Garner v. Mayle, No. 4:1999cv02863 - Document 116 (N.D. Cal. 2009)
Court Description: ORDER Denying Petition for Writ of Habeas CorpusSigned by Judge Claudia Wilken on September 30, 2009. (cwlc1, COURT STAFF) (Filed on 9/30/2009)
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Garner v. Mayle Doc. 116 1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 7 No. C 99-02863 CW ARTHUR GRADY GARNER, 8 United States District Court For the Northern District of California ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Petitioner, 9 v. 10 B.A. MAYLE, Respondent. 11 / 12 13 On June 15, 1999, Petitioner Arthur Grady Garner, a state 14 prisoner incarcerated at Pleasant Valley State Prison, filed a 15 petition for a writ of habeas corpus alleging seventeen claims for 16 relief including, inter alia, claims for ineffective assistance of 17 counsel and prosecutorial misconduct. 18 Court denied Respondent B. A. Mayle’s motion to dismiss for failure 19 to exhaust state court remedies. 20 to dismiss on the ground that the petition was untimely filed. 21 September 28, 2001, the Court denied Respondent’s second motion to 22 dismiss.1 23 September 30, 2002, the Court granted, in part, Petitioner’s motion On September 7, 2000, the Respondent filed a second motion On December 28, 2001, Respondent filed his answer. On On 24 25 26 27 28 1 In a footnote, Respondent requests that the Court reconsider its denial of his second motion to dismiss on the ground that, in Fail v. Hubbard, 315 F.3d 1059 (2001), the Ninth Circuit held that delays in federal courts do not constitute extraordinary circumstances such that equitable tolling would apply. Absent a properly filed motion for reconsideration, the Court declines to revisit its decision. Dockets.Justia.com United States District Court For the Northern District of California 1 for appointment of counsel, appointing counsel for the limited 2 purpose of reviewing Petitioner’s claims and briefing those claims 3 counsel considered to be potentially meritorious. 4 Public Defender was appointed to represent Petitioner. 5 granted three requests filed by counsel to extend time to file 6 Petitioner’s traverse. 7 Defender moved to withdraw as Petitioner’s counsel. 8 2003, the motion was granted. 9 G. Babcock was appointed to represent Petitioner. The Federal The Court On August 22, 2003, the Federal Public On August 25, On October 17, 2003, attorney Eric On June 14, 10 2004, Petitioner, through counsel, filed an abbreviated traverse 11 and requested that the Court grant additional time for him to 12 develop the facts. 13 noting that the traverse filed by counsel did not follow the 14 instructions set forth in the Court’s September 30, 2002 Order and 15 set a briefing schedule for Petitioner to file a traverse in 16 accordance with those instructions. 17 through counsel, filed many motions for extensions of time to file 18 a traverse, all of which were granted. 19 Petitioner, through counsel, filed a supplemental traverse, 20 entitled “supplemental brief in support of petition for writ of 21 habeas corpus,” arguing that two of Petitioner’s claims were 22 potentially meritorious based on new evidence counsel had 23 discovered. 24 new evidence. 25 brief in support of his answer to the petition. 26 27 On February 28, 2005, the Court issued an order Thereafter, Petitioner, On March 9, 2009, He also requested an evidentiary hearing based on the On April 8, 2009, Respondent filed a supplemental Having considered all the papers filed by the parties, the Court denies the motion for an evidentiary hearing and the petition 28 2 1 for a writ of habeas corpus.2 2 United States District Court For the Northern District of California 3 PROCEDURAL BACKGROUND In 1990, Petitioner was charged in San Mateo County with 4 (1) attempted first degree murder of George Boitano, with special 5 allegations of using a gun and causing infliction of great bodily 6 injury; (2) assault with a deadly weapon with the same allegations; 7 and (3) being a felon in possession of a firearm. 8 Petitioner on all counts. 9 life plus eleven years. A jury convicted Petitioner was sentenced to a term of On June 18, 1992, the court of appeal 10 found that, after the verdict, Petitioner had been insufficiently 11 advised of the dangers of representing himself and remanded for the 12 trial court to advise Petitioner properly, to allow Petitioner to 13 choose if he wished to represent himself after such advisement, to 14 rule on Petitioner’s motions for a new trial and, if the motions 15 were denied, to re-sentence Petitioner and reinstate the judgment. 16 On remand, Petitioner again chose to represent himself. The 17 trial court considered Petitioner’s motions for a new trial, denied 18 them and again sentenced Petitioner to life plus eleven years. 19 October 28, 1993, the conviction was affirmed by the court of 20 appeal and, on January 19, 1994, the California Supreme Court 21 denied review. 22 23 On Petitioner filed a petition for a writ of habeas corpus in the state superior court, in which he raised the claims of 24 25 26 27 28 2 Respondent argues that several of Petitioner’s claims are procedurally defaulted or are unexhausted. Because all of the claims are denied on the merits, the Court does not address the issues of procedural default or exhaustion. See Cassett v. Stewart, 406 F.3d 614, 623-25 (9th Cir. 2005) (where the petition fails to raise even a colorable federal claim, it may be denied without reaching the exhaustion issue). 3 United States District Court For the Northern District of California 1 insufficiency of the evidence and ineffectiveness of counsel based 2 on (1) failure to present the defense of insufficiency of evidence, 3 (2) failure to move to suppress the evidence discovered in the 4 search of Petitioner’s brother-in-law’s house, and (3) failure to 5 object to the introduction of the shotgun used in the attack on the 6 victim. 7 denied the petition. 8 petitions in the California Supreme Court, case numbers S034361 and 9 S035851, and in 1994, Petitioner filed another petition in the On December 10, 1993, in a reasoned decision, the court In 1993, Petitioner filed two state habeas 10 California Supreme Court, case number S038008. 11 Supreme Court summarily denied all three petitions. 12 1994, Petitioner filed a petition for a writ of habeas corpus in 13 this Court, Garner v. Marshall, C 94-0983 CW. 14 granted Petitioner’s motion to dismiss without prejudice on the 15 ground that the petition contained unexhausted claims. 16 21, 1995, Petitioner filed another petition in the California 17 Supreme Court, case number S048357, which, on January 30, 1996, the 18 Court summarily denied with a citation to In re Swain, 34 Cal. 2d 19 300, 304 (1949).3 20 petition in this Court, Garner v. White, C 96-0499 CW, which, on 21 October 9, 1998, was dismissed without prejudice on Petitioner’s 22 motion so that he could further exhaust state court remedies. 23 1998, Petitioner filed three more petitions in the California 24 Supreme Court, case numbers S074652, S074818, and S075635. 25 December 22, 1998, the Supreme Court summarily denied the petition The California On March 23, In 1995, the Court On August In 1996, Petitioner filed another habeas In On 26 3 27 28 In re Swain, 34 Cal. 2d at 304, held that vague, conclusory allegations in a habeas petition are insufficient to warrant issuance of the writ and that any substantial delay in presenting a claim must be justified. 4 1 in case number S074818. 2 denied the two other petitions, citing In re Robbins, 18 Cal. 4th 3 770, 780 (1998) and In re Clark, 5 Cal. 4th 750 (1993).4 4 15, 1999, Petitioner filed the present petition. 5 6 7 On June FACTUAL BACKGROUND I. Facts of the Offense The following facts are from the 1992 court of appeal 8 decision, People v. Garner, A052814 (June 18, 1992), Resp.’s Ex. A, 9 and the trial transcript. 10 United States District Court For the Northern District of California On April 28, 1999, the Court summarily In January, 1990, George Boitano lived alone at 380 Talbot, 11 apartment 310, in Pacifica, California. 12 had separated from his wife Cindy and the court had awarded him 13 $500 per month as spousal support. 14 having to pay this. 15 In April, 1989, Boitano Cindy Boitano was upset about At about 7:30 p.m. on Saturday, January 27, 1990, Boitano 16 heard a knock on his front door. 17 man wearing a raincoat and fisherman’s cap told Boitano that his 18 truck was being towed from an underground garage. 19 recognized the man as a friend of his brother-in-law, Ron Mattson, 20 but did not remember the man’s name. 21 When Boitano opened the door, a Boitano When Boitano saw the man pull out a shotgun, he immediately 22 23 24 25 26 27 28 4 In re Robbins, 18 Cal. 4th at 780, addressed timeliness and the fact that, if the petition is filed late, the petitioner has the burden of establishing the absence of substantial delay, good cause for such delay, or that an exception to the bar of untimeliness applies. In re Clark, 5 Cal 4th at 797, held that, absent justification for the failure to present all known claims in a single, timely petition for writ of habeas corpus, petitions that are successive or untimely or both will be summarily denied unless they allege facts which, if proved, would establish that a fundamental miscarriage of justice occurred in the proceedings leading to conviction or to sentence. 5 United States District Court For the Northern District of California 1 slammed the door. 2 in the hand and the side. 3 description of the man who shot him. 4 had met the man who shot him at the house he had shared with his 5 wife and knew the man had been in prison with his brother-in-law. 6 Officer Anders Noyes of the Pacifica Police Department The man shot through the door, hitting Boitano Boitano called 911 and gave a Boitano told the police he 7 responded to the report of a shooting at Boitano’s apartment. 8 he arrived, he noticed an expended shotgun shell casing on the 9 floor to the right side of the door to Boitano’s apartment and two When 10 holes through the door. 11 recognized the shooter, but could not recall his name. 12 described the suspect as thirty-three to thirty-five years old, 13 brown hair, untrimmed mustache, about five feet ten inches tall, 14 170 pounds, wearing a green overcoat and green fisherman’s hat, and 15 carrying a shotgun. 16 that one and one-half years prior to that night, his brother-in-law 17 brought to Boitano’s house a friend who had just been paroled from 18 Folsom prison and Boitano recognized the shooter as his brother-in- 19 law’s friend. 20 Boitano told Officer Noyes that he He At the hospital, Boitano told Officer Noyes On February 8, 1990, with permission from Mattson’s parole 21 officer, the police searched Mattson’s house and seized seven 22 photographs of Mattson with other people. 23 photographs to Boitano. 24 of the photographs, as the man who shot him. 25 Boitano identified Petitioner from a photo lineup. 26 The police showed these He identified Petitioner, who was in one On February 27, 1990, Arthur Ray, a professional police informant for the past 27 seventeen years who was paid fifty dollars for each court 28 appearance, testified that he met Petitioner in the San Mateo 6 United States District Court For the Northern District of California 1 County jail in April, 1990. 2 1, the protective custody cell block, for security reasons because 3 it was generally known that he was an informant. 4 had one small common area where inmates were generally allowed out 5 one at a time for security reasons. 6 time, that no one in E-1 knew about him, so he felt comfortable 7 asking the guard to leave him in the common room with Petitioner. 8 Ray testified that he did not know anything about Petitioner or his 9 case and that, when he and Petitioner were in the common room Ray testified that he was housed in E- The cell block However, Ray believed, at that 10 together, Petitioner told him he was charged with murder for hire 11 and proceeded to describe how he had committed the offense. 12 testified that Petitioner told him that Petitioner went to 13 Boitano’s door, knocked and, when the door was opened with a chain 14 across the entrance, fired through the door, hitting Boitano’s hand 15 and side. 16 this, which Ray thought was exaggerated. 17 Ray who had hired him. 18 Ray Petitioner told Ray that he had received $200,000 for Petitioner did not tell Petitioner testified on his own behalf. He stated that he had 19 met Mattson in prison and they had remained good friends. 20 Petitioner, who lived in southern California, occasionally did 21 electrical work for Lloyd Steale. 22 decided to drive to the San Francisco Bay Area to spend Super Bowl 23 weekend with Mattson. 24 and checked into the Pacifica Motor Inn under the name of Rick Red. 25 Petitioner testified that he did not go to Mattson’s house because 26 he wanted to surprise him. On January 26, 1990, Petitioner He arrived in Pacifica at five or six a.m. 27 Petitioner testified that, shortly after 6 p.m. on January 27, 28 he went across the street to the Moonraker restaurant, drank at the 7 1 bar for approximately one and one-half hours, then went into the 2 restaurant, ordered dinner, and, after dinner, returned to the bar. 3 He testified that he stayed at the bar until 11 p.m. and left the 4 bar only to make several phone calls from the pay phone at the 5 Moonraker. 6 surprise Mattson because the “weekend was over” and Lloyd Steale 7 was concerned that if Petitioner partied all day on Sunday and then 8 drove back to southern California, he would be unfit to work on 9 Monday. United States District Court For the Northern District of California 10 Petitioner stated that he abandoned his plan to Petitioner testified that he did not speak with Arthur Ray. 11 He stated that, while he was incarcerated in the San Mateo County 12 jail, he was isolated from the other prisoners, and that he knew 13 that Ray was an informant. 14 The defense presented two witnesses to corroborate 15 Petitioner’s testimony. 16 Moonraker restaurant, testified that Petitioner arrived at the bar 17 between 6 and 7 p.m. and remained at the bar continuously for an 18 hour and a half to two hours before having dinner in the dining 19 room. 20 returned to the bar, left for only five or ten minutes, then 21 returned and stayed until 11 p.m. 22 player, testified that Petitioner was at the bar when he arrived at 23 6:30 p.m and he did not notice that Petitioner left the area for a 24 long period of time. 25 Donald Piosalan, the bartender at the He testified that, after Petitioner finished his dinner, he Alejandro Jaurequi, the piano James Whitehead, the defense investigator, testified that the 26 round trip between the Moonraker and Boitano’s apartment is five 27 and one-half miles. 28 to Boitano’s apartment, went up to Boitano’s apartment and stood He testified that he drove from the Moonraker 8 1 outside the door for a few seconds, and then returned to the 2 restaurant and that the round-trip took twenty and one-half 3 minutes. 4 5 at the Moonraker restaurant. 6 the restaurant would have to pass the hostess podium where she was 7 located. 8 restaurant for about fifteen or twenty minutes. 9 United States District Court For the Northern District of California In rebuttal, the prosecutor called Tara Furnari, the hostess She testified that a person leaving She testified that around 7:30 p.m., Petitioner left the Detective Berwyn Ray Manley, a police officer in Pacifica, 10 made a study similar to that performed by Mr. Whitehead. 11 Manley testified that it took him slightly more than twelve minutes 12 to make the round trip between the Moonraker and Boitano’s 13 apartment. 14 the last of which was videotaped. 15 evidence, with no objection from defense counsel. 16 II. Facts Regarding Remand 17 Detective Detective Manley made the round trip drive five times, The videotape was admitted into Petitioner was represented by appointed counsel, Douglas Gray 18 of the private defender program, throughout the trial. 19 the verdict, Petitioner filed a number of post-trial motions in pro 20 per, including a Faretta motion5 and a Marsden motion.6 21 motions were based on the allegation that defense counsel was Following Some of the 22 23 24 25 5 A Faretta motion is brought under Faretta v. California, 422 U.S. 806, 835 (1975), in which the Supreme Court held that a defendant has a right under the Sixth and Fourteenth Amendments to waive counsel and represent him or herself. 6 26 27 28 In People v. Marsden, 2 Cal. 3d 118, 124 (1970), the California Supreme Court held that the trial court deprived the defendant of his constitutional right to effective assistance of counsel when it denied his motion to substitute new counsel without giving him an opportunity to state specific examples of inadequate representation. 9 United States District Court For the Northern District of California 1 inadequate. 2 his counsel be relieved and requested a continuance. 3 indicated it was prepared to relieve defense counsel, but would not 4 grant a continuance. 5 Petitioner represented himself. 6 remaining motions and sentenced him to life plus eleven years. On the date set for sentencing, Petitioner asked that The court The court relieved defense counsel and The court denied Petitioner's 7 On appeal, the court rejected Petitioner’s argument that the 8 trial court should have appointed counsel to represent him on the 9 post-trial motions. It explained that a request for self 10 representation under Faretta does not trigger a duty to conduct a 11 hearing regarding incompetence of counsel under People v Marsden. 12 However, the court held that the trial court’s failure to give any 13 Faretta advisement regarding the dangers and disadvantages of self- 14 representation required reversal of the denial of the post-trial 15 motions and sentence. 16 give appropriate Faretta warnings and to determine if Petitioner 17 could give a knowing and intelligent waiver of the right to 18 counsel. 19 The court remanded for the trial court to On September 10, 1992, the matter came before the trial court 20 on remand. 21 court appointed Mr. Gray, Petitioner’s former attorney. 22 expressed dissatisfaction with Mr. Gray. 23 Petitioner asked to represent himself. 24 dangers of self-representation to Petitioner and denied the motion 25 for self-representation. 26 memorandum of points and authorities in which he argued that 27 Petitioner had the right to represent himself. 28 1992, Petitioner filed a document titled “Faretta Motion/Waiver” in Petitioner expressed a desire for counsel, and the Petitioner After a recess, The court explained the On September 23, 1992, Mr. Gray filed a 10 On September 25, 1 which he stated that he knowingly and intelligently waived his 2 right to counsel and wished to represent himself. 3 4 the dangers of representing himself, but granted the motion for 5 self-representation. 6 motions, denied them and re-sentenced him to life plus eleven 7 years. 8 III. Facts Presented In Supplemental Brief 9 United States District Court For the Northern District of California On September 25, 1992, the court again warned Petitioner of The court then considered Petitioner’s The supplemental brief Petitioner filed, through counsel in 10 this case, identified two claims as potentially meritorious: 11 (1) ineffective assistance of trial counsel for failing to 12 investigate the jail housing records of Petitioner and Ray, and 13 (2) prosecutorial misconduct for failing to disclose the jail 14 housing records to defense counsel. 15 submits the following exhibits in support of the supplemental 16 brief: 17 the San Mateo County Sheriff’s office indicating that, according to 18 computer records, Petitioner and Ray were housed together in the 19 same jail facility for three and one-half hours on May 22, 1990; 20 (2) a March 26, 1992 affidavit from Michael Anthony, who was an 21 inmate at the San Mateo County jail in 1990 at the same time 22 Petitioner was housed there, indicating that he had notified 23 Petitioner that Ray was a well-known jail house informant and he 24 knows “as a fact that Art Garner did not confess to Art Jess Ray;” 25 (3) a March 31, 1992 affidavit from James Nyhan who declares that 26 he has personal knowledge that, from 1985 to 1989, Ray purchased 27 narcotics and used them and testified for state and federal 28 agencies to satisfy his drug addiction; (4) an unsigned declaration Petitioner, through counsel, (1) a December 14, 2007 letter from Sergeant Dave Titus of 11 1 from Renee Malloy, dated June, 2008, in which she states that, in 2 2004 at church, she met a man named George Boitano, who told her 3 that he wasn’t sure of the identity of the man who shot him in the 4 hand and side, but that he had been pressured by the law to 5 identify him. 6 On the basis of this new evidence, Petitioner, through 7 counsel, requests an evidentiary hearing to present further 8 testimony from Malloy, Nyhan, Anthony, Sergeant Titus, and possibly 9 other jail personnel and inmates housed at San Mateo County jail at United States District Court For the Northern District of California 10 the same time as Petitioner and Ray. 11 12 LEGAL STANDARD A federal court may entertain a habeas petition from a state 13 prisoner "only on the ground that he is in custody in violation of 14 the Constitution or laws or treaties of the United States." 15 U.S.C. § 2254(a). 16 Penalty Act (AEDPA), a district court may not grant a petition 17 challenging a state conviction or sentence on the basis of a claim 18 that was reviewed on the merits in state court unless the state 19 court’s adjudication of the claim: "(1) resulted in a decision that 20 was contrary to, or involved an unreasonable application of, 21 clearly established federal law, as determined by the Supreme Court 22 of the United States; or (2) resulted in a decision that was based 23 on an unreasonable determination of the facts in light of the 24 evidence presented in the State court proceeding." 25 § 2254(d).7 28 Under the Antiterrorism and Effective Death 28 U.S.C. A decision is contrary to clearly established federal 26 27 28 7 AEDPA applies to this petition because it was filed after April 24, 1996, the day AEDPA was enacted. See e.g. Duhaime v. (continued...) 12 1 law if it fails to apply the correct controlling authority, or if 2 it applies the controlling authority to a case involving facts 3 materially indistinguishable from those in a controlling case, but 4 nonetheless reaches a different result. 5 1062, 1067 (9th Cir. 2003). 6 Even if the state court's ruling is contrary to or an 7 unreasonable application of Supreme Court precedent, that error 8 justifies habeas relief only if the error resulted in "actual 9 prejudice." 10 United States District Court For the Northern District of California Clark v. Murphy, 331 F.3d Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The only definitive source of clearly established federal law 11 under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as 12 of the time of the relevant state court decision. 13 Taylor, 529 U.S. 362, 412 (2000). 14 Williams v. To determine whether the state court’s decision is contrary 15 to, or involved an unreasonable application of, clearly established 16 law, a federal court looks to the decision of the highest state 17 court that addressed the merits of a petitioner’s claim in a 18 reasoned decision. 19 Cir. 2000). 20 federal court must ask whether state law, as explained by the state 21 court, is "contrary to" clearly established governing federal law. 22 Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir. 2001). 23 LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th If the state court only considered state law, the The standard of review under AEDPA is somewhat different where 24 the state court gives no reasoned explanation of its decision on a 25 petitioner's federal claim and there is no reasoned lower court 26 27 28 7 (...continued) Ducharme, 200 F.3d 597, 600 n.3 (9th Cir. 2000) (petitioner convicted in 1979; AEDPA applied to petition filed in 1997). 13 1 decision on the claim. 2 the only means of deciding whether the state court's decision was 3 objectively reasonable. 4 1197-98 (9th Cir. 2006); Himes v. Thompson, 336 F.3d 848, 853 (9th 5 Cir. 2003). 6 should conduct “an independent review of the record” to determine 7 whether the state court’s decision was an objectively unreasonable 8 application of clearly established federal law. 9 F.3d at 1198; Himes, 336 F.3d at 853. United States District Court For the Northern District of California 10 In such a case, a review of the record is Plascencia v. Alameda, 467 F.3d 1190, When confronted with such a decision, a federal court Plascencia, 467 In this case, the state courts provided a reasoned decision 11 for only a few of Petitioner’s claims. 12 independent review of the record of those claims that were not 13 addressed in a reasoned state court decision. 14 15 The Court will conduct an DISCUSSION I. Ineffective Assistance of Trial Counsel 16 A. Legal Standard 17 A claim of ineffective assistance of counsel is cognizable as 18 a claim of denial of the Sixth Amendment right to counsel, which 19 guarantees not only assistance, but effective assistance of 20 counsel. 21 benchmark for judging any claim of ineffectiveness must be whether 22 counsel's conduct so undermined the proper functioning of the 23 adversarial process that the trial cannot be relied upon as having 24 produced a just result. 25 Strickland v. Washington, 466 U.S. 668, 686 (1984). The Id. To prevail under Strickland, a petitioner must pass a two- 26 prong test. 27 performance was deficient in a way that falls below an objectively 28 reasonable standard. First, the petitioner must show that counsel's Id. at 687-88. 14 Second, the petitioner must United States District Court For the Northern District of California 1 show that the deficiency prejudiced him. 2 prong of Strickland requires a showing that counsel made errors so 3 serious that counsel was not functioning as the "counsel" 4 guaranteed by the Sixth Amendment. 5 counsel's performance must be highly deferential, and a court must 6 indulge a strong presumption that counsel's conduct falls within 7 the wide range of reasonable professional assistance. 8 Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir. 2001). 9 difference of opinion as to trial tactics does not constitute Id. Id. at 687. The first Judicial scrutiny of Id. at 689; A 10 denial of effective assistance, United States v. Mayo, 646 F.2d 11 369, 375 (9th Cir. 1981), and tactical decisions are not 12 ineffective assistance simply because in retrospect better tactics 13 are known to have been available. 14 1241 (9th Cir. 1984). 15 deference when: (1) counsel in fact bases trial conduct on 16 strategic considerations; (2) counsel makes an informed decision 17 based upon investigation; and (3) the decision appears reasonable 18 under the circumstances. 19 (9th Cir. 1994). Bashor v. Risley, 730 F.2d 1228, Tactical decisions of trial counsel deserve Sanders v. Ratelle, 21 F.3d 1446, 1456 20 Under Strickland’s second prong, the petitioner must show that 21 counsel's errors were so serious as to deprive him or her of a fair 22 trial, a trial whose result is reliable. 23 688. 24 the petitioner need not show that the deficient conduct more likely 25 than not altered the outcome of the case; however, a simple showing 26 that the defense was impaired is also not sufficient. 27 The petitioner must show that there is a reasonable probability 28 that, but for counsel's unprofessional errors, the result of the Strickland, 466 U.S. at The test for prejudice is not outcome-determinative, i.e., 15 Id. at 693. 1 proceeding would have been different; a reasonable probability is a 2 probability sufficient to undermine confidence in the outcome. 3 at 694. 4 ineffective assistance of counsel claim to address the prejudice 5 prong of the Strickland test if the petitioner cannot even 6 establish incompetence under the first prong. 7 Calderon, 133 F.3d 732, 737 (9th Cir.), cert. denied, 525 U.S. 839 8 (1998). 9 United States District Court For the Northern District of California 10 Id. It is unnecessary for a federal court considering an Siripongs v. B. Counsel’s Performance at Preliminary Hearing (Claim 1) Petitioner claims that Linda Bramy, who represented him at his 11 preliminary hearing, was ineffective because she presented no 12 defense to the charges made against Petitioner and said nothing on 13 his behalf. 14 Although a preliminary hearing is a critical stage of a 15 criminal prosecution at which a defendant has a Sixth Amendment 16 right to counsel, the role of counsel at a preliminary hearing is 17 different from counsel’s role at trial. 18 3392750 *12 (E.D. Cal.) (citing Adams v. Illinois, 405 U.S. 278, 19 281-83 (1972)). 20 hearing is to establish whether there exists probable cause to 21 believe that the defendant committed a felony. 22 Penal Code § 866(b)). 23 present witnesses is circumscribed. 24 § 866(a)). 25 Foster v. Garcia, 2006 WL In California, the purpose of a preliminary Id. (citing Cal. Furthermore, the defendant’s right to Id. (citing Cal. Penal Code The transcript of the preliminary hearing reveals no 26 incompetence of defense counsel. 27 Hearing Reporter’s Transcript (Preliminary RT) at 5-39. 28 presented one witness, Mr. Boitano, who testified that when he See Resp’s Ex. E, Preliminary 16 The state 1 opened the door to his apartment in response to a knock, he 2 recognized Petitioner as a friend of his brother-in-law and 3 immediately slammed the door when he saw Petitioner raise a shotgun 4 from beneath his coat. 5 Given the limited purpose of the preliminary hearing, defense 6 counsel provided effective assistance. 7 necessary and cross-examined the witness effectively. 8 given the low standard of proof necessary to establish probable 9 cause, Plaintiff cannot show prejudice. 10 United States District Court For the Northern District of California Defense counsel cross-examined Mr. Boitano. 11 She objected where Furthermore, Therefore, this claim fails. C. Counsel’s Failure to Challenge Unreliable Identification (Claim 2) 12 Petitioner claims that his trial counsel was ineffective for 13 failing to challenge the procedure used to identify him because it 14 was unduly suggestive and unreliable. Boitano told the police that 15 the shooter was a prison friend of his brother-in-law. The police 16 searched Mattson’s home and found seven photographs, several of 17 which were taken at a prison. The police showed this group of 18 photos to Boitano, who picked out the photo of Mattson and 19 Petitioner. About two weeks later, the police showed Boitano a 20 photo line-up which included a more recent photograph of Petitioner 21 provided by his parole officer. Boitano pointed to the photo of 22 Petitioner and wrote, “no. 2 looks like the guy.” 23 Procedures by which a defendant is identified as the 24 perpetrator must be examined to assess whether they are unduly 25 suggestive. "It is the likelihood of misidentification which 26 violates a defendant's right to due process." Neil v. Biggers, 409 27 U.S. 188, 198 (1972). Unnecessarily suggestive pretrial 28 17 United States District Court For the Northern District of California 1 identification procedures alone do not require exclusion of in- 2 court identification testimony; reliability is the linchpin in 3 determining the admissibility of identification testimony. 4 v. Brathwaite, 432 U.S. 98, 100-14 (1977). 5 testimony is inadmissible as a violation of due process only if 6 (1) a pretrial encounter is so impermissibly suggestive as to give 7 rise to a very substantial likelihood of irreparable 8 misidentification, and (2) the identification is not sufficiently 9 reliable to outweigh the corrupting effects of the suggestive Manson Identification 10 procedure. 11 An identification procedure is impermissibly suggestive when it 12 emphasizes a single individual, thereby increasing the likelihood 13 of misidentification. 14 (1969); United States v. Bagley, 772 F.2d 482, 493 (9th Cir. 1985). 15 Any motion to challenge Boitano's identification of Petitioner Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir. 1986). Foster v. California, 394 U.S. 440, 443 16 would have failed. 17 suggestive because (1) Boitano only saw the shooter for a short 18 time at his front door, (2) although Boitano said he recognized 19 Petitioner, he could not remember his name, and (3) the police 20 showed Boitano Petitioner’s photograph multiple times. 21 met Petitioner socially on two prior occasions and had ample 22 opportunity to observe him at the time of the crime. 23 Boitano could not remember Petitioner’s name is not relevant to his 24 physical identification of Petitioner; Boitano was sure the shooter 25 was the man Mattson had brought to his house two times in the past. 26 Furthermore, the fact that the police showed Boitano several 27 photographs of Petitioner does not make the identification 28 suggestive -- the police first showed Boitano several photographs Petitioner claims the identification was 18 Boitano had The fact that United States District Court For the Northern District of California 1 they found in Mattson’s apartment and Boitano identified 2 Petitioner, who was in one of the photographs, as his assailant. 3 To corroborate Boitano’s first identification, two weeks later, 4 police showed Boitano a photo line-up which included one photograph 5 of Petitioner, and Boitano again identified Petitioner as the 6 assailant. 7 procedures was not deficient nor did it prejudice Petitioner. 8 state court’s denial of this claim was not contrary to or an 9 unreasonable application of Supreme Court law. Counsel's failure to challenge the identification The 10 D. Counsel's Failure to Move to Suppress Evidence (Claim 2) 11 Petitioner claims counsel was ineffective for failing to move 12 to suppress the photographs the police seized at Mattson's house. 13 Petitioner claims that he had an agreement with Mattson to store 14 property at his house and that this agreement provided Petitioner 15 with standing to challenge the search of the house. 16 The state superior court on habeas review denied this claim on 17 the grounds that none of the evidence seized in the search of 18 Mattson’s residence belonged to Petitioner, nor was it alleged to 19 have been found in an area where Petitioner was storing his 20 property pursuant to some arrangement with Mattson, and both 21 Petitioner and Mattson were on parole and subject to warrantless 22 searches of their persons and residences. 23 In order to establish ineffective assistance of counsel based 24 on counsel’s failure to bring a suppression motion, a petitioner 25 must show that: (1) the overlooked motion to suppress would have 26 been meritorious, and (2) there is a reasonable probability that 27 the jury would have reached a different verdict absent the 28 introduction of the unlawful evidence. 19 Ortiz-Sandoval v. Clarke, 1 323 F.3d 1165, 1170 (9th Cir. 2003) (citing Kimmelman, 477 U.S. at 2 375). 3 violation of the Fourth Amendment, the claimant must prove that the 4 search or seizure was illegal and that it violated his or her 5 reasonable expectation of privacy in the item or place at issue. 6 Kimmelman, 477 U.S. at 374. 7 failing to raise a meritless motion. 8 1262, 1273 (9th Cir. 2005); Rupe v. Wood, 93 F.3d 1434, 1445 (9th 9 Cir. 1996). United States District Court For the Northern District of California 10 In order to prevail on a motion to suppress based on a Trial counsel is not ineffective for Juan H. v. Allen, 408 F.3d The Fourth Amendment does not prohibit a police officer from 11 conducting a suspicionless search of a parolee under the authority 12 of a California statute requiring that every prisoner eligible for 13 release on state parole "shall agree in writing to be subject to 14 search or seizure by a parole officer or other peace officer at any 15 time of the day or night, with or without a search warrant and with 16 or without cause." 17 Samson v. California, 547 U.S. 843, 850 (2006). Both Petitioner and Mattson were parolees at the time of the 18 search. 19 murder of Boitano, who knew his assailant as a friend of Mattson, 20 the search of Mattson's home was supported by reasonable suspicion. 21 Furthermore, because the police searched Mattson's effects, 22 Petitioner did not have a reasonable expectation of privacy such 23 that he had standing to object to the search. 24 Because the search was precipitated by the attempted Counsel was not ineffective for failing to submit a motion 25 that would have been denied. 26 of this claim was not contrary to or an unreasonable application of 27 federal law. 28 // Therefore, the state court's denial 20 1 E. Counsel Failed to Investigate and Prepare For Trial (Claim 3) 2 Petitioner claims that counsel was ineffective because he 3 failed to consult ballistics or other forensic experts who could 4 have established facts to challenge Boitano’s statements about the 5 shooting. Petitioner also asserts that counsel should have called 6 an expert to testify about the uncertainties of eyewitness 7 identifications. 8 A defense attorney has a general duty to undertake a 9 reasonable investigation or to make a reasonable decision that a United States District Court For the Northern District of California 10 particular investigation is unnecessary. Strickland, 466 U.S. at 11 691; Turner v. Duncan, 158 F.3d 449, 456 (9th Cir. 1998). 12 Strickland directs that “‘a particular decision not to investigate 13 must be directly assessed for reasonableness in all the 14 circumstances, applying a heavy measure of deference to counsel’s 15 judgments.’” Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002) 16 (quoting Strickland, 466 U.S. at 491). Where the decision not to 17 investigate further is taken because of reasonable tactical 18 considerations, the attorney's performance is not constitutionally 19 deficient. Siripongs, 133 F.3d at 734. The petitioner bears the 20 burden of overcoming the presumption that “under the circumstances, 21 the challenged action ‘might be considered sound trial strategy.’” 22 United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 23 1995) (quoting Strickland, 466 U.S. at 689). In considering claims 24 of ineffective assistance of counsel, the court is not concerned 25 with what is prudent or appropriate, but only what is 26 constitutionally compelled. Burger v. Kemp, 483 U.S. 776, 794 27 (1987). 28 21 1 If the claim is that counsel failed to investigate witnesses, 2 the defendant must show what the witnesses would have testified to 3 and how the testimony would have changed the outcome of the trial. 4 United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987). 5 duty to investigate and prepare a defense does not require that 6 every conceivable witness be interviewed. 7 70 F.3d 1032, 1040 (9th Cir. 1995). 8 interview a witness cannot establish ineffective assistance when 9 the witness's account is otherwise fairly known to defense counsel. United States District Court For the Northern District of California 10 11 The Hendricks v. Calderon, Further, a claim of failure to Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986). Petitioner fails to submit any declarations from experts to 12 show what they would have testified to and how the testimony would 13 have changed the outcome of the trial. 14 forensic evidence might have shown that the shotgun was fired from 15 inside the apartment instead of from the outside. 16 Petitioner fails to provide any evidence to support this 17 speculation or to explain how examination of the scene would have 18 overcome the photographic evidence showing the damage to the door 19 and shotgun shells outside the door. 20 expert would not have been helpful to Petitioner’s defense because 21 Boitano knew Petitioner from previous encounters. 22 state court’s denial of this claim was not contrary to or an 23 unreasonable application of federal law. 24 Petitioner speculates that However, Likewise, an identification Therefore, the In his supplemental brief, based upon the declaration of 25 Sergeant Titus, Petitioner argues that San Mateo County jail 26 records show that Petitioner was not housed in the same unit with 27 Ray on April 17, 1990, as Ray had testified at trial, and that the 28 circumstances under which Ray said he met Petitioner and heard his 22 1 jailhouse confession were unlikely to have occurred. 2 argues that this shows that counsel was ineffective for failing to 3 investigate Ray’s jail records. United States District Court For the Northern District of California 4 Petitioner In his letter, Sergeant Titus indicates that the facility in 5 which Petitioner and Ray were housed in 1990 was torn down in 1994 6 and that, due to the length of time that has passed and the fact 7 that the facility was torn down, there are no paper records or 8 recreation logs in existence. 9 records, which showed that Petitioner and Ray were in nearby cells Sergeant Titus checked the computer 10 on May 22, 1990 for three and one half hours. 11 indicates that the only way Petitioner and Ray could have had 12 personal contact with each other was if they were both out for 13 recreation at the same time on that day. 14 Ray arrived during feeding time and shift change, it is unlikely 15 they were at recreation time together. 16 that there is no way for him to be positive about this. Sergeant Titus He states that, because However, he acknowledges 17 However, the testimony and documentary evidence submitted at 18 trial established that Petitioner and Ray were housed together in 19 the San Mateo County jail in April, 1990. 20 Petitioner testified that, after his arrest, he was housed in the 21 San Mateo County jail and he saw Ray who was also in custody there. 22 RT at 535, 537. 23 that Ray was an informant. 24 Petitioner admitted that Ray was housed near him in the protective 25 custody area of the jail. 26 the prosecutor introduced into evidence People’s Exhibit 34, a 27 certified copy of the booking sheet from the San Mateo County jail 28 indicating that Ray was in that facility from April 14, 1990 to On direct examination, He testified that, two hours later, he found out RT at 538. On cross-examination, RT at 539, 541. 23 During Ray’s testimony, 1 April 18, 1990. 2 Petitioner on April 17, 1990. United States District Court For the Northern District of California 3 RT at 306. Ray testified that he talked to RT at 309. Deputy Robert Tullos, who worked in the San Mateo County jail 4 when Petitioner and Ray were there, testified that Petitioner was 5 out in the day room area using the telephone when Ray came back 6 from court. 7 stay out in the day room to eat his chow instead of going into his 8 “tank.” 9 Petitioner would have to go back into his cell because Ray was in RT at 637-38. RT at 638. Deputy Tullos stated that Ray wanted to Deputy Tullos testified that he told Ray that 10 protective custody. 11 have a problem being in the day room with Petitioner and Petitioner 12 did not have a problem being there with Ray, he left them out in 13 the day room together. 14 Deputy Tullos stated that, because Ray did not RT at 638. Petitioner has not submitted evidence that his attorney failed 15 to investigate Ray’s jail records. 16 did not is based on the fact that he did not introduce at trial 17 evidence such as that newly produced from Sergeant Titus that it 18 was unlikely that Petitioner and Ray would have been allowed in the 19 common room together. 20 available and had been produced, it would not have undermined the 21 direct testimony of Deputy Tullos that, although it may have been 22 unusual, Petitioner and Ray did spend time in the common room 23 together. 24 Petitioner’s assumption that he However, even if such evidence had been Thus, any failure to investigate was not prejudicial. Although habeas counsel submits the affidavits of Nyhan and 25 Anthony, inmates at the San Mateo County jail at the same time as 26 Petitioner and Ray, he does not discuss them in relation to this 27 claim. 28 informant. Nyhan states that Ray was a drug addict and a known Anthony states that he told Petitioner that Ray was an 24 1 informant, that he did not believe Petitioner confessed to Ray and 2 that he did not believe Petitioner and Ray were alone in the common 3 area together. 4 to the impeachment evidence regarding Ray that was already before 5 the jury. 6 failing to investigate or to call these witnesses to testify. 7 all of these reasons, the state court’s rejection of this 8 ineffectiveness claim was not contrary to or an unreasonable 9 application of Supreme Court authority. United States District Court For the Northern District of California 10 This testimony is either speculative or cumulative Therefore, counsel’s performance was not deficient for For F. Counsel’s Failure to Object to Videotaped Re-Enactment of Crime (Claim 5) 11 Petitioner claims that trial counsel was ineffective for 12 failing to object to the admission into evidence of the prosecution 13 video of its investigator’s round trip from the Moonraker 14 restaurant to Boitano’s apartment. Petitioner argues that the 15 video should not have been admitted because there was no 16 independent evidence that he left the restaurant and went to 17 Boitano’s apartment, the video was highly prejudicial and it was 18 made during the day instead of at night when the offense occurred. 19 Petitioner also claims the court had a sua sponte duty to exclude 20 this evidence or that a limiting instruction should have been 21 given. 22 The failure to object to the admission of highly prejudicial 23 evidence against the defendant may constitute ineffective 24 assistance of counsel, see, e.g., Boyde v. Brown, 404 F.3d 1159, 25 1179-80 (9th Cir.), amended 421 F.3d 1154 (9th Cir. 2005). 26 However, counsel’s failure to make a meritless objection is neither 27 unreasonable nor prejudicial. Jones v. Smith, 231 F.3d 1227, 1239 28 25 1 n.8 (9th Cir. 2001); Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 2 1985). United States District Court For the Northern District of California 3 In California, demonstrative evidence, such as a re-enactment 4 of a crime, even if it may have some prejudicial effect, is 5 admissible, so long as it tends to prove a material issue or 6 clarify the circumstances of the crime. 7 Cal. 2d 88, 99 (1960), overruled on other grounds in People v. 8 Satchell, 6 Cal. 3d 28 (1971); People v. O’Brien, 61 Cal. App. 3d 9 766, 780-81 (1976) (demonstrative evidence is admissible if People v. Robillard, 55 10 relevant and where a proper foundation has been laid by testimony 11 showing the reconstruction or re-enactment is accurate). 12 The videotape, which showed the prosecutor’s investigator 13 making the round trip from the Moonraker to Boitano’s apartment in 14 fifteen minutes, was relevant to dispute Petitioner’s alibi defense 15 that he was at the Moonraker restaurant during the time the crime 16 took place and was introduced to rebut the testimony of defense 17 investigator Whitehead, who stated that it took him twenty and one- 18 half minutes to make the round trip from the Moonraker to Boitano’s 19 apartment. 20 been overruled, defense counsel’s performance was not ineffective 21 for failing to make such an objection. 22 Because an objection to the videotape would likely have Furthermore, O’Brien, 61 Cal. App. 3d at 779-80, held that the 23 trial court did not abuse its discretion in allowing the jury to 24 view surveillance positions of officers during daylight hours when 25 the crime had taken place at night. 26 that physical conditions upon or about the premises may have been 27 to any degree altered is a fact to be considered by the trial court 28 in exercising its discretion to permit or refuse to permit such 26 The court stated, “The fact 1 view, and its conclusions in that regard will not be disturbed on 2 appeal, in the absence of a clear showing of an abuse of 3 discretion.” 4 object to the video because it was made during the day instead of 5 at night does not constitute deficient performance. 6 In light of O’Brien, any failure to Furthermore, the trial court had no duty sua sponte to exclude 7 the evidence or to give a limiting instruction. 8 contested evidence, even if erroneous, does not justify habeas 9 relief unless its admission results in the denial of due process. 10 United States District Court For the Northern District of California Id. at 780. The admission of Therefore, the state court’s denial of these claims was not 11 contrary to or an unreasonable application of Supreme Court 12 authority. 13 G. Counsel’s Errors Regarding Jury Instructions (Claim 7)8 14 Petitioner claims that counsel was ineffective for not 15 objecting to the judge’s references to a shotgun in the jury 16 instructions and in reading the charges in the information to the 17 jury. 18 Boitano’s testimony, the damage to the door to Boitano’s apartment 19 and Boitano’s hand, and the shotgun shells at the scene of the 20 crime -- to support the conclusion that a shotgun was used in the 21 crime. 22 such an objection. 23 This argument fails because there was sufficient evidence -- Therefore, counsel was not ineffective for failing to make Petitioner, citing RT at 704, also claims that counsel was 24 ineffective for not objecting to the court allowing, toward the end 25 of the trial, the amendment of Count III in the information. In 26 27 28 8 Claim 6, which includes claims of prosecutorial misconduct and ineffective assistance of counsel for not objecting to prosecutorial misconduct, will be discussed below, together with the claim of prosecutorial misconduct. 27 1 his discussion of the amendment of Count III with the court, 2 defense counsel noted that it was “dismally late in the proceedings 3 to be correcting charging pleadings” and that such an amendment was 4 not in the furtherance of justice, but acknowledged that allowing 5 the amendment was within the discretion of the trial court. 6 at 704-05. 7 representation was not deficient or prejudicial in this regard. 8 Petitioner, citing RT at 740, also claims that counsel was United States District Court For the Northern District of California 9 Thus, counsel did object to the amendment. See RT His ineffective for withdrawing his request for CALJIC jury instruction 10 17.03.9 Respondent argues that counsel’s decision was a tactical 11 choice. At page 740 of the Reporter’s Transcript, the omission of 12 eight jury instructions was discussed with the court and agreed to 13 by both parties. 14 17.03 on that page, other documents in the record show that defense 15 counsel requested that CALJIC 17.03 be given and that the request 16 was withdrawn. 17 instructions which included CALJIC 17.03. 18 of jury instructions withdrawn or refused, indicates that CALJIC 19 17.03 was withdrawn. 20 Although the Court finds no reference to CALJIC Defense counsel submitted a list of requested jury CT at 222-23. The list CT at 145. A challenge to a jury instruction solely as an error under 21 state law does not state a claim cognizable in federal habeas 22 corpus proceedings. 23 To obtain federal collateral relief for errors in the jury charge, 24 a petitioner must show that the ailing instruction by itself so 25 infected the entire trial that the resulting conviction violates 26 due process. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Id. at 72; Cupp v. Naughten, 414 U.S. 141, 147 27 9 28 CALJIC 17.03 provides that, when criminal charges are made in the alternative, the jury can find the defendant guilty of only one of the crimes charged. 28 1 (1973). 2 but must be considered in the context of the instructions as a 3 whole and the trial record. 4 words, the court must evaluate jury instructions in the context of 5 the overall charge to the jury as a component of the entire trial 6 process. 7 Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). 8 United States District Court For the Northern District of California 9 The instruction may not be judged in artificial isolation, Estelle, 502 U.S. at 72. In other United States v. Frady, 456 U.S. 152, 169 (1982) (citing Counsel’s considered decision to withdraw his request for CALJIC 17.03 does not constitute ineffective assistance. 10 Therefore, the state court’s denial of Claim 7 was not 11 contrary to or an unreasonable application of Supreme Court 12 authority. 13 H. Failure to Object to Prosecutor’s Vouching for Testimony (Claim 8) 14 Petitioner claims counsel was ineffective for failing to 15 object to the prosecutor’s vouching, in his closing argument, for 16 informant Ray. Petitioner brings a separate claim for improper 17 vouching by the prosecutor. Petitioner characterizes as vouching 18 the following statement in the prosecutor’s closing argument in 19 rebuttal to the defense closing: “And as Art Ray told you, he’s 20 just not some jail house snitch. He has been used for some 17 21 years by police departments throughout the state of California. 22 You heard what would happen to him if he told a lie on one of these 23 cases, and that would be he wouldn’t have another job. That isn’t 24 circumstantial evidence either.” RT at 743-44.10 25 A prosecutor may not vouch for the credibility of a witness. 26 27 28 10 Petitioner alleges that, in his closing argument, the prosecutor made other statements about Ray. The Court has reviewed the prosecutor’s closing argument and can find no other statements about Ray. 29 1 United States v. Sanchez, 176 F.3d 1214, 1224 (9th Cir. 1999). 2 Improper vouching occurs when the prosecutor places the prestige of 3 the government behind the witness or suggests that information not 4 presented to the jury supports the witness's testimony. 5 States v. Young, 470 U.S. 1, 7 n.3, 11-12 (1985); United States v. 6 Parker, 241 F.3d 1114, 1119-20 (9th Cir. 2001). 7 must have reasonable latitude in his closing argument and may argue 8 reasonable inferences based on the evidence. 9 Jackson, 84 F.3d 1154, 1158 (9th Cir. 1996). United States District Court For the Northern District of California 10 United The prosecutor United States v. To warrant habeas relief, prosecutorial vouching must so 11 infect the trial with unfairness as to make the resulting 12 conviction a denial of due process. 13 628, 644 (9th Cir. 2004). 14 required include: "the form of vouching; how much the vouching 15 implies that the prosecutor has extra-record knowledge of or the 16 capacity to monitor the witness's truthfulness; any inference that 17 the court is monitoring the witness's veracity; the degree of 18 personal opinion asserted; the timing of the vouching; the extent 19 to which the witness's credibility was attacked; the specificity 20 and timing of a curative instruction; the importance of the 21 witness's testimony and the vouching to the case overall." 22 241 F.3d at 1120. 23 Davis v. Woodford, 384 F.3d Factors for determining when reversal is The prosecutor did not vouch for Ray. Parker, He argued a reasonable 24 inference from the evidence. 25 assurance that Ray was telling the truth and did not imply that he 26 possessed any extra-record knowledge. 27 claim of improper vouching by the prosecutor fails. 28 that, because the prosecutor did not improperly vouch for Ray, The prosecutor gave no personal 30 Therefore, Petitioner’s It follows 1 defense counsel’s performance was not deficient for failing to make 2 an objection based on improper vouching. 3 court’s denial of this claim was not contrary to or an unreasonable 4 application of Supreme Court authority. 5 Therefore, the state I. Insufficiency of Evidence and Counsel’s Failure to Challenge the Insufficiency (Claim 17) 6 Petitioner claims that the evidence against him was 7 insufficient and counsel was ineffective for failing to challenge 8 the insufficiency. Petitioner argues that, if counsel had raised 9 every claim Petitioner has brought in this petition, the result of United States District Court For the Northern District of California 10 the trial would have been different. 11 The state superior court on habeas review, citing California 12 case law, denied the claim of insufficiency of the evidence because 13 it was not cognizable on habeas review. Resp’s. Ex. C at 2. The 14 court denied the claim of ineffective assistance of counsel based 15 on counsel’s failure to present the “meritorious” defense of 16 insufficiency of the evidence as follows: 17 18 19 20 21 22 A review of the record demonstrates that the defense presented at trial was that petitioner was not the person involved in the shooting, and that he was in fact drinking in a bar at the time of the attack on the victim. Petitioner’s counsel presented witnesses which supported petitioner’s version of the events, and petitioner in fact testified in his own behalf. By their verdict, the jury impliedly rejected the defense version of events. Petitioner has failed to demonstrate that counsel’s performance was deficient, simply because the jury did not embrace the proffered defense. 23 Resp’s. Ex. C at 2-3. 24 A state prisoner who alleges that the evidence in support of 25 his state conviction is not sufficient to have led a rational trier 26 of fact to find guilt beyond a reasonable doubt states a 27 constitutional claim, which, if proven, entitles him to federal 28 habeas relief. Jackson v. Virginia, 443 U.S. 307, 321, 324 (1979). 31 United States District Court For the Northern District of California 1 The federal court "determines only whether, 'after viewing the 2 evidence in the light most favorable to the prosecution, any 3 rational trier of fact could have found the essential elements of 4 the crime beyond a reasonable doubt.'" 5 335, 338 (9th Cir. 1992) (quoting Jackson, 443 U.S. at 319). 6 confronted by a record that supports conflicting inferences, a 7 federal habeas court “must presume –- even if it does not 8 affirmatively appear on the record –- that the trier of fact 9 resolved any such conflicts in favor of the prosecution, and must Payne v. Borg, 982 F.2d If 10 defer to that resolution.” 11 credibility determinations are therefore entitled to near-total 12 deference. Jackson, 443 U.S. at 326. A jury’s Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). 13 Boitano had ample time to observe the person who shot him and 14 immediately told the police that he recognized the man as a friend 15 of his brother-in-law. 16 several photographs of Mattson with different people, Boitano 17 picked out a photograph of Mattson and Petitioner and positively 18 identified Petitioner as his assailant. 19 Petitioner, who lives in Southern California, was at a hotel just 20 minutes away from Boitano’s house in Northern California at the 21 time of the shooting, was a coincidence that could not be ignored. 22 Furthermore, Petitioner used an alias when he checked into the 23 motel and paid in cash. 24 up to Northern California to go to Mattson’s Super Bowl party, he 25 never contacted Mattson after he arrived in Northern California. 26 Later, when the police showed Boitano Moreover, the fact that And, although Petitioner claimed he drove In comparison, Petitioner’s alibi defense was weak. He 27 claimed he was at the motel restaurant the entire evening of the 28 attack on Boitano. Although the bartender and piano player 32 1 testified on Petitioner’s behalf that they saw Petitioner in the 2 restaurant the entire evening, the restaurant hostess testified 3 that she saw Petitioner leave for about twenty minutes. 4 experiments conducted by the defense and prosecution indicated that 5 it was possible to make the round-trip drive from the restaurant to 6 Boitano’s house within approximately fifteen to twenty minutes. United States District Court For the Northern District of California 7 Time When viewing the evidence in the light most favorable to the 8 prosecution, a rational trier of fact could have found the 9 essential elements of the crimes charged beyond a reasonable doubt. 10 See Jackson, 443 U.S. at 321. 11 failing to raise sufficiency of the evidence as a defense. 12 presenting an affirmative alibi defense that Petitioner was 13 innocent, defense counsel necessarily presented a theory that the 14 evidence of his guilt was insufficient. 15 court’s denial of these claims was not contrary or an unreasonable 16 application of Supreme Court authority. 17 II. Right to Private Counsel of His Choice (Claim 12) 18 Counsel was not ineffective for By Therefore, the state Petitioner claims that he had a conflict of interest with the 19 public defender’s office because of his trial attorney’s 20 ineffectiveness and he had “a right to counsel I can trust, counsel 21 that I can rely upon . . . and counsel that is adequate and also 22 effective.” 23 representation on appeal by Quin Denvir because Petitioner had 24 disclosed all the facts of his case to Mr. Denvir and Mr. Denvir 25 had stated that he would be glad to be Petitioner’s appointed 26 counsel. 27 28 Petitioner argues that he had a right to A criminal defendant who cannot afford to retain counsel has no right to counsel of his own choosing. 33 Wheat v. United States, United States District Court For the Northern District of California 1 486 U.S. 153, 159 (1988). 2 likes and feels comfortable with him. 3 F.2d 501, 505 (9th Cir. 1991). 4 effective assistance of counsel, not a "meaningful relationship" 5 between an accused and his counsel. 6 14 (1983). 7 guarantees a criminal defendant the effective assistance of counsel 8 on his first appeal as of right. 9 391-405 (1985). Nor is he entitled to an attorney who United States v. Schaff, 948 The Sixth Amendment guarantees Morris v. Slappy, 461 U.S. 1, The Due Process Clause of the Fourteenth Amendment Evitts v. Lucey, 469 U.S. 387, If a state court denies a motion for a different 10 appointed attorney, the ultimate inquiry in a federal habeas 11 proceeding is whether the petitioner's Sixth Amendment right to 12 counsel was violated. 13 Cir. 2000) (en banc). 14 Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Because Petitioner does not have the right to be represented 15 by the attorney of his choice, his claim fails. 16 denial of this claim was not contrary to or an unreasonable 17 application of federal law. 18 III. Ineffective Assistance of Appellate Counsel for Failure to Raise Certain Claims on Appeal (Claim 16) The state court’s 19 Petitioner claims that the attorneys who represented him on 20 his two appeals were ineffective for failing to raise the claims of 21 ineffective assistance of trial counsel on the grounds discussed 22 above, unconstitutional search and seizure, and the government’s 23 manufacture and presentation of “self-serving” evidence, and for 24 failing to investigate facts supporting the claim that Ray 25 committed perjury. 26 Claims of ineffective assistance of appellate counsel are 27 reviewed according to the standard set out in Strickland. Miller 28 v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). 34 A defendant United States District Court For the Northern District of California 1 therefore must show that counsel's advice fell below an objective 2 standard of reasonableness and that there is a reasonable 3 probability that, but for counsel's unprofessional errors, he would 4 have prevailed on appeal. 5 466 U.S. at 688, 694). 6 constitutional duty to raise every non-frivolous issue requested by 7 the defendant. 8 Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997). 9 weeding out of weaker issues is widely recognized as one of the Id. at 1434 & n.9 (citing Strickland, Appellate counsel does not have a Jones v. Barnes, 463 U.S. 745, 751-54 (1983); 10 hallmarks of effective appellate advocacy. 11 1434. 12 The Miller, 882 F.2d at As discussed elsewhere in this order, the claims Petitioner 13 argues should have been appealed lacked merit; thus, appellate 14 counsel was not ineffective for failing to raise them on appeal. 15 Furthermore, counsel who represented Plaintiff on his first appeal 16 obtained a reversal for new post trial proceedings. 17 court’s denial of this claim was not contrary to or an unreasonable 18 application of Supreme Court authority. 19 IV. Denial of Equal Protection and Due Process Rights to Participate in His Defense and to Conduct Investigation While Acting Pro Se (Claim 4) 20 The state 21 Petitioner claims that he was denied his right to participate 22 in his defense while being represented by counsel and to represent 23 himself meaningfully when he was pro se because he did not have 24 access to the defense investigator’s billing and activity sheets. 25 Petitioner claims that access to these records was important so 26 that he would not repeat any investigative efforts and could 27 investigate any vital evidence that had been overlooked. 28 Petitioner states that he submitted a motion for the production of 35 1 2 Citing Teague v. Lane, 489 U.S. 288, 315 (1989), Respondent 3 argues that habeas corpus relief is not available for a novel claim 4 such as this. 5 court may not grant habeas corpus relief to a prisoner based on a 6 constitutional rule of criminal procedure announced after his 7 conviction and sentence became final unless the rule fits within 8 one of two narrow exceptions. 9 United States District Court For the Northern District of California these records, but the trial court denied it. In Teague, the Supreme Court held that a federal Id. at 310-316. Because Petitioner is not relying on any newly announced rule 10 to support his claim, it is doubtful that Teague applies here. 11 However, the claim fails simply because there is no Supreme Court 12 authority indicating that such a constitutional right exists. 13 Therefore, the state court’s denial of this claim was not contrary 14 to or an unreasonable application of federal law. 15 V. Prosecutorial Misconduct and Ineffective Assistance of Counsel for Failing to Object to It (Claim 6) 16 In his original petition, Petitioner claimed that the 17 prosecutor committed misconduct by failing to comply with discovery 18 orders, by not disclosing information regarding jailhouse informant 19 Ray’s background and by improperly putting Ray into Petitioner’s 20 area of the jail. In his supplemental brief, Petitioner claims 21 that Sergeant Titus’ letter shows that the housing situation in the 22 San Mateo County jail made it unlikely that Petitioner and Ray were 23 ever together in the common area of the jail, and this information 24 was not disclosed by the prosecutor. 25 The suppression by the prosecution of evidence favorable to an 26 accused violates due process where the evidence, either impeachment 27 or exculpatory, is material to guilt or to punishment, irrespective 28 of the good faith or bad faith of the prosecution. 36 Brady v. 1 Maryland, 373 U.S. 83, 87 (1963); United States v. Agurs, 427 U.S. 2 97, 107 (1976); United States v. Bagley, 473 U.S. 667, 676 (1985). 3 Evidence is material "if there is a reasonable probability that, 4 had the evidence been disclosed to the defense, the result of the 5 proceeding would have been different. 6 is a probability sufficient to undermine confidence in the 7 outcome." United States District Court For the Northern District of California 8 A 'reasonable probability' Id. at 682. “There are three components of a true Brady violation: [t]he 9 evidence at issue must be favorable to the accused, either because 10 it is exculpatory, or because it is impeaching; that evidence must 11 have been suppressed by the State, either willfully or 12 inadvertently; and prejudice must have ensued.” 13 Greene, 527 U.S. 263, 281-82 (1999). 14 Strickler v. Petitioner’s Brady claims fail either because they are not 15 supported by evidence or because the record shows that the evidence 16 he cites was not withheld from the defense. 17 that the prosecutor did not disclose Ray’s background as a police 18 informant is directly contradicted by the trial testimony. 19 direct examination, Ray testified that he had been a professional 20 police informant for the past seventeen years and, in that 21 capacity, he worked as an independent contractor for a long list of 22 law enforcement agencies. 23 entailed purchasing narcotics and stolen property, and that he also 24 sold information to law enforcement agencies. 25 stated that he had testified in court as an informant thousands of 26 times in felony cases and was paid fifty dollars for each court 27 appearance. 28 in one year he earned approximately $20,000 for his work as an RT at 305. RT at 304-05. Petitioner’s claim On Ray stated that this work RT at 304, 315. Ray On cross-examination, Ray testified that 37 1 informant. United States District Court For the Northern District of California 2 RT at 317. Furthermore, as discussed above, the prosecution introduced 3 into evidence the booking sheet from the San Mateo County jail, 4 which indicated that Ray was incarcerated there from April 14 to 5 April 18, 1990. 6 Titus, written seventeen years after the events at issue took place 7 and after the jail facility and its records were destroyed, cannot 8 overcome the probative evidence introduced at trial that Ray was 9 with Petitioner in the common room at the San Mateo Country jail on RT at 306. The speculative letter from Sergeant 10 April 17, 1990, the day he testified that he spoke to Petitioner. 11 Furthermore, defense counsel and the jury knew that generally only 12 one person at a time was allowed in the E-1 common room, so that it 13 would have been unusual for Ray and Petitioner to have had an 14 opportunity to speak there together. 15 believed that Ray and Petitioner did have a conversation in jail or 16 that the evidence against Petitioner was so strong that Ray’s 17 testimony was not essential to find that Petitioner was guilty of 18 the crimes charged. 19 time of the trial, the prosecutor had undisclosed evidence that Ray 20 and Petitioner did not talk. 21 Thus, the jury either There is no reason to believe that, at the Finally, although Petitioner asserts that the prosecutor 22 improperly placed Ray in the jail facility where Petitioner was 23 housed, he submits no evidence of this. 24 For all these reasons, there was no prosecutorial misconduct 25 or Brady violation. 26 contrary to or an unreasonable application of Supreme Court 27 authority. 28 // The state court’s denial of this claim was not 38 1 2 Petitioner contends that the plain error doctrine applies to 3 his petition and that his rights were violated because he did not 4 have a fair trial, an unbiased judge and effective assistance of 5 counsel. 6 unfair because it did not grant the motions he submitted when he 7 decided to represent himself after his case was remanded. 8 9 United States District Court For the Northern District of California VI. Plain Error Standard Applies (Claim 9) It seems that Petitioner is claiming that the court was The ruling on Petitioner’s second appeal upheld the trial court’s denial of his motions and re-sentencing on the ground that 10 his waiver of his right to counsel was knowing and intelligent. 11 The appellate court found that, although he claimed error because 12 the trial court failed to grant him a continuance, he acknowledged 13 that he never requested a continuance. 14 Resp.’s Ex. B. The plain error standard does not apply to this petition. As 15 explained above, AEDPA applies, and the Court must decide whether 16 the state court’s opinion was contrary to or an unreasonable 17 application of Supreme Court authority. 18 claim involves the trial court’s rulings after remand, the Court 19 can find no constitutional error. 20 denial of this claim was not contrary to or an unreasonable 21 application of Supreme Court authority. 22 VII. Trial Court Should Have Disqualified Itself (Claim 10) 23 Insofar as Petitioner’s Therefore, the appellate court’s Petitioner claims that on January 9, 1991, the trial judge 24 made remarks which showed that he was biased against Petitioner. 25 These “remarks” consisted of the judge’s rulings on Petitioner’s 26 motions, his statements regarding future rulings and his statement 27 that he would not grant any of Petitioner’s motions for 28 continuances. Petitioner also claims that the judge should have 39 1 recused himself because, on July 8, 1992, Petitioner filed a civil 2 rights lawsuit against him. 3 4 Civil Procedure § 170.2(b), a judge’s expression of a view on a 5 legal or factual issue presented in a judicial proceeding does not 6 constitute grounds for disqualification. 7 life plus eleven year sentence was imposed on January 9, 1991, CT 8 at 303, and he filed his lawsuit on July 8, 1992. 9 after the sentence was imposed cannot have affected the trial or 10 United States District Court For the Northern District of California Respondent correctly points out that, under California Code of 11 Furthermore, Petitioner’s A lawsuit filed the sentence. Therefore, the state court’s denial of this claim was not 12 contrary to or an unreasonable application of Supreme Court 13 authority. 14 VIII. Prosecutor Should Have Been Disqualified (Claim 11) 15 Petitioner claims that, because he filed a civil rights 16 lawsuit against the prosecutor on July 8, 1992, there was a 17 conflict of interest between himself and the prosecutor such that 18 Petitioner could not receive a fair and impartial trial and the 19 court should have disqualified the prosecutor. 20 the trial was over and Petitioner was sentenced before he filed the 21 lawsuit. 22 prosecutor against Petitioner. 23 claim was not contrary to or an unreasonable application of Supreme 24 Court authority. 25 IX. Writ of Error Coram Nobis (Claim 13) 26 As discussed above, Therefore, the lawsuit could not have biased the The state court’s denial of this Petitioner claims that the trial court, on its own motion, 27 should have held a hearing regarding the warrantless search of 28 Mattson’s apartment and should have suppressed the photograph of 40 United States District Court For the Northern District of California 1 himself and Mattson as the fruit of the warrantless search. 2 seeks a writ of error coram nobis to remedy this claimed error. 3 The writ of error coram nobis affords a remedy to attack a He 4 conviction when the petitioner has served his sentence and is no 5 longer in custody. 6 (9th Cir. 1994); United States v. Walgren, 885 F.2d 1417, 1420 (9th 7 Cir. 1989). 8 district courts are authorized to issue a writ of coram nobis in 9 federal criminal matters pursuant to the All Writs Act, 28 U.S.C. 10 § 1651(a), United States v. Morgan, 346 U.S. 502, 506 (1954), but 11 may not entertain a petition for the writ with respect to 12 challenges to state convictions, Sinclair v. Louisiana, 679 F.2d 13 513, 513-15 (5th Cir. 1982); Madigan v. Wells, 224 F.2d 577, 578 14 n.2 (9th Cir. 1955). 15 Telink, Inc. v. United States, 24 F.3d 42, 45 Here, Petitioner is still in custody. Further, Petitioner submits no support for his claim that the failure 16 of the court to hold a sua sponte hearing on the warrantless search 17 constitutes grounds for a writ of error coram nobis. 18 court’s failure to hold a hearing was not contrary to or an 19 unreasonable application of Supreme Court authority. 20 X. Trial Court Improperly Denied Marsden Motion (Claim 14) 21 The state Petitioner claims that the trial court improperly denied him a 22 hearing on his motion under People v. Marsden, 2 Cal. 3d 118 23 (1970). 24 The state appellate court addressed this claim on Petitioner’s 25 second appeal. 26 court asked Petitioner if he still wanted to represent himself. 27 Petitioner replied that he did not, but that he had five motions to 28 submit to the court. Resp.’s Ex. B. At the hearing after remand, the The court appointed Mr. Gray, the attorney 41 United States District Court For the Northern District of California 1 who had represented Petitioner at his trial. 2 informed the court that he had a Marsden motion to disqualify Mr. 3 Gray. 4 that the court had granted that request and appointed counsel, and 5 that Petitioner first had to listen to counsel before he could move 6 to disqualify him. 7 that Petitioner had several motions he wished to file, that counsel 8 had explained to him that he could not be represented by counsel 9 and file his own motions, and that, under Faretta v. California, Petitioner then The court informed Petitioner that he had requested counsel, After a recess, Mr. Gray informed the court 10 422 U.S. 806 (1975), Petitioner had again decided to represent 11 himself. 12 representation, asked Petitioner several questions regarding his 13 ability to represent himself, denied the Faretta motion and 14 continued the matter. 15 of points and authorities in which he argued that Petitioner had 16 the right to represent himself. 17 filed a written Faretta motion in which he explicitly waived his 18 right to counsel and asked to represent himself. 19 The court cautioned Petitioner about the dangers of self- Two weeks later, Mr. Gray filed a memorandum Two days after that, Petitioner At the next hearing, the court again warned Petitioner of the 20 dangers of representing himself, granted the Faretta motion, 21 relieved defense counsel, and found the Marsden motion moot. 22 The appellate court explained that Petitioner’s conduct in 23 court was inconsistent because he first requested counsel, then he 24 wanted to file his motions himself, then he again said he wanted 25 counsel. 26 refuse to hold a Marsden hearing, but instructed Petitioner to 27 confer with his attorney and said that if there were problems 28 afterwards, the court would address the Marsden motion at that The appellate court noted that the trial court did not 42 1 time. 2 counsel, Petitioner advised the court that he wanted to represent 3 himself, and that a request for self-representation does not 4 trigger a duty to conduct a Marsden inquiry. 5 As discussed above, an indigent criminal defendant has no 6 right to counsel of his choosing, see Wheat, 486 U.S. at 159, and, 7 on federal habeas review, a claim based on the denial of a Marsden 8 motion, which arises under California law, is cognizable only if 9 its denial violated the petitioner’s Sixth Amendment right to 10 United States District Court For the Northern District of California The appellate court noted that, after consulting with 11 effective assistance of counsel, see Schell, 218 F.3d at 1025. As indicated by the appellate court, the trial court did not 12 deny Petitioner a hearing on his Marsden motion, it just postponed 13 the hearing until Petitioner could confer with counsel. 14 Furthermore, even if the Marsden motion had been improperly 15 ignored, as discussed above, Petitioner has failed to establish 16 that Mr. Gray provided ineffective assistance. 17 denial of the Marsden motion did not violate Petitioner’s Sixth 18 Amendment right to counsel. 19 was not contrary to or an unreasonable application of Supreme Court 20 authority. 21 XI. Trial Court Improperly Denied Investigator, Typewriter and Access to Law Library (Claim 15) Therefore, the The state court’s denial of this claim 22 Petitioner claims that, in his Faretta motion, he stated his 23 need for a private investigator, a typewriter and access to a law 24 library, and that the trial court’s denial of these requests 25 violated his constitutional right to represent himself. 26 The record reflects that before the court granted Petitioner’s 27 Faretta motion, it twice informed him that he would get no special 28 library privileges or investigator. 43 Resp.’s Ex. H (September 10, 1 1992 hearing) at 5; (September 25, 1992 hearing) at 1. 2 Petitioner told the court that he understood that he would get no 3 privileges. 4 (September 25, 1992 hearing) at 2. United States District Court For the Northern District of California 5 Both times, Resp.’s Ex. H (September 10, 1992 hearing) at 5; Thus, Petitioner asked to represent himself, he was warned of 6 the adverse consequences, he stated that he understood those 7 consequences, and he reaffirmed his request to represent himself, 8 which the court granted. 9 violates a federal constitutional right. 10 any colorable constitutional violation. 11 court’s denial of this claim was not contrary to or an unreasonable 12 application of Supreme Court authority. 13 XII. Request for Evidentiary Hearing 14 15 Petitioner does not explain how this Nor can the Court find Therefore, the state Based on the new evidence submitted, Petitioner requests the Court hold on evidentiary hearing. 16 A federal evidentiary hearing is mandatory if (1) the 17 petitioner's allegations, if proven, would establish the right to 18 relief, and (2) the state court trier of fact has not, after a full 19 and fair hearing, reliably found the relevant facts. 20 Calderon, 52 F.3d 1465, 1484 (9th Cir. 1995); Jeffries v. Blodgett, 21 5 F.3d 1180, 1187 (9th Cir. 1993). 22 make out a "colorable claim" for relief, an evidentiary hearing is 23 not required. 24 Williams v. Where the petitioner fails to Williams, 52 F.3d at 1484. Petitioner presents no evidence which, if believed, would 25 entitle him to relief. 26 colorable claim for relief, his request for an evidentiary hearing 27 is denied. 28 // Because Petitioner fails to make out a 44 1 2 3 4 CONCLUSION For the foregoing reasons, the Court denies the petition for a writ of habeas corpus and the motion for an evidentiary hearing. IT IS SO ORDERED. 5 6 Dated: September 30, 2009 CLAUDIA WILKEN United States District Judge 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 45
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