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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 ROGER THOMAS CASH, 13 14 15 Petitioner, v. A. FAKHOURY (Warden), 16 Respondent. ) ) ) ) ) ) ) ) ) ) No. CV 10-7606-CW DECISION AND ORDER 17 18 19 For reasons stated below, the petition for habeas corpus relief is denied and this action is dismissed with prejudice. 20 I. PROCEDURAL HISTORY 21 The pro se petitioner, a prisoner in state custody, challenges a 22 conviction in California Superior Court, Los Angeles County, Case No. 23 NA077650. 24 Petitioner of robbery and carjacking, and found “true” allegations 25 that, in each offense, a principal was armed with a firearm. 26 Transcript (“CT”) at 89-91.] 27 Petitioner to a six-year term and a one-year enhancement for robbery, 28 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 1 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, 4 (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to independently review the record. 5 [Lodged Document (“L. Doc.”) 3.] 6 affirmed the judgment of conviction in an unpublished opinion filed 7 May 27, 2009. 8 Petitioner filed a petition for review in the California Supreme Court 9 on direct review. 10 158 Cal.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), 14 which the superior court denied on June 25, 2010, in an order stating, 15 in its entirety, as follows: “The Court has read and considered 16 petitioner’s petition for a writ of habeas corpus. 17 find the petition meritorious. 18 9.] 19 dated July 6, 2010), which the court of appeal denied on July 15, 20 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, 24 petitioner Cash’s direct appeal from the judgment in Los 25 Angeles Count Superior Court case number NA077650. 26 petition is denied. 27 [No. B225690, L. Docs. 10-11.] 28 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. 9 [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. 11 12 [Petition, II. [Docket nos. 3, 14, 17.] FACTUAL BACKGROUND The Court of Appeal gave the following summary: 13 Tony Bracy was sentenced to state prison as a result of 14 operating a “chop shop” where he bought and dismantled 15 stolen vehicles. 16 Bracy was visiting the house of a friend, Holly Henderson, 17 when a man knocked on the front door. 18 man inside and he produced a gun, which he used to strike 19 Bracy in the face. 20 floor and covered Bracy's eyes and bound his wrists and 21 ankles with duct tape. 22 the man search Bracy’s pockets, taking Bracy’s wallet, watch 23 and other items. 24 recognized the voice of the man who had left a threatening 25 telephone message that Bracy would be killed unless he 26 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. 9 he had bound Bracy with duct tape, before demanding payment On the night of March 6, 2008, Cash saw Cash Cash admitted 10 of $20,000 as compensation for his stolen motorcycle. Cash 11 also admitted he threatened to keep Bracy’s truck unless 12 Bracy surrendered the motorcycle or the money. 13 At trial, Cash testified in his own defense that he had 14 lied to police to protect his friend Damian Morales, who had 15 telephoned him on March 6, 2008 from Henderson’s house. 16 Cash arrived to find Bracy on the floor, bound in duct tape. 17 Cash admitted he had demanded that Bracy return his 18 motorcycle, but denied hitting Bracy or taking his truck or 19 personal property. 20 21 22 [L. Doc. 5 at 2, footnote omitted.] III. PETITIONER’S CLAIMS Petitioner asserts four grounds for federal habeas relief: (1) 23 ineffective assistance of trial counsel; (2) ineffective assistance of 24 appellate counsel; (3) “factual innocence”; and (4) failure to 25 disclose exculpatory material. 26 IV. STANDARD OF REVIEW 27 A federal court may review a habeas petition by a person in 28 custody under a state court judgment “only on the ground that he is in 4 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 18 On the other hand, the denials of habeas petitions by the 19 superior court and the court of appeal, although summary, were 20 adjudications on the merits; all of the present claims were presented 21 to those courts, and there is nothing in the record to suggest that 22 the two lower state courts failed to reach any of Petitioner’s claims, 23 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). 28 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 7 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 15 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 18 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 18 public record. 19 for both Petitioner and Morales, which shows that the prosecution had 20 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 24 directly in the robbery or the carjacking. 25 prosecution charged Morales with receiving stolen property, and 26 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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