Davis v. Adams, No. 4:2008cv01978 - Document 21 (N.D. Cal. 2011)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 11/16/2011. (ndr, COURT STAFF) (Filed on 11/16/2011)
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Davis v. Adams Doc. 21 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 No. 08-01978 CW SHERMAN L. DAVIS, 9 Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY United States District Court For the Northern District of California 10 v. 11 DERRAL G. ADAMS, 12 Respondent. 13 / 14 15 Petitioner Sherman L. Davis, an inmate at Corcoran State 16 Prison, filed a pro se petition for a writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254, challenging the validity of his 2003 18 state conviction. 19 a traverse. 20 the Court denies the petition and denies a certificate of 21 appealability. 22 23 Respondent filed an answer, and Petitioner filed Having considered all the papers filed by the parties, BACKGROUND The following is a summary of the facts taken from the October 24 21, 2005 state appellate court’s unpublished opinion on direct 25 appeal and the transcript of Petitioner’s trial. 26 People v. Davis, 2005 Cal. App. Unpubl. LEXIS 9593 at *1-11. 27 I. California Bank and Trust Robbery 28 Resp’s. Ex. B. On October 16, 2001, Petitioner entered the Albany branch of Dockets.Justia.com 1 the California Bank and Trust, went to a teller window and told 2 teller Karen Nelson that he wanted to open a new account. 3 Stephanie Sims, another bank employee, directed Petitioner to a 4 desk. 5 left the bank. 6 bank. 7 threatened to shoot her. 8 After he pointed his gun at Nelson’s head and said that wasn’t 9 enough, another employee gave him more money. After speaking with Sims for five or ten minutes, Petitioner Sims then saw Petitioner quickly walk back into the Petitioner pointed a gun at Nelson, demanded money and Nelson gave Petitioner nearly $4,000. Petitioner received United States District Court For the Northern District of California 10 a total of $12,734. 11 safe deposit area, to lie down on the floor, and to wait three 12 minutes or he would kill them. 13 He told the five bank employees to go into the He then left the area. Sims, Nelson and another employee, Evelyn Herrera, identified 14 Petitioner as the bank robber from a videotaped lineup. 15 Chellew, the bank manager, initially identified another person in 16 the lineup, realized on her way home that Petitioner was the 17 robber, and called the police to correct her identification. 18 four witnesses testified at Petitioner’s trial and identified him 19 in court. 20 II. Body Time Robbery 21 Amelia These On October 26, 2001, Petitioner entered the Body Time shop on 22 College Avenue in Oakland and told an employee, Sophia Marzocchi, 23 that he was looking for something for his fiancée. 24 about ten minutes with Petitioner discussing perfumes. 25 Marzocchi left to ring up another customer, Petitioner said, “This 26 is a robbery. 27 Petitioner’s direction, the customers moved to an area behind a 28 I have a gun. Marzocchi spent When Everybody move to the back.” 2 At 1 curtain in the back of the shop, lay on their stomachs, and gave 2 him their cash. 3 threatening to kill her if she did not do so. 4 safe. 5 canvas Body Time bag. 6 customers in the back of the store and told all of them not to 7 leave, or he would shoot them. 8 9 Petitioner told Marzocchi to open the safe, Marzocchi opened the Petitioner took the $310 that was inside it and put it in a He told Marzocchi to lie down with the Marzocchi and witness Luz Mendoza identified Petitioner in a video lineup, and at his preliminary hearing and trial. Michelle United States District Court For the Northern District of California 10 Romano, another witness, did not identify Petitioner in the lineup, 11 but identified him at the preliminary hearing and the trial. 12 other witnesses did not identify Petitioner. 13 III. Ovation Robbery 14 Two On October 29, 2001, Petitioner entered the Ovation Clothing 15 Store on College Avenue in Oakland and told a sales clerk, Ingjred 16 Olsen, that he wanted a gift for his niece. 17 showing Petitioner various items, he pulled out a gun, pointed it 18 at another employee, Lesley Pulaski, and told Pulaski to give him 19 the money out of the cash register. 20 Pulaski put between $200 and $260 in an Ovation shopping bag and 21 handed the bag to him. 22 to get in the back. 23 refused and, when she tried to leave the store, Petitioner hit her 24 in the neck. 25 into the back room. 26 and customers, and they gave him what they had. 27 directed them into the bathroom, closed the door from the outside, 28 While Olsen was At Petitioner’s direction, Petitioner then told everyone in the store One customer, Sophie Grossman-de Vries, Grossman-de Vries then obeyed Petitioner and went Petitioner demanded money from the employees 3 Petitioner 1 and told them to do nothing for ten minutes or he would come back 2 and kill them. 3 Olsen, Pulaski, Grossman-de Vries and Melissa Oehler, another 4 customer in the shop, testified at Petitioner’s trial. 5 Vries and Olsen identified Petitioner at a video lineup, the 6 preliminary hearing and the trial. 7 identify Petitioner in the lineup, but identified him at the 8 preliminary hearing and trial. 9 IV. Boogie Woogie Bagel Boy Robbery and Sexual Assault United States District Court For the Northern District of California 10 Grossman-de Pulaski and Oehler did not On November 7, 2001, Jennifer W. was seated inside the Boogie 11 Woogie Bagel Boy shop, on Piedmont Avenue in Oakland, where her 12 boyfriend, Jeff Bjorlo, worked. 13 into a parking spot. 14 shop and ordered a bagel. 15 the patio tables. 16 to Jennifer’s, and began talking to her. 17 began helping Bjorlo prepare to close the shop for the day. 18 Petitioner came back inside to get a cup of coffee, went to his 19 car, returned to the store and went to the cash register with a 20 gun. 21 get in the back and motioned them into the office area. 22 Petitioner told Jennifer to lie down and went with Bjorlo to the 23 cash register. 24 $150 that was in the register into a brown bag on the desk. 25 She noticed a gold Ford Probe pull Petitioner got out of the car, came into the Jennifer went outside and sat at one of Petitioner came outside, sat at the table next She went back inside and He said, “This isn’t a joke,” and told Jennifer and Bjorlo to Petitioner directed Bjorlo to empty the $100 to Petitioner told Bjorlo to go into the bathroom. Then, he told 26 Jennifer to get on her knees, threatened her with his gun, put his 27 penis in her mouth and told her to orally copulate him. 28 4 She did 1 so. 2 arriving any minute. 3 her to go into the bathroom and lie down, and left the store. 4 Bjorlo called from the bathroom that the owner would be Petitioner pushed Jennifer’s head away, told Jennifer noticed some scars on Petitioner’s arm, and later she 5 said that they matched those in a photograph of Petitioner. 6 also identified a picture of Petitioner’s car as the car she saw 7 him driving on the day of the robbery. 8 Petitioner in a photo lineup and Jennifer tentatively identified 9 Petitioner by putting a question mark on his photo. She Bjorlo identified They United States District Court For the Northern District of California 10 identified Petitioner at the preliminary hearing and the trial. 11 V. Arrest and Trial 12 On November 8, 2001, Officer Eric Huesman of the Oakland 13 Police Department saw a car parked at the Sleepy Hollow Hotel in 14 Oakland matching the description provided by Jennifer. 15 testified that he would have described the car as silver, but that 16 it could be seen as gold. 17 Petitioner’s unit. 18 Huesman and looked nervous. 19 Huesman heard muffled noises coming from inside. 20 knocked a second time, Petitioner opened the door. 21 acknowledged that the Ford Probe was his. 22 Petitioner had “yellow teeth with a gap in them,” which matched the 23 description Jennifer had given of her attacker. 24 walked around to the back of the hotel and, on the ground 25 underneath the window of Petitioner’s unit, he found a black 26 semiautomatic pistol. 27 28 He Huesman knocked on the door of Petitioner looked through the curtain, saw Petitioner closed the curtain and After Huesman Petitioner Huesman noticed that Huesman later Based on this information, Huesman decided to arrest 5 1 Petitioner. 2 front of the hotel, Huesman saw Petitioner pulling out of the 3 parking lot in the Probe. 4 Petitioner said he would, but instead drove away. 5 ensued. 6 car and ran. 7 As Huesman and another officer walked back to the Huesman asked Petitioner to pull over. A car chase After Petitioner’s car struck a curb, he got out of the He was caught and taken into custody. On June 4, 2003, a jury trial commenced. The prosecutor’s 8 case consisted of testimony by the victims and witnesses of the 9 four robberies and sexual assault. The defense case consisted of United States District Court For the Northern District of California 10 the testimony of Martin Blinder, M.D., an expert in the field of 11 eye witness identifications, who pointed out factors that would 12 make eyewitness identifications less reliable. 13 presented testimony that no fingerprints or other physical evidence 14 connected Petitioner to the robberies or sexual assault. 15 The defense also On August 7, 2003, the jury found Petitioner guilty of ten 16 counts of second degree robbery, two counts of attempted robbery, 17 and one count of forcible oral copulation. 18 Petitioner had personally used a firearm in the commission of those 19 crimes and that he was an ex-felon in possession of a firearm. 20 After a bench trial, the court found beyond a reasonable doubt that 21 Petitioner had seven prior convictions. 22 to an indeterminate term of 343 years to life, with a consecutive 23 determinate term of 100 years. 24 25 The jury found that Petitioner was sentenced PROCEDURAL HISTORY Petitioner timely appealed his conviction to the California 26 court of appeal. 27 in an unpublished opinion, affirmed the judgment of conviction. 28 On October 21, 2005, the state appellate court, 6 On 1 November 23, 2005, Petitioner filed a petition for review in the 2 California Supreme Court, which was denied on February 1, 2006. 3 On April 16, 2008, Petitioner filed the instant federal 4 petition asserting eleven claims for relief. 5 exhausted only two of these claims in his direct appeal. 6 Court stayed the federal petition pending exhaustion of state 7 remedies. 8 in the state trial court. 9 denied the petition, finding that it was untimely. Petitioner had This On August 18, 2008, Petitioner filed a habeas petition On October 20, 2008, the trial court Resp.’s Ex. D. United States District Court For the Northern District of California 10 The court also stated, “Assuming that the petition was timely, or 11 otherwise been exempt [sic] from the timeliness requirement, relief 12 would be nonetheless denied on the merits for failure to state a 13 prima facie case for relief.” 14 filed a habeas petition in the California court of appeal, which 15 was denied summarily on November 20, 2008. 16 December 31, 2008, Petitioner filed a habeas petition in the 17 California Supreme Court, which was denied summarily on July 8, 18 2009. 19 stay and ordered Respondent to show cause why the writ should not 20 be granted. Resp.’s Ex. F. 21 22 On November 6, 2008, Petitioner Resp.’s Ex. E. On On October 16, 2010, this Court lifted the LEGAL STANDARD A federal court may entertain a habeas petition from a state 23 prisoner "only on the ground that he is in custody in violation of 24 the Constitution or laws or treaties of the United States." 25 28 U.S.C. § 2254(a). 26 Penalty Act of 1996 (AEDPA), a district court may not grant habeas 27 relief unless the state court's adjudication of the claim: 28 Under the Antiterrorism and Effective Death 7 1 “(1) resulted in a decision that was contrary to, or involved an 2 unreasonable application of, clearly established Federal law, as 3 determined by the Supreme Court of the United States; or 4 (2) resulted in a decision that was based on an unreasonable 5 determination of the facts in light of the evidence presented in 6 the State court proceeding." 7 Taylor, 529 U.S. 362, 412 (2000). 8 28 U.S.C. § 2254(d); Williams v. A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), 10 United States District Court For the Northern District of California 9 only if "the state court arrives at a conclusion opposite to that 11 reached by [the Supreme] Court on a question of law or if the state 12 court decides a case differently than [the Supreme] Court has on a 13 set of materially indistinguishable facts." 14 state court decision is an "unreasonable application of" Supreme 15 Court authority, under the second clause of § 2254(d)(1), if it 16 correctly identifies the governing legal principle from the Supreme 17 Court's decisions but "unreasonably applies that principle to the 18 facts of the prisoner's case." 19 habeas review may not issue the writ "simply because that court 20 concludes in its independent judgment that the relevant state-court 21 decision applied clearly established federal law erroneously or 22 incorrectly." 23 unreasonable" to support granting the writ. 24 Id. at 411. Id. at 413. Id. at 412-13. The federal court on The application must be "objectively Id. at 409. "Factual determinations by state courts are presumed correct 25 absent clear and convincing evidence to the contrary." 26 v. Cockrell, 537 U.S. 322, 340 (2003). 27 clear and convincing evidence to overcome the presumption of 28 A 8 Miller-El A petitioner must present 1 correctness under § 2254(e)(1); conclusory assertions will not do. 2 Id. 3 in determining whether a state court decision is objectively 4 unreasonable. 5 2003). 6 Ninth Circuit precedent remains relevant persuasive authority Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. If constitutional error is found, habeas relief is warranted 7 only if the error had a "'substantial and injurious effect or 8 influence in determining the jury's verdict.'" 9 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. United States District Court For the Northern District of California 10 11 Penry v. Johnson, 619, 638 (1993)). When there is no reasoned opinion from the highest state court 12 to consider a petitioner's claims, the court looks to the last 13 reasoned opinion of the highest court to analyze whether the state 14 judgment was erroneous under the standard of § 2254(d). 15 Nunnemaker, 501 U.S. 797, 801-06 (1991). 16 review under AEDPA is somewhat different where there is no reasoned 17 state court decision. 18 federal court should conduct “an independent review of the record” 19 to determine whether the state court’s decision was an objectively 20 unreasonable application of clearly established federal law. 21 Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). 22 Ylst v. However, the standard of When confronted with such a decision, a DISCUSSION 23 Petitioner asserts that his counsel was ineffective for 24 failing to: (1) call witnesses; (2) present evidence; (3) impeach 25 witnesses; (4) move to suppress evidence; (5) investigate juror 26 misconduct; and (6) conduct a pretrial investigation. 27 asserts claims based on trial counsel’s conflict of interest; 28 9 He also 1 prosecutorial misconduct; juror misconduct; trial court error in 2 denying his Faretta motion; trial court error in excluding him from 3 court hearings; and "cumulative effect of error.” 4 The two claims of trial court error were addressed on the 5 merits in the appellate court's unpublished opinion on direct 6 appeal. 7 on habeas review and must be reviewed independently by this Court. 8 I. Ineffective Assistance of Counsel 9 United States District Court For the Northern District of California 10 All other claims were denied summarily by the state courts A. Legal Standard A claim of ineffective assistance of counsel is cognizable as 11 a claim of denial of the Sixth Amendment right to counsel, which 12 guarantees not only assistance, but effective assistance of 13 counsel. 14 prevail on a Sixth Amendment ineffectiveness of counsel claim, a 15 petitioner must establish two things. 16 that counsel's performance was deficient, i.e., that it fell below 17 an "objective standard of reasonableness" under prevailing 18 professional norms. 19 what defense counsel could have done, but rather whether the 20 choices made by defense counsel were reasonable. 21 Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). 22 of counsel's performance must be highly deferential, and a court 23 must indulge a strong presumption that counsel's conduct falls 24 within the wide range of reasonable professional assistance. 25 Strickland, 466 U.S. at 689. 26 that he was prejudiced by counsel's deficient performance, i.e., 27 that "there is a reasonable probability that, but for counsel's 28 Strickland v. Washington, 466 U.S. 668, 686 (1984). Id. at 687-88. To First, he must establish The relevant inquiry is not Babbitt v. Judicial scrutiny Second, a petitioner must establish 10 1 unprofessional errors, the result of the proceeding would have been 2 different." 3 sufficient to undermine confidence in the outcome. 4 Id. at 694. A reasonable probability is a probability Id. A court need not determine whether counsel's performance was 5 deficient before examining the prejudice suffered by the petitioner 6 as the result of the alleged deficiencies. 7 Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995). Id. at 697; Williams v. 8 B. Failure to Interview and Call Witnesses 9 The duty to investigate and prepare a defense does not require United States District Court For the Northern District of California 10 that every conceivable witness be interviewed. 11 Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). 12 shows that the lawyer was well-informed and the petitioner fails to 13 state what additional information would be gained by the discovery 14 he now claims was necessary, an ineffective assistance claim fails. 15 Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986). 16 petitioner's mere speculation that a witness might have given 17 helpful information if interviewed is not enough to establish 18 ineffective assistance. 19 Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). 20 Hendricks v. When the record A Bragg v. Galaza, 242 F.3d 1082, 1087 (9th To establish prejudice caused by the failure to call a 21 witness, a petitioner must show that the witness was likely to have 22 been available to testify, that the witness would have given the 23 proffered testimony, and that the witness’s testimony created a 24 reasonable probability that the jury would have reached a verdict 25 more favorable to the petitioner. 26 862, 872-73 (9th Cir. 2003). 27 28 11 Alcala v. Woodford, 334 F.3d 1 1. Marie Mason 2 Petitioner argues that the testimony of Marie Mason, a civilian “drive-along” who accompanied Officer Huesman on the night 4 he arrested Petitioner, would have impeached Officer Huesman. 5 Petitioner states that, when Officer Huesman was in Petitioner’s 6 motel room, he found crack cocaine and a crack pipe in a fanny-pack 7 tied around Petitioner’s waist. 8 testified that he found no drugs or contraband on Petitioner. 9 Petitioner reasons that, if the jury heard that Officer Huesman 10 United States District Court For the Northern District of California 3 lied about not finding the contraband, they would question the 11 credibility of his testimony about finding a gun outside 12 Petitioner’s motel window and a white tank top in Petitioner’s car 13 that was similar to the one worn by the robber. 14 However, at trial, Officer Huesman Petitioner provides no evidence that Officer Huesman found 15 crack cocaine and a crack pipe in Petitioner’s possession on the 16 night of his arrest. 17 counsel cannot be faulted for failing to elicit testimony that he 18 possessed contraband drugs. 19 this would help his defense, it likely would have been more 20 prejudicial than helpful to him. 21 ineffective for failing to call Mason as a witness. 22 2. Prior Owner of Petitioner’s Ford Probe 23 And, even if Petitioner is correct, his Contrary to Petitioner’s theory that Therefore, counsel was not Petitioner argues the prior owner of his Ford Probe would have 24 testified that the car, which is silver, does not appear to be 25 gold. 26 testified that the suspect’s car was gold. 27 showed her pictures of Petitioner’s car, she stated that it was not 28 12 This was important because prosecution witness Jennifer W. When defense counsel 1 the robber’s car because the color was different. 2 Huesman testified that Petitioner’s car looked gold under certain 3 lighting conditions. 4 Petitioner’s car but they could not because it had been lost from 5 the police impound lot. 6 owner would refute Officer Huesman’s testimony. 7 However, Officer During deliberations, the jury asked to see Petitioner contends that the car’s former Petitioner’s theory about the former owner’s testimony is pure 8 speculation. 9 counsel’s deficient performance or resulting prejudice. United States District Court For the Northern District of California 10 11 This speculation is insufficient to demonstrate 3. Eva Sheehan Petitioner states that Balvinder Kaur told the police that, 12 before the robbery of the Body Time shop, she saw the robber in the 13 bookstore next door talking to Eva Sheehan, who showed the robber 14 some books. 15 Kaur’s statement that “the only thing Petitioner had in common with 16 the suspect is that they were both black males.” 17 claim that Sheehan would so testify is mere speculation and 18 insufficient to support a showing of counsel’s deficient 19 performance or resulting prejudice. 20 Petitioner argues that Sheehan would corroborate Petitioner’s 4. Crime Scene Photographer 21 Petitioner argues that the crime scene photographer could have 22 testified to the true color of Petitioner’s car and whether a white 23 tank top was found in Petitioner’s car. 24 the photographer would so testify is pure conjecture and 25 insufficient to state a claim of ineffective assistance of counsel. 26 27 28 Petitioner’s claim that Therefore, the state court’s denial of the ineffective assistance of counsel claim based on the failure to call witnesses 13 1 was not an objectively unreasonable application of clearly 2 established federal law. 3 C. Failure to Investigate and to Present Evidence 4 Failure to present probative, non-cumulative, available 5 evidence in support of a chosen defense strategy is deficient 6 performance absent a reasonable tactical justification. 7 334 F.3d at 870-71. 8 9 Alcala, 1. Jail Dental Records Petitioner argues that defense counsel was ineffective for United States District Court For the Northern District of California 10 failing to present his jail dental records, showing that some of 11 his teeth were removed following his arrest, to impeach 12 identification witness Karen Nelson. 13 cross-examined Nelson at length, including about her description of 14 Petitioner’s teeth. 15 identification was based primarily on Petitioner’s face, not his 16 teeth. 17 Petitioner’s dental records would not have impeached Nelson’s 18 testimony, and counsel’s performance was not deficient for failing 19 to do so. 20 21 RT at 178-190. However, defense counsel Nelson was certain that her RT at 179:21-23; RT at 185:21-23. Presentation of 2. Rock Cocaine Petitioner argues that counsel was ineffective for failing to 22 impeach Officer Huesman by presenting photographs of a crack 23 cocaine pipe and rock cocaine found in Petitioner’s motel room. 24 discussed previously, the fact that Petitioner was in possession of 25 cocaine and drug paraphernalia would have been more prejudicial 26 than helpful to his defense. 27 introduce the alleged photograph of contraband found in 28 As Therefore, counsel’s decision not to 14 1 Petitioner’s possession does not constitute ineffective assistance. 2 3 3. Records from Ford Motor Company Petitioner argues that evidence from the Ford Motor Company 4 showing that the 1992 Ford Probe was released to the public in 5 limited colors would have established that his Probe was silver, 6 not gold. 7 case given that defense counsel effectively cross-examined witness 8 Jennifer W. and elicited testimony from her that Petitioner’s car, 9 which was silver, could not have been the robber’s car because she United States District Court For the Northern District of California 10 11 This evidence would not have strengthened Petitioner’s saw the robber drive a gold Probe. Therefore, the state court’s denial of the ineffective 12 assistance of counsel claim based on failure to investigate or 13 introduce evidence was not an objectively unreasonable application 14 of clearly established federal law. 15 D. Failure to Impeach Witnesses 16 Great deference is afforded to counsel’s decisions at trial, 17 including whether to cross-examine a particular witness. 18 Uttecht, 530 F.3d 1031, 1036 (9th Cir. 2008). 19 Brown v. 1. Officer Huesman 20 Petitioner argues counsel should have impeached Officer 21 Huesman with the photograph of contraband in his hotel room. 22 discussed above, the impeachment of Officer Huesman with the 23 photograph of contraband would have been prejudicial to 24 Petitioner’s defense. 25 26 27 28 As 2. Amelia Chellew Amelia Chellew identified another individual in the police lineup, but later called the police station to say she had made a 15 1 mistake. 2 Petitioner contends that Chellew’s co-worker, Evelyn Herrera, 3 testified that, after the police line-up, she and Chellew left the 4 police station together, and Herrera had told Chellew that Chellew 5 had picked the wrong person. 6 ineffective for failing to impeach Chellew with her statement that 7 she had not spoken to anyone after she made her first 8 identification. 9 about the change in her identification and about the fact that she She then identified Petitioner as the bank robber. Petitioner argues that counsel was However, defense counsel cross-examined Chellew United States District Court For the Northern District of California 10 may have been relying on information from other witnesses rather 11 than her own memory to make the second identification. 12 557. 13 RT at 553- Therefore, counsel’s performance was not deficient. 3. Lesley Pulaski 14 Petitioner criticizes how counsel impeached Pulaski regarding 15 a 911 call she made to report the Ovation robbery, after she 16 testified that she did not make such a call. 17 disagreements regarding trial strategy, including the cross- 18 examinations of witnesses, are insufficient to support a claim of 19 ineffective assistance of counsel. 20 F.2d 369, 375 (9th Cir. 1981) (difference of opinion as to trial 21 tactics does not constitute denial of effective assistance); 22 Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984) (tactical 23 decisions are not ineffective assistance simply because, in 24 retrospect, better tactics are known to have been available). 25 However, See United States v. Mayo, 646 Therefore, the state court’s denial of this claim was not an 26 objectively unreasonable application of clearly established federal 27 law. 28 16 1 E. Failure to Object to Evidence and to Seek Instruction Regarding “Lesser Evidence” 2 1. White Tank Top 3 Petitioner contends that counsel was ineffective for failing 4 to object to the introduction into evidence of a white tank top 5 that connected him to the crimes at the Boogie Woogie Bagel Boy 6 shop. He argues that the prosecutor introduced the tank top into 7 evidence without laying a foundation regarding who found it and how 8 it was connected to Petitioner. However, Oakland Police Officer 9 Sam Francis testified that he searched Petitioner’s Ford Probe United States District Court For the Northern District of California 10 after Petitioner was arrested and recovered a white tank top from 11 it. RT at 2766:8-25. Officer Francis identified the white tank 12 top that the prosecutor showed him in court as the one he 13 recovered, based on the fact that it was the same size and color 14 and was marked with an evidence tag in his handwriting. He stated 15 that after he recovered the shirt he turned it in to the Oakland 16 Police Department’s property section. Because the prosecutor laid 17 a proper foundation for introducing the tank top into evidence, 18 defense counsel cannot be faulted for not objecting. 19 2. “Tainted” Photograph of Petitioner’s Car 20 Petitioner argues that counsel should have objected to the 21 admission into evidence of a “tainted” photograph of his car that 22 was taken under “false lighting” to give the appearance of a gold 23 tint. However, counsel did object to the introduction of this 24 photograph. RT at 1806-07. The court overruled the objection, but 25 also admitted into evidence defense counsel’s photograph depicting 26 the car as silver in color. Therefore, this claim of 27 28 17 1 ineffectiveness of counsel fails. 2 3 3. Photograph of Black Tote Bag Petitioner argues that counsel should have objected to the 4 introduction of a photograph of a black tote bag found in his car 5 at the time of his arrest in lieu of the actual bag which had been 6 lost with his car. 7 evidence.” 8 evidence. Petitioner claims the photograph was “lesser This is not a valid objection to the admissibility of Accordingly, the state court’s denial of the claim of 10 United States District Court For the Northern District of California 9 ineffective assistance of counsel based on failure to object to 11 evidence was not an objectively unreasonable application of clearly 12 established federal law. 13 14 F. Failure to Prepare For Trial 1. Line-up Cards for Uncharged Bank Robberies 15 Petitioner faults counsel for failing to obtain the line-up 16 cards shown to witnesses of two bank robberies with which he was 17 not charged. 18 was not identified by any of the witnesses. 19 evidence would have proved that he was not involved in the 20 California Bank and Trust robbery. 21 Petitioner’s photograph appeared in those lineups and He argues that this The record shows that mid-trial counsel moved for discovery of 22 the police reports, photos and victim contact information 23 concerning the two uncharged bank robberies. 24 Counsel argued that, if it could be determined that the robber in 25 one or both of those robberies was the same person who robbed the 26 California Bank and Trust, it would cast doubt on the reliability 27 of the identifications of Petitioner as the California Bank and 28 18 RT at 2236-48. 1 Trust robber. 2 review of the evidence connected to the uncharged robberies and 3 found that it was not likely to lead to exculpatory evidence in 4 Petitioner’s case. 5 had counsel conducted a pre-trial investigation of the two 6 uncharged robberies, she would have been in a better position to 7 obtain exculpatory evidence is pure speculation. 8 moved for this information during trial, Petitioner cannot show 9 that her performance was deficient. RT at 2235. The trial court conducted an in camera RT at 2548-52. Petitioner’s contention that, Because counsel Nor has he shown that a pre- United States District Court For the Northern District of California 10 trial investigation would have yielded evidence that would have 11 changed the outcome of the jury’s verdict. 12 13 2. 911 Printout Petitioner faults counsel for failing to obtain the printout 14 of Pulaski’s 911 call in order to impeach her. 15 previously, counsel cross-examined Pulaski regarding her 911 call, 16 although Petitioner disagreed with how she did it. 17 not reflect that counsel’s cross-examination of Pulaski was 18 ineffective. 19 20 As discussed The record does 3. Investigator’s Report From Video Line-up Petitioner faults counsel for not obtaining the investigator’s 21 report from a video line-up viewed by Grossman-de Vries, which 22 indicated that, after Grossman-de Vries identified Petitioner in 23 the line-up, she asked the investigator if she had picked the right 24 person. 25 would have created reasonable doubt. 26 that counsel did cross-examine Grossman-de Vries about her question 27 to the investigator. 28 Petitioner argues that, had counsel elicited this fact, it RT at 1124. 19 However, the record shows Therefore, counsel’s performance 1 was not deficient in this regard. 2 3 4. Loss of Petitioner’s Car Before Trial Petitioner faults counsel for failing to discover before trial 4 that his Ford Probe had been lost. 5 have sought sanctions against the prosecutor for losing “the most 6 important evidence” concerning the robbery and sexual assault that 7 took place at the Boogie Woogie Bagel Boy shop. 8 record shows that, during the trial, counsel became aware of the 9 loss and used defense photographs of the Ford Probe to establish He argues that counsel could However, the United States District Court For the Northern District of California 10 that the car was silver. 11 not demonstrate prejudice from counsel’s alleged failure to learn 12 of the loss sooner or to move for sanctions against the prosecutor. 13 14 15 16 RT at 1806-08; 1827-30. Petitioner does 5. Severance of Sexual Assault Charge Petitioner argues that counsel was ineffective for failing to move to sever the sexual assault charge from the robbery charges. A misjoinder of counts may prejudice a defendant sufficiently 17 to render his trial fundamentally unfair in violation of due 18 process. 19 To prevail on such a claim, the petitioner must demonstrate such 20 prejudice, id., and that the misjoinder had a substantial and 21 injurious effect or influence in determining the jury's verdict. 22 Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000). 23 a "high risk of undue prejudice whenever . . . joinder of counts 24 allows evidence of other crimes to be introduced in a trial of 25 charges with respect to which the evidence would otherwise be 26 inadmissible." 27 Cir. 1986). 28 Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997). There is United States v. Lewis, 787 F.2d 1318, 1322 (9th But joinder generally does not result in prejudice if 20 1 the evidence of each crime is simple and distinct, and the jury is 2 properly instructed so that it may compartmentalize the evidence. 3 Bean v. Calderon, 163 F.3d 1073, 1085-86 (9th Cir. 1998). 4 At the hearing on jury instructions, defense counsel stated 5 that, at the beginning of the trial, she should have moved to sever 6 the sexual assault count. 7 requested that the court give a limiting instruction. 8 agreed to instruct the jury with the following modification of 9 CALJIC No. 17.02: United States District Court For the Northern District of California 10 11 12 13 14 15 16 RT at 3250. To remedy this, counsel The court Each Count charges a distinct crime. You must decide each Count separately and each Count must be proved beyond a reasonable doubt. The defendant may be found guilty or not guilty of any or all of the crimes charged. The evidence introduced at trial may be relevant to more than one Count. In deciding whether the defendant is guilty or not guilty of any of the charged crimes you may consider all relevant evidence. However, a verdict as to any Count is not considered to be evidence and thus cannot be considered by you in your determination as to other Counts. Your finding as to each Count must be stated in a separate verdict. 17 CT at 701; RT at 3538. 18 The court also instructed the jury with CALJIC No. 2.91, as 19 follows: 20 21 The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crimes with which he is charged. 22 23 24 25 26 27 28 If, after considering the circumstances of the identification and any other evidence in this case, you have a reasonable doubt whether the defendant was the person who committed any crime charged by the Information, you must give the defendant the benefit of that doubt and find him not guilty of that crime. CT at 686; RT at 3287. Given these instructions and the fact that the sexual assault 21 1 charge was simple and distinct from the unrelated robbery charges, 2 any prejudice that was created by the joinder of the charges was 3 remedied. 4 Petitioner cannot show prejudice great enough to render his trial 5 fundamentally unfair or a reasonable probability that, but for 6 counsel’s error, the result of the proceeding would have been 7 different. 8 Even if counsel’s performance had been deficient, 6. Closing Argument Lacked Focus Petitioner contends that counsel was unprepared for closing 10 United States District Court For the Northern District of California 9 and, as a result, her argument lacked focus and was confusing to 11 the jurors. 12 and vigorously defended Petitioner in her closing argument. 13 3383-3518. 14 or prejudice from counsel’s closing argument. However, the record shows that counsel was prepared RT at Petitioner fails to demonstrate deficient performance 15 Therefore, the state court’s denial of Petitioner’s claims 16 that counsel failed to prepare for trial was not an objectively 17 unreasonable application of established federal law. 18 G. Conflict of Interest 19 Petitioner argues that counsel “labored under a conflict” 20 because she was assigned this case by the public defender’s office 21 right before trial and did not seek a continuance to investigate 22 and prepare for it. 23 Petitioner’s individual claims of ineffective assistance have merit 24 and the trial record demonstrates that counsel competently defended 25 Petitioner. 26 not an objectively unreasonable application of established federal 27 law. 28 However, as discussed above, none of Therefore, the state court’s denial of this claim was 22 1 II. Juror Misconduct and Ineffective Assistance Based on Counsel’s Failure to Investigate Juror Misconduct 2 Petitioner argues that prejudicial juror misconduct occurred 3 when several jurors conducted their own investigation. 4 A. Background 5 The following facts are taken from the appellate court’s 6 opinion addressing Petitioner’s claim that the trial court erred in 7 denying his post-verdict motion for access to confidential juror 8 information.1 9 After the jury returned its verdict, defense counsel moved the United States District Court For the Northern District of California 10 trial court for confidential juror information in order to question 11 the jurors because, during her discussions with jurors immediately 12 after the verdict, several told her that, during deliberations, 13 they looked for Ford Probes and silver cars “to see if they turned 14 gold.” The court denied the motion without prejudice, stating that 15 the defense had the duty to try on its own to contact the jurors, 16 and that there had not been an adequate showing of misconduct. 17 One month later, defense counsel renewed the motion, stating 18 that the public defender’s office had been able to contact only six 19 of the twelve jurors. At a hearing on the renewed motion, defense 20 investigator Paul Perez testified that he had spoken to several 21 jurors. One juror told Perez that he was familiar with paints from 22 his work experience as a painter, and he knew that paints change 23 color under certain lighting conditions. He said that he was not 24 25 1 26 27 28 The claim of juror misconduct was not before the appellate court on direct appeal. However, the claim based on access to confidential juror information is based upon the same facts as the claim of juror misconduct. 23 1 aware of any outside information being brought into the 2 deliberations. 3 observations that car colors change under certain lighting 4 conditions, but that “this knowledge was not brought into the 5 case.” 6 jurors regarding past experiences, observing car colors,” but no 7 jurors actively went out and made observations that they discussed 8 in the jury room. 9 Another juror told Perez that she knew from her own She said that there “may have been discussion between The court gave defense counsel the first names of the United States District Court For the Northern District of California 10 remaining six jurors so that counsel could contact them. 11 Subsequently, the defense filed a motion for a new trial, attaching 12 a declaration from Perez. 13 relevant portion of Perez’ declaration as follows: 14 15 16 17 18 19 The appellate court summarized the Juror No. 4 told Perez that during deliberations, the foreperson told the group that he had seen a parked car that was either gold or silver in color and had spent some time looking at it, and that after doing so, the foreperson was convinced that the colors gold and silver looked similar under certain conditions. According to Juror No. 4, another juror told the group that when he was visiting a paint store on personal business, he asked someone in the store if the colors gold and silver could be mistaken for each other. Juror No. 4 did not recall the answer, but the other juror shared it with the group and it was “not favorable to [defendant].” 20 People v. Davis, 2005 Cal. App. Unpub. LEXIS 9593 at *36-37. 21 Juror No. 4 also stated that, during deliberations, another 22 juror said that she knew someone who worked at a clinic that dealt 23 with sexual assaults and that she had some knowledge in this area. 24 But, Juror No. 4 could not recall what details the other juror 25 shared with the group. 26 The trial court denied the motion for new trial. 27 28 24 1 B. Legal Standard 2 The Sixth Amendment guarantees to the criminally accused a 3 fair trial by a panel of impartial jurors. 4 Irvin v. Dowd, 366 U.S. 717, 722 (1961). 5 trial is defined as "extrinsic." 6 504 (9th Cir. 1987). 7 a defendant of the rights to confrontation, cross-examination and 8 assistance of counsel embodied in the Sixth Amendment. 9 Borg, 60 F.3d 608, 612 (9th Cir. 1995). U.S. Const. amend. VI; Evidence not presented at Marino v. Vasquez, 812 F.2d 499, Jury exposure to extrinsic evidence deprives Lawson v. Although jurors may bring United States District Court For the Northern District of California 10 their life experiences to a case, it is improper for them to decide 11 a case based on personal knowledge of facts specific to the 12 litigation. 13 2002). 14 established that the exposure to extrinsic evidence had a 15 "'substantial and injurious effect or influence in determining the 16 jury's verdict.'" 17 2000) (quoting Brecht, 507 U.S. at 623). Mancuso v. Olivarez, 292 F.3d 939, 950 (9th Cir. A petitioner is entitled to habeas relief only if it can be Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 18 C. Analysis 19 Even if some of the jurors’ observations and discussions 20 regarding paints changing colors improperly brought extrinsic 21 evidence into the jury deliberation process, it did not add 22 anything to the evidence already presented to the jury, that the 23 silver color of the Ford Probe could appear to be gold under 24 certain lighting conditions. 25 establish that these observations were prejudicial. 26 by the juror who knew someone who worked at a sexual assault clinic 27 was general information based upon life experience. 28 Therefore, Petitioner cannot 25 The statement Therefore, 1 Petitioner does not demonstrate that any extrinsic evidence had a 2 substantial and injurious effect or influence in determining the 3 jury’s verdict. 4 Furthermore, although Petitioner claims his counsel failed to 5 investigate juror misconduct, the record proves otherwise. 6 moved twice for the release of confidential juror information so 7 that her investigator could question the jurors regarding any 8 extrinsic information that was discussed during deliberations. 9 After counsel discovered that several jurors had discussed arguably Counsel United States District Court For the Northern District of California 10 extrinsic information, she moved for a new trial based on juror 11 misconduct. 12 the fact that counsel diligently investigated and litigated this 13 issue on Petitioner’s behalf. 14 That the court denied the motion does not detract from Therefore, the state court’s denial of the claims of juror 15 misconduct and ineffective assistance based on failure to 16 investigate it was not an objectively unreasonable application of 17 established federal law. 18 III. Prosecutorial Misconduct 19 Prosecutorial misconduct is cognizable in federal habeas 20 corpus. 21 defendant's due process rights are violated when a prosecutor's 22 misconduct renders a trial "fundamentally unfair." 23 Darden, the first issue is whether the prosecutor’s conduct was 24 improper; if so, the next question is whether such conduct infected 25 the trial with unfairness. 26 (9th Cir. 2005). 27 were undesirable or even universally condemned, the relevant 28 Darden v. Wainwright, 477 U.S. 168, 179 (1986). Id. A Under Tan v. Runnels, 413 F.3d 1101, 1112 “It is not enough that the prosecutors’ remarks 26 1 question is whether the prosecutors’ comments so infected the trial 2 with unfairness as to make the resulting conviction a denial of due 3 process.” 4 calling defendant “a vicious animal” deserved condemnation, but did 5 not render the trial unfair). 6 Darden, 477 U.S. at 179-80 (holding that prosecutor Factors which a court may take into account in determining whether misconduct constitutes a due process violation are (1) the 8 weight of evidence of guilt; (2) whether the misconduct was 9 isolated or part of an ongoing pattern, Lincoln v. Sunn, 807 F.2d 10 United States District Court For the Northern District of California 7 805, 809 (9th Cir. 1987); (3) whether the misconduct related to a 11 critical part of the case, Giglio v. United States, 405 U.S. 150, 12 154 (1972); and (4) whether a prosecutor's comment misstated or 13 manipulated the evidence, Darden, 477 U.S. at 182. 14 constitutional error occurred, habeas relief is not available 15 unless the error had a substantial and injurious effect or 16 influence on the jury’s verdict. 17 930 (9th Cir. 1995) (citing Brecht, 507 U.S. at 638). If Johnson v. Sublett, 63 F.3d 926, 18 A. Describing Petitioner as a “Terrorist” 19 Petitioner argues that, during closing argument, the 20 prosecutor twice referred to him as a “terrorist” and that her use 21 of this word inflamed the jury’s fear and anger. 22 In the prosecutor’s closing argument, she described the manner 23 in which the robberies took place, stating, “First the manner of 24 his entry. 25 a service in a friendly way, and then he turns terrorist.” 26 3374. 27 to rob machines and money. 28 Every single time he goes in, he requests a product or RT at She also stated, “You know, this defendant is not choosing He’s not, you know, choosing to get in 27 1 and out. 2 terrorize these people by putting them in a room, holding them 3 captive, essentially.” 4 He literally gets in and he goes out of his way to RT at 3377. The fact that the prosecutor chose inflammatory words to 5 describe the robber’s behavior is insufficient, under Darden, to 6 rise to the level of a constitutional violation. 7 Petitioner fails to demonstrate that the prosecutor used these 8 words as part of an ongoing pattern to inflame the jury or 9 misstated or manipulated the evidence. United States District Court For the Northern District of California 10 Furthermore, The use of these words did not render Petitioner’s trial fundamentally unfair. 11 B. Perjury 12 Petitioner argues that the prosecutor forced witness Marzocchi 13 to commit “perjury” in testifying that she recognized the robber’s 14 jacket, because the prosecutor showed the jacket to Marzocchi in 15 the courthouse prior to her testimony. 16 cross-examination, defense counsel established that the prosecutor 17 had shown the jacket to Marzocchi before she testified and 18 Marzocchi admitted that she couldn’t say that it definitely was the 19 jacket that the robber wore. 20 remedied any improper testimony the prosecutor caused in 21 Marzocchi’s identification of the jacket. 22 fails to establish that Marzocchi committed perjury or that her 23 identification of the jacket was contaminated by the act of the 24 prosecutor. RT at 598. RT at 645-46. However, on The cross-examination Therefore, Petitioner 25 C. Loss of Ford Probe 26 Petitioner argues that the prosecutor committed misconduct by 27 28 losing or destroying his Ford Probe to keep the defense from 28 1 establishing that its true color was silver. 2 previously, defense counsel introduced two photographs of 3 Petitioner’s Probe to establish that it was silver-colored. 4 Therefore, Petitioner does not establish a due process violation 5 from the loss of his car. However, as discussed 6 D. Interference with Defense Investigation 7 Petitioner argues that the prosecutor interfered with the 8 defense investigation of juror misconduct by sending a letter to 9 the jurors. United States District Court For the Northern District of California 10 After the judge ruled that the defense could contact the 11 jurors to investigate alleged juror misconduct, the prosecutor sent 12 a letter to the jurors. 13 not to discuss their deliberations or verdict with anyone and 14 requested an opportunity to be present if any juror chose to 15 discuss the case with the defense. 16 She informed them that they had the right CT at 830. Petitioner argues that the prosecutor’s letter told the jurors 17 not to speak to defense counsel until they contacted the district 18 attorney. 19 impede the defense investigation of juror misconduct. 20 after speaking to several jurors, the defense obtained enough 21 information to move for a new trial based on juror misconduct. 22 This mischaracterizes the letter. The letter did not In fact, Therefore, the state court’s denial of the prosecutorial 23 misconduct claims was not an objectively unreasonable application 24 of established federal law. 25 IV. Denial of Faretta Motion 26 A. State Court Opinion 27 The following are the relevant facts taken from the appellate 28 29 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 court’s opinion on direct appeal. On June 2, 2003, the date his case was supposed to go to trial, defendant appeared in court, represented by public defender Judith Browne. The court asked the parties if they were ready to proceed. Browne replied that she was ready to try the case, but that defendant wanted to address the court. Defendant stated that since he had not been able to reach a satisfactory plea agreement, he wanted to represent himself. According to defendant, he had wanted to represent himself two and a half months previously, but his case had been set for trial without his presence in court. He expressed concern that his current attorney had only been assigned to his case for a short time, and questioned whether she was ready to proceed to trial. According to defendant, he wanted to call 17 witnesses in his defense. Defendant indicated he would need at least 90 days to prepare for trial. The trial court denied the motion as untimely, noting that the case had been pending for a year and a courtroom was available. . . . The judge assigned to try the case noted that the court minutes indicated that at the appearance at which defendant’s trial date was set, defendant was represented by his former counsel, Ms. Fasulis, but that defendant had not been brought into the courtroom. . . . [Subsequently, the case was assigned to Browne]. Browne told the court she had spent several hours with Davis on April 15 and that they had discussed the case, but that defendant did not tell her he wanted to represent himself. [S]he first heard of defendant’s desire to represent himself on the day of trial, when she told him of the offer of a 50-year sentence. 18 19 20 21 22 . . . [Davis] said that if he had been inside the courtroom at the last hearing and had known the matter would be bound over for trial, he would have exercised his right to represent himself. However, he did not tell his attorney of his desire to represent himself, and did not contact her before the scheduled trial date. People v. Davis, 2005 Cal. App. Unpubl. LEXIS 9593 at *10-13. 23 The court ruled as follows: 24 27 Defendant made his motion on the day his case was set for trial. We agree with the trial court that the motion was not made within a reasonable time before trial, and therefore the trial court had discretion to deny it. . . . We also conclude that the trial court did not abuse its discretion. Defendant made the Faretta motion on the day of trial, in response to his dissatisfaction with the 28 30 25 26 1 2 3 4 5 6 plea agreement he had been offered. The trial date had been set two and a half months earlier, and defendant had been aware of the date for more than two months. During that time, defendant informed neither his counsel nor the court that he wished to represent himself. Both the prosecutor and defense counsel were prepared to proceed on the date set for trial. Defendant estimated that he would need at least 90 days to prepare for trial. While it is true that defendant had shown no other proclivity to delay trial, we conclude that in the circumstances, the court was within its discretion to deny the motion as untimely. 7 People v. Davis, 2005 Cal. App. Unpubl. LEXIS 9593 at *15-16. 8 B. Federal Authority 9 A criminal defendant has a Sixth Amendment right to selfUnited States District Court For the Northern District of California 10 representation. Faretta v. California, 422 U.S. 806, 832 (1975). 11 But a defendant's decision to waive the right to counsel must be 12 unequivocal, knowing and intelligent, timely, and not for purposes 13 of securing delay. Id. at 835. With respect to timeliness, 14 Faretta clearly established that, if all the requirements for a 15 Faretta motion are met, a court must grant a Faretta request when 16 it is made “weeks before trial.” Marshall v. Taylor, 395 F.3d 17 1058, 1061 (9th Cir. 2005). However, Faretta did not establish 18 when such a request would be untimely. Id. 19 C. Analysis 20 Citing People v. Windham, 19 Cal. 3d 121, 128 n.5 (1977), 21 Petitioner argues that he was justified in making his Faretta 22 motion on the day his case was set for trial. He reasons that, 23 because he had not been brought into the courtroom for the three 24 previous hearings, he did not know when his case was set for trial 25 and, thus, he had no other opportunity to make a Faretta motion but 26 on the day of the trial. 27 28 31 1 Petitioner’s citation to state authority is not relevant on 2 federal habeas review. 3 authority on this issue indicates that a Faretta motion is timely 4 if it is made weeks before trial. 5 day of his trial, not weeks before. 6 court’s denial of this claim was not contrary to or an unreasonable 7 application of Supreme Court authority. 8 V. Petitioner’s Absence From Hearings 9 United States District Court For the Northern District of California 10 The only established Supreme Court Petitioner’s motion was made the Therefore, the state appellate A. State Court Opinion The state appellate court recognized that a criminal defendant 11 has a constitutional right to be present at any stage of the 12 proceeding that is critical to the outcome of his case, but noted 13 that it is the defendant’s burden to show that his absence 14 prejudiced him or denied him a fair trial. 15 The court ruled, 26 Defendant has failed to meet that burden here. . . . He asserts [] that if he had been present at the [trial setting] hearing, he would have realized that there was a likelihood that his case would be tried on the scheduled June 2, 2003, trial date, and that he would have asserted his right to self-representation. In our view, defendant’s assertions are speculative, and do not support his claim. The record indicates that defendant’s trial counsel advised him shortly after the March 18, 2003, hearing that the matter had been set for trial. It also indicates that she met with him approximately three weeks later and spent several hours discussing the case with him, but that defendant did not tell her he wished to represent himself until the day of trial. Finally, it appears that defendant made no attempt to communicate to either the trial court or his counsel his desire to represent himself in the intervening period of more than a month and a half. These facts do not suggest that defendant would have asserted his right to selfrepresentation if he had been personally present at the March 18, 2003, hearing. In the circumstances, we cannot conclude that defendant’s presence at the hearing bore a substantial relation to his ability to defend himself. 27 For the same reasons, we also reject defendant’s claim 16 17 18 19 20 21 22 23 24 25 28 32 1 2 that he was deprived of his constitutional right to equal protection because, as an in-custody defendant who had not been released on bail, he was unable to make the decision to attend the hearing. 3 People v. Davis, 2005 Cal. App. Unpubl. LEXIS 9593 at *18-19. 4 B. Federal Authority 5 Due process protects a defendant's right to be present "at any 6 stage of the criminal proceeding that is critical to its outcome if 7 his presence would contribute to the fairness of the procedure." 8 Kentucky v. Stincer, 482 U.S. 730, 745 (1987). 9 C. Analysis United States District Court For the Northern District of California 10 Petitioner argues that the appellate court erred by concluding 11 that he did not establish that he would have asserted his Faretta 12 rights had he been present at the March 18, 2003 hearing and 13 faulting him for not telling his newly appointed attorney or the 14 court about his desire to represent himself. He argues that he did 15 not expect that a special court date would have been set to hear a 16 Faretta motion because he was not allowed in court for other 17 hearings on his case. He points to the fact that he made a motion 18 for new counsel on the day of his preliminary hearing as proof that 19 he was dissatisfied with his defense counsel a year before his 20 trial date. 21 The appellate court carefully considered the facts relating to 22 Petitioner’s request for self-representation. It determined that 23 his presence at the trial-setting hearing would not have caused him 24 to make his Faretta motion earlier. This finding is not 25 objectively unreasonable. Furthermore, the fact that Petitioner 26 had earlier moved under People v. Marsden, 2 Cal. 3d 118 (1970), to 27 28 33 1 substitute another attorney for Ms. Fusuli, his former attorney, is 2 not relevant to his later alleged desire to represent himself 3 rather than be represented by Ms. Browne. 4 Therefore, Petitioner has failed to establish that the state 5 court’s denial of this claim was contrary to or an unreasonable 6 application of established Supreme Court authority. 7 VI. Cumulative Error 8 9 Although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still United States District Court For the Northern District of California 10 prejudice a petitioner so much that his conviction must be 11 overturned. 12 no single constitutional error, nothing can accumulate to the level 13 of a constitutional violation. 14 957 (9th Cir. 2002). 15 Alcala, 334 F.3d at 893-95. However, where there is Mancuso v. Olivarez, 292 F.3d 939, As discussed above, Petitioner has not established the 16 existence of a single constitutional error. 17 court’s denial of this claim was not an objectively unreasonable 18 application of established federal law. 19 CONCLUSION 20 Therefore, the state For the foregoing reasons, the petition for a writ of habeas 21 corpus is DENIED. 22 appealability. 23 28 U.S.C. foll. § 2254 (requiring district court to rule on 24 certificate of appealability in same order that denies petition). 25 A certificate of appealability should be granted "only if the 26 applicant has made a substantial showing of the denial of a 27 constitutional right." 28 The Court must rule on a certificate of See Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2253(c)(2). 34 The Court finds 1 that Petitioner has not made a sufficient showing of the denial of 2 a constitutional right to justify a certificate of appealability. 3 The Clerk of the Court shall enter judgment, terminate all pending 4 motions, and close the file. 5 6 IT IS SO ORDERED. 7 8 Dated: 11/16/2011 CLAUDIA WILKEN United States District Judge 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 SHERMAN L DAVIS, Case Number: CV08-01978 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 DERRAL G ADAMS et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 16, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 15 16 17 18 19 Sherman Level Davis CSP-Kern Valley (FBB1-209) Prisoner Id D-40369 P.O. Box 5102 3000 West Cecil Ave. Delano, CA 93216-6000 Dated: November 16, 2011 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 20 21 22 23 24 25 26 27 28 36
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