Opinion
CASE NO. CV 18-10454-JLS (PJW)
06-24-2019
JOSEPH EDWARD SMITH, Petitioner, v. KEN CLARK, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Hon. Josephine L. Staton, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the Petition be denied and the action be dismissed with prejudice.
Petitioner did not file objections to the original Report and Recommendation. Nevertheless, the Court issued this Final Report and Recommendation to correct a typo at page 13 line 16; the word "their" was replaced with the word "there." Petitioner was not given an opportunity to file objections to the Final Report and Recommendation.
I.
SUMMARY OF PROCEEDINGS
A. State Court Proceedings
In 2016, a Los Angeles County Superior Court jury found Petitioner guilty of premeditated attempted murder. It also found that he had used a deadly weapon in the attack and caused great bodily injury. (Reporter's Transcript ("RT") 1808-09.) The trial court determined that Petitioner had a prior strike and sentenced him to 23 years to life in prison. (RT 3316-17.)
Petitioner appealed to the California Court of Appeal, which affirmed the judgement in a written decision. (Lodged Document Nos. 3-6.) He then sought review in the California Supreme Court, which was denied. (Lodged Document Nos. 7 and 8.) B. Federal Court Proceedings
On December 18, 2018, Petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus in this court, claiming: (1) trial counsel was ineffective for failing to request a jury instruction; and (2) the trial court abused its discretion when it granted Petitioner's request to represent himself after the trial. (Petition at 5.)
II.
STATEMENT OF FACTS
The following facts, including the footnote, were taken verbatim from the California Court of Appeal's opinion affirming Petitioner's conviction:
[Petitioner] was charged with the attempted murder of Gregory Whitaker (Whitaker), in violation of Penal Code sections
664 and 187, subdivision (a). The information also alleged that the attempted murder was willful, deliberate, and premeditated, that [Petitioner] used a deadly and dangerous weapon (a knife) in the commission of the crime, within the meaning of section 12022, subdivision (b)(1), and that [Petitioner] inflicted great bodily injury on the victim, within the meaning of section 12022.7, subdivision (a). The information further alleged that [Petitioner] had suffered a prior serious or violent felony conviction within the meaning of 667, subdivision (a)(1), as well as the "Three Strikes" law (§ 667, subd. (b)-(j), § 1170.12, subd. (a)-(d)), and that he had served one prior prison term within the meaning of section 667.5, subdivision (b).
A jury found [Petitioner] guilty of attempted murder as charged, found that the attempted murder was willful, deliberate and premeditated, and found true the deadly weapon and great bodily injury allegations. A court trial on the prior conviction was bifurcated.
After the verdict, the trial court granted [Petitioner's] request to represent himself. The matter was then continued for 30 days, at which time a court trial on the prior conviction was held. The court found true the prior conviction allegations, denied [Petitioner's] motion for new trial, and denied [Petitioner's] motion to strike the prior conviction.
[¶¶]
Prosecution Evidence
On May 22, 2016, Pomona Police Officers Megan Gonzalez and Zane Holmes observed Whitaker and another man in conversation near a liquor store. The officers then saw [Petitioner] riding a bicycle very fast toward the two men. As [Petitioner] reached the men, he stood and angled his body backward, causing the bicycle to be propelled forward from under him, striking Whitaker. Officer Gonzalez saw Whitaker place his empty hands in the air and retreat a step away from [Petitioner]. A recording from the patrol car's cameras were played for [the] jury, with narration provided by the two officers. As Whitaker backed up, [Petitioner] quickly stepped toward him, then threw several punches which landed on Whitaker's face. Whitaker held his hands up as if to protect himself, palms extended outward. Neither officer saw Whitaker attempt to hit [Petitioner] or hold anything in his hands, but they lost sight of the men momentarily after the two fell to the ground. [Petitioner] was then observed on top of Whitaker, who was moving his arms as though he were trying to protect himself. Officer Gonzalez made a U-turn, lost sight of the men for a half second, and then saw both men get up and separate. Both men were yelling at each other as [Petitioner] walked toward his bicycle.
The officers approached and ordered both men to the ground with hands in sight. [Petitioner] appeared agitated and irate. Both men's hands were empty, but a bloodied knife with a six-inch blade was later found in a nearby planter. Whitaker was bleeding from a laceration near his mouth. There were no visible injuries on [Petitioner]. When Whitaker began bleeding profusely from a
neck wound, Officer Gonzalez applied pressure with her hands until paramedics arrived and transported him to the hospital. Whitaker was treated for stab wounds and underwent surgery to tie off his internal jugular vein, which was severely injured.
Defense evidence
[Petitioner], the sole defense witness, testified that he had been convicted of robbery with a firearm in 2002, possession of a firearm by a felon in 2010, and misdemeanor battery on a police officer in 2016. [Petitioner] testified that he had known Whitaker for some years before the incident, and that he had a reputation as a man who liked to "smack" women around and who used drugs. [Petitioner] admitted he was depicted on the video throwing his bicycle at Whitaker and then punching him. [Petitioner] claimed that about 20 minutes earlier, he had confronted Whitaker about a block from the liquor store and demanded the $5 owed to him. [Petitioner] explained that he had sold Whitaker some drugs, had given him money for food, for a total of $10, and Whitaker had repaid only $5 earlier that day. Two other acquaintances of [Petitioner], Robert Lee and Amanda were present at the first contact. As [Petitioner] was talking to them, Whitaker "blindsided" [Petitioner], attacked him from the side, said, "I got your $5.00 right here," and then stabbed [Petitioner] in the chest and on the back, while yelling and screaming. Whitaker held the knife cupped in his hand, behind his pant leg. [Petitioner] fell to the ground and tried to pepper spray Whitaker, but without effect. As [Petitioner] picked up the drugs that fell from his hand and tried to get his bearings, Robert Lee placed himself between the two men to
prevent Whitaker from stabbing [Petitioner] again. Whitaker tried to advance, but retreated when [Petitioner] held up the pepper spray. When Amanda and Whitaker's girlfriend got into a shoving match, Whitaker walked away southbound in the direction of the liquor store, yelling, ranting, and raving.
Although he had been stabbed [Petitioner] did not call the police because he was in possession of and under the influence of drugs; also, due to adrenaline, he did not know whether he was badly injured. [Petitioner] waited awhile so he could go home without encountering Whitaker. After about 10 minutes, he rode his bicycle toward home, which was the same direction that Whitaker had taken. [Petitioner] testified that he was "pretty upset" about Whitaker's stabbing him, but he was more scared than anything, because he realized he was bleeding and his back was kind of burning. When he saw Whitaker and the other man at the liquor store, [Petitioner] felt a "burst of fear" because the other man was a "big dude" and one of them pointed at [Petitioner] as he rode toward them. [Petitioner] thought they would try to jump him, and was "terrified"; nevertheless, he did not cross the street to avoid the men because he did not want to be known as a coward in the neighborhood, or have to say he ran away, so [Petitioner] "made a decision to try to kick his ass."
When [Petitioner] approached Whitaker at the liquor store, he was upset due to what had happened, but he was also in fear for his life. He explained: "I wasn't going to change my path. I
was going home and I felt like if they—if he would have moved out of the way, we would have, no confrontation, but him and that big dude were standing right there, so . . . I thought they were waiting on me."
[Petitioner] denied owning the knife. He had intended to use only his fists to "pound" on Whitaker, and did strike him about 10 times. After the third blow, as Whitaker was backing up, [Petitioner] saw Whitaker reach into his pants pocket. [Petitioner] explained that he tried to grab Whitaker and use a "lawnmower effect": holding him with the left hand while delivering closed fisted blows with the right hand. [Petitioner] then saw Whitaker pull the knife, [Petitioner] grabbed him, and they both fell to the ground. [Petitioner] grabbed at the knife during the struggle, but claimed he did not recall stabbing Whitaker. [Petitioner] also explained his state of mind and his thought process during the struggle as "basically, just I'm going to get him before he gets me." Later in his testimony, [Petitioner] admitted that he stabbed Whitaker, thinking if Whitaker got the knife, he could do the same to [Petitioner].
Asked on cross-examination to again describe the first incident, [Petitioner] testified that early that morning [Petitioner] had sold cocaine to Whitaker, who he knew to be a violent guy who attacked others for no reason. Later, some of [Petitioner's] neighbors were conducting a car wash fundraiser. Many people were there, including Selina, Amanda, Robert Lee, and other friends, who all saw what happened. [Petitioner] stopped to buy a cupcake to support the fundraiser, and asked Whitaker for the $5 he owed [Petitioner].
[Petitioner] denied that it made him angry that Whitaker attacked him with a knife in front of his friends. [Petitioner] explained: "I was a little upset, but I was more afraid of what just happened, like, of him really getting down and dirty with me." [Petitioner] admitted that he told detectives that he was not going to let anyone "punk" him, but he denied that he thought Whitaker's attack made him look like a punk. [Petitioner] intended to go home. Although he was familiar with Pomona and knew multiple ways to get home, [Petitioner] waited 20 minutes and then rode directly toward the area where Whitaker had gone. As he rode, [Petitioner] figured he could use his bicycle to create space and give himself the upper hand. Then, taking advantage of his position, he assaulted Whitaker first. He explained: "I was distraught. I was a little upset, mad, you know. I just wanted to kick his ass." When he saw Whitaker at the liquor store, he could have gone around him, but he felt "a burst of fear" and did not want Whitaker to try to assault him again, so he decided to get off his bicycle "and fuck him up." [Petitioner] added, "That's all I wanted to do." [Petitioner] explained that he tried to "feel out the situation," and ultimately concluded that because he wanted to kick his ass, the best move was to go on the offense, to fight.
When [Petitioner] saw Whitaker take the knife from his pocket, he thought Whitaker would try to stab him again, but he was not thinking that it was a situation of kill or be killed; he was trying his best to defend himself. [Petitioner] also testified that he thought that Whitaker would kill him, but he denied trying to kill Whitaker. [Petitioner] claimed that
Whitaker suffered his facial wound because he fell face first holding the knife when they both fell to the ground. After they wrestled over the knife, [Petitioner] took it from Whitaker's hands while Whitaker was on top of [Petitioner]. [Petitioner] also testified that the knife fell on the ground when they both fell, and that [Petitioner] picked it up and swung it at Whitaker. [Petitioner] stabbed Whitaker hard in the throat, believing that Whitaker would kill [Petitioner] if he got the knife, but still did not intend to kill Whitaker. [Petitioner] was angry, scared, a little of both, and just wanted it to stop.
[Petitioner] identified the knife as the same knife Whitaker used in the first incident. At the hospital [Petitioner's] stab wounds were treated with a Band-aid and a tetanus shot.
Rebuttal
Later that evening, [Petitioner] was interviewed by Detective Anthony Luna and his partner, Detective John Edson. A CD of the video and audio recording of the interview was played for the jury.
[Petitioner's] account of his attack on Whitaker differed somewhat from the patrol car video and the officer's narration. [Petitioner] told the detectives that he saw Whitaker in front of the liquor store with the other man, and was intending to avoid him, but Whitaker came toward him, so [Petitioner] jumped off his bicycle before Whitaker could grab him, and "ghost[ed]" the bicycle into him. [Petitioner] denied that he had a knife, and claimed that he did not know that Whitaker had been stabbed or what had caused his injury. When Detective Luna noted that [Petitioner] could have made a U-turn to avoid Whitaker,
[Petitioner] said, "I could of did a lot of things, man, but I, at the end of the day, . . . I'm not gonna run man. I'm not gonna run, and I—I live that way."(Lodged Document No. 6 at 2-9.)
[Petitioner] told the detectives that he was on his way home when Whitaker approached, they started fighting, and during the fight his mind blanked out. [Petitioner] denied being the aggressor, and suggested that the officers' dashboard camera would show that he was attacked, that Whitaker was on top of him, and that [Petitioner] was trying to defend himself. In the process Whitaker was wounded on his neck. [Petitioner] denied ever having a knife in his hand, at least not when the fight started, but thought that he took the knife while Whitaker was trying to stab him on the ground, then pushed it up, and it hit Whitaker in the throat.
Toward the end of the interview [Petitioner] repeatedly said he had blanked out. He said, "I blanked out trying to defend myself." When asked when he blanked out, [Petitioner] replied, "I blanked out when it happened. When we started fighting."
All further statutory references are to the Penal Code, unless otherwise indicated.
In the factual summary in his brief, [Petitioner] states that he made a "snap" decision, but in fact, [Petitioner] did not qualify the decision when giving testimony.
III.
STANDARD OF REVIEW
The standard of review in this case is set forth in 28 U.S.C. § 2254:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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; or28 U.S.C. § 2254(d).
(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.
A state court decision is "contrary to" clearly established federal law if it applies a rule that contradicts Supreme Court case law or if it reaches a conclusion different from the Supreme Court's in a case that involves facts that are materially indistinguishable. Lockyer v. Andrade, 538 U.S. 63, 73 (2003). To show that the state court unreasonably applied federal law, a petitioner must show that the state court's application of Supreme Court precedent to the facts of his case was not only incorrect but objectively unreasonable. Renico v. Lett, 559 U.S. 766, 773 (2010). Where the Supreme Court has never squarely addressed an issue, a state court's adjudication of it cannot be contrary to, or an unreasonable application of, Supreme Court precedent. See Harrington v. Richter, 562 U.S. 86, 101 (2011).
Petitioner raised his claims in the California Supreme Court and the California Court of Appeal, both of which denied them. The supreme court did not explain why. (Lodged Document No. 8.) The appellate court did (Lodgment No. 6), which this Court presumes is the basis for the state supreme court's subsequent decision denying the claims. In this situation, the Court looks to the appellate court's reasoning and will not disturb it unless it concludes that "fairminded jurists" would all agree that it was wrong. Richter, 562 U.S. at 102; see also Wilson v. Sellers, 584 U.S. ___, 138 S. Ct. 1188, 1193 (2018) (concluding "that federal habeas law employs a 'look through' presumption"); Johnson v. Williams, 568 U.S. 289, 297 n.1 (2013) (approving reviewing court's "look through" of state supreme court's silent denial to last reasoned state-court decision).
IV.
DISCUSSION
A. Ineffective Assistance of Counsel
Petitioner contends that his trial counsel was ineffective for failing to request a special jury instruction that could have allowed the jury to find him guilty of attempted murder instead of attempted premeditated murder. (Petition at 5.) There is no merit to this claim.
The Sixth Amendment right to counsel guarantees effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on a claim of ineffective assistance of counsel, Petitioner must establish that counsel's performance fell below an objective standard of reasonableness under prevailing norms and that there is a reasonable probability that, but for counsel's errors, the outcome of the trial would have been different. Id. at 687-88, 694, 697. A petitioner bears the burden of proving that counsel's assistance was unreasonable and not the result of sound trial strategy. Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001).
Judicial review of a Strickland claim is highly deferential. Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (per curiam). Counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. A federal court's review of a state court's finding that counsel was not ineffective is "doubly deferential." Cullen v. Pinholster, 563 U.S. 170, 190 (2011); Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) ("[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.").
Petitioner was charged with attempted premeditated murder. The trial court instructed the jury that attempted murder required a showing that Petitioner took a step toward killing someone and intended to kill them. (Clerk's Transcript ("CT") 188.) It explained further that premeditated attempted murder required, in addition, proof that Petitioner acted willfully and with premeditation and deliberation. (CT 189.) The trial court defined willfully as intending to act, premeditation as deciding to kill before acting, and deliberation as carefully weighing the considerations for and against before deciding to kill. (CT 189.) The court explained that acting rashly, impulsively, or without careful consideration was inconsistent with premeditation and deliberation. (CT 189.) At counsel's request, the court also instructed the jury on voluntary manslaughter based on imperfect self-defense and heat of passion (and lacking premeditation and deliberation). (CT 195-98.)
Petitioner complains that counsel should have asked the trial court to also instruct the jury that, even if it concluded that the alleged provocation was not enough to support a reduction to attempted voluntary manslaughter, the jury should consider whether there was sufficient doubt as to premeditation such that Petitioner was guilty of only attempted murder, not attempted premeditated murder. He contends that his counsel failed to understand the distinction between the two as evidenced by his closing argument in which he told the jury that the evidence did not show "premeditation to sustain an attempted murder charge." (RT 1577.) In Petitioner's view, this statement showed that counsel thought that attempted murder required premeditation.
The Court of Appeal found that counsel was not ineffective, concluding that he "made a strategic decision to focus his argument on persuading the jury to find [Petitioner] guilty of attempted voluntary manslaughter, rather than attempted murder," and that "counsel considered this the better strategy." (Lodged Document No. 6 at 12-13.) As the appellate court noted, if counsel had requested a modified instruction on attempted murder, the jury's focus might have shifted away from voluntary manslaughter to attempted murder. (Lodged Doc. No. 6 at 12.)
Applying the doubly deferential standard of review here, the Court concludes that the state court did not err in denying this claim. Clearly, as evidenced by the transcript, including the opening statement and the closing argument, trial counsel was trying to convince the jury that Whitaker provoked Petitioner and that Petitioner merely responded to that provocation. (RT 611-12, 1574-77.) Had the jury accepted that argument, it would likely have concluded that Petitioner was guilty of, at most, voluntary manslaughter, not premeditated attempted murder. Counsel was not obligated to champion another, somewhat contradictory, line of defense in anticipation of the jury rejecting his arguments regarding provocation. See, e.g., Matylinsky v. Budge, 577 F.3d 1083, 1091-92 (9th Cir. 2009) (holding counsel was not ineffective for opting to pursue intoxication rather than provocation defense); Decker v. Persson, 746 Fed. App'x 663, 665-66 (9th Cir. 2018) (holding counsel not ineffective for failing to seek a more detailed instruction where counsel "reasonably pursued a different defense").
Furthermore, as the appellate court pointed out, counsel's alleged failures did not cause any prejudice. The jury was instructed that acting rashly, impulsively, and without careful consideration was the absence of deliberation and premeditation. Obviously, the jury found that Petitioner was not acting rashly, impulsively, or without careful consideration. As such, the appellate court's finding as to lack of prejudice is also supported by the record and will not be disturbed.
A fair reading of this record establishes that Petitioner's conviction was not the result of bad lawyering but, rather, a consequence of the overwhelming evidence against him. He carried out this attack in plain view of two police officers who videotaped it and showed the video to the jury. He provided numerous contradictory versions of what happened and why, both at the time he was arrested and while he was testifying at trial. Most notable were his statements that he attacked Whitaker because, after an earlier confrontation, he did not want people to think that he was a coward and because he just wanted to "kick [Whitaker's] ass." He further explained that, rather than take a different route home and avoid Whitaker, he rode right at him with the intent to launch his bike into him and get the upper hand in the fight Petitioner was instigating. Petitioner cannot demonstrate, in light of this evidence, that the state courts erred in rejecting his claim that an additional jury instruction would have changed the outcome of this trial. B. Faretta Claim
After Petitioner was found guilty at trial, he moved to represent himself for post-trial motions and sentencing. The trial court granted the motion. Petitioner argues that it erred in doing so, in violation of Faretta v. California, 422 U.S. 806 (1975). There is no merit to this claim.
In Faretta, the United States Supreme Court held that a defendant has a right under the Sixth Amendment to represent himself at trial and that a trial court errs when it denies a defendant that right. Faretta, 422 U.S. at 819-20. 835-36. Petitioner seeks to flip Faretta on its head, arguing here that the trial court's granting of his motion to represent himself violated Faretta. This argument is rejected. Faretta does not stand for this proposition and, not surprisingly, the Supreme Court has never held that granting a Faretta motion violates the defendant's right to represent himself under Faretta. As such, the California courts' decisions could not have been contrary to clearly established Supreme Court law. See Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (holding state court could not have unreasonably apply federal law where no United States Supreme Court decision squarely addressed the issue presented).
Petitioner argues in the alternative that the trial court violated state law when it entertained the motion even though it was untimely and when it failed to go through the colloquy mandated by the California Supreme Court in People v. Windham, 19 Cal.3d 121, 127-29 (1977). (Lodged Document No. 3 at 42.) Even assuming that the trial court should have denied the motion because it was untimely and should have followed the protocol set forth in Windham, Petitioner would still not be entitled to relief because those claims are grounded in state law, not federal law, and, therefore, are not cognizable in federal habeas corpus. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam) (reaffirming "federal habeas relief does not lie for errors of state law") (citation omitted).
V.
RECOMMENDATION
For these reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting this Final Report and Recommendation and (2) directing that Judgment be entered denying the Petition and dismissing the case with prejudice.
In the original Report and Recommendation, the Court invited Petitioner to explain in his objections why the Court should issue a certificate of appealability. Petitioner elected not to file objections. --------
DATED: June 24, 2019.
/s/_________
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE