Thomas v. California Attorney General, No. 3:2012cv06012 - Document 15 (N.D. Cal. 2014)
Court Description: ORDER DENYING HABEAS PETITION (Illston, Susan) (Filed on 10/21/2014)
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Thomas v. California Attorney General Doc. 15 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 9 10 United States District Court For the Northern District of California 11 No. C 12-6012 SI (pr) TOMMY EUGENE THOMAS, ORDER DENYING HABEAS PETITION Petitioner, v. CALIFORNIA ATTORNEY GENERAL, 12 Respondent. / 13 14 INTRODUCTION 15 Tommy Eugene Thomas filed this pro se action seeking a writ of habeas corpus under 28 16 U.S.C. § 2254. The matter is now before the court for consideration of the merits of the habeas 17 petition. For the reasons discussed below, the petition will be denied. 18 19 BACKGROUND 20 Following a jury trial in Monterey County Superior Court, Thomas was found guilty of 21 assault with a deadly weapon1 and unlawful possession of ammunition by a felon. The jury 22 found him not guilty of attempted murder and not guilty of attempted voluntary manslaughter. 23 On January 30, 2009, the trial court suspended imposition of sentence and granted Thomas a 24 term of three years of probation, although a condition of probation was that Thomas had to serve 25 240 days in county jail. 26 The California Court of Appeal described the evidence relating to the crime at length, and 27 then engaged in an unusually detailed harmless error analysis of the self-defense theory which 28 1 The weapon was a barbecue fork about 13-14 inches long. See RT 289. Dockets.Justia.com 1 it considered to be a "patchwork of highly improbable inferences" and a "tortured labyrinth of 2 unlikelihoods proffered by the defense." Resp. Ex. C, California Court of Appeal Opinion ("Cal. 3 Ct. App. Opinion") at 23. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Prosecution Account Defendant sometimes held parties in a converted garage at his Seaside home known as the “boom-boom room.” On February 4, 2007, he hosted a party there to watch the Super Bowl football game. Guests included his girlfriend Sheila Castillo and two male friends, Curtis Thomas and Tony Goodrich. Defendant's then-best friend, Sidney Thissel, arrived around the time the game started, which was late afternoon. Also present, at least when the events at issue here took place, was Sidney's brother Kevin. Alcohol and marijuana were consumed. Later that evening defendant's blood alcohol content was tested at .147. Kevin's blood alcohol content was .146. After the football game some of the male partygoers, including defendant, Sidney, and Kevin, began playing dominoes. Each game required a $5 contribution to a pot which was apparently taken by the first player to accumulate a prescribed number of points by scoring in individual “hands.” FN1 FN1. According to defendant, the last game required a $10 contribution. Sidney denied that the stake ever went up from $5. Sidney testified that after several games were played without incident, Tony Goodrich “played bogus”: he “knocked,” meaning he said he was unable to play a tile, when in fact he could have played a tile. This required him to leave the game. Shortly thereafter, apparently, Sidney also played bogus. He too would have been required to leave the game, at least on timely objection by a player, but he apparently resisted doing so on the ground that his illegal play was only noticed by Curtis Thomas (no relation to defendant), who was only keeping score, not actually playing. Further, according to Kevin and Sidney, the bogus play was only called after the hand was over, which was apparently, in some opinions, too late. In any event Sidney began arguing with defendant, who believed he was on the verge of winning the game. According to Kevin and Sidney, Kevin decided at this point to take his money out of the pot and leave the party. He announced this intention. Defendant objected. Kevin took some money, as well as his cell phone and keys, off the table. Defendant punched him in the mouth, and Kevin punched defendant in the eye. The two men “locked up and went to the floor,” where they started “wrestling.” After maybe half a minute, others pulled them apart. Either while they were wrestling, or while they were being separated, defendant bit Kevin on the chest. Kevin threw the money he had taken onto the floor. Defendant was bleeding from a cut above his eye. He was escorted to the door and ran into the main house. Sidney and Curtis told Kevin to leave. Testifying over a relevance objection, Sidney said that he was fearful for Kevin's safety because he knew that defendant “ha[d] guns in the house,” and had seen them there. Kevin himself testified that he was “sure [defendant] had a gun.” Asked if defendant had “display[ed] a gun ... that night,” Kevin replied, “Not that night.” Kevin left the party and walked toward his car. Defendant came out of the house and ran after him. Kevin had reached his car, and was trying to put his keys in the door, when he saw “somebody running toward me fast,” whereupon he turned and saw it was defendant. Defendant did not say anything, and Kevin could not tell if he had anything in his hands. 2 1 2 3 Kevin “t[ook] off running” and they “ran a little bit,” but as defendant caught up with Kevin, Kevin asked “what did he have? I mean, are you going to shoot me, or what?” FN2 Defendant stabbed him in the side with a barbecue fork he had been using to cook that day. According to Kevin, defendant tried to stab him a second time, but he managed to fend him off until Sidney and others reached them. When they did, defendant ran back to the house. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FN2. Kevin gave two other versions of this utterance: “[W]hat are you going to do, shoot me?” and “You going to shoot me, man?” Sidney testified that when defendant came out of the house and ran after Kevin, Sidney and Curtis Thomas followed. Defendant “r[a]n up on” Kevin as the latter was trying to get into his car. Defendant was “screaming.” Kevin turned to face him and threw his hand up in a way that looked to Sidney like there was going to be a fistfight. Defendant made a motion with his hand that looked “like he was throwing a punch or something.” By the time Sidney reached them he knew defendant was swinging something in his hand, though he could not see exactly what it was. After Sidney and Curtis separated them, Kevin said defendant had gotten him “bad.” Kevin fell to the ground. Defendant “took off running back to the house.” Defendant's Account Defendant testified that he supplemented his income by selling his Louisiana cooking both for take-away and to guests at his parties. On this occasion, Sidney had said that he wasn't going to eat anything because he intended to eat at another party. On that basis he had contributed nothing for food. But throughout the day he kept “sampling” food, using a barbecue fork and tongs to take it. This “bothered” defendant. Eventually, after the men had begun playing dominos, defendant decided to put a stop to Sidney's depredations by delivering most of the remaining food to his neighbor. While placing it in a container he wiped off the foot-long barbecue fork Sidney had been using to serve himself and “tuck[ed] it down my belt.” When one of the domino players called a cigarette break, defendant tried to deliver the food to the neighbor. No one was home, so he set the food on his own refrigerator. He “tuck[ed]” the barbecue fork “down in my belt,” he testified, so that he could use it to clean up after the domino game. According to him, that is where it remained until he used it to stab Kevin. The defense contended that Kevin's blows in the boom-boom room inflicted a concussion, which impaired defendant's judgment and memory and affected his mental state. Consistent with this theory, defendant's account of the evening's violence was somewhat hazy on many points. He remembered “get[ting] into an altercation with Sidney.” He remembered Kevin standing up, grabbing money off the table, and “going through it,” perhaps counting it. He remembered reaching to grab it. He remembered being struck, but did not know “which one of them hit me.” He remembered “biting him,” and then standing up after “they pulled him off of me.” He felt that he “must have lost consciousness” at some point because “I don't know how I got on the floor.” Defendant testified that after being separated from Kevin, he went into the house to see “how serious” the injury to his eye was. He did not remember seeing any money on the floor or the table in the boom-boom room. Now, after examining his injury, he left the house to find Kevin in order, apparently, to get back the money out of which he felt he had been cheated. At any rate, as he caught up with Kevin, the latter said, “ ‘What you going to do, shoot your brother?’ “ Defendant “said I just want my money back.” Kevin fumbled with his pocket, and defendant thought he saw “a clip with a knife, a razor knife,” that he knew Kevin sometimes carried. He had seen Kevin use the knife to cut sheet rock. Kevin “never actually got it out,” but defendant thought he was about to do 3 1 2 3 so. Thinking “to defend [him]self,” defendant “recalled having a fork” and “just reacted.” “[T]he fork was just there, and I just took it and I stabbed him.” Afterwards, when everyone went to Kevin's aid—including defendant's girlfriend Sheila—defendant thought “everybody was on [Kevin's] side, and I just snapped the fork,” apparently meaning he broke it in two. He took it into the house and placed it on the freezer, where officers found it. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Search of House Police officers arrived and searched the area for the weapon used in the stabbing. Finding none, they obtained a search warrant and searched defendant's house. They entered through the kitchen, where they found the barbecue fork, with blood still on it, sitting on a waist-high freezer. They nonetheless performed a “protective sweep,” which means to enter every room in the house in order to “make sure there's no other people inside the house, for safety.” One of the rooms—defendant's bedroom, judging from the presence of his driver's license, a business card, and men's clothing—looked like “it had been gone through, somebody had been in there just prior to us getting there.” Lying near the door was an empty handgun holster. A second holster lay next to the bed. Underneath the bed an officer found a “plastic-type storage container” holding a seven-shot handgun magazine (clip) with five live bullets in it, plus ammunition boxes containing handgun cartridges. Character Evidence In support of the contention that defendant had suffered a concussion, defense counsel elicited testimony from Sidney that the events of the evening were so unexpected as to shock those present. Some, including Sidney, were crying. Sidney had known defendant to verbally threaten people, but had never seen him exhibit violent activity “like that” toward himself or Kevin. He had never seen defendant react like that even in arguments with complete strangers. He thought defendant might have been on drugs or something—that something was wrong with him. He agreed that defendant's conduct was “out of character.” On redirect questioning by the prosecutor, however, Sidney acknowledged that he had seen defendant “get violent” with others “[a] few times, probably three or four.” Defendant, he said, has “got attitude.” Sidney had seen defendant get in a fight before, which he won. Defendant and Kevin had “played around” before, wrestling, too. Defendant usually got the better of those matches because he “knows how to wrestle better .” As between himself and Kevin, defendant seemed the more dominant. But Sidney agreed with the prosecutor that, on this occasion, Kevin “got the best of Tommy Thomas,” and “[e]verybody knew it.” Defendant seemed embarrassed, angry, like he wanted to get even. In connection with the ammunition charge and as a result of defendant's testifying, the jury also learned that defendant had suffered unspecified felony convictions in 1993 and 1994. Proceedings * * * At trial, no real defense was offered to the ammunition charge. As to attempted murder and assault, the chief defense theory was self-defense, i.e., that defendant stabbed Kevin in the reasonable belief that Kevin was pulling a knife from his pocket with which to attack defendant. The jury was instructed on two additional defenses bearing only on the attempted murder charge: (1) imperfect self-defense, i.e., defendant stabbed Kevin in the mistaken but unreasonable belief that he needed to use force to defend himself, and therefore lacked the malice necessary for murder; and (2) heat of passion, i.e., defendant 4 1 acted in the heat of passion, as the result of provocation, and therefore, again, lacked malice. 2 3 4 5 6 7 8 9 10 11 12 13 14 The jury acquitted defendant entirely on count 1 [attempted murder]. On count 2, the jury found him guilty of assault with a deadly weapon, but found that he did not inflict great bodily injury. The jury also found him guilty of possessing ammunition as alleged in count 3. Defendant moved to reduce the remaining charges to misdemeanors pursuant to section 17, subdivision (b)(1). The court granted the motion as to the assault charge, denied it as to the ammunition charge, suspended the imposition of sentence, and placed defendant on probation with conditions including 240 days in jail. This timely appeal followed. Cal. Ct. App. Opinion at 2-8. Thomas has urged in his federal petition for writ of habeas corpus that he received ineffective assistance of counsel in that trial counsel (a) failed to present evidence that two people saw the victim with a knife several months earlier, (b) failed to prevent the prosecution from introducing evidence that Thomas had not asserted a self-defense claim immediately following the assault, and (c) failed to challenge the validity of the search of his house. Respondent has filed an answer and Thomas has filed a traverse. 15 JURISDICTION AND VENUE 16 17 18 19 20 This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Monterey County, California, within this judicial district. 28 U.S.C. §§ 84, 2241(d). 21 22 23 24 25 26 27 28 EXHAUSTION Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute that the state judicial remedies were exhausted for the claims in the petition. 5 1 STANDARD OF REVIEW 2 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 3 custody pursuant to the judgment of a State court only on the ground that he is in custody in 4 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The 5 Antiterrorism And Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose 6 new restrictions on federal habeas review. A petition may not be granted with respect to any 7 claim that was adjudicated on the merits in state court unless the state court's adjudication of the 8 claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application 9 of, clearly established Federal law, as determined by the Supreme Court of the United States; 10 or (2) resulted in a decision that was based on an unreasonable determination of the facts in light 11 of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 12 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 13 arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or 14 if the state court decides a case differently than [the] Court has on a set of materially 15 indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). 16 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ 17 if the state court identifies the correct governing legal principle from [the] Court’s decisions but 18 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal 19 habeas court may not issue the writ simply because that court concludes in its independent 20 judgment that the relevant state-court decision applied clearly established federal law 21 erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A 22 federal habeas court making the “unreasonable application” inquiry should ask whether the state 23 court’s application of clearly established federal law was “objectively unreasonable.” Id. at 409. 24 "When a federal claim has been presented to a state court and the state court has denied 25 relief, it may be presumed that the state court adjudicated the claim on the merits in the absence 26 of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 27 U.S. 86, 131 S. Ct. 770, 784-85 (2011) (one-sentence order denying habeas petition analyzed 28 6 1 under §2254(d)). Neither party disputes that the state appellate court's one-sentence denial of the 2 habeas petition amounted to a rejection of Thomas' claims on the merits. 3 DISCUSSION 4 5 The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but 6 effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The 7 purpose of the right is to ensure a fair trial, and the benchmark for judging any claim of 8 ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the 9 adversarial process that the trial cannot be relied on as having produced a just result." Id. To 10 prevail on an ineffective assistance claim, a habeas petitioner must show that (1) counsel's 11 performance was "deficient," i.e., his "representation fell below an objective standard of 12 reasonableness" under prevailing professional norms, id. at 687-88, and (2) prejudice flowed 13 from counsel's performance, i.e., that there is a reasonable probability that, but for counsel's 14 errors, the result of the proceedings would have been different, see id. at 691-94. 15 A "doubly" deferential judicial review is appropriate in analyzing ineffective assistance 16 of counsel claims under § 2254. See Cullen v. Pinholster, 131 S. Ct. 1388, 1410-11 (2011). 17 The "question is not whether counsel's actions were reasonable. The question is whether there 18 is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 19 131 S. Ct. at 788. 20 explanation, this court "must determine what arguments or theories supported or . . . could have 21 supported, the state court's decision; and then it must ask whether it is possible fairminded jurists 22 could disagree that those arguments or theories are inconsistent with the holding in a prior 23 decision of [the Supreme] Court." Id. at 786. As the claim was rejected by the California Court of Appeal without 24 25 A. Failure to Present Additional Evidence That Victim Had Knife In The Past 26 Although the defense presented some evidence at trial that the stabbing victim had carried 27 a knife in his pocket in the past, Thomas now faults defense counsel for not presenting additional 28 7 1 evidence on the point. The evidence that was presented was Thomas' testimony that he was 2 aware that Kevin Thissel usually carried a knife. See RT 285-86, 293, 297, 302-03. Thomas 3 also testified that he had seen Kevin Thissel, who was in the construction trade, use the knife as 4 part of his work to cut sheetrock. RT 304-05. The other item of evidence presented was a 5 stipulation that, if called as a witness, Calvin Mitchell "would testify that he had seen Kevin 6 Thissel with a box cutter blade approximately six months before this incident." RT 305. In his 7 habeas petition, Thomas urges that defense counsel should also have (a) presented evidence that, 8 when Calvin Mitchell saw Kevin Thissel with the knife/box cutter, it was at Thomas' house and 9 (b) called Thomas' girlfriend, Sheila Castillo, to testify that she had seen Kevin Thissel "with a 10 folding pocket knife with a blade approximately four-inches long at Mr. Thomas's house during 11 the summer of 2006." See Traverse, Ex. C. 12 Trial counsel prepared a declaration for the state habeas proceeding regarding the claim. 13 Counsel stated that he did not call Sheila Castillo to testify because "she seemed almost too 14 eager to testify" and he did not think she would be credible. Counsel also thought that Kevin 15 Thissel's demeanor and testimony showed him to have committed violent acts in the past. 16 See Traverse, Ex. A. 17 The California Court of Appeal's rejection of this ineffective assistance claim was not 18 contrary to or an unreasonable application of Strickland. That court reasonably could have 19 determined that there was no deficient performance in not presenting the evidence, which was 20 both stale and weak because the two witnesses had seen Kevin Thissel with a knife at least six 21 months before the stabbing, but neither witness knew whether Kevin Thissel carried the knife 22 on an ongoing basis or on the day Thomas stabbed him. Also, counsel had made a tactical 23 decision not to call Sheila Castillo as a witness because he perceived that she lacked credibility. 24 Counsel may have chosen not to pursue the evidence from Calvin Mitchell because the 25 stipulation was more favorable than his testimony might have been with respect to its staleness 26 (i.e., the stipulation was that he had seen the knife six months earlier yet the investigator's notes 27 indicated it was six to twelve months earlier) even though it would have added the detail that it 28 8 1 was at Thomas' house that Mitchell saw Kevin Thissel with the knife. See Brodit v. Cambra, 2 350 F.3d 985, 994 (9th Cir. 2003) (state court reasonably concluded that trial attorney provided 3 effective assistance of counsel where attorney declined to present evidence favorable to defense 4 out of concern that it would open door to unfavorable evidence). 5 It also would have been reasonable for the California Court of Appeal to conclude that 6 Thomas' claim failed on the prejudice prong of Strickland. The additional evidence was of 7 limited value due its staleness and mostly cumulative nature. The fact that Kevin Thissel was 8 seen with a knife at Thomas' house made little difference, as that sighting was many months 9 earlier and did not involve him brandishing the weapon. Also, Thomas did not testify that he 10 actually saw a knife in Kevin Thissel's hand or pocket before he stabbed him with the fork. The 11 omitted evidence was only marginally relevant to whether Thomas had reason to believe that 12 Kevin Thissel was carrying a knife when Thomas stabbed him. 13 The California Court of Appeal's harmless error analysis for Thomas' other claims applies 14 equally to the ineffective assistance of counsel claims.2 As the state appellate court concluded, 15 the prosecution's case was "supported by, or at least easily reconciled with, all of the evidence 16 except defendant's own testimony, and it could be fairly readily reconciled even with much of 17 his testimony." Cal. Ct. App. Opinion at 13. The court observed that Thomas' self-defense 18 theory "could avoid logical incoherence only with the aid of a number of dubious inferences and 19 highly indulgent suppositions." Id. at 14. The state appellate court explained in detail that the 20 fact that Thomas had chased after Kevin Thissel before stabbing him was devastating to the self- 21 defense theory. See id. at 14-16. The court also examined the testimony closely to conclude 22 that Thomas' version of the events after he caught up with Kevin Thissel was implausible. 23 24 2 This is not to say that the harmless error analysis and Strickland prejudice prongs are interchangeable, or to say that the harmlessness/prejudice analysis for one kind of claim can be 25 indiscriminately borrowed for another kind of claim. Rather, the propriety of borrowing the analysis depends on the substance and reasoning of the harmless error analysis. Here, the 26 California Court of Appeal's extensive analysis of the weaknesses in Thomas' self-defense theory can be considered to determine whether there was a reasonable probability that the result of the 27 proceedings would have been different had counsel done the three things Thomas claims he should have done. 28 9 1 Among other things, Kevin Thissel expressed fear that Thomas was going to shoot him, and that 2 would have made it highly unlikely that he would have drawn a knife if he feared Thomas would 3 have drawn a gun. The state appellate court also saw the record lacking in "any conduct by 4 Kevin that could give rise to a belief, reasonable or otherwise, that he was about to attack" 5 Thomas: Thomas did not see a knife and instead only saw Kevin Thissel fumbling with his 6 pocket (after Thomas demanded money) before preemptively stabbing him. Id. at 16-17. The 7 California Court of Appeal considered the testimony that Thomas just happened to have a 8 barbecue fork on his person "perhaps the greatest of all the implausible turns in the defense 9 narrative," id. at 20, as it would have required the jury to accept that Thomas had picked up only 10 the fork (but not the tongs) with which a guest had been pilfering food, had not left the fork in 11 the kitchen when he went there, had sat down to play dominoes with the barbecue fork shoved 12 in his belt without injuring himself, and had fought and wrestled with Kevin Thissel in the 13 garage without anyone being injured by the fork – all before fortuitously having it available 14 when he caught up with Kevin Thissel at the latter's car as he tried to leave the party. The 15 California Court of Appeal reasonably could have concluded that, given the extreme weakness 16 of the self-defense evidence plus the marginal value of the evidence regarding Kevin Thissel 17 carrying a knife in the past, there was no reasonable probability that the result of the proceedings 18 would have been different if the defense had introduced the additional knife evidence. 19 20 21 22 23 24 25 26 27 28 B. Failure to Prevent Introduction of Evidence That Thomas Did Not Immediately Claim Self-Defense Thomas urges that trial counsel should have done something in response to the prosecutor's argument that Thomas' silence and failure to mention self-defense at the time of his arrest was evidence of his guilt. He claims that counsel should have objected to the evidence under California Evidence Code section 352 because, in Thomas' view, his silence was not inconsistent with his claim of self-defense. See Docket # 1 at 6. In his traverse, he argues that counsel should have presented evidence that, in a recorded telephone call from jail a day or two after the arrest, Thomas had mentioned self-defense to his girlfriend, Sheila Castillo. 10 1 Trial counsel provided a declaration for the state habeas proceeding in which he stated 2 that he had a strategic reason for not objecting to the prosecutor's reference to Thomas' post- 3 arrest silence: "I did not want to emphasize it to the jury. My goal was to persuade the jury that 4 Mr. Thomas could not have been expected to make a complete and accurate statement at that 5 time because he was suffering the effects of a concussion. I do not recall whether I was aware 6 there might have been a foundational objection to the prosecutor's line of argument." Traverse, 7 Ex. A. As to the jail telephone call recording, trial counsel declared that he did not bother to get 8 the jail telephone call recordings between Thomas and Castillo because doing so might prompt 9 the prosecutor to listen on other calls and those might have had incriminating evidence. 10 The California Court of Appeal reasonably could have determined that there was no 11 deficient performance in light of the evidence of trial counsel's stated strategic reason. Thomas 12 does not show why it would have been unreasonable for counsel to avoid further emphasis on 13 Thomas' failure to claim self-defense when his defense theory was that Thomas had suffered a 14 concussion that muddled his thinking. 15 The California Court of Appeal opinion indirectly addressed the jail telephone call 16 recording in a footnote to its discussion about the meritlessness of the self-defense argument. 17 The court explained that such a recording "would only establish that defendant mentioned the 18 self-defense claim well after the fact–long enough to calm down and consider the seriousness 19 of his situation. It was his failure to refer to self-defense at the scene that the prosecutor justly 20 identified as incriminating." Cal. Ct. App. Opinion at 23 n.15. Further reducing the value of the 21 evidence was the fact that Thomas was aware that jail telephone calls were recorded. See RT 22 294. 23 performance or prejudice on the failure to introduce the recorded telephone call. Thus, the California Court of Appeal reasonably could have found no deficient 24 The California Court of Appeal also reasonably could have used the same reasoning 25 discussed in Section A, above, to determine that there was not a reasonable likelihood that the 26 result of the proceedings would have been different had counsel objected to the evidence and 27 argument that Thomas had not asserted a self-defense claim when arrested and had counsel 28 11 1 presented the jail telephone call recording. 2 3 C. Failure To Challenge The Validity Of The Search Of The House 4 Thomas urges that counsel was ineffective in failing to move to suppress evidence 5 obtained during a search that he contends was conducted before the search warrant was signed 6 by a judicial officer. Thomas points out that the search warrant was signed at 12:25 a.m. on 7 February 5, 2007, yet officer Borges said in the sworn search warrant return that he conducted 8 the search on February 4, 2007, and Sheila Castillo (Thomas' girlfriend) would have 9 corroborated that the search occurred at 11:30-11:45 p.m. on February 4, 2007. Thomas 10 contends that, had the search been challenged, the jury would not have learned that he had 11 ammunition and gun holsters in his home. 12 To prevail on the claim that trial counsel failed to litigate a Fourth Amendment claim 13 competently, a petitioner must demonstrate "that his Fourth Amendment claim is meritorious and 14 that there is a reasonable probability that the verdict would have been different absent the 15 excludable evidence in order to demonstrate actual prejudice." Kimmelman v. Morrison, 477 16 U.S. 365, 375 (1986). 17 The California Court of Appeal's rejection of this ineffective assistance of counsel claim 18 was not contrary to, or an unreasonable application of, clearly established federal law as 19 determined by the U.S. Supreme Court. The California Court of Appeal reasonably could have 20 determined that counsel did not engage in deficient performance in not moving to suppress the 21 evidence obtained during the search. There was a conflict in officer Borges' statements, but it 22 was a conflict that easily could have been explained, i.e., he could have been mistaken as to the 23 date due to the fact that the events occurred in the two-hour window surrounding midnight when 24 the date changed from February 4 to February 5. Although officer Borges stated in the sworn 25 search warrant return dated March 1, 2007 – more than three weeks after the search -- that he 26 had searched the house on February 4, 2007, he also stated that he had received the attached 27 warrant issued by the judge on February 4, 2007. See Docket # 1 at 10. At least the latter 28 12 1 statement was plainly wrong, as the warrant was issued at 12:25 a.m. on February 5, 2007, 2 although it had been applied for sometime after 10:00 p.m. on February 4, 2007. Also, there is 3 no strong evidence that Borges searched the house before the warrant was signed by the judge. 4 Officer Borges testified that he "believe[d] at about 11:45 is when [the judge] reviewed and 5 signed [his] search warrant," RT 216, and that he and other officers "executed the search warrant 6 at about 30 minutes past midnight," RT 218. Thomas now presents evidence that, when 7 interviewed twenty months after the fact, Sheila Castillo thought the search occurred between 8 11:30-11:45 p.m., without any explanation of how she had made note of the time. See Docket 9 # 14 at 11. Counsel already had doubts about Sheila Castillo's credibility and may have had 10 further doubts about her estimating abilities twenty months after the incident. Further, a 11 distracting collateral issue may have arisen about Castillo's credibility on the search of the house: 12 police officers stated they saw her in Thomas' house, whereas she denied having entered the 13 house. Compare RT 62 with Docket # 14 at 11. Finally, even if the ammunition and holsters 14 had been suppressed, there was other evidence that Thomas had guns: Sidney Thissel testified 15 that Thomas had guns in the house, and Kevin Thissel thought Thomas had a gun, although he 16 did not see it that night. 17 Although the California Court of Appeal's opinion did not discuss the ineffective 18 assistance claim, that court's analysis of a different claim regarding a severance motion also 19 demonstrates that the court reasonably could have concluded that there was no reasonable 20 probability that the result of the proceedings would have been different had counsel moved to 21 suppress the evidence obtained during the search of the house, assuming counsel would have 22 been successful on such a motion. The state appellate court observed that the evidence obtained 23 during the search actually may have helped Thomas on the attempted murder and attempted 24 voluntary manslaughter charges he also faced. The "most likely explanation for [the acquittals 25 on attempted murder and attempted voluntary manslaughter] is that the jury was unable or 26 unwilling to find that defendant acted with the requisite intent to kill when he stabbed Kevin 27 with the barbecue fork. One fact clearly casting that element in doubt was defendant's apparent 28 13 1 access to guns. Given the evidence that guns had been in the house very recently – in all 2 likelihood, at the time of the stabbing – defendant would presumably have used something more 3 suitable than a barbecue fork if he had intended to kill Kevin." Cal. Ct. App. Opinion at 9-10 4 (footnote omitted). The California Court of Appeal also flatly rejected any notion that "a jury 5 not exposed to evidence of holsters and ammunition would have entertained a reasonable doubt 6 as to whether defendant acted in self-defense." Cal. Ct. App. Opinion at 11. Even if the 7 evidence was excluded, the jury would have heard testimony from Sidney Thissel that Thomas 8 had guns in the house, and from Kevin Thissel that he was sure that Thomas had a gun. See id. 9 And even without the gun evidence, the self-defense theory was "extremely weak in its own 10 right," as it required the jury to reject the prosecution's theory that Thomas had attacked Kevin 11 Thissel "in a rage flowing from the injury and humiliation" he had suffered in their earlier fist 12 fight and required the jury to accept the self-defense theory that "could avoid logical incoherence 13 only with the aid of a number of dubious inferences and highly indulgent suppositions." Id. at 14 13, 14. The weakest links in the self-defense theory were the lack of logical and credible 15 explanations for why he chased after Kevin Thissel, why he "suddenly formed the reasonable 16 belief that Kevin was about to attack him, so as to justify what was in effect a preemptive strike," 17 and how he happened to have the barbecue fork with him when he caught up to Kevin Thissel. 18 Id. at 14-20. 19 Finally, although Thomas thinks counsel did an inadequate job, Thomas fails to note that 20 he (Thomas) fared very well in light of the circumstances. In a case in which he chased after the 21 victim and admittedly stabbed the victim with the barbecue fork, and in which he was charged 22 with attempted murder, he ended up with only a misdemeanor assault conviction. Counsel's 23 hand in obtaining that result for him should not be ignored. 24 Giving the state court's decision the deference to which it is entitled under § 2254(d)(1), 25 this court cannot say the rejection of the three ineffective assistance of counsel claims was 26 contrary to or an unreasonable application of clearly established federal law as set forth by the 27 Supreme Court. 28 14 1 C. No Certificate Of Appealability 2 A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case 3 in which "reasonable jurists would find the district court’s assessment of the constitutional 4 claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 6 CONCLUSION 7 The petition for writ of habeas corpus is denied on the merits. 8 The clerk will close the file. 9 IT IS SO ORDERED. 10 DATED: October 21, 2014 SUSAN ILLSTON United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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