Duke v. Walker, No. 4:2007cv02882 - Document 20 (N.D. Cal. 2009)

Court Description: ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 10/28/09. (scc, COURT STAFF) (Filed on 10/28/2009)

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Duke v. Walker Doc. 20 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 United States District Court For the Northern District of California 10 11 JOHN ANTHONY DUKE, ) No. C 07-2882 CW (PR) ) Petitioner, ) ORDER DENYING PETITION FOR A ) WRIT OF HABEAS CORPUS v. ) ) ) JAMES WALKER, ) Respondent. ) ___________________________ ) 12 INTRODUCTION 13 14 15 16 Petitioner John Anthony Duke, Jr., a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Court DENIES 17 the petition. 18 19 20 PROCEDURAL HISTORY In 2003, a Contra Costa Superior Court jury found Petitioner 21 guilty of murder, Cal. Pen. Code § 187, elder abuse, id. 22 § 368(b)(1), residential robbery, id. §§ 211 & 212.5(a), and 23 residential burglary, id. §§ 459 & 460(a). 24 The jury found true allegations that Petitioner used a deadly weapon in the commission 25 of the murder, id. §§ 190.2(a)(17) & 12022(b)(1), during the 26 27 28 course of the robbery and burglary, id., and committed the elder offense with a deadly weapon, id. § 12022(b)(1). The trial court sentenced Petitioner to life without possibility of parole for the Dockets.Justia.com 1 murder, plus a one-year enhancement for the use of a deadly 2 weapon. 3 convictions. 4 The trial court stayed the sentences on the remaining Petitioner appealed. The California Court of Appeal affirmed the judgment. (Ans., Ex. C at 1-2.) The California 5 Supreme Court denied Petitioner's petition for review. (Id., 6 7 United States District Court For the Northern District of California 8 Ex. D.) Petitioner alleges that (1) trial counsel rendered 9 ineffective assistance in violation of the Sixth Amendment, 10 (2) the trial court violated his rights when it accepted his 11 withdrawal of his plea of not guilty by reason of insanity (NGI), 12 and (3) the trial court violated Petitioner's Sixth Amendment 13 rights by denying his motion to change trial counsel. (Pet. at 1, 14 15 9 & 13.) 16 STATEMENT OF FACTS 17 Evidence was presented at trial that, in 2000, Petitioner 18 stabbed to death an eighty-seven year old woman in her apartment. 19 The victim's blood was found on Petitioner's shirt and some of the 20 victim's possessions were found in Petitioner's apartment. 21 22 23 24 25 Petitioner admitted to the killing, but said that he did not have any control over his mind. (Ans., Ex. C at 3.) STANDARD OF REVIEW A federal writ of habeas corpus may not be granted with 26 respect to any claim that was adjudicated on the merits in state 27 court unless the state court's adjudication of the claims: 28 "(1) resulted in a decision that was contrary to, or involved an 2 1 unreasonable application of, clearly established Federal law, as 2 determined by the Supreme Court of the United States; or 3 (2) resulted in a decision that was based on an unreasonable 4 determination of the facts in light of the evidence presented in 5 the State court proceeding." 28 U.S.C. § 2254(d). 6 United States District Court For the Northern District of California 7 "Under the 'contrary to' clause, a federal habeas court may 8 grant the writ if the state court arrives at a conclusion 9 opposite to that reached by [the Supreme] Court on a question of 10 law or if the state court decides a case differently than [the 11 Supreme] Court has on a set of materially indistinguishable 12 facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under 13 the 'unreasonable application' clause, a federal habeas court may 14 15 grant the writ if the state court identifies the correct 16 governing legal principle from [the Supreme] Court's decisions 17 but unreasonably applies that principle to the facts of the 18 prisoner's case." 19 clearly established federal law under 28 U.S.C. § 2254(d) is in 20 Id. at 413. The only definitive source of the holdings of the Supreme Court as of the time of the relevant 21 22 23 state court decision. Id. at 412. If constitutional error is found, habeas relief is warranted 24 only if the error had a "'substantial and injurious effect or 25 influence in determining the jury's verdict.'" 26 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 27 619, 638 (1993)). 28 3 Penry v. Johnson, DISCUSSION 1 2 I. 3 INEFFECTIVE ASSISTANCE OF COUNSEL A. 4 BACKGROUND Petitioner claims that trial counsel rendered ineffective 5 assistance when he advised Petitioner that "he could withdraw his 6 United States District Court For the Northern District of California 7 NGI plea during trial and that it could be reinstated at any time 8 later automatically." (Pet. at 1.) The state appellate court 9 did not directly address this claim, but did render an opinion on 10 the question of prejudice, noting that Petitioner "cannot 11 establish that he would not have withdrawn his NGI plea had his 12 counsel told him that the court would not necessarily reinstate 13 this plea later in proceedings." (Ans., Ex. C at 11-12.) 14 Respondent contends that Petitioner's claim should be denied 15 16 on the grounds that it is unexhausted. (Ans. at 4.) Before trial, Petitioner entered a plea of not guilty, and 17 18 later changed his plea to NGI. 19 appointed psychologists concluded that Petitioner was legally 20 sane. (Id., Ex. C at 3.) Two court- (Id. at 4, 6.) 21 22 23 During jury selection, trial counsel objected to the trial court's plan to inform the prospective jurors of the NGI plea to 24 allow counsel to voir dire on the subject. 25 concerned about the possible prejudicial effect of voir dire on 26 the subject, believing that it would lessen the chance that the 27 jury would return a verdict of manslaughter, rather than first- 28 degree murder. Trial counsel was After the trial court overruled the objection, 4 1 trial counsel, after some research on the relevant law, moved to 2 withdraw Petitioner's NGI plea in the belief that the plea could 3 be reinstated at any time. 4 The trial court accepted the withdrawal, but admonished trial counsel and Petitioner that the 5 court "is making no commitment of any type or kind at this time 6 7 8 United States District Court For the Northern District of California 9 beyond accepting your withdrawal of that plea." (Ans., Ex. C at 4-5.) During jury deliberations, trial counsel sought to reenter 10 Petitioner's NGI plea. The prosecutor objected, and the trial 11 court deferred ruling. The following day, the trial court agreed 12 to arraign Petitioner on the NGI plea, but stated that the court 13 was not necessarily agreeing to accept it. The next day, the 14 15 trial court denied Petitioner's motion on the ground that no good 16 cause had been shown to justify the reentry of the NGI plea. 17 jury returned its verdicts the next day. 18 19 20 B. The (Id. at 5-6.) ANALYSIS 1. Exhaustion Prisoners in state custody who wish to challenge 21 22 23 collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state 24 judicial remedies, either on direct appeal or through collateral 25 proceedings, by presenting the highest state court available with 26 a fair opportunity to rule on the merits of each and every claim 27 they seek to raise in federal court. 28 See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). 5 In fact, a 1 federal district court may not grant the writ unless state court 2 remedies are exhausted or there is either "an absence of 3 available state corrective process" or such process has been 4 "rendered ineffective." See 28 U.S.C. § 2254(b)(1)(A)-(B). 5 However, a federal court may deny a petition on the merits even 6 7 8 it is perfectly clear that the petitioner has no chance of 9 obtaining relief." 10 United States District Court For the Northern District of California if it is unexhausted, see 28 U.S.C. § 2254(b)(2), but "only when 11 12 Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). The record indicates that Petitioner's ineffective assistance of counsel claim was not properly exhausted, though 13 the legal issues underlying such a claim were addressed on direct 14 15 review by the state appellate court (Ans., Ex. C at 11-12) and 16 were raised in his petition for review (Ans., Ex. E) to the 17 California Supreme Court. 18 19 20 Although the claim appears to be unexhausted, the Court will deny the claim on the merits for the reasons discussed below. 2. Ineffective Assistance of Counsel 21 22 23 24 25 26 27 28 The state appellate court's summary of trial counsel's actions is particularly relevant on the question of counsel's effectiveness: [G]iven the choice of having voir dire on insanity and having an NGI plea, defense counsel indicated that his tactical decision would have been to withdraw the NGI plea. Trial counsel clearly did not want the jurors who were determining [Petitioner's] guilt to be questioned about the question of insanity, especially since he considered his evidence in support of the NGI 6 plea very weak and having almost no chance of success. 1 2 (Ans., Ex. C at 11-12.) 3 court-appointed psychologists concluded that Petitioner was 4 The Court notes again that the two legally sane. 5 Claims of ineffective assistance of counsel are examined 6 United States District Court For the Northern District of California 7 under Strickland v. Washington, 466 U.S. 668 (1984). In order to 8 prevail on a claim of ineffectiveness of counsel, a petitioner 9 must establish two things. First, he must establish that 10 counsel's performance was deficient, i.e., that it fell below an 11 "objective standard of reasonableness" under prevailing 12 professional norms. Id. at 687–68. Second, he must establish 13 that he was prejudiced by counsel's deficient performance, i.e., 14 15 that "there is a reasonable probability that, but for counsel's 16 unprofessional errors, the result of the proceeding would have 17 been different." 18 probability sufficient to undermine confidence in the outcome. 19 Id. 20 Id. at 694. A reasonable probability is a Where the defendant is challenging his conviction, the appropriate question is "whether there is a reasonable 21 22 23 probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. It is 24 unnecessary for a federal court considering a habeas ineffective 25 assistance claim to address the prejudice prong of the Strickland 26 test if the petitioner cannot even establish incompetence under 27 the first prong. 28 See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998). 7 1 2 3 4 Tactical decisions of trial counsel deserve deference when: (1) counsel in fact bases trial conduct on strategic considerations; (2) counsel makes an informed decision based upon 5 investigation; and (3) the decision appears reasonable under the 6 United States District Court For the Northern District of California 7 circumstances. See Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th 8 Cir. 1994). Whether counsel's decisions were indeed tactical is 9 a question of fact considered under 28 U.S.C. 2254(d)(2); whether 10 those actions were reasonable is a question of law considered 11 under 28 U.S.C. § 2254(d)(1). 12 Edwards v. LaMarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). 13 Applying these legal principles, the Court concludes that 14 15 Petitioner has not shown that trial counsel rendered ineffective 16 assistance in violation of his Sixth Amendment rights. 17 counsel's decision to withdraw the NGI plea was strategic and 18 informed: 19 prejudice his client by informing the jurors about Petitioner's 20 Trial as stated above, trial counsel did not want to alleged lack of sanity, evidence of which was very weak, 21 22 23 especially considering the opinions of the two court-appointed psychologists. Furthermore, Petitioner was at all times informed 24 of trial counsel's decisions, and agreed to the withdrawal of his 25 plea, even after being admonished by the trial court that reentry 26 of the plea was not assured. 27 decision was reasonable as part of his efforts protect his 28 client's interests. From this record, trial counsel's Petitioner, then, has not shown that trial 8 1 counsel's tactical decision resulted in a deficient performance. 2 Because Petitioner has not shown that trial counsel's performance 3 was deficient, the Court need not address the prejudice prong. 4 See Siripongs, 133 F.3d at 737. 5 In sum, because the underlying decision was not 6 United States District Court For the Northern District of California 7 unconstitutional, the Court concludes that the state appellate 8 court's determination was not contrary to, or an unreasonable 9 application of, clearly established Supreme Court precedent. 10 28 U.S.C. § 2254(d)(1). 11 assistance of counsel claim fails, and his claim for habeas 12 13 See Accordingly, Petitioner's ineffective relief on this basis is DENIED. II. TRIAL COURT'S ACCEPTANCE OF PLEA WITHDRAWAL 14 15 16 A. BACKGROUND Petitioner claims that the trial court violated his state 17 constitutional rights to a fair trial, due process, and equal 18 protection by "allowing him to withdraw his NGI plea without an 19 adequate knowing and intelligent comprehension that he was likely 20 giving up for all time his right to a jury trial on his sanity." 21 (Pet. at 9.) The state appellate court rejected this claim, 22 23 finding that the trial court had admonished Petitioner that, even 24 though it was allowing the withdrawal, it offered no opinion 25 about the possibility of a later reentry of the plea. 26 the opinion of the state appellate court, had Petitioner suffered 27 prejudice because Petitioner's chances of prevailing on an NGI 28 plea were "small." (Ans., Ex. C at 10-11.) 9 Nor, in 1 B. ANALYSIS 2 A writ of habeas corpus is available under § 2254(a) "only 3 on the basis of some transgression of federal law binding on the 4 state courts." 5 Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). It is 6 7 8 the interpretation or application of state law. 9 McGuire, 502 U.S. 62, 67-68 (1991); Engle, 456 U.S. at 119; 10 United States District Court For the Northern District of California unavailable for violations of state law or for alleged error in 11 12 13 Estelle v. Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994). Applying the above legal principles to the instant matter, the Court concludes that Petitioner's claim is not cognizable. That is, Petitioner has alleged a violation of his state, rather 14 15 than his federal, constitutional rights. Because federal relief 16 is unavailable for these claims, the Court DENIES Petitioner's 17 claim. 18 19 20 The Court notes that, even if Petitioner had stated a cognizable federal claim, such claim would be without merit. First, the trial court merely acceded to Petitioner's wishes. 21 When Petitioner asked to withdraw his NGI plea, the trial court 22 23 informed him of the consequences of such a decision, and made it 24 clear that it was giving no assurances that an attempt to reenter 25 the plea would be successful. 26 that he suffered prejudice as a result, a requirement for 27 granting relief. 28 (1993). Second, Petitioner has not shown See Brecht v. Abrahamson, 507 U.S. 619, 638 Specifically, an NGI plea had little chance of success, 10 1 especially considering that the two court-appointed experts had 2 found Petitioner legally sane. 3 concludes that Petitioner has not shown that there was an 4 underlying constitutional violation. 5 On this record, the Court Accordingly, Petitioner is not entitled to habeas relief on this claim, which is DENIED. 6 United States District Court For the Northern District of California 7 III. DENIAL OF MOTION TO CHANGE COUNSEL 8 A. BACKGROUND 9 Petitioner claims that the trial court violated his 10 California constitutional rights by denying his motion to change 11 trial counsel. 12 13 (Pet. at 13.) The state appellate court rejected this claim, finding that because trial counsel's decision to withdraw Petitioner's NGI plea was a reasonable tactical 14 15 16 17 decision, the trial court had no reason to grant Petitioner's motion to change counsel. (Ans., Ex. C at 13.) In March, 2004, roughly two months after the jury rendered 18 its verdict, but before sentencing, Petitioner filed a motion to 19 change counsel. 20 In this motion, Petitioner alleged that he relied on trial counsel's assurances that he could reenter his 21 NGI plea at any time after withdrawal, and that he (Petitioner) 22 23 did not understand the law. The trial court denied Petitioner's 24 motion, finding that Petitioner had a clear understanding of 25 "what was taking place." 26 "[q]uite admirably," and had made a "stirring closing argument," 27 in "which he brought to the jury's attention here how important 28 Moreover, trial counsel had performed it was for them to understand your mental state, which he has 11 1 presented through his two expert witnesses." 2 The trial court also denied, on the same grounds, a second motion 3 by Petitioner to change counsel. 4 the trial court noted that evidence of Petitioner's mental status 5 had been presented to the jury. (Ans., Ex. C at 7.) In denying this second motion, (Id. at 8.) 6 B. United States District Court For the Northern District of California 7 ANALYSIS 8 The Ninth Circuit has held that when a defendant voices a 9 seemingly substantial complaint about counsel, the trial judge 10 should make a thorough inquiry into the reasons for the 11 defendant's dissatisfaction.1 12 13 Bland v. California Dep't of Corrections, 20 F.3d 1469, 1475-76 (9th Cir. 1994). However, the inquiry only need be as comprehensive as the circumstances 14 15 reasonably permit. King v. Rowland, 977 F.2d 1354, 1357 (9th 16 Cir. 1992). 17 is whether the petitioner's Sixth Amendment right to counsel was 18 violated. 19 2000). 20 The ultimate inquiry in a federal habeas proceeding Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir. In other words, the habeas court considers whether the trial court's denial of or failure to rule on the motion 21 "actually violated [the criminal defendant's] constitutional 22 23 rights in that the conflict between [the criminal defendant] and 24 his attorney had become so great that it resulted in a total lack 25 of communication or other significant impediment that resulted in 26 27 1 Petitioner brought his motion under People v. Marsden, 2 Cal. 3d 118 (1970), a case that requires the trial court to permit a 28 criminal defendant requesting substitution of counsel to specify the reasons for his request and generally to hold a hearing. 12 1 turn in an attorney-client relationship that fell short of that 2 required by the Sixth Amendment." 3 whether the trial judge should have granted a substitution 4 motion, the reviewing habeas court may consider the extent of the 5 Id. at 1026. In determining conflict, whether the trial judge made an appropriate inquiry 6 7 8 to substitute counsel. 9 1197-98 (9th Cir. 2005). 10 United States District Court For the Northern District of California into the extent of the conflict, and the timeliness of the motion 11 12 13 Daniels v. Woodford, 428 F.3d 1181, As with the above claim, Petitioner alleges solely that his state constitutional rights were violated, not that his federal rights were violated. As stated above, state law claims are not cognizable in federal court. Accordingly, the Court DENIES this 14 15 16 17 claim. Even if Petitioner had stated a cognizable claim, such a claim would fail on its merits, which are addressed below. 18 Applying the federal legal principles cited above to the 19 instant matter, Petitioner has not shown that the trial court 20 violated his Sixth Amendment rights when it denied his motion to 21 change counsel. First, the record supports a finding that the 22 23 trial court adequately inquired into the reasons for the motion. 24 Second, this Court has already determined that the trial court's 25 stated reason for denying the motion -- that trial counsel's 26 decision to withdraw Petitioner's NGI plea was a reasonable 27 tactical decision -- did not result in prejudice to Petitioner. 28 On this record, there is no evidence that the conflict between 13 1 Petitioner and his attorney had become so great that it resulted 2 in an impediment significant enough to impair the attorney-client 3 relationship so that it fell short of that required by the Sixth 4 Amendment. Accordingly, this claim for habeas relief is DENIED. 5 CONCLUSION 6 7 8 corpus is denied. 9 favor of Respondent, and close the file. 10 United States District Court For the Northern District of California For the foregoing reasons, the petition for a writ of habeas 11 12 13 The Clerk of the Court shall enter judgment in IT IS SO ORDERED. DATED: 10/28/09 CLAUDIA WILKEN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 7 JOHN ANTHONY DUKE SR, 8 Case Number: CV07-02882 CW Plaintiff, CERTIFICATE OF SERVICE 9 United States District Court For the Northern District of California 10 11 12 v. JIMMY WALKER et al, Defendant. / 13 14 15 16 17 18 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 28, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 19 20 21 22 23 24 25 26 John Anthony Duke P-97706 C.S.P. Sac IV P.O. Box 290066 Represa, CA 95671-0066 Dated: October 28, 2009 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk 27 28 15

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