Opinion
No. C 00-1743 SI (pr).
May 27, 2004
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
Aaron Ray Scott, a California prisoner incarcerated at the California State Prison — Sacramento, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the court for consideration of the merits of claims that were earlier rejected as procedurally defaulted. For the reasons discussed below, the petition will be denied on the merits.
BACKGROUND
On November 28, 1994, Scott robbed the manager of Carrows Restaurant in Hayward, California, at gunpoint. As Scott left the restaurant, a police officer was parking his car outside and the manager told the officer of the robbery. The officer, quickly joined by other officers, chased and caught Scott. Scott was shot by one of the officers during the chase. Paramedics cut off Scott's clothes to treat him and found a wad of money that had been concealed in his crotch.
Scott was convicted in Alameda County Superior Court of robbery with a firearm use finding and possession of a firearm by a felon. See Cal. Penal Code §§ 211, 12022.5, 12021(a). He also was found to have suffered two prior serious felony convictions.See Cal. Penal Code § 667. On March 14, 1997, Scott was sentenced to a term of 39 years to life in state prison. He appealed. His conviction was affirmed by the California Court of Appeal and his petition for review was denied by the California Supreme Court. He filed several unsuccessful state habeas petitions before he filed his federal habeas petition.
On May 20, 2002, this court issued an Order Denying Petition For Writ Of Habeas Corpus. The court determined that petitioner's claims concerning his 1992 conviction and two of his ineffective assistance of counsel claims were procedurally barred because they were denied pursuant to an independent and adequate state procedural bar. The court also denied on the merits Scott's claims that (1) his right to due process was violated because the same jury did not determine both his guilt on the substantive offenses and whether he had suffered prior convictions and (2) counsel was ineffective in that he did not seek a mistrial or seek to have a new jury empaneled to hear both guilt and the existence of prior convictions.
Scott appealed. On July 25, 2003, the U.S. Court of Appeals for the Ninth Circuit vacated the judgment and remanded for further proceedings in light of Bennett v. Mueller, 296 F.3d 752 (9th Cir. 2002). As a result of the Ninth Circuit's decision, the court ordered further briefing on the claims as to which a procedural bar was imposed. The parties then filed briefs on the merits of those claims and respondent renewed his argument that the claims were procedurally barred. The case is now ready for review.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Alameda County, California, which is located within this judicial district. 28 U.S.C. § 2241(d).
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)."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, 529 U.S. 362, 412-13 (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. at 413. "[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 411. 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 409.
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). The parties do not dispute that state court remedies were exhausted for the claims in the petition.
DISCUSSION
Scott suffered three convictions relevant to this discussion: a 1988 conviction for robbery, a 1992 conviction for robbery, and a 1996 conviction for robbery. He currently is in custody on the sentence following the 1996 conviction for the November 28, 1994 Carrows Restaurant robbery, which is occasionally referred to as his "current conviction." His sentence following the 1996 conviction was lengthened due to the existence of the prior convictions in 1988 and 1992.
A. Direct Challenges To 1992 Conviction Used For Sentence Enhancement Purposes
Scott urges that his guilty plea in the 1992 case was coerced and was the product of ineffective assistance of counsel. He cannot raise these direct challenges to his 1992 conviction. The claims are barred by Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394 (2001). Lackawanna held that, where a prior conviction is used for sentence enhancement purposes, a petitioner generally may not challenge an enhanced sentence in a habeas petition on the ground that the prior conviction was unconstitutionally obtained if the sentence on the prior conviction has expired. Since the sentence on Scott's 1992 conviction has expired, it can no longer be challenged in a federal habeas action. Scott is not entitled to the writ on these claims. However, the Lackawanna case does not bar indirect challenges, such as Scott's claim that his counsel in the 1996 proceeding was ineffective for not challenging the 1992 conviction — a claim addressed in the next section.
Scott contends in his traverse, p. 5, that respondent has not shown that the 1992 sentence had expired. The burden is on him to show entitlement to relief, Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.), cert. denied, 537 U.S. 942 (2002), and the burden is on him to show that the sentence had not expired, rather than on respondent to show that it had expired. He has not shown that the 1992 sentence had not expired. The record suggests that he could not do so: he committed the crime that led to the 1996 conviction in 1994, when he was out on parole — a parole term that could be up to four years. See 2/20/92 RT 8. His petition was not filed until more than five years after he was released on parole.
B. Ineffective Assistance Of Counsel Claims
The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The purpose of the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Id. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show that (1) counsel's performance was "deficient," i.e., his "representation fell below an objective standard of reasonableness" under prevailing professional norms, id. at 687-88, and (2) prejudice flowed from counsel's performance, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different, see id. at 691-94. The relevant inquiry under Strickland is not what defense counsel could have done, but rather whether his choices were reasonable.See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998),cert. denied, 525 U.S. 1159 (1999).
A lawyer need not file a motion that he knows to be meritless on the facts and the law. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) ("to show prejudice under Strickland from failure to file a motion, [petitioner] must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him"); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir.), cert. denied, 513 U.S. 1001 (1994) (failure to file suppression motion not ineffective assistance where counsel investigated filing motion and no reasonable possibility evidence would have been suppressed); see also Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997) (failure to take futile action can never be deficient performance).
1. Failure To Challenge Validity of 1992 Guilty Plea
Scott contends that his attorney in the 1996 proceeding was ineffective for failing to challenge Scott's 1992 guilty plea as the product of ineffective assistance and coercion by his attorney. Analysis of the claim requires an examination of the 1992 change-of-plea proceedings to see whether the attorney should have challenged it in 1996.
a. The 1992 Guilty Plea
In the 1992 proceedings, Scott was charged with robbery and a second crime not identified in the record before this court. He also was alleged to have used a firearm in the commission of the robbery and to have suffered a prior conviction.
At the outset of the February 20, 1992, preliminary hearing, defense counsel tried to obtain a continuance because his client had not read a report in his case. The court denied the request. Defense counsel then mentioned that there was a plea offer outstanding. The court advised Scott that he had a right to a preliminary hearing and a trial and did not have to accept a plea offer. Respondent's Exh. O, 2/20/92 RT 2-4 Scott indicated that he was willing to forego those rights but then indicated concern about how much time he would receive on the allegation that he had used a firearm during the robbery. The court then reiterated the terms of the plea offer and explained that Scott would receive a total of five years in prison. Scott asked what would happen if he went forward with the preliminary hearing rather than plead guilty and his counsel explained the negative effect of going forward with the preliminary hearing. Counsel explained that California law prohibited the district attorney and judge from dismissing a prior strike felony allegation once there was a preliminary hearing and the case went to the superior court. Counsel explained that the impact of the law was that, if Scott went forward with the preliminary hearing, he faced a minimum of seven years in prison (even if he later pled guilty) rather than the five years he was facing under the current plea offer. 2/20/92 RT 5. Scott then complained that he had not had an opportunity to read the reports in his case and therefore wanted a continuance of the preliminary hearing. The court indicated again — as it had when defense counsel first broached the topic of a continuance of the preliminary hearing — that it would not grant a continuance. Because it appeared to the court that Scott was not ready to plead guilty, the court prepared to start the preliminary hearing. Defense counsel then invited Scott to rethink his position.
[DEFENSE COUNSEL:] You want to reconsider? You're going to do more time.
THE DEFENDANT: Why you forcing me into doing this?
[DEFENSE COUNSEL:] I'm giving you good advice.
THE DEFENDANT: I ain't had a chance to look over none of this stuff.
[DEFENSE COUNSEL:] When you get sentenced, don't blame it on me.
THE COURT: I'll tell you what. Just a second. You want to let him look at the paperwork? What, does he want to see the police report?
[DEFENSE COUNSEL:] Sure. I have no secrets.
THE COURT: Let him see the police report. We'll wait. How long does he need?
[DEFENSE COUNSEL:] 2:00 o'clock will be appropriate.
THE DEFENDANT: Come on. We can go ahead with this right now. Give me the file.
[DEFENSE COUNSEL:] Sure. It's right there, everything in it.
THE DEFENDANT: Just give me five years. Come on. Give me five years. I'll take the five years.
2/20/92 RT 6-7. The court then advised Scott of the various rights he was giving up, the maximum punishment he faced, and various other consequences of his guilty plea. The court next made sure there was no undue influence:
THE COURT: Are there any other promises made to get you to enter this plea other than what your lawyer and the District Attorney have said here in open court?
THE DEFENDANT: No.
THE COURT: Has anyone threatened you to get you to enter this plea?
THE DEFENDANT: No.
2/20/92 RT 9. The court made a finding that "the defendant knows and understands his rights; he's made a knowing and intelligent waiver of rights; the waiver of rights is voluntary, and he understands the nature and consequences of what he's about to do." 2/20/92 RT 10. Scott then pled guilty to robbery charge and admitted that he personally used a firearm, to wit, a shotgun.
b. No Coercion Occurred
A guilty plea induced by promises or threats which deprive it of the character of a voluntary act is void. See Machibroda v. United States, 368 U.S. 487, 493 (1962). "[A]gents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant." Brady v. United States, 397 U.S. 742, 750 (1970). Coercion by a defendant's attorney or other third party also contaminates a plea. See Iaea v. Sunn, 800 F.2d 861, 866-68 (9th Cir. 1986).
In situations such as Scott's, the "defendant might never plead guilty absent the possibility or certainty that the plea will result in a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty." Brady, 397 U.S. at 751. But the Supreme Court has refused to hold that "a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged." Id. That is the situation here. The behavior of counsel that Scott characterizes as coercive was nothing more than counsel advising him of the harsh realities based on counsel's assessment of the case.
Scott argues that the record itself shows the coercion by his counsel, pointing in particular to the part of the colloquy where counsel told him he would spend more time in prison if he didn't plead to which Scott responded, "Why you forcing me into doing this?" He alleges that this "strong degree of pressure from petitioner's counsel overwhelmed Scott and he subsequently plead guilty in a state of duress." Petition, p. 6.7. The court disagrees. Virtually any guilty plea requires a defendant to admit a crime and accept the bitter pill of punishment therefor. Who wouldn't rather not have to say "I accept" to an offer of prison time? But the fact that a defendant is forced to make a hard and unpleasant choice — whether to plead guilty or to go forward in the case — does not make the choice coerced. Here, the record shows that counsel was explaining the harsh realities to Scott and was not coercing him. Counsel's statement that Scott was going to get more time in prison if he didn't plead guilty was a prediction and not a threat. The prediction was based on California law that removed some charging discretion from the prosecutor and sentencing discretion from the trial court once a case had proceeded past a certain point — and Scott was at that point in the proceedings. Counsel explained that if the case went to preliminary hearing and was transferred to superior court, no one could strike the prior conviction and Scott would face a longer prison term even if he wanted to plead guilty at a later time. Counsel did not threaten to withdraw or threaten to do anything else adverse to his client, making this case entirely different from Scott's cited case of Iaea v. Sunn, 800 F.2d at 866-68 (remanded to determine if threat by counsel to withdraw and threat by petitioner's brother to withdraw bail unless petitioner pled guilty rendered plea involuntary). Although counsel wisely did not explicitly say in open court that he thought there was no viable defense to the charges, his comments suggest that he did not see a good defense to the charges. In light of a favorable offer and no evidence of a viable defense, a plea bargain was a good idea. "Mere advice or strong urging by third parties to plead guilty based on the strength of the state's case does not constitute undue coercion." Id. at 868. The record contains no evidence of coercion of Scott. And Scott affirmatively stated in open court that there were no threats or extra-record promises made to get him to enter the plea.
This court presumes correct the state court's finding that the plea was made knowingly and voluntarily because Scott has not presented clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e). The record amply supports the trial court's finding that the plea was knowing and voluntary and shows that it was not the product of coercion. Thus, one can say with certainty that counsel in 1996 would not have succeeded in challenging the 1992 conviction as the product of coercion.
c. No Ineffective Assistance Of Counsel Occurred In 1992.
To prevail on an ineffective assistance of counsel claim, a defendant who enters a guilty plea must show that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases. See Hill v. Lockhart, 474 U.S. 52, 56-57 (1995); Tollett v. Henderson, 411 U.S. 258, 267 (1973). A defendant must satisfy the two-part standard of Strickland, i.e., show that counsel's performance was deficient and that the deficient performance prejudiced his defense, and establish the prejudice requirement by showing that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. See Hill, 474 U.S. at 57-59.
Scott does not show deficient performance by counsel. Counsel's comments warning Scott of a longer prison term if he didn't plead guilty did not amount to deficient performance. Scott does not show that counsel was incorrect in his statement of law that the prosecutor's and judge's discretion would cease once the case went past the preliminary hearing which meant that Scott faced a sentence at least two years longer if he didn't accept the plea offer right then and was later convicted at trial or on a guilty plea. Scott also does not show that counsel's apparent negative assessment of his case was incorrect. Indeed, Scott does not argue that he had any meritorious defense to any of the charges pending against him or that the police report he wanted to read actually had anything helpful for his case.
Scott apparently did not review the reports in his case before he pled or did so very quickly. Counsel was not deficient in this respect because it is not disputed that counsel had sent those reports to Scott the week before the hearing, even though Scott had not received the reports and counsel tried unsuccessfully to obtain a continuance of the preliminary hearing to another date so that Scott could study the reports. Moreover, the court did offer Scott a couple of hours to review the reports, but Scott apparently chose not to do so. Scott's choice not to read the reports cannot be attributed to counsel.
Scott also does not show prejudice from counsel's performance, i.e., he does not show that there is a reasonable probability that, but for counsel's alleged errors, he would not have pled guilty and would have insisted on going to trial. The determination that there is no prejudice is supported by the fact that Scott received a substantial benefit from his guilty plea. Under the plea deal he received (1) the low term of two years for the robbery, (2) the low term of three years for the use of weapon allegation, (3) dismissal of the five-year sentence enhancement allegation, and (4) dismissal of the second count.See 2/20/92 RT 2. He apparently faced a potential sentence of 15 years or more if convicted at trial (i.e., he could have received 5 years on the robbery, five years on the use allegation, five years on the prior conviction, and an unknown amount of time on the second unidentified count in the charging document). See 2/20/92 RT 4.
The absence of prejudice also is suggested by the fact that Scott did not complain about the plea he entered when he was sentenced. Scott was not a novice in the criminal justice system and presumably would have complained promptly if he actually wanted to go to trial.
Scott had been convicted of robbery in 1988 and apparently had other experiences in the criminal justice system. His full criminal record is not in the record before this court, but there are references to the fact that a probation officer had supervised Scott before 1988, a custodian of records indicated there was a six-page summary of Scott's criminal history, and defense counsel was concerned about the jury seeing a rap sheet that mentioned other criminal cases. See RT 403, 406, 424, 441, 448.
No coercion prompted Scott's decision to plead guilty in 1992. And there was no ineffective assistance of counsel during the 1992 plea proceedings. Counsel in the 1996 proceedings thus did not engage in deficient performance for failing to argue to have the 1992 plea set aside because such a motion would have been meritless. Additionally, no prejudice resulted from counsel's decision in the 1996 proceedings not to challenge the 1992 conviction upon a guilty plea. For these reasons, Scott is not entitled to the writ on his claim that his 1996 trial counsel provided ineffective assistance of counsel.
2. Failure To Research And Renew Motion For Line-Up
Scott contends that his 1996 trial counsel was ineffective in that he failed to research and renew a motion for a line-up to be conducted for three witnesses who were scheduled to identify him as the Aaron Ray Scott who had suffered prior convictions. Scott wanted a probation officer, a parole agent and a police officer who had dealt with him as a convict (but who had never witnessed any crime committed by Scott) to be put to the test of identifying him in a line-up before they would be allowed to identify him in the courtroom. This was an effort to avoid the inherent suggestiveness of in-court identification procedure when a witness identifies the person who is obviously the one on trial as the person he previously encountered.
Before the jury voir dire began, defense counsel and the prosecutor argued their respective positions on the line-up request, after which the court denied the request. As the following shows, the key case on which Scott now relies, Evans v. Superior Court, 11 Cal.3d 617 (Cal. 1974), was clearly under consideration during the proceedings:
In Evans, the California Supreme Court held that the trial judge or magistrate has discretion to order a lineup upon a timely request.
The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of mistaken identification which a lineup would tend to resolve. . . . The questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge. . . . We do not hold, accordingly, that in every case where there has not been a pretrial lineup the accused may, on demand, compel the People to arrange for one. Rather, as in all due process determinations, the resolution here to be made is one which must be arrived at after consideration not only of the benefits to be derived by the accused and the reasonableness of his request but also after considering the burden to be imposed on the prosecution, the police, the court and the witnesses.11 Cal.3d at 625 (footnote and citations omitted).
[DEFENSE COUNSEL]: My client says the district attorney is going to call probation officers where they have not seen my client lately. A photo lineup would almost be mandatory before we drag them into a courtroom and suggest [sic] them to the very suggestive nature of the lineup and I would be requesting that if we conduct lineups for any witnesses which he proposed to bring in to make in court identifications based on the prior convictions.
[THE PROSECUTOR]: That's ridiculous. He has absolutely no authority — Evans dealt with field showup situations. He has no authority for that, Your Honor, and these witnesses all saw his client. The witnesses have spent a considerable amount of time with his client. There is no danger of misidentification here. These people — this is just — this is turning into a travesty, actually. There is absolutely no danger of misidentification. Defense has sat in custody now for two years. Duane Williams knows the defendant. He told me today he saw the defendant a couple days before the Carrows robbery and the defendant was washing the car used in the Carrows robbery. That is what Mr. Williams said.
Mr. Avery knows the defendant. The probation reports indicates Mr. Avery wrote the probation report, indicated he filed a revocation petition where he indicated in the revocation petition he had two appointments with the defendant.
To put — to find an Evans lineup now applies in these prior situations would seem to be cutting me completely new ground.
THE COURT: Anything further?
[THE PROSECUTOR]: Nothing further.
[DEFENSE COUNSEL]: I would simply point out that James Avery was the probation officer who prepared the report concerning the 1988 case. A considerable period of time has passed, and to ask that man to come in after this period of time and to make an impartial identification or a fair identification in a courtroom setting is extremely difficult.
THE COURT: Do you have any authority that says this applies to a trial of the priors?
[DEFENSE COUNSEL]: This is a trial, and Evans applies generally to all trial situations, I believe. I don't see how this would be any different than any other situation.
THE COURT: I'll entertain your motion — I'm going to deny it tentatively at this time subject to authority being given at a later time.
Respondent's Exh. B, RT 380-381.
Scott argues that "because of counsel's uncertainty to the authority he cited" the court tentatively denied the motion subject to authority being given at a later time. Traverse, p. 20. The record does not support Scott's characterization. Scott's counsel did not indicate any hesitation about the applicability of Evans; indeed, defense counsel used the tried-and-true method of comparing and contrasting cases to argue that the trial of prior convictions was indistinguishable from the trial of a substantive offense and Evans applied to both situations. The court's ruling also was not based on any tentativeness by Scott's counsel; rather, it appears that the court was inviting counsel to cite a case in addition to Evans, i.e., one that was factually similar and actually stood for the proposition thatEvans applied in a trial of prior convictions.
Scott has not shown a meritorious argument that counsel would have found had he done further research. Scott makes the circular argument that if counsel had done his research he would have discovered Evans as well as several cases cited in Evans, e.g., Wardius v. Oregon, 412 U.S. 470 (1973), Williams v. Florida, 399 U.S. 78 (1970), and Brady v. Maryland, 373 U.S. 83 (1963). But this ignores the record that discloses that defense counsel, prosecutor and court were already aware ofEvans: further research was not necessary to discover the already-known. The references to Evans in the hearing support a presumption that the trial court was aware of the authorities cited in Evans and the rationale supporting the holding inEvans. There is no reason to believe that had defense counsel renewed a motion for a line-up and presented the same authority to the court again that he would have fared any better. Evans allowed, but did not require, the trial court to order a lineup, and the trial court did not want to order a lineup without authority that a lineup was appropriate when the issue was witness identification for the purpose of establishing prior convictions. Moreover, even if Evans applied in the trial of prior convictions, Scott has not shown that there was "reasonable likelihood of a mistaken identification," 11 Cal.3d at 625, such that Evans would have favored a lineup. Scott does not identify any authority that should have been discovered and argued but was not. Scott has not shown deficient performance for allegedly failing to research and renew the motion for a line-up because a renewed motion that re-argued the same authority would have been meritless.
Scott's claim also falters on the prejudice prong of theStrickland analysis. Even if the motion for a lineup had been researched and renewed and granted, there is nothing to indicate a reasonable probability that the result of the proceeding would have been different. The issue for the jury to decide was whether Scott had suffered prior convictions in 1988 and 1992. There was plenty of documentary evidence that he had suffered such convictions and the eyewitness testimony about which he complains merely corroborated that documentary evidence. The substantial documentary evidence connecting him to the 1992 conviction and the 1988 conviction included fingerprints and criminal case records. Evidence was presented that Scott's recently-taken fingerprints matched those of the Aaron Ray Scott who was arrested in 1988, the Aaron Ray Scott who was arrested in 1992, and the Aaron Ray Scott who was committed to San Quentin State Prison in 1992. Evidence was presented that Scott's personal file number ("PFN") was the same in the current case and the cases in which the 1992 and 1988 convictions occurred. And the prior convictions were evidenced by records from the prior court proceedings. Eyewitness identification is not necessary to prove the existence of prior convictions, despite Scott's argument to the contrary. The fact that his first trial ended in a deadlocked jury did not mean that the documentary evidence was, as a matter of law, insufficient proof of the prior convictions.
A witness testified that the PFN number is unique to an individual and the same number is used for the same person when he is arrested later in life. There is a new event number for each arrest, but the PFN number stays the same. RT 455-457.
Moreover, there is an absence of prejudice because the evidence does not show that the three witnesses would not have been able to visually identify Scott at a line-up. As shown below, the first two witnesses had extensive contact with Scott, even though one had last dealt with Scott five years before the trial. The third witness identified Scott from a photograph he took when he earlier arrested Scott, and there is no reason to believe that witness would have had any more difficulty matching Scott's old photo to Scott in a lineup than Scott alone in the courtroom.
The first eyewitness, Duane Williams, was a parole agent assigned to be Scott's parole agent in October 1994 when Scott was on parole for robbery. Williams met with Scott on three different occasions for interviews for a total of about 60-70 minutes of face-to-face contact with Scott. During one of the meetings, Scott admitted that he had an additional prior robbery conviction. Defense counsel cross-examined Williams about Williams' recollection of Scott and Williams affirmed that he recalled Scott's appearance, including the length and style of his hair.
The fact that Williams saw Scott only three times as his parole officer does not reflect lax supervision but rather that the parolee-parole agent relationship was cut short by Scott committing the current robbery quite soon after being released from custody. Scott became Williams' parolee in October 1994 and saw him three times in approximately the next month or six weeks. Scott committed the current robbery on November 29, 1994 and was arrested that day, after which he presumably remained in custody.
The second witness, James Avery, was a deputy probation officer for Alameda County who had a probation file for Scott. Avery had supervised Scott following Scott's October 1988 robbery conviction, and had 16 face-to-face meetings with Scott from June 1988 — September 1991. Avery testified that sometime after October 5, 1988 he had written a presentence report about Scott following Scott's second degree robbery conviction in 1988. Avery identified Scott as the man he had supervised. Avery also testified that a probation report was prepared for the 1992 robbery, although Scott did not receive probation for that crime.
The third witness was Scott McKee, a Hayward police officer who had arrested Scott for the 1992 robbery. At the time of the arrest, McKee had taken Polaroid photos of the arrestee and had written the arrestee's name as Aaron Scott. He identified Scott in the courtroom as the man in the photos of the man he arrested in 1992, although he admitted he did not have an independent recollection of the arrestee.
Because there is no reasonable probability that these three witnesses would have had any trouble identifying Scott in a lineup, there was no prejudice in failing to obtain such a lineup. Even if a lineup had been ordered and none of the witnesses been able to identify Scott as the man with whom they had dealt, there is no reasonable probability that the result of the proceeding would have been different because there was ample other proof that Scott had suffered the convictions. The prosecutor could simply have chosen not to call them as witnesses or, if he called them as witnesses, he could have tried to explain that their failure to identify Scott was due to the fact that they dealt with so many individuals in the criminal justice system and not because he had not been in the criminal justice system.
Finally, the court sees a separate and very different kind of problem with Scott's claim. Scott's speculation that three witnesses would not have been able to identify him in a line-up is particularly hard to accept in light of his admission that he had in fact suffered the prior convictions. See Petition, pp. 6.5-6.8 (Scott arguing he was coerced into pleading guilty to robbery in 1992) and Petition, Exh. C (minute order, abstract of judgment and transcript of plea for 1988 robbery conviction). A habeas court is unreceptive to a criminal defendant getting a windfall such as Scott would obtain if the court were to find a constitutional violation on these facts. Cf. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (prejudice prong "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. . . . Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.")
Scott has not shown deficient performance by counsel or prejudice resulting therefrom. He is not entitled to the writ on his ineffective assistance of counsel claims.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is denied on the merits. The clerk shall close the file.IT IS SO ORDERED.