Roger Thomas Cash v. A. Fakhoury
Filing
22
DECISION AND ORDER by Magistrate Judge Carla Woehrle, It is hereby ORDERED THAT judgment be entered denying the petition for habeas corpus relief and dismissing this action with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ROGER THOMAS CASH,
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Petitioner,
v.
A. FAKHOURY (Warden),
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Respondent.
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No. CV 10-7606-CW
DECISION AND ORDER
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For reasons stated below, the petition for habeas corpus relief
is denied and this action is dismissed with prejudice.
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I.
PROCEDURAL HISTORY
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The pro se petitioner, a prisoner in state custody, challenges a
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conviction in California Superior Court, Los Angeles County, Case No.
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NA077650.
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Petitioner of robbery and carjacking, and found “true” allegations
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that, in each offense, a principal was armed with a firearm.
26
Transcript (“CT”) at 89-91.]
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Petitioner to a six-year term and a one-year enhancement for robbery,
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and a concurrent five-year term and one-year enhancement for
[Petition at 2.]
On June 26, 2008, a jury convicted
[Clerk’s
On August 21, 2008, the court sentenced
1
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carjacking, for a total sentence of seven years.
2
[CT at 106-109.]
Petitioner appealed, and his appointed appellate counsel filed a
3
brief pursuant to People v. Wende, 25 Cal. 3d 436,
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(1979), asking the court of appeal to independently review the record.
5
[Lodged Document (“L. Doc.”) 3.]
6
affirmed the judgment of conviction in an unpublished opinion filed
7
May 27, 2009.
8
Petitioner filed a petition for review in the California Supreme Court
9
on direct review.
10
158 Cal. Rptr. 839
The California Court of Appeal
[No. B210706, L. Doc. 5.]
It does not appear that
Petitioner filed a habeas petition (dated December 27, 2009),
11
which the California Supreme Court summarily denied, without comment
12
or citation, on June 28, 2010.
13
Meanwhile, Petitioner filed a habeas petition (dated June 14, 2010),
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which the superior court denied on June 25, 2010, in an order stating,
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in its entirety, as follows: “The Court has read and considered
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petitioner’s petition for a writ of habeas corpus.
17
find the petition meritorious.
18
9.]
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dated July 6, 2010), which the court of appeal denied on July 15,
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2010, in an order stating, in its entirety, as follows:
21
[No. S179139, L. Docs. 6-7.]
The Court does not
The petition is denied.”
[L. Docs. 8-
Petitioner then filed a habeas petition (with a proof of service
The petition for writ of habeas corpus filed herein
22
July 12, 2010 has been read and considered.
The court has
23
also examined the file in proceeding number B210706,
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petitioner Cash’s direct appeal from the judgment in Los
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Angeles Count Superior Court case number NA077650.
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petition is denied.
27
[No. B225690, L. Docs. 10-11.]
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for review of the court of appeal’s denial (with a proof of service
The
Finally, Petitioner filed a petition
2
1
dated July 26, 2010), which the state supreme court summarily denied,
2
without comment or citation, on September 15, 2010.
3
Docs. 12-13, and copy of denial order attached to Petition.]1
[No. S184790, L.
4
The present Petition for Writ of Habeas Corpus by a Person in
5
State Custody (28 U.S.C. § 2254), dated September 28, 2010, was lodged
6
court on October 1, 2010, and filed on October 12, 2010.
7
Docket no. 1.]
8
[Docket no. 15.]
Petitioner’s Response was filed on March 7, 2010.
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[Docket no. 19.]
The parties have consented to the jurisdiction of
10
Respondent’s Answer was filed on February 10, 2011.
the undersigned magistrate judge.
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12
[Petition,
II.
[Docket nos. 3, 14, 17.]
FACTUAL BACKGROUND
The Court of Appeal gave the following summary:
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Tony Bracy was sentenced to state prison as a result of
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operating a “chop shop” where he bought and dismantled
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stolen vehicles.
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Bracy was visiting the house of a friend, Holly Henderson,
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when a man knocked on the front door.
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man inside and he produced a gun, which he used to strike
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Bracy in the face.
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floor and covered Bracy's eyes and bound his wrists and
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ankles with duct tape.
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the man search Bracy’s pockets, taking Bracy’s wallet, watch
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and other items.
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recognized the voice of the man who had left a threatening
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telephone message that Bracy would be killed unless he
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returned a certain motorcycle.
Following his release on March 6, 2008,
Henderson invited the
He then ordered Bracy to lie on the
Two confederates arrived and helped
As the perpetrators were talking, Bracy
The perpetrators left the
27
1
28
In his last three state petitions, Petitioner raised the same
claims presented in the present petition. [L. Docs. 8, 10, 12.]
3
1
house, and Bracy was able to remove the duct tape.
2
outside, saw the perpetrators searching his truck and fled.
3
Bracy later contacted police.
4
He went
His truck was taken.
Roger Thomas Cash met with police voluntarily.
During
5
the interview, he told officers he believed Bracy had stolen
6
his motorcycle.
7
Bracy’s truck parked outside Henderson’s house.
8
entered the house, saw Bracy and tackled him.
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he had bound Bracy with duct tape, before demanding payment
On the night of March 6, 2008, Cash saw
Cash
Cash admitted
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of $20,000 as compensation for his stolen motorcycle.
Cash
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also admitted he threatened to keep Bracy’s truck unless
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Bracy surrendered the motorcycle or the money.
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At trial, Cash testified in his own defense that he had
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lied to police to protect his friend Damian Morales, who had
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telephoned him on March 6, 2008 from Henderson’s house.
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Cash arrived to find Bracy on the floor, bound in duct tape.
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Cash admitted he had demanded that Bracy return his
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motorcycle, but denied hitting Bracy or taking his truck or
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personal property.
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[L. Doc. 5 at 2, footnote omitted.]
III.
PETITIONER’S CLAIMS
Petitioner asserts four grounds for federal habeas relief: (1)
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ineffective assistance of trial counsel; (2) ineffective assistance of
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appellate counsel; (3) “factual innocence”; and (4) failure to
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disclose exculpatory material.
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IV.
STANDARD OF REVIEW
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A federal court may review a habeas petition by a person in
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custody under a state court judgment “only on the ground that he is in
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1
custody in violation of the Constitution or laws or treaties of the
2
United States.”
3
available for state law errors.
4
S. Ct. 859, 861, 178 L. Ed. 2d 732 (2011)(per curiam)(citing Estelle
5
v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 116 L. Ed. 2d 385
6
(1991)).
7
28 U.S.C. § 2254(a).
Federal habeas relief is not
Swarthout v. Cook,
U.S.
, 131
Under the Antiterrorism and Effective Death Penalty Act of 1996
8
(“AEDPA”), a federal court may not grant habeas relief on a claim
9
adjudicated on its merits in state court unless the adjudication led
10
to a conviction that:
11
(1) resulted in a decision that was contrary to, or involved
12
an unreasonable application of, clearly established Federal
13
law, as determined by the Supreme Court of the United
14
States; or
15
(2)resulted in a decision that was based on an unreasonable
16
determination of the facts in light of the evidence
17
presented in the State court proceeding.
18
19
28 U.S.C. § 2254(d).
“Clearly established federal law” means federal law that is
20
clearly defined by the holdings of the Supreme Court at the time of
21
the state court decision.
22
See, e.g., Cullen v. Pinholster,
U.S.
, 131 S. Ct. 1388, 1399, 179 L. Ed. 2d 557 (2011)(citation omitted).
23
Although only Supreme Court law is binding, “circuit court precedent
24
may be persuasive in determining what law is clearly established and
25
whether a state court applied that law unreasonably.”
26
Cullen, 633 F.3d 852, 859 (9th Cir. 2011)(citation omitted).
Stanley v.
27
In determining whether a decision is “contrary to” clearly
28
established federal law, a reviewing court must evaluate whether the
5
1
decision “‘applies a rule that contradicts [such] law’” and how the
2
decision “confronts [the] set of facts that were before the state
3
court.’”
4
v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L. Ed. 2d 389
5
(2000)).
6
legal principle’ in existence at the time,” a reviewing court must
7
assess whether the decision “‘unreasonably applies that principle to
8
the facts of the prisoner’s case.’”
9
at 413).
Cullen v. Pinholster, 131 S. Ct. at 1399 (quoting Williams
If the state decision “‘identifies the correct governing
Id. (quoting Williams, 529 U.S.
An “unreasonable application” of law is “‘different from an
10
incorrect application’” of that law.
11
__, 131 S. Ct. 770, 785, 178 L. Ed. 2d 624 (quoting Williams, 529 U.S.
12
at 410).
13
determination may not be overturned on habeas review unless the
14
factual determination is “‘objectively unreasonable in light of the
15
evidence presented in the state-court proceeding.’”
16
at 859 (quoting Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004)).
17
Harrington v. Richter, __ U.S.
Similarly, a state-court decision based upon a factual
Stanley, 633 F.3d
The AEDPA standard requires a high level of deference to state
18
court decisions, such that a state decision that a claim lacks merit
19
precludes federal habeas relief so long as “‘fairminded jurists could
20
disagree’ on the correctness of the state court’s decision.”
21
Harrington v. Richter, 131 S. Ct. at 786 (quoting Yarborough v.
22
Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 158 L. Ed. 2d 938
23
(2004)).
24
prisoner must show that the state court’s decision on a federal claim
25
was “so lacking in justification that there was an error well
26
understood and comprehended in existing law beyond any possibility for
27
fairminded disagreement.”
28
court finds such a state-court error of clear constitutional
Accordingly, to obtain federal habeas relief a state
Id. at 786-87.
6
Moreover, even if this
1
magnitude, habeas relief is not available unless the error “had
2
substantial and injurious effect or influence in determining the
3
jury's verdict.”
4
2321, 168 L. Ed. 2d 16 (2007)(quoting Brecht v. Abrahamson, 507 U.S.
5
619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)).
6
7
Fry v. Pliler, 551 U.S. 112, 116, 121-22, 127 S. Ct.
V.
DISCUSSION
Here, as noted above, Petitioner presented his present claims to
8
the California courts in his final three petitions, namely habeas
9
petitions in the superior court and the court of appeal, and a
10
subsequent petition for review in the state supreme court.
Under
11
recent Ninth Circuit law, it appears that the state supreme court’s
12
denial of discretionary review was not a decision on the merits for
13
purposes of AEDPA deference under 28 U.S.C. § 2254(d).
14
v. Cavazos, 646 F.3d 626, 636 (9th Cir. 2011)(“the California high
15
court’s decision to deny a petition for review is not a decision on
16
the merits, but rather means no more than that the court has decided
17
not to consider the case on the merits”).
See Williams
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On the other hand, the denials of habeas petitions by the
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superior court and the court of appeal, although summary, were
20
adjudications on the merits; all of the present claims were presented
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to those courts, and there is nothing in the record to suggest that
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the two lower state courts failed to reach any of Petitioner’s claims,
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or decided any of them on grounds other their merits.
24
A federal habeas court must defer, under § 2254(d), to a state
25
court decision on the merits, “even where there has been a summary
26
denial.”
27
v. Richter, 131 S. Ct. at 786).
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state court, a petitioner “can satisfy the ‘unreasonable application’
Cullen v. Pinholster, 131 S. Ct. at 1402 (citing Harrington
In the face of a summary denial by a
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1
prong of § 2254(d)(1) only by showing that ‘there was no reasonable
2
basis’” for the state court’s decision.
3
Ct. at 1402 (citing Harrington v. Richter, 131 S. Ct. at 784).
4
federal “habeas court must determine what arguments or theories
5
supported, or . . . could have supported, the state court’s decision;
6
and then it must ask whether it is possible fairminded jurists could
7
disagree that those arguments or theories are inconsistent with the
8
holding in a prior decision of [the Supreme] Court.”
9
Richter, 131 S. Ct. at 786.
10
Cullen v. Pinholster, 131 S.
A
Harrington v.
Therefore, in Petitioner’s case, this court must apply
11
deferential AEDPA review to the California Court of Appeal’s summary
12
denial, on the merits, of each of Petitioner’s claims for habeas
13
corpus relief.
14
A.
FAILURE TO DISCLOSE EXCULPATORY EVIDENCE
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In Ground Four, Petitioner claims that exculpatory evidence --
16
that his former co-defendant received a six-month sentence on lesser
17
charges in separate proceedings -- was not disclosed to the defense at
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Petitioner’s trial.
19
[Petition at 6.]
The prosecution’s failure to disclose material evidence favorable
20
to the defense violates due process regardless of the prosecution’s
21
good or bad faith.
22
1194, 10 L. Ed.2d 215 (1963).
23
“only if there is a reasonable probability that, had the evidence been
24
disclosed to the defense, the result of the proceeding would have been
25
different.”
26
3375, 87 L. Ed. 2d 481 (1985).
27
“a probability sufficient to undermine confidence in the outcome.”
28
Bagley, 473 U.S. at 682.
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct.
Evidence is “material” under Brady
United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct.
Here, “reasonable probability” means
Under Brady and Bagley, the prosecution also
8
1
“has a duty to learn of any favorable evidence known to the others
2
acting on the government’s behalf in the case, including the police,”
3
and to disclose such favorable evidence if it is material.
4
Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).
5
At trial, Detective Braden testified about Petitioner’s voluntary
6
confession to him and another officer.
7
told the officers that, believing that the victim, Tony Bracy, had
8
stolen his motorcycle, Petitioner had located Bracy at the home of a
9
friend, Holly Henderson, and had tackled Bracy, duct-taped his legs
10
and arms, told him that Petitioner would take his truck and keep it
11
unless he either returned Petitioner’s motorcycle or gave him $20,000,
12
and left taking the truck.
13
[RT at 91-92.]
Kyles v.
Petitioner
[RT at 91-92.]
At trial, Petitioner testified that he went to Henderson’s home
14
because Morales called to tell him that Bracy was there, that when he
15
arrived Bracy was already on the floor duct-taped, that Petitioner
16
asked Bracy where Petitioner’s motorcycle was, and that, when Bracy
17
said it was too late to get the motorcycle back, Petitioner just left.
18
[RT at 99-104.]
19
police as related by Detective Braden, but Petitioner testified that
20
he had lied to the police in his confession to help Morales, because
21
Morales had done him a favor in trying to get his motorcycle back, and
22
because Morales’s mother had asked Petitioner to help.
23
117-19.]
24
Petitioner admitted that he had made the statement to
[RT at 107-08,
Petitioner now alleges that Morales had pleaded with Petitioner
25
to take the blame, because Morales, with two prior felony convictions,
26
faced a third-strike life sentence if convicted, and Petitioner, a
27
first-timer, would get six months to a year for stealing the truck.
28
[Petition attachment.]
Petitioner further alleges that, although
9
1
Morales was originally identified in police reports as the sole
2
suspect in the robbery and carjacking, he got a six-month sentence for
3
receiving stolen property because he made a secret deal with the
4
prosecution, and that this secret deal was somehow withheld from the
5
defense at trial.
6
received a more favorable outcome if this secret deal had been brought
7
out at trial.
8
9
[Id.]
Petitioner contends that he would have
[Id.]
Here, although Petitioner asserts a claim under Brady, he fails
to support such a claim.
First, he has not offered any evidence,
10
other than his bare assertion, that Morales even made a plea deal with
11
the prosecution.
12
such a deal, or Morales would not have been convicted on only a lesser
13
charge and received such a light sentence.
14
offered any evidence that such a deal was somehow concealed.
15
nothing in the record to suggest that Petitioner or his counsel did
16
not have access to all the evidence in the case, including police
17
reports, or that any plea by Morales would not have been a matter of
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public record.
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for both Petitioner and Morales, which shows that the prosecution had
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a prima facie case against Morales for receiving stolen property, a
21
crime on which he was charged and apparently convicted, but not,
22
apparently for robbery or carjacking.
23
offers no evidence, beside his own statements, implicating Morales
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directly in the robbery or the carjacking.
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prosecution charged Morales with receiving stolen property, and
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Petitioner with robbery and carjacking based on the evidence.
27
28
He has simply asserted that there must have been
[Id.]
Nor has Petitioner
There is
The record includes the preliminary hearing transcript
[CT at 1-47.]
Petitioner
On the record, the
There is no indication here that Petitioner’s alleged Brady
material existed.
Therefore, the court of appeal’s decision denying
10
1
this claim was not contrary to or an unreasonable application of
2
Brady, and federal habeas relief is not available on this claim.
3
B.
“FACTUAL INNOCENCE”
4
In Ground Three, Petitioner states his claim as follows: “Factual
5
innocence -- no physical evidence exists.
6
co-defendant as only individual with firearm -- stolen vehicle found
7
in possession of co-defendant -- no witness - eyewitness identifies
8
Petitioner.”
9
Witnesses/victim identified
[Petition at 6.]
Petitioner has not identified any affirmative evidence of actual
10
or factual innocence, and the mere absence of “physical evidence” is
11
not in itself evidence of actual innocence.
12
face, Petitioner has not actually identified any legal basis for
13
federal habeas corpus relief, that is, any grounds on which his
14
conviction was in violation of the Constitution or laws or treaties of
15
the United States.
16
In Ground Three, on its
See 28 U.S.C. § 2254(a).
At most, Ground Three might be construed as an attempt to state a
17
claim that Petitioner was convicted on insufficient evidence.
18
out in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d
19
560 (1979), a habeas petitioner stating a due process claim based on
20
insufficient evidence is entitled to relief “if it is found that upon
21
the record evidence adduced at trial no rational trier of fact could
22
have found proof of guilt beyond a reasonable doubt.”
23
Brown, __ U.S. __, 130 S. Ct. 665, 667, 175 L. Ed. 2d 582 (2010)
24
(quoting Jackson, 443 U.S. at 325); see also In re Winship, 397 U.S.
25
358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)(“[T]he Due Process
26
Clause protects the accused against conviction except upon proof
27
beyond a reasonable doubt of every fact necessary to constitute the
28
crime with which he is charged.”)
As set
McDaniel v.
In determining whether there was
11
1
sufficient evidence to support a state court conviction, the elements
2
of the crime at issue are defined by state law.
3
324 n. 16.
4
light most favorable to the prosecution, any rational trier of fact
5
could have found the essential elements of the crime beyond a
6
reasonable doubt.”
7
(citation omitted); see also Wright v. West, 505 U.S. 277, 284, 112 S.
8
Ct. 2482, 120 L. Ed. 2d 225 (1992).
9
conflicting inferences, a reviewing court “must presume – even if it
10
does not affirmatively appear in the record – that the trier of fact
11
resolved any such conflicts in favor of the prosecution, and must
12
defer to that resolution.”
13
Jackson, 443 U.S. at 326); see also Juan H. v. Allen, 408 F.3d 1262,
14
1275 (9th Cir. 2005); Roehler v. Borg, 945 F.2d 303, 306 (9th Cir.
15
1991)(“The question is not whether we are personally convinced beyond
16
a reasonable doubt.
17
conclusion that these jurors reached.”).
18
Jackson, 443 U.S. at
The test is “whether, after viewing the evidence in the
Jackson, 443 U.S. at 319 (emphasis original)
If the record supports
McDaniel, 130 S. Ct. at 673 (quoting
It is whether rational jurors could reach the
On review of an insufficient evidence claim adjudicated by the
19
state courts, a federal habeas court must determine whether the state
20
court’s decision involved an unreasonable application of the Jackson
21
standard.
22
not grant habeas relief unless the state court applied the Jackson
23
standard in an “objectively unreasonable” manner.
24
Ct. at 673 (citing Williams, 529 U.S. at 409); see also Smith v.
25
Mitchell, 624 F.3d 1235, 1239 and n. 1 (9th Cir. 2010)(on the “double
26
layer of deference required by the Jackson standard when it is
27
combined with the standard of [the AEDPA]”).
28
Juan H., 408 F.3d at 1275.
That is, the federal court may
McDaniel, 130 S.
Here, Petitioner was convicted of a robbery, in which a principal
12
1
was armed with a firearm, and a carjacking, in which a principal was
2
armed with a firearm.
3
elements of robbery (taking personal property in the possession of
4
another, against that person’s will, by either force or fear, and with
5
a specific intent permanently to deprive the person of the property),
6
and the elements of carjacking (taking a motor vehicle in possession
7
of another, against the will and with the intent to permanently or
8
temporarily deprive the person in possession of the vehicle,
9
accomplished by either force or fear).
At trial, the jury was instructed on the
[RT at 129-32.]
The jury was
10
also instructed that those involved in committing or attempting to
11
commit a crime are “principals” in that crime, that every principal is
12
equally guilty, and that principals include both those who actively
13
and directly commit or attempt to commit a crime and those who aid and
14
abet the commission or attempted commission of a crime.
[RT at 127.]
In Petitioner’s case, the testimony of the victim, Bracy, was
15
16
sufficient, under Jackson, to establish that he was first attacked by
17
an unidentified man, who pulled a gun on him, stuck it in his face,
18
hit him in the face with it, and told him to get down.2
19
31.]
20
legs, and started hitting and kicking him.
21
minutes later at least two other persons arrived and also began
22
hitting Bracy.
23
to Bracy, such as cut his arms off, or burn him, and went through his
24
pockets and took his watch and phone.
25
the voice of one of the other persons as that of a man who had left
[RT at 29-
The man then put duct tape around Bracy’s eyes, wrists, and
[RT at 31-32.]
[RT at 31.]
About ten
They talked about what they might do
[RT at 32.]
Bracy recognized
26
27
28
2
Despite Petitioner’s assertion that the witness identified
this man as Morales, at the preliminary hearing Bracy made clear that
he could not identify him as either Petitioner or Morales. [CT at 6.]
13
1
threatening phone messages demanding that Bracy return his Harley.
2
[RT at 33.]
3
to return the Harley, and that he would think about returning Bracy’s
4
truck if Bracy returned the Harley.
5
left, Bracy got the duct tape off, and saw someone going through his
6
bags in his truck, and heard the engine running.
7
was not able to visually identify Petitioner.
[RT at 33.]
When the people
[RT at 34.]
Bracy
[RT at 35.]
This evidence alone, under Jackson, is sufficient to establish
8
9
Now this same person told Bracy he had twenty-four hours
that the robbery and carjacking of Bracy occurred, and that, in
10
relation to each crime, a principal was armed with a firearm.
11
Petitioner does not contest this, but contends that he was not guilty
12
of robbery or carjacking.
13
he was present at the robbery scene, and saw Bracy on the floor duct-
14
taped.
15
demanded that Bracy return his motorcycle or give him money.
16
116.]
17
Detective Braden to duct-taping Bracy and taking the truck.
18
91-92.]
19
had previously accused Bracy of taking his motorcycle, and admitted
20
that he had confessed, but now claimed that he had lied about duct-
21
taping Bracy and taking the truck.
22
testified as follows:
23
[RT at 101.]
However, Petitioner admitted at trial that
Petitioner admitted that he had previously
[RT at
As noted above, Petitioner had previously confessed to
[RT at
At trial, Petitioner did not deny that he was the person who
[RT at 107.]
At trial, Petitioner
When I went to the house Tony Bracy was there and duct
24
taped like he said he was.
25
want any part of this.
I just want to get my bike back.”
I
26
take his truck, its not going to get my bike back either.
I
27
want my bike back.
28
happened after that I have no idea.
And I told the guys, “I don’t
I turned around and left, and whatever
14
1
2
[RT at 109.]
Clearly, the jury did not find Petitioner’s testimony credible,
3
but, instead, believed Bracy’s testimony, and drew the conclusion that
4
Petitioner was the person whose voice Bracy recognized.
5
the evidence was sufficient for the jury to conclude that Petitioner
6
took part in the robbery and carjacking, and to convict him on those
7
charges.
8
Under Jackson
Thus, Petitioner cannot support an insufficient evidence claim,
9
and has not stated any other basis for habeas relief on Ground Three.
10
The court of appeal’s decision denying this claim was neither contrary
11
to nor an unreasonable application of clearly established Supreme
12
Court law, and federal habeas relief is not available.
13
C.
14
In Ground One, Petitioner claims that he was denied his right to
15
the effective assistance of counsel when his trial counsel (1) failed
16
to call Damian Morales and Holly Henderson as witnesses, (2) failed to
17
question the voice identification of Petitioner, and (3) did not
18
request the Brady material regarding Morales.
19
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
[Petition at 5.]
The Sixth Amendment guarantees criminal defendants the right to
Strickland v. Washington, 466 U.S.
20
effective assistance of counsel.
21
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
22
of ineffective assistance of counsel, a habeas petitioner must show
23
both that counsel’s representation fell below an objective standard of
24
reasonableness and that counsel’s deficient performance prejudiced the
25
defense.
26
173 L. Ed. 2d 251 (2009)(citing Strickland, 466 U.S. at 687); see also
27
Bell v. Cone, 535 U.S. 685, 695, 122 S. Ct. 1843, 152 L. Ed. 2d 914
28
(2002)(quoting Strickland, id.).
To establish a claim
Knowles v. Mirzayance, __ U.S. __, 129 S. Ct. 1411, 1419,
An ineffective assistance claims
15
1
fails on a finding either that counsel’s performance was reasonable or
2
that the alleged error was not prejudicial.
3
697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002).
4
Strickland, 466 U.S. at
A reviewing court must examine the reasonableness of counsel’s
5
challenged conduct under all the circumstances, including the facts of
6
the particular case as viewed at the time of the conduct.
7
466 U.S. at 688, 690.
8
“highly deferential,” and a petitioner must overcome the presumption
9
that, under the circumstances, the challenged action “might be
Strickland,
Scrutiny of counsel’s performance must be
10
considered sound trial strategy.”
11
presumed to have rendered adequate assistance and made all significant
12
decisions in the exercise of reasonable professional judgment.”
13
Strickland, 466 U.S. at 690; see also Harrington, 131 S. Ct. at 788
14
(“The question is whether an attorney’s representation amounted to
15
incompetence under ‘prevailing professional norms,’ not whether it
16
deviated from best practices or most common custom.”)(quoting
17
Strickland, 466 U.S. at 690); Bell, 535 U.S. at 702 (“We cautioned in
18
Strickland that a court must indulge a ‘strong presumption’ that
19
counsel’s conduct falls within the wide range of reasonable
20
professional assistance because it is all too easy to conclude that
21
particular act or omission of counsel was unreasonable in the harsh
22
light of hindsight.” (citation omitted)).
23
Id. at 689.
Counsel is “strongly
To prove prejudice, “[i]t is not enough for the [petitioner] to
24
show that [counsel’s] errors had some conceivable effect on the
25
outcome of the proceeding” because “[v]irtually every act or omission
26
of counsel would meet that test, and not every error that conceivably
27
could have influenced the outcome undermines the reliability of the
28
result of the proceeding.”
Strickland, 466 U.S. at 693 (citation
16
1
omitted).
2
“reasonable probability,” sufficient to undermine confidence in the
3
outcome, that, “but for counsel’s unprofessional errors, the result of
4
the proceeding would have been different.”
5
Harrington, 131 S. Ct. at 792 (“The likelihood of a different result
6
must be substantial, not just conceivable”).
7
Rather, a petitioner has the heavier burden of showing a
Id. at 694; see also
On AEDPA review of a state court’s adjudication of a Strickland
8
claim, “[t]he pivotal question is whether the state court’s
9
application of the Strickland standard was unreasonable.
This is
10
different from asking whether defense counsel’s performance fell below
11
Strickland’s standard.”
12
interplay of the AEDPA and Strickland standards, it is particularly
13
difficult to establish that a state court’s decision denying an
14
ineffective assistance of counsel claim was unreasonable:
15
Harrington, 131 S. Ct. at 785.
Given the
The standards created by Strickland and § 2254(d) are
16
both ‘highly deferential,’ and when the two apply in tandem,
17
review is ‘doubly’ so. The Strickland standard is a general
18
one, so the range of reasonable applications is substantial.
19
Federal habeas courts must guard against the danger of
20
equating unreasonableness under Strickland with
21
unreasonableness under § 2254(d).
22
the question is not whether counsel’s actions were
23
reasonable.
24
argument that counsel satisfied Strickland’s deferential
25
standard.
When § 2254(d) applies,
The question is whether there is any reasonable
26
Id. at 788 (citations omitted); see also Cheney v. Washington, 614
27
F.3d 987, 994-95 (9th Cir. 2010)(federal courts must be “doubly
28
deferential” to state court adjudications of Strickland claims).
17
1
1.
Counsel’s Failure to Call Two Witnesses
2
Petitioner contends that trial counsel was ineffective for
3
failing to call as witnesses Damian Morales, Petitioner’s former co-
4
defendant, or Holly Henderson, at whose home the robbery took place.
5
[Petition at 5.]
6
witnesses would have testified to.
7
these were important witnesses who should have testified does not
8
overcome the presumption, noted above, that counsel’s failure to call
9
these witnesses “might be considered sound trial strategy.”
Petitioner has made no showing regarding what these
Petitioner’s bare assertion that
10
Strickland, 466 U.S. at 689.
11
concluded that these witnesses were more likely to hurt than help
12
Petitioner’s case.
13
witnesses might have testified, Petitioner cannot show that counsel’s
14
failure to call them prejudiced his case.
15
deferential standard applied to AEDPA review of a Strickland claim,
16
this court cannot say that the state court’s denial of this claim was
17
objectively unreasonable.
For example, counsel might well have
Also, without any indication of how these
Under the doubly
18
2.
19
Petitioner also claims that trial counsel was ineffective for
20
failing to “question” the voice identification, presumably meaning
21
Bracy’s testimony that he recognized the voice of one of the people
22
who took part in robbing him as the voice of a person who had left him
23
threatening messages in the past about the motorcycle.
24
5.]
25
might have been questioned.
26
the scene of the robbery, to speaking in Bracy’s presence, and to
27
having left Bracy phone messages about the motorcycle in the past.
28
The identification of Petitioner as present at the robbery, based on
Counsel’s Failure to Challenge Voice Identification
[Petition at
Petitioner does not explain how Bracy’s voice identification
However, Petitioner admitted to being at
18
1
Bracy’s recognition of his voice, was not the main point at issue at
2
trial; the crucial issue was what Petitioner said and did at the scene
3
of the robbery.
4
Petitioner’s voice (for example, by asking Bracy if he recognized the
5
same voice when Petitioner testified at trial), might well have made
6
Bracy seem more rather than less credible to the jury, without
7
undercutting Bracy’s testimony as to what Petitioner said during the
8
robbery.
9
Bracy’s credibility through Bracy’s admitted history as a convicted
10
Any attempt to challenge Bracy’s recognition of
Trial counsel might well have decided to focus on attacking
felon who had run a “chop shop” for stolen motorcycles.
In light of the above discussion, Petitioner cannot show that
11
12
counsel’s failure to question the voice identification met either the
13
competence or prejudice prong under Strickland, and this court cannot
14
say that the court of appeal’s denial of this claim was objectively
15
unreasonable under AEDPA and Strickland.
16
3.
17
Petitioner also contends that trial counsel was ineffective for
Counsel’s Failure to Request Brady Material
18
failing to request the purported Brady material relating to former co-
19
defendant Morales’s “secret deal” with the prosecution.
20
5.]
21
ever was any such Brady material.
22
exculpatory material does not satisfy either the competence prong or
23
the prejudice prong of the Strickland standard.
24
reasonably denied this claim, and habeas relief is not available.
[Petition at
However, as discussed above, Petitioner has not shown that there
Failure to request non-existent
The court of appeal
25
D.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
26
In Ground Two, Petitioner states that his appellate counsel
27
“filed a Wende appeal -- essentially voiding any type of defense for
28
appeal.”
[Petition at 5.]
19
1
The Sixth Amendment right to the effective assistance of counsel
2
extends to effective assistance of counsel on appeal.
Smith v.
3
Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000);
4
Evitts v. Lucey, 469 U.S. 387, 391-405, 105 S. Ct. 830, 83 L. Ed. 2d
5
821 (1985)(holding that the Due Process Clause guarantees a criminal
6
defendant effective assistance of counsel on his first appeal as of
7
right).
8
appellate counsel to raise every non-frivolous issue requested by an
9
appellant.
However, the right does not impose a constitutional duty on
Jones v. Barnes, 463 U.S. 745, 751-54, 103 S. Ct. 3308, 77
10
L. Ed. 2d 987 (1983); see also Kimmelman v. Morrison, 477 U.S. 365,
11
375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)(noting general rule that
12
failure to make a futile or meritless motion or objection is not
13
deficient performance).
14
“must show a reasonable probability that, but for his counsel’s
15
unreasonable failure [to raise a certain issue], he would have
16
prevailed on appeal.”
17
Johnson, 261 F.3d 832, 840 (9th Cir. 2001)(“[A]ppellate counsel’s
18
failure to raise issues on direct appeal does not constitute
19
ineffective assistance when appeal would not have provided grounds for
20
reversal.” (citing Jones v. Smith, 231 F.3d 1227, 1239 n. 8 (9th Cir.
21
2000)); Pollard v. White, 119 F.3d 1430, 1435-37 (9th Cir. 1997)
22
(appellate counsel not deficient for failing to present claims
23
unsupported by evidence or with no likelihood of success).
24
In order to establish prejudice, a petitioner
Smith v. Robbins, 528 U.S. at 285; Wildman v.
Here, Petitioner simply states that his appellate counsel was
25
ineffective because she filed a Wende brief.
26
filing a Wende brief does not, per se, amount to ineffective
27
assistance of counsel.
28
S. Ct. 746, 145 L. Ed. 2d 756 (2000); Delgado v. Lewis, 223 F.3d 976,
However, the mere act of
See Smith v. Robbins, 528 U.S. 259, 284, 120
20
1
979 (9th Cir. 2000).
2
specific issues that he contends counsel should have raised on appeal.
3
Ground Two may be construed, arguendo, as the claim that appellate
4
counsel should have raised on appeal the claims raised in the other
5
grounds in the present petition.
6
claims have merit, and failure to raise a meritless claim on appeal
7
does not satisfy either the competence prong or the prejudice prong of
8
Strickland.
9
was reasonable under AEDPA and Strickland, and federal habeas relief
10
Furthermore, Petitioner does not identify any
However, as discussed, none of those
Accordingly, the court of appeal’s denial of this claim
is not available on this or any of Petitioner’s claims.3
11
VI.
ORDER
12
For the reasons discussed above, it is hereby ORDERED THAT
13
judgment be entered denying the petition for habeas corpus relief and
14
dismissing this action with prejudice.
15
16
DATED:
August 31, 2011
17
18
CARLA M. WOEHRLE
United States Magistrate Judge
19
20
21
22
23
24
25
26
27
28
3
In a letter filed August 25, 2011, Petitioner asks this court
to “cut some of [his] time.” [Docket no. 21.] This federal court
does not have jurisdiction to alter a sentence imposed in state court,
but can only grant or deny Petitioner’s application for habeas corpus
relief, and, for reasons discussed above, denies it in this case.
21
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