Opinion
No. C 99-4630 THE (pr)
June 20, 2001
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
This matter is now before the court for consideration of the merits of Leroy Coleman's pro se petition for writ of habeas corpus concerning his 1996 murder conviction in the Alameda County Superior Court. For the reasons discussed below, the petition will be denied on the merits.
BACKGROUND
Leroy Coleman, Keith Smith, Lorenzo Hall, and Marvin Jones were charged with the murder of Michael Hadden. Coleman was charged with the murder of Dwayne Forsen. Jones was prosecuted separately and testified for the prosecution in the joint trial of Coleman, Smith and Hall. Coleman was convicted of both murders and other crimes. Hall was acquitted, and Smith was convicted of the murder of Hadden. It was found that the crime was committed for the benefit of a criminal street gang.
The facts relevant to the crime are taken from the California Court of Appeal opinion in this matter. Some of the details relating to Smith's involvement in the crimes have been omitted because his conviction is not at issue in this proceeding, unlike the California Court of Appeal case in which both Smith and Coleman appealed their convictions.
Michael Hadden was shot and killed in the Evergreen Cemetery in Oakland at about 8:15 p.m. on April 29, 1994. A woman driving near the cemetery had to stop suddenly to avoid hitting two men who ran in front of her car, one chasing the other. As the first man ran into the cemetery, the second man shot at him twice; the second man shot at the first man again after the latter fell near a headstone.
A few hours later, at about 1:30 a.m., California Highway Patrol officers investigating a white Hyundai abandoned on a freeway on-ramp discovered Dwayne Forsen lying dead in the passenger seat, slumped over toward the driver's seat. He had been shot in the head — once in the back of the head, once behind the left ear, and once on the right side of the chin. The car had been observed in the same location at about 10:30 p.m.
The codefendants were members of the "415" gang. The 415 had originally been organized as a group in prison to protect Bay Area prisoners from another prison gang. Evidence was presented that codefendant Keith Smith had total control of the Oakland area under the 415, including narcotics trafficking and other criminal activity. Smith also was in charge of the 415 at Solano State Prison where he encountered Lloyd Hadden, Jr., the older brother of eventual murder victim Michael Hadden. After Smith was released from prison, Lloyd Hadden Jr. suggested that Michael Hadden might be able to lend Smith money to get him restarted in selling drugs in Oakland.
Michael Hadden told his wife that he had given about $12,000 to Smith and had to do whatever Smith told him until Lloyd Hadden Jr. got out of prison. At Michael Hadden's request, his wife typed up some written material he prepared for Smith concerning the 415 group, including by-laws and a chain of command chart. On the afternoon of his death, Michael Hadden told his wife in a telephone call that he had to go open a business of Smith and had to meet with Smith and some men that night. The other murder victim, 17-year-old Dwayne Forsen, had been living with the Haddens for about a month before his death. Hadden was like a father to Forsen.
The prosecution's two key witnesses were Marvin Jones and Charles Woods, both of whom testified that Coleman killed both victims.
Marvin Jones, prosecuted separately for the crimes, was a member of the 415. He testified about the 415, and said that Smith was the overseer and had the most authority in the hierarchy, Hall was the captain, Coleman was the sergeant-at-arms, Jones was the lieutenant, and Charles Woods was the minister of education. Jones Also testified about the events on the day of the killing. There was a meeting at the schoolyard across from the Evergreen Cemetery attended by Jones, Hadden, Hall, Woods, Smith and Coleman. Eventually, Smith told the others to meet him on Sunnyside, and he and Hall got into Hall's car. Coleman and Hadden got into Hadden's car. Hawkins, Woods, and Jones got into Woods' car, which was parked behind Hadden's car. Jones saw Coleman reach over toward Hadden's face, shoot him, chase Hadden into the cemetery, and shoot him again. Woods started the car and began to pull out but Jones made him wait for Coleman. Once Coleman got into Woods' car, they drove to Sunnyside and met Hall and Smith. Forsen arrived in a rental car. Jones believed Forsen was going to be killed because he was asking questions about Hadden. Jones got into the driver's seat of Forsen's car to take him to San Francisco, Forsen sat in the front passenger seat and Coleman sat in the back seat. Just before they drove onto the freeway, Coleman shot Forsen. Woods drove up with Hawkins and parked behind the Hyundai; Jones and Coleman got into Woods' car, dropped off Coleman, washed blood off the car, and drove to San Francisco. The next day, at another 415 meeting, Smith gave Jones and Coleman $200 each and said it was "for what happened yesterday" and that they would get the rest later. Respondent's Exhibit F, California Court of Appeal Opinion (hereinafter "Cal. Ct App. Opinion"), p. 6. Jones believed Smith was referring to the murders of Hadden and Forsen.
Charles Woods testified that he became a 415 member while in Solano State Prison where he met Smith, who was in charge of his wing in prison. After Woods was released from prison, he began attending the 415 meetings organized by Smith. Coleman was the sergeant-at-arms and as such his duty was to hold all weapons related to the 415. At a 415 meeting on the evening of the killings, Hall approached him and said "we're about to smoke that fool, Mike." Id. at 7. Woods also testified that after the meeting, and at Smith's direction, Coleman got into Hadden's car and Jones got into Woods' car with Hawkins. Woods' car was parked behind Hadden's. In his car, Woods saw Hadden exit his car and run across the street to the cemetery and collapse. Coleman ran across the street, stood over Hadden's body and shot him in the head 3-4 times. Woods started the car but Jones told him not to leave until Coleman returned. Once Coleman returned to the car, they drove to Sunnyside. Forsen arrived in a white Hyundai. Smith told Jones and Coleman to get into the car with Forsen and told Woods to follow them. Woods followed the Hyundai to the freeway, and suddenly saw its passenger window shatter. Woods pulled up behind the Hyundai that had stopped. Forsen's head was leaning on the dashboard. Coleman and Jones got out of the Hyundai and entered Woods' car, laughing about how blood was coming out of Forsen's head. Woods was praying for his life, thinking that they were going to shoot him.
Coleman was convicted of first degree murder of Michael Hadden with personal use of a firearm, first degree murder of Dwayne Forsen with a finding that he was armed during the commission of the offense, and possession of a firearm by a convicted felon. Based on a stipulation, the jury found that both murders were committed for the benefit of a criminal street gang. Coleman was sentenced to a term of 200 years to life in prison. He then appealed. The California Court of Appeal upheld his conviction and the California Supreme Court denied his petition for review. The California Supreme Court denied his petition for writ of habeas corpus.
Coleman then filed this action, seeking a federal writ of habeas corpus. The court reviewed the petition and found that Coleman had adequately pled claims that his constitutional rights were violated when (1) he received ineffective assistance of trial counsel due to counsel's conflict of interest, (2) the trial court improperly denied his motion for new trial based on newly discovered evidence, (3) he involuntarily admitted suffering prior convictions, and (4) he received ineffective assistance of counsel on appeal. Respondent filed an answer in response to the court's order to show cause and Coleman filed a traverse. The petition is now ready for consideration on the merits.
DISCUSSION
A. Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The petition 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." 28 U.S.C. § 2254 (d); see Williams (Terry) v. Taylor, 529 U.S. 362 (2000).
B. Exhaustion
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c); Granberry v. Greet, 481 U.S. 129, 133-34 (1987). The parties agree that Coleman exhausted his state court remedies for the claims raised in this proceeding.
C. Legal Claims
1. Counsel's Alleged Conflict of Interest
a. Background
Attorney Kelvin represented codefendants Coleman and Hall; attorney Riley represented codefendant Smith. During trial, Robert Collins surfaced as an unexpected defense witness. An attorney for Collins called attorney Riley and told him that Collins had been a cellmate of prosecution witness Charles Woods in jail in Nevada. According to the attorney, Woods made incriminating statements to Collins that he (Woods) had killed Hadden and Forsen and was framing the three defendants in order to collect the $10,000 reward. Attorney Kelvin then took steps to bring Collins to California to testify. On the day Collins was to testify, an off-the-record discussion was held between all three codefendants and attorneys Kelvin and Riley. Kelvin then informed the court that he did not intend to call Collins. Kelvin explained that he did not believe Collins was credible. The court and prosecutor were displeased with this turn of events because considerable funds and energy had been expended (and a long continuance in the trial granted) to bring Collins to Alameda County to testify. Nonetheless, the court and prosecutor accepted that the defense could not be forced to call Collins as a witness. See RT 2734-2735. Collins was never called as a witness and it was never determined whether he would have testified if put on the witness stand.
Coleman and Hall had executed a written waiver of conflict of interests based on the joint representation and affirmed to the court that they understood what they were doing in this respect. In his petition, as in his appeal, Coleman contends the waiver was not sufficient to waive the alleged actual conflict under which attorney Kelvin labored. Like the state courts confronted with this issue, this court need not decide whether the waiver was sufficient to waive an actual conflict of interest because it concludes that attorney Kelvin did not have an actual conflict of interest.
After the verdicts were reached but before sentencing, Kelvin moved to withdraw as counsel for Coleman based on an alleged conflict of interest. The court held a hearing on the motion on July 25, 1996. Kelvin explained (as he had in his declaration) that before Collins was to testify, Kelvin received a sealed envelope addressed "To Zo" (Zo being codefendant Lorenzo Hall's nickname). Kelvin found in it two pieces of paper: a typed letter to "Zo" and a coded message on another sheet of paper. Kelvin stated that he did not decipher the coded message but did interpret the typed letter as an attempt by Collins to solicit Hall's help in assassinating an attorney and witness who had been instrumental in Collins' conviction. Kelvin concluded that for Hall — who Kelvin thought had the best chance for acquittal — the benefit of calling Collins as a witness would be outweighed by disclosure of the letter because it would let the jury see evidence that Hall had been solicited to kill a witness and attorney. Kelvin also recognized that Coleman still wanted Collins to testify because the letter was not written to him. "Kelvin declared that `under great pressure,' he ultimately decided to `sacrifice' Coleman to `save' Hall. Kelvin argued that Coleman now needed a new lawyer to seek a new trial because of Kelvin's own failure to call a material witness on his behalf." Cal. Ct. App. Opinion, p. 19.
The typed letter read:
This is to let you know where I'm coming from. My conviction is for blowing up a cop. Naturally I didn't do it. But that didn't stop the nazi's from bringing two witness' to commit perjury against me. An atty. (Annabell H . . . .) got special treatment for a client. The second turd Avrom [F.] got a big reduction from his 86 yr. sentence at Lompoc. . . . Just like with Woods getting charges dropped. For him framing you there. You probably feel the same towards Woods as I do towards [H.] and [F.] [¶] A letter was sent to Hot Lips it showed that Woods had given up a oat Woods also told about organization etc. Woods talked very openly to me apparently because we were in Reno far away from Oakland and I was white. I'm guessing he thought it would never come back on him. Woods talked so much I'm sure I can bury him as a witness. That handles your major problem, however, that doesn't help my problems.
Cal. Ct. App. Opinion, p. 19. The three sets of ellipses are in the appellate court opinion; the first two sets represent the omission of the attorney's address and the omission of the other witness' prisoner identification number.
The coded message, which the prosecutor had deciphered by the time of the post-conviction hearing on Kelvin's motion to withdraw, read:
Riley [Smith's trial attorney] didn't give all four of my pgs to Lips[.] Its gist is I testify for you three[,] you three do my two problems one p nor to testify one later[.] While time is short thats Rileys fault[.] Looking forward to good news for all of us.
CT 1650; 7/25/96 RT 19.
The trial court determined that there was no actual conflict. The judge noted that Kelvin's argument was based on his premise that the letters were an attempt to solicit Hall alone to commit murder in exchange for testimony and that Hall alone would be prejudiced if the jury learned of Collins' belief that Hall would agree to such a bargain. The trial court found that the letters were directed to all three codefendants — i.e., Collins requested all three codefendants to commit murder in exchange for Collins' favorable testimony — and "concluded that there was not an actual conflict or divergence of interest with respect to Kelvin's representation of both defendants that would necessitate his withdrawal. It denied his motion to withdraw." Id. at 20.
The Court of Appeal found no abuse of discretion in the trial court's denial of the motion to withdraw. "The reiterated reference to `you three' [in the coded message] amply supports the court's finding that Collins was soliciting all three codefendants to commit murder in exchange for testimony on their behalf, not just Hall. Accordingly, any prejudice to codefendants resulting from admission of the letter would have affected all three equally. On this record, Coleman has not established that the trial court abused its discretion in determining that no actual conflict of interest existed necessitating separate counsel." Id. at 21.
b. Analysis
The Sixth Amendment requires that a criminal defendant "have the assistance of counsel for his defence." U.S. Const. amend. VI. This provision confers two related rights: the right to counsel of reasonable competence and the right to counsel's undivided loyalty. In order to prove a Sixth Amendment violation based on conflict of interest, a petitioner must show that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Upon such a showing, prejudice is presumed to exist. See id. at 349-50. An "actual conflict of interest" only occurs when counsel "actively represented conflicting interests." Strickland v. Washington, 466 U.S. 668, 692 (1984). A petitioner therefore must show that his counsel actively represented conflicting interests before he can establish the constitutional predicate of a Sixth Amendment claim. See Cuyler, 446 U.S. at 350.
In order to establish that the conflict of interest "adversely affected counsel's performance," petitioner need only show "that some effect on counsel's handling of particular aspects of the trial was `likely.'" United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992). This showing need not rise to the level of actual prejudice, as it must with an ineffective assistance claim based on counsel's incompetence, id. at 1268, but the adverse effect in the Cuyler sense "must be one that significantly worsens counsel's representation of the client before the court or in negotiations with the government. A conflict which causes problems of some sort in some facet of the attorney-client relationship (for example, by generating transient feelings of mistrust between attorney and client), but which ultimately has no significant impact on counsel's representation of the client before the court or in negotiations with the government, does not cause an adverse effect in the sense of Cuyler." United States v. Mett, 65 F.3d 1531, 1535-36 (9th Cir. 1995).
The California Court of Appeal's rejection of Coleman's Sixth Amendment claim was not contrary to, or an unreasonable application of, clearly established federal law. Although Coleman relies heavily on Kelvin's assertion that a conflict existed, the court is not bound but the defense attorney's assertion but instead examines the record to determine whether counsel's behavior "seems to have been influenced by the suggested conflict." Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir. 1994). An examination of the record convinces this court, like the California Court of Appeal, that there was no actual conflict.
It was not conflicting loyalties that caused attorney Kelvin to choose not to call Collins. Rather, it was the fact that the letters would be equally damaging for all three codefendants. The codefendants' interests were not divergent. If the letters were admissible and had been admitted — a doubtful proposition, according to the trial judge who indicated he would have excluded them as unduly prejudicial under California Evidence Code § 352, 7/25/96 RT 5 — they could have damaged both of Kelvin's clients because they appeared to solicit all three codefendants to commit murders in exchange for Collins' helpful testimony. Thus, no conflict existed for the attorney representing two of the three codefendants when faced with the letters. The universal tainting effect of the evidence was particularly acute in this case because the codefendants were so closely linked: there had been substantial evidence that the three defendants were members of the 415 gang and that the killings here had been part of their gang activities. With this gang evidence in mind, the jury would have been even more apt to see the solicitation as a solicitation to all three defendants.
Even if one assumes that an actual conflict existed between the duties owed to Hall and Coleman, Coleman's claim fails because he has not shown that such a conflict adversely affected his lawyer's performance. Had Kelvin represented only Coleman, it is not likely that he would have put Collins on the stand, regardless of whether he had no letter, just the typed letter, just a decoded version of the code letter, or both letters in hand. Collins was such a poor prospect as a witness that no reasonable defense attorney would have called him as a witness. Collins was a very impeachable witness, as shown by the documents the prosecutor had turned over to the defense shortly before Collins was to be called as a witness. Collins criminal record included a recent conviction for mailing a bomb to a Nevada highway patrol officer that blew off an arm and an eye, an insurance fraud conviction and a burglary conviction. Collins also had a substantial history of misbehavior while in custody, as evidenced by the prosecutor's production of records of Collins' conversations with other inmates in which he discussed attempts to escape and in which he discussed attempts to take the lives of other deputies, and production of records showing that Collins was found to be in possession of weapon stock in his cell. The prosecutor thought there was ample documentation in the sheriffs records and prison records to show that Collins was a very high escape risk, and bore "an overwhelming bias against the criminal justice system and against law enforcement officers." RT 2733. Collins' records also indicated he suffered from post-traumatic stress disorder and was paranoid. RT 2739. There may have been even more impeachment material, but Kelvin explained that the prosecutor did not need to make a further record since Kelvin was not going to call him as a witness. See RT 2739.
Because it was not likely that Coleman would have been put on the stand in any event, it does not matter that defense counsel allegedly could not figure out what the decoded message said and was working on the basis of only the types letter.
Moreover, Kelvin had emphatically attacked Collins' credibility when he refused to call him as a witness at trial. of Collins, Kelvin stated: "Your honor, I will be very blunt about this: it's my opinion that all of [the prosecutor's] witnesses have been liars; I don't want to call any lying witness myself [¶] [The prosecutor] gave me some discovery yesterday, Collins when he was arrested said he was an O.P.D. informant. Either that's true, in which case I don't want him; or he's lying, in which case I don't want him. I want truthful witnesses." RT 2736-2737. Kelvin went on to say that he had "no confidence in Mr. Collins; he seems to be a person with zero credibility and I'm not putting him on the stand for that reason." RT 2737. The prosecutor then said he "agree[d] with defense counsel, I find Mr. Collins' credibility absolutely zilch." RT 2738. Kelvin's later effort to put a new motive behind his decision not to call Collins does not undo his earlier assessment of Collins' lack of credibility.
Coleman received the conflict-free representation to which he was entitled under the Sixth Amendment. He is not entitled to relief on this claim.
2. Motion For New Trial
Coleman next claims that the trial court's denial of his motion for new trial based on newly discovered evidence violated his right to due process. The new trial motion was supported by a tape-recorded statement taken by attorney Kelvin from Ray Rodriguez, an inmate at the Santa Rita jail and a declaration from Lorenzo Hall, Coleman's now-acquitted codefendant, which brought to light new evidence of statements allegedly made by prosecution witness Charles Woods that indicated he lied in his trial testimony and that incriminated him in the commission of the murders. Rodriguez stated on the tape that he had conversations with Woods at the jail in May 1996 during which Woods talked about the murders. Woods told him he was in the car behind the car in which one person was shot. Woods did not say who did the shooting. Woods also told Rodriguez that he and "Tiny" (Jones) had formed a plan while they were incarcerated at San Quentin to frame the three codefendants so that Woods could take over their drug activities. Woods said he would lie, cheat and do whatever was necessary to reach this goal.
Hall's declaration stated that Hall was not present at the murder of either victim and he had no knowledge of how these crimes were committed, except for what Woods told him in a conversation in May 1994. During that conversation, Woods told Hall that Isaac Elders owed him $1,000 for helping to arrange Hadden's murder. Woods said Hadden was at the park across from the cemetery to buy drugs when "Tiny" (Jones) told Hadden to "break yourself," meaning he was being robbed. Woods said Hadden ran across the street and Jones shot him. At the time of his conversation, Hall knew Hadden had been killed, but this was the first information he had as to who was responsible.
The court found that the evidence was cumulative. This was incorrect, according to Coleman, because the jury had "heard no comparable evidence of incriminating admissions by Woods (1) that he was involved in the murders, (2) that he plotted with Jones to fabricate a story that would frame the defendants, and (3) that he had at least two motives for laying the murders off on the three defendants, to wit, avoidance of his own responsibility for the murders, and removal of the defendants as impediments to taking over the drug trade." Respondent's Exhibit G, Petition For Review, p. 12.
Analysis of Coleman's claim illuminates the limited nature of federal habeas relief The first stark reality of the federal habeas remedy for petitioners is that it is not available for actual innocence alone. "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400 (1993). Herrera made it clear that there can be no habeas relief based solely on a petitioner's actual innocence of the crime. See Coley v. Gonzales, 55 F.3d 1385, 1387 (9th Cir. 1995). This is not to say that Coleman has shown he is actually innocent, but instead to observe that, regardless of whether he makes such a showing, that alone would not be enough for a federal habeas court to overturn the conviction. The second reality of the federal habeas remedy is that it is available only when there has been a violation of the federal constitution, laws or treaties. A state law error does not warrant the issuance of the federal writ. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The problem for Coleman emerges when one tries to identify the constitutional right supposedly violated. It is important to note what is not claimed by Coleman. He does not contend the newly discovered evidence was concealed by the prosecutor. He does not contend that there was insufficient evidence to support the conviction (except as discussed in the next section on the fourth claim in the petition). He does not contend he received ineffective assistance of counsel at the motion for new trial. Cf. Menefield v. Borg, 881 F.2d 696, 699 (9th Cir. 1989) (defendant has right to counsel in presenting motion for new trial). And he does not contend the judge refused to hear his motion for new trial or refused to consider his new evidence. What Coleman does claim is that the trial court, following the right procedure, reached the wrong result on his motion for new trial. Federal habeas relief is not available under the circumstances.
The Supreme Court appears to be willing to hold "that in a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." Herrera, 506 U.S. at 417. This is a "freestanding" actual innocence claim, in which the petitioner argues that the evidence sufficiently establishes his innocence, irrespective of any constitutional error at trial or sentencing. See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en bane). The petitioner's burden in such a case is "`extraordinarily high,`" and requires a showing that is "`truly persuasive.'" See id. (quoting Herrera, 506 U.S. at 417).
Coleman's case is not a capital case and therefore does not come within the limited exception mentioned in Herrera.
Coleman has not shown that the state court's resolution of his claim was contrary to, or an unreasonable application of federal law as stated by the U.S. Supreme Court. The one Supreme Court case cited by Coleman, Herrera v. Collins, does not apply to his non-death penalty case. Without a case even establishing a constitutional right, Coleman cannot show that the state court denied him that right. Coleman is not entitled to the writ on this claim.
3. The Prior Convictions
a. Background
Coleman contends that his admission that he suffered two prior convictions was not voluntarily and intelligently made because the court failed to advise him of his right against self-incrimination. He also argues that he was not warned of the "extreme sentencing consequences" of admitting to the prior convictions. The claim arises from the events that occurred at the sentencing hearing where — by prior agreement of Coleman's counsel — Coleman was scheduled to admit that the prior conviction allegations were true. The court addressed Coleman after Coleman's counsel listed the alleged priors:
THE COURT: First off, you understand that with reference to all three of these priors you have the right to have a separate hearing conducted before the Court since we've already waived a jury on that point, and at that hearing you would have the right to bring in your own witnesses and your own evidence to try to refute the allegations of the prosecutor, and you would have the right to confront and cross-examine all the witnesses brought in by the prosecutor on the point of these priors. [¶] Are you prepared to give up the right to that hearing and all the rights attendant to the production of evidence so that you admit these priors?
THE DEFENDANT: Yeah.
8/23/96 RT 45-46. After a brief discussion during which the prosecutor, court and defense counsel agreed that one of the three alleged priors did not qualify as a prior, the court resumed speaking to Coleman: "With the understanding, Mr. Coleman, you still have a right to a trial on the priors as we've discussed. [¶] And you're giving up that right; correct?" Coleman responded, "Yeah." 8/23/96 RT 47. Coleman then admitted that he suffered a 1992 robbery conviction and a 1990 assault with a firearm conviction. The California Court of Appeal considered the trial court's advisement to Coleman to be defective, but harmlessly so. Despite the absence of the explicit admonition on the privilege against self-incrimination, the totality of the circumstances demonstrated that the admission was voluntary and intelligent. Coleman was actively represented by counsel and had just been through a trial in which he exercised his privilege against self-incrimination.
b. Analysis of the Federal Claim
The admission to a prior offense for sentencing purposes is the functional equivalent of a guilty plea and must comport with the same protective measures imposed on the acceptance of a guilty plea. See Bernath v. Craven, 506 F.2d 1244, 1245 (9th Cir. 1974). A guilty plea must be both knowing and voluntary because it constitutes the waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). The long-standing test for determining the validity of a guilty plea is "`whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Parke v. Raley, 506 U.S. 20, 29 (1992) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). Due process "does not require the state court to enumerate all of the rights a defendant waives [when he enters a guilty plea] as long as the record indicates that the plea was entered voluntarily and [intelligently]." Rodriguez v. Ricketts, 798 F.2d 1250, 1254 (9th Cir. 1986).
The record in Coleman's case indicates that the plea was entered voluntarily and intelligently, notwithstanding the trial court's failure to specifically inform Coleman he was giving up the right against self-incrimination by admitting to the prior convictions and faced a more severe sentence. First, the court's advisement to Coleman that he had the right "to bring in your own witnesses and your own evidence to try to refute the allegations of the prosecutor" and could cross-examine such witnesses would lead a reasonable listener to infer that he did not have to dispute the allegations by personally testifying. 8/23/96 RT 45. Second, Coleman knew during the trial that he had a right against self-incrimination. He exercised it by not testifying. The court instructed the jury that "A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify." RT 3029. There is no evidence to suggest that Coleman thought the right not to testify did not extend to the trial on the prior convictions. Third, Coleman's prior experience in the criminal justice system is relevant to the question of whether he knowingly waived constitutional rights. See Parke v. Raley, 506 U.S. at 37; United States v. Dawson, 193 F.3d 1107, 1110-11 (9th Cir. 1999) (considering defendant's recent criminal case experience in determining that he knew he was waiving the right against self-incrimination). Coleman had been in the criminal justice system before this case, as evidenced by the two prior convictions. He also had just completed a three-month trial during which he was vigorously represented by counsel. And counsel's representation at the motion for new trial hearing — a month before the guilty plea was made — that Coleman was going to plead guilty at the sentencing proceeding suggests that counsel had already discussed the plea with Coleman. 7/25/96 RT 43. Coleman was not an unrepresented criminal defendant nor was he a criminal defendant who was new to the criminal justice system. Finally, even if the court should have explained how the admission would affect the sentence, the failure to do so was not prejudicial, as Coleman had been told he faced the prospect of "spending the rest of your life in prison" on the charges. CT 1621. Coleman was not sentenced to a term exceeding that of which he had been informed. Under these circumstances, Coleman's admission of his prior convictions was neither involuntary nor unintelligent. He is not entitled to the writ on this claim.
4. Ineffective Assistance of Appellate Counsel
Coleman contends that his appellate counsel provided ineffective assistance when he failed to argue on appeal that the evidence was insufficient to corroborate the testimony of accomplice witnesses Jones and Woods.
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. See Evitts v. Lucy, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). See Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). A defendant therefore must show that counsel's advice fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. See id. at 1434 n. 9.
Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested by defendant. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983). The weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. See id Appellate counsel therefore will frequently remain above an objective standard of competence and have caused his client no prejudice for the same reason — because he declined to raise a weak issue.
To the extent respondent contends that the failure to appeal a state law error deserves lesser concern than the failure to appeal a federal law error, this court rejects the contention. The strength or weakness of the appellate issue, not its state or federal law source, matters in the Sirckland analysis.
Raising the accomplice testimony issue on appeal would not have resulted in success for Coleman. Coleman would have had to show that both witnesses were accomplices to each murder in order to prevail on appeal from that particular murder conviction. He hasn't done that and hasn't shown that counsel could have done that.
The first problem would be showing who was an accomplice. At trial, Coleman had the burden of proving by a preponderance of the evidence that Woods and Jones were accomplices. See People v. Tewksbury, 15 Cal.3d 953, 967-69 (Cal. 1976); CALJIC 3.19. On appeal, the court "must . . . resolve all inferences and inconsistencies in favor of the jury's implied finding that [the witness] was not an accomplice." Tewksbury, 15 Cal.3d at 962. Although Coleman argues that the prosecution did not prove that the witnesses were not accomplices, the burden was on Coleman to prove that they were, rather than on the prosecution to prove that they were not. In addition to having the burden of proof on the issue Coleman faced on appeal the additional hurdle of the presumption that inferences and inconsistencies were resolved in favor of the jury's implied finding that Woods and Jones were not accomplices (except that Jones was an accomplice as to the killing of Forsen). There is no realistic possibility that appellate counsel could have cleared these hurdles.
Coleman tries to show that Jones and Woods were accomplices by pointing to part of the record in which Jones and Woods testified that they drove away from the murder scenes and disposed of some evidence of the killings. In light of the other evidence, that would not be enough to overturn the jury's implied finding that they were not accomplices (except that Jones was an accomplice to the murder to Forsen). Among the evidence that the jury could have relied on to conclude that Woods was not an accomplice to the murder of Hadden was Woods' testimony that he did not know about the plan to kill Hadden until Lorenzo Hall came up to him a few minutes before the killing and said "we're about to smoke that fool Mike," RT 1476; although Woods understood "smoke" meant to kill, he did not know whether Hall was telling the truth or trying to test his reaction. See, e.g., RT 1775. Among the evidence that the jury could have relied on to conclude that Woods was not an accomplice to the murder of Forsen was Woods' testimony that he did not know Forsen was going to be killed until he saw it happen in the car in front of him and Woods' testimony that he continued to drive his own car after each killing for fear of being the next killed if he balked or showed any emotion at all. Among the evidence that the jury could have relied on to conclude that Jones was not an accomplice to the murder of Hadden was Jones' uncontradicted testimony showed that he did not know Hadden was going to be killed that day. A person's presence at the scene of a crime or after-the-fact disposition of evidence does not alone make him a principal. Each of the two witnesses might have been an accessory-after-the-fact but that would not make him an accomplice because an accomplice must be liable as a principal in the crime. Cf. Cal. Penal Code §§ 30, 31, 32, 33, 111; CALJIC 3.10.
Since there were no relevant explicit findings in the verdict form, it cannot now be determined whether the jury determined that Jones and/or Woods was an accomplice, with one exception: the jury implicitly found that Jones was an accomplice to the murder of Forsen. The task for appellate counsel would have been to show that a rational jury would have had to conclude that Coleman met his burden to prove by a preponderance of the evidence that the two witnesses were accomplices to the murders. Coleman has not shown that appellate counsel could have done so.
The jury was instructed: "If the crime of the murder of Dwayne Forsen was committed by anyone, the witness Marvin Jones was an accomplice to that particular crime as a matter of law and his testimony as to that particular crime is subject to the rule requiring corroboration." CT 1536. The jury implicitly found that Jones was an accomplice to the murder of Forsen because it found Coleman and Smith guilty of the murder of Forsen.
Even if appellate counsel could establish that the witnesses were accomplices to the murders, he also had to show that the accomplice testimony was not corroborated in order to stand a chance to prevail on appeal. Not much corroboration is required for accomplice testimony to be accepted. The corroboration "need not corroborate every fact to which the accomplice testified or establish the corpus delicti, but is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. Corroborative evidence may be slight and entitled to little consideration when standing alone." People v. Fauber, 2 Cal.4th 792, 834-35 (Cal. 1992) (citations omitted).
The two main witnesses provided adequate cross-corroboration unless appellate counsel was able to establish that both were accomplices to both murders. Although complex, the cross-corroboration puzzle works out thusly: If the jury concluded that Jones was not an accomplice in the death of Hadden, Jones' testimony corroborated Woods' testimony and Jones' testimony didn't need corroboration to be believed. If the jury concluded that Woods was not an accomplice in the death of Hadden, Woods' testimony corroborated Jones' testimony and Woods' testimony didn't need corroboration to be believed. If the jury concluded that Woods was not an accomplice in the death of Forsen, Woods' testimony corroborated Jones' testimony and Woods' testimony didn't need corroboration to be believed. Woods testimony unquestionably provided the "slight" corroboration for Jones' testimony to be believed and vice versa.
Respondent identified other allegedly corroborating evidence at pages 21-22 of his memorandum of points and authorities in support of his answer to the order to show cause. That evidence does not appear to provide even the slight corroboration that is required under California law. If Woods and Jones could not be corroborated by each other's testimony, there would not be adequate corroboration if they were shown to be accomplices to both murders.
Coleman has not shown that appellate counsel could have satisfied these requirements even if counsel had raised the accomplice testimony issue. Counsel is not entitled to the writ on this issue because he has not shown that, but for appellate counsel's unprofessional errors, he would have prevailed on appeal.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.