Opinion
No. C 01-1830 VRW (PR)
October 29, 2002
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner was convicted of battery causing serious bodily injury by a jury in the Superior Court of the State of California in and for the County of Santa Clara. The court also found that Petitioner suffered various prior convictions. On August 6, 1997, he was sentenced to an enhanced term of twelve years in state prison. Petitioner appealed, but the California Court of Appeal affirmed the conviction and the Supreme Court of California denied review. The state courts also denied Petitioner's request for collateral relief. Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on July 12, 2001, the court found that the petition, liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.
FACTUAL BACKGROUND
The California Court of Appeal summarized the facts of the case as follows:
[The victim, David Beck] arrived at the Friends Bar on November 6, 1996, at approximately 8:30 p.m. He began drinking beer and playing pool. [Jeff] Lubeck arrived at approximately 1:00 a.m. When he went to the bar to order another beer, [Petitioner I confronted him in a drunk and angry manner. Lubeck therefore moved to the other end of the bar and conversed with Beck. Beck ordered a beer from a bartender but she was talking to Petitioner] and ignored Beck's request. Beck then overheard the bartender say to [Petitioner], "[H]elp me get these guys out of here." [Petitioner] then walked up to Beck and punched him in the jaw, breaking the jaw and knocking Beck unconscious. [Petitioner] picked up a pool cue, walked up to Lubeck, and exclaimed, "Do you want some? I'll kill you, motherfucker." Beck woke up, and [Petitioner] threatened him. Beck asked the bartenders to call 911, but they refused. Beck and Lubeck then left the bar. They went to a gas station around the corner and, at 1:27 a.m., Lubeck called 911. Officer Cynthia Coahran arrived at 1:30 a.m. She investigated and estimated that the battery happened at approximately 1:20 a.m.People v. Frugoli, No H017233, slip op at 2 (Cal Ct App. Nov 30, 1998) (Resp't Ex C).
DISCUSSION
A. Standard of Review
This 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 he 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, 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.
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." Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir 2000).
Where the state court does not articulate a rationale for its decision, a federal court must conduct "an independent review of the record" to determine whether the state court "clearly erred" in its application of controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir 2000).
B. Claims
Petitioner raises four cognizable claims for relief under § 2254: (1) the trial judge prejudiced the jury when she secretly urged the jurors to presume petitioner was "a physical threat" to them and had them all sign affidavits so stating; (2) the trial court prejudiced the jury by improperly admitting the tape of Lubeck's 911 call; (3) the prosecutor misstated the facts to obtain a favorable ruling on the admission of the 911 tape; and (4) various instances of ineffective assistance of counsel.
1. Sealing of juror identification.
Petitioner first contends that the judge improperly provided the jury forms to seal their identities before verdict. Each juror signed forms that stated: "There is a compelling governmental interest in granting this request in that: 1. I am in fear that I will be exposed to physical harm or the threat of physical harm." Pet's Mem PA in Supp of Writ, Ex F, CT 102-17. California Code of Civil Procedure section 237 requires in pertinent part:
(a)(1) The names of qualified jurors drawn from the qualified juror list for the superior court shall be made available to the public upon request unless the court determines that a compelling interest, as defined in subdivision (b), requires that this information should be kept confidential or its use limited in whole or in part.
(2) Upon the recording of a jury's verdict in a criminal jury proceeding, the court's record of personal juror identifying information of trial jurors, as defined in Section 194, consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court as provided by this section.
(3) For purposes of this section, "sealed" or "sealing" means extracting or otherwise removing the personal juror identifying information from the court record.
Cal Code Civ Proc § 237 (Deering's 2002) (emphasis added). Petitioner urges that the trial court's prematurely submitted forms constituted prejudicial error under Erickson v. Superior Ct of Placer Cty, 55 CalApp4th 775 (1997). Specifically, the forms allegedly violated Petitioner's right to a fair trial and impartial jury.
Petitioner is not entitled to habeas relief because he has not met the burden of proving constitutional error and prejudicial effect. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir 2002). Petitioner has the burden of proving by a preponderance of the evidence that his custody is in violation of the Constitution, laws or treaties of the United States.Id.
To begin with, the court is not convinced that an actual error occurred. Petitioner's reliance on Erickson is misplaced. Although the trial court's act of prematurely submitting juror identification requests appears to conflict with the plain language in section 237, it is established California law that a local court practice of sealing juror identification violates section 237 only where 1) the sealing practice occurs in both criminal and civil cases and 2) the court extracts or removes juror information from the record. People v. Goodwin, 59 CalApp4th 1084, 1090-91 (1997) (clarifying the holding in Erickson and specifying the circumstances under which sealant forms might be prejudicial) (emphasis added). Petitioner proves neither element. First, Petitioner offers no evidence as to Santa Clara County's local practice with respect to juror identification seals in civil cases. Second, Petitioner offers no evidence that the court and counsel were actually barred from contacting jurors without a formal petition. For instance, Petitioner does not reconcile the actual point of seal under court order. The juror request forms bear a May 20th stamp order date, but the trial judge made an oral ruling on May 21st, after the verdict. Furthermore, Petitioner has not demonstrated the non-existence of some master list of juror information. That the juror forms appear redacted where juror numbers are presently suggests that the court actually retained a master list or non-redacted copy. That alternate jurors received numbers to correspond with their initials also suggests some master-list reference. See Rep Tr at 50. Juror names were presumably known to the court and counsel, so the jurors were not anonymous. Petitioner has not shown that he was unequivocally barred from access to juror information for lawful purposes. Goodwin, 59 CalApp4th at 1091.
To be sure, the form's standard statement "I am in fear that I will be exposed to physical harm or the threat of physical harm" likely had some prejudicial effect on the jury. But while Petitioner's Fifth and Sixth Amendment rights are of great importance, there is no per se rule that they may not be burdened. Holbrook v. Flynn, 475 U.S. 560, 567 (1986);United States v. Thomas, 757 F.2d 1359, 1365 (2nd Cir 1985). Rather, the inquiry is whether the practice created an unreasonable risk of prejudice that tended to brand the defendant with guilt. Holbrook, 475 US at 570. Here, the juror seal forms were standard boilerplate. The forms contained a blank space where any defendant's name and case number could be handwritten. The jury would have had minimal, if any, prejudicial impression as to this particular defendant. There is no indication of the judge being biased or urging the jurors to presume Petitioner a physical threat. In fact, the judge admonished the jury to disregard any indications that Petitioner was anything but innocent until proven guilty. Rep Tr at 326. The court must presume the jury followed such instruction. United States v. Olano, 507 U.S. 725, 740 (1993). The form's prejudicial influence also appears minimal in light of Petitioner having little evidence in defense. Petitioner did not testify, and the defense's only witness, Colleen Willson, failed to appear under subpoena. Petitioner's only strategy was to attack the credibility of Beck and Lubeck under cross-examination. Based on the foregoing, the prematurely submitted forms cannot be said to have created a substantial and injurious influence over the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
2. Admission of evidence.
Petitioner contends that the 911 tape was inadmissible because it was irrelevant, or alternatively, hearsay and cumulative evidence. The recording contains instances of Beck and Lubeck calling Petitioner "nuts" and characterizing him as "crazy." Petitioner believes this name-calling was prejudicial. Petitioner also argues that the tape was ultimately unnecessary because Beck and Lubeck's in-court testimony would sufficiently corroborate their version of what transpired at the bar.
The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir 1999). Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on due process grounds. Id. Only if there are no permissible inferences the jury may draw from the admitted evidence can its admission violate due process. Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir 1991).
Here, the tape served as additional counter-defense in corroborating Beck and Lubeck's testimony. The tape allows the jury to infer whether Beck and Lubeck planned to frame Petitioner and the extent of Beck's injuries (i.e., how well he could walk and talk after the attack). The tape is also relevant to the attacker's identity because it offers Lubeck's profile description of the alleged attacker as well as Beck's undermining statement that he "never even saw the guy." The admission of the tape did not violate Petitioner's due process rights. See id.
A trial may be rendered unfair if admitted evidence is highly inflammatory and a defendant is unfairly associated with such evidence without proof The court does not find that the tape represents evidence to such an extreme degree. Cf McGuire v. Estelle, 902 F.2d 749 (9th Cir 1990) (finding evidence of an infant's prior injuries from sexual and physical abuse highly inflammatory).
Not only relevant, the tape seems far less redundant and cumulative than Petitioner contends. Even so, this determination is better left to the trial judge. The trial court found countervailing probative value over defense counsel's objection on irrelevance and cumulativeness. Rep Tr at 29-30. This court agrees with the California Court of Appeal that Petitioner fails to show that the trial judge was arbitrary or irrational in her weighing of probative value versus prejudicial effect. People v. Frugoli, slip op at 5-6 (Resp't Ex C). Petitioner is not entitled to habeas relief because he has not shown that there was error and that the alleged error was of constitutional dimension and that it had a substantial and injurious influence on the jury's verdict under Brecht v. Abrahamson, 507 U.S. 619 (1993).
3. Prosecution misconduct.
Petitioner challenges a statement made by the prosecution in support of admitting the 911 tape. The prosecutor stated that the attack "occurred minutes before the 911 call." This statement, Petitioner claims, was a falsity that ultimately misled the trial judge into admitting the allegedly prejudicial 911 tape.
The court finds the prosecutor's statement is not nearly as grossly incorrect as Petitioner contends. The record contains substantial evidence that as little as ten minutes had elapsed between the attack and the phone call. The court agrees with the California Court of Appeal that Petitioner merely advances facts supporting the 30 to 40 minute time frame while ignoring contrary evidence. See People v. Frugoli, slip op at 7 (Resp't Ex C). The prosecutor did not mischaracterize the evidence. Accord id.
Even if the prosecutor had erred, the misstatement would have had to effectively deny Petitioner his due process rights by rendering the trial "fundamentally unfair." Darden v. Wainwright, 477 U.S. 168, 181 (1986). That the alleged misstatement was an isolated rather than repeated incident cuts against finding such unfairness. See Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir 1987) (finding that courts will not reverse when the prosecutorial comment is inter alia a single, isolated incident).
4. Ineffective assistance of counsel.
Petitioner contends that he was denied effective assistance of counsel because his attorney: (a) failed to object to the prosecutor's misconduct; (b) failed to put on a proper defense or call witnesses; and (c) failed to resolve a conflict of interest, which led to improper reliance on Petitioner's prior felonies.
In order to prevail on an ineffective assistance of counsel claim, Petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Judicial scrutiny of counsel's performance must be highly deferential. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id at 689;Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir 1994). The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. Babbit v. Calderon, 151 F.3d 1170, 1173 (9th Cir 1998).
a. Failure to object to the prosecutor's statement.
Petitioner claims that his attorney's failure to object to the prosecution's "minutes" statement caused the judge to admit inadmissible and prejudicial evidence. As previously addressed, the prosecutor's statement was proper. Given the lack of merit to the proposed challenge, counsel's failure to object cannot be said to have been unreasonable.Strickland 466 US at 688. Petitioner has not met the burden of disproving the presumption that his attorney's performance was reasonable. Id at 689. In addition, Petitioner has not shown that there is a reasonble possibility that he was prejudiced by defense counsel's failure to object. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir 1999) ("in order to establish prejudice under Strickland from failure to file a motion, petitioner must show that 1) had 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.") Petitioner is not entitled to federal habeas relief on this claim.
b. Failure to put on a proper defense.
Petitioner complains that his attorney chose not to make an opening statement and rather opted to reserve it. As Respondent correctly asserts, the decision whether to make an opening statement is generally a tactical decision which does not constitute a basis for a claim of ineffective assistance of counsel. See United States v. Rodriguez-Ramirez, 777 F.2d 454, 458 (9th Cir 1985). Similarly, Petitioner cannot complain about the extent of his attorney's cross-examination when such decisions appear tactical. See id. Petitioner has not overcome the presumption that the challenged actions might be considered sound trial strategy. Strickland, 466 US at 689.
Petitioner also attacks the vigor of his attorney's defense because counsel did not call witnesses. Counsel did call Colleen Willson, the bartender, who would later declare that Beck was behaving like a "belligerent drunk." Decl of Willson at 2, March 13, 1998. Unfortunately, Wilson failed to appear despite being subpoenaed by petitioner's counsel. Petitioner contends that defense counsel could have nonetheless called Paul Thompson, a bartender at the Black Watch, a nearby establishment. Thompson's testimony could be used to undermine Beck's credibility further, as he later declared, "I have observed David Beck [after consuming alcohol] to always become very obnoxious to other bar patrons around him. *** Due to his behavior David Beck is no longer allowed into the Black Watch." Decl of Thompson at 1, April 19, 1999.
Thompson would be a less effective witness than Ms Willson because he could only establish a history of belligerence, whereas Ms Willson could establish that Beck was belligerent on the night in question. Because defense counsel could reasonably expect Ms Willson's appearance, his decision not to call Mr Thompson in supplement was not unreasonable. Even assuming that counsel's failure to call Mr Thompson was unreasonable, missing this witness does not undermine this court's confidence that there is no reasonable probability that the result of the proceeding would have been different. Strickland, 466 US at 694. Thompson might have helped impeach the victim, but he had no effect on the credibility on Lubeck, the victim's friend, who reported that Petitioner was violent, threatening and attacked the victim. Defense counsel's failure to call Thompson did not prejudice Petitioner under Strickland.
Petitioner also contends that his attorney should have called Robert Vieira. According to Petitioner, Mr Vieira declared that he saw Beck grab Petitioner's arm, at which time he saw Petitioner hit Beck once. But defense counsel would obviously not want to call Vieira, a witness who would undermine the defense's theory that Petitioner never punched Beck in the first place. Counsel's sole strategy was to undermine the credibility of Beck and Lubeck, not to argue self-defense. Counsel stated in closing that "this case is 100 percent about credibility. 100 percent." Rep Tr at 282. Defense counsel's questioning under cross-examination did not aim to create a self-defense theory.
Petitioner cites to the Declaration of Robert Vieira, Exhibit M. This declaration is missing in the court's record. In addition, Petitioner offers no evidence suggesting that defense counsel even knew of Vieira.
Yet Petitioner contends that Vieira should have been called to establish self-defense. But urging the jury to believe that Petitioner did not batter and to believe that — if he did batter — it was in self-defense, is too inconsistent. Such a ploy would undermine defense counsel's own credibility. Counsel had a tactical reason to reject the self-defense theory and forgo calling Mr Vieira. This court must be deferential to an attorney's decision to abandon inconsistent or unsupported defenses. See Correll v. Stewart, 137 F.3d 1404, 1411-12 (9th Cir 1998). Petitioner has not overcome the presumption that his attorney's performance was reasonable. Strickland, 466 US at 689. Nor has he "affirmatively prove[n] prejudice." Id at 693. Petitioner is not entitled to federal habeas relief on this claim.
C. Conflict of interest.
Petitioner next complains that his attorney, Mr Hamilton, did not vigorously challenge the validity of his prior felony convictions. Petitioner attributes the alleged lack of vigor to a conflict of interest. According to Petitioner, to establish the impropriety of the prior convictions, Mr Hamilton would have to disparage a fellow public defender and establish that she coerced Petitioner into pleading guilty to his prior felonies. Because Mr Hamilton worked out of the same office as previous counsel, the argument goes, Mr Hamilton would have conflicting interests.
Counsel renders ineffective assistance where (1) counsel actively represents conflicting interests and (2) that actual conflict adversely affects the lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The mere possibility of a conflict is insufficient. Id at 350. Furthermore, Petitioner must prove an actual conflict through a factual showing on the record. Morris v. California, 966 F.2d 448, 455 (9th Cir 1992). Specifically, Petitioner must point to the record to show that defense counsel was in a position to choose between helping himself or his client because of any conflicting personal interest. United States v. Baker, 256 F.3d 855, 861 (9th Cir 2001).
Here, Petitioner suggests that a conflict exists merely because his former public defender and his current one worked from the same county office. But there is no evidence suggesting that Mr Hamilton personally knew the former defender. Nor is there evidence suggesting that Mr Hamilton had a duty not to criticize the defender or even collaterally disparage the public defender's office. Petitioner cites no case law, nor can the court find any, to support such a proposition. In fact, a state supreme court has suggested against such a duty because isolated incidents of publically criticizing a fellow attorney are not professional misconduct. See In re Johnson, 240 Kan. 334 (1986).
The record also shows that Mr Hamilton in fact went forward to criticize the former defender in order to challenge the wrongful priors. See Rep Tr at 357-359. Mr Hamilton had Petitioner testify that previous counsel failed to apprize him of his constitutional rights. Mr Hamilton also attempted to distinguish the controlling case law, which ultimately led the trial judge to conclude that she had no jurisdiction to overturn the priors. That Mr Hamilton's strategy was unsuccessful did not render his performance unreasonable. See, e.g., Bayshor v. Riley, 730 F.3d 1228, 1241 (9th Cir 1984) (holding that a failed tactical decision does not amount to ineffective assistance of counsel just because counsel could have used better tactics in hindsight). Petitioner's claim that counsel did not challenge the priors is not supported by the record. The trial judge took Mr Hamilton's submitted matter under "serious" consideration, but decided to uphold the convictions based on recent case law. Rep Tr at 368, 377. Defense counsel suffered from no conflict and his performance was not adversely affected by the fact that he worked out of the same county office as previous counsel. Cf Cuyler, supra, 446 US at 348. Petitioner is not entitled to habeas relief on this claim.
CONCLUSION
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.
SO ORDERED.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issued have been tried or heard and a decision has been rendered.
IT IS SO ORDERED AND ADJUDGED that judgment is entered in favor of respondent.