York v. Ducart, No. 3:2015cv01521 - Document 16 (N.D. Cal. 2015)
Court Description: ORDER Denying Petition for Writ of Habeas Corpus. Signed by Judge Edward M. Chen on 12/21/2015. (emcsec, COURT STAFF) (Filed on 12/21/2015)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 KENNETH PAUL YORK, 7 Plaintiff, 8 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. 9 10 CLARK E. DUCART, Defendant. 11 12 For the Northern District of California United States District Court Case No. 15-cv-01521-EMC Petitioner Kenneth Paul York was convicted by a jury of first-degree murder, attempted 13 14 residential robbery, residential burglary, and assault with a firearm. The jury also found true the 15 special circumstance allegation that the murder was committed while Mr. York was engaged in the 16 commission or attempted commission of the crimes of burglary and robbery. Mr. York was 17 sentenced to life without the possibility of parole, plus three years in state prison. Currently 18 pending before the Court is Mr. York petition for a writ of habeas corpus, brought pursuant to 28 19 U.S.C. § 2254. In the petition, Mr. York seeks to have his conviction vacated on the grounds that 20 his trial counsel provided ineffective assistance. Having considered the parties briefs and 21 accompanying submissions,1 the Court hereby DENIES Mr. York s petition. 22 I. FACTUAL & PROCEDURAL BACKGROUND Mr. York was convicted of a crime that took place at approximately 1:10 a.m. on May 10, 23 24 2004, at an apartment in Pleasant Hill, California.2 The testimony at his trial has largely been 25 1 26 With respect to his traverse, Mr. York has moved for leave to file excess pages. The state has not opposed the motion. Accordingly, that motion is hereby GRANTED. 27 2 28 Although the crime took place in 2004, Mr. York was not arrested and charged until several years later, after a person (Lenny Cabrera, also known as Marco Cabrera) gave investigators information suggesting that Mr. York was involved in the crime. 1 summarized by the California appellate court in its decision People v. York, No. A128201, 2012 2 Cal. App. Unpub. LEXIS 9153 (Cal. Ct. App. Dec. 17, 2012). To wit: Two people lived at the 3 Pleasant Hill apartment where the crime took place, Merlin Fidler and James Connelly. Mr. Fidler 4 was a seller of marijuana. Two people broke into the apartment, apparently to steal drugs and/or 5 money, and Mr. Fidler was shot and killed. One of the persons, an African American man by the 6 name of Tyson Morehead, was never caught. The other person was allegedly Mr. York. At trial, 7 Mr. York tendered the theory that the second perpetrator was in fact a different person – a former 8 friend of his – by the name of Junior Perez. Mr. Connelly had seen the second perpetrator during the crime, albeit briefly. When the police 11 interviewed Mr. Connelly a few hours after the murder, Mr. Connelly stated that the second 12 For the Northern District of California In support of its case, the prosecution had Mr. Fidler s roommate, Mr. Connelly, testify. 10 United States District Court 9 perpetrator was between 5 3” and 5 5” tall, which is close to the height of Mr. Perez. See RT 424. 13 But shortly before the trial, Mr. Connelly changed this estimate and told the prosecution that the 14 second perpetrator was between 5 6” and 5 8” tall, which is close to the height of Mr. York. See 15 RT 426. Mr. Connelly explained: “I think I realized that [my initial estimate] was pretty 16 inaccurate and gave it better thought.” RT 429. At trial, Mr. Connelly also stated that Mr. York 17 looked like the second perpetrator. RT 422. However, several years earlier, in November 2006, 18 Mr. Fidler had been shown a photo lineup and had not been able to identify the second perpetrator. 19 See RT 420-21, 460-61. 20 In addition to Mr. Connelly, the state offered multiple other witnesses in support of its 21 case, including Mr. Perez and several of Mr. Perez s relatives, including Lauren Lackey (Mr. 22 Perez s girlfriend at the time of the crime and now his wife), Tesse Perez (Mr. Perez s sister and 23 Mr. York s girlfriend at the time of the crime), Logan Lackey (Ms. Lackey s brother), and 24 Christopher O Connor (Mr. Perez s cousin). Some of Mr. Perez s friends also testified, including 25 Dave Anderson and Mr. Cabrera (the latter being the person who first gave investigators 26 information suggesting that Mr. York was involved with the crime). Each of these persons 27 implicated Mr. York, in some fashion, as the second perpetrator. For example: 28 Mr. Perez. Mr. Perez testified (after being granted immunity) that, during the relevant 2 1 period, he and Mr. York were friends,3 see RT 887; that he and Mr. York were in business 2 together dealing in marijuana, see RT 891-94; that he and Mr. York knew and talked about a 3 marijuana dealer in Pleasant Hill (i.e., Mr. Fidler), see RT 902; and that Mr. York talked about 4 robbing that dealer. See RT 903. Mr. Perez also testified that, the day before the crime – which 5 was Mother s Day – Mr. York and Mr. Morehead were at Mr. Perez s apartment at about 3:00 6 p.m., where Mr. York again talked about robbing Mr. Fidler and that, at some point later during 7 the day, Mr. York called and said he was staking out the dealer s house and had been doing so for 8 about an hour. See RT 914-16, 927-28, 981. Mr. Perez further testified that Mr. York called him around 3:00 a.m. the following day 9 Mr. York s house. When Mr. Perez arrived, he saw Mr. York and Mr. Morehead standing there in 12 For the Northern District of California (i.e., several hours after the crime) while he was in bed with Ms. Lackey and asked him to come to 11 United States District Court 10 shock. Mr. York told Mr. Perez that “[s]hit went bad,” and Mr. York asked Mr. Perez to take a 13 duffel bag to a place in Nevada City that Mr. York and Mr. Perez co-owned. RT 921-22, 985. 14 Mr. Perez agreed to do so, went back to his home with Ms. Lackey, and then left later that same 15 morning to go to the Nevada City property with his friend, Mr. Anderson. See RT 925-27. 16 According to Mr. Perez, Mr. York came to the Nevada City property later that day or the next, 17 where he, in essence, confessed to Mr. Perez what had happened. See RT 929, 931-32, 995-96, 18 1004 (Mr. Perez testifying that Mr. York said, “Shit went bad and the guy got shot” and that Mr. 19 York showed him a newspaper article about the crime). Mr. Perez also testified that Mr. York 20 burned the contents of the duffel bag, which consisted of clothes and Mr. Morehead s wallet, and 21 disposed of the gun that he had brought with him. See RT 932-33, 936, 1005, 1007-09. In addition to the above, Mr. Perez testified that, at some point after he had left the Nevada 22 23 City property, Mr. York asked him to go to Mr. York s mother s house. Mr. Perez did so, as did 24 Mr. York, Ms. Lackey (Mr. Perez s then-girlfriend, now wife), and Ms. Perez (Mr. York s then- 25 girlfriend and Mr. Perez s sister). See RT 941. According to Mr. Perez, Mr. York s mother, 26 Jeannette York, told everyone “to go about our business, go to parties, make appearances, act like 27 28 3 Some time after the murder, Mr. Perez and Mr. York had a falling out. See RT 954. 3 1 nothing happened.” RT 942-43. Ms. York also gave everyone a lawyer s business card and said, 2 “If anyone comes to you to talk to you, to call him.” RT 943. Either on that day or some day 3 thereafter, Ms. York also told Mr. Perez, in the presence of Mr. York, that, “if Kenny [i.e., Mr. 4 York] gets in trouble, that I will be in trouble with him because I took the bag up to the property.” 5 RT 951. Mr. Perez also indicated that, prior to the crime, Mr. York lived in Pleasant Hill but that, 6 7 after the crime, Mr. York basically moved and lived at the Nevada City property. See RT 951-52. 8 Ms. Lackey. As indicated above, Ms. Lackey was Mr. Perez s girlfriend at the time of the 9 crime and, at the time of trial, was his wife. She testified about Mr. Perez getting a phone call from Mr. York early in the morning after Mother s Day. See RT 723-24. She also testified about 11 the meeting that Mr. York s mother held after the murder. See RT 750-51, 758-61. Ms. Perez. As indicated above, Ms. Perez is Mr. Perez s sister and, at the time of the 12 For the Northern District of California United States District Court 10 13 murder, she was Mr. York s girlfriend. At the time of trial, the two were no longer dating.4 Ms. 14 Perez testified that, shortly after the murder, Mr. York basically confessed to her that he had 15 participated in the crime that resulted in Mr. Fidler s murder. See RT 1037-39, 1041-45. Ms. 16 Perez also testified that Mr. York started living at the Nevada City property soon after the murder. 17 See RT 1045-46. Finally, Ms. Perez testified about the meeting held by Mr. York s mother. See 18 RT 1052-54. 19 Mr. Cabrera. Mr. Cabrera knew Mr. York but was closer to Mr. Perez. See RT 1117-18, 20 1121. Mr. Cabrera testified (after being granted immunity) that, several months before the crime, 21 Mr. York talked to him about helping Mr. York rob someone (because Mr. Cabrera owed Mr. 22 York money). Mr. York indicated that Mr. Perez would also help with the robbery, possibly as a 23 driver (although Mr. Cabrera was uncertain on this point). See RT 1125-27. Approximately one 24 week before the crime, Mr. York called Mr. Cabrera and told him that it was time and that Mr. 25 York would pick him up from his house. But Mr. York never showed up, and Mr. York told Mr. 26 Cabrera later that he found someone else to go with him. Mr. York also told Mr. Cabrera that “it 27 28 4 It appears the two stopped dating around a year after the crime. See RT 1062. 4 1 went all bad,” that the victim knew martial arts and was getting the best of him, and that, as a 2 result, the victim was shot. RT 1128-32. At trial, Mr. Cabrera admitted that he could not 3 remember how much about the murder he learned from Mr. York and how much from Mr. Perez. 4 See RT 1149. Mr. Cabrera also admitted that he told the police something to the effect that he 5 wanted to protect Mr. Perez. See RT 1157. 6 Mr. Lackey. Mr. Lackey was Ms. Lackey s brother. Mr. Lackey testified that he was property that he had never seen before after Mr. York arrived at the property, that Mr. Lackey (and 9 possibly others) shot the gun, and that Mr. York talked about getting rid of the gun. See RT 599, 10 602-05, 616. Several days or weeks later, after Mr. York had moved to the property to live there, 11 Mr. Lackey asked Mr. York about the gun – “why he had to get rid of it” and “why he had let me 12 For the Northern District of California living at the Nevada City property during the period in question, that Mr. Lackey saw a gun at the 8 United States District Court 7 touch it if something was wrong with it.” RT 613-14. According to Mr. Lackey, Mr. York said 13 “somebody got shot with the gun, he had to get rid of it. He didn t really tell me why [he] had let 14 me handle it.” RT 614. 15 The prosecution, however, did not rely solely on the testimony of Mr. Connelly, Mr. Perez, 16 and Mr. Perez s relatives and friends. The prosecution also offered testimony from others who 17 were staying at the Nevada City property on the day of the crime and the days thereafter. For 18 example, Bryan Hart and Joel Olson testified. Mr. Hart and Mr. Olson were friends or 19 acquaintances of both Mr. Perez and Mr. York (and not just Mr. Perez alone). Although there was 20 some equivocation and/or backtracking by both witnesses, each provided testimony probative of 21 Mr. York s guilt. For example, Mr. Hart heard Mr. York say something to the effect that 22 something bad went down and that there was an African American man with him at the time. See 23 RT 539-40. Mr. Hart also testified that, around this time, he saw a certain gun on the property; 24 that he handled that gun; that, at some point, Mr. York left the property and came back; and that he 25 did not see the gun again after Mr. York came back. See RT 541. Finally, both Mr. Hart and Mr. 26 Olson indicated that they saw Mr. York burn some clothes at the property. See RT 536-37, 589, 27 656-57. In addition to Mr. Hart and Mr. Olson, neither of whom had a special allegiance to Mr. 28 Perez over Mr. York, the prosecution offered the testimony of Penny Morales, who, if anything, 5 1 had an allegiance to Mr. York. See RT 1795 (Ms. Morales testifying that she and Mr. York were 2 friends, that she was something of a mother figure for him, and that the two were “pretty close” 3 and would confide in one another at times). Ms. Morales testified that about a conversation that 4 she and Mr. York had a few years after the crime during which Mr. York told her that he had once 5 committed a home invasion when he was younger. See RT 1804-05. Ms. Morales also testified 6 about another conversation where Mr. York said he was upset that a friend of his had “ratted him 7 out” to the police. See RT 1807-08, 1811. After the evidence was submitted to the jury, the jury convicted Mr. York of, inter alia, 8 9 first-degree murder. Mr. York then appealed, but his conviction was affirmed. See generally id. Subsequently, Mr. York filed a state habeas petition, in which he raised ineffective assistance of 12 For the Northern District of California Mr. York appealed to the California Supreme Court, but again his conviction was affirmed. 11 United States District Court 10 trial counsel. After ordering and considering informal briefing, the California Supreme Court 13 summarily denied that petition. See Pet., Ex. B (order). Mr. York then filed the currently pending 14 petition before this Court. II. 15 16 A. DISCUSSION Legal Standard 17 Mr. York s case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 18 (“AEDPA”). Under AEDPA, habeas relief may be granted if the state court proceedings “resulted 19 in a decision that was contrary to, or involved an unreasonable application of clearly established 20 Federal law as determined by the Supreme Court of the United States” or resulted in a decision 21 that was “based on an unreasonable determination of the facts in light of the evidence presented in 22 the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). 23 Here, Mr. York takes the position that the California Supreme Court s rejection of his 24 ineffective-assistance-of-counsel claim was an unreasonable application of clearly established 25 Supreme Court law, i.e., Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, there 26 is ineffective assistance of counsel where (1) counsel s performance was deficient and (2) that 27 deficient performance prejudiced the criminal defendant s defense. “To establish deficient 28 performance, a person challenging a conviction must show that „counsel s representation fell 6 1 below an objective standard of reasonableness. ” Harrington v. Richter, 562 U.S. 86, 104 (2011). 2 “With respect to prejudice, a challenger must demonstrate „a reasonable probability that, but for 3 counsel s unprofessional errors, the result of the proceeding would have been different. A 4 reasonable probability is a probability sufficient to undermine confidence in the outcome. ” Id. 5 “Counsel s errors must be „so serious as to deprive the defendant of a fair trial, a trial whose result 6 is reliable.” Id. Of course, on habeas review, a court does not conduct a direct Strickland inquiry; rather, it 7 8 is limited to the question of whether the state court s application of the Strickland standard was 9 unreasonable. See id. at 101. As the Supreme Court has underscored, because 10 [t]he standards created by Strickland and § 2254(d) are both “highly deferential,” . . . when the two apply in tandem, review is “doubly” so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland s deferential standard. 12 For the Northern District of California United States District Court 11 13 14 15 16 Id. at 105. In the case at bar, the California Supreme Court did not articulate any specific rationale for 17 18 its rejection of the ineffective-assistance-of-counsel claim, and therefore this Court “must 19 determine what arguments or theories . . . could have supported[] the state court s decision; and 20 then it must ask whether it is possible fairminded jurists could disagree that those arguments or 21 theories are inconsistent with” Strickland. Id. at 102 (emphasis added). 22 B. Mr. York contends that his trial counsel, Michael Cardoza, was ineffective in four ways: 23 24 (1) Trial counsel should have introduced cell phone records in his possession that would have contradicted Mr. Perez s testimony that Mr. York called him at 3:00 a.m. on May 10, 2004. 25 26 Ineffective Assistance of Counsel (2) Trial counsel should have called Mr. York s grandmother as a witness as she would have 27 testified that Mr. York was at her house at the time of the murder and robbery, and Mr. 28 York s mother and brother, if called as witnesses, would have corroborated her testimony. 7 1 (3) Trial counsel should have introduced evidence that a newspaper article concerning the 2 crime was published on May 12, 2004, which would have damaged the credibility of 3 certain prosecution witnesses. 4 (4) Trial counsel should have called James MacDonald as a witness, as he would have 5 contradicted the testimony of certain prosecution witnesses. 6 The Court addresses each of these arguments in turn, focusing first on the deficiency prong 7 of Strickland and then turning to the prejudice prong. 8 C. 9 Deficient Performance 1. Cell Phone Records perpetrator was Mr. Perez but then failed to adequately put forth that defense because he failed to 12 For the Northern District of California According to Mr. York, his trial counsel properly asserted a defense that the second 11 United States District Court 10 offer evidence that would have put into question Mr. Perez s alibi – i.e., that the morning of the 13 murder, Mr. Perez was in bed with his then-girlfriend Ms. Lackey. See Alcala v. Woodford, 334 14 F.3d 862, 870 (9th Cir. 2003) (stating that “[t]rial counsel made a sound strategic choice to present 15 an alibi defense, but nonetheless failed in his duty to present that defense reasonably and 16 competently”). 17 As noted above, both Mr. Perez and Ms. Lackey indicated that Mr. York called Mr. Perez 18 early in the morning after Mother s Day. In an interview with the police that took place in June 19 2007, Mr. Perez stated that Mr. York called his cell phone; he also indicated that he and Mr. York 20 generally communicated through their cell phones rather than, e.g., pagers. See Pet., Ex. C 21 (Interview at 16). 22 Through a search warrant, the state was able to get the records for Mr. York s cell phone. 23 Those records reflected that Mr. York did not make a phone call from his cell phone to Mr. Perez 24 at 3:00 a.m. on May 10, 2004. See generally Pet., Exs. E-G. The state also attempted to get the 25 records for Mr. Perez s cell phone, but no records were found for the time requested. See Pet., Ex. 26 D at 92. 27 28 Although defense counsel, Mr. Cardoza, had in his possession the cell phone records for Mr. York, he did not introduce them at trial. Mr. York contends that, by failing to do so, counsel 8 1 provided ineffective assistance of counsel. Mr. York agrees that the fact that there was no record 2 evidence of any phone records corroborating Mr. Perez s claim benefitted his defense. However, 3 Mr. York argues, the fact that no call was made would have been affirmatively proven if his 4 counsel had submitted his cell phone records to the jury – records which in fact showed no 3:00 5 a.m. call was made. Mr. York also asserts that there was no downside to submitting the cell phone 6 records, and therefore there could have been no strategic reason for counsel not to offer the phone 7 records. 8 9 The Court agrees that the failure of counsel to submit the cell phone records was deficient performance. Even if the California Supreme Court found to the contrary (as this Court assumes it phone records. Although the state hypothesizes that there could have been a strategic reason, it 12 For the Northern District of California did), that conclusion was not reasonable. There was no apparent strategic reason not to offer the 11 United States District Court 10 fails to offer any specifics as to what advantage Mr. York could have obtained by keeping the 13 evidence away from the jury. See Ans. at 15 (stating that “respondent can only surmise that the 14 reason why defense counsel would opine that it was better for the defense case if the jury did not 15 see any telephone records is those records contained information that would have strengthened the 16 prosecution s case or damaged the defense theory of the case”). 17 The Court acknowledges that the evidence would not have conclusively established Mr. 18 Perez was the second perpetrator. It is possible, for example, that Mr. York called Mr. Perez from 19 another phone – e.g., a landline or even Mr. Morehead s cell phone. And even assuming that Mr. 20 York never called Mr. Perez at 3:00 a.m. on May 10, that might suggest that Mr. Perez was lying, 21 was not at home, and/or was involved with the robbery and murder, but that still would not rule 22 out Mr. York as also being involved with the crime. Cf. RT 1125-27 (Mr. Cabrera testifying that 23 Mr. York talked about planning a robbery in which he, Mr. York, and Mr. Perez would all 24 participate, with Mr. Perez potentially being the driver). 25 Nevertheless, even if not dispositive, counsel had no strategic reason not to introduce the 26 cell phone records. The upside of the evidence outweighed any downside because it would at the 27 very least call into question Mr. Perez s credibility. Notably, even a juror honed in on the 28 importance of any documentary evidence on the phone call that Mr. York purportedly made to Mr. 9 1 Perez, asking the Court during trial (via a jury note): “Do phone records exist which confirm Mr. 2 York called Jr. Perez on the morning of 11 May 04?”5 CT 298. Accordingly, even under the doubly deferential standard that the Court applies because of 3 4 the § 2254 context in which Strickland has been raised, the Court finds that any conclusion that 5 defense counsel was not deficient would have been unreasonable. 6 2. Alibi Witnesses 7 Mr. York argues that counsel was deficient not only because he failed to attack Mr. Perez s 8 alibi but also because he failed to provide evidence that would have established an alibi for Mr. 9 York himself. The alibi evidence to which Mr. York refers would have been testimony from three witnesses – because all related to him – could easily be charged with bias but points out that many 12 For the Northern District of California family members: his grandmother, his mother, and his brother. Mr. York concedes that these 11 United States District Court 10 of the state witnesses were related to Mr. Perez and therefore had a similar bias in favor of Mr. 13 Perez (and, correspondingly, against Mr. York). Mr. York presented evidence that the family 14 members would have testified as follows: Eunice Mignola. Ms. Mignola (now deceased) was Mr. York s grandmother. At the time 15 16 of the crime, she was about 79 years old. See Pet., Ex. P at 12. According to Ms. Mignola, she 17 went to her daughter s house in Walnut Creek (i.e., Mr. York s mother s house) on May 9, 2004, 18 because it was Mother s Day. She arrived in the afternoon, around noon, and stayed there through 19 about 10:45 p.m. Mr. York was there the entire time. See Pet., Ex. P at 6-7. Mr. York drove her 20 home around 10:45 p.m., and, then 21 Kenny [i.e., Mr. York] came into my house with me. I had told the family that I had decided to remodel my kitchen and I wanted Cal York (Kenny s father) to do the job. Kenny had been working with Cal and he sat down, we then discussed what I should do with the kitchen. He stayed for quite a while. I looked at the clock on my oven and was surprised to see that it was almost 10 minutes after 1 A.M. I said to Kenny that it was so late that he should get home. He and I said our goodbyes and he left shortly after. 22 23 24 25 26 27 28 5 The juror appears to have made a mistake by referencing May 11 instead of May 10. Even the prosecution recognized that mistake. See RT 1774 (prosecution stating his opinion that the phone call referenced in the note was “the call at 3:00 o clock in the morning”). 10 1 2 Pet., Ex. N. Ms. Mignola told Mr. York s mother about what happened, and Ms. York told her that Mr. 3 York s attorney was aware of her testimony. However, counsel never contacted Ms. Mignola. 4 See Pet., Ex. N. During Mr. York s appeal, his appellate counsel contacted trial counsel regarding 5 Ms. Mignola. As reflected in a letter that appellate counsel wrote to Mr. York, trial counsel “was 6 aware that your grandmother could be called, but he was concerned that she would not stand up 7 well to rigorous cross-examination.” Pet., Ex. H. Appellate counsel added: “My experience is 8 that it is very easy for a prosecutor to convince a jury that close family members are lying when 9 they testify for the defense.” Pet., Ex. H. Mignola s testimony. According to Ms. York, Mr. York arrived at her house in the afternoon and 12 For the Northern District of California Jeannette York. Ms. York is Mr. York s mother. She would have corroborated Ms. 11 United States District Court 10 stayed there until he drove his grandmother home around 11:00 p.m. Ms. York spoke to Ms. 13 Mignola the following day, and Ms. Mignola commented, “„[I]sn t it nice that Kenny spent so 14 much time with me. Not too many young people would do that. ” Pet., Ex. M. Ms. York told 15 trial counsel about Ms. Mignola s willingness to testify at the time of Mr. York s arrest. She also 16 raised the possibility of Ms. Mignola testifying several times thereafter. For example, during 17 discovery, Ms. York asked counsel if he had contacted Ms. Mignola, and he responded “„that it 18 could put Kenny there” because “he was getting different times as far as when the crime occurred 19 and time of death.” Pet., Ex. M. When Ms. York raised the issue at trial, counsel said, “„It would 20 look bad to have his Grandmother on the stand and that Kenny would look awful in the eyes of the 21 jury for subjecting his Grandmother to the abuse of the DA. ” Pet., Ex. M. When the defense 22 started presenting its case, Ms. York mentioned Ms. Mignola again and added that she could 23 testify to back her mother up. Counsel “basically said it would look bad because she was his 24 Grandmother and insinuated like no one would believe her. When I talked about testifying, he 25 suggested that I should not because I m his mother and also because the „DA had it out for me. ” 26 Pet., Ex. M. 27 28 Joey York. Joey York is Mr. York s brother, and he appears to have been in high school at the time of the crime. Joey York would have testified that Mr. York arrived at their mother s 11 1 house in the afternoon, around 4:30 p.m. Mr. York gave him a haircut while there and drove their 2 grandmother home around 10:00 p.m. or 10:30 p.m.6 See Pet., Ex. S. The above testimony would not have foreclosed Mr. Perez s testimony that, at around 3:00 3 4 p.m., Mr. York and Mr. Morehead were at Mr. Perez s house (with Mr. York talking about 5 robbing Mr. Fidler). Although Ms. Mignola indicated that Mr. York was at his mother s house 6 around noon, his brother put Mr. York s arrival later, at 4:30 p.m. Furthermore, given the timeline 7 provided by Joey York, it was still possible that, as Mr. Perez testified, Mr. York called Mr. Perez 8 after leaving his place and told him that he was staking out Mr. Fidler s place and had been doing 9 so for an hour. (Mr. Perez indicated that Mr. York and Mr. Morehead were at his place for only an alibi for the exact time that the murder was taking place, and Ms. York s testimony would have 12 For the Northern District of California about 10 minutes. See RT 917.) Nevertheless, Ms. Mignola s testimony provided Mr. York with 11 United States District Court 10 corroborated Ms. Mignola s, at least to the extent Ms. York and Ms. Mignola talked about Mr. 13 York s spending time with his grandmother the day after Mother s Day. The critical question thus becomes whether trial counsel was deficient in not having Ms. 14 15 Mignola and Ms. York testify as alibi witnesses. As to Ms. York, the Court cannot say that it was 16 unreasonable for counsel not to call Ms. York as a witness. Clearly, there was a strategic reason 17 not to call her to the stand. She was not simply a biased witness because of her relationship to Mr. 18 York (i.e., his mother); instead, she was a biased witness because there was evidence from three 19 different witnesses (i.e., Mr. Perez, Ms. Perez, and Ms. Lackey) that she had called a meeting and 20 basically counseled everyone not to disclose what had taken place. In short, it would have been 21 easy for the prosecution to paint Ms. York as someone who was willing to do whatever was 22 necessary to cover up the crime in order to protect her son. As for Ms. Mignola, however, the Court reaches a different conclusion. It is certainly 23 24 plausible that, had counsel interviewed Ms. Mignola, he could have reached a reasonable decision 25 not to call her as a witness (or at least it would have been reasonable for a court to conclude such). 26 Ms. Mignola was an elderly witness, and therefore her memory could have been challenged, 27 6 28 It is not clear from the record that trial counsel was aware of Joey York s testimony. See also Ans. at 18. For purposes of this order, the Court assumes trial counsel had such knowledge. 12 1 especially given the conflict between her testimony and Joey York s testimony regarding Mr. 2 York s arrival time. Moreover, Ms. Mignola s testimony – on its face – was arguably problematic 3 from a credibility standpoint. A two-hour conversation about a kitchen remodel is questionable, 4 not even taking into account the fact that a conversation of that length would have a 79-year-old 5 woman stay up past 1:00 a.m. Furthermore, that Ms. Mignola happened to look at the clock at 6 1:10 a.m. exactly – the precise time of the murder – made her story questionable. 7 Nevertheless, the fact remains that trial counsel never took the time to interview Ms. 8 Mignola. As Mr. York contends, counsel had an obligation to conduct a reasonable investigation 9 that would enable him to make an informed decision as to whether or not Ms. Mignola should a reasonable investigation enabling him to make informed decisions about how best to represent 12 For the Northern District of California testify. See Alcala, 334 F.3d at 891 (stating that “[d]efense counsel must, at a minimum, conduct 11 United States District Court 10 his client”) (internal quotation marks and emphasis omitted); Campbell v. Reardon, 780 F.3d 752, 13 764 (9th Cir. 2015) (stating that “the proper inquiry . . . is not whether it was reasonable for 14 counsel to present the too-dark-to-identify theory, but whether the investigation supporting 15 counsel s decision not to call [or interview] Mr. Hunter and Ms. Leonard [two disinterested 16 eyewitnesses] was itself reasonable[;] [i]f counsel s decision not to investigate Mr. Hunter or Ms. 17 Leonard was itself unreasonable, then his decision not to present their testimony – and to rely on 18 the too-dark-to-identify theory instead – was too ill-informed to be considered reasonable”). 19 Without interviewing Ms. Mignola, counsel could not have made an informed decision as to 20 whether she could, e.g., withstand a cross-examination by the prosecution. The need to interview 21 Ms. Mignola was especially important because Mr. Perez – the second perpetrator under Mr. 22 York s version of the events – would be offering an alibi as to whereabouts at the time of the 23 murder. Compare Alcala, 334 F.3d at 891 (noting that a lawyer may make a reasonable decision 24 that a particular investigation is unnecessary); Campbell, 780 F.3d at 765 (noting the same but 25 stating that, “[b]ecause the State s case hinged on eyewitness testimony, counsel s „decision that it 26 was unnecessary to look for and contact such eyewitnesses cannot be described as reasonable ”). 27 Accordingly, the Court concludes that not only was counsel deficient in not interviewing Ms. 28 Mignola but also it would have been unreasonable for a court not to find deficient performance. 13 1 3. Newspaper Article 2 Mr. York contends that his trial counsel was also deficient in not offering evidence that 3 would have shown that a certain newspaper article regarding the crime was not published until 4 May 12, 2004.7 According to Mr. York, that evidence would have put into question Mr. Perez s 5 credibility, as well as the credibility of one of his friends, Mr. Anderson, as both testified that Mr. 6 York arrived at the Nevada City property on May 10 or 11, 2004. Mr. York also argues that this 7 proof would have helped his case because it would have shown that, unlike Mr. Perez, he “did not 8 immediately flee to the Nevada City property.” Pet. at 22. Here, the Court concludes that it would not have been unreasonable for a court to find no 9 would have done little to damage Mr. Perez and Mr. Anderson s credibility – i.e., a jury could 12 For the Northern District of California deficient performance. Counsel could have reasonably decided not to offer the evidence as it 11 United States District Court 10 easily have concluded that Mr. Perez and/or Mr. Anderson were just mistaken about the exact 13 date, especially as they were testifying about events that took place some five years later. In 14 addition, counsel could have reasonably concluded that the evidence would be of minimal benefit 15 because, even under Mr. Perez and Mr. Anderson s version of the events, it was Mr. Perez who 16 left for the Nevada City property the morning of the crime while Mr. York did not arrive until 17 later, including potentially the following day. That Mr. York s evidence puts his arrival day one 18 day later is not particularly significant, especially compared to evidence that, after the murder, Mr. 19 York actually left the Bay Area and moved to the Nevada City property. 20 4. Mr. MacDonald 21 Finally, Mr. York argues ineffective assistance by trial counsel because he did not call one 22 of the identified defense witnesses, Mr. MacDonald, to the stand to testify. According to Mr. 23 York, Mr. MacDonald would have provided testimony to rebut the testimony of Peter Chang, one 24 of the state s witnesses. At trial, Mr. Chang, a drug dealer, testified about an incident in which he, 25 Mr. MacDonald, and a third individual drove a Black Escalade (the same kind of car that Mr. 26 7 27 28 Several witnesses referred to a newspaper article that Mr. York had with him on the day that he arrived at the Nevada City property. That article had a sketch of the alleged perpetrator of the crime. Mr. York has submitted evidence that the only article with a sketch in it was published on May 12, 2004. 14 1 York) to Mr. Fidler s residence so that Mr. Chang could buy drugs. According to Mr. York, the 2 prosecution used this evidence to argue that Mr. York was the third individual and therefore knew 3 where Mr. Fidler lived, thus putting Mr. York in a position to rob Mr. Fidler. Mr. MacDonald, if 4 called as a witness, would have testified that “I have never been in the presence of Peter Chang or 5 Kenny York at the same time” and “I never used Kenny s Escalade to meet or pick up Peter 6 Chang.”8 Pet., Ex. O. Thus, Mr. York contends, he could not have been the third person in the 7 car. Mr. York contends that, because Mr. MacDonald s testimony could only have benefitted his 8 case, there was no strategic reason not to offer it. Mr. York further suggests that the only reason 9 why counsel did not have Mr. MacDonald testify is that he was also representing Mr. MacDonald 10 at the same time in an unrelated matter. As above, here, the Court concludes that it would have been reasonable for a court to find 12 For the Northern District of California United States District Court 11 performance was not deficient. As a preliminary matter, the Court notes that there is no specific 13 evidence regarding counsel s alleged representation of Mr. MacDonald, including whether the 14 representation was for a civil or criminal matter. Without more evidence, it is impossible to say 15 whether there could have been a conflict of interest in counsel representing both Mr. MacDonald 16 and Mr. York and/or in having Mr. MacDonald testify in Mr. York s case. Thus, Mr. York s 17 argument that counsel decided not to have Mr. MacDonald testify for either his or Mr. 18 MacDonald s best interests (but not Mr. York s) is nothing more than speculation.9 See, e.g., Pet. 19 at 26 (arguing that trial counsel “knew that putting MacDonald on the witness stand would force 20 [counsel] to cross-examine MacDonald about subjects that would be injurious to his duty to 21 8 22 Mr. MacDonald s declaration, in which he states what his testimony would have been, states in relevant part as follows: 23 I have never been in the presence of Peter Chang or Kenny York at the same time. To my knowledge Peter and Kenny don t no [sic] ech [sic] other and have never hanged [sic] out. I never met Peter at Blondie s pizza. I never gave Peter a ride to pick up marijuana. I never used Kenny s Escalade to meet or pick up Peter Chang. 24 25 26 27 28 Pet., Ex. O. 9 That Mr. York s appellate counsel stated in a letter to Mr. York that Mr. Cardoza s representation of Mr. MacDonald “raises the potential for a claim that he had a conflict between [Mr. MacDonald s] interests and your interests,” Pet., Ex. H, is not to the contrary. 15 1 zealously represent his client”). Moreover, counsel could reasonably have opted not to call Mr. MacDonald for several 2 3 reasons. First, Mr. Chang never claimed that Mr. York was the third person in the car. In fact, 4 Mr. Chang testified that he had never met Mr. York. See RT 863. That being the case, there was 5 nothing for Mr. MacDonald to rebut. Second, Mr. MacDonald s declaration, in which he states 6 what he would have testified to, reflects grounds for not calling him as a witness. Notably, Mr. 7 MacDonald never testified that he did not know where Mr. Fidler lived (e.g., as a result of his 8 dealings with Mr. Chang). If Mr. MacDonald knew where Mr. Fidler lived, there would be a basis 9 for Mr. York to know even if he was not the third person in the car because Mr. MacDonald and 10 Mr. York were friends. 5. 12 For the Northern District of California United States District Court 11 Summary For the foregoing reasons, the Court agrees with Mr. York that it would have been 13 unreasonable for a court not to find deficient performance based on (1) trial counsel s failure to 14 offer Mr. York s cell phone records as evidence and (2) trial counsel s failure to interview Ms. 15 Mignola. However, the other deficiency grounds raised by Mr. York lack merit under the AEDPA 16 standard of review. 17 D. Prejudice 18 19 20 21 To establish prejudice under Strickland, “[t]he likelihood of a different result must be substantial, not just conceivable.” On AEDPA habeas review, “[i]nstead of considering whether [the petitioner] met the burden of proving prejudice, [a court] must decide whether the state post-conviction court was reasonable in determining that [he] was not prejudiced.” 22 Zapata v. Vasquez, 788 F.3d 1106, 116 (2015). In short, the question is whether “the state court s 23 prejudice analysis was contrary to, or an unreasonable application of, Strickland s prejudice 24 prong.” Id. See, e.g., Brown v. Williams, 597 Fed. Appx. 417, 418 (9th Cir. 2015) (stating that, 25 “[g]iven the substantial additional evidence presented at trial that is unaffected by [petitioner s] 26 ineffective assistance claims . . . [,] it was not unreasonable for the Nevada Supreme Court to 27 conclude that [petitioner s] evidence of prejudice fell short of proving that it was reasonably likely 28 that the result would have been different if [his] counsel had taken a different approach”); Murray 16 1 v. Schriro, 746 F.3d 418, 466 (9th Cir. 2014) (“agree[ing] . . . that the overwhelming evidence of 2 guilt forecloses any credible argument that the outcome of the trial would have been affected by 3 the proffered exculpatory evidence”; “[t]he implausibility of the proffered exculpatory version of 4 events and the strength of the inculpatory evidence both bolster the state court s finding under the 5 doubly deferential AEDPA review applicable to [ineffective-assistance-of-counsel] claims”). Here, the Court cannot say that a conclusion of no Strickland prejudice would have been 6 7 unreasonable. Even though Mr. Perez clearly had an interest in casting Mr. York as the second 8 perpetrator, and many of the witnesses who implicated Mr. York as the second perpetrator were 9 aligned with Mr. Perez, there were at least two “independent” witnesses who held no allegiance to with Mr. Perez s – e.g., that Mr. York talked about something bad happening while he was with an 12 For the Northern District of California Mr. Perez over Mr. York, namely, Mr. Hart and Mr. Olson. Each provided testimony consistent 11 United States District Court 10 African American man and/or that Mr. York burned clothing. Moreover, one witness, Ms. 13 Morales, who was aligned with Mr. York in terms of a personal relationship, also provided 14 evidence probative of Mr. York s guilt. While the testimony of these three witnesses was not free 15 of any criticism – for instance, Mr. Hart and Mr. Olson somewhat equivocated and/or backtracked 16 in their trial testimonies and Ms. Morales s testimony was not overly specific – that testimony still 17 buttressed the fact that Mr. York was involved in the robbery and murder. The Court also notes 18 that, contrary to what Mr. York argues in his papers, at the end of the day, it may not have been an 19 either/or proposition before the jury; that is, the jury was not necessarily faced with deciding 20 whether the second perpetrator was either Mr. York or Mr. Perez. Given the record, it is possible 21 that the jury could have believed Mr. Perez was actually involved with the robbery and murder in 22 some way (e.g., as a driver) but that fact would not have thereby absolved Mr. York of also being 23 involved. Accordingly, the Court concludes that Mr. York is not entitled to habeas relief. 24 25 26 E. Request for Evidentiary Hearing As a final point, the Court acknowledges Mr. York s request for an evidentiary hearing. 27 Mr. York, however, has failed to explain why he is entitled to an evidentiary hearing, particularly 28 after the Supreme Court s decision in Cullen v. Pinholster, 131 S. Ct. 1388 (2011). As explained 17 1 by the Ninth Circuit, 2 [i]n Cullen v. Pinholster, the Supreme Court held that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits,” and thus “evidence introduced in federal court has no bearing on § 2254(d)(1) review.” Thus, for claims that were adjudicated on the merits in state court, petitioners can rely only on the record before the state court in order to satisfy the requirements of § 2254(d). This effectively precludes federal evidentiary hearings for such claims because the evidence adduced during habeas proceedings in federal court could not be considered in evaluating whether the claim meets the requirements of § 2254(d). We recognized this implication in Stokley v. Ryan, where we held that Pinholster “directly bar[red]” a petitioner s demand for an evidentiary hearing on an ineffective assistance claim because the new evidence could not be considered on habeas review. 3 4 5 6 7 8 9 10 Gulbrandson v. Ryan, 738 F.3d 976, 993-94 (9th Cir. 2013). Notably, in Gulbrandson itself, the 12 For the Northern District of California United States District Court 11 Ninth Circuit concluded that, because the state court s rejection of petitioner s ineffective- 13 assistance-of-counsel claims were neither contrary to nor involved unreasonable applications of 14 Strickland, Pinholster barred the district court “from any further factual development on these 15 claims.” Id. at 994. 16 17 Accordingly, pursuant to Pinholster and binding Ninth Circuit authority, the Court denies Mr. York s request for an evidentiary hearing. III. 18 19 CONCLUSION For the foregoing reasons, the Court denies Mr. York s petition for a writ of habeas corpus. 20 In addition, the Court denies a certificate of appealability. This is not a case in which “reasonable 21 jurists would find the district court s assessment of the constitutional claims debatable or wrong.” 22 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 23 24 25 26 27 28 The Clerk of the Court shall enter judgment in accordance with the above and close the file in the case. IT IS SO ORDERED. Dated: December 21, 2015 ______________________________________ EDWARD M. CHEN United States District Judge 18
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