Carpenter v. Kenan, No. 3:2006cv07408 - Document 15 (N.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS; re 1 Petition for Writ of Habeas Corpus filed by John Carpenter. Signed by Judge Jeffrey S. White on 11/2/2009. (Attachments: # 1 Certificate of Service)(ls, COURT STAFF) (Filed on 11/2/2009)
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Carpenter v. Kenan Doc. 15 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 JOHN CARPENTER, Petitioner, 10 11 12 13 vs. SCOTT KERNAN, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) No. C 06-7408 JSW (PR) ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS 14 15 INTRODUCTION 16 Petitioner, John Carpenter, is a state prisoner currently incarcerated at the 17 California State Prison, Solano, in Vacaville, California. Petitioner filed this pro 18 se petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging 19 ineffective assistance of trial counsel in violation of the Sixth Amendment, 20 insufficient evidence supports his conviction in violation of the Fourteenth 21 Amendment, and ineffective assistance of appellate counsel in violation of the 22 Sixth Amendment. This Court found that the petition, when liberally construed, 23 stated a cognizable federal claim and ordered Respondent to show cause why a 24 writ of habeas corpus should not be granted. Respondent filed an answer. 25 Petitioner has not filed a traverse. This pro se habeas petition is now before the 26 Court for consideration on the merits. For the reasons discussed below, the 27 petition is denied. 28 Dockets.Justia.com 1 2 PROCEDURAL BACKGROUND On May 13, 2003, Petitioner was convicted by a jury in Alameda County 3 Superior Court of first degree murder, a violation of California Penal Code 4 section 187. Cal. Penal Code § 187. On August 1, 2003, Petitioner was 5 sentenced by the trial court to 25 years to life in state prison. The California 6 Court of Appeal affirmed Petitioner’s conviction on October 15, 2004, and the 7 California Supreme Court denied review on December 22, 2004. On December 8 5, 2005, the Alameda County Superior Court denied Petitioner’s habeas corpus 9 petition. The California Court of Appeal denied Petitioner’s direct appeal on 10 January 12, 2006 and the California Supreme Court denied review on September 11 27, 2006. Petitioner filed the instant federal petition for a writ of habeas corpus 12 on December 4, 2006. 13 FACTUAL BACKGROUND 14 The facts underlying the charged offenses, as found by the California 15 16 17 18 19 20 21 Court of Appeal, are summarized in relevant part, as follows: Defendant was charged with the murder of Ignacio Barba. [. . .] Barba was a known drug dealer who had sold drugs to defendant's cousin, Rickie Campbell, on numerous occasions. Barba usually met Campbell at Big John's Car Stereo Installation (Big John's) on 81st Avenue in Oakland, which was owned and operated by defendant. Barba's fiancée, Lorena Perez, had been to Big John's with Barba several times when he went to meet with Campbell. On three or four occasions she had seen defendant at the shop. Defendant had also come to her house to fix the speakers in her truck. Perez's brother also testified that he had accompanied Barba to Big John's to meet with Campbell on five or six occasions, and that defendant was there on most of those visits. 22 23 24 25 Perez testified that on September 2, 1999, Barba was involved in a large drug deal with Campbell. That morning, she had seen at Barba's apartment 15 packages of cocaine wrapped in black plastic and duct tape, some in a gym bag and some in a laundry bag. Barba told her that he was going to deliver half of the cocaine to Campbell at Big John's in the morning, and when Campbell could pay for that he would deliver the other half. 26 Later that day, around noon, Barba came to Perez's house, where 27 28 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 he washed her truck. Gustavo Curiel, who was outside with Barba as he was washing the truck, testified that Campbell came by Perez's house and had a brief conversation with Barba. Later Curiel accompanied Barba to Big John's. Defendant arrived at the store as they pulled up. Barba did not bring anything into the store and did not return to the car carrying anything. On the way back to Perez's house, Barba told Curiel that he was going to do some business and invited Curiel to join him, but Curiel declined and went home. Perez testified that she last saw Barba at her house that afternoon when he said he was going to Big John's to see Campbell about the money for the cocaine he had given him earlier in the day. Barba left driving her truck. About two hours later, Perez began calling and paging Barba but he did not return her call. Around 11:00 p.m., she drove past Big John's, and saw a light under the door but did not see anyone or her truck. She went back to Big John's again after midnight, and found the fire department there. The fire department had been called about 1:30 a.m. on September 3, by someone reporting a fire at Big John's. Just prior [at 1:18 a.m.], defendant had called the police and reported there had been a robbery at his shop. He explained he had opened the door after hearing some knocking, and that four intruders entered, put a gun to his head and tied him with duct tape. After about 20 minutes he untied himself and ran to a local fast food restaurant to call the police. When the police arrived defendant had pieces of duct tape on his mouth, wrists and pants. His tee shirt was torn and he appeared to have an abrasion on his chest. Defendant told the police he had not smelled or seen smoke or fire before he left the shop. Fire inspectors later determined the fires were caused by arson. On September 7, 1999, Ignacio Barba's body was found decomposing in the back of Perez's truck. Barba's wrists were bound with black wire, plastic lock-ties, and gray duct tape. Stereo wire was knotted loosely around Barba's neck. Defendant's fingerprint was found on the duct tape binding Barba's ankles. Investigators also found defendant's bloody fingerprint on the bumper of the truck. An autopsy determined that the condition of the body was consistent with death on September 2 or 3. 21 22 23 24 Officers searched Barba's residence but did not find any drugs or cash. They did find pay sheets with the name Rick followed by entries for $ 27,000 and $ 28,000. Officers also searched defendant's store, seizing among other things stereo wires and black plastic pull-ties. Trace amounts of blood that was consistent with Barba's DNA profile was found on the stairs in the shop. Defendant was arrested for Barba's murder on April 4, 2000. 25 26 Almost a year later, on March 4, 2001, Latwaun Mercy was arrested on an unrelated drug offense. At that time he told the arresting officer that he did not want to go to jail and offered the 27 28 3 1 2 3 4 5 6 7 officers information about Barba's murder. In an initial unrecorded interview, Mercy described seeing Barba at Big John's on the night of his death. He was already dead and taped to a chair when Mercy arrived. In a subsequently recorded statement, Mercy told police that on the night of September 2, he and his cousin had gone to the Sound Factory to pick up two large duffel bags of cocaine from a man named Juan. They delivered the bags to Campbell and defendant at Big John's. When he went upstairs he saw Barba in a chair. Barba was unconscious, bloody and had duct tape around his mouth, legs and arms. The men divided the cocaine and then Mercy and his cousin left. At trial, Mercy repudiated his prior statements and denied having any knowledge relevant to the case. The above was admitted as a prior inconsistent statement. 8 People v. Carpenter, No. A103541, 2004 WL 2326392 (Cal. App. 1st Dist., 9 October 15, 2004), at *1-2. 10 STANDARD OF REVIEW 11 Under the Antiterrorism and Effective Death Penalty Act of 1996 12 (“AEDPA”), this Court may entertain a petition for habeas relief “in behalf of a 13 person in custody pursuant to the judgment of a state court only on the ground 14 that he is in custody in violation of the Constitution or laws or treaties of the 15 United States.” 28 U.S.C. § 2254(a). The writ may not be granted unless the 16 state court’s adjudication of any claim on the merits: “(1) resulted in a decision 17 that was contrary to, or involved an unreasonable application of, clearly 18 established Federal law, as determined by the Supreme Court of the United 19 States; or (2) resulted in a decision that was based on an unreasonable 20 determination of the facts in light of the evidence presented in the State court 21 proceeding.” Id. at § 2254(d). 22 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ 23 if a state court arrives at a conclusion opposite to that reached by the Supreme 24 Court on a question of law or if the state court decides a case differently than the 25 Supreme Court has on a set of materially indistinguishable facts.” Williams v. 26 Taylor, 529 U.S. 362, 412-12 (2000). “Under the ‘unreasonable application’ 27 28 4 1 clause, a federal habeas court may grant the writ if a state court identifies the 2 correct governing legal principle from the Supreme Court’s decisions but 3 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. 4 In deciding whether the state court’s decision is contrary to, or an 5 unreasonable application of clearly established federal law, a federal court looks 6 to the decision of the highest state court to address the merits of a petitioner’s 7 claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th 8 Cir. 2000). If the state court only considered state law, the federal court must ask 9 whether state law, as explained by the state court, is “contrary to” clearly 10 established governing federal law. See, e.g., Lockhart v. Terhune, 250 F.3d 11 1223, 1230 (9th Cir. 2001); Hernandez v. Small, 282 F.3d 1132, 1141 (9th Cir. 12 2002)(state court applied correct controlling authority when it relied on state 13 court case that quoted Supreme Court for proposition squarely in accord with 14 controlling authority). 15 However, the standard of review under AEDPA is somewhat different 16 where the state court gives no reasoned explanation of its decision on a 17 petitioner's federal claim and there is no reasoned lower court decision on the 18 claim. In such a case, a review of the record is the only means of deciding 19 whether the state court's decision was objectively reasonable. See Plascencia v. 20 Alameida, 467 F.3d 1190, 1197-98 (9th Cir. 2006); Himes v. Thompson, 336 21 F.3d 848, 853 (9th Cir. 2003); Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 22 2002); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001); Delgado v. 23 Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When confronted with such a 24 decision, a federal court should conduct “an independent review of the record” to 25 determine whether the state court’s decision was an objectively unreasonable 26 application of clearly established federal law. Plascencia, 467 F.3d at 1198; 27 28 5 1 Himes, 336 F.3d at 853; Delgado, 223 F.3d at 982; accord Lambert v. Blodgett, 2 393 F.3d 943, 970 n.16 (9th Cir. 2004). 3 The federal court need not otherwise defer to the state court decision 4 under AEDPA: “A state court's decision on the merits concerning a question of 5 law is, and should be, afforded respect. If there is no such decision on the merits, 6 however, there is nothing to which to defer.” Greene, 288 F.3d at 1089. In sum, 7 “while we are not required to defer to a state court's decision when that court 8 gives us nothing to defer to, we must still focus primarily on Supreme Court 9 cases in deciding whether the state court's resolution of the case constituted an 10 unreasonable application of clearly established federal law.” Fisher v. Roe, 263 11 F.3d 906, 914 (9th Cir. 2001). But cf. Brazzel v. Washington, 491 F.3d. 976, 981 12 (9th Cir. 2007) (noting that when state court reaches decision on merits but does 13 not supply reasoning for its decision, federal court reviews the record to 14 determine if there was clear error); Larson v. Palmateer, 515 F.3d 1057, 1062 15 (9th Cir. 2008) (quoting Brazzel, 491 F.3d at 981, for rule that if “state court 16 reaches the merits without providing reasoning for us to review, however, ‘we 17 independently review the record to determine whether the state court clearly 18 erred in its application of Supreme Court law.’”) 19 DISCUSSION 20 In this petition for a writ of habeas corpus, Petitioner alleges that there 21 was insufficient evidence to support his conviction. Petitioner also alleges 22 ineffective assistance of counsel based on the failure of his defense attorney to: 23 (1) suppress the testimony of witness Latwaun Mercy, (2) properly cross- 24 examine the prosecutor’s expert witnesses, (3) call a DNA and fingerprint expert, 25 (4) object to the prosecutor’s remarks during the closing argument, and (5) 26 investigate an “angry statement” made by a witness. Furthermore, Petitioner 27 28 6 1 claims the overall strategy by his defense attorney was improper. Finally, 2 Petitioner alleges ineffective assistance of his appellate counsel based on the 3 failure of his appellate attorney to challenge: (1) the sufficiency of evidence and 4 (2) the ineffective assistance of his trial counsel. 5 I. 6 Sufficiency of Evidence. Petitioner challenges the sufficiency of evidence to sustain his conviction 7 for first degree murder of Barba. Specifically, Petitioner claims that the 8 prosecution failed to prove that the blood found in Petitioner’s home belonged to 9 Barba, that Barba was actually robbed or that Petitioner actually beat Barba. 10 A. 11 The Due Process Clause “protects the accused against conviction except 12 upon proof beyond a reasonable doubt of every fact necessary to constitute the 13 crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). In 14 reviewing a habeas petition for a prisoner who alleges insufficiency of evidence 15 to support his conviction, the federal court must determine whether, “after 16 viewing the evidence in the light most favorable to the prosecution, any rational 17 trier of fact could have found the essential elements of the crime beyond a 18 reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). 19 Legal Standard If confronted by a record that supports conflicting inferences, a federal 20 habeas court “must presume – even if it does not affirmatively appear on the 21 record – that the trier of fact resolved any such conflicts in favor of the 22 prosecution, and must defer to that resolution.” Id. at 326. A jury’s credibility 23 determinations are therefore entitled to near-total deference. Bruce v. Terhune, 24 376 F.3d 950, 957 (9th Cir. 2004). Except in the most exceptional of 25 circumstances, Jackson does not permit a federal habeas court to revisit 26 credibility determinations. See id. (credibility contest between victim alleging 27 28 7 1 sexual molestation and defendant vehemently denying allegations of wrongdoing 2 not a basis for revisiting jury’s obvious credibility determination); see also 3 People of the Territory of Guam v. McGravey, 14 F.3d 1344, 1346-47 (9th Cir. 4 1994) (upholding conviction for sexual molestation based entirely on 5 uncorroborated testimony of victim). 6 Where behavior is consistent with both guilt and innocence, the burden is 7 on the State to produce evidence that would allow a rational trier of fact to 8 conclude beyond a reasonable doubt that the behavior was consistent with guilt. 9 Sarausad v. Porter, 479 F.3d 671, 678 (9th Cir. 2007). However, the 10 prosecution need not affirmatively rule out every hypothesis except that of guilt. 11 Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326); 12 see, e.g., Davis v. Woodford, 384 F.3d 628, 639-41 (9th Cir. 2004) (finding 13 sufficient evidence of premeditation). The existence of some small doubt based 14 on an unsupported yet unrebutted hypothesis of innocence therefore is not 15 sufficient to invalidate an otherwise legitimate conviction. See Taylor v. Stainer, 16 31 F.3d 907, 910 (9th Cir. 1994) (three hypotheses regarding petitioner's 17 fingerprints which government failed to rebut unsupported by evidence and 18 therefore insufficient to invalidate conviction). 19 Where a state court does not reach the merits of a habeas claim, the 20 federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 21 F.3d 1160, 1167 (9th Cir. 2002). Because the California Supreme Court did not 22 issue a decision on the merits of this claim, this Court reviews it de novo. 23 B. 24 The issue here is whether, “viewing the evidence in the light most Analysis 25 favorable to the prosecution, any rational trier of fact” could have convicted 26 Petitioner of the murder of Barba under California Penal Code § 187. See 27 28 8 1 Jackson, 443 U.S. at 319. A careful review of the record establishes that 2 Petitioner is not entitled to habeas relief on this claim. 3 The totality of the evidence was sufficient for a jury to convict Petitioner 4 of first degree murder. Petitioner's argument in support of his claim focuses on 5 the probative value of the evidence, not its legal sufficiency. The crime of first 6 degree murder under California law is defined as the unlawful killing of a human 7 being with malice aforethought, which is perpetrated by “any kind of willful, 8 deliberate, and premeditated killing, or which is committed in the perpetration of, 9 or attempt to perpetrate [. . .] robbery [. . .] or [certain other crimes].” Cal. Penal 10 11 Code § 187. This Court finds that the record does not support Petitioner's contention 12 that the evidence was insufficient to prove Petitioner’s involvement with Barba’s 13 slaying. Instead, the evidence establishes Petitioner’s deliberation, planning, and 14 malice aforethought in the murder of Barba. Evidence presented at trial included 15 direct testimony, forensic evidence and a suspicious fire, all linking Petitioner to 16 Barba’s death. 17 Through direct testimony it was established that Barba was on his way to 18 Petitioner’s shop on the day he disappeared. Reporter’s Transcript (“RT”) at 19 174, 1248. Testimony from Lorena Perez established that the purpose of Barba’s 20 trip to Petitioner’s shop was to deliver fifteen packages of cocaine Perez had seen 21 that day. Id. at 191, 196. When Barba did not return that evening, Perez 22 searched Barba’s apartment and other vehicles but did not find any cash or drugs. 23 Id. at 198-200. On the same night as his disappearance, Latwaun Mercy saw 24 Petitioner at his shop in the same room as Barba, who was bound to a chair with 25 duct tape and covered in blood. Id. at 669, 671, 671-672. Mercy testified that he 26 was present at Petitioner’s shop to get a cut of fifteen kilos of cocaine. Id. at 27 28 9 1 673. A jury reasonably could have found that Petitioner robbed Barba even 2 though no drugs or money was recovered, given this testimony at Petitioner’s 3 trial. It was the prosecution’s contention that the evidence supported this 4 finding, see id. at 1499-1500; 1501-03, and there was sufficient evidence offered 5 at trial to support this conclusion by the jury. 6 On September 7, Barba’s body was discovered in Perez’s white Chevy 7 Tahoe. Id. at 476, 273, 364. Barba was found bound with black wire, “black 8 plastic lock-type ties,” and gray duct tape. Id. at 279, 368, 371. Barba’s body 9 had several lacerations about the head and no defensive wounds. Id. at 389, 391. 10 Cause of death was determined to be death following multiple blunt injuries to 11 the head. Id. at 394. A forensic pathologist testified that a death of September 2 12 or September 3 would be within the range of when the death occurred. Id. at 13 396. Furthermore, the pathologist testified that the lacerations would have bled 14 and there was a strong possibility of blood splatter. Id. at 395. 15 Strong forensic evidence connected Petitioner to Barba’s death. First, an 16 investigation of Petitioner’s shop found blood splatter on the stair runner. Id. at 17 756, 795, 1172. Barba could not be excluded as a source of the blood found on 18 the stair runner. Id. at 1187. A search of the room above Petitioner’s shop, 19 where Petitioner lived, also found black plastic pull ties and speaker wire. Id. at 20 806, 809. 21 Second, four strips of duct tape were taken from Barba’s body. Id. at 859. 22 From these pieces, three prints were developed, all from the nonadhesive side 23 and all from the same strip. Id. at 863. Two identifications were made from 24 prints on duct tape. Id. at 1066; 1070. One print was made by Petitioner’s right 25 middle finger. Id. at 1072. The other was determined to be Petitioner’s right 26 palm print. Id. at 1073. The prints were going in the same direction - horizontal 27 28 10 1 to the tape. Id. at 1075. 2 Third, blood smearing belonging to a human and that was consistent with 3 Barba’s blood, but too small a sample to test affirmatively, was found on tailgate 4 of the Tahoe. Id. at 822, 1183, 1184. On the front chrome bumper, visible 5 fingerprints were found. Id. at 824. Two prints were lifted. Id. at 843. Anne 6 Jancse, a criminalist for the Oakland Police department, testified that one of the 7 prints found on the bumper was Petitioner’s right middle finger. Id. at 1023, 8 1047. Jancse testified that the prints were consistent with the Petitioner having 9 blood on his fingers when he touched the bumper. Id. at 1059. Moreover, on the 10 day he disappeared, testimony established that Barba had washed the Tahoe. Id. 11 at 193, 295. Jancse testified that, due to the fragility of fingerprints, any water, 12 with any kind of pressure, being applied to the bumper would destroy any 13 fingerprints. Id. at 1060. 14 Finally, a suspect fire at Petitioner’s shop evidenced his involvement. At 15 1:18 a.m. in the morning following Barba’s disappearance (September 3), 16 Petitioner called 911 to report that he’d been robbed. Id. at 519. Petitioner 17 claimed that he’d been robbed at gunpoint and taped up but broke loose. Id. at 18 519-520. He indicated that it took him 15-20 minutes to break loose. Id. at 520. 19 Petitioner also signed a written statement that it took him 20-30 minutes to free 20 himself. Id. at 497, 499. He told officers he then got in his van and drove away, 21 calling 911 from a payphone at a nearby establishment. Id. at 338, 519, 522. 22 An examination of Petitioner’s version of events leads to several 23 inconsistencies. First, neighbor Matt Degregorio testified that Petitioner told him 24 that his robbers had “poured gas and left him . . . to die.” Id. at 1294. No such 25 statement was told to police by Petitioner. See id. at 497-499. Degregorio also 26 testified that when he approached the Petitioner, a third party whom he could not 27 28 11 1 identify, was standing next to Petitioner. Id. at 1291. Degregorio testified that 2 he asked Petitioner how he had gotten out of the shop and the third party told 3 Degregorio that he (the third party) had heard Petitioner banging on the door and 4 got the Petitioner out. Id. at 1291, 1296. Petitioner, who heard the exchange, 5 nodded in response. Id. at 1296. This version of events is inconsistent with the 6 report Petitioner made with police and in fact, the officer that interviewed 7 Petitioner testified that Petitioner’s story changed often. Id. at 339-340. 8 Second, Petitioner drove a distance to call 911 by payphone, but Julie 9 Jaecksch, a police evidence technician, tested the payphone near Petitioner’s 10 home and shop and found it was working. Id. at 263, 264-65. Third, three pieces 11 of duct tape were found hanging on Petitioner’s body when police arrived. Id. at 12 326, 489, 945. Jaecksch testified to collecting all the duct tape from Petitioner’s 13 body shortly after 2:00 a.m. Id. at 243, 252-53, 255. Yet when John Blatt, 14 Petitioner’s landlord, arrived at Petitioner’s home after 7:30 a.m., Petitioner was 15 wearing duct tape on his arms and legs. Id. at 582, 593, 595. 16 Fourth, shortly after Petitioner’s 911 call, at 1:27 a.m., police received 17 reports that Petitioner’s shop was on fire. Id. at 524. But when Petitioner was on 18 the phone with 911 he didn’t mention a fire. Id. at 519-522. Nor did Petitioner 19 mention a fire when he was interviewed by officers, he didn’t mention a fire. Id. 20 at 501. Petitioner also told officers that he did not smell or see any smoke when 21 he left. Id. at 1355. 22 Fifth, even though Petitioner told responding officer Jung Chang in a 23 written statement it took him 20-30 minutes to free himself, he was not aware of 24 a fire or of any smoke when he left his shop. Id. at 340, 341, 499, 501-502. Yet, 25 according to a Marlon Brandle, a fire investigator, there were three separate 26 points of origin of the fire - two fires upstairs and one downstairs in an 27 28 12 1 automobile. Id. at 903-904, 913, 914. Each point was separate and independent 2 and was started with some type of flammable liquid. Id. Brandle testified that 3 smoke would have been produced instantly after the fire was set and would have 4 filled the warehouse within minutes. Id. at 922. He also testified that it would be 5 impossible to be in the building for 20 minutes and not know of or detect the 6 smoke. Id. at 923. In fact, he stated it would have been impossible to be in 7 building for even five minutes. Id. 8 9 The forensic evidence and setting of a suspicious fire are consistent with the prosecutor’s argument that Petitioner attempted to hide the evidence of 10 Barba’s demise through setting the fire and reporting his own victimization to 11 police. This Court finds that the conviction is supported by evidence sufficient 12 to prove the elements of the crimes beyond a reasonable doubt. See 28 U.S.C. § 13 2254(d)(1); In re Winship, 397 U.S. at 365-68; Jackson, 443 U.S. at 319. It does 14 not matter that much of the evidence was circumstantial because it is well 15 established that “circumstantial evidence and inferences drawn from the evidence 16 are sufficient to sustain a conviction.” Walters v. Maass, 45 F.3d 1355, 1358 17 (9th Cir. 1995). It is also well established that in a federal habeas corpus 18 proceeding, deference must be given to the state law interpretation of the 19 substantive elements of a state offense. Jackson, 443 U.S. at 324 (“The standard 20 must be applied with explicit reference to the substantive elements of the 21 criminal offense as defined by state law.”). 22 The fact that the cause of death could not be definitively established or 23 that no one saw Petitioner committing the acts that resulted in Barba’s death does 24 not mean that the evidence is inconsistent with the verdict. When the mass of 25 direct and circumstantial evidence implicating Petitioner is considered, the Court 26 finds ample basis to support the state court's determination that any rational trier 27 28 13 1 of fact could have found Petitioner guilty beyond a reasonable doubt. See 2 Maass, 45 F.3d at 1358. 3 II. Ineffective Assistance of Trial Counsel. 4 A. Legal Standard 5 A claim of ineffective assistance of counsel is cognizable as a claim of 6 denial of the Sixth Amendment right to counsel, which guarantees not only 7 assistance, but effective assistance of counsel. Strickland v. Washington, 466 8 U.S. 668, 686 (1984); see Williams (Terry) v. Taylor, 529 U.S. 362, 404-08 9 (2000). The benchmark for judging any claim of ineffectiveness must be 10 whether counsel’s conduct so undermined the proper functioning of the 11 adversarial process that the trial cannot be relied upon as having produced a just 12 result. Strickland, 466 U.S. at 686. 13 In order to prevail on a Sixth Amendment ineffective assistance of 14 counsel claim, Petitioner must establish two things. First, Strickland requires 15 Petitioner to show that counsel's performance was deficient. This requires 16 showing that counsel made errors so serious that counsel was not functioning as 17 the “counsel” guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 18 687. The defendant must show that counsel’s representation fell below an 19 objective standard of reasonableness. See id. at 688. The relevant inquiry is not 20 what defense counsel could have done, but rather whether the choices made by 21 defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 22 (9th Cir. 1998). Judicial scrutiny of counsel’s performance must be highly 23 deferential, and a court must indulge a strong presumption that counsel’s conduct 24 falls within the wide range of reasonable professional assistance. See Strickland, 25 466 U.S. at 689. 26 Second, Petitioner must establish that he was prejudiced by counsel's 27 28 14 1 deficient performance and that “there is a reasonable probability that, but for 2 counsel’s unprofessional errors, the result of the proceeding would have been 3 different.” Id. at 694. A reasonable probability is a probability sufficient to 4 undermine confidence in the outcome. Id. 5 It is unnecessary for a federal court considering a habeas ineffective 6 assistance claim to address the prejudice prong of the Strickland test if the 7 petitioner cannot even establish incompetence under the first prong. See 8 Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998). However, here there is 9 no indication that “but for counsel’s unprofessional errors, the result of the 10 proceeding would have been different.” Strickland, 466 U.S. at 694. The burden 11 to prove prejudice rests with the petitioner. Id. at 693. 12 B. 13 14 Analysis 1. Failure to suppress the testimony of Mercy. Petitioner claims that his defense counsel was ineffective for failing to 15 suppress the testimony of Latwaun Mercy as he did not meet the “required 16 standard for an informant witness.”1 Additionally, Petitioner claims his defense 17 counsel should have sought suppression of Mercy’s statements because Mercy 18 had his charges dropped after making his statements, was not read his Miranda 19 rights and was given information regarding the murder from the police.2 20 21 22 23 24 25 1 Although Petitioner has not laid his claim on any particular constitutional ground, construing the claim liberally, the Court has considered Petitioner’s contention that Mercy may have had a preexisting agreement with authorities and was thus acting as a government agent, as well as whether admission of Mercy’s statements violated his Sixth Amendment confrontation rights. 2 27 Respondent’s Answer addresses these claims as a failure to challenge Mercy’s statements on the grounds that they were coerced or involuntary. Respondent’s Answer at 6. For the purposes of this habeas petition, and because Petitioner filed no Traverse to clarify his assertions, this court examined these 28 15 26 1 “To show prejudice under Strickland resulting from the failure to file a 2 motion, a defendant must show that (1) had his counsel filed the motion, it is 3 reasonable that the trial court would have granted it as meritorious, and (2) had 4 the motion been granted, it is reasonable that there would have been an outcome 5 more favorable to him.” Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) 6 (citing Kimmelman v. Morrison, 477 U.S. 365, 373-374 (1986) (so stating with 7 respect to failure to file a motion to suppress on Fourth Amendment grounds)); 8 see also Van Tran v. Lindsey, 212 F.3d 1143, 1156-57 (9th Cir. 2000) (no 9 prejudice suffered as a result of counsel's failure to pursue a motion to suppress a 10 lineup identification), overruled on other grounds by Lockyer v. Andrade, 538 11 U.S. 63 (2003). 12 Mercy was arrested on March 4, 2001 for possession of narcotics. RT at 13 646, 647, 654, 1232, 1327-1328, 1330. On that day Mercy made a tape-recorded 14 statement to Sergeant Jeffery Ferguson and Sergeant Brian Medeiros regarding 15 Petitioner's involvement in the murder of Barba. Id. at 656-692; Ex. 66, 66A. 16 Mercy also identified Petitioner through a photo line-up. RT at 690, 696, 1332; 17 Ex. 60. Mercy later reiterated his earlier statement to Inspector Jack Huth of the 18 Alameda County District Attorney’s Office on April 8, 2003. RT at 1225, 1231. 19 When first called to testify at trial, Mercy answered a few preliminary 20 questions. Id. at 536. From that point on, Mercy denied knowledge or 21 recollection on questioning by the prosecutor, at one point explaining that he 22 could not remember meeting with the prosecutor because he was high at the time. 23 Id. at 537-545. Mercy also stated that he did not want to testify. Id. at 547. 24 25 On cross-examination, Mercy testified that the police had lied and manipulated him by giving him information about the case. Id. at 633. Mercy 26 27 28 claims through an independent examination of the record. 16 1 denied all of the statements made on the tape-recorded interview. Id. at 635-641. 2 Mercy also testified that his Miranda rights were not read to him when he first 3 spoke to police. Id. at 635. However, Mercy testified that he was not told to 4 give testimony in exchange for leniency on his own drug case and did not ask for 5 such. Id. at 633, 634. The court admitted Mercy's tape-recorded interview into 6 evidence as prior inconsistent statements under California Evidence Code section 7 1235. Id. at 655. 8 When a declarant appears for cross-examination at trial, the Confrontation 9 Clause places no constraints at all on the use of his or her prior testimonial 10 statements. California v. Green, 399 U.S. 149, 157 (1970); see Crawford v. 11 Washington, 541 U.S. 36 (2004). Here, Mercy testified at trial and was subject 12 to cross-examination regarding his previous inability or unwillingness to testify. 13 RT at 630-641. Thus, the admission of Mercy’s prior statements to Sergeants 14 Ferguson and Mederios did not violate Petitioner's rights under the Confrontation 15 Clause. See California, 399 U.S. at 162 (“where the declarant is not absent, but 16 is present to testify and to submit to cross-examination, our cases, if anything, 17 support the conclusion that the admission of his out-of-court statements does not 18 create a confrontation problem”); Delaware v. Fensterer, 474 U.S. 15, 21-22 19 (1985) (“the Confrontation Clause is generally satisfied when the defense is 20 given a full and fair opportunity to probe and expose . . . infirmities through 21 cross-examination, thereby calling to the attention of the factfinder the reasons 22 for giving scant weight to the witness' testimony”). Because there is no violation 23 of the right to confrontation when the declarant is available for 24 cross-examination, Petitioner is not entitled to relief on these claims. 25 Nor does this Court find any merit to the argument that Mercy was acting 26 as an informant or government agent when he spoke to police. See United States 27 28 17 1 v. Busby, 780 F.2d 804, 807 (9th Cir. 1986) (a person does not become a 2 government agent until his activities are under the direction and supervision of 3 law enforcement officers. No “agency relationship” is created simply because 4 the informant expects to be rewarded for his conduct); see also United States v. 5 Love, 134 F.3d 595, 604 (4th Cir. 1998) (“The behavior of an informant who 6 initiates contact with an indicted defendant -- whether because of conscience, 7 curiosity, or even potentially to curry an unpromised future favor from the 8 government -- cannot be attributed to the government.”). 9 testified that Mercy likely wanted a benefit for his statement, while Sergeant Sergeant Mederios 10 Ferguson testified that it is common for police to give a person a break on a case 11 in exchange for information. RT at 654, 1330. However, both testified that 12 Mercy didn’t ask for such a favor. Id. at 703, 1330. Finally, Sergeant Mederios 13 testified that Mercy was not given a promise of leniency either. Id. at 1340. In 14 the end, charges were dropped against Mercy. Id. at 1330, 1331. So while the 15 record shows that although he did hope to benefit from testifying, Mercy had no 16 such agreement. The evidence adduced at trial did not reveal that Mercy was a 17 government agent, and Petitioner has not met his burden to show as much. 18 Because Mercy was not a government agent, Mercy's statements are not subject 19 to suppression on the grounds asserted. Accordingly, trial counsel was not 20 ineffective in failing to file a motion to suppress. See Lowry v. Lewis, 21 F.3d 21 344, 346 (9th 1994) (finding that counsel is not ineffective for failing to file 22 frivolous motions). 23 In regards to Petitioner’s other causes for suppression, there is no merit to 24 Petitioner’s claims. Both Sergeant Ferguson and Sergeant Mederios testified that 25 Mercy was read his Miranda rights prior to their interview. RT at 650, 700, 26 1329. Mercy confirmed receiving his Miranda rights in his taped interview. Id. 27 28 18 1 at 658. Additionally, both Sergeant Ferguson and Sergeant Mederios also 2 testified that Mercy was not told any information about the case. Id. at 652, 653- 3 654, 713, 1334-1335. As Mercy’s statements were not coerced or obtained in 4 violation of Miranda, any objection to Mercy’s statements would have been 5 futile. Strickland does not obligate counsel to make a meritless argument. See 6 Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996); Shah v. United States, 878 7 F.2d 1156, 1162 (9th Cir.), cert. denied, 493 U.S. 869 (1989). 8 Given that it would have been futile for Petitioner's counsel to bring a 9 suppression motion, there is no reasonable probability that, had the motion been 10 brought, the result of the proceeding would have different. Strickland, 466 US at 11 693-94. Further, Petitioner cannot show that it is reasonable that there would 12 have been an outcome more favorable to him even if the court had suppressed 13 Mercy’s testimony. Mercy was just one witness who implicated Petitioner in 14 committing the murder. Further, the incriminating testimony of several other 15 witnesses as well as significant physical evidence, as seen above in Part I, 16 implicated Petitioner in the murder. There is no reasonable probability that but 17 for the failure to suppress Mercy’s testimony, the outcome would have been 18 different. Accordingly, Petitioner's claim must be denied. 19 20 21 2. Failure to properly cross-examine the prosecutor’s witnesses. Petitioner asserts that his counsel's cross-examination of the prosecution's 22 expert witnesses about matters outside the expert’s field constituted ineffective 23 assistance of counsel. Petitioner states that counsel’s cross-examination led to 24 continuous sustained objections from the prosecutor. As Petitioner did not 25 identify the witness himself about whom he contends counsel’s performance was 26 ineffective or state why the objections establish that counsel's performance was 27 28 19 1 2 deficient, there is no merit to Petitioner’s claim. Conclusory allegations about counsel's performance are insufficient to 3 raise a cognizable claim of ineffective assistance of counsel. See Jones v. 4 Gomez, 66 F.3d 199, 204 (9th Cir. 1995); Hendricks v. Vasquez, 908 F.2d 490, 5 491 (9th Cir. 1990) (need specific facts in support of assertions and indication of 6 how counsel's allegedly deficient performance prejudiced his defense); Boehme 7 v. Maxwell, 423 F.2d 1056, 1058 (9th cir. 1970) (“[a]llegations of fact, rather 8 than conclusions, are required”). Petitioner identifies no exculpatory or 9 impeachment evidence that counsel could have revealed by further questioning 10 of any of the prosecution’s witnesses that would have produced a more favorable 11 result at trial. Nor has Petitioner raised any plausible doubt that the jury's 12 ultimate finding of guilt would have been different had his counsel not been 13 objecting in this manner. 14 Since this court cannot speculate on what Petitioner’s issue is, Petitioner 15 has not satisfied the first prong of Strickland. Strickland, 466 U.S. at 687. 16 Therefore, it is not necessary for this court to examine the actual prejudice prong 17 of the Strickland. Id. at 700. He is not entitled to relief on this ineffective 18 assistance of counsel claim. 19 Even if this court interprets Petitioner’s claim to mean that the trial court 20 denied him a fair trial when it prevented the line of questioning, Petitioner is not 21 entitled to habeas relief. From this Court’s examination of the record, it appears 22 that Petitioner may be referring to the testimony of Anthony Camacho, a police 23 evidence technician at the Oakland Police Department. 24 Camacho’s duties include processing evidence for latent fingerprints. RT 25 at 789. In this case, Camacho was assigned to examine the Chevy Tahoe for 26 evidence and was able to lift two prints found on the bumper of the Tahoe. Id. at 27 28 20 1 820, 843. Camacho also examined the duct tape that was found on and near 2 Barba and was able to develop several prints. Id. at 861, 863, 868-869. 3 Petitioner’s counsel attempted to have Camacho answer a hypothetical 4 question regarding the presence of blood on the duct tape but the trial court did 5 not permit the question to be answered due to the lack of an adequate foundation. 6 RT at 876. The exchange occurred as follows: 7 8 [Ms. Levy]: Now, I would like to give you a hypothetical. If an individual is duct taped and strapped into a chair and beaten very badly so that a witness claims there’s a lot of blood, would you expect more blood on the duct tape than you observed? 9 10 11 12 [Prosecutor]: Objection. Improper hypothetical; also the witness hasn’t been qualified as an expert. The Court: Sustained. I don’t know that you laid a sufficient foundation that he has enough training and experience in that particular kind of situation where a person is taped to a chair and beaten, with more blood. 13 [. . .] 14 15 [Ms. Levy]: And have you had experience in those cases to see how much blood is left at a scene when someone is assaulted in these particular cases? 16 [Mr. Camacho]: Yes. 17 18 [Ms. Levy]: And have you ever had a prior case where someone has been assaulted or beaten while in a chair? 19 [Mr. Camacho]: While in a chair? Maybe car seats, quite a few, but not it – not that I can remember in a chair. 20 21 22 23 24 25 26 [Ms. Levy]: And in those cases where an individual has been assaulted in car seats, did you find blood all over the chair? [Prosecutor]: I object. It’s also improper, because it doesn’t indicate the severity of the beating, the type of the beating, the instrument used, or anything like that. The Court: Given the testimony of Dr. Rogers, a person might not even bleed much. Sustained. I think this would be pretty speculative on his part. RT at 876-877. 27 28 21 1 The trial court's exclusion of this line of questioning did not deprive 2 Petitioner of due process. See Taylor v. Illinois, 484 U.S. 400, 410 (1998). First, 3 the state had a significant interest in excluding opinion testimony that a witness 4 is neither qualified to give nor have any reasonable basis for opinion. See 5 generally Cal. Evid. Code §§ 801, 803. Second, this Court cannot conclude that 6 further inquiry on this topic would have contributed much to Petitioner's defense 7 that he did not participate in the murder of Barba. Whether Barba would have 8 bled more does not prove anything with regard to Petitioner’s involvement. As 9 such, Petitioner is not entitled to relief on this claim. 10 11 3. Failure to call a DNA and fingerprint expert. Petitioner asserts that his trial counsel was ineffective because she “failed 12 to consult” a DNA and fingerprint expert. Presumably, Petitioner believes a 13 defense expert would challenge the conclusions reached by the Prosecution's 14 experts, who were called as witnesses to support the prosecution's theory that 15 Petitioner killed Barba and that the murder occurred at Petitioner’s residence. 16 Counsel's failure to call an expert witness can be grounds for an 17 ineffective assistance of counsel claim. See Schell v. Witek, 218 F.3d 1017, 18 1028-29 (9th Cir. 2000) (counsel failed to solicit fingerprint expert where only 19 evidence against defendant was a fingerprint). But courts have found that a trial 20 counsel's strategic decision to forgo calling an expert and to instead rely on 21 cross-examination of the prosecution's witness does not render counsel 22 ineffective. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999)(where the 23 evidence does not warrant it, the failure to call an expert does not amount to 24 ineffective assistance of counsel). And even if counsel's failure to consult and 25 present expert testimony was unreasonable, Petitioner must show that such 26 failure prejudiced his case. See Richter v. Hickman, 521 F.3rd 1222, 1230-32 27 28 22 1 (9th Cir. 2008). As discussed in more detail below, this Court concludes that the 2 decision of Petitioner’s counsel to forego calling an expert did not fall below 3 reasonable standards of care. 4 First, Petitioner has not provided any evidence in his petition that shows 5 that defense counsel did not investigate the possibility of calling a DNA and 6 fingerprint expert whose testimony would be helpful to Petitioner. In fact, the 7 record indicates that Petitioner’s counsel did have the fingerprints to her own lab. 8 RT at 82-83. Second, Petitioners’ counsel’s cross-examination of the 9 prosecutor’s experts was thorough and competent. Petitioner’s counsel 10 appropriately sought to raise a reasonable doubt as to when the prints were made, 11 by establishing on cross-examination that the prints on the duct tape and print on 12 the Tahoe could have been left by Petitioner at some earlier point in time. Id. at 13 890, 891. Furthermore, Petitioner’s counsel questioned Anne Jancse, the expert 14 who compared Petitioner’s prints to those found, regarding the dissimilarities of 15 the matches. Id. at 1087. Petitioner’s counsel also elicited that no search was 16 conducted for a match of the fingerprints in a computer database, id. at 1098, 17 1100, or that the age of the fingerprints could be determined. Id. at 1102-1103. 18 Petitioner has failed to establish that another expert’s testimony in regard to the 19 fingerprint and DNA matches would necessarily have been favorable to his 20 defense. 21 Even if counsel was deficient under these circumstances, Petitioner's 22 claim would fail because he has not established prejudice. Strickland, 466 U.S. 23 at 694 (prejudice occurs when “there is a reasonable probability that, but for 24 counsel's unprofessional errors, the result of the proceeding would have been 25 different”). The Court must make this determination by considering “the totality 26 of the evidence before the judge or jury.” Id. at 695. Where a state's case against 27 28 23 1 a defendant is “weakly supported by the record” the outcome of the defendant's 2 case is “more likely to have been affected by the errors than one with 3 overwhelming record support.” Id. at 696. However, nothing in this record 4 suggests that a DNA or fingerprint expert would have testified that either (1) the 5 DNA found on the stair runner belonged to someone other than the victim or (2) 6 it was not Petitioner's fingerprints that were found on the duct tape or car 7 bumper. Instead, the overwhelming body of other physical and testimonial 8 evidence strongly points to Petitioner's guilt. The testimony of witnesses who 9 saw the victim the day he disappeared and the numerous inconsistencies in 10 Petitioner's account of his own robbery, as well as the testimony of other 11 witnesses and experts all support the conviction. Petitioner’s speculation on 12 possible scientific evidence trial counsel could have offered does not support a 13 finding of a reasonable likelihood such error would have resulted in a different 14 outcome. 15 16 17 4. Failure to object to the prosecutor’s comment during closing. Petitioner further claims ineffective assistance based on counsel’s failure 18 to object to the prosecutor’s closing argument. Specifically, Petitioner claims 19 counsel failed to object to the prosecutor’s statement: “We do not even need to 20 show where the murder took place, but I suspect even the defense would agree 21 that the murder took place in the shop.” RT at 1510. 22 This claim is also analyzed under Strickland. First, the Petitioner must 23 show that his counsel's failure to object was objectively unreasonable. Petitioner 24 has made no showing that his counsel's failure to object to these comments by 25 the prosecutor fell outside the bounds of reasonably competent professional 26 assistance, or that he was prejudice by counsel's failure to interpose an objection. 27 28 24 1 This Court finds that trial counsel's decision not to object to the 2 prosecutor's comment falls squarely within the category of trial tactics and 3 counsel's actions were not objectively unreasonable. It is likely counsel chose 4 not to object to the prosecution's rebuttal because any objection likely would 5 have focused undue attention on the prosecution's statements. See United States 6 v. Molina, 934 F.2d 1440, 1448 (9th Cir. 1991) (“From a strategic perspective. . . 7 many trial lawyers refrain from objecting during closing argument to all but the 8 most egregious misstatements by opposing counsel on the theory that the jury 9 may construe their objections to be a sign of desperation or hyper-technicality.”); 10 see also United States v. Young, 470 U.S. 1, 13 (1985)(“[I]nterruptions of 11 arguments, either by opposing counsel or the presiding judge, are matters to be 12 approached cautiously.”). Under these circumstances, the court cannot say that 13 counsel's failure to object to the prosecution's closing argument was 14 professionally unreasonable. United States v. Necoechea, 986 F.2d 1273, 1281 15 (9th Cir. 1993) (defense attorney's failure to object during closing argument to 16 prosecutor's vouching not ineffective assistance of counsel). 17 Secondly, Petitioner must also show that counsel's failure to object was 18 prejudicial and that “the result of the proceeding would have been different.” 19 Strickland, 466 U.S. at 694; Jackson v. Brown, 513 F.3d 1057, 1082 (9th Cir. 20 2008) (“[E]ven if [counsel's] failure to object was deficient, we cannot find that, 21 but for his errors, there is a reasonable probability that the jury would not have 22 still convicted [petitioner].”). Petitioner has not raised any plausible doubt that 23 the jury's ultimate finding of guilt would have been different had counsel 24 objected to this statement. Even if Petitioner's counsel did object to the 25 prosecutor’s comments regarding the location of the murder, there is no 26 reasonable probability that the outcome would have been different. The 27 28 25 1 evidence presented at trial was sufficient to convict Petitioner regardless of the 2 prosecutor’s comments. 5. 3 Failure to investigate a witness’s “angry statement” 4 Petitioner contends that he suffered prejudice based upon an “angry 5 statement” by a trial witness.3 Although Petitioner contends that defense counsel 6 failed to properly investigate and have the witness called back for questioning, 7 the record proves contrary. The record in this case demonstrates that counsel did 8 bring up the comment to the judge. RT at 1048-1049. Neither trial counsel, nor 9 the judge or bailiff saw the interaction. Id. at 1049-1050. The trial judge then 10 decided to question the jury to see if any of the jurors had seen it and if so, to 11 deal with that person alone. Id. at 1052. However, none of the jurors saw 12 anything. Id. at 1052, 1093. Thus Petitioner has not demonstrated that the 13 statement had any impact on his verdict. Thus, there is no showing of unfairness 14 constituting a denial of due process. 15 16 6. Error in overall defense strategy Petitioner argues that counsel was ineffective for arguing that Petitioner 17 “could only be an aider and abettor after the fact.” But, a tactical decision by 18 counsel with which the defendant later disagrees is not a basis for a claim of 19 ineffective assistance of counsel. Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 20 1984); United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981). Tactical 21 decisions of trial counsel deserve deference when: (1) counsel in fact bases trial 22 conduct on strategic considerations; (2) counsel makes an informed decision 23 based upon investigation; and (3) the decision appears reasonable under the 24 25 3 27 Petitioner failed to specify who was the speaker of the “angry statement,” however, after a review of the record this Court assumes that Petitioner’s claim refers to witness Mr. Perez, whom Petitioner claimed mouthed the words “fucking asshole” to Petitioner as he left the stand. RT at 1049. 28 26 26 1 circumstances. See Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). 2 Whether counsel's actions were indeed tactical is a question of fact considered 3 under 28 U.S.C. § 2254(d)(2); whether those actions were reasonable is a 4 question of law considered under 28 U.S.C. § 2254(d)(1). Edwards v. 5 LaMarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). 6 In determining whether the defendant received effective assistance of 7 counsel, a court “will neither second-guess counsel's decisions, nor apply the 8 fabled twenty-twenty vision of hindsight,' but rather, will defer to counsel's 9 sound trial strategy.” Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001) 10 (quoting Strickland, 466 U.S. at 689). "Because advocacy is an art and not a 11 science, and because the adversary system requires deference to counsel's 12 informed decisions, strategic choices must be respected in these circumstances if 13 they are based on professional judgment." Strickland, 466 U.S. at 681 14 Based upon this court's review of the record, it appears that counsel made 15 a reasonable tactical decision to ask the jury to find Petitioner guilty of accessory 16 after the fact, given the extent of the physical evidence implicating Petitioner and 17 presumably recognizing that there was little, if any, chance that the jury would 18 conclude that Petitioner had not participated in Barba’s demise. At trial, the jury 19 heard two different theories explaining the evidence. From the state, the jury 20 heard that Petitioner was an active and willing participant in the murder of 21 Barba, RT at 1493, the murder occurred in the course of a robbery, id. at 1501, 22 and Barba was bound and tortured. Id. at 1492. From the defense, the jury heard 23 that the only things connecting Petitioner to the death of Barba was his name on 24 the lease, id. at 1543, and that he is cousins with the buyer of Barba’s drugs. Id. 25 at 1548. However, in needing to explain Petitioner’s fingerprints on the duct 26 tape and the suspect fire at his store, Petitioner’s counsel argued that Petitioner 27 28 27 1 was at most involved in covering up the murder. Id. This strategic decision was 2 not clearly unreasonable under the circumstances. Judicial scrutiny of counsel’s performance is highly deferential, and this 3 4 Court finds that counsel’s conduct falls within the wide range of reasonable 5 professional assistance. See Strickland, 466 U.S. at 689 (tactical decisions which 6 are objectively reasonable cannot form the basis of an ineffective assistance of 7 counsel claim). In the absence of any evidence to the contrary, this Court cannot 8 say that counsel's strategy to argue for a “lesser included” crime of accessory 9 after the fact constitutes ineffective assistance of counsel. In addition, Petitioner 10 makes no effort to explain how presenting this theory prejudiced him during trial. 11 There is no merit to this claim. 12 III. 13 Ineffective Assistance of Appellate Counsel. Petitioner asserts that his appellate counsel rendered ineffective assistance 14 on the grounds that appellate counsel 1) failed to challenge the ineffective 15 assistance of counsel claims; and 2) failed to challenge the sufficiency of the 16 evidence supporting the murder charge. 17 A. 18 The Due Process Clause of the Fourteenth Amendment guarantees a Legal Standard 19 criminal defendant the effective assistance of counsel on his first appeal as of 20 right. See Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective 21 assistance of appellate counsel are reviewed according to the standard set out in 22 Strickland. Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States 23 v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986). A defendant therefore must show 24 that counsel's advice fell below an objective standard of reasonableness 25 (“performance prong”) and that there is a reasonable probability that, but for 26 counsel's unprofessional errors, he would have prevailed on appeal (“prejudice 27 28 28 1 prong”). Miller, 882 F.2d at 1434 & n.9 (citing Strickland, 466 U.S. at 688, 694; 2 Birtle, 792 F.2d at 849). The Strickland framework for analyzing ineffective 3 assistance of counsel claims is considered to be “clearly established Federal law, 4 as determined by the Supreme Court of the United States” for the purposes of 28 5 U.S.C. § 2254(d) analysis. See Taylor, 529 U.S. at 404-08. 6 Appellate counsel does not have a constitutional duty to raise every 7 nonfrivolous issue requested by defendant. See Jones v. Barnes, 463 U.S. 745, 8 751-54 (1983); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997); 9 Miller, 882 F.2d at 1434 n.10. The weeding out of weaker issues is widely 10 recognized as one of the hallmarks of effective appellate advocacy. See id. at 11 1434 (footnote and citations omitted). Appellate counsel therefore will 12 frequently remain above an objective standard of competence and have caused 13 his client no prejudice for the same reason--because he declined to raise a weak 14 issue. See id. 15 16 B. Analysis Because Petitioner's claim that his trial counsel was ineffective for failing 17 to suppress Mercy’s testimony is without merit, it therefore follows that his 18 appellate counsel was not ineffective for failing to raise that issue or an 19 ineffective assistance of trial counsel claim based on that issue on appeal. See 20 Strickland, 466 U.S. at 687-88 (requiring a showing of deficient performance as 21 well as prejudice). 22 Petitioner also asserts that appellate counsel was ineffective for failing to 23 challenge the sufficiency of the evidence for the murder conviction. Appellate 24 counsel does not have a constitutional duty to raise every non-frivolous issue 25 requested by defendant. See Jones, 463 U.S. at 751-54; Gerlaugh, 129 F.3d at 26 1045; Miller, 882 F.2d at 1434 n.10. Here, ample evidence supported Petitioner's 27 28 29 1 conviction for murder. Because the evidence supporting Petitioner's murder 2 conviction is substantial, it cannot be said that appellate counsel's failure to 3 challenge the sufficiency of the evidence for such conviction constitutes deficient 4 performance. See Miller, 882 F.2d at 1434 (the weeding out of weaker issues is 5 widely recognized as one of the hallmarks of effective appellate advocacy). 6 Because there is no merit or entitlement to relief on Petitioner's ineffective 7 assistance of counsel or cumulative error claims, appellate counsel could not 8 have been ineffective for failing to raise them on direct appeal. CONCLUSION 9 10 The state court’s denial of Petitioner’s habeas petition is not contrary to or 11 an unreasonable application of established federal law determined by the 12 Supreme Court. Therefore, Petitioner’s claims are DENIED. The Clerk shall 13 enter judgment and close the file. 14 IT IS SO ORDERED. 15 DATED: November 2, 2009 16 _____________________ JEFFREY S. WHITE United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 30
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