(HC) Vargas v. Pliler, No. 1:2003cv06622 - Document 104 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS to Deny the 22 First Amended Petition for Writ of Habeas Corpus; Enter Judgment for Respondent and Decline to Issue a Certificate of Appealability signed by Magistrate Judge Sandra M. Snyder on 03/28/2011. Referred to Judge Wanger; Objections to F&R due by 5/2/2011. (Flores, E)
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(HC) Vargas v. Pliler Doc. 104 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 JASON MARTINEZ VARGAS, 11 Petitioner, 12 v. 13 CHERYL PLILER, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:03-cv—06622-OWW-SMS-HC FINDINGS AND RECOMMENDATIONS TO DENY THE FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 22) FINDINGS AND RECOMMENDATIONS TO ENTER JUDGMENT FOR RESPONDENT AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 16 17 Petitioner is a state prisoner proceeding with counsel with 18 a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 19 2254. 20 pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 304. 21 Pending before the Court is Petitioner’s claim that his Sixth and 22 Fourteenth Amendment rights were violated when his trial counsel 23 allegedly slept through substantial portions of the trial 24 proceedings. 25 I. 26 27 28 The matter has been referred to the Magistrate Judge Background A. Procedural Summary Petitioner was convicted in Kern County Superior Court of four counts of second degree robbery (Cal. Pen. Code § 212.5(c)). 1 Dockets.Justia.com 1 (CT 243.) 2 personal use of a firearm in the commission of robbery (Cal. Pen. 3 Code § 12022.53) and commission of an offense in association with 4 a criminal street gang (Cal. Pen. Code § 186.22).1 5 trial occurred from January 17, 2001, through January 22, 2001 6 (RT 62-563); thereafter, allegations concerning enhancement of 7 sentence pursuant to Cal. Pen. Code § 12022.1 were tried to the 8 Court and found not proven (RT 564-75). 9 Petitioner was ultimately sentenced to a term of twenty-nine (29) 10 11 The jury also found true enhancements based on years and four (4) months in prison. The jury On October 23, 2001, (Supp. CT 22.) Petitioner filed a direct appeal with the California Court 12 of Appeal for the Fifth Appellate District (DCA), which affirmed 13 the judgment. 14 California Supreme Court, which the court denied without a 15 statement of reasoning or authority. 16 Petitioner filed a petition for review with the On April 15, 2003, Petitioner filed a petition for writ of 17 habeas corpus with the Kern County Superior Court. 18 denied the petition on May 14, 2003, on the merits and 19 with a citation to In re Swain, 34 Cal.2d 300, 303-304 (1949), 20 and In re Duvall, 9 Cal.4th 464, 474 (1995). 21 that Petitioner had failed to state with particularity the facts 22 on which relief was sought and had failed to provide reasonably 23 available documentary evidence demonstrating that, as a The court The court reasoned 24 1 25 26 27 28 Cal. Pen. Code § 186.22 provided for a ten-year enhancement of sentence for the commission of a violent offense such as robbery for the benefit of, at the direction of, or in association with a criminal street gang and with the specific intent to promote, further, or assist in criminal conduct by gang members. Cal. Stats. 1997, c. 500, § 2, amended by Initiative Measure, Prop. 21, § 4, approved March 7, 2000. A criminal street gang was defined as any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of specified criminal acts, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. § 186.22(f). 2 1 demonstrable reality, there was a reasonable probability that but 2 for allegedly ineffective assistance of trial counsel, the 3 results of the case would have been more favorable. 4 K, 2.) 5 6 7 8 9 10 11 12 13 14 (Ans., Ex. The court stated: Petitioner has failed to state sufficient facts to show that his trial counsel (sic) his counsel’s falling asleep prejudiced his case. Petitioner failed to submit any facts and/or documentary evidence as to the specific number of times that counsel fell asleep, during what portions of the trial he fell asleep, how long he was asleep, or how specifically counsel’s falling asleep affected defense of Petitioner’s case. Petitioner, therefore, failed to show as a demonstrable reality that had counsel not fallen asleep the trial would have proceeded differently and that Petitioner would have received a better result. While Petitioner makes a specific reference in the trial transcript to one instance where counsel allegedly fell asleep, Petitioner fails to attach a copy of that portion of the transcript, so the Court cannot make any determination as to the circumstances surrounding this particular instance. As Petitioner failed to show he was prejudiced by his trial counsel’s falling asleep to make this Motion, Petitioner has failed to make a prima facie case for relief. 15 (Ans., Ex. K, 2.) 16 On June 16, 2003, Petitioner filed a second petition for 17 writ of habeas corpus with the Kern County Superior Court. 18 Petitioner alleged that during the trial, his counsel slept 19 through portions of the prosecutor’s examination of adverse 20 witness Frank Gonzales’ testimony; had to be jarred awake by 21 Petitioner in order to object to the prosecutor’s solicitation of 22 testimony Petitioner considered irrelevant (with counsel 23 objecting in coming awake and acknowledging that he had been 24 asleep and had missed the question and answer posed by the 25 prosecutor (citing RT 281: 23-24); and thereby slept through 26 substantial and significant portions of the proceedings and 27 denied Petitioner his right to representation by counsel during 28 3 1 every critical stage of the proceedings. 2 court denied the petition because Petitioner had failed to state 3 a prima facie case for relief; the court also denied the petition 4 because it was successive, citing In re Clark, 5 Cal.4th 750, 768 5 (1993). 6 (Ans. Ex. L, 4.) The (Ans., Ex. M.) On August 4, 2003, Petitioner filed a petition for writ of 7 habeas corpus in the DCA, raising the issue of counsel’s 8 ineffective assistance based on sleeping and relying on 9 essentially the same facts as in the previous habeas petitions 10 filed in the trial court. 11 under penalty of perjury that he personally observed the conduct 12 during trial. 13 281 of the reporter’s transcript, in which the prosecutor asked 14 Gonzales, a gang expert, if it would be significant to him if he 15 heard from Mario Bravo’s mother that Bravo had grown up in the 16 Okie neighborhood and had long known Jason Vargas and Lee 17 Estrada; Petitioner’s counsel objected, stated that he did not 18 think they had heard that testimony, and stated, “I may have been 19 asleep.” 20 and asked that it be rephrased. 21 summarily denied the petition without a statement of reasoning or 22 authority on August 28, 2003. 23 (Ans. Ex. N, 4.) (Id., verification.) Petitioner declared Petitioner relied on page The trial court sustained the specifics of the question (Ans., Ex. N, Ex. A.) The DCA (Ex. O.) On September 23, 2003, Petitioner filed a similar petition 24 for writ of habeas corpus in the California Supreme Court. 25 court denied the petition without a statement of reasoning or 26 authority on June 30, 2004. 27 28 The (Ans., Exs. P, Q.) Petitioner filed the original petition in this proceeding on November 12, 2003. On November 22, 2004, a first amended 4 1 petition (FAP) was filed in which Petitioner alleged that his 2 trial counsel was ineffective because of numerous perceived 3 inadequacies in his representation of Petitioner before and 4 during the jury trial. 5 the FAP on February 18, 2005 (doc. 26); Petitioner filed a 6 traverse on April 13, 2005 (doc. 33). 7 this Court denied Petitioner’s FAP. 8 (Doc. 22, 6A-6D.) Respondent answered On September 26, 2006, (Docs. 52, 54.) On an appeal taken by Petitioner, the Court of Appeals for 9 the Ninth Circuit affirmed the denial of the FAP except with 10 respect to the issue of the alleged ineffective assistance of 11 trial counsel based on counsel’s sleeping through a substantial 12 portion of the trial proceedings: 13 14 15 16 17 18 19 20 21 22 23 Vargas argues that he was denied the effective assistance of counsel, in violation of the Sixth Amendment, as a result of his trial counsel’s sleeping during a substantial portion of the trial. Vargas alleges facts that, if true, may amount to a violation of his right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 680-96 (1984); United State v. Cronic, 466 U.S. 648, 659-60 (1984). Respondent Pliler asks us to assume that counsel was asleep--for how long or through what portion of the trial we do not know-but to conclude nevertheless that Vargas suffered no prejudice. Such a assumption would force us to engage in a series of speculations to answer a serious question about an important constitutional right. We conclude that Vargas’s claim cannot be resolved by reference to the state court record in this case. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Nor should it be resolved in the manner the state proposes. We, therefore, remand to the district court to conduct an evidentiary hearing. 24 (Doc. 69, 2.) 25 this Court on July 20, 2009. 26 27 28 B. The mandate of the Court of Appeals was filed in Factual Summary 1. General Transactional Facts In the previous findings and recommendations (doc. 52, 2:145 1 15), this Court found that the DCA correctly summarized the facts 2 in its appellate opinion, and it adopted the factual recitations 3 set forth by the DCA in its brief summary of the evidence, which 4 was as follows: 5 6 7 8 9 10 11 12 13 14 15 Vargas and three or four of his friends, all members of the Okie Baker criminal street gang, went swimming in the Kern River. The victims, Michael, Rudolpho, Julio, and Jose, parked about 50 yards from Vargas’s group. The Vargas group drove up to the victims and jumped out of their car. Vargas immediately displayed a gun and told the victims not to resist, or he would “buck” (i.e., shoot) them. Vargas watched his friends assault the victims and steal numerous items of nominal value, including the keys to Michael’s car. Comments were made about the Okie Bakers’ superiority to people from the victims’ hometown. The perpetrators escaped in their car. Unfortunately for Vargas, one of the victims spent time in juvenile hall with one of the perpetrators. The sheriff’s department was called and the perpetrators were quickly identified. Vargas eluded arrest for approximately two months. (Answer to FAP, Ex. G, Op. of DCA, 2.) 16 2. 17 18 Trial Court Proceedings a. Evidentiary Background On the stand, victim Jose Rosas identified Petitioner as a 19 perpetrator who had displayed a gun to everyone present at the 20 scene of the crime and had said he was going to “buck” the group 21 of victims; further, Petitioner had hit Michael Kent. 22 90, 110.) 23 line-up and testified that Petitioner had been introduced as 24 “Chango.” 25 robbery had said they were from “Okie,” but Rosas did not know if 26 it was a gang or not. 27 28 (RT 79-84, Rosas also identified Petitioner in a photographic (RT 90-91, 93, 99.) Further, the perpetrators of the (RT 115.) Victim Michael Kent identified the four perpetrators as including Lee Estrada; Mario Bravo; and Petitioner, who had a 6 1 revolver in his waistband and took it out and waved it around; 2 another person wore an “Okie” hat and was introduced as “Chango.” 3 One of them had identified his group as “Okie Bakers” and talked 4 “trash” about people from Wasco, and Petitioner had hit Kent. 5 (RT 116, 118, 120, 123-24, 126-31, 134-35, 137-39.) 6 identified Petitioner and Bravo in a photographic line-up. 7 131-34.) 8 like a necklace hanging down. (RT 134-35.) 9 Kent (RT Kent saw that one of the men bore a tattoo that looked Victim Julio Gallardo testified that one of the perpetrators 10 had a nickname or street name of “Chango,” and it was not 11 Petitioner who had the tattoo and wore the Okie hat. (RT 156, 12 161-62, 167-68.) 13 person with the gun who had instructed the victims not to hit his 14 friends back or he would “buck” them; Petitioner also took the 15 keys that operated the victims’ vehicle, and Petitioner might 16 have been the one introduced as “Chango.” 17 183, 186, 196-98.) Gallardo also identified Petitioner as the (RT 169-72, 176-77, 18 Petitioner’s mother, Mary Castro Vargas, testified that 19 Mario Bravo grew up with her son in the Cottonwood or “Okie” 20 neighborhood; Petitioner was known by the nickname “Jay Dogg,” 21 but she had not heard him referred to by that name, and she had 22 never heard anyone call him “Chango.” 23 Petitioner’s counsel objected to the admission of hearsay 24 testimony concerning what Mario Bravo’s mother had told 25 Petitioner’s mother concerning their plan to go to the lake on 26 August 15, 2000, the day of the offenses. 27 28 (RT 202, 204-05, 208-09.) (RT 203, 207-08.) Mario Bravo’s mother, Delia Cisneros, testified that Mario Bravo had left her house mid-day in her car bound for the Kern 7 1 River and Hart Park, the scene of the offenses; her car matched 2 witnesses’ description of the car carrying the perpetrators. 3 209-12.) 4 grown up together for four or five years, and her son had known 5 Lee Estrada for seventeen years. 6 (RT Cisneros testified that her son and Petitioner had (RT 213-14.) Petitioner’s counsel objected to hearsay concerning Mario 7 Bravo’s statement regarding his intention to go to Hart Park and 8 regarding Petitioner’s mother’s conversation with Cisneros on the 9 day in question. (RT 212, 214-215.) He also objected on hearsay 10 grounds to statements made by the victims to an investigating 11 officer. 12 had stated the perpetrator who wielded the gun had a tattoo on 13 his neck. 14 evidence offered by investigators. 15 knowledge].) 16 established that neither Gallardo nor Kent had been positive of 17 their identifications of the person with the gun. 18 254.) 19 20 21 22 (RT 224.) An investigating officer testified that Kent (RT 226-27.) Petitioner’s counsel objected to other (RT 253 [lack of personal Counsel cross-examined the investigators and b. (RT 241-42, Testimony of Frank Gonzales Frank Gonzales was the ninth of twelve witnesses for the prosecution. (RT 256-305.) Bakersfield Police Officer Frank Gonzales testified that he 23 had formalized training through official state bodies and 24 unofficial law enforcement associations to prepare for 25 specialization in gang crimes; his training had covered Hispanic 26 turf gangs, their use of weapons, their mode of narcotics use and 27 sales, subjects of importance to the gangs, how to identify gang 28 members, and gang rivalries. He had spoken with many types of 8 1 law enforcement officers and had five and one-half years of 2 experience as a law enforcement officer and two and one-half 3 years of experience on the street enforcement unit, which focused 4 on gang crime and performed a highly visible patrol in known gang 5 areas. 6 In the course of his work, Gonzales identified gang members 7 and gathered intelligence on the interrelationships of local 8 Bakersfield gangs. 9 (300) to five hundred (500) gang members and had discussed their (RT 255-58.) He had met about three hundred 10 membership, turfs, rivalries, graffiti, and tattoos; further, 11 Hispanic turf gangs were tied with a prison gang that called the 12 shots from prison on to the street, and local rivalries 13 disappeared when gang members were in prison, where Hispanics all 14 became allied. 15 turf gangs: the northerns or Nuestra Familia, from Delano and 16 northward, and the “Sureno” or southern gang, from south of 17 Delano. 18 Southerners had “Sur” or “Sur 13" tattooed on them. 19 (RT 259-62.) (RT 262.) There were two groups of Hispanic Northerners had “14" tattooed on them, and (RT 263-64.) Gonzales had learned from talking to experts and ten (10) to 20 fifteen (15) members of the gang that the “Okie” or “Okie Baker” 21 Gang was one of the five largest turf gangs in Bakersfield; its 22 territory was the county or unincorporated part of Bakersfield, 23 and membership was mostly determined by school attendance or 24 growing up in the area. 25 the Okie Bakers were murder, assault with a deadly weapon, 26 possession of firearms, burglary, possession of narcotics for 27 sale, carjacking, and witness intimidation; they would also 28 commit robberies. (RT 264-66.) (RT 272-73.) The primary activities of Gonzales knew of fatal shootings 9 1 sparked by gang rivalries. 2 an expectation that members would commit crimes as desired by 3 other gang members and would not cooperate with the police if 4 apprehended. 5 membership by death, incarceration, or total dissociation from 6 the gang and gang turf. 7 (RT 278.) (RT 267-72.) Gang membership carried It was possible to terminate gang (RT 276-77.) Factors considered in identifying active gang membership 8 included admitting gang affiliation, identification by reliable 9 sources or rival gang members, gang tattoos, the frequency of 10 contacts with a person in gang territory, field interview cards 11 reflecting gang indicia and probation or parole status, 12 associates, clothing reflecting gang indicia, and past criminal 13 activities. 14 outright, but previously incarcerated gang members might deny 15 membership or give addresses outside of gang turf because of 16 knowledge of increased penalties for criminal activities in 17 furtherance of gangs. 18 Younger gang members might admit membership (RT 273-76.) Gonzales opined that on August 15, 2000, there were more 19 than three members of the Okie Bakers; based on documented 20 admissions, associations, prior apprehensions for criminal 21 activity in May and August 2000 in Okie territory and in the 22 presence of other gang members, and the robberies in question, 23 Gonzales opined that Lee Estrada was an Okie member. 24 278-80, 289.) 25 Bravo’s gang membership the use of a firearm in both the robbery 26 in question and in others reported by the sheriff, and Bravo’s 27 active, physical striking the victims. 28 participants (Estrada and Petitioner) were identified gang (RT 273, Gonzales found significant with respect to Mario 10 Further, two of the co- 1 members. (RT 280-81.) 2 When Gonzales was asked if it would be significant to him if 3 he heard from Bravo’s mother that Mario Bravo had grown up in the 4 Okie neighborhood and had long known Petitioner and Estrada, 5 Petitioner’s counsel stated: 6 Objection. I don’t think we’ve heard that testimony. I may have been asleep. 7 (RT 281.) The court sustained the objections with respect to the 8 “specifics of that question.” The prosecutor then rephrased the 9 question to ask if it would be significant to Gonzales if he 10 learned that Mario Bravo grew up in the Okie neighborhood with 11 Petitioner and Lee Estrada; Gonzales answered, “Yes.” (RT 281.) 12 With respect to Petitioner’s gang membership, Gonzales found 13 significant his having contacted Petitioner at least once within 14 the gang turf and Gonzales’s having observed gang tattoos on him 15 in the late spring or early summer of 2000. (RT 281-82.) 16 Gonzales also testified that he had found gang-related tattoos on 17 Petitioner’s upper arm and neck, and he had reviewed photographs 18 and associated field interview cards concerning Petitioner, 19 including one dated March 26, 2000, that documented Petitioner’s 20 tattoos, monikers of “Jay Dogg” and “Mr. Chango,” and his 21 admission of being a member of the Okie Baker Gang at the time. 22 (RT 284-88.) Based on those factors, and on Lee Estrada’s 23 membership in the gang, Gonzales opined that on August 15, 2000, 24 Petitioner was a member of the Okie Baker Gang. (RT 288.) 25 When the prosecutor asked Gonzales if he had read police 26 reports mentioning Petitioner and if any of them was significant 27 to him, Petitioner’s counsel objected “[u]nder 801" unless the 28 11 1 reports were deemed reliable. 2 witness to respond, and when Gonzales answered, “Yes,” the 3 prosecutor asked how many he had reviewed and why they were 4 significant. 5 unless the reports were deemed reliable information under 801, 6 and the court sustained the objection. 7 questions the prosecutor attempted to elicit what information in 8 the reports was significant to Gonzales in giving an opinion as 9 to gang membership, but Petitioner’s counsel continued to object (RT 282.) The Court permitted the Petitioner’s counsel objected to the evidence (RT 283.) With two more 10 on the basis that there was a lack of foundation as to what 11 Gonzales considered significant. 12 prosecutor asked to approach the side bar and to direct the court 13 to case law, the court sustained defense counsel’s objection and 14 asked the prosecutor to move on, noting that there had been 15 several days for the prosecutor to do that, but he had not done 16 it. 17 (RT 283-84.) When the (RT 284.) Gonzales also opined that on August 15, 2000, Lee Estrada 18 was an active member of the Okie Baker Gang. 19 one unidentified person who had been in the car with Petitioner 20 was also considered to have been a gang member because he wore a 21 hat that said “Okie” on it. 22 person was also a gang member because gangs did not let 23 unaffiliated persons participate in crimes due to a lack of trust 24 and loyalty. (Rt 289.) (RT 288.) Further, The other unidentified (RT 290.) 25 Gonzales further opined that the robberies were committed 26 with the intent of furthering the Okie Gang and its reputation 27 because the crime was committed with numerous Okie affiliates, 28 the multiple victims were from out of town, the firearm was used 12 1 to instill fear, and all the circumstances combined to result in 2 notoriety, respect, and fear towards the gang from rival gang 3 members. 4 crimes, and the location of the crime outside of the gang turf 5 simply reflected the opportunistic nature of the transaction. 6 (RT 290-91.) 7 Further, the Okie Gang respected commission of such Petitioner’s counsel continued to make objections during the 8 examination of Gonzales (RT 291), and he cross-examined Gonzales 9 concerning the information on the field interview cards, the 10 characteristics of the Okie Baker Gang and of street gangs in 11 general, the modus operandi of sharing of the proceeds of gang 12 thefts, the independence of various gang members in committing 13 offenses, the source of Gonzales’s information, the gang 14 characteristics or membership of the victims, and the process of 15 dissociation from a gang. 16 (RT 292-302.) Defense counsel stipulated to Petitioner’s having Okie 17 Bakers tattoos, opposed introduction of parts of photographic 18 evidence for which there was no foundation, and expressed concern 19 that inadmissible photographic evidence not be inadvertently 20 shown to the jury. 21 (RT 313, 316, 321.) At the conclusion of the prosecution’s case, defense counsel 22 answered that he was ready to proceed with the defense case and 23 waived opening statements. 24 Estrada, a minor with whom his investigator had spoken but with 25 whom counsel had not spoken, as a defense witness. 26 testified to going to the lake and having known Petitioner and 27 Bravo since early childhood. 28 that on the day of the robberies, Petitioner smoked more than (RT 317, 319.) He presented Lee (RT 318, 322-23.) 13 Estrada He testified 1 enough PCP not to know what he was doing; further, neither 2 Petitioner nor anyone else in his group had a gun except for 3 Estrada himself, who was drunk and had an unloaded gun with an 4 inoperable trigger; Estrada showed the gun to the Wasco group 5 while Petitioner was at the car unable to stand because of 6 intoxication, and Estrada took some food; then the group left. 7 (RT 324-34.) 8 never heard anyone call him “Chango” or “Mr. Chango.” 9 Petitioner was known as “Jay Dogg,” but Estrada had On cross-examination, Estrada admitted having lied to law 10 enforcement officers who had arrested him and questioned him 11 about the offense; he had denied having been present or having 12 seen a gun on anyone, and he admitted having told an officer that 13 either Mario Bravo or Petitioner had the gun. 14 Further, he had not told officers that Petitioner was “wasted” on 15 PCP. 16 keys, and clothing from the Wasco group and had been a gang 17 member for about a year based on having grown up in the area. 18 (RT 343-46, 349.) 19 (RT 346-47.) (RT 340-43.) He testified that he had stolen food, car Defense counsel objected occasionally during cross- 20 examination of Estrada. (RT 342, 344.) 21 counsel clarified that Estrada had not been asked by officers if 22 Petitioner had been on PCP, and Estrada’s failure to admit that 23 he himself had the gun was because of fear. 24 On redirect, defense (RT 351-52.) Defense counsel also called Mario Bravo, who testified he 25 had grown up with Petitioner and Estrada. 26 testified that his group was about forty yards from the Wasco 27 group until they were leaving, when Bravo punched Lopez because 28 they were looking at him wrong and saying things. 14 (RT 355.) Bravo Petitioner did 1 not have a gun, and his nickname was “Jay Dogg,” but Bravo had 2 never heard him called “Chango,” or “Mr. Chango.” 3 On cross-examination, Bravo denied knowing if Petitioner had a 4 gun, and he testified that Petitioner did not hit anyone or do 5 any drugs that day; he was completely sober. 6 denied that he or Estrada was a gang member or that he had known 7 or said that Petitioner was an Okie. 8 9 (RT 361-64.) (RT 367-69.) Bravo (RT 371-72.) Defense counsel made one objection during cross-examination of Bravo. (RT 376.) 10 Defense investigator Joe Serrano testified for the defense 11 that during an interview, Julio Gallardo of Wasco had stated to 12 him that the person with the gun was called “Chango,” or Mario 13 Bravo. 14 he interviewed Estrada, Estrada had said nothing concerning 15 Petitioner’s having smoked PCP or having been “catatonic on drugs 16 or alcohol,” and Estrada explained that he had never really told 17 an officer that Petitioner was probably the one with the gun. 18 (RT 383-84.) 19 had not asked Estrada about Petitioner’s sobriety. 20 (RT 377-79.) On cross-examination he testified that when Defense counsel clarified on direct that Serrano (RT 384.) Defense counsel told the trial judge that his last witness 21 would be Petitioner after he was informed of his rights again. 22 (RT 385.) 23 objected to some of the prosecutor’s instructions. 24 Counsel requested some special instructions and (RT 395-99.) Petitioner testified that his nickname was “Jay Dogg,” but 25 he had never been known as, and never told an officer that he had 26 been known as, “Chango,” which meant “monkey.” 27 He had been at the lake but never met and was never introduced to 28 any of the Wasco group; he had been high on PCP and remembered 15 (RT 403, 409.) 1 only a little of that day, but he had not had or exhibited a gun. 2 He did not recall hitting anyone, and he did not help anyone rob 3 the people from Wasco. 4 he did not know why, and it was not to back up his fellow gang 5 members. 6 Estrada’s house, drank a few bears, and then went to the home of 7 Greg Mendoza to help him take care of his children. 8 stayed there for two months. 9 did not know sheriff’s officers were looking for him, but he 10 11 He remembered getting out of the car but (RT 404-06, 412-13, 417.) Afterwards he went to Lee (RT 419-20.) admitted that when found, he was hiding. Petitioner He testified that he (RT 420.) Petitioner described the gang as a barbecue club of a bunch 12 of home boys “kicking it,” and it was about trust, but it was not 13 about violence. 14 deadly enemies and that he had several Okie tattoos, including 15 one that said “Okie Makes the World Go Round,” which had 16 signified dedication to the neighborhood, but it no longer meant 17 anything to him. 18 (RT 413-14.) He admitted that the Okies had (RT 414-15.) On cross-examination, Petitioner admitted having joined the 19 Okie Bakers in the eighth grade, but he was no longer a member at 20 the time of the robberies; he did not recall when he decided to 21 leave the gang but did so in order to become a father and 22 believed it was between March and May 2000, before his daughter’s 23 birth on September 19, 2000. 24 recall whether or not he told officers he was a gang member in 25 March 2000 or had nicknames that included “Chango.” 26 He continued to associate with gang members until his arrest, and 27 he admitted having been arrested on July 8, 2000, for having 28 “ditched” a knife in the heart of Okie territory. (RT 407-08, 417.) 16 He did not (RT 408-10.) (RT 411.) 1 On redirect, Petitioner testified that he got the tattoos 2 between the ages of thirteen (13) and seventeen (17) but did not 3 see the need to take them off. 4 (RT 421.) The prosecution’s rebuttal witnesses included Bakersfield 5 Police Officer Clayton Madden, who testified that on July 9, 6 2000, on an occasion when Petitioner was taken into custody, 7 Petitioner stated he was an Okie member whose name was “Jay 8 Dogg,” and he had been “jumped in” to the gang for four years. 9 (RT 422-25.) On cross-examination, Petitioner’s counsel 10 established that Petitioner did not state that his nickname was 11 “Chango.” (RT 425.) 12 Another rebuttal witness, Bakersfield Police Officer Claudia 13 Payne, testified that when in March 2000 she came into contact 14 with Petitioner, who was a passenger in a car stopped in 15 connection with a traffic violation, she and her partner 16 photographed Petitioner and made a field interview card 17 documenting the nicknames he reported, which included “Jay Dogg” 18 and “Mr. Chango.” 19 “Jason,” and “Mr. Chango” was what he was called when he was 20 younger. 21 Petitioner told her that “Jay” referred to He also admitted that he was a gang member. On cross-examination, Petitioner’s counsel brought out the 22 fact that Payne had not listed the “Chango” moniker on the field 23 interview card. 24 (RT 427-32.) Deputy Sheriff Smallwood was recalled and testified on 25 rebuttal that when he had come into contact with Lee Estrada on 26 August 15, 2000, he had not coerced him or his statements and had 27 not told him that he knew that Petitioner had the gun; Estrada 28 spoke with him willingly. When informed he was being arrested, 17 1 Estrada initially told him that Mario or Jason (Petitioner) would 2 have had the gun because they were older, but then he said that 3 Petitioner was probably the one with the gun and that he had run 4 up and got in the victim’s face. 5 Petitioner had been smoking PCP or was intoxicated; Estrada did 6 not say that he himself was the one with the gun. 7 Estrada did not mention that (RT 433-37.) During direct examination of Smallwood, Petitioner’s counsel 8 objected to the scope of a question posed to Smallwood and made 9 numerous hearsay objections that were sustained. (RT 433, 435- 10 36.) 11 told Smallwood that he did not see a gun and that Smallwood had 12 not inquired into the state of Petitioner’s sobriety. 13 38.) 14 On redirect, Petitioner’s counsel established that Estrada (RT 437- Deputy Melanson was recalled and testified on rebuttal that 15 when he contacted Mario Bravo on August 15, 2000, at Bravo’s 16 residence, he asked Bravo if Petitioner was a member of the Okie 17 Gang, and Bravo told Melanson that Petitioner “claim[edl] Okie.” 18 Bravo also admitted that Bravo had taken a bucket of beer from 19 the guys from Wasco. 20 Petitioner’s counsel, Melanson testified that Bravo had told him 21 that Petitioner’s moniker was “Jay Dogg.” 22 asked, Bravo said no one had a gun, and Bravo did not name 23 Petitioner as having taken anything. 24 (RT 438-49.) On cross-examination by Further, when first (RT 439-40.) Deputy Sheriff William Thomas Little, Jr., testified as a 25 rebuttal witness. 26 Petitioner on August 13, 2000, in a residence near Cottonwood 27 that bore indicia of gang membership, including several rosters 28 of members of the Okie Bakers Gang. Officer Little first became acquainted with 18 The contact followed a call 1 regarding brandishing a firearm. 2 learned that Petitioner was wanted two days later, he made 3 repeated efforts to locate Petitioner at his residence, his 4 girlfriend’s house, and another address; he informed his mother 5 and girlfriend that he was looking for him. 6 Petitioner on October 13, 2000, hiding under a bed in the back 7 bedroom of a house in Bakersfield. 8 9 (RT 440-44.) When the deputy The officer found (RT 443-44.) During the examination of Officer Little, Petitioner’s counsel lodged an objection, and on cross-examination, counsel 10 established that the officer did not believe that Petitioner was 11 residing in the house with the gang roster written on the wall. 12 (RT 445.) 13 At the conclusion of the testimony, the Court ordered the 14 afternoon recess and stated that the court intended to “try to 15 get started as close to 3:19 and a half” as possible. 16 There was a short colloquy concerning abstracts that constituted 17 documentary evidence of two gang shootings that were the subject 18 of Officer Gonzales’s testimony. 19 Petitioner’s counsel demonstrated a memory of the pertinent 20 portion of Gonzales’s testimony that surpassed that of both the 21 prosecutor and the trial judge. 22 explained to the court that he had to run off and do something 23 else and then come back to argue the case; he had been put in the 24 position of having to argue late on a Friday afternoon before 25 with disastrous results, and he requested to argue the case on 26 Monday. 27 28 (RT 446.) In that discussion, (RT 447-48.) Counsel then A short colloquy followed: MR. QUICK [defense counsel]: That is what I’m saying. I’m very fatigued at the end of the week, and I do not feel prepared to start 19 1 to argue this afternoon. If I have to, I will. But I really--and I had this other case, and I can’t remember the name of it, and it was disaster, and the same thing happened and I got sent out to take care of, take care of a readiness. 2 3 4 THE COURT: You’re not going to leave this courtroom. I don’t know– 5 MR. QUICK: Oh, okay. I’m talking about--I’ve been ordered to Department 4. 6 7 THE COURT: Well, Department 4 probably will be here at 4:30. 8 MR. QUICK: Okay. THE COURT: That’s not a problem as far as I’m concerned. MR. Quick: break. I thought I was supposed to go there at the 11 12 THE COURT: I’m ordering you to stay here. 13 MR. QUICK: Maybe we could get that case sent over here and take the plea. 9 10 14 THE COURT: Take one thing at a time. too high on that. 15 16 Don’t get your hopes As far as you’re here to prepare for any closing statement you might need to address here. You may not. I don’t know how long Mr. Hamilton is going to go. He may take the rest of the afternoon. 17 18 MR. HAMILTON: Can I? 19 THE COURT: I don’t care. We’re going forward on this case. Nobody else has any priority over this courtroom, period. No if’s, but’s about it. Put out the signals everybody stays place (sic) in this courtroom until they are relieved of their responsibilities. 20 21 22 (RT 449.) 23 After a brief recess, closing arguments commenced. (RT 449- 24 50.) The prosecutor argued that the robbery was a gang 25 phenomenon and that the gang members had lied to “help their home 26 boy, Jason Vargas....” (RT 451.) The prosecutor reviewed all 27 the evidence and the charged offenses and enhancements, and he 28 20 1 requested that the jury return with a guilty finding as to 2 robberies and true findings as to the enhancements involving gun 3 use and furtherance of gang activity. 4 5 (RT 450-78.) When the prosecutor had completed his argument, Petitioner’s counsel stated: 6 Yes, I really would like to put off my argument until Monday if I could. 7 (RT 478.) The court stated that it was unknown how long argument 8 was going to be and that it was appropriate for defense counsel 9 to go ahead and get started at that point. (RT 478.) 10 Defense counsel then began his closing argument. (RT 478- 11 86.) He suggested that there was no gun or alternatively that if 12 there was a gun, Estrada had it. (RT 479-80.) Counsel suggested 13 that the victims might have falsely claimed that Petitioner had a 14 gun in order to save face over having submitted to Petitioner’s 15 group. (RT 478-79, 492.) He pointed out an inconsistency 16 between Gonzales’s testimony that he had not heard of gang 17 rosters being on walls, and Officer Little’s testimony that he 18 saw such a roster at an Okie Baker residence. (RT 479-80.) He 19 attacked the foundation of Gonzales’s opinions, and he argued the 20 concept of reasonable doubt. (RT 480-82.) He argued the 21 inconsistency of the photographic evidence of tattoos and victim 22 Kent’s testimony concerning what tattoos were observed; he 23 questioned the gang membership status of the victims. (RT 482- 24 84.) Petitioner’s counsel’s closing argument was then 25 interrupted for the weekend break. (RT 485-86.) 26 At a conference the following Monday morning held outside 27 the jury’s presence, Petitioner’s counsel requested an 28 21 1 instruction on voluntary intoxication, the specific intent 2 involved in robbery, the lesser included offense of petty theft, 3 the gang enhancement, and eyewitness identifications. 4 89.) 5 (RT 487- Petitioner’s counsel completed closing argument, discussing 6 mental state and specific intent, and describing the order in 7 which the issues on the verdict forms were to be addressed. 8 argued that the jury could consider Petitioner’s intoxication in 9 determining whether he had the specific intent for robbery. 10 11 He (RT 491-93.) The prosecutor completed his final closing argument, 12 discussing each potential argument or defense, including the 13 presence of a gun, reasonable doubt, the irrelevance of victim 14 Lopez’s gang membership to Petitioner’s guilt, the totality of 15 the evidence that Petitioner and his co-participants were gang 16 members, the identity of the person who wielded the gun, 17 Petitioner’s state of mind and intoxication, weighing 18 discrepancies in witnesses’ testimony, discerning what lies were 19 told on the stand, and the need for unanimity in the theory of 20 guilt. 21 (RT 493-509.) During the jury’s deliberations, defense counsel anticipated 22 a problem concerning the logistics of obtaining an alternate 23 juror for the second, post-verdict stage of the bifurcated 24 proceedings that would pertain to additional enhancements 25 relating to Petitioner’s status of being on bail when the 26 offenses occurred; Petitioner ultimately waived a jury for the 27 bifurcated proceedings, and the court found the additional 28 enhancements not true. (RT 539-52, 567-75.) 22 1 2 3. Evidence Introduced at the Evidentiary Hearing On October 14, 2010, an evidentiary hearing was held before 3 the undersigned Magistrate Judge at which Petitioner appeared 4 with his counsel, Carolyn D. Phillips, and Respondent was 5 represented by Paul E. O’Connor of the Office of the Attorney 6 General of the State of California. 7 Petitioner testified that he was present during the entire 8 trial seated at the left side of his trial counsel, George Wright 9 Quick. During the testimony of Officer Frank Gonzales, 10 Petitioner noticed Quick’s eyes were closed, and he observed 11 Quick’s head back and mouth slightly open, and Petitioner could 12 tell that Quick was asleep. 13 immediately nudged Quick, who then stated that he objected and 14 made a statement regarding his having been asleep. 15 did not observe Quick’s eyes closed during any other point in the 16 trial. 17 (RTEH 16-19.2) Petitioner Petitioner (Id. at 17.) On cross-examination, Petitioner testified that although he 18 had voiced many complaints about his trial counsel and had made 19 several motions to relieve his appointed counsel, he did not 20 complain to the trial judge when he observed Quick asleep because 21 he did not know it was “a violation of the jury trial.” 22 18:11-18.) 23 (RTEH George Wright Quick testified that he had been an attorney 24 since 1971, and he recalled representing Petitioner at the trial 25 held in 2001 pursuant to the court’s appointment. (RTEH 20-21.) 26 27 28 2 Case references are to the internal page numbers in the transcript of the evidentiary hearing as distinct from the page numbers assigned by the Court in document 93, the document containing the transcript that was filed in this Court. 23 1 Although before Petitioner’s trial Quick had participated in 2 about forty (40) to fifty (50) trials as defense counsel, he had 3 never fallen asleep at trial and had never been disciplined by 4 the State Bar of California. 5 reviewed the trial transcripts before testifying. 6 29, 34.) (Id. at 21, 28, 34.) He had (Id. at 21, 7 Quick was fatigued at the end of the week of trial and 8 sought to postpone his closing argument until Monday so he could 9 gather his thoughts and try to make a coherent presentation. He 10 had not had any surgery, tooth extractions, or dental work other 11 than going to the hygienist during the week of the trial. 12 not recall having difficulty sleeping and took no sleep aids or 13 medication to deal with stress or anxiety. 14 He did (Id. at 22-25.) Quick recalled that during the testimony of gang expert 15 Gonzales, he objected and said, “I don’t think we’ve heard that 16 testimony; I may have been asleep.” 17 Quick had not been asleep; rather, he was being sarcastic and was 18 joking. 19 not the words that had been presented to the jury. 20 29.) 21 (RTEH 27, 31.) However, He objected because the words used in the question were (Id. at 28- Quick delivered his closing argument over the course of two 22 court days, a Friday and a Monday, and he was tired on Friday. 23 (Id. at 30.) 24 take care of another matter during the trial because he had a 25 problem of not being able to switch gears from one proceeding to 26 another proceeding; at least he did not have that problem in 27 Petitioner’s case. 28 preferred to have begun his closing on Monday because he was very He asked not to be sent out to another courtroom to (Id. at 31.) 24 Although he would have 1 fatigued, including being mentally fatigued, Quick gave a portion 2 of argument on Friday and believed it was a competent closing 3 argument, although it was not the argument he would liked to have 4 made if he had been given the weekend to prepare. 5 33.) 6 was not tired. 7 concerning his having fallen asleep occurred probably the day 8 before he began argument. 9 (Id. at 32- Quick gave the remainder of the argument on Monday, when he (Id. at 32.) He believed that the comment (Id. at 35-36.) Petitioner requested that the Court take judicial notice of 10 portions of the reporter’s transcript of trial (vol. 1, p. 281 11 [counsel’s objection and comment concerning having been asleep], 12 and vol. II, pp. 448 [pre-argument statement concerning being 13 very fatigued and not feeling prepared to start to argue that 14 afternoon] and 478 [pre-argument statement that he would really 15 like to put off argument until Monday]). 16 (Id. at 36-37.) Respondent presented the testimony of the trial judge, the 17 Honorable Clarence Westra, who had reviewed the trial transcript. 18 (RTEH 38-39.) 19 in the judge’s line of sight, as Gonzales testified, and Westra 20 did not observe Quick asleep during any portion of Gonzales’s 21 testimony. 22 point at which he looked at Quick, but he recalled looking at 23 Quick and at his location at counsel’s table, although he was not 24 looking at Quick the entire time that Gonzales was testifying. 25 (Id. at 48.) 26 During the trial, Westra observed Quick, who was (Id. 40-41.) Westra did not recall any specific Westra recalled the testimony because of his concern that 27 the examination of the expert proceed properly. 28 recalled Quick’s argument, during which Quick did not appear to 25 (Id.) Westra 1 be fatigued; Westra recalled nothing about the way Quick 2 presented himself or discussed the case that caused Westra to 3 believe that Quick was fatigued to the point of not being able to 4 continue. 5 appearing to be falling asleep, despite Westra’s general effort 6 to make sure during trials that everyone in the courtroom, 7 including counsel, was awake. 8 starting to fall asleep during a trial, his practice was not to 9 call attention to his observation, but to state to the jury that (Id. at 42.) He did not observe Quick drifting off or If Westra observed someone 10 it was appropriate to take a recess, and he would then recess the 11 proceedings and investigate the problem. 12 Petitioner’s case. 13 an attorney was under stress in closing argument, but he did not 14 do so in Petitioner’s case. 15 He did not do that in He would take the same action if he felt that (Id. at 43-44.) On cross-examination, Westra recalled that there were 16 objections to the gang expert’s qualifications but not 17 necessarily to his opinions. 18 (Id. at 44-45.) The redacted declaration of Garrett Hamilton (Jt. Ex. 1), 19 the prosecutor at trial, was admitted into evidence for all 20 purposes. (RTEH 2-3.) 21 recalled Petitioner’s case and the participants in the trial, and 22 he had reviewed portions of the trial transcript. 23 not remember seeing Mr. Quick asleep or being fatigued during 24 closing argument. 25 statement about not hearing testimony and perhaps having been 26 asleep, Hamilton did not remember being there and hearing the 27 statement. 28 Hamilton had with Mr. Quick when Hamilton was in the Kern County Hamilton declared that he generally Hamilton did After reviewing Mr. Quick’s objection and (Doc. 83, 4.) In the “several if not numerous cases” 26 1 District Attorney’s Office, Quick had been an experienced and 2 capable opponent in criminal matters. 3 (Id.) Respondent’s counsel represented that he had interviewed but 4 decided not to call additional witnesses who had no pertinent 5 recollection regarding counsel’s sleeping, including the Superior 6 Court clerk and reporter, and the gang expert witness, Officer 7 Gonzales. 8 she did not intend to call any other witnesses. 9 10 11 II. (RTEH 8-9.) Petitioner’s counsel likewise stated that (RTEH 9.) Legal Standards A. Relief pursuant to 28 U.S.C. § 2254 Because the petition was filed after April 24, 1996, the 12 effective date of the Antiterrorism and Effective Death Penalty 13 Act of 1996 (AEDPA), the AEDPA applies to the petition. 14 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 15 1484, 1499 (9th Cir. 1997). 16 Title 28 U.S.C. § 2254 provides in pertinent part: 17 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– Lindh v. 18 19 20 21 22 23 24 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 25 26 27 28 (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption 27 1 or correctness by clear and convincing evidence. 2 The petitioner bears the burden of establishing that the 3 decision of the state court was contrary to, or involved an 4 unreasonable application of, the precedents of the United States 5 Supreme Court. 6 Cir. 2004); Baylor v.Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). 7 A state court’s decision contravenes clearly established 8 Supreme Court precedent if it reaches a legal conclusion opposite 9 to the Supreme Court's or concludes differently on an Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th 10 indistinguishable set of facts. 11 362, 405-06 (2000). 12 Court precedent or have been aware of it, "so long as neither the 13 reasoning nor the result of the state-court decision contradicts 14 [it]." 15 unreasonably applies clearly established federal law if it either 16 1) correctly identifies the governing rule but then applies it to 17 a new set of facts in a way that is objectively unreasonable, or 18 2) extends or fails to extend a clearly established legal 19 principle to a new context in a way that is objectively 20 unreasonable. 21 2002); see, Williams, 529 U.S. at 408-09. 22 is unreasonable if it is objectively unreasonable; an incorrect 23 or inaccurate application of federal law is not necessarily 24 unreasonable. 25 26 Williams v. Taylor, 529 U.S. The state court need not have cited Supreme Early v. Packer, 537 U.S. 3, 8 (2002). B. The state court Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. An application of law Williams, 529 U.S. at 410. Ineffective Assistance of Counsel 1. General Standards 27 The law governing claims concerning ineffective assistance 28 of counsel is generally clearly established for the purposes of 28 1 the AEDPA deference standard set forth in 28 U.S.C. § 2254(d). 2 Canales v. Roe, 151 F.3d 1226, 1229 n.2 (9th Cir. 1998). 3 To demonstrate ineffective assistance of counsel in 4 violation of the Sixth and Fourteenth Amendments, a convicted 5 defendant must show that 1) counsel’s representation fell below 6 an objective standard of reasonableness under prevailing 7 professional norms in light of all the circumstances of the 8 particular case; and 2) unless prejudice is presumed, it is 9 reasonably probable that, but for counsel’s errors, the result of 10 the proceeding would have been different. 11 Washington, 466 U.S. 668, 687-94 (1984); Lowry v. Lewis, 21 F.3d 12 344, 346 (9th Cir. 1994). 13 omissions of counsel that are alleged to have been deficient. 14 Strickland, 466 U.S. 690. 15 that is applied on direct appeal and in a motion for a new trial. 16 Strickland, 466 U.S. 697-98. 17 Strickland v. A petitioner must identify the acts or This standard is the same standard In determining whether counsel’s conduct was deficient, a 18 court should consider the overall performance of counsel from the 19 perspective of counsel at the time of the representation. 20 Strickland, 466 U.S. at 689. 21 counsel’s conduct was adequate and within the exercise of 22 reasonable professional judgment and the wide range of reasonable 23 professional assistance. There is a strong presumption that Strickland, 466 U.S. at 688-90. 24 In determining prejudice, a reasonable probability is a 25 probability sufficient to undermine confidence in the outcome of 26 the proceeding. 27 a trial, the question is thus whether there is a reasonable 28 probability that, absent the errors, the fact finder would have Strickland, 466 U.S. at 694. 29 In the context of 1 had a reasonable doubt respecting guilt. 2 695. 3 before the fact finder and determine whether the substandard 4 representation rendered the proceeding fundamentally unfair or 5 the results thereof unreliable. 6 696. 7 Strickland, 466 U.S. at This Court must consider the totality of the evidence Strickland, 466 U.S. at 687, A court need not address the deficiency and prejudice 8 inquiries in any given order and need not address both components 9 if the petitioner makes an insufficient showing on one. 10 Strickland, 466 U.S. at 697. 11 12 2. Counsel’s Sleeping It has been held that when an attorney for a criminal 13 defendant slept through a substantial portion of a trial when 14 evidence against the defendant was being heard, the conduct was 15 inherently prejudicial, and thus no separate showing of prejudice 16 was necessary. 17 Cir. 1984) (citing Holloway v. Arkansas, 435 U.S. 475, 489-91 18 (1978) [holding that improperly requiring joint representation of 19 co-defendants by counsel with potential conflicts of interest 20 demanded automatic reversal based on prejudice being presumed] 21 and Rinker v. County of Napa, 724 F.2d 1352, 1354 (9th Cir. 22 1983)). 23 unconscious or sleeping attorney is equivalent to no counsel at 24 all due to the inability to consult with the attorney, receive 25 informed guidance during the course of the trial, or permit 26 testing of credibility of witnesses on cross-examination. 27 834 (citing Geders v. United States, 425 U.S. 80, 88 (1976) 28 [regarding sequestration of the defendant from his counsel during Javor v. United States, 724 F.2d 831, 833-34 (9th Prejudice is inherent in such circumstances because an 30 Id. at 1 trial between his direct and cross-examination]). 2 what the attorney does not do, and such harm is either not 3 readily apparent on the record, or occurs at a time when no 4 record is made. The harm is in Javor at 834. 5 The court in Javor distinguished cases involving specific 6 acts or particularized instances of misconduct of counsel from 7 cases where there is an absence of counsel; the latter cannot be 8 evaluated under the normal standards. 9 Id. at 835. It has been held that where an attorney has not been 10 sleeping or dozing during a substantial portion of the trial and 11 may not have been sleeping at all, Javor is inapposite, and the 12 petitioner has burden of showing prejudice. 13 777 F.2d 482, 484 (9th Cir. 1985). 14 U.S. v. Petersen, Similarly, in a recent case in this district, the Court held 15 that a state prison inmate was not entitled to habeas relief 16 where the inmate failed to meet his burden to establish that 1) 17 his trial counsel slept through a substantial portion of the 18 trial or 2) he was prejudiced by defense counsel’s allegedly 19 deficient conduct (consisting of counsel’s appearance of 20 sleepiness and admitted tiredness at the penalty phase of the 21 trial, as well as about a dozen specific omissions) or that the 22 result of the proceedings would have been different had counsel 23 made specific objections to the prosecutor’s argument. 24 v. Wong, No. 1:95-cv-05309-AWI, 2010 WL 289181 (E.D. Cal, Jan. 25 15, 2010). 26 whether counsel was asleep through a substantial portion of the 27 trial, and if so, such conduct was inherently prejudicial; if 28 not, the case presented a standard ineffective assistance claim Berryman The Court determined that the only factual issue was 31 1 under Strickland. 2 controlling authority that established that sleeping during a 3 substantial portion of the trial was tantamount to structural 4 error under Arizona v. Fulminante, 499 U.S. 379, 407 (1991). 5 The Court stated that Javor was the However, in Berryman, it was held that where counsel denied 6 having slept during the proceedings, counsel’s having been 7 observed as fleetingly inattentive or having closed his eyes 8 three to five times during a trial enduring over a month, did not 9 meet the “substantial portion” threshold, and thus the presumed 10 prejudice standard did not apply. 11 that Petitioner did not establish actual prejudice with respect 12 to about a dozen specific omissions of counsel. 13 Wong, 2010 WL 289181, *5-*9. 14 Additional analysis reflected Berryman v. Here, the additional, allegedly ineffective omissions of 15 counsel that were previously before this Court and the Ninth 16 Circuit were not the subject of the remand; only the sleeping 17 issue was remanded. 18 19 20 III. Analysis A. Clearly Established Federal Law Respondent argues that there is no clearly established 21 federal law concerning a test for the ineffective assistance of 22 counsel that governs a case such as the present in which it is 23 alleged generally that counsel has slept through substantial or 24 critical portions of the trial proceedings. 25 the absence of any Supreme Court decision in such a case. 26 Respondent points to In considering the present petition, this Court must first 27 decide what constitutes “clearly established Federal law, as 28 determined by the Supreme Court of the United States” within the 32 1 meaning of § 2254(d)(1). 2 (2003). 3 of decisions of the Supreme Court as of the time of the relevant 4 state court’s decision. 5 (2000). 6 set forth by the Supreme Court at the time of the state court 7 decision. Lockyer v. Andrade, 538 U.S. 63, 71 The term refers to the holdings, as distinct from dicta, Williams v. Taylor, 529 U.S. 362, 412 It is thus the governing legal principle or principles Lockyer v. Andrade, 538 U.S. 63, 71-72. 8 A Supreme Court case must squarely address an issue, its 9 cases must provide a categorical or clear answer to the question, 10 or its cases must clearly extend to the factual context in 11 question; if a principle must be modified in order to be applied 12 to a case, it is not clearly established federal law for the 13 purpose of that case. 14 (2008); Carey v. Musladin, 549 U.S. 70, 76-77 (2006); Moses v. 15 Payne, 555 F.3d 742, 752, 754 (9th Cir. 2009). 16 Wright v. Van Patten, 552 U.S. 120, 124-26 In Moses, the court noted that a state court must apply 17 legal principles established by a Supreme Court decision when a 18 case falls squarely within those principles, but not in cases 19 where there is a structural difference between the prior 20 precedent and the case at issue, or when the prior precedent 21 requires tailoring or modification to apply to the new situation. 22 Moses, 555 F.3d at 753. 23 Court cases concerning clearly established federal law emphasize 24 that § 2254(d)(1) “tightly circumscribes” the granting of habeas 25 relief. 26 The Court concluded that the Supreme Id. at 753-54. Here, in Javor, the Court of Appeals for the Ninth Circuit 27 determined the applicability of the principle of attributing 28 inherent prejudice to the absence of counsel to a factual 33 1 situation involving counsel’s sleeping during critical or 2 substantial stages of trial at which there is a right to counsel. 3 Javor v. United States, 724 F.2d 831, 833-34 (9th Cir. 1984) 4 (citing Holloway v. Arkansas, 435 U.S. 475, 489-91 (1978) 5 [holding that improperly requiring joint representation of co- 6 defendants by counsel with potential conflicts of interest 7 demanded automatic reversal based on prejudice being presumed]). 8 9 Although only Supreme Court holdings qualify under § 2254(d)(1), circuit court precedent may be persuasive in 10 demonstrating what law is clearly established and whether a state 11 court applied that law unreasonably. 12 486, 494-95 (9th Cir. 2010). 13 principle of inherent prejudice from Supreme Court cases 14 concerning the absence of effective counsel and applied it to a 15 situation involving an unconscious attorney. 16 that an unconscious or sleeping attorney during substantial trial 17 proceedings is equivalent to no counsel at all due to the 18 inability to consult with the attorney, receive informed guidance 19 during the course of the trial, or permit testing of credibility 20 of witnesses on cross-examination. Javor v. United States, 724 21 F.2d at 834. 22 Maxwell v. Roe, 628 F.3d The court in Javor extracted the The court reasoned This reasoning is consistent with a line of Supreme Court 23 cases which applies a presumption of inherent prejudice to cases 24 involving significant absence of counsel in place of Strickland’s 25 analysis of prejudice resulting from specific omissions of 26 counsel. 27 presumption of prejudice set forth in United States v. Cronic, 28 466 U.S. 648 (1984) applies when the likelihood that any lawyer, The Supreme Court has indicated that the 34 1 even a fully competent one, could provide effective assistance is 2 so small that a presumption of prejudice is appropriate without 3 inquiry into the actual conduct of the trial, including 4 situations involving the complete denial of counsel, such as 5 where counsel is totally absent, prevented from assisting the 6 accused during a critical stage of the proceeding, or where 7 counsel entirely and completely fails to subject the prosecutor’s 8 case to meaningful adversarial testing. 9 552 U.S. 120, 124 (2008) (citing Cronic, 466 U.S. at 658-60). 10 Wright v. Van Patten, In Wright v. Van Patten, the Court determined that despite 11 decisions concerning the complete absence of counsel at the time 12 a defendant enters his plea, there was no decision squarely 13 addressing the issue of whether counsel’s presence via speaker 14 phone should be treated as a complete denial of counsel and thus 15 be tested pursuant to Cronic instead of Strickland. 16 U.S. at 125. 17 provided a categorical answer to the question nor pointed toward 18 one, and thus the state court’s decision could not be said to be 19 an unreasonable application of clearly established federal law. 20 Id. at 125-26. 21 Wright, 552 The Court concluded that its own cases neither Here, the phenomenon of counsel sleeping during critical or 22 substantial trial proceedings falls squarely within the 23 parameters of the Cronic principle because regardless of an 24 attorney’s technical presence at the site of a trial and 25 potential competence if conscious, an unconscious attorney 26 logically cannot provide effective assistance and necessarily 27 fails entirely and completely to submit the prosecutor’s case to 28 meaningful adversarial testing during the period of 35 1 unconsciousness. 2 A case need not be factually identical to one decided by the 3 Supreme Court in order for the law to be clearly established. 4 Pannetti v. Quarterman, 551 U.S. 930, 948-53 (2007) (applying a 5 procedural principle requiring a prisoner seeking a stay of an 6 execution who has made a substantial threshold showing of 7 insanity to have a fair hearing to a death row prisoner 8 challenging his execution on the grounds of mental incompetence). 9 In Carey v. Musladin, 549 U.S. 70, 72-77 (2006), the Court 10 held that a state court decision that a defendant was not 11 inherently prejudiced when spectators at his trial wore buttons 12 depicting the murder victim was not contrary to or an 13 unreasonable application of clearly established federal law in 14 the absence of a United States Supreme Court precedent as to the 15 potentially prejudicial effect of spectators’ courtroom conduct 16 on fair trial rights, and thus a grant of habeas relief was 17 incorrect. 18 prejudice from the conduct of government agents or employees at 19 trial, it concluded that the effect on a defendant’s fair-trial 20 rights of spectator conduct was an open question in the 21 jurisprudence of the Court because the Court had never addressed 22 a claim that such conduct by a private actor was so inherently 23 prejudicial that it deprived a defendant of a fair trial. 24 76. 25 the state court to apply any particular test, it could not be 26 said that the state court unreasonably applied clearly 27 established federal law. 28 Although the Court had issued decisions concerning Id. at Thus, because there was no holding of the Court requiring Id. at 77. Unlike the situation in Carey v. Musladin, the present case 36 1 does not involve factual differences that raise distinct policy 2 issues or require any modification of the governing principle. 3 In Javor, the Court applied the presumption of inherent 4 prejudice to a situation in which counsel slept during 5 substantial portions of trial proceedings at which the accused 6 had a right to the assistance of counsel. 7 clearly established standards set forth in Strickland and Cronic. 8 The Court concludes that Javor embodies legal principles that 9 were clearly established federal law within the meaning of The decision rested on 10 § 2254(d)(1) at the time of the pertinent state court 11 proceedings. 12 If this conclusion is erroneous, and if there was no clearly 13 established federal law concerning counsel’s sleeping during 14 substantial trial proceedings, then the state court’s decision 15 was not contrary to or an unreasonable application of clearly 16 established federal law under § 2254(d)(1). 17 549 U.S. 70, 77 (2006). 18 B. 19 Carey v. Musladin, Extent of Counsel’s Sleeping The Court of Appeals cited Strickland and Cronic and 20 remanded the case for this Court to hold an evidentiary hearing 21 to determine whether Petitioner’s counsel slept during the trial, 22 how long he slept, and through what portions of the trial. 23 court declined to engage in speculation “to answer a serious 24 question about an important constitutional right.” 25 expressly concluded that Petitioner’s claim could not be resolved 26 by reference to the state court record in this case, citing 27 Schriro v. Landrigan, 550 U.S. 465, 474 (2007). 28 portion of Schriro v. Landrigan, the Court instructed that in 37 The The court In the cited 1 deciding whether an evidentiary hearing is appropriate, a court 2 must consider whether the state court record resolves the issues. 3 The parties disagree regarding the degree of deference to be 4 accorded to the state court decision concerning Petitioner’s 5 claim. 6 acknowledged by the Supreme Court. 7 U.S. 649, 653 (2004). 8 9 Uncertainty and diverging views on this subject have been See, Holland v. Jackson, 542 The state trial court concluded that in his first petition, Petitioner had failed to state sufficient facts to show that he 10 had been prejudiced because he had failed to submit facts or 11 documentary evidence concerning the specifics of counsel’s 12 sleeping and its effect on his rights. 13 state trial court denied the second petition after Petitioner 14 alleged sleeping through portions of the examination of an 15 adverse witness and having missed a question and answer posed to 16 the witness because, in part, Petitioner had failed to state a 17 prima facie case for relief. 18 court and highest state courts summarily denied relief based on 19 essentially the same facts plus Petitioner’s declaration under 20 penalty of perjury regarding his personal observations and one 21 page of transcript. 22 (Ans., Ex. K, 2.) (Ans., Ex. M.) The The state appellate (Ans., Ex. N, Ex. A; Exs. O-Q.) Petitioner prayed for evidentiary hearings in his state 23 court petitions (Ans., Exs. J, L, N, P), but it does not appear 24 that Petitioner received an evidentiary hearing. 25 state courts refused Petitioner an evidentiary hearing, no 26 deference to state court fact findings is implicated or required. 27 Nunes v. Mueller, 350 F.3d 1045 (9th Cir. 2003); Killian v. 28 Poole, 282 F.3d 1204, 1208 (9th Cir. 2002). 38 Because the 1 Further, in light of the Ninth Circuit’s finding that the 2 state court record was inadequate to determine the remaining 3 issue in this case, this Court will proceed to consider the 4 evidentiary development in the proceedings held in this Court as 5 mandated by the Court of Appeals.3 6 If believed, Petitioner’s evidence would establish at most 7 that his trial counsel fell asleep momentarily for one instance 8 during the examination of the gang expert, then awoke, and then 9 lodged an objection and proceeded with the trial. 10 However, the Court finds that Petitioner’s testimony 11 concerning having observed this alleged instance of 12 unconsciousness was not credible. 13 The Court’s finding is based in part on the Court’s 14 observation of Petitioner during his testimony, including his 15 demeanor and the substance of his testimony. 16 Petitioner, who is serving a lengthy sentence for conviction 17 of an offense which the evidence strongly supported, is highly 18 motivated to represent the events in a way that would warrant a 19 reversal of his conviction without the necessity of any 20 consideration of prejudice. 21 22 23 24 25 26 27 28 3 "The law of the case doctrine is a judicial invention designed to aid in the efficient operation of court affairs." Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir.1990). Under the doctrine, a court is generally precluded from reconsidering an issue previously decided by the same court, or a higher court in the identical case. See id. A trial judge's decision to apply the doctrine is thus reviewed for an abuse of discretion. See Milgard Tempering, 902 F.2d at 715. United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000). A court abuses its discretion in applying the law of the case doctrine only if (1) the first decision was clearly erroneous; (2) an intervening change in the law occurred; (3) the evidence on remand was substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result. United States v. Lummi Indian Tribe, 235 F.3d at 452-53 (citing United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998)). 39 1 Petitioner’s failure to complain in the trial court 2 concerning counsel’s alleged sleeping was starkly inconsistent 3 with his repeated motions in the trial court to have his 4 appointed counsel’s appointment terminated. 5 may have had some uncertainty concerning the precise extent of 6 his trial rights, it is not reasonable to conclude that he would 7 not have understood that counsel’s sleeping during the trial was 8 an appropriate subject of a complaint at that level. 9 Although Petitioner Petitioner’s testimony is inconsistent with the other 10 evidence adduced at the evidentiary hearing. 11 the testimony of Judge Westra and Mr. Quick, who testified 12 carefully after having taken the time to review the record. 13 Trial counsel expressly and clearly testified that his statement 14 was a joke predicated on his belief that the record did not 15 reflect the evidence as stated by the prosecutor in a question; 16 counsel was being sarcastic. 17 trial. 18 extent that it affected the competence of his performance. 19 The Court credits Counsel denied sleeping at the Further, he even denied having suffered fatigue to the Neither the trial judge nor the prosecutor recalled Quick’s 20 having slept. 21 the attentiveness of the trial participants, the judge’s failure 22 to undertake any measures to maintain counsel’s attention 23 strongly supports a finding that counsel was not inattentive or 24 sleeping during the trial. 25 In light of the trial judge’s custom of policing Petitioner’s testimony was inconsistent with the state court 26 record. 27 forth above demonstrates, Petitioner’s counsel actively 28 participated in the trial by planning for the upcoming stages of As the detailed statement of the trial proceedings set 40 1 the trial, examining and cross-examining witnesses, objecting to 2 evidence, requesting instructions, and engaging in argument. 3 Court finds that the transcripts reflect an attentive and 4 participatory counsel without any indication of any significant 5 or substantial lapse in counsel’s attention or participation. 6 The The Court has considered the fatigue of Petitioner’s counsel 7 only in relation to Petitioner’s claim concerning counsel’s 8 sleeping during trial. 9 counsel’s fatigue at the end of the trial week does not tend to 10 11 The Court concludes that the evidence of show that counsel slept during the trial. Because no deference to state court factual findings is due 12 here, the Court considers whether Petitioner has met his burden 13 to establish a right to relief by a preponderance of the 14 evidence. 15 that Petitioner’s counsel did not sleep at all during the trial. 16 Because this Court has found that counsel did not sleep 17 during the trial at all, the Cronic rule of inherent prejudice is 18 not applicable to Petitioner’s claim concerning the ineffective 19 assistance of trial counsel. After considering all the evidence, the Court finds 20 Further, in view of this Court’s finding that counsel did 21 not sleep, application of the Strickland standard results in a 22 conclusion that Petitioner has not demonstrated that his 23 counsel’s representation fell below an objective standard of 24 reasonableness under prevailing professional norms in light of 25 all the circumstances of this case. 26 this Court to address the prejudice prong of the Strickland 27 analysis. 28 It is thus unnecessary for Because the sole claim before this Court upon remand from 41 1 the Ninth Circuit Court of Appeals is Petitioner’s claim 2 concerning counsel’s sleeping, the Court concludes that 3 Petitioner has failed to show that he is entitled to relief 4 pursuant to 28 U.S.C. § 2254. 5 6 Accordingly, it will be recommended that the first amended petition for writ of habeas corpus be denied. 7 IV. 8 Unless a circuit justice or judge issues a certificate of 9 Certificate of Appealability appealability, an appeal may not be taken to the Court of Appeals 10 from the final order in a habeas proceeding in which the 11 detention complained of arises out of process issued by a state 12 court. 13 U.S. 322, 336 (2003). 14 only if the applicant makes a substantial showing of the denial 15 of a constitutional right. 16 petitioner must show that reasonable jurists could debate whether 17 the petition should have been resolved in a different manner or 18 that the issues presented were adequate to deserve encouragement 19 to proceed further. 20 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 21 certificate should issue if the Petitioner shows that jurists of 22 reason would find it debatable whether the petition states a 23 valid claim of the denial of a constitutional right and that 24 jurists of reason would find it debatable whether the district 25 court was correct in any procedural ruling. 26 529 U.S. 473, 483-84 (2000). 27 28 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their 42 1 merits, and determines whether the resolution was debatable among 2 jurists of reason or wrong. 3 applicant to show more than an absence of frivolity or the 4 existence of mere good faith; however, it is not necessary for an 5 applicant to show that the appeal will succeed. 6 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 7 A district court must issue or deny a certificate of 8 appealability when it enters a final order adverse to the 9 applicant. 10 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 11 debate whether the petition should have been resolved in a 12 different manner. 13 of the denial of a constitutional right. 14 recommended that the Court decline to issue a certificate of 15 appealability. Petitioner has not made a substantial showing Accordingly, it will be 16 V. 17 It is RECOMMENDED that: 18 1) The petition for writ of habeas corpus be DENIED; and 19 2) Judgment be ENTERED for Respondent; and 20 3) The Court DECLINE to issue a certificate of 21 Recommendation appealability. 22 These findings and recommendations are submitted to the 23 United States District Court Judge assigned to the case, pursuant 24 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 25 the Local Rules of Practice for the United States District Court, 26 Eastern District of California. 27 being served with a copy, any party may file written objections 28 with the Court and serve a copy on all parties. Within thirty (30) days after 43 Such a document 1 should be captioned “Objections to Magistrate Judge’s Findings 2 and Recommendations.” 3 and filed within fourteen (14) days (plus three (3) days if 4 served by mail) after service of the objections. 5 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 6 636 (b)(1)(C). 7 objections within the specified time may waive the right to 8 appeal the District Court’s order. 9 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 10 11 IT IS SO ORDERED. 12 Dated: icido3 March 28, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 44