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holding that even if evidence establishing the petitioner's guilt improperly admitted, the petitioner's ineffective assistance of counsel claim failed because she could not establish the prejudice prong of the Strickland test as there was ample other evidence in the record that proved guilt
Summary of this case from Seaton v. United StatesOpinion
No C 99-3905 VRW (PR)
January 18, 2001
ORDER
Before the court is a petition by Joan LaRae Carrafa, a California state prisoner, for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the court DENIES the petition for a writ of habeas corpus.
I
The facts relevant to this proceeding are without material dispute. The summary that follows relies on the facts set forth by the California Court of Appeal in its March 9, 1998, decision.
On March 28, 1995, William Crouch and his female accomplice robbed a Loomis armored car, which was transporting a large amount of cash. Res Ans, Exh G at 1-2. A gun shot was fired and one of the guards fell backward, yelling "Oh God." Id. Crouch and his accomplice got in their getaway car with a large satchel of money. Id at 2. When the other guard saw Crouch and the accomplice both raise their arms as if to shoot, he fired a shot. Id. It hit Crouch in the chest, and he later bled to death. Id. The female accomplice fled the getaway car with the satchel of money. Id. She ran into a restaurant, and escaped through a breezeway, leaving the satchel of money behind. Id. A witness then saw the woman continue her escape while discarding a blond wig, a blue floral print shirt and sunglasses in a parking lot. Id. The woman was then seen fleeing the scene wearing blue jeans and a white top. Id. The police later located and apprehended petitioner in a different parking lot because she resembled the description of the female accomplice. Id. Petitioner was charged with first degree murder and robbery. Id. Special circumstances were also charged alleging that (1) the murder was committed during the course of a robbery and (2) a principal was armed with a firearm during both offenses. Id.
Two months before the trial began, petitioner and her counsel discussed defense strategy. Pet Br at 5. Petitioner insisted that she was not Crouch's female accomplice and that eyewitnesses mistakenly identified petitioner as the accomplice. Id. Petitioner's counsel, however, recommended that petitioner admit her participation in the robbery and, in return, beg for mercy to avoid the death penalty. Id. Petitioner also informed her counsel that there was extensive media coverage and requested the venue be moved elsewhere. Id at 6. Counsel never moved the trial court for a change of venue. Id. Citing a complete breakdown of an attorney-client relationship, petitioner made a motion to substitute appointed counsel pursuant to People v Marsden, 2 Cal.3d 118 (1970), but the superior court denied the motion. Pet Br at 6. Petitioner appealed the denial and the Court of Appeal affirmed. Id. The California Supreme Court denied a hearing of petitioner's pretrial writ petition. Id; Res Mem at 20-21.
Prior to the trial, petitioner moved to suppress prosecution evidence obtained during a search of petitioner's apartment pursuant to a search warrant issued following her arrest. Res Ans at 2; Pet Br at 8. The motion was denied on March 4, 1996. Id.
On May 24, 1996, the jury convicted petitioner of both charges. Res Ans at 2. The jury also found the special circumstances to be true. Id. On June 25, 1996, petitioner was sentenced to life imprisonment without the possibility of parole. Id at 3. On March 1998, the California Court of Appeal affirmed the convictions and findings of special circumstances. Id. The California Supreme Court denied review on June 10, 1998. Petitioner sought a writ of habeas corpus from the California Supreme Court, but the writ petition was denied on July 28, 1999. Id at 4.
II
A federal court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a state court only on the ground that [she] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in .a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v Taylor, 120 5 Ct 1495, 1523 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id at 1522.
A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id at 1521. In the Ninth Circuit, a state court decision may be disturbed as involving an "unreasonable application" of clearly established federal law only if the federal habeas court reviewing the state court decision is left with a "definite and firm conviction" that an error was committed — in other words, "that clear error occurred." Tran v Lindsey, 212 F.3d 1143, 1153-54 (9th Cir 2000).
The "clear error" standard also applies in determining whether the state court's decision was based on an "unreasonable determination of the facts in light of the evidence" under section 2254(d)(2). Torres v Prunty, 223 F.3d 1103, 1107-08 (9th Cir 2000) (citing Tran, 212 F.3d at 1153-54). To grant relief under section 2254(d)(2), a federal court must be "left with a firm conviction that the determination made by the state court was wrong and that the one [petitioner] urges was correct." Id (quoting Tran, 212 F.3d at 1153-54) (internal quotation marks omitted).
III A
Petitioner sought to suppress evidence seized during a search of her apartment pursuant to a search warrant signed by a magistrate by arguing that the warrant was invalid. The trial judge upheld the validity of the warrant and denied petitioner's motion to suppress. Petitioner now contends that her right to constitutional due process was violated because the trial judge was not impartial. Petitioner bases her claim on the judge's comment about the magistrate's usual meticulousness and attention to detail. In other words, petitioner contends that the trial judge upheld the search warrant by improperly relying on his personal extrajudicial knowledge of the magistrate's reputation.
The California Court of Appeal rejected petitioner's claim on the ground that the trial transcripts made clear that the trial judge based his ruling on the evidence and arguments presented by the parties and not on the reputation of the magistrate. People v Carrafa, No A074880, slip op at 13 (Cal Ct App Mar 9, 1998) (Res Exh G).
The Court of Appeal noted that the trial court made the following statements:
Now, I don't know if there [are] any cases on it, but of course the court knows who the magistrate was. And that being Judge Von Der Mehden, the court knows Judge Von Der Mehden to be a very careful particular person who requires everyone to dot every I and cross every T. He is one of our two law and motion judges who loves the intricacies of * * * the law. So, there are some people who would issue a search warrant without looking at it too carefully. He doesn't happen to be one of those. But I don't know that's something the court can consider.
* * *
[T]he search warrant, there is nothing that this court can find that [the police] deliberately intended to deceive the magistrate. And they certainly had no reason to believe he was acting in any other way than a magistrate who was reviewing this in [an] unpassionate [sic] and detached manner. So, if they had provided false information to him, you could check to see whether or not that could be removed. But the court doesn't find they furnished any false information to him. The second issue, was he acting other than a detached independent magistrate. The court finds nothing, regardless of his reputation, to conclude that that be the case. And finally, the police had no reason to believe that the search warrant was sufficiently defective, that even when it was issued by a magistrate in this case, * * * that would invalidate the search warrant.
Id at 12 (emphasis added).
It is evident that the Court of Appeal carefully reviewed the transcript and concluded that the trial judge had properly upheld the search warrant based on the evidence presented — not on the reputation of the magistrate. The Court of Appeal specifically found that the trial court did not consider the magistrate's reputation. It reasoned that the trial judge's statements ("I don't know that's something the court can consider" and "regardless of his reputation") demonstrated that the trial judge did not take the magistrate's reputation into account. The Court of Appeal was impressed by the fact that the trial judge had gone through the factors for upholding a search warrant. This fact further supports the Court of Appeal's conclusion that the trial judge's ruling was based on evidence rather than the magistrate's reputation.
The Court of Appeal made its factual determination regarding whether the trial judge considered impermissible evidence. Under the standard of section 2254(d)(2), the court finds that the Court of Appeal's factual determination that the trial court did not consider the magistrate's reputation was not "clear error." See Torres, 223 F.3d at 1107-08.
For the foregoing reasons, petitioner's claim that her due process right to have a trial before an impartial tribunal was violated is DENIED.
B
Petitioner contends that her Fourth Amendment right was violated when she was arrested allegedly without probable cause in the parking lot. The arrest subsequently led to an eyewitness's identification of petitioner as Crouch's female accomplice. Petitioner claims that the eyewitness testimony regarding petitioner's identity was a "poisonous fruit" obtained as a result of the allegedly unlawful arrest.
Federal courts are barred from reviewing Fourth Amendment claims in habeas petitions if the state provides an opportunity for full and fair litigation of such claims. Stone v Powell, 428 U.S. 465, 481-82, 494 (1976). As long as such an opportunity exists, whether petitioner actually availed herself of the procedure is irrelevant. Gordon v Duran, 895 F.2d 610, 613-14 (9th Cir 1990).
California Penal Code § 1538.5 provides for a full opportunity to litigate Fourth Amendment issues. So long as the procedure provided by the state is fair, that is all the Constitution requires. Petitioner litigated the merits of her alleged unlawful arrest before the trial court in the suppression hearing. Petitioner also raised the issue of her unlawful arrest on appeal to the California Court of Appeal. The court has found proper the Court of Appeal's judgment that the motion to suppress hearing was fairly conducted. Petitioner has had a full and fair opportunity to litigate her Fourth Amendment claim. Stone v Powell bars review of petitioner's Fourth Amendment claim.
For the foregoing reasons, petitioner's claim that her Fourth Amendment right was violated by an unlawful arrest is DENIED.
IV
Petitioner contends that her right to due process was violated because of an allegedly defective jury instruction. Petitioner claims that the trial court's charge for special circumstances contained incorrect definitions of the terms "major participant" and "reckless indifference to human life." According to petitioner, this alleged defect led to the finding of special circumstances, which resulted in petitioner's life imprisonment without the possibility of parole. Petitioner argues that the instruction was not in conformity with the holding of Tison v Arizona, 481 U.S. 137 (1987).
A
The court notes that petitioner makes a collateral argument that the evidence does not support the findings that she was a major participant in the robbery-murder or that she acted with reckless indifference to human life. See Pet Mem at 2 ("The evidence in this case does not show that the blonde wigged woman was a `major participant' in the robbery * * *. Nor is there any evidence that the female exhibited a `reckless indifference to human life.'").
The Due Process Clause requires that there be proof beyond a reasonable doubt of every fact necessary to establish the crime with which the accused is charged. In re Winship, 397 U.S. 358, 364 (1970). It is a constitutionally cognizable claim in a habeas petition when petitioner alleges that the evidence in support of her conviction was insufficient.Jackson v Virginia, 443 U.S. 307, 321 (1979); Martineau v Angelone, 25 F.3d 734, 739-43 (9th Cir 1994). The federal court's role, however, is not to determine whether the evidence sufficiently established guilt beyond a reasonable doubt but to determine whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Payne v Borg, 982 F.2d 335, 338 (9th Cir 1992) (quoting Jackson, 443 US at 319). The court must defer to the jury's fact determination and assume that conflicting inferences were affirmatively resolved in favor of the prosecution. Wright v West, 505 U.S. 277, 296-97 (1992) (citing Jackson, 443 US at 326).
The Supreme Court held in Tison that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy [the culpability requirement for imposing death penalty on an aider and abettor]." Tison, 481 US at 158. The Court defined "reckless disregard to human life" as "knowingly engaging in criminal activities known to carry a grave risk of death [as a natural, though not inevitable, consequence]." Id at 157. In Tison, Ricky and Raymond Tison were sentenced to death as aiders and abetters in the felony-murders with kidnaping and robbery as the underlying offense. Id at 141-43. The Court found that there was sufficient evidence to establish the brothers' "major participation" when they were "involved in every element of the [underlying crime] and [were] physically present during the entire sequence of criminal activity culminating in the murder * * * and the subsequent flight" without assisting the injured victims. Id at 151-52, 158. The Court distinguished Enmund v Florida, 458 U.S. 782 (1982), by stating that the Tisons' actions were, unlike in Enmund, "[f]ar from merely sitting in a car away from the actual scene of the murders acting as the getaway driver to a robbery." Id at 158. The Court further stated that, although "major participation" and "reckless indifference to human life" are two separate requirements, there are circumstances in which they overlap and "one could properly conclude that any major participant necessarily exhibits reckless indifference to the value of human life" as was the case with the Tison brothers. Id at 152 ("These facts not only indicate that the Tison brothers' participation in the crime was anything but minor; they also would clearly support a finding that they both subjectively appreciated that their acts were likely to result in the taking of innocent life."); id at 158 n12.
The circumstances of this case are not unlike Tison. The female accomplice here was physically present in her disguise at the scene of the armed robbery and murder. She watched both Crouch and the victim get shot, but she proceeded to escape with a satchel of money instead of tending to the injured victim. The jury found that petitioner was Crouch's female accomplice who committed these acts. In light of Tison and viewing the evidence in the light most favorable to respondent, the court cannot say that no rational jury could have found that petitioner was a major participant or that she acted with reckless indifference to human life. The California Court of Appeal correctly rejected petitioner's insufficiency of evidence argument. See People v Carrafa, No A074880, slip op at 5 (Res Exh G).
B
The court now turns to the issues of alleged defects in the jury instructions. Whether the jury charge given comported with due process is a question of law. The court, therefore, applies the standard of 28 U.S.C. § 2254 (d)(1), which restricts the grant of a writ of habeas corpus to cases in which the state court's adjudication "resulted in a decision contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."
In Tison, the Court held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy [the culpability requirement for imposing death penalty on an aider and abettor]." Tison, 481 US at 158. The jury here received an instruction based on CALJIC 8.80.1, which requires the jury to find the aider and abettor to have acted "with reckless indifference to human life and as a major participant." CALJIC 8.80.1 further defines "reckless indifference to human life" as knowledge or awareness that petitioner's acts involved a grave risk of death to an innocent human being. Such instruction was not "contrary to" clearly established Federal law. The language of CALJIC 8.80.1 is virtually identical to the language of the holding in Tison. Petitioner's attempt to cite Justice Brennan's dissenting opinion in Tison is unavailing because "clearly established federal law, as determined by the Supreme Court of the United States" refers only to the holdings of cases. Williams, 120 S Ct at 1523 (discussing 28 U.S.C. § 2254 (d)(1)).
For the foregoing reasons, petitioner's due process claim based on the allegedly defective jury instruction is DENIED.
V
Following the conviction, an investigator for petitioner had an ex parte communication with one of the jurors. The juror allegedly stated that after the jury found that petitioner was the female accomplice, the jury made affirmative findings of the special circumstances without further deliberations. Based on this evidence, petitioner made a post conviction motion to identify the remaining jurors so they could be interviewed, but the motion was denied on the ground that such evidence was inadmissible.
Petitioner contends that the unavailability of the jurors' identities undermined her direct appeal and appellate counsel's performance in violation of her due process right to effective appellate review.
"[L]ong-recognized and very substantial concerns support the protection of jury deliberations from intrusive inquiry." Tanner v United States, 483 U.S. 107, 127 (1987). Rules such as Federal Rule of Evidence 606(b) properly prohibit the use of juror testimony to impeach a verdict when that testimony relates to intrinsic matters, i e, the internal, mental processes by which the verdict was rendered. See id at 116-27 (discussing Federal Rule of Evidence 606(b)). Intrinsic evidence of juror misconduct cannot form the bases for a habeas claim. See, e g, United States v Hernandez-Escarsega, 886 F.2d 1560, 1579 (9th Cir 1989) (court properly denied request for evidentiary hearing to investigate allegation that juror considered sign from God in making decision because allegation did not pose reasonable possibility that external and extrinsic material affected the verdict).
Here, the trial court and the state appellate court both denied petitioner's motion for discovering the jurors' identities based on California Evidence Code § 1150(a), which is analogous to Federal Rule of Evidence 606(b). Under section 1150(a), the jury's mental processes are protected in a fashion similar to federal law. See, e g,People v Hutchinson, 71 Cal.2d 342, 349 (1969) (proof of subjective reasoning processes of individual juror inadmissible to impeach the verdict); People v Duran, 50 Cal.App.4th 103, 112-13 (1996) (jurors' statements regarding their reasoning for arriving at certain verdict are verbal reflections of their mental processes and inadmissible). California law is not "contrary to" clearly established federal law. Nor did the state courts err in denying petitioner's motion. There is no allegation or evidence that the jurors resorted to extrinsic evidence in reaching the verdict. There is no allegation or evidence that external material influenced the verdict. How the jury reached its verdict in petitioner's trial is strictly an intrinsic matter. The court cannot say that the California courts "clearly erred" in denying petitioner's motion to disclose the jurors' identities to inquire into how they reached their verdict. See Tran, 212 F.3d at 1153-54 (establishing the Ninth Circuit standard of "clear error"). The California courts did not err in denying petitioner's discovery request for the jurors' identities. Petitioner did not have a constitutional right to discover the jurors' identities under the circumstances of this case. Petitioner's claim couched in terms of due process must fail. Denial of relief unavailable to petitioner cannot receive at the trial and direct appeal levels cannot serve as the basis for a claim in habeas review.
For the foregoing reasons, petitioner's claim that the unavailability of the jurors' identities compromised the effectiveness of her direct appeal and appellate counsel's performance in violation of her due process right is DENIED.
VI
Petitioner finally argues that the assistance of her appellate counsel was ineffective. Petitioner specifies two grounds for her ineffective assistance of appellate counsel claim. First, petitioner contends that appellate counsel's failure to raise on appeal the issue of allegedly irrelevant and unduly prejudicial evidence constituted ineffective assistance. Second, petitioner claims that her appellate counsel should have argued on appeal that the trial court erred in denying petitioner's request for substitution of trial counsel due to an alleged complete breakdown of the attorney-client relationship, as well as the trial counsel's failure to request a venue change. The court will review these grounds separately.
A
The Sixth Amendment does not guarantee effective assistance of counsel on appeal; rather, the right to effective assistance of counsel on appeal derives from the Fourteenth Amendment's due process guarantee. Evitts v Lucey, 469 U.S. 387, 391-405 (1985). Nevertheless, the court must review claims of ineffective appellate counsel under the same standard as claims of ineffective trial counsel pursuant to Strickland v Washington, 466 U.S. 668 (1984). Miller v Keeney, 882 F.2d 1428, 1433 (9th Cir 1989). To prevail, petitioner must show two things. First, she must establish that appellate counsel's deficient performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 US at 687-88. Second, petitioner must establish that she suffered prejudice in that there was a reasonable probability that, but for counsel's unprofessional errors, she would have prevailed on appeal. Id at 694. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. See id.
Judicial review of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 US at 689. The relevant inquiry is not what counsel could have done; rather, it is whether the choices made by counsel were reasonable. Babbitt v Calderon, 151 F.3d 1170, 1173 (9th Cir 1998). The presumption of reasonableness is even stronger for appellate counsel because he has wider discretion than trial counsel in weeding out weaker issues; doing so is widely recognized as one of the hallmarks of effective appellate assistance. Miller, 882 F.2d at 1434. Throwing in every arguable issue would do disservice to the client because it would detract an appellate judge's attention from stronger issues and reduce appellate counsel's credibility before the appellate court. Id. Appellate counsel has no constitutional duty to raise every nonfrivolous issue requested by petitioner. Id at 1434 n10 (citingJones v Barnes, 463 U.S. 745, 751-54 (1983)).
B
Petitioner claims that the trial court erred in admitting into evidence, over her objection, several photographs and letters that were allegedly irrelevant, inflammatory and unduly prejudicial. Accordingly, she contends that her appellate counsel was ineffective when he failed to raise this alleged trial error on appeal. Respondent argues that appellate counsel exercised his reasonable discretion in narrowing appellate issues and that his performance was adequate.
The evidence about which petitioner complains consists of several photographs and letters. There were photographs depicting petitioner's ex-husband in prison in the company of other inmates sporting their tattoos. Other photographs showed Crouch in prison. Another was a photograph taken at a Las Vegas casino showing Crouch in a "romantic" embrace with an unidentified female. The letters were written by Crouch in prison and addressed to petitioner. Petitioner argues that these items were irrelevant and were introduced merely to inflame the jury's passion. The prosecution also produced a photograph of a fence with an opening in it, which allegedly facilitated access from the crime scene to the parking lot where petitioner was arrested. Petitioner complains that this photograph may not accurately depict the fence as it existed at the time of the robbery because the photograph was taken during the trial.
These items were introduced by the prosecutor as circumstantial evidence to refute petitioner's mistaken identity defense for the purpose of establishing petitioner's relationship with Crouch and tracing petitioner's movement after the crime occurred and before petitioner's arrest. The court need not examine the propriety of admitting the contested evidence because even if the letters and photographs were irrelevant, unduly prejudicial or inflammatory, petitioner's claim fails because she does not establish prejudice — the second prong of theStrickland test.
There is ample other evidence in the record to show that petitioner was Crouch's female accomplice: petitioner's son testified regarding petitioner's close relationship with Crouch; petitioner's fingerprint was found on a box, which contained the same plastic bandage used by Crouch to coat his fingertips; the box was in a backpack found in Crouch's getaway car; petitioner's fingerprint was also on a car key found inside the car in which Crouch perished; there was a scrape on petitioner's back and an officer testified that it could have been caused by a flying bullet grazing her back; Crouch's personal belongings were found in petitioner's apartment.
Based on these other pieces of evidence, a reasonable jury could reject petitioner's defense of mistaken identity and find that petitioner was Crouch's female accomplice. Similarly, the Court of Appeal would have found that any error in admitting other evidence was harmless. Petitioner cannot establish that she suffered prejudice by her appellate counsel's failure to raise the evidentiary issue. Petitioner's claim fails because petitioner cannot show that but for appellate counsel's failure to raise the issue on appeal there was a "reasonable probability" that she would have prevailed. Miller, 882 F.2d at 1434. Because the issue was a weak one, appellate counsel's choice not to raise it did not cause prejudice to petitioner. Id. For the same reason, appellate counsel's choice also meets and exceeds the objective standard of competence. Id.
For the foregoing reasons, petitioner's claim for ineffective appellate assistance based on counsel's failure to raise the evidentiary issue is DENIED.
C
Petitioner contends that her appellate counsel was ineffective for failing to argue on appeal that the trial court erred in denying petitioner's request for substitution of counsel when petitioner claimed a complete breakdown of the attorney-client relationship. Petitioner asserts in essence that the breakdown of their relationship stemmed from the facts that her trial counsel did not follow her choice of trial strategy and that the counsel failed to request a change of venue. Petitioner wished to proceed with a defense of mistaken identity whereas the trial counsel recommended that she admit being Crouch's female accomplice to avoid imposition of the death penalty. Petitioner also desired a change of venue due to extensive media coverage of the robbery in Sonoma County, where the trial was ultimately held.
1
To compel a criminal defendant to undergo a trial assisted by counsel with whom she has become embroiled in irreconcilable conflict is tantamount to depriving her of any counsel. United States v Moore, 159 F.3d 1154, 1159-60 (9th Cir 1998). When the conflict between petitioner and her attorney is so great that it results in a total lack of communication or other significant impediment to an attorney-client relationship the Sixth Amendment has not been satisfied. Schell v Witek, 218 F.3d 1017, 1026 (9th Cir 2000) (en banc).
When a defendant voices a seemingly substantial complaint about counsel, the trial judge should make a thorough inquiry into the reasons for the defendant's dissatisfaction. Bland v California Dep't of Correction, 20 F.3d 1469, 1475-76 (9th Cir 1994), overruled on other grounds by Schell, 218 F.3d at 1025. In evaluating a denial of a motion for new counsel, the reviewing court must consider factors such as "the timeliness of the motion, the adequacy of * * * inquiry into the defendant's complaint, and whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense." Hudson v Rushen, 686 F.2d 826, 829 (9th Cir 1982).
Here, petitioner made a motion for substitution of counsel and the trial court held an in-camera hearing before denying her motion. Petitioner complains that the trial court failed to make an adequate inquiry. Petitioner asserts that all the trial judge did was to lecture her and tell her that she should be happy to have appointed counsel as her attorney because he was one of the best public defenders in the county. Pet Tr at 7. The trial court was bound to examine the claimed conflict between petitioner and her counsel under the California standard of People v Marsden, 2 Cal.3d 118 (1970), which is substantially similar to the federal rule described in Hudson. Husdon, 686 F.2d at 829, 831.
Petitioner does not show that the trial court failed to conduct an adequate hearing on her motion for substitution of counsel. Neither party produced a copy of the transcript from the in-camera hearing despite the fact that the record indicates both parties were provided a copy. Res Ans, Exh B-1 at 336. But even without the transcript, petitioner's allegations make clear that she informed the trial court of: (1) the disagreements over defense strategy; (2) the claimed deficiency of assistance provided by the appointed counsel; and (3) the alleged inadequacy of his preparation. Providing petitioner with an opportunity to voice these concerns generally constitutes an adequate hearing. SeeHusdon, 686 F.2d at 831 (state court conducted an adequate hearing when it invited defendant to make a statement and listened to defendant's reasons for wanting new counsel).
Petitioner does not point to, and the court does not find, any additional inquiry that the trial court should have or could have made. Petitioner, in the end, makes a general statement that she completely lost her faith in appointed counsel. But petitioner's subjective good faith is not enough to show that she was deprived of effective representation by counsel. Hudson, 686 F.2d at 832 (loss of confidence by defendant in counsel an important factor, but not controlling).
Nor does petitioner establish that there was a complete breakdown of the attorney-client relationship. Petitioner and trial counsel continued to communicate and cooperate in preparing for trial. There is no indication in the record that appointed counsel was prevented from properly doing his work because of the strained relationship. See King v Rowland, 977 F.2d 1354, 1357 (9th Cir 1992); see also Hudson, 686 F.2d at 831 (the communication between the defendant and his counsel completely broke down only when the defendant refused to participate further in the trial). The Sixth Amendment only requires competent representation by counsel and does not guarantee a strain-free, meaningful relationship between counsel and petitioner. Morris v Slappy, 461 U.S. 1, 13-14 (1983). Despite the strained relationship, appointed counsel stayed on the case and prepared for trial; petitioner continued to communicate with appointed counsel and eventually brought in a pro bono attorney of her choosing to assist appointed counsel at trial. Petitioner was not precluded from pressing her mistaken identity defense and she was able to do so. There was not a complete breakdown of the relationship between petitioner and appointed counsel.
Even if the court were to assume that there was a complete breakdown of communication between petitioner and appointed counsel, that would not support petitioner's claim in this case because it would not show denial of any counsel in violation of her Sixth Amendment right. A pro bono attorney of petitioner's choosing acted as co-counsel throughout the trial. Petitioner paints a bleak picture that the pro bono attorney's performance was hindered because of appointed counsel's lack of investigation. But petitioner does not point to any evidence that the trial court forced petitioner to proceed to trial despite lack of preparation. Petitioner states that she trusted the judgment of the pro bono attorney. He must have felt comfortable enough to proceed to trial with the evidence collected by appointed counsel. Further, because the prosecution withdrew its request for death penalty, petitioner ultimately presented the defense of her choice: mistaken identity. In the end, petitioner received the defense she wanted from the attorney she chose. The court does not find a violation of petitioner's Sixth Amendment right to counsel.
Petitioner relies on Moore and uses its language to support her position that the trial court's inquiry was inadequate. See Pet Tr at 7 ("Other than allowing [trial counsel] and I [sic] to express our disagreements, the court failed to question either of us privately and in depth."). In Moore, the trial court required the defendant to proceed to trial with the same attorney because the intended substitute counsel was not available despite the fact that it actually found an irreconcilable conflict between the defendant and the attorney. See Moore, 159 F.3d at 1159, 1161. Appointed counsel in Moore also attempted to withdraw at the defendant's urging, which further substantiates the seriousness of the conflict between the attorney and the client in Moore. See id at 1159. The inadequacy of the trial court's inquiry in Moore stemmed from the fact that the court made no effort to appreciate the extent of such conflict. See id at 1160. That is not the case in the matter at bar. The trial court here conducted a Marsden hearing in an effort to appreciate petitioner's concerns. There is no evidence whatsoever that the hearing was inadequate. And there is no evidence whatsoever that the conduct by petitioner or by her counsel in this case was similar to that found inMoore. The extent of the alleged conflict here was nowhere as severe as it was in Moore.
In sum, there is no evidence in the record that the trial court's denial of petitioner's motion for substitution of counsel was erroneous. The alleged conflict largely arose over decisions properly committed to the judgment of appointed counsel and not petitioner. See Brookhart v Janis, 384 U.S. 1, 8 (1966) ("[A] lawyer may properly make a tactical determination of how to run a trial even in the face of his client's incomprehension or even explicit disapproval."). It follows that petitioner's appellate counsel, in exercise of his discretion, reasonably decided not to raise this issue on appeal because it had a low probability of success. Miller, 882 F.2d at 1434. When appellate counsel declines to raise a weak issue, he remains above an objective standard of competence (first prong of Strickland) and does not cause prejudice to petitioner (second prong of Strickland). Id. That is what happened here.
This conclusion is supported by the fact that both the California Court of Appeal and the California Supreme Court denied petitioner's request for a pretrial writ following the trial court's denial of her motion for substitute counsel.
2
Petitioner claims that appellate counsel was ineffective because he failed to raise on appeal trial counsel's failure to move for a change of venue. According to petitioner, a change of venue was in order because "[t]here was extensive television and front page newspaper coverage that featured [petitioner's] exhusband and Crouch's criminal history, and included [petitioner's] photograph with theirs" as to suggest that petitioner was somehow involved in Crouch's criminal past. Pet Br at 6. Petitioner also notes that "everyone talked about things with everyone else and * * * gossip[ed]. Id. Respondent contends that appellate counsel was not ineffective because he could reasonably conclude from the record that the jury actually chosen after voir dire appeared fair and impartial, and therefore that the change of venue issue was a weak issue to raise on appeal.Under California law, a motion for change of venue is granted if it is determined that there is a reasonable likelihood that a fair trial cannot be conducted because of the dissemination potentially prejudicial material. People v Webb, 6 Cal.4th 494, 515 (1994); People v Daniels, 52 Cal.3d 815, 851 (1991). But, generally speaking, extensive publicity during the period following the crime is insufficient, either by itself or in combination with other factors, to establish a reasonable doubt that a fair trial could not be had. Daniels, 52 Cal. 3d at 852. Courts therefore generally will wait to see if voir dire reveals that the dissemination of potentially prejudicial material was truly widespread. See id at 852-53. Importantly, the focus of a reviewing court then shifts to examine the voir dire to determine whether the jury as chosen appeared fair and impartial. Id at 853 n12.
Petitioner does not point to any evidence that any of the empaneled jurors was even aware of the media coverage she complains of. In fact, the court's independent review of the trial transcripts shows that,because of the pretrial media coverage, the trial court, appointed counsel and the pro bono attorney took extra precautions during voir dire. At defense counsel's urging, the trial court agreed to inquire of potential jurors whether "they read anything about not just the incident but about" petitioner, her ex-husband, Crouch and their criminal past. Res Br, Exh B-4 at 1253. Those who responded affirmatively were individually questioned on the subject. Id. The trial court was mindful of the publicity, but also considered the fact that Sonoma County had a population of 450,000 and that petitioner's case was one of many violent crimes committed everyday in the county. Id at 1255-56. The nature of the crime and the size of the community were relevant and proper factors for considerations. See Webb, 6 Cal. 4th at 514 (despite serious and tragic nature of the crime, denial of motion to change venue was proper when a population of San Luis Obispo was 200,000 although such motions have been typically granted in small and isolated communities such as Placer County, population 106,500 or Lassen County, population 17,500).
The court finds that appellate counsel, reviewing the record, could reasonably conclude that the Court of Appeal would find that petitioner received a fair and impartial jury after voir dire and that the likelihood of success of an appeal on the change of venue issue therefore was low. Petitioner has not shown that appellate counsel's performance fell below an objective standard of reasonableness or that he caused petitioner prejudice when he chose not to raise the venue issue on appeal. Miller, 882 F.2d at 1434.
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall enter judgment in favor of respondent and close the file.
IT IS SO ORDERED.