Allen v. Shepard

Filing 67

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 01/26/10 recommending that petitioner's application for a writ of habeas corpus and his request for an evidentiary hearing be denied. Referred to Judge Frank C. Damrell. Objections due within 21 days.(Plummer, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Petitioner filed a second amended petition for a writ of habeas corpus on September 23, 2007. On April 14, 2008, the court signed a stipulation and order granting petitioner leave to file an indexed table of contents and table of authorities which were not included with his second amended petition. On April 17, 2008, petitioner re-filed his second amended petition, which included his table of contents and table of authorities. See Doc. No. 45 (Second Am. Pet.) at 3943. 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA TONY ALLEN, JR., Petitioner, vs. MARK SHEPARD, Respondent. / Petitioner is a state prisoner proceeding with a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 Petitioner is represented in these proceedings by attorney Efren Williams. The second amended habeas petition before the court challenges petitioner's 2001 conviction in the Sacramento County Superior Court for second degree murder (Cal. Penal Code § 187(a)) with a use of a firearm (Cal. Penal Code § 12022.53(b)-(d)). Petitioner seeks relief on the grounds that: (1) his trial counsel rendered ineffective assistance; (2) the evidence presented at his trial was insufficient to support the verdict; (3) he was denied FINDINGS AND RECOMMENDATIONS No. CIV S-06-1923 FCD DAD P

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the right to a fair trial because the trial judge was biased against him; and (4) his rights to due process and a fair trial were violated by prosecutor's failure to disclose exculpatory evidence to the defense. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied. BACKGROUND In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal2, the California Court of Appeal for the Third Appellate District provided the following factual summary: The incident that gave rise to the charges occurred on January 30, 1999. At that time, defendant was married to two women.3 He had married Deborah 10 or 12 years before. At some time, he began living in Denver, Colorado, and then married Lateshia in 1997. Although defendant lived in Denver most of the time, it appears that when he visited Sacramento, he expected to enjoy the benefits of his marriage to Deborah. During 1998, neither wife enjoyed the benefits of defendant's company because he was incarcerated on a parole violation. During that time, Deborah formed a romantic relationship with the victim, David Bell. And she decided to dissolve her marriage to defendant. Defendant was released from incarceration in December 1998, and sometime around the beginning of 1999, Deborah told him that she was proceeding with a dissolution action. Defendant replied that a dissolution was just a piece of paper and that she would still be his wife. Bell wanted Deborah to tell defendant about their relationship. However, Deborah did not want defendant to find them together. On the day before the murder, Bell accompanied Deborah while she made the payment for her dissolution. The day of the murder, Bell and Deborah spent the morning together. The day before, defendant flew from Denver to Sacramento to pick up his Ford Expedition, which had been left in Sacramento for automotive

Notice of Lodging Documents on May 12, 2008 (Doc. No. 54), Resp't's Lod. Doc. 4 (hereinafter Opinion). Defendant's wives sometimes used the last name Allen and other times used different names. For convenience and to avoid confusion, we will refer to them by their first names, Deborah and Lateshia. 2
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work. While Deborah was out with Bell, her daughter called to advise that defendant was in town and had called. Bell wanted to find defendant to tell him that he and Deborah were together, but Deborah refused. Eventually, Bell left Deborah at her house and said he was going to Oakland and would see her later. Some time after Bell left, defendant called and said he was coming to visit. Deborah told him she wanted him to take his possessions out of her house. Defendant visited Deborah that evening and stayed for several hours. Bell called and let Deborah know he was aware defendant was there. Bell wanted to talk to defendant, but Deborah refused. Bell told Deborah that she should tell defendant they were together or should stop seeing him, although his language was more colorful, and hung up. Moments later, Bell called back and defendant answered. After a short conversation, defendant hung up. He then left the house. Bell drove to Deborah's house and parked on the street. After he got out of his car, he was shot. Most of the neighbors reported hearing three shots, and there were three expended shell casings found in front of Deborah's house. Bell was hit with two shots, one to the right side of his rib cage and one to the face. The shot to the face was the more serious wound. The bullet shattered teeth, passed through the tongue, and lodged in the neck, where it damaged the internal carotid artery. Bell left a trail of blood while he went down the street seeking assistance. Bell received help from a neighbor who called 9-1-1. While they waited for emergency personnel to arrive, the operator asked what happened. Bell said he was shot by defendant, gave a brief description of the perpetrator and the location of the shooting, and said it was over a girl. He repeated these statements to the first police officer who arrived on the scene. Bell was taken to the hospital for emergency surgery. He survived for about two weeks until the attempted repairs to his carotid artery failed and he died. After the shooting, defendant returned to Denver, where he obtained a driver's license and began living under the name of Antoine Holley. Denver police eventually learned that defendant was using the name Antoine Holley and began looking for him under that name. Defendant returned to Sacramento and was later arrested. Initially, Deborah was cooperative with police investigators and made many statements implicating defendant in the murder. Deborah followed through on her dissolution action, and the marriage was dissolved on July 5, 2000. But as the proceedings progressed, Deborah and defendant reconciled. Deborah sought to avoid testifying and, obviously to that end, remarried defendant on July 19, 2001. Her testimony was replete with instances in which she testified contrary to her earlier statements, either denied or 3

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claimed not to remember her earlier statements, and asserted that the police investigators intimidated her and she was just telling them what they wanted to hear. Many of Deborah's earlier statements were admitted as prior inconsistent statements. (Evid. Code, § 1235.) (Opinion at 2-4.)4 After he was convicted, petitioner retained new counsel, who filed a motion for new trial arguing that petitioner's trial counsel had rendered ineffective assistance. The trial court took testimony and evidence and resolved those claims adversely to petitioner, denying the motion for a new trial. (Reporter's Transcript on Appeal (RT) at 2825.) Petitioner's judgment of conviction was affirmed by the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 4.) On April 14, 2004 petitioner's Petition for Review was summarily denied by the California Supreme Court. (Resp't's Lod. Doc. 6.) Petitioner filed pro se habeas petitions in state court in which he raised claims relating only to the alleged bias of the trial judge and the claimed Brady violation. (Resp't's Lod. Docs. 7, 9 & 11.) Those petitions were all denied, culminating with the California Supreme Court's summary denial of habeas relief on July 26, 2006. (Resp't's Lod. Doc. 8, 10, & 12.) On May 30, 2006, Rick von Geldern executed a declaration in which he stated that he was the private investigator retained by petitioner's trial counsel to work on petitioner's case. (See Resp't's Lod. Doc. 13, Ex. 1.) Mr. von Geldern related in his declaration, among other things, some of the trial investigation he conducted in the case, investigation he did not conduct, and directions he had received from petitioner's trial counsel. (Id.) Petitioner's current counsel in these federal habeas proceedings has represented that petitioner received the von Geldern declaration sometime in 2006, at around the same time current habeas counsel was being retained.

On February 15, 2001, petitioner's first jury trial commenced. (Second Am. Pet. at 10.) A mistrial was declared after a prosecution witness gave testimony that included prejudicial inadmissible hearsay. (Id.) Petitioner's retrial commenced in April, 2001. (Id.) 4

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On August 25, 2006, petitioner's counsel filed a petition for writ of habeas corpus with this court which included several admittedly unexhausted claims, including claims of ineffective assistance of trial counsel and insufficiency of the evidence based, at least in part, upon the then-recently received von Geldern declaration. (Doc. No. 1.) On November 1, 2006, prior to the filing of a response, petitioner's counsel filed a first amended habeas petition expounding on his unexhausted claims. (Doc. No. 10.) In the first amended petition, counsel made clear that petitioner's unexhausted ineffective assistance of counsel claim included the allegation that his trial counsel was deficient for not having adequately investigated potential defenses based on both alibi and self-defense. (Id. at 12-18.) In addition, that petition spelled out petitioner's claim that his trial counsel was ineffective in failing to utilize an independent forensic pathologist as a defense expert witness. (Id. at 18-23.) Finally, the amended petition included the unexhausted claim that there was insufficient evidence introduced at petitioner's trial with respect to the cause of death of the victim to support petitioner's murder conviction. On November 27, 2006, in light of the statement of non-opposition filed by respondent, this court granted petitioner's request for stay and abeyance to permit him the opportunity to exhaust the admittedly unexhausted claims noted above before the California Supreme Court. (Doc. No. 12.) On December 23, 2006, counsel filed an exhaustion petition on petitioner's behalf with the California Supreme Court. (Resp't's Lod. Doc. 13.) The petition filed with the California Supreme Court set forth all of the new, unexhausted claims referred to above, included as Exhibit 1 the von Geldern declaration, and requested that the California Supreme Court order an evidentiary hearing in connection with those claims. (Id.) The California Supreme Court denied the exhaustion petition, without conducting an evidentiary hearing, on July 11, 2007. (Resp't's Loc. Doc. 14.) On August 21, 2007, this court issued an order lifting the stay. (Doc. No. 26.) On September 23, 2007, counsel for petitioner filed the second amended petition which contained all of petitioner's claims, including the recently exhausted ineffective assistance of 5

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counsel and insufficiency of the evidence claims referred to above. (Doc. No. 29.) On February 20, 2008, counsel for respondent filed an answer addressing all of petitioner's claims on the merits. (Doc. No. 38.) On May 2, 2008, counsel for petitioner filed a traverse. (Doc. No. 46.) ANALYSIS I. Standards of Review Applicable to Habeas Corpus Claims A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972). This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief: 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision 6

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does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised."). The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003). II. Petitioner's Claims A. Ineffective Assistance of Counsel Petitioner claims that his trial counsel rendered ineffective assistance of counsel by: (1) failing to adequately investigate self-defense and alibi defenses; (2) failing to utilize an independent forensic pathologist as an expert witness at trial; (3) failing to conduct an adequate investigation into the victim's background; (4) failing to object to the prosecution's introduction of inadmissible character evidence; and (5) failing to assert a "peremptory challenge" against the ///// 7

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judge assigned to preside at trial. After setting forth the applicable legal principles, the court will evaluate these claims in turn below. 1. Legal Standards The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. 466 U.S. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697). Defense counsel has a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "This includes a duty to . . . investigate and introduce into evidence records that demonstrate factual innocence, or that raise sufficient doubt on that question to undermine 8

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confidence in the verdict." Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (citing Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999)). In this regard, it has been recognized that "the adversarial process will not function normally unless the defense team has done a proper investigation." Siripongs v. Calderon (Siripongs II), 133 F.3d 732, 734 (9th Cir. 1998) (citing Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)). Therefore, counsel must, "at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client." Hendricks v. Calderon, 70 F.3d 1032, 1035 (9th Cir. 1995) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (internal citation and quotations omitted). On the other hand, where an attorney has consciously decided not to conduct further investigation because of reasonable tactical evaluations, his or her performance is not constitutionally deficient. See Siripongs II, 133 F.3d at 734; Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998); Hensley v. Crist, 67 F.3d 181, 185 (9th Cir. 1995). "A decision not to investigate thus `must be directly assessed for reasonableness in all the circumstances.'" Wiggins, 539 U.S. at 533 (quoting Strickland, 466 U.S. at 691). See also Kimmelman, 477 U.S. at 385 (counsel "neither investigated, nor made a reasonable decision not to investigate"); Babbitt, 151 F.3d at 1173-74. A reviewing court must "examine the reasonableness of counsel's conduct `as of the time of counsel's conduct.'" United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990) (quoting Strickland, 466 U.S. at 690). Furthermore, "`ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government's case.'" Bragg, 242 F.3d at 1088 (quoting Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986)). In assessing an ineffective assistance of counsel claim "[t]here is a strong presumption that counsel's performance falls within the `wide range of professional assistance.'" Kimmelman, 477 U.S. at 381 (quoting Strickland, 466 U.S. at 689). There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). ///// 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (Id.) /////

2. Failure to Conduct Adequate Investigation into Possible Defenses Petitioner claims that his trial counsel rendered ineffective assistance by failing to adequately investigate the self-defense and alibi defenses. (Second Am. Pet. at 13.) He acknowledges that his counsel presented an alibi defense at trial, but argues that the defense was improperly investigated. Specifically, petitioner argues that his trial counsel failed to investigate a tire store and a sports bar that could have provided additional support for his alibi defense. He also states that counsel "told the investigator to not produce a report of an interview of a witness who could provide an alibi for Petitioner's whereabouts on the day of the shooting." (Id. at 14.) Petitioner contends that his trial counsel "misstat[ed] the facts" when he testified at the hearing on the motion for new trial that he had instructed the investigator to investigate the tire store and sports bar. (Id.) Petitioner also states that he told his trial counsel he was with another person (Antoine Walker) on the night of the shooting. (Id. at 15.) In support of these arguments, petitioner presents the declaration of Rick von Geldern, the private investigator retained by trial counsel to work on petitioner's case. (Resp't's Lod. Doc. 13, Ex. 1.) Mr. von Geldern states in his declaration, among other things, that he was "never directed to investigate at "Cheers" (the sports bar) or "Tires to Go" (the tire store) and in fact did not conduct investigation at those retail establishments. Von Geldern also explains: Barbara Brown was interviewed on January 8, 2001 and she advised me that on the date of the shooting of David Bell she answered her front door and a friend of Tony Allen's was at the door. Tony Allen walked from a bedroom to the door and left with the unidentified male. Ms. Brown stated that Tony Allen had been at the house for "quite a while" prior to the knock on the door ant [sic] Tony Allen's departure from the house. Ms. Brown stated that Mr. Allen had departed "a couple of hours" prior to the police arriving at the home. I advised [petitioner's trial counsel] of my interview with Ms. Brown and was advised not to prepare a report.

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Petitioner also claims that his trial counsel improperly failed to investigate and present a defense based upon self-defense, even though "it was apparent from the facts that a defense theory of self-defense was the only viable defense." (Second Am. Pet. at 15.) Petitioner explains that, although he and his trial counsel discussed whether to present a defense of selfdefense, his counsel decided not to present that theory of defense even though he had not conducted adequate investigation into its viability. (Id. at 14.) Petitioner states that his trial counsel did not meet with him enough and did not question him about his involvement in the shooting, nor did he ask petitioner if he knew who had shot the victim. (Id.) Petitioner asserts that a defense of self-defense "was so evident that the Court sua sponte issued self-defense jury instructions." (Id. at 17.) He argues that his trial counsel's summary rejection of a defense based upon a self-defense theory "was not the product of careful and attentive consultation with the client nor the product of a thorough investigation of the facts [but] was based upon an uninformed evaluation of Petitioner's case." (Id. at 16.) Petitioner also contends that he suffered prejudice from trial counsel's failure to present a defense of self-defense. He notes that the jury convicted him of second degree murder even though the prosecutor argued that petitioner shot the victim after lying in wait. (Id.) Petitioner argues that "a self-defense argument that he did do it, but that he had a justifiable reason for doing it, was exactly what the jury was looking for." (Id. at 17.) In affirming petitioner's conviction on appeal, the California Court of Appeal rejected petitioner's arguments in this regard. In doing so, the appellate court explained as follows: Defendant's appellate arguments are based largely on his declaration and testimony in support of the new trial motion, and on a view of the record most favorable to his claim. However, consistent with the standards of appellate review, we must view the record in a light most favorable to the decision of the trial court. Thus, we will adopt the trial court's view of the facts to the extent that view is supported by the evidence.

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In this light, many of defendant's assertions on appeal must be disregarded. For example, defendant asserts that [attorney] Sherriff visited him only eight times before his first trial and did not meet with him at all between the first and second trials.5 However, Sherriff testified (1) it is his practice to meet with clients more than most attorneys, and (2) he met with defendant more than he meets with most clients. When the prosecutor produced the jailhouse visitor logs to refresh Sherriff's recollection, it appeared that Sherriff had visited defendant 35 to 50 times, not counting investigator visits, and this was more consistent with his recollection. For another example, defendant asserts that during his first meeting with Sherriff, he told him the facts of the shooting. But Sherriff testified that defendant initially claimed he was in Colorado at the time of the shooting; that defendant later admitted he was in Sacramento but claimed he was not at the scene of the shooting; that defendant later admitted he was at Deborah's house earlier, but claimed to have left before the shooting; that relatively late in the proceedings, Sherriff was not clear on the exact time, defendant alluded to the fact he may have been at the scene but someone else was the shooter; and that defendant later suggested his friend, Antoine Walker, was the shooter.6 On motion for a new trial, defendant admitted he shot Bell and was there alone. He said that, when he encountered Bell, they began arguing and then tussling; that Bell tried to pull a pistol out of his pocket and in a struggle for the gun it went off; and that defendant got the gun away from Bell and, out of reflex, shot twice. Although defendant claimed he told this version to Sherriff, he later admitted he never told Sherriff that he shot Bell, and also admitted he told Sherriff that he did not want to present a self-defense argument and did not want to present any defense that would place him at the scene. We also reject defendant's characterizations of the record. For example, he asserts that evidence of his prior convictions came before the jury by virtue of his parole status and that, when his

The first effort to try this case ended in a mistrial when a detective from Denver inadvertently revealed that, during the search for defendant in Denver, officers were looking for a burgundy or maroon Expedition because they thought such a vehicle had been at the crime scene at the time of the shooting. Defendant owned such a vehicle and was in Sacramento on the day of the shooting, but there was no witness who placed the vehicle at the scene of the shooting. The trial judge viewed the Denver detective's statement as too prejudicial to be cured by admonition and granted a mistrial. Sherriff testified that when defendant alluded to the possibility Walker was the shooter, Sherriff constantly tried to get more specific information from defendant, but defendant would not provide the clarity that Sherriff sought. Sherriff also testified he told defendant that, if in fact Walker was the shooter, then having defendant testify to this fact would be the way to go. However, defendant never said he would be willing to testify in this regard. 12
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parole officer testified, she had such a voluminous file that it took the entire morning to review it.7 He asserts that the jury was left to speculate about the types of heinous crimes he had been convicted of in the past. In fact, Sherriff obtained an agreement from the district attorney's office that the prosecutor would not attempt to produce evidence of defendant's prior record unless the defense first presented evidence of Bell's record. (See Evid. Code, § 1103.) More remarkable in light of defendant's criminal record, Sherriff got the prosecutor to stipulate to the jury that defendant had never been convicted of a crime involving violence.8 Defendant asserts it was so obvious self-defense was the only viable defense that the court gave a full range of self-defense instructions sua sponte. In fact, during trial, Sherriff developed evidence to suggest the shooting may have involved self-defense, so-called imperfect self-defense, or a heat of passion, and he asked the court to instruct on those issues as well as all lesser included offenses. The prosecutor agreed there was a sufficient evidentiary basis to support those instructions. A trial court's duties to instruct sua sponte arise when neither party requests instructions on a particular issue. Since the parties agreed the that instructions were appropriate, the court's duties to instruct sua sponte were not implicated here. Defendant asserts the court found Sherriff's representation to have been inadequate, but concluded there was insufficient prejudice to warrant a new trial. In fact, the court agreed with defendant on one point only. It agreed that when Sherriff obtained Bell's rap sheet indicating a significant criminal history, he should have gone further and obtained investigation reports concerning Bell's crimes. But the court found this failure to be nonprejudical. In all other respects, the court rejected defendant's claims of ineffective assistance. Defendant asserts "it was apparent from the facts that a defense theory of self-defense was the only viable defense," and also claims "[a]n alibi/some-other-person-did-it defense was completely unreasonable." To the contrary, this was a particularly strong case for reliance on the presumption of innocence and a failure of satisfactory proof.

Defendant testified that when the parole officer was called as a witness, she brought with her a file about six inches thick. When the file was produced, it was in fact less than an inch thick. Defendant's parole status was such a significant part of his relationship with Deborah and her relationship with Bell that it would have been difficult to avoid placing it before the jury. On the other hand, it was beneficial to the defense in a number of ways. Thus, rather than attempt to cover it up, the defense elected to bring it out with a stipulation that defendant had not been convicted of a violent crime. 13
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The prosecution could not produce any physical evidence, such as fingerprints, blood or tissue analysis, ballistics tests, or the possession of the murder weapon, to place defendant at the scene when the shooting occurred. And the prosecution could not produce any eyewitnesses to place defendant or his vehicle at the scene at the time of the shooting. One neighbor told police that after hearing shots, he opened his garage door and saw a small white car, probably a Toyota, speeding away. But defendant's car was a maroon or burgundy Expedition, and there was no evidence to connect him with a small white car. Although, during the investigation, Deborah told officers that defendant was at her house well into the evening, she testified at trial that he left as it was getting dark. Deborah's teenage daughter also testified that defendant left when it was just getting dark. This was many hours before the shooting. Bell, on the 9-1-1 tape and to the first officer on the scene, said defendant shot him. However, Deborah testified that Bell had never met or seen defendant in person, and the prosecution could not establish otherwise.9 Although Deborah told police officers that Bell had seen photographs of defendant at her house, she testified at trial that he had not. Deborah testified that while Bell was in the hospital, she showed him a photograph of defendant and asked if he was the person who shot Bell, and that Bell shook his head apparently in the negative and turned to his side. Immediately after the shooting, Bell gave a brief description of his assailant that did not totally match defendant. While the description was not sufficiently different from defendant to establish that defendant was not the shooter, it was sufficiently different to leave room for doubt. Sherriff established, through the testimony of neighbors, that gunshots are by no means uncommon in Deborah's neighborhood. Some former neighbors testified they moved out of the neighborhood because of the frequency of shooting incidents. Through the testimony of Deborah, her daughter, and Lateshia, Sherriff was able to portray defendant as a peaceful, hard-working, family man. He would neither get jealous nor angry. Deborah testified that she knew defendant had a relationship with Lateshia and did not care, and that defendant did not care if Deborah had relationships with other men. As we have mentioned, although it was apparent from his parole status that defendant had a prior

Deborah testified that on the morning before the shooting, while she was riding with Bell in his car, she thought she saw defendant pass by through an intersection. The prosecutor sought to establish that Bell had an opportunity to see defendant at this time, but was unable to establish more than mere possibility. 14

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conviction, Sherriff obtained a stipulation that defendant had never been convicted of a crime involving violence. And Sherriff was able to take advantage of defects in the police investigation. It appeared that after the shooting, the police focused on defendant and did not consider other possible suspects. Some things that could have been done were left undone. For example, the police did not test the expended bullet shells for fingerprints. Although police walked the course of the blood trail, they did not thoroughly search the area for a weapon. They did not search Bell's car. During the two weeks Bell was in the hospital after the shooting, the police did not interview him or show him a photographic lineup. Deborah testified that on one of her visits to the hospital, Bell told her the police had been to talk with him and had showed him a photographic lineup. She asked if he saw defendant in the lineup, and he shook his head. Prior to trial, the defense sought discovery of any photographic lineup and was told there had not been one. During trial, one of the detectives discovered a photographic lineup in his file and turned it over to the prosecutor, who in turn gave it to the defense. The detective testified he prepared the lineup with the intent of showing it to Bell when he was sufficiently recovered, but when Bell died, the detective put it in the file and forgot about it. Together, the belated production of the lineup, earlier representations that there was no lineup, and Deborah's testimony, allowed the defense to imply that (1) Bell had been shown a lineup, and (2) when Bell failed to identify defendant, police officers suppressed the fact because it did not correspond with their view of the case. In summary, the evidence at trial presented the reasonably arguable possibility that (1) Bell arrived at Deborah's house after defendant had departed; (2) Bell got into an altercation with some other person, perhaps in an attempted robbery or simply because he was not from that neighborhood; and (3) Bell would have no basis for recognizing whether or not his assailant was defendant, but assumed it was because he viewed defendant as a rival for Deborah's attention. On this record, we are satisfied that, while the prosecution evidence was legally sufficient, it was a close question whether it would be sufficient to persuade a jury beyond a reasonable doubt.10 Thus, the defense position that defendant was not there and

In ordering a mistrial during the first trial, the trial judge specifically noted the inherent weaknesses in the prosecution case. It was because of these inherent weaknesses that the court ordered a mistrial for inadvertent error which would, in most cases, be regarded as readily curable. 15

10

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someone else committed the crime was not an unreasonable approach to defending the case. These examples are sufficient to demonstrate that the manner in which we must view the record does not correspond with defendant's view of the matter as reflected in his brief. We will consider defendant's specific assertions in the appropriate appellate manner. Defendant's primary assertion is that counsel was ineffective in failing to pursue a theory of self-defense. In making this argument, defendant relies upon the decision in Phillips v. Woodford (9th Cir.2001) 267 F.3d 966, which involved a petition for writ of habeas corpus after the petitioner was convicted of capital murder and sentenced to death. At the petitioner's trial, there had been overwhelming credible evidence that he was the perpetrator; yet, despite significant evidence that the incident involved a mutual shootout rather than an attempted robbery as charged, the sole defense presented was the petitioner's wholly unsupported and implausible claim that he was out of town at the time of the crime. The court concluded the petitioner made a sufficient prima facie showing to warrant an evidentiary hearing on his claim that counsel was ineffective in failing to investigate, and perhaps confront him with, the difficulties in his implausible story. (Id. at p. 980; see also Johnson v. Baldwin (9th Cir .1997) 114 F.3d 835, 838-840.) In making his appellate contention, defendant ignores two other Ninth Circuit decisions, Bean v. Calderon (9th Cir.1998) 163 F.3d 1073, at page 1082, and Turk v. White (9th Cir.1997) 116 F.3d 1264, at page 1266. Each of those decisions held that once counsel reasonably chooses the defense theory of the case, counsel is under no further duty to investigate and pursue an alternative and inconsistent defense theory. In Phillips v. Woodford, supra, 267 F.3d at page 979, the court noted and agreed with those decisions. However, the court found they were not controlling because, in the case before it, counsel had chosen to present the petitioner's unsupported and implausible claim that he was out of town in the face of overwhelming credible evidence he was the perpetrator and without investigating and confronting the petitioner with the defects in his implausible story. (Ibid.)11

Obviously, counsel may not make up a defense and then tell the defendant what he must say to support it. While there may be a fine line between vigorous advocacy and subornation of perjury, it is a line that counsel may not cross. (In re Jones (1971) 5 Cal. 3d 390, 400; see also People v. Guzman (1988) 45 Cal. 3d 915, 943-944, disapproved on another ground in Price v. Superior Court (2001) 25 Cal. 4th 1046, 1069, fn. 13.) We will give the court the benefit of the doubt and not read its opinion in Phillips v. Woodford, supra, 267 F.3d 966, to suggest otherwise. 16

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We already have rejected defendant's claim that self-defense was the only viable defense, and we have concluded that the primary defense theory, i.e., defendant was not there and did not commit the crime, was not unreasonable. Under the circumstances, Sherriff's decision to take the position that defendant was not there, and to rely on the presumption of innocence and the inherent weaknesses in the evidence, was a reasonable tactical decision. Under the decisions in Bean v. Calderon, supra, 163 F.3d at page 1082, and Turk v. White, supra, 116 F.3d at page 1266, and with the concurrence of the decision in Phillips v. Woodford, supra, 267 F.3d at page 979, Sherriff was not required to pursue an alternative and inconsistent theory of self-defense. In any event, Sherriff did present evidence and argument in support of a self-defense theory. Throughout the trial, Sherriff attempted to portray defendant as a calm, peaceful, family man who was not subject to jealousy and did not care whether Deborah would have a relationship with Bell. On the other hand, he portrayed Bell as a mean, short-tempered, abusive person who was subject to jealousy and anger. He demonstrated that Bell abused alcohol and cocaine and in fact had those substances in his system at the time of the shooting. He presented evidence that a person who abuses cocaine and alcohol can exhibit the symptoms of a paranoid schizophrenic. He presented evidence that it was Bell who sought a confrontation with defendant rather than vice-versa. He requested instructions and made self-defense arguments while still adhering to the primary defense theory that defendant was not at the scene of the crime. The gist of defendant's appellate argument is that Sherriff should have abandoned the primary defense theory and done more to pursue a self-defense theory. Under the circumstances, there were only two things Sherriff could have done to pursue a self-defense theory more than he did. Sherriff could have convinced defendant to testify to claim self-defense. However, there were several difficulties with this approach. First, it would have meant giving up the primary defense position that, we have concluded, had a reasonable chance of success. Second, defendant never admitted to Sherriff that he was the person who shot Bell and did not present a self-defense version of the event. Third, defendant continued to maintain he did not want to present a defense that would put him at the scene. Fourth, defendant's testimony would have opened the door to impeachment with evidence of his prior felony convictions. Fifth, from the record it appears defendant would not have been a good witness. His testimony on the new trial motion was often nonresponsive, evasive, and internally inconsistent, and he was caught in at least a couple of prevarications. Moreover, it is apparent from the record that defendant had a particular dislike for the prosecutor and that extensive cross-examination by the 17

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prosecutor could well have provoked a response which would taint defendant in the eyes of the jury. Alternatively, Sherriff could have presented more evidence of Bell's character. (Evid. Code, § 1103, subd. (a).)12 Bell had a significant criminal history, including arrests for crimes such as robbery, spousal abuse, and drug offenses, and he used or possessed firearms in some of his crimes. However, if Sherriff had attacked Bell's character pursuant to Evidence Code section 1103, subdivision (a), this would have triggered subdivision (b) of that section, which would have permitted the prosecutor to present evidence of defendant's character for violence or trait of character for violence, in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct. Defendant's criminal history is one that a defense attorney reasonably could not want to be placed before a jury. Defendant's record includes a juvenile adjudication for first degree murder with the personal use of a firearm. (The prosecutor was unaware of the prior murder adjudication until after the trial ended; but Sherriff was aware of it and did not want to risk its discovery and production at trial.) Also, in addition to property and drug offenses, and at least four separate convictions for unlawful possession of firearms, defendant's criminal history includes arrests for the violent crimes of assault with a deadly weapon and battery with serious injury.13 Indeed, Sherriff testified he believed

Self-defense takes into consideration all of the surrounding circumstances, including what defendant knew about the victim's character at the time he acted. (People v. Humphrey (1996) 13 Cal. 4th 1073, 1082-1083.) Defendant testified that all he knew about Bell was he was "some guy that did end up messing with my wife." Accordingly, Bell's prior history was not relevant with respect to defendant's subjective belief in the need for self-defense or the objective reasonableness of that belief. However, Bell's past acts would have been admissible to establish Bell's character for aggression or violence in order to prove that he did, or may have, acted consistent with that character at the time of the shooting. (Evid. Code, § 1103, subd. (a).) At oral argument in this court, defendant's appellate counsel disputed whether the record shows that defendant has a juvenile adjudication for committing first degree murder and a history of other violent behavior. We direct counsel's attention to page 646 of the clerk's transcript, a letter from the California Department of the Youth Authority (CYA) written by Dominic Hatfield, Supervisor, Master Files, stating: "[CYA's] records indicate that [defendant] was committed to the Youth Authority by the Juvenile Court of Los Angeles County on October 12, 1978, for 187 PC Murder (1st Degree) with 12022.5 PC, 242 PC Battery (M) and was discharged from the Youth Authority on April 27, 1984 . . . ." We also direct counsel's attention to pages 618, 619, and 620 of the clerk's transcript, portions of the probation report that state defendant was arrested for assault with a deadly weapon, stabbing the victim with a knife, in 1987, and for battery with serious injury in 1991. 18
13

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that, if he got into a volley with the prosecutor over respective records, defendant was going to suffer.14 When we consider the trial record together with the evidence presented on motion for a new trial, we are satisfied the trial court was correct in rejecting defendant's claim of ineffective assistance of counsel based upon Sherriff's failure to pursue, and rely exclusively upon, a self-defense theory. The primary theory Sherriff presented was reasonable and had a reasonable chance of success. Reliance on that theory, with self-defense, imperfect self-defense, and heat-of-passion as secondary defenses, avoided pitfalls that would have attended sole reliance upon self-defense. As a tactical choice, it was within the range of reasonable competence. (Opinion at 8-21.) At the hearing on the motion for new trial, petitioner's trial counsel testified that von Geldern was assigned the task of investigating petitioner's alibi, including petitioner's assertion that he had been at a sports bar on the night of the shooting. (RT at 293-94.) Counsel stated that neither the sports bar nor the tire store could be located and that many aspects of petitioner's alibi could not be confirmed. (Id. at 2595, 2598, 2600-01, 2602.) On the other hand, von Geldern declares that he was not directed to investigate either the sports bar or the tire store. Petitioner argues that this discrepancy proves his point that his trial counsel failed to conduct sufficient investigation. However, assuming arguendo that trial counsel's performance was deficient in failing to direct von Geldern to interview employees of the sports bar or the tire store, petitioner has failed to demonstrate that counsel's actions resulted in prejudice. Petitioner has not provided any evidence that such investigation would have provided support for an alibi

Sherriff reached a stipulation with the prosecutor that the prosecutor would not seek to present evidence of defendant's prior criminal history unless the defendant first presented evidence of Bell's history. Actually, the extent to which Sherriff did attempt to establish Bell's violent character would have been sufficient to support a prosecution effort to establish defendant's violent character. (People v. Walton (1996) 42 Cal. App. 4th 1004, 1014-1015, disapproved on another ground in People v. Cromer (2001) 24 Cal. 4th 889, 901, fn. 3.) Nevertheless, the prosecutor adhered to the stipulation and did not attempt to present evidence of defendant's criminal history. Moreover, he stipulated for the jury that defendant had never been convicted of a violent offense. 19

14

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defense. Indeed, petitioner admitted at the hearing on the motion for a new trial that he was the person who shot Bell. Accordingly, investigation into petitioner's purported alibi would not have been fruitful. See Villafuerte v. Stewart, 111 F.3d 616, 632 (9th Cir. 1997) (petitioner's ineffective assistance claim rejected where he presented no evidence concerning what counsel would have found had he investigated further, or what lengthier preparation would have accomplished); Ceja v. Stewart, 97 F.3d 1246, 1255 (9th Cir. 1996) (no ineffective assistance of counsel where petitioner failed to explain "what compelling evidence additional interviews would have unearthed or to explain how an investigation of aggravation evidence would have negated the evidence of the multiple gunshot wounds"); United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987) (appellant failed to meet prejudice prong of ineffective assistance claim because he offered no indication of what potential witnesses would have testified to or how their testimony might have changed the outcome of the hearing). With respect to the post-trial information provided by the defense investigator with respect to his interview of Barbara Brown, petitioner has not demonstrated that he was at Brown's house at the time of the shooting or that she would have so testified. Bragg, 242 F.3d at 1088 (no ineffective assistance where petitioner did "nothing more than speculate that, if interviewed," a witness might have given helpful information); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (no ineffective assistance of counsel where there was no evidence in the record that an alibi witness actually existed and petitioner failed to present an affidavit establishing that the alleged witness would have provided helpful testimony for the defense); United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988) (no ineffective assistance because of counsel's failure to call a witness where, among other things, there was no evidence in the record that the witness would testify). Further, petitioner's trial counsel testified at the hearing on the motion for a new trial that it was not his practice to have investigator von Geldern "make written statements about witnesses we weren't going to anticipate using." (RT at 2598.) That may well have been the case with Ms. Brown. The Strickland standard "places the burden 20

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on the defendant, not the State, to show a `reasonable probability' that the result would have been different." Wong v. Belmontes, ___ U.S. ___, 130 S. Ct. 383, 390-391 (2009) (quoting Strickland, 466 U.S. at 694). Petitioner has failed to meet that burden with respect to this ineffective assistance of counsel claim. The thorough decision of the California Court of Appeal for the Third Appellate District rejecting petitioner's claim that his trial counsel rendered ineffective assistance by failing to thoroughly investigate available defenses is not contrary to or an unreasonable application of federal law, nor is it based upon an unreasonable determination of the facts. As explained by the state appellate court, it was reasonable for petitioner's trial counsel to present an alibi defense in light of the weaknesses in the prosecution's case. Further, although counsel suggested the possibility of presenting a defense based on a self-defense theory, petitioner refused to testify in support of such a defense. (RT at 2612-16.) Even then, despite petitioner's lack of cooperation, jury instructions on self-defense were given at the request of petitioner's trial counsel. Under the circumstances of this case, and for the reasons expressed by the state appellate court, petitioner's trial counsel did not render ineffective assistance in failing to investigate and present an adequate defense. Accordingly, petitioner is not entitled to habeas relief with respect to this claim. 3. Failure to Utilize an Independent Forensic Pathologist as an Expert Witness Petitioner's next claim is that his trial counsel rendered ineffective assistance by failing to retain an independent forensic pathologist to testify as to the cause of Mr. Bell's death. Forensic pathologist Gregory Reiber testified at petitioner's trial about the results of the autopsy performed on the victim as reflected in the coroner's report. (RT at 1476-1551.) The coroner's report was prepared by a colleague of Dr. Reiber's. (Id. at 1478.) Dr. Reiber was a member of a medical group that provided coroner's services to the Sacramento County Coroner's Office. (Id. at 1476, 1479.) Petitioner states that Reiber was also an Assistant Professor of pathology for UC Davis Medical Center, where the victim died. (Second Am. Pet. at 18.) Dr. Reiber testified that the autopsy report reflected the cause of the victim's death was 21

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"critically low blood pressure from blood loss due to a carotid artery blowout due to a penetrating gunshot wound to the head." (RT at 1503.) Dr. Reiber agreed with the coroner's assessment that "the gunshot wound was responsible for the artery blowout that resulted in Mr. Bell's death." (Id. at 1505.) Reiber reached this conclusion despite the fact that Bell had significant amounts of cocaine and alcohol in his system at the time he was admitted to the hospital, and that Bell exhibited such combative behavior at the hospital that he had to be restrained. (Id. at 1505-06, 1512-3.) Petitioner argues that, because of Dr. Reiber's association with the hospital where the victim died and the coroner's office which provided his autopsy report, "he could not be relied upon to give an unbiased expert testimony with regard to the cause of death of David Bell." (Id.) Petitioner also suggests that Bell's combative behavior at the hospital may have influenced Dr. Reiber's testimony. (Second Am. Pet. at 18-19.) Petitioner also contends that, because physicians at UC Davis Hospital were unable to save Bell's life, Dr. Reiber may have been motivated to "protect the interests" of the hospital during his testimony. (Id. at 19.) Petitioner alleges that the coroner who performed Bell's autopsy and wrote the autopsy report was charged with possession of controlled substances several months after Bell's death and was placed on administrative leave. (Id.; see also RT at 2645.) According to petitioner, it was discovered that the coroner "had been abusing prescription drugs for years." (Second Am. Pet. at 19.) Petitioner states that Bell's initial autopsy report was later amended to include "cocaine and alcohol ingestion" as additional causes of his death, and argues that the evidence introduced at his trial "gave every indication" that the autopsy of Bell was "done in an incomplete, non-thorough, uncoordinated and slip-shod manner." (Id. at 19, 20.) Petitioner speculates as to whether the coroner was under the influence of drugs at the time he conducted the autopsy and produced the autopsy report and whether the coroner's ultimate findings regarding the cause of Bell's death were accurate. (Id. at 19-20.) Petitioner argues that all of the above factors and questions provided "numerous reasons not to provide a thorough and impartial opinion as to the autopsy and autopsy reports of David Bell." (Id. at 20.) Petitioner also suggests 22

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that, contrary to Dr. Reiber's testimony, Bell's combative actions in the hospital and the cocaine and alcohol in his system at the time of the shooting may have been "supervening causes" of his death and that testimony to this effect may have led to a more favorable verdict at petitioner's trial. (Id.) In short, petitioner argues that his trial counsel rendered ineffective assistance because he did not provide the jury with testimony from an impartial, independent pathologist who was qualified to give a medical opinion with respect to the cause of Bell's death. (Id. at 21.)15 Petitioner raised this claim for the first time in the petition for a writ of habeas corpus filed on his behalf in the California Supreme Court. (Resp't's Lod. Doc. 13.) That petition was denied with citations to In re Robbins, 18 Cal. 4th 770, 780 (1998) and In re Clark, 5 Cal. 4th 750 (1993). (Resp't's Lod. Doc. 14.) Respondent argues that petitioner's claim in this regard should be denied on the merits. Assuming arguendo that petitioner's trial counsel was deficient in failing to call an independent expert to testify to the cause of Bell's death, petitioner has failed to demonstrate any prejudice flowing from such an error, or that the results of the proceeding would have been different if an independent pathologist had been retained by petitioner's counsel. Petitioner's conclusory allegations that Dr. Reiber did not give objective testimony because of his association with both U.C. Davis and the coroner's office are clearly insufficient to establish prejudice. See Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) ("`[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief'") (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)). /////

Petitioner asserts that he was entitled to the services of an expert witness under California law free of charge. (Traverse at 5-6.) At the hearing on the motion for new trial, petitioner's trial counsel testified that petitioner was unable to pay for an expert witness but that this had "no effect" on trial counsel's decision not to hire an independent pathologist. (RT at 2646-47.) 23

15

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Petitioner merely suggests that an independent pathologist might have: 1) help[ed] the trial attorney cross examine the opinions of Dr. Reiber; 2) testif[ied] as to his opinion of the cause of the victim's death; 3) proffer[ed] an opinion concerning the adequacy of the treatment and care given to the victim by U.C. Davis; 4) provide[d] an opinion as to whether the autopsy that was conducted was adequate and 5) opine[d] as to why the autopsy report was changed. (Second Am. Pet. at 9.) However, there is no evidence indicating that the testimony of an independent pathologist would have been any different than the trial testimony provided by Dr. Reiber. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (speculating as to what a proposed witness would say is not enough to establish prejudice). Specifically, there is no evidence before this court that another pathologist would have reached a different conclusion as to the cause of Mr. Bell's death or that petitioner would have been found guilty of a lesser crime had a pathologist testified that Bell's ingestion of cocaine and alcohol as well as his combative behavior were contributing factors in his death. The court also notes that at the hearing on the motion for a new trial, petitioner's trial counsel testified that he believed Dr. Reiber's testimony was "powerfully effective and useful for the defense." (RT at 2647.) The decision of the California Supreme Court rejecting this claim of ineffective assistance of counsel is not contrary or an unreasonable application of Strickland. Accordingly, petitioner is not entitled to habeas relief with respect to this claim. 4. Failure to Conduct Adequate Investigation into the Victim's Background Petitioner claims that his trial counsel rendered ineffective assistance by failing to adequately investigate the victim's background. (Second Am. Pet. at 22-24.) In this regard, he argues that if counsel had conducted such an investigation he would have discovered Mr. Bell's criminal history and Bell's record of "mental problems, emotional instability, history of drug and alcohol abuse, and drug and alcohol abuse on the day of the shooting." (Id. at 23.) At the hearing on the motion for a new trial, petitioner's trial counsel testified that, although he was aware Bell had a significant criminal background, he decided not to pursue 24

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this avenue of investigation because he was aware that if he presented evidence of Bell's criminal history it would allow the prosecutor to introduce evidence of petitioner's own significant criminal background, including a juvenile homicide adjudication that was then unknown to the prosecutor. (RT at 2636-37, 2641-44, 2711-14.) Petitioner's trial counsel wished to avoid the introduction of evidence relating to petitioner's past violent conduct and, to that end, entered into a stipulation pursuant to which the prosecutor agreed not to present evidence of defendant's prior criminal history unless the defendant first presented evidence of Bell's history. (Id. at 2643-44, 2713). The prosecutor also stipulated to inform the jury that defendant had never been convicted of a violent offense. In ruling on petitioner's motion for new trial, the trial court concluded that petitioner's counsel should have obtained written documentation regarding Bell's prior criminal history, but also found that petitioner had not suffered prejudice as a result of his counsel's failure to do so because "it could . . . arguably have backfired and resulted in conviction for first degree murder." (Id. at 2858-59.) Similarly, the California Court of Appeal concluded that petitioner's trial counsel acted reasonably in deciding not to investigate Bell's character and criminal history because the introduction of this evidence would have allowed the prosecutor to introduce damaging evidence of petitioner's own significant criminal history. The state appellate court explained: Alternatively, [petitioner's trial counsel] could have presented more evidence of Bell's character. (Evid.Code, § 1103, subd. (a).)16 Bell had a significant criminal history, including arrests for crimes such as robbery, spousal abuse, and drug offenses, and he used or possessed firearms in some of his crimes. However, if

Self-defense takes into consideration all of the surrounding circumstances, including what defendant knew about the victim's character at the time he acted. (People v. Humphrey (1996) 13 Cal. 4th 1073, 1082-1083.) Defendant testified that all he knew about Bell was he was "some guy that did end up messing with my wife." Accordingly, Bell's prior history was not relevant with respect to defendant's subjective belief in the need for self-defense or the objective reasonableness of that belief. However, Bell's past acts would have been admissible to establish Bell's character for aggression or violence in order to prove that he did, or may have, acted consistent with that character at the time of the shooting. (Evid. Code, § 1103, subd. (a).) 25

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Sherriff had attacked Bell's character pursuant to Evidence Code section 1103, subdivision (a), this would have triggered subdivision (b) of that section, which would have permitted the prosecutor to present evidence of defendant's character for violence or trait of character for violence, in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct. Defendant's criminal history is one that a defense attorney reasonably could not want to be placed before a jury. Defendant's record includes a juvenile adjudication for first degree murder with the personal use of a firearm. (The prosecutor was unaware of the prior murder adjudication until after the trial ended; but Sherriff was aware of it and did not want to risk its discovery and production at trial.) Also, in addition to property and drug offenses, and at least four separate convictions for unlawful possession of firearms, defendant's criminal history includes arrests for the violent crimes of assault with a deadly weapon and battery with serious injury. [fn. omitted] Indeed, Sherriff testified he believed that, if he got into a volley with the prosecutor over respective records, defendant was going to suffer. (Opinion at 19-20.)17 Under the circumstances presented here, the decision of petitioner's trial counsel not to investigate and introduce evidence of Bell's criminal history was not outside the wide range of reasonable professional assistance. See Wong, 130 S.