McClish v. Evans

Filing 18

ORDER signed by Circuit Judge Milan D. Smith, Jr on 8/21/2009 ORDERING 1 Petition for Writ of Habeas Corpus filed by Kenneth W. McClish is denied. The Clerk is directed to enter judgment and close the case. CASE CLOSED. (Matson, R)

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 27 28 P e titio ne r Kenneth W. McClish, a state prisoner proceeding pro se, has filed a n application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). Pending b e fo re this court are McClish's petition for a writ of habeas corpus, Respondent M ik e Evans's answer, Lodged Documents 1-27, the Findings and R e c o mme nd a tio ns of the magistrate judge, and McClish's objection to those find ings . For the reasons discussed below, McClish's petition is DENIED. Facts and Prior Proceedings O n May 17, 2005, McClish was convicted by a Sacramento County Superior C o urt jury of second degree murder (Cal. Pen. Code § 187(a)), attempted murder (C a l. Pen. Code §§ 664, 187(a)), and being a felon in possession of a firearm (Cal M ik e Evans, Warden, R e s p o nd e nt. / vs . O R D ER K e nne th W. McClish, P e titio ne r, N o . CIV S-08-1963 MDS IN THE UNITED STATES DISTRICT COURT FO R THE EASTERN DISTRICT OF CALIFORNIA

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P e n. Code § 12022(a)(1)). Lodged Doc. 1. He was sentenced to a total of 117 ye a rs to life in prison under California's "three strikes" law, with individual s e nte nc e s of 45 years to life for murder, 30 years to life for attempted murder, and 2 5 years to life for being a felon in possession of a firearm, along with multiple s e nte nc ing enhancements for his prior convictions. Lodged Doc. 1. McClish is c urre ntly serving this sentence in Salinos Valley State Prison. A Fo llo w ing his conviction, McClish filed a direct appeal with the California C o urt of Appeals, Third Appellate District. In its decision affirming the judgment, d a te d October 19, 2006, the Court of Appeal summarized the relevant facts as fo llo w s :1 In August 2003, Demarkas [King], his wife Tamica, and their small daughter live d on Sky Parkway in Sacramento County. Ralph [King] and McClish live d in separate apartments at 5218 Martin Luther King Boulevard in the C ity of Sacramento, a bit north of Fruitridge Road; McClish lived with his girlfrie nd Lisa Knestrict and her aunt Betty Patterson, among others. Ralph's a nd McClish's building was about 600 feet from a Taco Bell at the corner of M a rtin Luther King Boulevard and Fruitridge Road; an open field separated the two buildings. On August 17, 2003, sheriff's deputies came to Demarkas's apartment in re s p o ns e to a call. Tamica said that Demarkas, who was not there, had been in a fight. Demarkas did not contact the authorities. He later told the police, ho w e ve r, that after he heard banging on his front door and opened it, Michael W a s hingto n and others burst in and beat him up, then left. According to Thomas Ogle, Jr., the 17-year-old stepbrother of Tamica, while vis iting the King family in the summer of 2003 he saw Ralph buy a black s e mia uto ma tic handgun, then later show it to Demarkas. In a police interview O gle said the purchase took place the weekend before the charged crimes, but he testified that it might have been around July 4 because he remembered the K ings had had a barbecue. According to Betty Patterson, on August 19, 2003, she overheard Demarkas a nd Ralph talking outside Ralph's building. Demarkas said the police had le a rne d of the assault on him but did nothing. Ralph said he did not want his fa mily treated like that. On the morning of August 20, 2003, Patterson overheard Demarkas and Since McClish has not raised a challenge to their accuracy, the factual find ings of the Court of Appeal are presumed correct. See 28 U.S.C. § 2254(e)(1).
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R a lp h talk about getting a gun. Ralph told Demarkas: "We have one gat, and w e need another one." Demarkas said he knew where to get another one. Ralph said he would not let his family be disrespected, and Demarkas's a tta c k e rs "didn't know who they were dealing with." Before August 20, 2003, Patterson heard McClish tell boys in the building tha t he had a gun; the boys later told Patterson they had seen it. McClish's girlfrie nd Lisa Knestrict testified that in July 2003 she discovered a black gun und e r the mattress on McClish's side of the bed and told him to get rid of it; he said he would.FN3 FN 3 . McClish was arrested on August 26, 2003. He told Knestrict b e fo re his arrest that his brother Rick had removed the gun from the a p a rtme nt, but Knestrict was not sure whether McClish said so before o r after the date of the crimes. Patterson told the police that she saw McClish's brothers remove a gun fro m under his mattress on August 25. At trial, however, she testified s he heard this had happened but did not see it. A t 10:21 p.m. on August 20, 2003, Demarkas called the sheriff's department fro m work to report that someone was kicking his apartment door while his w ife was at home. The department responded to the call at 10:56 p.m., but fo und no evidence of a crime and left without filing a report. A c c o rd ing to Patterson, McClish told her on the night of August 20 that D e ma rk a s had called and would come over. Demarkas arrived around 11:00 p .m. and asked Patterson if McClish was home. As Patterson sat on a bench o uts id e , she overheard Demarkas tell Ralph that "the guys were at Taco Bell" a nd "[w]e need to get over there now." Demarkas went upstairs and came b a c kFN4 down with McClish, who carried a gray sweatshirt rolled up under his a rm. Patterson and Jermal Lee, a teenage resident of the building, saw D e ma rk a s or Ralph walking with McClish at the rear of the building. FN4. Knestrict fell asleep that night at 9:30 p.m. She heard someone c o me to the door asking for McClish, who left the bedroom. McClish to ld her later it was Demarkas who had come to the door. A t around 11:30 p.m., Michael Washington and Allen Qualls were sitting in a p rime r-gra y 1972 Chevrolet Nova in the Taco Bell drive-through at Martin Luthe r King Boulevard and Fruitridge Road. Qualls was the driver, W a s hingto n the passenger. Taco Bell employees and customers saw a man walk up to the Nova's p a s s e nge r side, appear to speak, then pull out a black long-barreled gun and fire into the car. A second man was standing in the drive-through lane two c a rs behind the Nova. After pausing and looking back at him, the shooter fire d more shots into the Nova. The two men then hopped over a concrete w a ll behind the restaurant. E ye w itne s s e s subsequently identified the shooter in photo line-ups and in c o urt as Demarkas. They could not identify the second man, but described him as a heavy-set Black man around 5 feet5 8 or 9 inches tall; two witnesses s a id he was wearing light or khaki shorts.FN
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FN 5 . The police later found khaki shorts and a gray sweatshirt in M c lis h' s bedroom. At the time of the crimes, McClish, who stood 5 fe e t 9 inches tall, weighed 225 pounds. T he Nova pulled into a nearby gas station, where Qualls collapsed. Taken to U nive rs ity of California at Davis Medical Center, he was declared dead from a gunshot wound to the abdomen. Washington was operated on for lung d a ma ge from a gunshot that struck him in the back and shoulder. Investigating officers found six spent shells near the drive-through window a nd a projectile and bullet fragments inside the Nova. Another projectile was re mo ve d from Washington during surgery. A ballistics expert opined that the s he lls and projectiles were fired from the same nine-millimeter gun, at least s o me while the Nova was moving forward. No weapons or ammunition were fo und in the Nova.FN6 FN 6 . The police found baggies of marijuana in a paper bag in the car a nd $700 in cash on Washington. The prosecutor suggested W a s hingto n had been planning to sell marijuana at the Taco Bell. Betty Patterson and Jermal Lee, in separate positions outside their building, he a rd four or five shots from the direction of the Taco Bell. Patterson then s a w three people climbing over a fence, heading toward the building from the ne a rb y field. She recognized Ralph and Demarkas; the third, whose face she c o uld not see, was wearing a gray sweatshirt like the one McClish had on w he n Patterson saw him in his bedroom soon after. According to Patterson, Ralph took a handgun out of his waistband and unlo a d e d some shells, while saying, "We do this gangsta style." Ralph then s a id he was going to have a drink to calm his nerves and headed to his a p a rtme nt. In subsequent days he repeated that he would not let anyone d is re s p e c t his family. Lee testified, as he had told an investigator for the district attorney's office, tha t after hearing shots he saw Ralph and McClish walking from the field to w a rd the building, then saw Ralph unload the gun as he said, "they should no t mess with my family." However, Lee also testified, as he had told M c C lis h' s former attorney, that McClish was with him outside the building w he n the shots were fired, and it was Ralph and Demarkas whom Lee saw c o ming toward the building. After the shooting, Demarkas drove to Oakland, then to San Diego. He c ro s s e d the border into Mexico, but was arrested on a murder warrant as he trie d to reenter the United States. In custody, Demarkas was interviewed on videotape on August 28, 2003, by S he riff' s Detective Charles Husted. Portions of the interview were played for the jury. D uring the interview, after claiming ignorance of the crimes, Demarkas a d mitte d he shot Washington (whom he called "Nova Mike") because he was " fe d up" with Washington for threatening him and for assaulting him in his ho me . He had aimed only at Washington and did not know who else was in the Nova. He had gotten the nine-millimeter handgun from his father's home a fte r spotting Washington driving past.
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A fte r Demarkas testified, the prosecution played other portions of his inte rvie w , which implicated the codefendants. Demarkas told Detective H us te d that Ralph was standing at the concrete wall separating the Taco Bell fro m a day care center when Demarkas shot Washington, and McClish (w ho m Demarkas called "Uncle Ken") was in the drive-through area at the time . Ralph and McClish were present as Demarkas ran through the field to the ir building after the shootings; he gave the gun to Ralph en route. Demarkas knew McClish had a sawed-off .22-caliber rifle, bud did not know if he had taken it to the Taco Bell. T he prosecution also played portions of a taped interview of Ralph made on A ugus t 23, 2003, the date of his arrest. Ralph claimed he was walking across the field trying to catch up to Demarkas when the shots were fired. But later R a lp h admitted he had followed Demarkas to the wall behind the Taco Bell, p ulle d himself up to look over it, and seen Demarkas standing by the Nova. Ralph saw Demarkas extend his arm toward the Nova, then heard three or fo ur shots. After the interview, Ralph and Detective Husted went to the field and Ralph p o inte d out where he had climbed the fence. He also pointed out a water pipe he had stood on at the base of the seven-foot-high concrete wall, allowing him to peer over its top. ... M c C lis h [] did not testify but tried to refute evidence of his involvement. Othello Chase testified that he had given McClish a .22-caliber sawed-off rifle as collateral for a loan, but reclaimed it three or four weeks before the s ho o tings . FN9 McClish's brother Rodney testified that, contrary to Betty P a tte rs o n' s account, he did not remove a gun from under McClish's bed on A ugus t 25, 2003, and could not have done so because he was in Green Bay, W is c o ns in, visiting his children that week; the children's mother corroborated tha t testimony.FN10 To rebut Patterson's claim she saw McClish carrying a w ra p p e d -up sweatshirt on the night of the crimes, he played a portion of a ta p e d interview in which she seemed to say she had merely heard others a lle ging this. FN 9 . Chase also testified, however, that he gave the gun to McClish 4 5 days before the shooting and McClish had it for about a month and a half. FN 1 0 . On cross-examination, the prosecutor played the tape of a jail p ho ne call McClish placed to his mother and Lisa Knestrict on August 2 6 , 2003, in which Knestrict says Rodney is "right here." Rodney c la ime d "right here" meant in Green Bay on a three-way connection. Lo d ge d Doc. 5 at 2-8, 12. B M c C lis h filed a petition for review in the California Supreme Court on N o ve mb e r 21, 2006. Lodged Doc. 6. On February 7, 2007, the Court denied his p e titio n. Lodged Doc. 7.
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C O n September 13, 2007, McClish filed a petition for a writ of habeas corpus in Sacramento Superior Court, which denied his petition on October 26, 2007. Lodged Doc. 9. McClish then filed in the California Court of Appeal, which denied his petition on December 20, 2007. Lodged Doc. 11. On July 9, 2008, the C a lifo rnia Supreme Court also denied his petition as procedurally defective. Lodged Doc. 13. D M c C lis h filed his petition in this court on August 21, 2008. Evans contends tha t McClish has not exhausted his state remedies, because the California Supreme C o urt did not rule on the merits of his petition. D is c us s ion I M c C lis h' s petition was filed after the enactment of the Antiterrorism and E ffe c tive Death Penalty Act of 1996 (AEDPA). AEDPA instructs: A n application for a writ of habeas corpus on behalf of a person in custody p urs ua nt to the judgment of a State court shall not be granted unless it a p p e a rs that-(A ) the applicant has exhausted the remedies available in the courts of the S ta te s ; or (B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. 2 8 U.S.C. § 2254(b)(1). In order to have exhausted his state remedies, McClish mus t have provided the California Supreme Court with "[a] thorough description of the operative facts" of his claim, so that the court could have "a fair opportunity to a p p ly controlling legal precedent to the facts bearing upon his constitutional claim." Kelly v. Small, 315 F.3d 1063, 1069 (9th Cir. 2003). A T he California Supreme Court denied McClish's habeas petition in a one-line o rd e r citing In re Swain, 209 P.2d 793, 796 (Cal. 1949), and People v. Duvall, 886
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P .2 d 1252, 1258 (Cal. 1995). Both these cites indicate that McClish's petition was d e nie d because his claim did not allege grounds for relief with sufficient p a rtic ula rity. See Harris v. Superior Court of Ca., 500 F.2d 1124, 1128 (9th Cir. 1 9 7 4 ). Because such a deficiency can be cured in a renewed petition, denial on the s e grounds indicates that McClish's available state remedies have not been e xha us te d . Id. However, the California Supreme Court's mere citation of In re S wa in does not end this court's inquiry. Rather, "[i]t is . . . incumbent upon us, in d e te rmining whether the federal standard of `fair presentation' of a claim to the state c o urts has been met," to independently review McClish's petition for sufficient p a rtic ula rity. Kim v. Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1986). If McClish's c la ims are "incapable of being alleged with any greater particularity," then the C a lifo rnia Supreme Court's citation of In re Swain will not preclude federal review. Id. B M c C lis h' s petition before the California Supreme Court briefly presented the a rgume nt that his trial counsel rendered ineffective assistance of counsel, because a ltho ugh his investigation produced several witnesses who gave statements s up p o rting an alibi defense, "counsel made no attempt to follow up on or otherwise utiliz e this important exculpatory evidence." Lodged Doc. 12. McClish attached s ix reports by Bill Deasy, counsel's investigator, and three statements from w itne s s e s , two of which were notarized, as exhibits to his petition. As correctly noted by the Sacramento County Superior Court in its denial of M c C lis h' s habeas petition, the petition "does not specify how each individual s ta te me nt was relevant to [McClish's] defense[, n]or . . . how the failure to inve s tiga te further resulted in the withdrawal of a crucial defense." Lodged Doc. 9. Rather, the petition "merely argues that the statements provided exculpatory e vid e nc e ." Id. McClish's petition also fails to present evidence or even to e xp lic itly assert that the statements he provided could have been presented at his
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tria l, in the form of witness testimony. Finally, McClish presents no evidence, other tha n his unsupported assertions, that his counsel failed to follow up on these s ta te me nts and consider their utility in presenting McClish's defense. Such "conclusory allegations made without any explanation of the basis for the allegations do not warrant relief." Duvall 886 P.2d at 474. Under this court's ind e p e nd e nt review, the petition was not argued with sufficient particularity to c o ns titute a "fair presentation" before the state courts. Accordingly, McClish's c la ims have not been exhausted and he is not entitled to relief.2 II A N o tw iths ta nd ing this court's conclusion that McClish has failed to exhaust his s ta te remedies pursuant to 28 U.S.C. § 2254(b)(1), the court may nevertheless c o ns id e r the merits of the case. 28 U.S.C. § 2254(b)(2) ("An application for a writ o f habeas corpus may be denied on the merits, notwithstanding the failure of the a p p lic a nt to exhaust the remedies available in the courts of the State."); see also Pa d illa v. Terhune, 309 F.3d 614, 620-21 (9th Cir. 2002); Gatlin v. Madding, 189 F.3 d 882, 889 (9th Cir. 1999). Under AEDPA, a federal court has limited power to grant habeas corpus re lie f. AEDPA provides that: 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 gra nte d with respect to any claim that was adjudicated on the me rits in State court proceedings unless the adjudication of the c la im -(1 ) resulted in a decision that was contrary to, or involved an unre a s o na b le application of, clearly established Federal law, as d e te rmine d by the Supreme Court of the United States; or
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McClish has failed to argue, and there is no evidence in the record to ind ic a te , that he is exempt from exhaustion requirements because there is an a b s e nc e of available state corrective process or circumstances exist that render such p ro c e s s ineffective to protect his rights. See 28 U.S.C. § 2254(b)(1).
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(2 ) resulted in a decision that was based on an unreasonable d e te rmina tio n of the facts in light of the evidence presented in the State court proceeding. 2 8 U.S.C. § 2254(d). A state court decision may result in a decision that is " c o ntra ry to" established federal law if it "applies a rule that contradicts the go ve rning law set forth in our cases" or "confronts a set of facts that are materially ind is tinguis ha b le from a decision of the Court and nevertheless arrives at a result d iffe re nt from our precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). "[C]learly established Federal law" is defined as "the governing legal principle or p rinc ip le s set forth by the Supreme Court at the time the state court renders its d e c is io n." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). The state court's d e c is io n may be "an unreasonable determination" if "the state court identifies the c o rre c t governing legal principle" but applies the principle unreasonably to the p ris o ne r' s factual situation. Williams, 549 U.S. at 413. "In determining whether a state court decision is contrary to federal law, we lo o k to the state's last reasoned decision." Avila v. Galaza, 297 F.3d 911, 918 (9th C ir. 2002); see also Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Adjudications b y state intermediate appellate courts and trial courts are entitled to the same A E D P A deference given to the state supreme court. See Medley v. Runnels, 506 F.3 d 857, 863 (9th Cir. 2007) (en banc) (reviewing trial court decision as last re a s o ne d court decision and applying AEDPA deference). B C le a rly established federal law entitles a criminal defendant to effective c o uns e l. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A petitioner ma y be entitled to habeas relief if he can show both that "counsel made errors so s e rio us that counsel was not functioning as the `counsel' guaranteed the defendant b y the Sixth Amendment" and that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.
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W he n applying the first prong of deficient performance, the court must look fo r "reasonableness under prevailing professional norms." Id. at 688. "Judicial s c rutiny of counsel's performance must be highly deferential," avoiding "the d is to rting effects of hindsight" and evaluating conduct from counsel's perspective at the time. Id. at 689. "[A] court must indulge a strong presumption that counsel's c o nd uc t falls within the wide range of reasonable professional assistance," placing the burden on the petitioner to show that the challenged action could not be c o ns id e re d sound trial strategy. Id. With regards to following up on witness te s timo ny, "counsel has a duty to make reasonable investigations or to make a re a s o na b le decision that makes particular investigations unnecessary." Id. at 691. "[S]trategic choices made after less than complete investigation are reasonable p re c is e ly to the extent that reasonable professional judgments support the limitations o n investigation." Id. at 690-91. In assessing the reasonableness of an attorney's fa ilure to investigate, "a court must consider . . . whether the known evidence would le a d a reasonable attorney to investigate further." Wiggins v. Smith, 539 U.S. 510, 5 2 7 (2003). When measuring reasonableness, the court must always "appl[y] a he a vy measure of deference to counsel's judgments." Strickland 466 U.S. at 691. To show prejudice, "[t]he defendant must show that there is a reasonable p ro b a b ility that, but for counsel's unprofessional errors, the result of the proceeding w o uld have been different. A reasonable probability is a probability sufficient to und e rmine confidence in the outcome." Id. at 694. Such prejudice "`may result fro m the cumulative impact of multiple deficiencies.'" Harris v. Wood, 64 F.3d 1 4 3 2 , 1438 (9th Cir. 1995) (quoting Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th C ir. 1978) (en banc)). T he Strickland standard applies to both trial and appellate counsel. Smith v. R o b b in s , 528 U.S. 259, 285 (2002). The Supreme Court has recognized that " ` w inno w ing out weaker arguments on appeal and focusing on' those more likely to

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p re va il, . . . is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U .S . 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). C M c C lis h argues that his trial counsel's failure to use the exculpatory evidence he attached in his petition constitutes ineffective assistance. This evidence included a private investigator's reports on Marcos Wheatly, Richard McClish, Rodney M c C lis h, Lonnie White, Nancy Jones, and Nicolas Martin, as well as written s ta te me nts from Shante White, Tiarre Warren, and Jermal Lee. In reviewing the me rits of this claim, the Sacramento County Superior Court analyzed each piece of e vid e nc e , and concluded that none of the statements contained exculpatory e vid e nc e ; therefore, McClish's counsel did not err in failing to present the evidence a t trial. Affording due deference under AEDPA, this court finds that the state courts w e re not unreasonable in concluding that McClish was not entitled to habeas relief o n this basis. Even assuming, without any supporting evidence, that McClish's a tto rne y did fail to conduct further investigation into these witnesses' statements, no ne of the evidence presented suggests that this failure to investigate would be o uts id e the "wide range of reasonable professional assistance." Strickland, 466 U .S . at 689. 1 T he private investigator's report on an interview with Marco Wheatly p ro vid e s no explanation how Wheatly's statement is relevant. As the Superior C o urt noted, Wheatly did not testify at trial for the prosecution or any of the named d e fe nd a nts . Lodged Doc. 9. According to the investigator's report, Wheatly did no t know McClish and had only seen him for the first time in court. However, the re p o rt accredited Wheatly as asserting that "[t]he whole story about McClish is fa ls e ," without providing any support for the statement. Based on this evidence, and a p p lying the presumption of effective assistance required under Strickland, this

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c o urt cannot conclude that McClish's attorney acted outside the wide range of re a s o na b le ne s s in failing to follow up with this witness. 2 T he investigator's reports on Richard and Rodney McClish, the petitioner's b ro the rs , also do not provoke a finding that counsel was ineffective. The single p ie c e of substantive evidence in Richard's statement was his denial that he ever w e nt to McClish's apartment to retrieve a gun as both Lisa Knestrict and Betty P a tte rs o n testified. Again assuming that counsel failed to follow up on this e vid e nc e , his failure nonetheless fails to compel a conclusion of ineffective a s s is ta nc e , because it is highly unlikely that this evidence, if presented at trial, w o uld have altered the proceedings. Richard's testimony would probably have been d is c o unte d by the jury, because he is McClish's brother. Even if he was believed, ho w e ve r, his testimony would do little to undermine evidence that McClish was p re s e nt at the time of the shooting and that he had a gun. At most, Richard's te s timo ny would suggest that McClish lied to Knestrict about removing the gun e ithe r before or after the shooting, and that Patterson was misinformed on the issue. Richard's testimony would not undermine other portions of the two women's te s timo ny against McClish, nor counter Demarkas King's (Demarkas) implication tha t McClish was directly involved. McClish's claim that his counsel rendered ineffective assistance by failing to fo llo w up on the investigator's report for Rodney is also meritless, because his a tto rne y clearly did follow up by calling Rodney to the stand to deny Patterson's re p o rt. 3 T he investigator's report of his interview with Lonnie White also does not c o mp e l a finding of ineffective assistance of counsel. First, White's underlying a s s o c ia tio n with McClish stems from illegal activity: White claimed to know M c C lis h because he had bought marijuana from him in the past. White also claimed
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to know Ralph King (Ralph) through marijuana purchases. It would be well within the realm of reasonableness for counsel to conclude that calling White as a witness w o uld be detrimental to his client's case, or at the least that White was an und e s ira b le witness who could easily be impeached. Further, White's interview did no t present testimony that was particularly exculpatory. He asserts that there were o nly two persons at the shooting, indicating "[i]f there was a third person he would ha ve seen him," but also acknowledges that he did not observe the entire encounter. Finally, White was incarcerated at the time of the investigator's report, and counsel c o uld well have concluded that the effort it would take to present his impeachable te s timo ny was not worth the limited advantage to his case. 4 T he investigator's report on Nancy Jones indicates that the majority, if not all, o f her testimony regarding McClish's participation would be inadmissible hearsay. Jones did not witness the shooting, but reported that Ralph had told her that his son ha d shot the victims at the Taco Bell, and that McClish was not at the shooting and ha d nothing to do with it. She also indicated that Patterson had told her that M c C lis h was not involved in the shooting. Since it appears Jones had no first-hand k no w le d ge of what happened, it was reasonable for McClish's counsel not to follow up on Jones's report or call her as a witness. 5 T he investigator's report on Nicolaus Martin presents a closer issue. Martin to ld the investigator that McClish was extremely drunk that night, so much that he ne e d e d help to get back to his apartment just prior to the shooting. He also ind ic a te d that Ralph and Demarkas left the apartment complex alone, contradicting o the r reports that McClish had gone with them. This evidence might have been e xc ulp a to ry if supported by evidence that McClish was, in fact, too drunk to leave his apartment, as Martin asserted. However, there is a lack of evidence, such as an a ffid a vit, to show that Martin would have testified consistent with the investigator's
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re p o rt. Martin was also interviewed in the Sacramento County Jail, suggesting that he was also an easily impeachable witness. Hence, this court cannot conclude that the state courts were unreasonable in finding that failure to follow up on Martin's te s timo ny was not ineffective assistance of counsel. E ve n if counsel's alleged, unproven, failure to follow up with Martin could be c o ns id e re d ineffective assistance of counsel, McClish has failed to show that this fa ilure prejudiced his case. Martin's testimony conflicted with that of Lisa K ne s tric t, McClish's live-in girlfriend and a key witness in the case. Knestrict te s tifie d that McClish was at home watching a movie before he left the apartment s o me time after 9:30 p.m. She did not mention McClish's alleged intoxication. In a d d itio n, Martin's testimony conflicts with witnesses at Taco Bell who observed a p a rtic ip a nt in the shootings who fit McClish's description, but not that of either of his co-defendants. Martin's testimony also conflicts with witnesses who saw M c C lis h with the Kings right after the shooting. In light of the holes in this e vid e nc e , McClish has failed to meet his burden to show a reasonable probability tha t the outcome of his jury trial would have been different, had his counsel made furthe r efforts to follow up on Martin's interview. 6 S ha nte White's notarized but unsworn, undated statement is, like Jones's s ta te me nts , entirely hearsay. She reports that a friend told her that McClish went up s ta irs to sleep the night of the shooting, and that someone else told her he was still a s le e p at the time of the shots. With no first-hand knowledge of any fact of c o ns e q ue nc e related to McClish's defense, this court cannot say that McClish's c o uns e l rendered ineffective assistance in failing to follow up on White's statement. 7 T ia rre Warren's statement would corroborate Martin's testimony that M c C lis h got drunk prior to the shootings, but nothing further. This testimony is in no way exculpatory, however, because it indicates that McClish left of his own
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a c c o rd and does not contradict other reports, including testimony by Knestrict, that M c C lis h got up from his bed to meet with the Kings and then left with them to p a rtic ip a te in the shooting. Because Warren's testimony was so weak in terms of re le va nc e , McClish's counsel did not render ineffective assistance by failing to fo llo w up with her. 8 J e rma l Lee's statement was exculpatory, in that it placed McClish with Lee at the apartment complex at the time the shots were fired. This statement was c o ntra d ic to ry to Lee's trial testimony, but McClish's counsel was able to impeach Le e with it during cross-examination. The statement was used as part of McClish's d e fe ns e ; it is therefore clearly incorrect that counsel "made no attempt to follow up o n or otherwise utilize this important exculpatory evidence." Accordingly, there is no evidence that counsel rendered ineffective assistance with regard to this te s timo ny. D M c C lis h also claims that his appellate counsel rendered ineffective assistance b y not arguing ineffective assistance of counsel and failing to raise the issue of juror mis c o nd uc t on appeal. Because both of these arguments are without merit, the state c o urt was not unreasonable in denying McClish's habeas petition on these grounds.

As explained above, McClish's claim that his trial counsel rendered ine ffe c tive assistance of counsel is without merit. He has provided no proof, only c o nc lus o ry allegations, that his counsel did fail to follow up with the witnesses and s ta te me nts presented. In fact, the evidence suggests the opposite, because counsel d id question at least two of the witnesses about their statements when they testified, b ringing the allegedly exculpatory evidence to the attention of the jury. Even a s s uming that counsel did not follow up on some of the witness statements, there w a s no ineffective assistance of counsel because it was within the wide range of
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re a s o na b le professional assistance not to waste time and effort following up on s ta te me nts that were entirely based on hearsay, highly subject to impeachment, or irre le va nt. Finally, even if it would have been prudent for McClish's counsel to fo llo w up on some of the witnesses statements, McClish has failed to show that he w a s prejudiced by the alleged failure to do so. Because McClish's claim of ine ffe c tive assistance of counsel at trial was without merit, his appellate counsel did no t render ineffective assistance in failing to raise it. Nor did McClish's appellate counsel render ineffective assistance in failing to ra is e the issue of juror misconduct on appeal. About a week after the jury verdicts, D e ma rk a s filed a motion for a new trial based on alleged juror misconduct, which M c C lis h later joined. The trial court conducted an extensive hearing on the issue, q ue s tio ning ten jurors and one alternate juror regarding the allegations. Nine of the juro rs flatly denied the allegations, leaving only the alternate juror and Juror No. 4, o n whose declaration the defendants had based their motion. Juror No. 4's a lle ga tio ns were further refuted by outside witnesses. The trial court found, after he a ring all the evidence, that no misconduct had occurred. Under California law, a trial court's ruling on a motion for a new trial is re vie w e d for abuse of discretion. People v. Guerra, 129 P.3d 321, 388 (Cal. 2006). "In resolving a question of whether jury misconduct occurred, [the appellate courts] ` a c c e p t the trial court's credibility determinations and findings on questions of his to ric a l fact if supported by substantial evidence.'" People v. Mendoza, 6 P.3d 1 5 0 , 190 (Cal. 2000) (quoting People v. Nesler, 941 P.2d 87, 101 (Cal. 1997)). In this case, the record supports both the trial court's credibility determinations and the c o urt' s conclusion that no misconduct occurred. Lodged Doc. 21, 22. Given the la c k of credible evidence in support of the motion for a new trial on the basis of juro r misconduct, and the high standard of review given to the trial judge's d e te rmina tio n, the appellate counsel did not act unreasonably in failing to raise this is s ue on appeal.
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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 27 28 DATED: August 21, 2009

C onc lus ion It is hereby ordered that McClish's application for a writ of habeas corpus is D E N IE D . The Clerk is directed to enter the judgment and close the case.

/s / Milan D. Smith, Jr. UNITED STATES CIRCUIT JUDGE S itting by Designation

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