by fairly presenting to the 14 highest state court all federal claims before presenting the claims to the federal court. See 15 Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. 16 Connor, 404 U.S. 270, 276 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). A 17 federal claim is fairly presented if the petitioner has described the operative facts and the federal 18 legal theory upon which his claim is based. See Wooten, 540 F.3d at 1025 (“Fair presentation 19 requires that a state’s highest court has ‘a fair opportunity to consider . . . and to correct [the] 20 asserted constitutional defect.’”); Lounsbury v. Thompson, 374 F.3d 785, 787 (9th Cir. 2004) 21 (same) (quoting Picard, 404 U.S. at 276)); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 22 1999). This requires petitioner to have “characterized the claims he raised in state proceedings 23 specifically as federal claims.” Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) 24 (emphasis in original) (internal citation omitted). “In short, the petitioner must have either 25 referenced specific provisions of the federal constitution or cited to federal or state cases 26 involving the legal standard for a federal constitutional violation. Mere ‘general appeals to broad 11 1 constitutional principles, such as due process, equal protection, and the right to a fair trial,’ do 2 not establish exhaustion.” Id. (quoting Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)). 3 Thus, a claim is unexhausted where the petitioner did not fairly present the factual or legal basis 4 for the claim to the state court. See Picard v. Connor, 404 U.S. at 275. “[I]t is not enough . . . 5 that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982). 6 As a rule, the “mere similarity of claims is insufficient to exhaust.” Duncan, 513 U.S. at 365-66. 7 On the other hand, “new factual allegations do not ordinarily render a claim 8 unexhausted.” Beatty v. Stewart, 303 F.3d 975, 989 (9th Cir. 2002). A claim is unexhausted 9 only if new factual allegations “fundamentally alter the legal claim already considered by the 10 state courts.” Vasquez v. Hillery, 474 U.S. 254, 260 (1986). See also Beatty, 303 F.3d at 989- 11 90; Weaver, 197 F.3d at 364. It is not necessary that “every piece of evidence” supporting 12 federal claims have been presented to the state court. Chacon v. Wood, 36 F.3d 1459, 1469 n.9 13 (9th Cir. 1994) (emphasis in original). See also Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 14 2008). Rather, the introduction of new evidence affects the fair presentation requirement only 15 when it “substantially improves the evidentiary basis” for petitioner’s claims. Aiken v. Spalding, 16 841 F.2d 881, 883 (9th Cir. 1988). New factual allegations that are merely cumulative of those 17 presented to the state court do not transform the claim and thus do not require exhaustion. 18 Hillery v. Pulley, 533 F. Supp. 1189, 1200-02 (E.D. Cal. 1982), aff'd, 733 F.2d 644 (9th Cir. 19 1984), aff'd, 474 U.S. 254 (1986). See also Weaver, 197 F.3d at 364 (acknowledging that 20 although the “precise factual predicate” for a claim had changed after the evidentiary hearing in 21 federal court, the claim remained rooted in the same incident and was therefore exhausted). 22 Thus, exhaustion does not require that every piece of evidence supporting the 23 federal claim be presented to the highest state court. Davis, 511 F.3d at 1009. Rather, “to 24 exhaust the factual basis of the claim, the petitioner must only provide the state court with the 25 operative facts, that is, all of the facts necessary to give application to the constitutional principle 26 upon which [the petitioner] relies.” Id. (internal quotation marks omitted). Moreover, it is 12 1 important to keep in mind that habeas “petitions must be read in context” and that “pro se 2 [habeas] petitions are held to a more lenient standard than counseled petitions.” Davis, 511 F.3d 3 at 1009 (quoting Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (en banc) and Sanders 4 v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003)). Accordingly,“fair presentation” requires only that 5 claims be alleged with as much particularity as is practicable under the circumstances. See Kim 6 v. Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1986). 7 Here, having carefully reviewed both of the petitions submitted by petitioner to 8 the California Supreme Court, the undersigned concludes that sub-claims 1(a), 1(b) and 1(d) 9 were not presented to the state’s highest court, and thus are not exhausted. Indeed, petitioner did 10 not so much as mention those sub-claims in either of his petitions submitted to the state high 11 court. (Lod. Doc. 7, 11.) 12 In sub-claim 1(c), petitioner alleges that his trial counsel failed to hire an 13 investigator or conduct an independent investigation. In his traverse, petitioner clarifies this 14 claim by alleging that his trial counsel failed to investigate 15 whether: (1) Petitioner force[d] his way into the victim’s house or was he invited; (2) is Petitioner in any way malicious or threaten to the victim in the commerse [sic] of the crime at the bank or on the way to the bank (see police report); (3) and who directed Petitioner to break the save [sic]lock key; it was the victim who directed Petitioner to do what he did. 16 17 18 19 (Traverse at 16) (record citations omitted)). In contrast, petitioner’s habeas petition submitted to 20 the California Supreme Court alleged his trial counsel’s failure to investigate a mental heath 21 defense, as discussed below, but did not present any allegation that his trial counsel made the 22 errors described above. Nor did the petition to the state high court present such facts as 23 constituting a federal claim of any sort. This ineffective assistance of counsel sub-claim should 24 therefore be dismissed due to petitioner’s clear failure to exhaust the claim in state court. 25 ///// 26 ///// 13 1 2 3 4 5 In sub-claim 1(h) of his ineffective assistance claim before this court, petitioner alleges: Counsel’s lack of investigation also resulted in the failure to call important lay defense witnesses who would have helped the defense to negate the element necessary for aggravated kidnapping. Primarily, counsel failed to call petitioner’s co-worker, petitioner’s family . . . to testify as to petitioner’s state of mind before and after being hospitalized of the commission of the crime. 6 7 (FAP, Attached Mem. of P. & A. at 7.) In his traverse, petitioner alleges that his co-workers 8 “would have verified to the jury that Petitioner and the victim are friend[s]; thus, negate 9 prosecution assertion that Petitioner kidnapped the victim.” (Traverse at 6.) As to potential 10 family member witnesses, petitioner suggests that if called they would have testified that 11 “Petitioner has suffered a loss[] of his grand-parent that triggered a traumatic depression, 12 dissociation with reality and post-traumatic symptoms that [a]ffects Petitioner’s ability to form 13 the necessary intent to commit kidnapping and robbery.” (Traverse at 7.) 14 In comparison, in his habeas petition filed before the California Supreme Court, 15 petitioner asserted that his trial counsel failed to “investigate mental health defenses”; “failed to 16 introduce and do any pre-trial investigation as to any evidence whatsoever to establish 17 petitioner’s mental health at the time of the incident; and “failed to investigate psychiatric 18 conditions that could have led to a conviction of a lesser charge[.]” (Lod. Doc. 11 at 7, 9-10.) 19 Petitioner further claimed that he failed to receive “the U.S. Constitutionally mandated 20 representation of effective assistance of trial and appellate counsel,” and he described this as an 21 “error of U.S. Constitutional magnitude.” (Lod. Doc. 11 at 7.) In his habeas petition to the 22 California Supreme Court petitioner cited one federal case, Brecht v. Abrahamson, 507 U.S. 619 23 (1993), which does not address ineffective assistance of counsel issues. Rather, in Brecht the 24 U.S. Supreme Court discussed the “harmless error” analysis for federal claims of trial error, 25 including “deprivation of the right to counsel.” 507 U.S. at 629-30 (citing Gideon v. 26 Wainwright, 372 U.S. 335 (1963)). 14 1 The undersigned finds that petitioner exhausted sub-claim 1(h) insofar as it 2 alleges that petitioner’s trial counsel failed to investigate the defense theory that petitioner’s 3 mental condition at the time of the crimes negated the element of intent necessary for conviction 4 on one or more of the charges against him. However, not exhausted are petitioner’s allegations 5 contained in this sub-claim that his trial counsel failed to call as witnesses his co-worker who 6 would have testified that petitioner and the victim were friends. Such allegations are a different 7 matter entirely and were clearly not raised or alluded to in the habeas petition filed by petitioner 8 with the California Supreme Court. 9 In sub-claim 1(i), petitioner alleges before this court that “[t]rial counsel could 10 and should have called the staffs (doctors) [sic] who treated and provided [psychiatric] 11 counseling to petitioner at county jail . . . [and] could have testif[ied] to the substantial body of 12 medical knowledge directly connecting traumatic depression, dissociation with reality, and post- 13 traumatic symptoms which can have a profound inhibiting effect upon the ability to think and act 14 clearly and purposefully to commit the crime.” (FAP, Mem. of P. & A. at 8.) As described 15 above, in his habeas petition filed with the California Supreme Court petitioner generally alleged 16 that his trial counsel failed to investigate and pursue a defense strategy based on petitioner’s 17 mental health at the time of his crimes. (Lod. Doc. 11 at 7, 9-10.) Because the court here is 18 concerned only with weeding out any obviously unexhausted claims before turning to the merits, 19 the court will allow that petitioner’s sub-claim 1(i), like sub-claim 1(h), is exhausted to the extent 20 it alleges that petitioner’s trial counsel provided ineffective assistance in failing to investigate a 21 mental health defense as to the question of intent in connection with one or more of the charged 22 offenses. 23 In sum, the undersigned will recommend that only petitioner’s ineffective 24 assistance of trial counsel sub-claims 1(a), 1(b), 1(c), and 1(d) be dismissed due to his clear 25 failure to exhaust those claims by presenting them to the California Supreme Court. 26 ///// 15 1 2. Merits of Remaining Ineffective Assistance Claims 2 The court now turns to the merits of petitioner’s remaining sub-claims of Claim 1, 3 in which he alleges that his trial counsel rendered ineffective assistance by failing to: (e) have an 4 investigator meet with petitioner; (f) object to the admission into evidence of petitioner’s 5 confession based on a Miranda violation; (g) seek to exclude petitioner’s confession from 6 evidence on the ground that it was coerced; (h/i) investigate petitioner’s mental state at the time 7 of the crimes (see discussion at II(a)(1), ante); and (j) obtain a psychiatric evaluation or consult 8 with a psychiatrist. 9 In discussing the merits of these claims, respondent notes that the deferential 10 AEDPA standard does not apply because they have never been adjudicated on the merits by a 11 state court. (Answer at 6, fn.3.) As discussed above, petitioner raised claims 1(c), 1(h), and 1(i) 12 in his habeas petition filed with the California Supreme Court. The court finds that petitioner 13 also raised sub-claim 1(e), alleging that his trial counsel never had an investigator meet with 14 petitioner, in his habeas petition before the California Supreme Court in which he alleged in part 15 that “[p]etitioner never met with the investigator nor did anyone else[.]” Lod. Doc. 11 at 22. 16 Finally, respondent concedes that petitioner raised ineffective assistance sub-claims 1(f), 1(g), 17 and 1(j) in his petition filed before the California Supreme Court. (Answer at 18.) The 18 California Supreme Court summarily denied the petition in its entirety (Lod. Doc. 12), which 19 respondent interprets as a denial for untimeliness based on the look-through doctrine. (Answer at 20 12) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, (1991)); see also Lod. Doc. 10 at 1-2 21 (Sacramento Superior Court’s denial of petitioner’s habeas petition for untimeliness, among 22 other reasons, on March 2, 2010)). Accordingly, the court will review all of the aforementioned 23 ineffective assistance sub-claims de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 24 2002). 25 26 The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in 16 1 Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of 2 counsel, a petitioner must first show that, considering all the circumstances, counsel’s 3 performance fell below an objective standard of reasonableness. 466 U.S. at 687-88. After a 4 petitioner identifies the acts or omissions that are alleged not to have been the result of 5 reasonable professional judgment, the court must determine whether, in light of all the 6 circumstances, the identified acts or omissions were outside the wide range of professionally 7 competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a 8 petitioner must establish that he was prejudiced by counsel’s deficient performance. Strickland, 9 466 U.S. at 693-94. Prejudice is found where “there is a reasonable probability that, but for 10 counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 11 694. A reasonable probability is “a probability sufficient to undermine confidence in the 12 outcome.” Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 13 (9th Cir. 2000). A reviewing court “need not determine whether counsel’s performance was 14 deficient before examining the prejudice suffered by the defendant as a result of the alleged 15 deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of 16 sufficient prejudice . . . that course should be followed.” Pizzuto v. Arave, 280 F.3d 949, 955 17 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697). 18 Defense counsel has a “duty to make reasonable investigations or to make a 19 reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 20 691. “This includes a duty to . . . investigate and introduce into evidence records that 21 demonstrate factual innocence, or that raise sufficient doubt on that question to undermine 22 confidence in the verdict.” Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (citing Hart v. 23 Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999)). In this regard, it has been recognized that “the 24 adversarial process will not function normally unless the defense team has done a proper 25 investigation.” Siripongs v. Calderon (Siripongs II), 133 F.3d 732, 734 (9th Cir. 1998) (citing 26 Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)). Therefore, counsel must, “at a minimum, 17 1 conduct a reasonable investigation enabling him to make informed decisions about how best to 2 represent his client.” Hendricks v. Calderon, 70 F.3d 1032, 1035 (9th Cir. 1995) (quoting 3 Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (internal citation and quotations omitted)). 4 On the other hand, where an attorney has consciously decided not to conduct further investigation 5 because of reasonable tactical evaluations, his or her performance is not constitutionally 6 deficient. See Siripongs II, 133 F.3d at 734; Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 7 1998); Hensley v. Crist, 67 F.3d 181, 185 (9th Cir. 1995). “A decision not to investigate thus 8 ‘must be directly assessed for reasonableness in all the circumstances.’” Wiggins, 539 U.S. at 9 533 (quoting Strickland, 466 U.S. at 691). See also Kimmelman, 477 U.S. at 385 (counsel 10 “neither investigated, nor made a reasonable decision not to investigate”); Babbitt, 151 F.3d at 11 1173-74. 12 A reviewing court must “examine the reasonableness of counsel’s conduct ‘as of 13 the time of counsel’s conduct.’” United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990) 14 (quoting Strickland, 466 U.S. at 690). Furthermore, “‘ineffective assistance claims based on a 15 duty to investigate must be considered in light of the strength of the government’s case.’” Bragg, 16 242 F.3d at 1088 (quoting Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986)). In 17 assessing an ineffective assistance of counsel claim “[t]here is a strong presumption that 18 counsel’s performance falls within the ‘wide range of professional assistance.’” Kimmelman, 19 477 U.S. at 381 (quoting Strickland, 466 U.S. at 689). 20 In assessing an ineffective assistance of counsel claim “[t]here is a strong 21 presumption that counsel’s performance falls within the ‘wide range of professional assistance.’ ” 22 Kimmelman, 477 U.S. at 381 (quoting Strickland, 466 U.S. at 689). See also Harrington, 131 23 S.Ct. at 788 (“The question is whether an attorney’s representation amounted to incompetence 24 under ‘prevailing professional norms,’ not whether it deviated from best practices or most 25 common custom.”) (quoting Strickland, 466 U.S. at 690). There is in addition a strong 26 ///// 18 1 presumption that counsel “exercised acceptable professional judgment in all significant decisions 2 made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). 3 In his sub-claim 1(e), petitioner alleges that his trial counsel informed him that an 4 investigator named Bill Lewis would come and talk to him at the Sacramento County Jail. A 5 year later, when petitioner still had not met with the investigator, he voiced his concerns to his 6 attorney, who handed petitioner an investigation report prepared by petitioner’s former public 7 defender. (FAP, Mem. of P. & A at 7; Traverse at 17-18; see FAP, Ex. C at 41-51 (investigative 8 report)). Petitioner suggests that a proper investigation would have proved: (1) that petitioner 9 and his victims were friends, thus petitioner could not have “kidnapped” her because she went 10 with him willingly; and (2) that petitioner’s psychological problems at the time of his crimes 11 were so great as to negate the element of intent with respect to aggravated kidnapping and/or 12 other offenses. (FAP, Attached Mem. of P. & A. at 7; Traverse at 7.) 13 Petitioner’s mere suggestion that additional investigation would have aided his 14 defense is insufficient to demonstrate what evidence, if any, additional investigation would have 15 uncovered. See Bragg, 242 F.3d at 1088 (no ineffective assistance where petitioner did “nothing 16 more than speculate that, if interviewed,” a witness might have given helpful information); Dows 17 v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (no ineffective assistance of counsel where there was 18 no evidence in the record that a helpful witness actually existed and petitioner failed to present an 19 affidavit establishing that the alleged witness would have provided helpful testimony for the 20 defense); see also Richardson v. United States, 379 F.3d 485, 488 (7th Cir. 2004) (“When 21 [counsel’s] alleged deficiency is a failure to investigate, the movant must provide the court 22 sufficiently precise information, that is, a comprehensive showing as to what the investigation 23 would have produced.”) (internal citation omitted); Chavez v. Pulley, 623 F. Supp. 672, 685 24 (E.D. Cal. 1985) (ineffective assistance claim denied due to petitioner’s failure to make “specific 25 allegation[s] of what such an investigation might have produced or show how its omission . . . 26 prejudiced his defense[.]”) 19 1 Having reviewed the trial record, the undersigned finds the first of these sub- 2 claims (that proper investigation would have established that the victim went with him willingly) 3 is simply not credible, and with respect to neither sub-claim has petitioner make a satisfactory 4 showing as to what further investigation would have produced or how the result of such 5 investigation would have changed the course of the trial. See United States v. Berry, 814 F.2d 6 1406, 1409 (9th Cir. 1987) (appellant failed to meet the prejudice prong of an ineffective 7 assistance claim because he offered no indication of what potential witnesses would have 8 testified to or how their testimony might have changed the outcome of the hearing); Wildman v. 9 Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (speculation that a helpful expert could be found or 10 would testify on petitioner’s behalf insufficient to establish prejudice); Richardson, 379 F.3d at 11 488. Of course, the Strickland standard “places the burden on the defendant, not the State, to 12 show a ‘reasonable probability’ that the result would have been different.” Wong v. Belmontes, 13 ___ U.S. ___, 130 S. Ct. 383, 390-391 (2009) (quoting Strickland, 466 U.S. at 694). Petitioner 14 has failed to meet that burden with respect to this aspect of his ineffective assistance of counsel 15 claim. Accordingly, he is not entitled to federal habeas relief. 16 The undersigned notes that with respect to several of his ineffective assistance 17 sub-claims, petitioner gives sort shrift to the prejudice prong of the Strickland standard. Rather, 18 petitioner merely alleges some wrongdoing on his trial counsel’s part without attempting to 19 establish that “but for counsel’s unprofessional errors,” he would not have been convicted and/or 20 sentenced to same extent. 466 U.S. at 694. Given the overwhelming evidence presented against 21 petitioner at trial and his own credibility issues, petitioner is confronted with a daunting task in 22 arguing that any one act or omission by his trial counsel would have changed the outcome of his 23 prosecution. See Lod Doc. 6 at 4-5 (describing bank surveillance cameras’ recording of 24 petitioner’s actions at the bank; police’s recovery of cash, electronic tracking device, and “bait” 25 money from petitioner, along with the pants, ski mask, and pistol used in the robbery; petitioner’s 26 confession to police that he planned the crime and acted alone); 2 RT 531 (trial court at 20 1 sentencing describes petitioner’s version of events, in which he and the victim conspired to rob 2 the bank, as “clearly fabricated”)). Instead, petitioner limits himself to only general and 3 conclusory statements regarding the prejudicial effect of his trial attorney’s alleged errors. See 4 FAP, Mem. of P. & A. at 9-10 (reduction of petitioner’s sentence on direct appeal “prove[s] 5 unequivocally the ineffective assistance of trial counsel”); Traverse at 19 (“[B]ecause of 6 counsel’s deficient performance, prejudice is the foregone conclusion as petitioner received 7 several more years on his sentence.”) Skirting the requirement that he establish prejudice 8 flowing from the alleged ineffective assistance of counsel cannot avail petitioner, however. The 9 court will therefore recommend that petitioner be denied relief as sub-claim 1(e). 10 In his ineffective assistance sub-claims 1(f) and 1(g), petitioner alleges that his 11 trial counsel “failed to investigate and pursue ‘Miranda’/voluntary situation5 and/or the coercion 12 that occurred with the threats against [petitioner] even with repeated requests to do so by 13 petitioner.” (FAP, Mem. of P. & A. at 7.) In support of these allegations, petitioner cites a 14 portion of the record in which the parties stipulated that the following statement would be read to 15 the jury at trial: 16 During the defendant’s interview, he stated on three occasions that he did not want to answer any more questions. The defendant then continued to answer questions. Detective Mitchell asked him where he obtained the idea to commit this type of crime. Detective Mitchell asked if he got the idea from a movie or television show. At that point, the defendant refused to answer any additional questions. 17 18 19 20 (2 RT at 423-424.) Unpacking these claims, the court presumes that petitioner takes the 21 following position: By stipulating to the above statement to be read to the jury, without 22 investigating and pursuing the defense theory that petitioner’s confession was involuntary, 23 coerced, and obtained in violation of his constitutional due process rights, trial counsel rendered 24 ineffective assistance. Again, such allegations do not satisfy the Strickland test, since petitioner 25 26 5 Miranda v. Arizona, 384 U.S. 436 (1966). 21 1 has not provided any context for the entry into this trial stipulation. Nor has petitioner provided 2 any further information regarding the circumstances of his confession. Without more, it is 3 impossible for this court to determine whether trial counsel could have successfully moved to 4 exclude petitioner’s confession on Miranda grounds. See Michigan v. Mosely, 423 U.S. 96, 102- 5 103 (1975) (Miranda cannot “sensibly be read to create a per se proscription of indefinite 6 duration upon any further questioning by any police officer on any subject, once the person in 7 custody has indicated a desire to remain silent.”). Similarly, petitioner’s bare allegation that 8 police made unspecified “threats” to coerce his confession is too vague and conclusory to show 9 that counsel should have moved to have his confession excluded due to coercion. 10 Even assuming arguendo that petitioner’s trial counsel incompetently failed to 11 move to exclude petitioner’s statements obtained in violation of his due process rights, there is 12 no indication in this record that this would have changed the outcome of petitioner’s trial. If 13 petitioner’s confession (in which he stated that he acted alone) was obtained in violation of 14 Miranda, it would still have been admissible to impeach petitioner’s testimony that he and the 15 victim were co-conspirators in the robbery scheme. Harris v. New York, 401 U.S. 222, 225 16 (1971); Pollard v. Galaza, 290 F.3d 1030, 1033 (9th Cir. 2002). Moreover, given the 17 overwhelming evidence arrayed against petitioner, the jury’s verdict clearly did not hinge on 18 petitioner’s confession. Thus these ineffective assistance sub-claims should be rejected as well. 19 Sub-claims 1(h), 1(i) and 1(j) concern defense counsel’s alleged failure to 20 investigate and pursue a defense based on petitioner’s mental condition at the time of the crimes. 21 Here again, it is not clear from the allegations of the petition why petitioner believes his 22 counsel’s decision not to pursue a state-of-mind defense was unprofessional or incompetent. It 23 could well be that defense counsel saw little to gain by inquiring into petitioner’s mental health 24 during his clearly premeditated crime spree. In this regard, petitioner merely argues that 25 26 [t]he mental health defense would have been significant and substantial as Petitioner had no prior criminal history and this aberration in his life can only be explained by some sort of mental 22 1 breakdown . . .[.] A reasonable jury would have concluded that Petitioner lacked the requisite mental state that constituted the elements of the charged offense(s) and found him not guilty of the aggravated kidnapping, yet possibly culpable for the lesser offense of kidnapping. 2 3 4 (Traverse at 21-22.) With respect to the charge of kidnapping for the purpose of robbery, 5 petitioner’s conviction was premised on a finding that he acted with the intent to commit robbery 6 and did not actually and reasonably believe that the victim consented to being moved. (CT 144.) 7 However, petitioner has alleged only that, prior to his crime spree, he was in emotional distress 8 following the death of his grandfather. Nothing in the record or in petitioner’s own allegations 9 suggest that he was incapable of forming the intent required for conviction on this charge. 10 Petitioner’s bare assertion that further investigation into his mental state would have revealed 11 evidence that would have negated the intent element of aggravated kidnapping in the minds of 12 the jury, is too speculative to meet the high bar set by Strickland. Thus these ineffective 13 assistance sub-claims fail as well. 14 15 In sum, petitioner is not entitled to federal habeas relief with respect to his any of his exhausted sub-claims of ineffective assistance of trial counsel. 16 B. Ineffective Assistance of Appellate Counsel 17 Petitioner asserts that his appellate counsel rendered ineffective assistance by 18 failing to raise all of the ineffective assistance of trial counsel claims that he now presents in the 19 FAP. (FAP, Mem. of P. & A. at 10-11.) He argues that the California Court of Appeal’s 20 reduction of his sentence in its October 2008 order was a “red flag” that should have spurred 21 appellate counsel to raise these claims. (Id. at 11.) As before, respondent argues both procedural 22 and substantive grounds for denial of the FAP. (Answer at 17-20.) Because the undersigned 23 finds this claim clearly meritless, as discussed below, there is no need to address respondent’s 24 procedural arguments. 25 ///// 26 ///// 23 1 Preliminarily, the court must determine whether this claim is subject to AEDPA 2 review. For the reasons addressed below, the undersigned will review these claims de novo. As 3 discussed above, petitioner’s habeas petition filed with the California Supreme Court made 4 numerous allegations of ineffective assistance of trial counsel, herein labeled sub-claims 1(e), 5 1(f), 1(g), 1(h), 1(i) and 1(j). In that state habeas petition, petitioner likewise argued that his 6 appellate counsel was ineffective for failing to raise on appeal these various mistakes by trial 7 counsel. (Lod. Doc. 11 at 22-25.) Looking through the California Supreme Court’s summary 8 denial of that petition (Lod. Doc. 12) to the last reasoned decision addressing petitioner’s claims 9 of ineffective assistance of appellate counsel, the Sacramento County Superior Court rejected this 10 11 12 13 14 claim, stating: [P]etitioner claims that his appellate counsel was ineffective for failing to raise any of these ineffective assistance of trial counsel claims on appeal. [¶] As petitioner’s ineffective assistance of trial counsel claims all fail, this claim fails. In addition, most of Petitioner’s ineffective assistance of trial [counsel] claims involve matters outside the record, that appellate counsel could not have successfully raised on appeal. 15 (Lod. Doc. 10 at 3.) Respondent avers that: “The court denied all of Petitioner’s IAC-trial 16 counsel claims based on untimeliness. (Lod. Doc. 10 at 1-3 [internal citations omitted.]) 17 Therefore, according to respondent, the Sacramento County Superior Court’s statement that “[a]s 18 petitioner’s ineffective assistance of trial counsel claims all fail, this claim fails” means that the 19 court was also denying the IAC-appellate counsel claims based on untimeliness.” (Answer at 20 19.) Respondent proceeds to analyze petitioner’s ineffective assistance of appellate counsel 21 claims according to the Strickland standard, as will the undersigned. 22 The Strickland standards apply to appellate counsel as well as trial counsel. Smith 23 v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). 24 However, an indigent defendant “does not have a constitutional right to compel appointed 25 counsel to press nonfrivolous points requested by the client, if counsel, as a matter of 26 professional judgment, decides not to present those points.” Jones v. Barnes, 463 U.S. 745, 751 24 1 (1983). Counsel “must be allowed to decide what issues are to be pressed.” Id. Otherwise, the 2 ability of counsel to present the client’s case in accord with counsel’s professional evaluation 3 would be “seriously undermined.” Id. See also Smith v. Stewart, 140 F.3d 1263, 1274 n. 4 (9th 4 Cir. 1998) (counsel not required to file “kitchen-sink briefs” because it “is not necessary, and is 5 not even particularly good appellate advocacy.”) There is, of course, no obligation to raise 6 meritless arguments on a client’s behalf. See Strickland, 466 U.S. at 687-88 (requiring a 7 showing of deficient performance as well as prejudice). Thus, appellate counsel is not deficient 8 for failing to raise a weak issue. See Miller, 882 F.2d at 1434. In order to demonstrate prejudice 9 in this context, petitioner must show that, but for appellate counsel’s errors, he probably would 10 11 have prevailed on appeal. Id at 1434 n. 9. Here, the court has found that all of petitioner’s ineffective assistance of trial 12 counsel claims are meritless, most obviously because petitioner has not shown that he was 13 prejudiced by any of trial counsel’s actions. Petitioner’s appellate counsel had no obligation to 14 raise meritless issues on appeal. Strickland, 466 U.S. at 687-88. Accordingly, petitioner is not 15 entitled to federal habeas relief with respect to his claim that his appellate counsel provided 16 ineffective assistance. 17 18 C. Actual Innocence Finally, petitioner asserts that he is actually innocent of some or all of the charges, 19 (petitioner does not specify) of which he was convicted. Characterizing this as “part of” his 20 ineffective assistance claim, petitioner makes no attempt to allege facts that would establish his 21 innocence, apparently hoping that such facts might be unearthed at some future evidentiary 22 hearing. (FAP, Mem. of P. & A. at 12; Traverse at 2.) 23 In Herrera v. Collins, 506 U.S. 390 (1993), a majority of the Supreme Court 24 assumed, without deciding, that a freestanding claim of actual innocence is cognizable under 25 federal law. In this regard, the court observed that “in a capital case a truly persuasive 26 demonstration of ‘actual innocence’ made after trial would render the execution of a defendant 25 1 unconstitutional, and warrant federal habeas relief if there were no state avenue open to process 2 such a claim.” 506 U.S. at 417. A different majority of the Supreme Court explicitly held that a 3 freestanding claim of actual innocence is cognizable in a federal habeas proceeding. Compare 4 506 U.S. at 417 with 506 U.S. at 419, 430-37. See also Jackson v. Calderon, 211 F.3d 1148, 5 1165 (9th Cir. 2000) (noting that a majority of the Justices in Herrera would have found a free- 6 standing claim of actual innocence). Although the Supreme Court did not specify the standard 7 applicable to this type of “innocence” claim, it noted that the threshold would be “extraordinarily 8 high” and that the showing would have to be “truly persuasive.” Herrera, 506 U.S. at 417. More 9 recently, the Supreme Court declined to resolve whether federal courts may entertain independent 10 claims of actual innocence but concluded that the petitioner’s showing of innocence in the case 11 before it fell short of the threshold suggested in Herrera. House v. Bell, 547 U.S. 518, 554-551 12 (2006). Finally, the Supreme Court has recently once again assumed, without deciding, that a 13 federal constitutional right to be released upon proof of “actual innocence” exists. District 14 Attorney’s Office for Third Judicial Dist. v. Osborne, ___U.S.___, 129 S. Ct. 2308 (2009). In 15 doing so, the Supreme Court noted that it is an “open question” whether a freestanding claim of 16 actual innocence exists and that the court has “struggled with it over the years, in some cases 17 assuming, arguendo, that it exists while also noting the difficult questions such a right would 18 pose and the high standard any claimant would have to meet.” 129 S. Ct. at 2321. 19 Here, assuming arguendo that a freestanding claim of actual innocence may be 20 maintained in this non-capital case, petitioner has failed to meet the high standard necessary to be 21 entitle to federal habeas relief. As respondent observes, petitioner has not made any showing that 22 would counter – or even cast the slightest doubt on – the overwhelming evidence presented at his 23 trial pointing to petitioner’s guilt of the crimes charged, as amply recounted in the trial record 24 reviewed by this court. This claim should therefore be rejected as well. 25 ///// 26 ///// 26 1 D. Evidentiary Hearing 2 Finally, petitioner seeks an evidentiary hearing on his ineffective assistance 3 claims. Pursuant to 28 U.S.C. § 2254(e)(2), an evidentiary hearing is appropriate under the 4 following circumstances: 5 (e)(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that- 6 7 (A) the claim relies on- 8 (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or 9 10 (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and 11 (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense[.] 12 13 14 Under this statutory scheme, a district court presented with a request for an 15 evidentiary hearing must first determine whether a factual basis exists in the record to support a 16 petitioner’s claims and, if not, whether an evidentiary hearing “might be appropriate.” Baja v. 17 Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). See also Earp v. Ornoski, 431 F.3d 1158, 1166 18 (9th Cir. 2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). A petitioner 19 requesting an evidentiary hearing must also demonstrate that he has presented a “colorable claim 20 for relief.” Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670, Stankewitz v. 21 Woodford, 365 F.3d 706, 708 (9th Cir. 2004) and Phillips v. Woodford, 267 F.3d 966, 973 (9th 22 Cir. 2001)). To show that a claim is “colorable,” a petitioner is “required to allege specific facts 23 which, if true, would entitle him to relief.” Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) 24 (internal quotation marks and citation omitted). Moreover, the Supreme Court has recently held 25 that “at a minimum . . . § 2254(e)(2) still restricts the discretion of federal habeas courts to 26 ///// 27 1 consider new evidence when deciding claims that were not adjudicated on the merits in state 2 court.” Cullen v. Pinholster, 563 U.S. ___, ___, 131 S. Ct. 1388, 1398, 1400 (2011). 3 In any event, petitioner has not made the showing required by § 2254(e)(2). The 4 court concludes that no additional factual supplementation is necessary in this case and that an 5 evidentiary hearing is not appropriate because petitioner has not identified facts in support of his 6 claims that, even if established at a hearing, would entitle him to federal habeas relief. Further, 7 petitioner has not identified any factual conflict that would require this court to hold an 8 evidentiary hearing in order to resolve. Rather, petitioner appears merely to seek “an alternative 9 forum for trying facts and issues which a prisoner made insufficient effort to pursue in state 10 proceedings.” Cullen, 131 S.Ct. at 1401. Therefore, the undersigned will deny petitioner’s 11 request for an evidentiary hearing with respect to his claims. 12 CONCLUSION 13 IT IS HEREBY ORDERED that petitioner’s request for an evidentiary hearing on 14 Claims 1 and 2 of the First Amended Petition for a writ of habeas corpus (Doc. No. 18) is denied. 15 IT IS HEREBY RECOMMENDED that sub-claims 1(a), 1(b), 1(c), and 1(d) of 16 the First Amended Petition be dismissed due to petitioner’s failure to exhaust those sub-claims in 17 state court, and that all remaining claims be denied on the merits. 18 These findings and recommendations are submitted to the United States District 19 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty- 20 one days after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 23 shall be served and filed within seven days after service of the objections. Failure to file 24 objections within the specified time may waive the right to appeal the District Court’s order. 25 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 26 1991). In any objections he elects to file petitioner may address whether a certificate of 28 1 appealability should issue in the event he elects to file an appeal from the judgment in this case. 2 See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 3 certificate of appealability when it enters a final order adverse to the applicant). 4 DATED: June 24, 2011. 5 6 7 8 DAD:3 thao3572.hc 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 29
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