Keith Dwayne Lewis v. W. L. Montgomery, No. 2:2018cv05877 - Document 24 (C.D. Cal. 2018)
Court Description: MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS by Magistrate Judge Alexander F. MacKinnon. IT IS THEREFORE ORDERED that the petition be denied, and this action be dismissed with prejudice. (See document for further details.) (sbou)
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Keith Dwayne Lewis v. W. L. Montgomery Doc. 24 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 KEITH DWAYNE LEWIS, 12 Case No. CV 18-05877-AFM Petitioner, MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 13 v. 14 RAYMOND MADDEN, Warden, 15 Respondent. 16 17 BACKGROUND1 18 19 On February 27, 2014, petitioner was convicted of two counts of attempted 20 murder and one count of assault with a firearm. The jury found various sentence 21 enhancement allegations to be true. Petitioner was sentenced to state prison for 50 22 years to life plus 18 years. 23 Petitioner appealed, raising a claim of insufficient evidence and a claim under 24 People v. Marsden, 2 Cal.2d 118 (1970). On June 2, 2015, the California Court of 25 Appeal rejected the insufficiency of the evidence claim, but reversed the judgment 26 based upon Marsden error. On August 12, 2015, the California Supreme Court denied 27 Certain of these facts are taken from the records lodged in Lewis v. Montgomery, Case No. CV 16-08073. The Court takes judicial notice of official court files. See Fed. R. Evid. 201. 1 28 Dockets.Justia.com 1 petitioner’s petition for review raising the insufficiency of the evidence claim. 2 On October 31, 2016, petitioner filed his first petition for a writ of habeas 3 corpus in this Court, raising the sufficiency of the evidence claim. That petition was 4 denied on the merits. See ECF No. 26 in Case No. CV16-08073-SJO (AFM). 5 Meanwhile, on remand, the California Superior Court held a hearing and found 6 that petitioner failed to show good cause for substitution of counsel under Marsden. 7 Accordingly, the trial court denied petitioner’s Marsden motion and reinstated his 8 conviction. Petitioner appealed. On January 30, 2017, the California Court of Appeal 9 affirmed the judgment of conviction. The California Supreme Court summarily 10 denied petitioner’s petition for review. 11 The present petition, filed on July 5, 2018, challenges the state court’s 12 determination of petitioner’s Marsden claim. (ECF No. 1 at 21-34.) On 13 September 27, 2018, respondent filed an answer addressing the merits of petitioner’s 14 claim. (ECF No. 17.) Petitioner had to and including October 29, 2018 in which to 15 file a reply. As of the date of this order, petitioner has neither filed a reply nor 16 requested additional time within which to do so. The matter is now ready for decision. 17 STANDARD OF REVIEW 18 19 A federal court may not grant a writ of habeas corpus on behalf of a person in state custody 20 with respect to any claim that was adjudicated on the merits in State 21 court proceedings unless the adjudication of the claim (1) resulted in a 22 decision that was contrary to, or involved an unreasonable application 23 of, clearly established Federal law, as determined by the Supreme Court 24 of the United States; or (2) resulted in a decision that was based on an 25 unreasonable determination of the facts in light of the evidence 26 presented in the State court proceeding. 27 28 28 U.S.C. § 2254(d). As used in section 2254(d)(1), the phrase “clearly established federal law” 2 1 includes only the holdings, as opposed to the dicta, of Supreme Court decisions 2 existing at the time of the state court decision. Howes v. Fields, 565 U.S. 499, 505 3 (2012) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). 4 Under section 2254(d)(1), a state court’s determination that a claim lacks merit 5 precludes federal habeas relief so long as “fairminded jurists could disagree” about 6 the correctness of the state court’s decision. Harrington v. Richter, 562 U.S. 86, 101 7 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). This is true 8 even where a state court’s decision is unaccompanied by an explanation. In such 9 cases, the petitioner must show that “there was no reasonable basis for the state court 10 to deny relief.” Harrington, 562 U.S. at 98. Review of state court decisions under 11 § 2254(d)(1) “is limited to the record that was before the state court that adjudicated 12 the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). 13 Under section 2254(d)(2), relief is warranted only when a state court decision 14 based on a factual determination is “objectively unreasonable in light of the evidence 15 presented in the state-court proceeding.” Stanley v. Cullen, 633 F.3d 852, 859 (9th 16 Cir. 2011) (quoting Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004)). Finally, 17 state court findings of fact are presumed correct unless rebutted by clear and 18 convincing evidence. 28 U.S.C. § 2254(e)(1). 19 Petitioner’s claim was denied in a reasoned decision by the California Court 20 of Appeal. The California Supreme Court subsequently summarily denied review. 21 Thus, the California Court of Appeal’s decision constitutes the relevant state court 22 adjudication on the merits for purposes of the AEDPA. See Berghuis v. Thompkins, 23 560 U.S. 370, 380 (2010) (where state supreme court denied discretionary review of 24 decision on direct appeal, the decision on direct appeal is the relevant state-court 25 decision for purposes of the AEDPA standard of review). 26 Respondent points out that the California Court of Appeal did not expressly 27 cite federal law in its opinion, but argues that nothing rebuts the presumption that the 28 state court rejected the federal component of petitioner’s claim. (ECF No. 17 at 113 1 12.) Respondent relies upon Johnson v. Williams, 568 U.S. 289 (2013), in which the 2 Supreme Court held that “[w]hen a state court rejects a federal claim without 3 expressly addressing that claim, a federal habeas court must presume that the federal 4 claim was adjudicated on the merits – but that presumption can in some limited 5 circumstances be rebutted.” Johnson, 568 U.S. at 301. The Supreme Court explained 6 that the presumption may be rebutted in circumstances where “the state standard is 7 less protective” or “if the state standard is quite different from the federal standard, 8 and the defendant’s papers made no effort to develop the basis for the federal claim.” 9 Johnson, 568 U.S. at 302-303. 10 Here, petitioner does not contend, and nothing in the record suggests, that the 11 state court did not adjudicate the federal aspect of petitioner’s Marsden claim. Indeed, 12 the presumption is bolstered in the circumstances of this case because California law 13 regarding a defendant’s right to substitute counsel effectively incorporates the federal 14 Sixth Amendment standard. See Robinson v. Kramer, 588 F.3d 1212, 1216 (9th Cir. 15 2009) (“a claim that the trial court unconstitutionally denied a defendant’s Marsden 16 motion is in essence a claim that the trial court failed to recognize that the defendant’s 17 complaints as to his counsel were such that, if true, counsel’s performance fell below 18 the Sixth Amendment standard for effective assistance of counsel.”); Marsden, 19 2 Cal.3d at 123-124 (holding that when a criminal defendant alleges inadequate 20 representation, a trial court must conduct a hearing and that the failure to grant a 21 meritorious Marsden motion and replace counsel would violate the defendant’s Sixth 22 Amendment right to effective counsel) (citing, inter alia, Gideon v. Wainwright, 372 23 U.S. 335 (1963); Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962)). Therefore, in 24 denying petitioner’s Marsden claim, the California Court of Appeal necessarily 25 addressed petitioner’s Sixth Amendment claim. 26 Because the state court adjudicated the merits of petitioner’s federal claim, it 27 is entitled to deference under the AEDPA. See Johnson, 568 U.S. at 301 (where “the 28 state-law rule subsumes the federal standard – that is, if it is at least as protective as 4 1 the federal standard – then the federal claim may be regarded as having been 2 adjudicated on the merits”); see, e.g., Rose v. Hedgpeth, 735 F. App’x 266, 269 (9th 3 Cir. 2018) (where state court decision rejecting petitioner’s claim cited California 4 case law premised on the right to coun 5 Wainwright, 372 U.S. 335 (1963), this indicated that the state court “understood itself 6 to be deciding a question with federal constitutional dimensions,” … “and thus that 7 it resolved petitioner’s claim ‘on the merits,’ 28 U.S.C. § 2254(d).”) (quoting 8 Johnson, 568 U.S. at 305); Ortis v. Pfeiffer, 2018 WL 2021266, at *7 n.2 (C.D. Cal. 9 Mar. 8, 2018) (where state court addressed merits of Marsden claim without 10 expressly addressing the federal nature of petitioner’s claim and neither party 11 attempted to rebut presumption, federal court presumed federal claim was 12 adjudicated on the merits) (citing Johnson, 568 U.S. at 301), report and 13 recommendation adopted, 2018 WL 2041353 (C.D. Cal. Apr. 26, 2018). sel and which in turn cited Gideon v. DISCUSSION 14 15 A. Federal law 16 The Sixth Amendment right to counsel guarantees to an accused the 17 concomitant rights to conflict-free representation and the effective assistance of 18 counsel. See Wheat v. United States, 486 U.S. 153 (1988) (right to assistance of 19 counsel free of actual conflicts); Strickland v. Washington, 466 U.S. 668 (1984) (right 20 to the effective assistance of counsel). These rights may be infringed if an accused 21 and his counsel become embroiled in an “irreconcilable conflict.” See Stenson v. 22 Lambert, 504 F.3d 873, 886 (9th Cir. 2007) (“[F]orcing a defendant to go to trial with 23 an attorney with whom he has an irreconcilable conflict amounts to constructive 24 denial of the Sixth Amendment right to counsel.”); Daniels v. Woodford, 428 F.3d 25 1181, 1197 (9th Cir. 2005) (same). 26 At the same time, “[n]ot every conflict or disagreement between the defendant 27 and counsel implicates Sixth Amendment rights.” Schell v. Witek, 218 F.3d 1017, 28 1027 (9th Cir. 2000) (en banc) (citing Morris v. Slappy, 461 U.S. 1, 13-14, (1983) 5 1 (the Sixth Amendment does not guarantee a “meaningful relationship” between the 2 defendant and his counsel)). Instead, a conflict rises to the level of a constitutional 3 violation “only where there is a complete breakdown in communication between the 4 attorney and client, and the breakdown prevents effective assistance of counsel.” 5 Stenson, 504 F.3d at 886 (citing Schell, 218 F.3d at 1026). 6 The Ninth Circuit has recognized that a trial court’s denial of a motion to 7 relieve and/or substitute appointed counsel may implicate these Sixth Amendment 8 concerns. Schell, 218 F.3d at 1021 (“Normally, the essence of such a motion is that 9 appointed counsel’s representation has in some significant way fallen below the level 10 required by the Sixth Amendment.”); Bland v. California Dep’t of Corrections, 20 11 F.3d 1469, 1475-1476 (9th Cir. 1994), overruled in part on other grounds, Schell, 12 218 F.3d at 1025-1026. Accordingly, it has held that “the Sixth Amendment requires 13 on the record an appropriate inquiry into the grounds for such a motion, and that the 14 matter be resolved on the merits before the case goes forward.” Schell, 218 F.3d at 15 1025. In a federal habeas corpus proceeding, the ultimate question is not whether the 16 state trial court abused its discretion with regard to the motion to substitute counsel, 17 but 18 whether this error actually violated [petitioner’s] constitutional rights in 19 that the conflict between [petitioner] and his attorney had become so 20 great that it resulted in a total lack of communication or other significant 21 impediment that resulted in turn in an attorney-client relationship that 22 fell short of that required by the Sixth Amendment. 23 Schell, 218 F.3d at 1026. 24 B. 25 In its decision remanding the case to the trial court, the California Court of 26 The Marsden hearing Appeal explained: 27 Outside the presence of the jury, after the first two witnesses had 28 testified, the court stated: “I got a note [from the bailiff] this morning as 6 1 the jury was in the box and were ready to start the case [stating] 2 ‘Defendant says he wants to make a Marsden motion right now.’ I did 3 not recess the case for that purpose, and I just want to explain why. I felt 4 that it was untimely. We are in the middle of trial. I don't think that that’s 5 an appropriate time to make a Marsden motion, so that’s why the court 6 did not interrupt proceedings.” Defense counsel stated that “[t]his is the 7 first I have heard about it, Judge. I would have brought it to the court’s 8 attention.” The issue did not arise again. 9 People v. Lewis (“Lewis I”), 2015 WL 3474114, at *4 (Cal. Ct. App. June 2, 2015). 10 The state appellate court found that the trial court erred by denying petitioner’s 11 request for a Marsden hearing, but concluded that the proper remedy was a limited 12 remand to allow the court to conduct such a hearing. In addition, it instructed that in 13 conducting the hearing, “[t]he trial shall have discretion to consider defendant’s 14 complaint in light of the manner in which his counsel actually performed at trial.” 15 Lewis I, 2015 WL 347114, at *5. 16 On remand, the trial court held a Marsden hearing and inquired about 17 petitioner’s reasons for seeking substitute counsel. Petitioner explained that prior to 18 entering the courtroom on the first day of trial, he told his attorney, Leo B. Newton, 19 that he did not want him as counsel. Newton responded, “they’re ready to make a 20 deal, 27 years. You want to take that or we’re going to trial right now.” Newton then 21 turned and entered the courtroom. (ECF No. 22 (sealed reporter’s transcript of 22 Marsden hearing) at 3.) When the trial court asked petitioner to identify why he 23 believed Newton’s representation was deficient, petitioner answered that (1) counsel 24 failed to object when the prosecutor referred to petitioner as a “stupid criminal”; 25 (2) counsel allowed the victim to testify even though the victim was biased and an 26 admitted gang member; (3) counsel allowed the investigating officer to “badger” the 27 victim/witness by suggesting questions to the prosecutor during trial in order to get 28 the witness to alter his testimony; and (4) counsel did not hire an investigator and 7 1 never spoke to petitioner prior to trial. (ECF No. 22 at 4-8.) 2 The trial court asked Newton to respond to petitioner’s allegations. Newton 3 said that he did not recall the prosecutor calling petitioner a “stupid criminal.” (ECF 4 No. 22 at 8.) While Newton conceded that he did not hire a private investigator, he 5 explained that petitioner told him a version of events that did not “lineup” with the 6 video recording. Specifically, petitioner told Newton that he had been at the crime 7 scene, but when he realized there could be trouble with rival gang members, he called 8 a taxi and went home. Newton sought to confirm petitioner’s story and asked 9 petitioner what taxi company he used, but petitioner could not provide him with the 10 name of the company. Petitioner told Newton it was a “pirate cab.” When Newton 11 asked petitioner what phone number he had called, petitioner said he got the phone 12 number from a phone booth. When Newton asked petitioner which phone booth he 13 had used, petitioner told him he did not know. (ECF No. 22 at 9.) According to 14 Newton, he told petitioner that he could not suborn perjury and that he needed 15 evidence that could impinge the facts of the prosecution’s case. (ECF No. 22 at 8-9.) 16 Thus, Newton explained, he did not believe there was anywhere to send an 17 investigator. (ECF No. 22 at 9.) With respect to visiting petitioner, Newton affirmed 18 that he visited petitioner both in the courthouse and in jail. (ECF No. 22 at 10.) The 19 trial court asked Newton whether he observed an officer “badger” the prosecutor or 20 witnesses, and Newton responded that he did not. (ECF No. 22 at 10.) Finally, 21 Newton stated that he did not recall petitioner telling him that he did not want Newton 22 as counsel. Newton said that if petitioner had so indicated, Newton would have 23 informed the court. (ECF No. 22 at 10.) 24 The trial court remarked, “You’ve been an attorney for a very long time,” and 25 asked if Newton felt prepared to defend petitioner and whether he defended petitioner 26 to the best of his ability. Newton responded affirmatively. (ECF No. 22 at 10.) 27 After Newton offered his responses, the trial court asked petitioner if he had 28 anything else to add. Petitioner reiterated that he had made a proper Marsden motion 8 1 at the time of trial. The trial court acknowledged that it had erred by failing to conduct 2 a hearing at the time. (ECF No. 22 at 11.) 3 After hearing petitioner and Newton, the trial court concluded that petitioner’s 4 Marsden motion lacked merit. The trial court accepted Newton’s reason for declining 5 to employ an investigator. It noted that the evidence against petitioner was 6 overwhelming in light of the ankle monitor and the video recording of the crime. In 7 addition, the trial court remarked, “I don’t think it was especially wise to be engaged 8 in the activities that the trial evidence showed, but no one, that I can remember, called 9 him a stupid criminal.” (ECF No. 22 at 12.) Further, the trial court indicated that, 10 contrary to petitioner’s assertion, it did not observe the officer badgering the witness 11 during trial. Finally, the trial court explained that the victim was qualified to testify 12 notwithstanding his status as a gang member. Consequently, the trial court denied 13 petitioner’s Marsden motion and reinstated his conviction. (ECF No. 22 at 12-13.) 14 C. The California Court of Appeal’s decision 15 The California Court of Appeal affirmed the trial court’s ruling. It began by 16 restating the relevant law, which provides that a defendant is entitled to substitute 17 counsel if the record shows that appointed counsel “is not providing adequate 18 representation or that defendant and counsel have become embroiled in such an 19 irreconcilable conflict that ineffective representation is likely to result.” People v. 20 Lewis (Lewis II), 2017 WL 396679, at *4 (Cal. Ct. App. Jan. 30, 2017) (quoting 21 Marsden, 2 Cal.3d at 118). The state appellate then considered and rejected 22 petitioner’s claims as follows: 23 On appeal, defendant identifies four purported errors in the trial 24 court’s denial of his Marsden motion. First, he argues that the fact that 25 Newton did not recall defendant ever saying that he wanted a new 26 attorney shows there was a breakdown in the attorney-client 27 relationship. Second, defendant argues the court erred in asking Newton 28 about his own subjective belief regarding his representation of 9 1 defendant. Third, he contends the trial court improperly based its 2 decision on its knowledge of how Newton performed in other cases. 3 Finally, he contends that Newton’s failure to hire an investigator 4 demonstrates he failed to provide adequate representation. We find no 5 merit in any of these contentions. 6 Defendant’s first three claims of error are based, at least in part, 7 upon unreasonable interpretations of statements made at the Marsden 8 hearing. 9 For example, with regard to defendant’s request for a new 10 attorney, Newton said, “If he told me before we started trial that he 11 wanted – didn’t want me as an attorney, I would have indicated to the 12 court – I consider that is implying a Marsden motion request and I would 13 have told the court that, but I don't have any recollection of that ever 14 having been said.” Defendant interprets this statement to mean that 15 Newton claimed that defendant never made any request for new counsel 16 at the trial at all, and, in effect, called defendant a liar. Not so. A more 17 reasonable interpretation of Newton’s statement is that Newton did not 18 understand that defendant told him before trial that he did not want 19 Newton to be his attorney – presumably, because Newton did not hear 20 defendant when he purportedly made the statement, or because 21 defendant did not make any such statement to him. In either case, 22 Newton’s statement presented a credibility question between defendant 23 and Newton, and the trial court was entitled to accept Newton’s 24 explanation. (People v. Smith (1993) 6 Cal.4th 684, 696 [“To the extent 25 there was a credibility question between defendant and counsel at the 26 hearing, the court was ‘entitled to accept counsel’s explanation’”].) 27 Thus, we conclude the court did not abuse its discretion by impliedly 28 rejecting defendant’s claim that Newton intentionally ignored his 10 1 statement before the start of the trial. 2 Defendant’s second and third claims of error are based upon a 3 short, two-question, colloquy to which defendant ascribes much 4 importance. After asking Newton to respond to defendant’s assertions, 5 and hearing those responses, the following colloquy occurred: 6 “THE COURT: And now you’ve been around a long time and you’ve 7 been an attorney for a very long time. Did you believe in your mind that 8 you were prepared to pros – to defend this case? Did you believe you 9 were prepared to defend the case? 10 “NEWTON: Yes, Your Honor. 11 “THE COURT: And did you defend it to the best of your ability? 12 “NEWTON: I believe I did.” 13 The trial court made no further mention of Newton’s experience, and 14 there is no indication that the court relied upon either Newton’s belief 15 about his representation or the court’s purported knowledge of 16 Newton’s performance in other cases when it denied defendant’s 17 Marsden motion. Indeed, the court expressly stated its grounds for 18 denying the motion, all of which grounds were proper considerations for 19 the court in ruling on a Marsden motion. 20 In his final claim of error, defendant asserts that Newton’s failure 21 to hire an investigator resulted in inadequate representation because the 22 key issues at trial – defendant’s intent and knowledge as an aider and 23 abettor – “could have been affected by investigation.” He argues that 24 defense counsel “cannot properly forego investigation[ ] on the grounds 25 that [defendant] did not convince him of his innocence,” and that an 26 investigator could have interviewed witnesses and investigated the 27 scene. But Newton stated that he did not hire an investigator, not 28 because defendant did not convince him that he was innocent, but 11 1 because defendant told him a version of the events that was 2 incontrovertibly false, and Newton saw no reason to have an 3 investigator investigate that version of events. While defendant claims 4 that, even if there was no reason to investigate the version of events he 5 told Newton, an investigator nevertheless could have interviewed 6 witnesses and investigated the scene, he fails to identify how such an 7 investigation could have resulted in information relevant to the only real 8 issues at trial – whether defendant knew that the shooter intended to kill 9 and whether defendant intended to aid the shooter in the attempted 10 murder or assault with a firearm. We fail to see (and defendant does not 11 explain) how an investigator would assist in the defense, since the 12 relevant issues were based entirely upon what was in defendant’s mind 13 at the time of the offenses. We conclude that under the circumstances of 14 this case, Newton did not provide inadequate representation by failing 15 to hire an investigator, and that the trial court did not abuse its discretion 16 in finding defendant had failed to show good cause for his original 17 request to substitute new counsel. 18 Lewis II, 2017 WL 396679, at *4-5. 19 D. Analysis 20 Petitioner raises several claims of error with respect to his Marsden motion. 21 First, petitioner complains that by the time of the Marsden hearing – approximately 22 one year after his trial – the recollections of the trial court and Newton had 23 deteriorated. Petitioner contends that the deteriorated recollections rendered the 24 Marsden hearing inadequate to protect his rights. (ECF No. 1 at 24.) 25 Petitioner’s contention is belied by the record, which reveals that the trial court 26 conducted a thorough inquiry of petitioner’s reasons for requesting new counsel. At 27 the outset of the hearing, the trial court asked petitioner why he was dissatisfied with 28 Newton. It then proceeded to provide petitioner with ample opportunity to explain 12 1 his reasons. The trial court listened to petitioner’s reasons, asked appropriate follow- 2 up questions of both petitioner and Newton, and prior to ruling on petitioner’s motion 3 offered him a further opportunity to add “anything else.” (ECF No. 22 at 1-11.) 4 Nothing about the purportedly degraded recollections of the trial court or Newton 5 affected petitioner’s ability to present his complaints. The relevant question is 6 whether petitioner was given an opportunity to set forth reasons why he believed he 7 had an irreconcilable conflict or a complete breakdown in communication with trial 8 counsel. As reflected in the record, the trial court’s inquiry was adequate. See 9 Stenson, 504 F.3d at 887 (inquiry adequate where trial court held hearing in which it 10 vetted counsel’s reasons for strategy, considered lines of communication, and was 11 satisfied as to attorney’s competence); United States v. Prime, 431 F.3d 1147, 1155 12 (9th Cir. 2005) (“Because [the defendant] was given the opportunity to express 13 whatever concerns he had, and the court inquired as to [counsel’s] commitment to 14 the case and his perspective on the degree of communication, we find that the hearing 15 was adequate.”); Poe v. Felker, 2014 WL 10543233, at *13 (C.D. Cal. July 21, 2014) 16 (trial court made an adequate inquiry into Marsden motion by giving petitioner “an 17 ample opportunity to explain his reasons for asking to substitute counsel, by not 18 interrupting him or cutting him off, by asking his attorney to reply, by giving 19 [p]etitioner a further opportunity to respond, and by fully addressing [p]etitioner’s 20 specific complaints about his attorney before denying the motion”), report and 21 recommendation adopted, 2015 WL 6394453 (C.D. Cal. Oct. 21, 2015). 22 Next, petitioner contends that Newton effectively called petitioner a liar by 23 denying that he heard petitioner’s request for substitute counsel. (ECF No. 1 at 24- 24 25.) According to petitioner, Newton’s failure to either notice or recall petitioner’s 25 statement that he wanted new counsel constitutes proof of a complete breakdown in 26 the attorney-client relationship. (ECF No. 1 at 25-26.) 27 As an initial matter, the record does not support petitioner’s characterization 28 of Newton’s statements. Petitioner seems to contend that Newton said that he did not 13 1 recall the trial court receiving a note from petitioner during trial in which petitioner 2 requested a Marsden hearing. (ECF No. 1 at 26.) Newton never made such a 3 statement. Instead, during the Marsden hearing, Newton stated: 4 If he told me before we started trial that he wanted – didn’t want me as 5 an attorney, I would have indicated to the court – I consider that is 6 implying a Marsden motion request and I would have told the court that, 7 but I don’t have any recollection of that ever having been said. 8 (ECF No. 22 at 9-10.)2 9 The remainder of petitioner’s argument is based upon his assumption that 10 Newton actually heard petitioner’s request but deliberately ignored it. The trial court, 11 however, implicitly rejected such a version of events. The state court’s factual finding 12 was not unreasonable in light of the evidence presented to the state court, so it is 13 entitled to a presumption of correctness. See 28 U.S.C. §§ 2254(d)(2) & 2254(e)(1); 14 Taylor v. Maddox, 366 F.3d 992, 1000-1001 (9th Cir. 2004). Finally, notwithstanding 15 petitioner’s interpretation of it, Newton’s inability to recall a request petitioner 16 allegedly made a year earlier is insufficient to demonstrate that the attorney-client 17 relationship had broken down at the time of trial. See, e.g., Plumlee v. Masto, 512 18 F.3d 1204, 1210-1211 (9th Cir. 2008) (en banc) (defendant’s dissatisfaction at poor 19 relationship with counsel based on subjective distrust that counsel was not acting in 20 defendant’s best interest did not create “conflict” requiring appointment of substitute 21 counsel under Sixth Amendment). 22 Petitioner also complains that the trial court improperly relied upon its 23 generally favorable estimation of Newton’s past performance, as well as Newton’s 24 own opinion about his performance at petitioner’s trial. (ECF No. 1 at 27-28.) As the 25 26 27 28 The Court notes that Newton’s statement at the Marsden hearing is consistent with his statement at the time the trial court put on the record that it had received a note from petitioner requesting substitute counsel. At that time, Newton remarked, “this is the first I have heard about it, Judge. I would have brought it to the court’s attention.” (RT 356.) 2 14 1 California Court of Appeal reasonably concluded, however, the trial court did not 2 purport to base its ruling upon either Newton’s opinion that he did his best to 3 represent petitioner or its own knowledge of Newton’s prior performance. Rather, 4 the trial court explicitly addressed petitioner’s specific reasons for his request for 5 substitute counsel and found each reason to be lacking. (See ECF No. 22 at 11-12.) 6 In support of his claim, petitioner also reiterates his complaint that Newton 7 failed to object when the prosecutor called petitioner a “stupid criminal.” (ECF No. 8 1 at 28.) As set forth above, neither the trial court nor Newton recalled the prosecutor 9 calling petitioner a “stupid criminal,” and petitioner has failed to point to anything in 10 the record to support his allegation. Respondent raises the possibility that petitioner’s 11 claim is based upon the prosecutor’s closing argument. (ECF No. 17 at 20 n.6.) To 12 the extent that this is the basis for petitioner’s claim, it lacks merit. 13 During closing argument, defense counsel argued that the prosecution failed 14 to prove that petitioner knew that his fellow gang member intended to shoot at rival 15 gang members. According to defense counsel, it did not make sense that petitioner 16 would conspire to commit a crime when he knew that because of his ankle bracelet, 17 he could be placed at the crime scene. (Reporter’s Transcript on Appeal (“RT”) 646- 18 647.)3 In rebuttal, the prosecutor argued: 19 As to the ankle bracelet on, criminals do stupid things. You’re not here 20 to decide if he is a smart criminal, you are here to decide if he is a 21 criminal. [¶]There is [sic] cameras everywhere. Everybody knows 22 there’s [sic] cameras everywhere nowadays. He has a GPS monitor on. 23 Was it stupid? [¶] Sure, but criminals do stupid things all the time, and 24 that’s not what this case is. 25 26 27 28 The Court refers to the Reporter’s Transcript as lodged by respondent in petitioner’s prior federal petition. (See Case No. CV 16-8073-SJO (AFM), ECF No. 16.) 3 15 1 (RT 649.)4 2 The prosecutor’s argument on rebuttal was not improper, and therefore, 3 counsel’s failure to object could not have been deficient. See Cunningham v. Wong, 4 704 F.3d 1143, 1159 (9th Cir. 2013) (prosecutors have reasonable latitude in 5 fashioning closing arguments and may argue reasonable inferences based upon the 6 evidence, “including that one of the two sides is lying”) (quoting United States v. 7 Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)); United States v. Henderson, 241 8 F.3d 638, 652 (9th Cir. 2001) (“Prosecutors have considerable leeway to strike ‘hard 9 blows’ based on the evidence and all reasonable inferences from the evidence.”) 10 (citations omitted)); see also, Demirdjian v. Gipson, 832 F.3d 1060, 1073 (9th Cir. 11 2016) (“We have repeatedly held that, absent egregious misstatements, failing to 12 object to error during closing argument falls within the wide range of reasonable 13 assistance.”) (internal quotation marks and citation omitted). More importantly, 14 Newton’s failure to object to the prosecutor’s rebuttal argument does not demonstrate 15 a total lack of communication or a breakdown in the attorney-client relationship. 16 Petitioner’s complaint that Newton failed to hire an investigator fares no better. 17 Petitioner has not shown that the decision not to hire an investigator constituted 18 deficient performance. As set forth above, the trial court explicitly accepted as valid 19 Newton’s explanation for his decision – that is, Newton believed an investigator 20 would not be useful because the video recording contradicted petitioner’s patently 21 false version of events. In addition, as the state appellate court explained, the issue at 22 trial was petitioner’s state of mind at the time of the shooting, and petitioner failed to 23 explain how an investigator could have benefitted his defense. Although petitioner 24 might have disagreed with Newton’s assessment regarding the benefit of an 25 investigator, petitioner has failed to demonstrate that Newton’s decision was outside 26 27 28 The Court has reviewed the trial transcript, and this is the only instance of the prosecutor referring to anything or anyone as “stupid.” 4 16 1 the range of reasonable professional assistance. As the Ninth Circuit has explained, 2 “[d]isagreements over strategical or tactical decisions do not rise to level of a 3 complete breakdown in communication.” Stenson, 504 F.3d at 886. 4 In sum, the trial court conducted an adequate inquiry that failed to reveal an 5 irreconcilable conflict or a complete breakdown in communication resulting in the 6 constructive violation of petitioner’s Sixth Amendment right to counsel. It follows 7 that the state court’s determination of petitioner’s claim is neither contrary to, nor an 8 unreasonable application of, clearly established federal law. See, e.g., Larson v. 9 Palmateer, 515 F.3d 1057, 1066-1067 (9th Cir. 2008) (no Sixth Amendment 10 violation where petitioner’s motion for substitute counsel failed to establish any 11 conflict, but rather, petitioner “complained solely about his counsel’s strategic 12 decisions and lack of communication with him”); LaGrand v. Stewart, 133 F.3d 13 1253, 1276-1277 (9th Cir. 1998) (rejecting claim of denial of substitute counsel based 14 upon “inadequate time in meetings and of gloomy predictions by trial counsel,” 15 noting that the record revealed no “total failure of communication.”). CONCLUSION 16 17 18 IT IS THEREFORE ORDERED that the petition be denied, and this action be dismissed with prejudice. 19 20 DATED: 11/16/2018 21 22 23 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 17
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