Toliver v. Malfi, No. 3:2007cv02744 - Document 28 (N.D. Cal. 2009)

Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS re 1 Petition for Writ of Habeas Corpus filed by Andre Toliver. Signed by Judge William Alsup on 9/22/09. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 9/23/2009)

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Toliver v. Malfi Doc. 28 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 Petitioner, 12 13 No. C 07-2744 WHA (PR) ANDRE TOLIVER, 11 For the Northern District of California United States District Court 10 DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS v. A. J. MALFI, Warden, 14 Respondent. / 15 16 This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. 2254. The 17 court ordered respondent to show cause why the writ should not be granted. Respondent has 18 filed an answer and a memorandum of points and authorities in support of it, and has lodged 19 exhibits with the court. Petitioner has responded with a traverse. For the reasons set forth 20 below, the petition is DENIED. STATEMENT 21 A jury convicted petitioner of six counts of robbery. See Cal. Penal Code 211. With 22 23 sentencing enhancements, he was sentenced to prison for forty-five years and four months. His 24 conviction was affirmed on direct appeal by the California Court of Appeal and the California 25 Supreme Court denied review. Petitioner’s state habeas petitions also were denied. 26 /// 27 /// 28 /// Dockets.Justia.com 1 2 DISCUSSION A. A district court may not grant a petition challenging a state conviction or sentence on the For the Northern District of California 3 United States District Court STANDARD OF REVIEW 4 basis of a claim that was reviewed on the merits in state court unless the state court's 5 adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an 6 unreasonable application of, clearly established Federal law, as determined by the Supreme 7 Court of the United States; or (2) resulted in a decision that was based on an unreasonable 8 determination of the facts in light of the evidence presented in the State court proceeding." 28 9 U.S.C. § 2254(d). The first prong applies both to questions of law and to mixed questions of 10 law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong 11 applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 12 (2003). 13 A state court decision is “contrary to” Supreme Court authority, that is, falls under the 14 first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 15 reached by [the Supreme] Court on a question of law or if the state court decides a case 16 differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 17 Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application of” 18 Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly identifies 19 the governing legal principle from the Supreme Court’s decisions but “unreasonably applies 20 that principle to the facts of the prisoner’s case.” Id. at 413. The federal court on habeas 21 review may not issue the writ “simply because that court concludes in its independent judgment 22 that the relevant state-court decision applied clearly established federal law erroneously or 23 incorrectly.” Id. at 411. Rather, the application must be “objectively unreasonable” to support 24 granting the writ. See id. at 409. 25 “Factual determinations by state courts are presumed correct absent clear and 26 convincing evidence to the contrary.” Miller-El, 537 U.S. at 340. This presumption is not 27 altered by the fact that the finding was made by a state court of appeals, rather than by a state 28 trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082, 2 1 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present clear and 2 convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory 3 assertions will not do. Id. 4 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination 5 will not be overturned on factual grounds unless objectively unreasonable in light of the 6 evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340; see also Torres 7 v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). For the Northern District of California United States District Court 8 When there is no reasoned opinion from the highest state court to consider the 9 petitioner’s claims, the court looks to the last reasoned opinion, which in this case is that of the 10 California Court of Appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Shackleford 11 v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir.2000). 12 B. ISSUES PRESENTED 13 Petitioner was convicted of having committed six armed robberies (Opinion of Court of 14 Appeal of California at 1).1 Two of the robberies were of the same Round Table Pizza 15 restaurant, two others were of the same Radio Shack Store, one was of a Chevron station, and 16 one was of a Payless Shoe Source store (id. at 2-6). All of the robberies were committed in 17 daylight by a person who pointed what appeared to be a gun at an employee and demanded 18 money (ibid.). 19 As grounds for federal habeas relief, petitioner asserts that: (1) the seizure at the jail of 20 his clothing violated his right to an attorney, which he had invoked; (2) his trial and appellate 21 counsel were ineffective in not raising issue one and a Fourth Amendment issue with regard to 22 the seizure of his clothing; (3) the evidence was insufficient to support the gun-use 23 enhancements; (4) his right to represent himself was violated; (5) his due process rights were 24 violated by the trial court’s refusal to suppress a line-up identification; (6) trial counsel was 25 Because the record lodged in support of respondent’s answer is not labeled with exhibit numbers – for instance, the opinion of the Court of Appeal of California is simply labeled “Opinion of the California Court of Appeal” – citations in this order cannot be to exhibits, as is usual. The court of appeal opinion will be cited hereafter as “Opinion.” For the same reason the court reporter’s transcript will be cited as “RT,” and the trial court file supplied by the clerk on state court appeal (the clerk’s transcript) will be cited as “CT.” 1 26 27 28 3 1 ineffective in not moving to sever the counts; and (7) trial counsel was ineffective in not 2 moving to strike his second “three strikes” conviction. 3 1. 4 In the early morning hours of November 10, 2000, petitioner was arrested for assaulting 5 a police officer, possession of narcotics, and violation of parole (RT, Vol. 1 at 39, 41). At 6 around 3:30 pm an officer told him he would have to be in a lineup (id. at 86). Petitioner said 7 he wanted to call an attorney, so he was allowed to leave his cell and went towards a phone he 8 could use (id. at 42). The officer seized the clothing petitioner had been wearing (id. at 86). For the Northern District of California 9 United States District Court Clothing Petitioner’s contention that the seizure of the clothes violated his right to an attorney is 10 presumably based on Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (suspect who expresses 11 desire to have counsel present during custodial interrogation not subject to further interrogation 12 until counsel is made available). It fails for a number of reasons. First, there is no basis in the 13 record for concluding that the seizure occurred after, rather than before, petitioner’s reference to 14 an attorney.2 Secondly, petitioner did not unequivocally invoke his right to counsel, the record 15 showing only that he asked to call an attorney. See Davis v. United States, 512 U.S. 452, 16 459-62 (1994) (suspect must unambiguously request counsel; "Maybe I should talk to a lawyer" 17 insufficient). Thirdly, seizure of physical evidence – or the demand for it on the part of the 18 police – does not amount to interrogation as that term is used in Edwards. See United States v. 19 McClellan, 165 F.3d 535, 544 (7th Cir. 1999) (consent to search given after defendant requested 20 counsel, and fruits of that search, need not be suppressed). 21 For these reasons, the rejections of this claim by the state appellate courts were not 22 contrary to, or unreasonable applications of, clearly established United States Supreme Court 23 authority. 24 /// 25 Petitioner’s motion for an evidentiary hearing was denied because he failed to show that he attempted to develop the facts in state court but was prevented from doing so, a prerequisite for an evidentiary hearing in federal court. See Hutchison v. Bell, 303 F.3d 720, 747 (6th Cir. 2002) (requiring petitioner to demonstrate “sufficient diligence”).” The denial was without prejudice to renewing the motion with a showing of due diligence, but petitioner has not renewed the motion. 2 26 27 28 4 1 2. 2 The jury found that petitioner had used a firearm in all but one of the offenses (Opinion 3 at 1). Petitioner argues that it was a BB gun, hence not a firearm (Pet. 6A). There was, 4 however, testimony at trial as to each count that the robber used a gun, except as to the count on 5 which the jury found the gun use allegation not to be true, the Chevron robbery (RT, Vol. 1 at 6 194-95, 229-30; Vol. 2 at 287-94, 400-02, 408-09). There was no evidence to support 7 petitioner’s contention that it was a BB gun. Two witnesses familiar with firearms testified that 8 the guns used in the robberies were real guns (RT, Vol. 1 at 252; Vol. 2 at 315-18). For the Northern District of California 9 United States District Court Sufficiency of Evidence -- Gun-Use Enhancements The Ninth Circuit has held, applying a similar federal law, that a witness’s testimony 10 that a robber used “a gun” is sufficient to support a jury verdict that a “firearm” was used. 11 United States v. Harris, 792 F.2d 866, 868 (9th Cir. 1986); see also United States v. Taylor, 54 12 F.3d 967, 975-76 (1st Cir. 1995) (same); Parker v. United States, 801 F.2d 1382, 1384-85 (D.C. 13 Cir. 1986) (same). There was sufficient evidence to support the gun-use enhancements. The 14 state courts’ rejections of this claim were not contrary to, or an unreasonable application of, 15 clearly established Supreme Court authority. 16 3. 17 Petitioner contends that his rights under Faretta v. California, 422 U.S. 806 (1975), 18 Faretta Claim were violated when the trial court denied his motion to represent himself. 19 The California Court of Appeal set out the factual background: 20 In a pretrial hearing on November 26, 2001, defense counsel informed the court that if his counteroffer to the prosecution to resolve the case was rejected, defendant wished to represent himself. Defense counsel also relayed defendant's request for a reduction in bail due to his mother's liver disease. The court asked defendant if he wanted to fire defense counsel and represent himself. The court advised him not to do that and that his request for bail was independent of his request for self-representation: “One is not dependent upon the other, Mr. Toliver. It's not ‘I'll represent myself if you reduce my bail.’ They're all independent of each other. And representing yourself is simply not a good idea. [¶] Is this a career criminal case?” When the district attorney answered in the affirmative, the court stated: “Then it is a very, very bad idea. Don't do that, Mr. Toliver. Whatever you do, don't do that.” The record does not contain any further colloquy between defendant and the court but indicates that defense counsel and defendant conferred, whereupon the matter was concluded. The clerk's minutes indicate that defendant's request for bail reduction was denied. /// 21 22 23 24 25 26 27 28 5 1 2 3 4 5 6 7 8 /// On January 28, 2002, defendant filed a Marsden [FN4. People v. Marsden (1970) 2 Cal.3d 118.] motion. The court held a hearing on the motion. Defendant explained that he was unable to agree with defense counsel, did not get along with him or trust him, and counsel had not filed a section 995 motion. Defendant further complained that counsel made statements in court that defendant was willing to enter a plea bargain. Defense counsel explained that during plea negotiations, he informed the court that defendant was willing to admit two of the charged robberies and that the court had offered a sentence of 26 years and 8 months, based on consecutive sentencing for two armed robberies. Counsel further explained that he had not filed the section 995 motion because defendant asked him to make that motion before the preliminary hearing. The issue in that motion pertained to identification; counsel was exploring that issue with two experts and was considering whether to call them at trial. Defense counsel further explained that he did not find any viable section 995 issues. 9 11 For the Northern District of California United States District Court 10 12 Defendant then argued that counsel failed to follow up on information pertaining to the actual perpetrator of the robberies. Defense counsel explained that the individuals mentioned by defendant had not been identified by any of the witnesses to the robberies, that he recently hired a new investigator who had already met with defendant, and that he was going to follow up on the issue, but given the positive identifications of defendant by the majority of the witnesses alleged to have been robbed, he did not hold out much hope on the issue. 13 14 The court denied the motion, reasoning that there was no conflict, that defense counsel was competent, and that his investigator was working on the issue of identification. 15 16 17 18 19 20 Defendant filed another Marsden motion on November 14, 2002. At the hearing, defendant complained that counsel was trying to convince him to take a 30-year deal or risk a 60-year term. He also argued that counsel had visited him only once since the last court date in order to tell him he rescheduled a court date, had not given him copies of search warrants and had not moved to suppress the lineup identification. Defense counsel explained that this was a serial robbery case based on eyewitness identifications and that he planned to make an in limine motion to suppress the identifications. He also informed the court that he asked the district attorney for copies of any search warrants, but that he was not aware of any. The trial court denied the motion, finding that defense counsel had no duty to “spin his wheels” on pointless matters or to file frivolous motions. 21 22 23 24 25 26 27 28 On January 13, 2003, the matter was set for jury trial. Defendant filed another Marsden motion. He complained that defense counsel had made no effort to resolve their differences, that he had not visited him or investigated any of the matters he requested. Defense counsel explained that he visited defendant a couple of times in jail, but not since the previous Marsden motion. His investigator made several attempts to speak with defendant and was investigating a potential mistaken identity defense in the case. When the court denied defendant's motion, he told the court that he wanted to represent himself. The court took defendant's request under advisement and continued the matter for three days. On January 16, 2003, defendant told the court that he wished to represent himself, “If I can't get another attorney....” The trial court denied the motion, finding that his motion to represent himself was untimely, as it was made on the 6 1 2 3 eve of trial and that it was an equivocal request because it was made immediately after and in response to the court's denial of his Marsden motion. Defendant then requested a 90-day continuance to retain a private attorney. The court denied the request, finding that it was untimely. The court noted that the case had been pending since 2000 and there had been ample time for defendant to make his requests (Opinion at 6-8). 4 For the Northern District of California United States District Court 5 The court of appeal held that petitioner’s Faretta rights were not violated as to either 6 request to represent himself. As to the first request, the one on November 26, 2001, the court 7 found that the request was equivocal because he “conditioned his request on whether his 8 counteroffer to resolve the case was rejected,” and because he was under the impression that his 9 request to represent himself and his request for bail reduction were intertwined (Opinion at 9). 10 As to the second motion, on January 16, 2003, the court found that the motion was untimely and 11 equivocal (id. at 10). 12 A criminal defendant has a Sixth Amendment right to self-representation. Faretta v. 13 California, 422 U.S. 806, 832 (1975). But defendant's decision to represent himself and waive 14 the right to counsel must be unequivocal, knowing and intelligent, timely, and not for purposes 15 of securing delay. Id. at 835; United States v. Arlt, 41 F.3d 516, 519 (9th Cir. 1994); Adams v. 16 Carroll, 875 F.2d 1441, 1444 & n.3 (9th Cir. 1989). The requirement that the decision be 17 expressed unequivocally serves two purposes: it ensures that the defendant does not 18 inadvertently waive his right to counsel, Meeks v. Craven, 482 F.2d 465, 467 (9th Cir. 1973), 19 and also prevents the defendant from taking advantage of the mutual exclusivity of the rights to 20 counsel and self-representation, Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989). If a 21 defendant equivocates, he is presumed to have requested the assistance of counsel. Id. The 22 court considers "three factors to determine whether a request for self-representation is 23 unequivocal: the timing of a request, the manner in which the request was made, and whether 24 the defendant repeatedly made the request." Stenson v. Lambert, 504 F.3d 873, 882 (9th Cir. 25 2007). The determination whether a Faretta motion was unequivocal is a finding of fact, to 26 which a federal habeas court must apply Section 2254(d)(2) (habeas relief unavailable as to 27 findings of fact unless the state court decision “was based on an unreasonable determination of 28 the facts in light of the evidence presented in the State court proceeding."). Id. at 884 (9th Cir. 7 1 2 As to the first Faretta motion, petitioner undoubtedly was equivocal; he tried to 3 condition the motion both on the outcome of his bail reduction motion and on the prosecution’s 4 response to his offer to resolve the case (RT (11/26/01) at 1-2). Thus although the timing of 5 this request was not such as to suggest equivocation, the manner of his making it was. The 6 court of appeal’s holding that the motion was equivocal was not an unreasonable determination 7 of the facts in light of the evidence presented. For the Northern District of California 8 United States District Court 2007). The second Faretta motion was untimely. The Faretta language describing Faretta's 9 request to represent himself as having been made "weeks before trial," 422 U.S. at 835, is part 10 of the holding of the Court, and thus is "clearly established Federal law, as determined by the 11 Supreme Court of the United States," for purposes of relief under the current version of 28 12 U.S.C. 2254(d). Moore v. Calderon, 108 F.3d 261, 265 (9th Cir. 1997). After Moore, it is clear 13 that Faretta clearly established some timing element, but the precise contours of that element 14 are not clear, beyond the fact that requests made "weeks before trial" are timely. Marshall v. 15 Taylor, 395 F.3d 1058, 1061 (9th Cir. 2005). Because the Supreme Court has not clearly 16 established when a Faretta request is untimely, other courts, including state courts, are free to 17 do so, as long as they comport with the Supreme Court's holding that a request made "weeks 18 before trial" is timely. Ibid. (holding that California court’s decision was not "contrary to" 19 clearly established Supreme Court law under 28 U.S.C. 2254(d) when it found that petitioner's 20 Faretta request on the first day of trial before jury selection was untimely). 21 Here, the second Faretta motion was made on the day the case was called for trial, and 22 although jury selection did not in fact start that day, but rather two days later, under the analysis 23 adopted in Marshall the rejections of this claim by the state appellate courts were not contrary 24 to, or unreasonable applications of, clearly established United States Supreme Court authority. 25 For these reasons, petitioner’s Faretta claims are without merit. 26 4. 27 Petitioner contends that his due process rights were violated by admission at trial of a 28 witness's identification of him as the person who robbed the Payless Shoe Source store. The LINEUP 8 1 2 3 4 5 6 7 following are the facts of the lineup issue as set out by the court of appeal: On November 10, 2000, defendant was arrested on an unrelated matter. At the time of his arrest, defendant was wearing denim jeans with a Sean Jean logo on the right leg and a denim jacket. Davis, the victim of the Payless Shoe Source robbery, had given the police a description of the robber's clothing that included the distinctive Sean Jean jeans and a black jacket. A physical lineup was conducted in connection with the “fisherman hat” robberies on November 13, 2000. Defendant participated in the lineup. Sergeant Beal required that defendant wear the clothes in which he was arrested because the jeans were distinctive and the clothing matched the description given by Davis. Because a hat was worn during several of the robberies, Beal required that the individuals in the lineup wear a dark baseball cap. 8 9 11 For the Northern District of California United States District Court 10 12 Beal and Officer Flemings picked five men from the Oakland City Jail who were similar in appearance to defendant. At the time of the lineup, defendant was 34 years old, six feet one inch tall and weighed 155 pounds. The other individuals chosen for the lineup were similar in height, but weighed more. Defendant, however, did not appear to be the thinnest in the lineup due to his clothing which made him appear heavier or similar to the others in stature and build. Defendant, a light complected African-American, had a complexion similar to two of the individuals in the lineup while the other three were of medium-to-dark complexion. 13 16 Defendant moved to suppress the lineup, arguing that it was impermissibly suggestive because the other individuals in the lineup were dissimilar in appearance and his clothing was substantially similar to that worn by the suspect in one of the robberies. The trial court, after viewing a videotape of the lineup, denied the motion, finding that it was not impermissibly suggestive (Opinion at 10-11). 17 The court of appeal rejected this claim, saying: 18 While requiring defendant to wear the jeans with the distinctive logo during the lineup did not result in the ideal procedure, the lineup was not unnecessarily suggestive. 14 15 19 20 21 22 23 24 25 26 Davis, who was robbed at the Payless Shoe Source store just four days prior to the lineup, testified that he was certain that defendant was the man who robbed him when he selected him in the lineup. “Everything was familiar to me. The clothes he was wearing, the baseball cap. The way he stands. The way his facial appearance was. Everything. Besides, he walked with a limp, which he actually didn't do. Like he was trying too hard to limp at that time.” In fact, Davis testified that he recognized defendant as the robber immediately as he was walking towards his position in the lineup, before he stopped and turned to face the audience. In sum, Davis's identification of defendant was not based solely on the distinctive clothing; defendant has failed to prove that the lineup was unduly suggestive. (See People v. Harris (1971) 18 Cal. App.3d 1, 5-6 [“The mere fact that defendant was wearing the same color pants worn by the robber did not make the lineup unfair”]; People v. McDaniels (1972) 25 Cal. App.3d 708, 711-712 [same].) (id. at 12-13). 27 28 "A conviction which rests on a mistaken identification is a gross miscarriage of justice." 9 For the Northern District of California United States District Court 1 Stovall v. Denno, 388 U.S. 293, 297 (1967). Procedures by which the defendant is identified as 2 the perpetrator therefore must be examined to assess whether they are unduly suggestive. Neil 3 v. Biggers, 409 U.S. 188, 198 (1972). Due process protects against the admission of evidence 4 deriving from suggestive pretrial identification procedures. Id. at 196. Identification testimony 5 violates due process only if (1) a pretrial encounter is so impermissibly suggestive as to give 6 rise to a very substantial likelihood of irreparable misidentification, and (2) the identification is 7 not sufficiently reliable to outweigh the corrupting effects of the suggestive procedure. Van 8 Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir. 1986). An identification procedure is 9 impermissibly suggestive when it emphasizes the focus upon a single individual, thereby 10 increasing the likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 382-83 11 (1968). 12 testimony. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). To determine whether in-court 13 identification testimony is sufficiently reliable, courts consider five factors: (1) the witness' 14 opportunity to view the defendant at the time of the incident; (2) the witness' degree of 15 attention; (3) the accuracy of the witness' prior description; (4) the level of certainty 16 demonstrated by the witness at the time of the identification procedure; and (5) the length of 17 time between the incident and the identification. Id. at 114; Neil, 409 U.S. at 199-200. These 18 factors should be weighed against the corrupting effect of the suggestive identification itself. 19 Manson, 432 U.S. at 114. 20 21 22 Reliability is the linchpin in determining the admissibility of identification A reviewing court may assume suggestiveness and review reliability first. Van Pilon, 799 F.2d at 1339. That will be done here. At the time of the robbery the witness had about five minutes to view the robber, and he 23 was close to him (RT, Vol. 2 at 289-91, 322). The witness was calm, so was not distracted by 24 fear (id. at 293-94). The first two factors, therefore, cut in favor of the identification being 25 reliable. As to the third factor, the witness described the robber as being a medium-complected 26 African-American man of about twenty-two to twenty-four years of age, black hair and brown 27 eyes, 6 feet one to six feet two, 160-170 pounds, with a moustache and goatee (id. at 319). In 28 fact, petitioner was a light-complected African-American man, thirty-four years old, six feet 10 1 one inch tall, weighing 155 pounds, and with the facial hair as described by the witness (id. at 2 75, 87, 90). The accuracy of the witness’s prior description to police might best be described as 3 “fair,” so this factor cuts neither one way nor the other. 4 The witness demonstrated a very high level of confidence in his identification at the 5 time it was made (id. at 334-37), and the lineup was only four days after the robbery (id. at 6 319). The fourth and fifth factors therefore support the reliability of the identification. 7 In summary, four of the factors support reliability, and one is roughly neutral or slightly 8 favors petitioner. Having considered the factors set out in Manson, the Court concludes that the 9 identification was reliable, and thus that despite its arguable suggestiveness, its admission did 11 For the Northern District of California United States District Court 10 not violate due process. Because admission of the witness’s identification did not violate petitioner’s due process 12 rights, the rejections of this claim by the state courts’ were not contrary to, or an unreasonable 13 application of, clearly established United States Supreme Court authority. 14 5. 15 Petitioner contends that his trial counsel was ineffective in (1) not raising the claim that INEFFECTIVE ASSISTANCE OF COUNSEL 16 seizure of his clothing violated his right to counsel and his Fourth Amendment rights; (2) not 17 moving to sever the counts; and (3) not moving to strike the second of his prior “three strikes” 18 convictions. He also asserts that appellate counsel was ineffective in not raising on appeal the 19 claims regarding seizure of his clothing. 20 In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner 21 must show two things. First, he must show that counsel's performance was deficient, i.e., that it 22 fell below an “objective standard of reasonableness” under prevailing professional norms. 23 Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Secondly, he must establish that he 24 was prejudiced by counsel’s deficient performance, i.e., that “there is a reasonable probability 25 that, but for counsel's unprofessional errors, the result of the proceeding would have been 26 different.” Id. at 694. A reasonable probability is defined as a probability sufficient to 27 undermine confidence in the outcome. Ibid. Judicial scrutiny of counsel’s performance must 28 be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls 11 1 within the wide range of reasonable professional assistance. Id. at 689. A difference of opinion 2 as to trial tactics does not constitute denial of effective assistance. United States v. Mayo, 646 3 F.2d 369, 375 (9th Cir. 1981), and tactical decisions are not ineffective assistance simply 4 because in retrospect better tactics are known to have been available. Bashor v. Risley, 730 5 F.2d 1228, 1241 (9th Cir. 1984). 6 a. For the Northern District of California United States District Court 7 Trial Counsel Petitioner contends that his trial counsel was ineffective in not moving to suppress 8 evidence on the grounds that police officers seized his clothing from him at the jail in violation 9 of his right to counsel and without a warrant. It has been determined above that the seizure did 10 not violate petitioner’s right to counsel, and “the Fourth Amendment has no applicability to a 11 prison cell.” Hudson v. Palmer, 468 U.S. 517, 536 (1984). It thus would have been futile for 12 counsel to make the motions petitioner suggests, and counsel was not ineffective in failing to 13 make them. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (trial counsel cannot 14 have been ineffective for failing to raise a meritless motion). 15 Petitioner also contends that trial counsel was ineffective in not moving to sever the 16 counts. This claim was raised on direct appeal. The California Court of Appeal held that under 17 California law a severance motion would have been futile (Opinion at 13-14). That holding on 18 a matter of state law is binding on this Court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) 19 (state court's interpretation of state law, including one announced on direct appeal of challenged 20 conviction, binds federal court sitting in habeas corpus). Counsel’s failure to make such a 21 motion therefore could not have been ineffective assistance. See Juan H., 408 F.3d at 1273. 22 Finally, petitioner contends that counsel was ineffective with regard to application of the 23 “three strikes” law at his sentencing. He contends that counsel should have asked the 24 sentencing court to strike the prior “strike” offense that was used to enhance his sentence. As 25 respondent points out, counsel in fact did do so (RT, Vol. 3 at 771). And to whatever extent 26 petitioner may be claiming that counsel should have made a facial challenge to the three-strikes 27 law itself under either state or federal law, such a motion would have been futile. See, e.g., 28 Ewing v. California, 538 U.S. 11, 24-28 (2003) (California’s 3-strikes law constitutional on its face); People v. Reed, 33 Cal. App. 4th 1608 (1995) (rejecting ex post facto challenge). 12 1 2 Petitioner’s right to effective assistance of counsel was not violated, so the rejections of 3 these claims by the state courts were not contrary to, or an unreasonable application of, clearly 4 established Supreme Court authority. 5 6 For the Northern District of California b. Appellate Counsel Petitioner contends that appellate counsel was ineffective in failing to raise his 7 contentions that his right to counsel and his Fourth Amendment rights were violated when 8 police seized his clothing at the jail. 9 United States District Court Counsel was not ineffective on this ground. Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue 10 requested by defendant. Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart, 11 129 F.3d 1027, 1045 (9th Cir. 1997); Miller v. Keeney, 882 F.2d 1428, 1434 n.10 (9th Cir. 12 1989). The weeding out of weaker issues is widely recognized as one of the hallmarks of 13 effective appellate advocacy. Miller, 882 F.2d at 1434. Appellate counsel therefore will 14 frequently remain above an objective standard of competence and have caused his client no 15 prejudice for the same reason -- because he or she declined to raise a weak issue. Id. 16 As discussed above, the claims regarding the seizure of petitioner’s clothing are without 17 merit, so counsel’s failure to raise them on appeal was not ineffective. Because counsel was not 18 ineffective, the state courts’ rejections of these ineffective assistance claims were not contrary 19 to, or an unreasonable application of, clearly established Supreme Court authority. 20 CONCLUSION 21 The petition for a writ of habeas corpus is DENIED. The clerk shall close the file. 22 IT IS SO ORDERED. 23 Dated: September 22 , 2009. 24 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 25 26 27 28 G:\PRO-SE\WHA\HC.07\TOLIVER2744.RUL2.wpd 13 For the Northern District of California United States District Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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