Opinion
No. C 00-0819 SI (pr)
July 31, 2001
ORDER DENYIING PETITION FOR WRIT OF HABEAS CORPUS
This matter is now before the court for consideration of the merits of Danny Ray Reiley's pro se petition for writ of habeas corpus concerning his 1996 conviction in the Alameda County Superior Court. For the reasons discussed below, the petition will be denied.
BACKGROUND
The facts giving rise to Reiley's conviction were recited in the California Court of Appeal's decision.
Dale Garrison lived in an apartment in Hayward with his girlfriend, Angelica Elisary, and her two children. One day, when he returned to his apartment in the early afternoon, he noticed that the deadbolt was locked, which was unusual because they never used it. When Garrison entered the apartment, he noticed that a dresser drawer had been dumped out, and he heard noise from the children's room. Garrison entered the room and saw a man at the window with one leg in the room and the other out the window. The men looked at each other for two to three seconds from a distance of roughly 10 feet.
The man continued out the window and dropped to the ground. Garrison ran down to the back door and out into the yard to try to catch the intruder. Garrison saw the man go through a place in the fence where the boards had been torn away. He followed the man and saw him run across the street to 172 Berry Avenue, but Garrison was unable to catch up to him.
Garrison went home and called the police. He found numerous items missing from the apartment. At trial, Garrison stated that he gave the police a description of the burglar as a White or Hispanic male with dark hair, three or four inches off his collar, and a couple of days' growth of facial hair. When asked at trial to describe the man he saw, Garrison testified that he was "skinny" and that he was between five feet eight inches to six feet tall; he also indicated that he thought that the burglar was around thirty years of age. Hayward Police Officer Jeff Lutzinger testified that Garrison told him on the day of the burglary that the perpetrator was a White or Hispanic male in his late 20's § to early 30's, who stood 5 feet 8 inches to 5 feet 11 inches tall and weighed 150 to 1 70 pounds; the burglar also had dark hair, a dark mustache and a beard, trimmed short.[Fn]
[Fn: In the booking photograph used for the photographic lineup shown to Garrison, appellant is described as 5 feet 7 inches, 160 pounds and 43 years old.]
Later that day, a neighbor told Garrison that a man named Danny Reiley had committed the burglary. Garrison passed that information to the police. Garrison later identified appellant from a photographic lineup prepared by the Hayward police. Garrison also identified appellant as the perpetrator in open court.
The defense case was presented principally through the testimony of two witnesses. Matthew Pardew testified that he had driven appellant to the "BART" station on the morning the burglary was committed because appellant had a commitment in Fremont that day. Pardew also testified that appellant was clean shaven that day and was limping. Waler Knipp testified that appellant had spent the entire day of the burglary with him in Fremont; appellant had helped him move. He also indicated that appellant had something wrong with his foot that day.
Respondent's Ex. B-2-1-d, Cal. Ct. App. Opinion I, ¶. 2-3.
Following a trial in Alameda County Superior Court, the jury found Reiley guilty of first degree burglary (Penal Code § 459). In the second half of the bifurcated proceeding, the jury found true allegations that Reiley had suffered three prior convictions (Penal Code § 667(e)(2)) and three prior "serious" felonies (Penal Code § 667(a)). Reiley was sentenced to a term of 35 years to life in state prison — 25 years to life for the burglary under California's three strikes law, aZc Cal. Penal Code § 667. plus five consecutive years on each of the two habitual offender findings. (Penal Code § 667(a)). Reiley appealed. In his first appeal to the California Court of Appeal, the court affirmed his conviction, but remanded for resentencing because of the "trial court's misunderstanding of the scope of its discretion to dismiss one or more of appellant's qualifying priors." Cal. Ct. App. Opinion I, p. 8. On remand, the trial court rejected Reiley's arguments regarding the priors and affirmed his sentence of a term of 35 years to life in prison. In Reiley's second appeal to the California Court of Appeal, the court held that the trial court erred in finding three serious priors and should only have found two. Respondent's Ex. B-2-2-e, Cal. Ct. App. Opinion II, ¶. 7-8. However, the appellate court determined that this error had no effect on Reiley's sentence. The court affirmed his sentence of 35 years to life in prison. Id. at 8. His petition for review was denied by the California Supreme Court. Reiley then filed this action, seeking a federal writ of habeas corpus. The court reviewed the petition and found that Reiley had adequately pled two claims: (1) that his right to effective assistance of counsel was violated, and (2) that his right to due process was violated because there was insufficient evidence to prove the prior convictions. Reiley's third claim was dismissed because it concerned a state law error not subject to federal habeas review. The court ordered respondent to show cause why the writ should not issue. Respondent filed an answer in response to the court's Order to Show Cause. Reiley did not file a traverse. The petition is now ready for consideration on the merits.
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 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); seZe 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. 28 U.S.C. § 2254(b), (c). The parties do not dispute that Reiley has exhausted state court remedies on his claims.
C. Claims
1. Ineffective Assistanceof Counsel
Reiley claims that he was denied his constitutional right to effective assistance of counsel. His defense counsel allegedly was ineffective in that she was later disbarred, failed to exclude evidence that he was a parolee and had a criminal history, failed to present an expert witness to testify about the accuracy of eyewitness testimony, failed to more vigorously challenge the victim's identification of him, and failed to challenge the validity of his prior convictions.
a. Constitutional Standard for Effective Assistance of Counsel
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., her "representation fell below an objective standard of reasonableness" under prevailing professional norms, Rh at 687-88, and (2) prejudice flowed from counsel's performance, i.e., that there is a reasonable probability that, but for counsel's actions, the result of the proceedings would have been different, aeZe id. at 691-94.
The relevant inquiry under Strickland is not what defense counsel could have done, but rather whether her choices were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). "While a lawyer is under a duty to make reasonable investigations, a lawyer may make a reasonable decision that particular investigations are unnecessary. See Strickland, 466 U.S. at 691. To determine the reasonableness of a decision not to investigate, the court must apply "a heavy measure of deference to counsel's judgments.' Id." Babbitt, 151 F.3d at 1173-74.
A difference of opinion as to trial tactics does not constitute denial of effective assistance, see United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981), and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984). Nevertheless, the label of "trial strategy" does not automatically immunize an attorney's performance from Sixth Amendment challenges. ScZc United States v.Span, 75 F.3d 1383, 1389-1390 (9th Cir. 1996). For example, an attorney's misunderstanding of the law resulting in the omission of his client's only defense is not a strategic decision and amounts to ineffective assistance of counsel. Sec id.
b. Analysis of Reiley's Ineffectiveness Claim
Reiley asserts that the most compelling reason to grant his writ is the fact that his attorney, Kathryn Jo-Anne Dixon, was disbarred several years after Reiley was convicted. Reiley's argument lacks merit. While Dixon's disbarment may be an indication of her ineffectiveness in certain situations, it is not automatic grounds for granting Reiley's petition. Lee United States v. Mouzin 785 F.2d 682, 696-99 (9th Cir. 1986). Reiley has not shown that Dixon's disbarment was due to her handling of Reiley's case. See Petitioner's Ex. A, In re Kathryn Jo-Anne Dixon, State Bar Court Decision and
Order, July 9, 1997.
"A defendant must show actual errors and omission by counsel that a conscientious advocate would not have made, and which prejudiced him." Mouzin, 785 F.2d at 696. Reiley must point to "specific conduct which prejudiced him in order to raise the constitutional claim." Id. at 697. This he tries to do by pointing to several particular mistakes his attorney allegedly made.
i. Failure to Exclude Evidence of Reiley's Parole Status and Criminal History
Reiley claims that Dixon should have kept from the jury evidence that Reiley was on parole and had a criminal history. He asserts that Dixon should have objected to the prosecution's opening statement, which included remarks about Reiley's parole officer. While Reiley acknowledges that Dixon did object to the parole officer's testimony, he argues that she did not do so promptly. At trial, Dixon explained that she did not object during the opening statement because she did not "want to highlight it." RT 412. The California Court of Appeal found that Reiley was improperly second-guessing Dixon's trial strategy since Dixon did object to the prosecution's reference to Reiley having a parole officer, but waited to do so until after the opening statement had concluded in order to avoid highlighting Reiley's parole status in front of the jury. Cal. Ct. App. Opinion I, p. 5.
He also asserts that Dixon failed to have Reiley's parole officer excluded as a witness. The California Court of Appeal stated that Dixon "did everything she could to prevent the prosecution from presenting any testimony from appellant's parole officer, including offering to stipulate that appellant lived across the street from Garrison's apartment." Id; see RT 411-412. Further, he asserts that counsel failed to keep from the jury the fact that the photograph of Reiley used in the photographic lineup shown to Garrison was a booking photograph. He argues that due to his counsel's failures, the jury was prejudiced because they knew that he was both on parole and a convicted felon. The California Court of Appeal saw a strategic reason for counsel's actions.
A principle defense theme was misidentification. Defense counsel offered no objection to admitting the photographic lineup into evidence — a choice appellant does not challenge. Demonstrating that Garrison's initial description of the burglar did not resemble appellant in the flesh or in the photographs shown to Garrison by the police was crucial to the misidentification theme. Once the photographic lineup was in evidence, the jurors would have realized that appellant's photograph — like all the others — was a booking photograph. Thus, objecting to testimony that appellant's photograph was a booking photograph would have been a useless gesture. . . . [T]he jury was admonished by the trial court that appellant's arrest — for the charged offense — should not be a source of bias against him.
Cal. Ct. App. Opinion I, p. 4.
This court agrees that defense counsel's actions were pursuant to an appropriate trial strategy. Counsel's decision not to object during the prosecutor's opening statement to the reference to Reiley's parole officer was done to avoid highlighting that fact to the jury. That is a classic strategic choice by an attorney. Moreover, since the parole officer ultimately did testify — despite counsel's efforts to prevent that from occurring — an objection during the opening statement would have been futile. The jury would have learned during the presentation of evidence that Reiley was on parole. Counsel's failure to prevent the jury from learning that a booking photograph was used to identify Reiley also did not amount to deficient performance. Rather, the photograph was necessary to present a key part of Reiley's defense, which was to show that the photograph used to identify him was taken many years ago and was not sufficient to establish his identity at the time of the crime.
ii. Failure to Present Eyewitness Expert Evidence
Reiley claims that his counsel failed to attempt to produce expert eyewitness identification evidence to challenge the victim, who allegedly gave different descriptions of the perpetrator when he first spoke to the police, at the preliminary hearing, and at trial. Reiley argues that his attorney should have produced an expert witness to discredit the victim's statements and show that the victim's statements were not reliable, although Reiley does not explain why expert testimony was needed on this topic. The California Court of Appeal stated: "The discrepancies between Garrison's various descriptions of the burglar's height, weight and age, and appellant's actual height, weight and age were thoroughly covered and emphasized by defense counsel during her cross-examination of Garrison and Officer Lutzinger." Cal. Ci. App. Opinion I, p. 7. Defense counsel, in her closing statement, also emphasized that defendant had been misidentified. RT 897-909.
Throughout the trial, defense counsel worked to persuade the jury that Reiley was not the perpetrator and that the victim's accounts were unreliable. Because the evidence did not warrant it, the failure to call an expert did not amount to deficient performance. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (a decision not to pursue testimony by a psychiatric expert is not unreasonable when the evidence does not raise the possibility of a strong mental state defense). Reiley also has not shown that calling an expert on eyewitness identification would have produced a different outcome at his trial. Counsel's conduct in this regard did not violate constitutional standards of effective assistance of counsel.
Failure to Challenge Victim's Identification of Reiley Reiley argues that his counsel did not do a good enough job challenging the identification of Reiley by Garrison, the victim who saw him leaving the apartment though a window and chased him. The California Court of Appeal rejected this argument, and so does this Court. Counsel did read to the jury Garrison's preliminary hearing testimony which put before the jury evidence that Garrison was more equivocal about his identification of Reiley earlier; there was no advantage to be gained by giving Garrison the opportunity to explain the discrepancies between his current testimony (i.e., that he made a positive identification of Reiley in the lineup) and his preliminary hearing testimony (i.e., that he was not positive that the man he picked out of the photo lineup was the burglar). See Cal. Ct. App. Op. I, p. 7. And counsel's choice not to use Garrison's preliminary hearing testimony to put greater emphasis on the differences between Garrison's statement to police, preliminary hearing testimony and trial testimony caused no prejudice because the discrepancies were thoroughly covered at trial by other cross-examination.
iv. Failure to Challenge the Validity of Prior Convictions
Reiley claims that Dixon failed to challenge the validity of Reiley's prior convictions before trial and that she should have requested a pretrial hearing to dispute his prior convictions. This part of his ineffectiveness claim fails for lack of prejudice. The California Court of Appeal did not address the priors in the context of ineffectiveness of counsel. However, in Reiley's first appeal to the California Court of Appeal, the court remanded the case for resentencing because the trial court mistakenly believed that it had no discretion to strike Reiley's priors under California's three strikes law. Cal. Ct. App. Opinion I, ¶. 1-2; See People v. Superior Court (Romero), 13 Cal.4th 497, 504 (Cal. 1996). On remand, the trial court rejected Reiley's arguments about the strikes and maintained the 35-years-to-life sentence. Cal. Ct. App. Opinion II, p. 2. In Reiley's second appeal to the California Court of Appeal, the court evaluated the validity of these strikes. Id. at 7. The court held that the evidence was insufficient to support the trial court's finding that one of his convictions for assault constituted a strike. Id. Nevertheless, the court found that since Reiley still had two remaining strikes, his sentence was unaffected. Id. From the appellate court's rulings on Reiley's claims concerning the prior convictions, one can see that at most, counsel could have caused one of the priors to be stricken. But that would leave two prior convictions intact, and Reiley would receive the same sentence he received without counsel raising a pretrial challenge to the validity of the priors. Therefore, Reiley has not met the prejudice prong under Strickland because the result of the proceedings would not have been different even if defense counsel had challenged the validity of the prior convictions.
Reiley has not shown that defense counsel's actions, either cumulatively or individually, amounted to ineffective assistance of counsel. The state appellate court's rejection of his claim was not contrary to or an unreasonable application of clearly established Federal law on the right to effective assistance of counsel. Reiley is not entitled to the writ on this claim.
2. Sufficiency of the Evidence of Prior Convictions
Reiley claims that there was insufficient evidence to prove he had suffered three prior convictions, and the trial court improperly considered a suspended prior sentence as a strike.
a. Constitutional Standard for Sufficiency of Evidence
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970); see Leavitt v. Vasquez, 875 F.2d 260, 261 (9th Cir.) (state must prove every element of crime beyond a reasonable doubt), cert. denied, 493 U.S. 866 (1989). A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see id. at 324. However, the Due Process Clause does not guarantee a criminal defendant the right to a finding beyond a reasonable doubt of facts relevant only for purposes of sentencing. See MeMillan v. Pennsylvania, 477 U.S. 79, 84-91 (1986). That is not to say that the Due Process clause has no role in sentencing proceedings. The constitution requires that the factual determinations underlying the sentence be made based on at least a preponderance of the evidence. Sce4 e.g., id. (upholding the constitutionality of a preponderance of the evidence standard in a state law sentencing provision). But cf. United States v. Jordon, 2001 WL 747542, *4 (9th Cir, 2001) (holding that where there is a disproportionate impact due to an enhancement, the disputed enhancement must be proved by clear and convincing evidence in a Federal Sentencing Guidelines case). Regardless of whether the proof required is proof beyond a reasonable doubt, by clear and convincing evidence, or by a preponderance of the evidence, the outcome for Reiley's case is the same because the success of his claim turns on whether a particular conviction could qualify as a prior conviction as a matter of law.
b. California's Three Strikes Law
The heart of California's three strikes law is subdivision (e) of section 667, which prescribes increased terms of imprisonment for defendants who have previously been convicted of certain "violent" or "serious" felonies, see Cal. Penal Code § 667(d). Subdivision (e) may be summarized as follows: A second strike defendant (with one prior felony conviction) receives "twice the term otherwise provided as punishment for the current felony conviction." Cal. Penal Code § 667(e)(l). A third strike defendant (with two or more prior felony convictions) receives an indeterminate term of life imprisonment, which includes a minimum term. The minimum term for a third strike defendant is the greatest of (1) "[t]hree times the term otherwise provided as punishment for each current felony conviction," (2) 25 years, or (3) the term determined by the court, including enhancements, under Penal Code § 1170 et seq. Id. § 667(e)(2). These provisions, for both second and third strike defendants, apply "in addition to any other enhancement or punishment provisions which may apply." Id. § 66 7 (e). A trial court may look into the entire record of conviction to determine the substance of the prior conviction. People v. Guerrero, 44 Cal.3d 343, 355 (Cal. 1988). Only when the record does not disclose any of the facts of the offense actually committed should the court presume that the prior conviction was for the least offense punishable under law. See id.
c. Analysis of Reiley's Insufficiency of the Evidence Claim
Reiley attacks the sufficiency of the evidence used to prove a 1977 burglary conviction, a 1985 assault conviction, and a 1985 robbery conviction.
The California Court of Appeal found that the trial court erred in finding three serious prior convictions and should only have found two. Specifically, the court stated that "the evidence is insufficient to support the trial court's finding that appellant's 1985 conviction for assault constituted a serious prior and thus a strike." Cal. Ct. App. Opinion II, p. 7. This error did not affect the sentence because Reiley's 1977 conviction for first degree burglary and 1985 conviction for robbery were sufficient to establish the requisite two prior convictions. Id. at 8. Since the 1985 assault conviction was not used as a strike against Reiley, his argument about the insufficiency of the proof of that prior conviction is now moot. Likewise, his argument that the court could not count both the 198S assault and the 1985 robbery is now moot.
Reiley next contends that the 1977 burglary was not shown to be a burglary of a residence sufficient to qualify as a prior conviction under California's three strikes law. The California Court of Appeal rejected this argument:
Proof of the 1977 burglary was based solely on an abstract of judgment. It disclosed that on November 18, 1977, appellant was convicted by a plea of "Burglary, First Degree." On December 15, 1977, he was sentenced to the middle term of three years. We accept the agreement of the parties that since appellant was given a determinate sentence, and the determinate sentencing law became effective on July 1, 1977, he must have committed the burglary after July 1, 1977.
Section 667, subdivision (d)(1) provides in pertinent part that a prior felony conviction qualifies as a strike if it is "defined in subdivision (c) of Section 1192.7 as a serious felony in this state." Section 1192.7, subdivision (c)(18) provides: "As used in this section, "serious felony' means any of the following: [¶] . . . (18) burglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building . . .
People v. Grover (1986) 177 Cal.App.3d 1182 (Grover), held that the defendant's conviction of a first degree burglary, committed between July 1 and September 1, 1977, was a residential burglary under section 1192.7, subdivision (c)(18). (Grover, supra, at ¶. 1183-1184 and fn.2, 1188.) After carefully evaluating the first degree burglary statute (§ 460) in effect during such period, as well as the cases interpreting that statute (Id. at ¶. 1185-1187), the court held that a first degree burglary occurring between July 1, 1977, and January 1, 1979 is a residential burglary as a matter of law. (Id. atp. 1185)
In Grover the principal argument of the defendant was identical to the principal argument of appellant herein, namely, that prior to the amendment of section 460 effective January 1, 1979, "a defendant could be convicted of first degree burglary as a result of being found guilty of burglary of a nonresidence — that is, the uninhabited portion of an inhabited building." (Grover, supra, 177 Cal.App.3d at p. 1185.)
The Grover court rejected such argument as follows: "Despite extensive research, we are unable to find any case upholding a conviction of first degree burglary where the defendant did nothing more than burglarize the uninhabited portion of an inhabited building. We conclude, therefore, that a first degree burglary under the 1976 amendment to section 460, effective July 1. 1977, could only be as a matter of law the burglary of an inhabited building or inhabited portion of that building. Burglary of an uninhabited building or an uninhabited portion of an inhabited building, would be burglary in the second degree." (Grover, supra, 177 Cal.App.3d at p. 1187, original italics.)
Cal. Ct. App. Opinion II at 2-3 (footnote omitted).
This Court is not free to review the state's court's determination of state law. See Higks v. Feiock, 485 U.S. 624, 629 (1988); cf. id. at 630 n. 3 (quoting West v. American Telephone Telegraph Co., 311 U.S. 223, 237-38 (1940)) (determination of state law made by an intermediate appellate court must be followed and may not be "`disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise'").
Rather than deciding whether the 1977 burglary conviction did qualify as a strike under California Penal Code § 667(d)(1), this court starts its analysis by accepting that as true because that is what the state appellate court already decided as a matter of state law. Given the state appellate court's decision that the 1977 burglary was a prior serious felony conviction that could be used for enhancement purposes under California Penal Code § 667, and given the fact that Reiley does not otherwise dispute the adequacy of the evidence used to prove that the conviction occurred, his constitutional challenge fails. Although due process would be offended if Reiley received a sentence enhancement based on a non-qualifying prior conviction, that is not what occurred here. Reiley's right to due process was not offended by the California Court of Appeal's decision that the 1977 burglary conviction was a qualifying felony under § 667(d)(1) as a matter of law.
Reiley has not shown that there was not sufficient evidence to permit the trier of fact to determine that he had suffered a 1977 burglary and a 1985 robbery, both of which could be counted as prior serious convictions under California's three strikes law. Reiley is not entitled to the writ on this claim.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.