Opinion
No. 05-56277. D.C. No. CV-03-02061-VAP.
Argued and Submitted December 5, 2006 Pasadena, California.
April 12, 2007.
Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding.
Before: WARDLAW, PAEZ, and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The facts and procedural posture of the case are known to the parties, and we do not repeat them here. Petitioner Dashawn Lanear Bateman ("Petitioner") was convicted of one count of murder under Cal. Penal Code § 187(a) and two counts of attempted murder under Cal. Penal Code §§ 187(a) and 664 and sentenced to imprisonment of 82 years to life. On petition for writ of habeas corpus, Petitioner raises two claims. First, he asserts that appellate counsel's failure to make certain challenges on direct appeal denied Petitioner his right to effective assistance of counsel. Second, he contends that the trial court's admission of witness testimony from a preliminary hearing violated his right to confrontation.
Because Petitioner's claims are governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), habeas relief may be granted only upon a finding that the last reasoned state court decision rejecting Petitioner's claims "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented to it in the State court proceeding." 28 U.S.C. § 2254(d). We review the district court's denial of the petition de novo. See Arredondo v. Ortiz, 365 F.3d 778, 781 (9th Cir. 2004).
Here, we find that neither claim warrants habeas relief under AEDPA. Clearly established federal law permits habeas relief for ineffective assistance of counsel only where counsel's performance was deficient and the petitioner was prejudiced by that deficiency. See Strickland v. Washington, 466 U.S. 668, 693 (1984). The same standard applies to appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285-88 (2000). To establish deficiency, a petitioner must point to the acts or omissions that rendered the representation objectively unreasonable. Strickland, 466 U.S. at 690. Then, ineffective assistance is demonstrated only where, but for the deficient performance, there is a reasonable probability that the result of the proceedings would have been different. Id. at 694.
Petitioner makes two interrelated claims as to ineffective assistance. Petitioner first argues that appellate counsel was ineffective for not challenging on direct appeal that the trial court failed to sua sponte instruct the jury on lesser-included offenses. California law provides the standard for when the absence of such an instruction may alter the outcome of a trial and thus constitute prejudice under Strickland. Under California law, reversal is mandated for a trial court's failure to instruct sua sponte on a lesser-included offense where it is reasonably probable that a defendant would have achieved a more favorable outcome had the error not occurred. See People v. Breverman, 960 P.2d 1094, 1117 (Cal. 1998). Here, Petitioner points to two lesser-included offenses of voluntary manslaughter — sudden quarrel or heat of passion and unreasonable self-defense — on which the trial court should have instructed sua sponte and, consequently, to which appellate counsel should have raised a challenge to the trial court's failure to so instruct. On habeas review, the California courts rejected Petitioner's contention. The California Court of Appeals found that "Petitioner fails to show the existence of an issue which has a reasonable potential for success in support of his claim of ineffective assistance of trial and appellate counsel."
As the "last reasoned opinion" of the state courts in this case, we review the decision of the Court of Appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
Noting the lack of evidence as to either lesser-included offense — as Petitioner's defense at trial was mistaken identity — we agree with the district court that the state courts' decision is not contrary to, nor does it involve an unreasonable application of, Strickland.
Petitioner also argues that appellate counsel was ineffective for failing to argue on direct appeal that the resulting improper definition of malice violated federal due process. However, the case Petitioner cites for this proposition, Mullaney v. Wilbur, 421 U.S. 684 (1975), applies only where the issue is "properly presented" at trial. See id. at 703-04. Petitioner's failure to show that the issue should have been before the court at trial — i.e., as a sua sponte instruction under Breverman — negates any resulting federal due process violation that appellate counsel should have challenged on direct appeal. Therefore, it was not an unreasonable application of Strickland for the California courts to have denied relief on this aspect of Petitioner's ineffective assistance of counsel claim. With respect to his right to confrontation, Petitioner has not demonstrated that the California courts' rejection of his claim is contrary to clearly established Supreme Court precedent. Petitioner's direct appeal concluded before the Court decided Crawford v. Washington, 541 U.S. 36 (2004), and the Court recently held that Crawford does not apply retroactively to convictions that became final before Crawford was decided. See Whorton v. Bockting, 549 U.S. __; 127 S. Ct. 1173, 1184 (2007). We find that the California courts' decision is not contrary to Ohio v. Roberts, 448 U.S. 56 (1980). Roberts held that hearsay may be admitted at trial if the prosecution has demonstrated that the witness is unavailable to testify and the previous testimony is reliable. See id. at 65-66.
Petitioner argues that the prosecution caused the witness's unavailability because the witness fled when the police attempted to arrest him for an unrelated offense. However, there is no clearly established Supreme Court precedent holding that an attempt to arrest an individual for an unrelated offense may be found to be the cause of a witness's unavailability. Cf. United States v. Gonzales, 617 F.2d 1358, 1363 (9th Cir. 1980). Alternatively, Petitioner also asserts that the cross-examination at the preliminary hearing was inadequate because the testimony was "devastating" to the defense and "crucial" to the prosecution. But Petitioner's argument misinterprets Dutton v. Evans, 400 U.S. 74 (1970) (plurality opinion). In Dutton, the Supreme Court suggested that a showing of unavailability may not be required where evidence is neither "crucial" nor "devastating." 400 U.S. at 83-87; see also Roberts, 448 U.S. at 65 n. 7; United States v. Bernard S., 795 F.2d 749, 754 (9th Cir. 1986). These factors do not relate to Petitioner's argument, which relates to the adequacy of cross-examination. The California courts rejected Petitioner's arguments under the Confrontation Clause. We cannot conclude that the California courts' rulings were contrary to clearly established Supreme Court precedent.
To the extent that Petitioner argues that California preliminary hearings do not afford an adequate opportunity for cross-examination as an institutional matter, we decline to address such a claim because it remains unexhausted in state court.
Accordingly, the district court's judgment is AFFIRMED.