Jones v. Jacquez

Filing 43

ORDER signed by Senior Judge James K. Singleton on 8/15/2014. Petitioner's 25 Amended Application for Writ of Habeas Corpus is DENIED. Court is DECLINING to issue a Certificate of Appealability and Clerk is to enter Judgment accordingly. (Marciel, M)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DAVID D. JONES,
No. 2:09-cv-03022-JKS
Petitioner,
MEMORANDUM DECISION
vs.
J. SOTO, Warden, California State Prison,
Los Angeles County,1
Respondent.

David D. Jones, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas
Corpus with this Court pursuant to 28 U.S.C. § 2254. David2 is currently in the custody of the
California Department of Corrections and Rehabilitation and is incarcerated at the California
State Prison, Los Angeles County. Respondent has answered. David has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
The California Court of Appeal recounted the facts of this case as follows:
Defendants Steven Allen Jones, Jr. and David Darrao JonesFN1 appeal from the
judgment of conviction after a jury found them guilty in count one of the first degree
murder of John Jarvis ([California] Pen. Code, § 187, subd. (a)),FN2 in count two of the
attempted murder of Ian Michael Gonzales (664/187, subd. (a)) and in count three of
robbery of both men. (§ 211.) The jury found true as to both defendants the special
circumstance that the murder was committed in the commission of a robbery (§ 190.2,
subd. (a)(17)) and the sentence enhancement that a principal was armed with a firearm.
(§ 12022, subd. (a)(1); Counts 1, 2, and 3.) As to Steven, the jury further found the
murder and the attempted murder were willful, deliberate and premeditated (§§ 189/664,
1

J. Soto, Warden, California State Prison, Los Angeles County, is substituted for
Francisco Jacquez, former Warden, Pelican Bay State Prison. FED. R. CIV. P. 25(c).
2

The petitioner is referred to by his first name for reasons discussed by the
California Court of Appeal, infra. This Court means no disrespect.
-1-

subd. (a)), that he personally and intentionally discharged a firearm proximately causing
great bodily injury or death to Jarvis and Gonzales (§ 12022 .53, subd. (d); Counts 1, 2
and 3) and personally inflicted great bodily injury on Jarvis and Gonzales. (§ 12022.7,
subd. (a); Counts 2, 3.)
FN 1. Although defendants have the same family name, they are not related. In
the interests of clarity we shall refer to them by their given names. We mean no
disrespect.
FN 2. All further section references are to the [California] Penal Code unless
otherwise specified.
Steven was sentenced to prison for life without the possibility of parole, plus 75
years to life.FN3 David was sentenced to prison for life without the possibility of parole
plus 11 years.FN4
FN 3. Steven was sentenced to prison for life without the possibility of parole for
first degree murder (§§ 187, 190.2, subd. (a)(17)), plus a consecutive life term for
the attempted murder (§§ 664/187), and three consecutive terms of 25 years to
life, one for the robbery (§ 211), one for the section 12022.53, subdivision (d)
enhancement associated with count one and one for the section 12022.53,
subdivision (d) enhancement associated with count two. The sentences on the
remaining enhancements were stayed.
FN 4. David was sentenced to prison for life without the possibility of parole for
first degree murder (§ 187/190.2, subd. (a)(17)), plus consecutive terms of seven
years for attempted murder (§ 187/664, subd. (a)), three years for robbery (§§
211, subd. (c), 213, subd. (a)(2)), and one year for the arming enhancement on
count three. (§ 12022, subd. (a)(1).)
....
FACTUAL BACKGROUND
In a nutshell, the murder and attempted murder resulted from a drug deal gone
bad. The evidence shows that defendant David agreed to buy four pounds of marijuana
from John Jarvis and Ian Michael Gonzales for $12,000. Instead, he stole the marijuana
from the back of Jarvis’s truck and then jumped into a waiting getaway car occupied by
defendant Steven and two other cohorts. Jarvis and Gonzales pursued the getaway car in
Jarvis’s truck, repeatedly ramming the car, which eventually spun around and knocked
the truck into a ditch. After the truck was immobilized, Steven exited the car and shot
the two men, killing Jarvis and wounding Gonzales. As both defendants challenge the
sufficiency of the evidence in several respects, we set forth the facts in some detail.

-2-

The Prosecution’s Evidence
A. The Trip to Eureka
Leon Flanagan of Richmond met Steven in August or September 2003. Steven
was in a rap group and introduced himself to Flanagan as “Steve O.” In late September,
the two men spoke about driving to Eureka where a well-known Bay Area rapper was
performing and Flanagan was planning to perform at an after-party at Club West. They
planned to drive to the concert and Flanagan arranged to use his father’s green Ford
Taurus. His friend, James Gordon, agreed to drive because Flanagan did not have a
driver’s license.
In the late afternoon on Saturday, November 1, 2003, Flanagan and Gordon drove
to Steven’s residence and picked him up along with David, who was also a member of
Steven’s rap group. Gordon was driving, Flanagan was sitting in the front passenger
seat, and Steven and David were seated in the back seats. By the time they arrived at
Club West in Eureka, they were told it was too late to perform, so the foursome stayed
awhile and then checked into a motel for the night.
B. The Marijuana Deal
Gonzales lived in Trinity County and grew and sold marijuana. On November 1,
he went with some friends to the rap concert in Eureka. The concert ended around
midnight and Gonzales and his friends decided to go to the after-party at Club West.
While they were standing in line smoking marijuana, they met a group of three or four
African-American men from the Bay Area who were interested in buying about five
pounds of marijuana for approximately $15,000. One of them was David, to whom
Gonzales spoke to for about an hour outside the club. Before leaving, Gonzales told the
men to contact him at his home around noon the following day.
The next morning on November 2, 2003, Gonzales had several telephone
conversations with Jarvis who needed money and wanted to sell some marijuana. It was
agreed that Jarvis would sell David four pounds of marijuana and that he would receive
$11,000 and Gonzales would receive $1,000 or $1,200. The Bay Area men telephoned
Gonzales around 10:30 or 11:00 a.m. and told him they had the money, so he arranged to
meet them at a rest stop on Highway 299 near Salyer.
Jarvis and his girlfriend, Devon Owen, picked Gonzales up in Jarvis’s pick-up
truck and headed to the rest area to meet the buyers. The marijuana was in a large
garbage bag in the back of Jarvis’s truck. Because Jarvis and Gonzales did not know the
buyers, it was decided that Gonzales’s father, William Thurman, would drive separately
to the rest area to monitor the sale. Thurman took a .30-30 deer rifle with him and he and
Gonzales took radios to communicate. Thurman arrived at the rest stop, parked his
Blazer, and busied himself by making minor repairs on the vehicle while he waited for
Jarvis and Gonzales to arrive.
Meanwhile, after stopping at a gas station to buy gas, defendants and their two
friends decided to take Highway 299 so they could drive Gordon to Vallejo where he
lived. They drove for awhile and then stopped at a rest stop in Salyer where they all used
the restroom and the telephone. Flanagan wanted to leave but Steven indicated that he
was waiting for someone to arrive so he could buy some marijuana. After waiting a few
-3-

minutes, they started to leave but then saw Gonzales arrive in Jarvis’s truck. The two
vehicles pulled into adjacent parking spaces, although Gordon backed the Taurus into the
space. Jarvis and Owen walked over to the restrooms while Gonzales spoke with David,
showed him the marijuana, and smoked some of it with him. David told Gonzales he
wanted to go to another location to conduct the transaction because they had been at the
rest area too long and Gonzales suggested a secluded road a short distance away.
Gonzales walked over to Jarvis and Owen to tell them about the plan and while
they were talking, Owen saw David get out of the Taurus and hesitate. Then she heard
several voices coming from the Taurus yelling “Just do it. Go get it. Just do it. Just do.
Get it.” David walked around the back of the car, grabbed the bag of marijuana from the
back of Jarvis’s truck, ran back to the Taurus, and entered the passenger side of the car.
Meanwhile, Jarvis and Gonzales ran toward the Taurus, which had began to
move. Jarvis grabbed a hold of David’s shirt trying to retrieve the marijuana and grabbed
onto the door frame as David jumped into the moving car. Hoping to stop the car,
Gonzales stepped in the path of the Taurus but moved aside when it became apparent the
car was not going to stop. As the Taurus sped up, Jarvis lost his footing and was dragged
10 to 12 feet until the door closed on his hand and he let go and rolled away. The Taurus
left the rest area and Jarvis and Gonzales ran to the pickup truck to pursue them and
Thurman followed them.
C. The Vehicle Chase
The Taurus and the pick-up truck drove east on Highway 299 and when Jarvis
caught up with the Taurus, he rammed the back of it several times hoping to stop the car
and retrieve his marijuana. Gordon continued driving and at Steven’s direction, turned
onto Denny Road where Gonzales signaled them to pull over but Gordon proceeded
across a bridge as Jarvis continued ramming the back of the car.
The vehicles drove down Denny Road until they came to a hairpin turn. Steven
was holding a gun out the window and had been firing it at Jarvis’s truck. The truck
rammed the Taurus again, which caused the Taurus to spin around and knock the truck
into a ditch. After pulling out of the ditch and hitting the Taurus again, the truck fell
back into the ditch and was immobilized. The Taurus stalled and came to a stop about 10
or 12 feet past the truck. While Gordon attempted to restart the car, Steven got out, and
retrieved something from the trunk.FN5 He then walked towards the disabled truck, where
holding a gun double-handed, [he] fired five shots into the truck, paused and fired
another series of shots. He walked briskly back to the car and said “Get me out of here.
Get me out of here. Please get me out of here” and Gordon drove back towards the
bridge.
FN 5. One eyewitness testified that he saw someone holding a pistol outside the
rear driver’s side window of the Taurus as the Taurus and the truck went by.
Another eyewitness testified that she saw an African-American man holding a
gun as he exited the back seat of the Taurus on the driver’s side.

-4-

Gonzales was hit twice in the back but was able to check on Jarvis who was
losing consciousness and died within minutes from wounds caused by a single bullet.
Meanwhile, Gonzales radioed his father and told him Jarvis had been killed. He
warned Thurman that the Taurus was heading his way. Thurman stopped his Blazer on
the other side of the bridge and blocked the road. As the Taurus headed toward him,
Steven waived a pistol at Thurman who stood behind the door of his vehicle and fired a
bullet through the radiator of the Taurus.
Gordon stopped the car and refused to drive any more, so Steven changed places
with him, tossing a revolver into the river before getting into the driver’s seat. Steven
then turned the car around and sped back up Denny Road passing Jarvis’s truck and the
assembly of people who had gathered to assist Jarvis. About one or two miles up the
road, one of the tires blew out and Steven pulled the Taurus into a small turn out on the
side of the road.
When Flanagan walked away from the car to make a call from his cell phone,
David and Steven pushed the Taurus off a steep embankment and then fled taking the bag
of marijuana, which had been in the back seat in their possession. Gordon and Flanagan
wandered around the area until 5:40 p.m. when they were picked up and arrested by
Trinity County Sheriff’s deputies about one mile from the crime scene.
D. The Investigation
A criminalist processed the Taurus for evidence. He collected clothing, cigarette
butts, and a sample of fabric from the back seat closer to the driver’s side where he
observed a red stain.
A few days after the crime, the Trinity County Sheriff’s Department recovered the
gun that Steven had thrown into the river. It was a .38 caliber Smith and Wesson
revolver that held six shells and contained five expended cartridges and one empty
cylinder. The ballistic evidence showed the bullet recovered from Jarvis’s body was a
.38 caliber bullet consistent with the revolver recovered from the river but results from a
comparison of the bullet and the weapon were not conclusive.
During a police interview on November 10, 2003, Gonzales identified Gordon
and Flanagan from photographic lineups as two of the men in the Taurus.
By the beginning of December, the Sheriff’s Department had Steven’s and
David’s first names but were unable to locate them over the next few months. On
January 8, 2004, a Richmond police officer spotted David seated in a vehicle. After
detaining and searching him, he found 18 clear plastic baggies of marijuana in David’s
possession. The next day, when Detective Nawrock arrived to take David into custody
and explained why he was there, David put his head down and cried.
On July 16, 2004, Flanagan spoke with Detective Nawrock and the prosecuting
attorney. At that time, Flanagan identified Steven and David from photographic lineups
and told them David had taken the marijuana and Steven was the shooter.
In 2004, Gordon was tried separately and convicted, and Flanagan was charged
jointly with Steven and David. On May 3, 2005, Flanagan entered a negotiated plea in
which he agreed to plead guilty to voluntary manslaughter and possession of a weapon

-5-

and receive a sentence of 10 years imprisonment in exchange for his truthful testimony at
Steven’s and David’s trial.
DNA profiles were developed from the items collected from the Taurus, including
the red stain on fabric taken from the back seat, a baseball cap, and a head wrap, and
were found to match Steven’s DNA profile.FN6
FN 6. The DNA profile from the blood stain matched Steven’s DNA profile
along 12 loci and the probability that a random unrelated individual would by
chance possess this profile at 12 loci was estimated to occur in approximately one
in 5.5 quadrillion African-Americans, Steven’s ethnic group. The DNA profile
from the cap and head wrap matched Steven’s DNA profile along 8 loci and the
random chance of such a match was approximately one in 770 billion AfricanAmericans.
The Trinity County Sheriff’s deputies were unable to locate Steven until May
2004, when Detective Nawrock received information from the police in Auburn, New
York that Steven had been in New York using the name Michael Dennis Griffith. Later
in the month, Nawrock was advised that Michael Dennis Griffith had had contact with
the Nevada Police Department, whereupon Nawrock travelled to Nevada and took Steven
into custody.
The Defense
Neither defendant testified but both called witnesses in support of alibi defenses.
Steven’s evidence showed that he signed in for a court-ordered domestic violence
and anger management counseling group in El Cerrito at 6:00 p.m. on November 3, 2003,
the day after the shooting. He also presented evidence that no live performances had
been planned for the Club West after-party.
Steven Raines, who was in jail with Steven and Flanagan in Trinity County,
testified that Flanagan had told him Steven was being set up to take the fall for the crimes
although he had not been present during the crimes.
David’s evidence showed that on November 2, 2003, he picked up his son from
his mother’s home in Fairfield, took him to lunch, and brought him back around 2:00
p.m. Afterwards, he attended a barbeque in Richmond. He also presented the testimony
of a forensic psychiatrist regarding factors that can affect memory and eyewitness
identification.
People v. Jones, No. C052707, 2008 WL 2781153, at *1-5 (Cal. Ct. App. July 18, 2008).
On November 28, 2006, David filed a counseled appeal to the Court of Appeal. David
asserted that: 1) his convictions for felony murder and robbery must be reversed because there
was insufficient evidence that he perpetrated a robbery, aided and abetted a robbery, or intended

-6-

to commit a robbery; 2) his conviction for attempted murder must be reversed because there was
insufficient evidence to prove that he did anything to aid and abet the shooting from the car; 3)
the felony murder special circumstance must be reversed because his single act of stealing the
marijuana did not support the conclusion that he was a major participant in the robbery that arose
out of his theft, or that he acted with reckless indifference of human life; and 4) the trial court
committed sentencing error when it sentenced him to robbery in addition to first-degree felony
murder and attempted murder.
The Court of Appeal agreed that the trial court erred in sentencing David for both the
attempted murder and robbery and ordered that the robbery sentence be stayed. Jones, 2008 WL
2781153, at *22-24. The court also sua sponte stayed the attendant armed enhancement and
ordered that the abstract of judgment be modified accordingly. Id. at 24. The court otherwise
affirmed the judgment of conviction in a reasoned opinion dated July 18, 2008. Id.
On August 26, 2008, David filed a counseled petition for review to the California
Supreme Court, arguing that his convictions for felony murder and robbery must be reversed
because there was insufficient evidence to prove that he perpetrated a robbery, aided and abetted
a robbery, or intended to commit a robbery, and that his conviction for attempted murder must be
reversed because there was insufficient evidence to prove that he did anything to aid and abet the
shooting from the vehicle. On October 28, 2008, the California Supreme Court summarily
denied review. On January 13, 2009, David filed a petition for writ of certiorari with the United
States Supreme Court, which the Supreme Court denied on May 26, 2009.
On October 26, 2009, David filed a pro se petition for writ of habeas corpus with the
superior court, arguing that: 1) trial counsel was ineffective for failing to investigate a five-day

-7-

gap between his arrest and arraignment; 2) trial counsel was ineffective for failing to file a
motion to suppress Gonzales’s identification of him from a photo array because the photo was a
warrantless search and seizure; 3) law enforcement committed misconduct by altering evidence;
4) trial counsel was ineffective for failing to renew a motion for a change of venue because he is
an African-American and there were very few African-Americans in the County of Trinity,
where he was tried; 5) trial and appellate counsel “did not address the change of venue” and the
trial court failed to engage in comparative juror analysis; 6) trial counsel was ineffective for
refusing to allow him to testify at trial; 7) jurors saw him transported to the courthouse in
shackles and prison clothing; and 8) the prosecutor committed misconduct by mentioning five
times in closing argument that David failed to take the stand in his own defense.
On December 4, 2009, the superior court denied David habeas relief, concluding that the
case law David cited did not support his claim that he was impermissibly transported to the court
in shackles or forced to appear at pretrial hearings in shackles and in prison clothing, and he did
not make a claim that he was unlawfully restrained at trial or forced to stand trial in prison
clothing. The court further concluded that his remaining claims “refer to documents including
the record in the case, all of which would appear to be reasonably available but were not
included with his petition,” and that David “failed to set forth diligent efforts to obtain the
documents.”3

3

The court did not cite any case law for this proposition. In general, the California
Supreme Court does not require that a petition include competent proof of every allegation.
However, it has stated that a petition should “state fully and with particularity the facts on which
relief is sought” and “include copies of reasonably available documentary evidence supporting
the claim, including pertinent portions of trial transcripts and affidavits or declarations.” People
v. Duvall, 886 P.2d 1252, 1258 (Cal. 1995) (citations omitted and emphasis added).
“Conclusory allegations made without any explanation of the basis for the allegations do not
-8-

Also on October 26, 2009, the same day David filed his petition for writ of habeas corpus
with the state superior court, David filed his Petition for Writ of Habeas Corpus with this Court.
He raised the same claims that he unsuccessfully raised in his superior court petition, and
additionally argued that his first-degree murder charge and robbery charges were not supported
by legally sufficient evidence and that there was no evidence that he aided and abetted. David
acknowledged that eight of his ten claims for relief were unexhausted, and requested that this
Court hold the Petition in abeyance pending exhaustion of his state court remedies.
On March 12, 2010, this Court, through a previously assigned magistrate judge, ordered
Respondent to submit a response addressing David’s request for a stay and abeyance.
Respondent subsequently filed a motion to dismiss the Petition and an opposition to stay and
abeyance.
On November 16, 2010, this Court, through a previously assigned district judge, stayed
the instant action pending exhaustion of state court remedies as to David’s first eight claims for
relief on the ground that David had established “good cause” because he “exercised due
diligence in his efforts to obtain his file” and because he filed his superior court habeas petition,
as well as the instant action, which contained two fully exhausted claims, within the AEDPA’s
one-year filing deadline. The Court ordered David to file an exhaustion petition with the
California Supreme Court within thirty days of the entry of the order and to file a motion to lift
the stay within thirty days from the date the California Supreme Court resolved his exhaustion
petition. The Court denied the motion to dismiss and administratively closed the case.

warrant relief, let alone an evidentiary hearing.” Id. (citation omitted).
-9-

In the meantime, while his motion before this Court for a stay and abeyance was pending,
David filed a petition for writ of habeas corpus with the California Court of Appeal. In papers
dated August 26, 2010,4 David raised the eight unexhausted claims that he had raised in his
habeas petition to the superior court as well as a ninth claim that trial counsel was ineffective for
failing to request an instruction on lesser included offenses of robbery because he lacked the
intent to commit a robbery. The Court of Appeal summarily denied relief on September 23,
2010, prior to this Court’s November 16, 2010, order granting David’s motion for a stay and
abeyance and requiring him to file an exhaustion petition within thirty days.
David did file an exhaustion petition for writ of habeas corpus with the California
Supreme Court, but he did not file it within thirty days of this Court’s November 16, 2000, order
directing him to do so.5 In his exhaustion petition, David raised the eight unexhausted claims
that he had raised in his habeas petition to the superior court and Court of Appeal, including the
following claims: 1) trial counsel was ineffective for failing to investigate a five-day gap
between his arrest and arraignment; 2) trial counsel was ineffective for failing to file a motion to
suppress Gonzales’s identification of him from a photo array because requiring him to sit for the
photo used in the array was a warrantless search and seizure; 3) law enforcement committed
misconduct by requiring him to pose for a photo showing his teeth after Gonzales could not
identify David in the first photo array and by altering the dates of the photos; 4) trial counsel was

4

David originally filed his petition with the Court of Appeal on June 22, 2010, but
filed it with the wrong court. He then filed it with the correct court on August 26, 2010.
5

It is unclear exactly when it was filed. David dated his exhaustion petition March
11, 2011. The front page of the petition is stamped as “received” on both April 27, 2011, and
May 11, 2011. The California Supreme Court docket states that it was filed on May 11, 2011.
David’s exhaustion petition was late by any of these dates.
-10-

ineffective for failing to renew a motion for a change of venue because David is an AfricanAmerican and there were very few African-Americans in the county where he was tried; 5) trial
and appellate counsel “did not address the change of venue” and the trial court failed to engage
in comparative juror analysis; 6) trial counsel was ineffective for refusing to allow him to testify
at trial; 7) jurors saw him transported to the courthouse in shackles and prison clothing; and 8)
the prosecutor committed misconduct by mentioning five times in closing argument that David
failed to take the stand in his own defense. David also re-raised the claim that he raised for the
first time in his petition for habeas relief to the Court of Appeal that trial counsel was ineffective
for failing to request an instruction on lesser included offenses of robbery because he lacked the
intent to commit a robbery. David did not argue, as he did in his original Petition before this
Court and which this Court deemed exhausted, the claim that his first-degree murder charge and
robbery charges were not supported by legally sufficient evidence and that there was no evidence
that he aided and abetted. Rather, he argued that there was insufficient evidence that he harbored
the specific intent to sustain his conviction for attempted murder. David additionally raised the
following new claims: 1) there was “an actual breakdown in the adversarial process”; 2) trial
counsel experienced blackouts and memory lapses, “exhibiting . . . a pattern of intoxication and
typical behavior of drugs or drinking or stress to the point of diminished capacity”; 3) counsel
failed to secure “a race-neutral jury”; 4) trial counsel failed to address his claim that the
prosecution had “alter[ed] know[n] documents”; 5) trial counsel was ineffective for failing to
“investigate and introduce at trial evidence central to [his] defense”; 6) trial counsel failed to file
a motion to sever his trial from Steven’s trial; 7) trial counsel was ineffective for failing to
request an “Evans Lineup,” and appellate counsel was ineffective for failing to argue on direct

-11-

appeal that trial counsel should have requested such a line up; 8) the trial court erred in failing to
issue “lesser-included offense and specific intent element instructions”; 9) the prosecutor
challenged potential jurors on the basis of their race in violation of Batson v. Kentucky, 476 U.S.
79, 86 (1986), and trial counsel was ineffective for failing to file a Batson motion protesting
those race-based challenges; 10) where trial counsel “was silent, made no objections, filed no
motions, and requested no explanation with respect[] to no African-American jurors while his
own client was African-American,” the trial court had a sua sponte obligation to “conduct an
inquiry as to comparative jury analysis”; 11) counsel failed to request six jury instructions; 12)
the trial court failed to sua sponte instruct the jury “on the lesser included offense of involuntary
manslaughter/criminal negligence”; and 13) the cumulative errors committed at trial by the trial
court and his counsel warranted reversal of his convictions. The California Supreme Court
denied the petition on November 16, 2011.
David did not comply with this Court’s order requiring him to file a motion to lift the
stay after the California Supreme Court entered a decision on his exhaustion petition. Instead,
David filed a new Petition on December 15, 2011, which this Court construed as a new action
and assigned to it a separate case number. After Respondent notified the Court of this error, the
Court consolidated the two actions and construed David’s new Petition as a motion to lift the
stay and ordered Respondent to file a response. Respondent filed a statement of non-opposition
to the motion to lift the stay, but noted that David had failed to file his exhaustion petition with
the California Supreme Court within thirty days of this Court’s November 16, 2010, order.

-12-

On May 25, 2012, the Court granted the motion to lift the stay. The Court also ordered
Respondent to file a response to David’s Amended Petition. Respondent answered on November
16, 2012.
II. GROUNDS RAISED
David’s arguments in his Amended Petition before this Court correspond to the
arguments he raised in his exhaustion petition to the California Supreme Court—namely, he
argues that: 1) trial counsel was ineffective for failing to investigate a five-day gap between his
arrest and arraignment; 2) trial counsel was ineffective for failing to file a motion to suppress
Gonzales’s identification of him from a photo array because the taking of the photo was a
warrantless search and seizure; 3) law enforcement committed misconduct by requiring him to
sit for the second photo and by altering evidence; 4) trial counsel was ineffective for failing to
renew a motion for a change of venue because David is an African-American and there were
very few African-Americans in the county where he was tried; 5) trial and appellate counsel “did
not address the change of venue” and the trial court erred in failing to engage in comparative
juror analysis; 6) trial counsel was ineffective for refusing to allow him to testify at trial; 7)
jurors saw him transported to the courthouse in shackles and prison clothing; 8) the prosecutor
committed misconduct by mentioning five times in closing argument that David failed to take
the stand in his own defense; 9) counsel was ineffective for failing to request an instruction on
theft as a lesser included offense of robbery; 10) there was “an actual breakdown in the
adversarial process”; 11) trial counsel experienced blackouts and memory lapses; 12) counsel
failed to secure “a race-neutral jury”; 13) trial counsel failed to address his claim that the
prosecution had “alter[ed] know[n] documents”; 14) there was insufficient evidence that he

-13-

harbored the specific intent to convict him of attempted murder; 15) trial counsel was ineffective
for failing to “investigate and introduce at trial evidence central to [his] defense”; 16) trial
counsel failed to file a motion to sever; 17) trial counsel was ineffective for failing to file a
motion requesting an “Evans Lineup,” and appellate counsel was ineffective for failing to argue
on direct appeal that trial counsel should have requested such a lineup; 18) the trial court erred in
failing to issue “specific intent element instructions”; 19) the prosecutor challenged potential
jurors on the basis of their race in violation of Batson, 476 U.S. at 86; 20) trial counsel failed to
make a Batson motion to challenge those race-based strikes; 21) where trial counsel “was silent,
made no objections, filed no motions, and requested no explanation with respect[] to no AfricanAmerican jurors while his own client was African-American,” the trial court had a sua sponte
obligation to “conduct an inquiry as to comparative jury analysis”; 22) trial counsel failed to
request six jury instructions; 23) the trial court erred in failing to instruct the jury “on the lesser
included offense of involuntary manslaughter/criminal negligence”; and 24) the cumulative
errors committed at trial by the trial court and his counsel warrant reversal of his convictions.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that

-14-

are materially indistinguishable from a decision” of the Supreme Court but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court’s
findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). 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). Stanley v. Cullen, 633 F.3d 852, 860
(9th Cir. 2011); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of
the record is not de novo review of the constitutional issue, but rather, the only method by which
we can determine whether a silent state court decision is objectively unreasonable.” Himes, 336
F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden

-15-

of “showing there was no reasonable basis for the state court to deny relief.” Harrington v.
Richter, 131 S. Ct. 770, 784 (2011).
David has not replied to Respondent’s answer. The relevant statute provides that “[t]he
allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a
habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the
judge finds from the evidence that they are not true.” 28 U.S.C. § 2248; see also Carlson v.
Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no reply filed and no evidence
offered to contradict the allegations of the return, the court must accept those allegations as true.
See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).
IV. DISCUSSION
A.

Timeliness
David’s Amended Petition raises new claims not originally raised in his original, timely

Petition to this Court. On July 18, 2008, the Court of Appeal affirmed David’s judgment of
conviction as modified by its order, Jones, 2008 WL 2781153, at *24, and the California
Supreme Court denied David’s appeal on October 28, 2008. David’s petition for writ of
certiorari was denied by the United States Supreme Court on May 26, 2009. David’s judgment
became final for purposes of establishing whether his new claims are timely under the AEDPA’s
one-year statute of limitations on May 26, 2009. 28 U.S.C. § 2244(d)(1)(A) (the one-year statute
of limitations period for filing a federal habeas corpus petition “shall run from the latest of . . .
the date on which the judgment became final by the conclusion of direct review or the expiration
of the time for seeking such review”); Lawrence v. Florida, 549 U.S. 327, 333-34 (2007)
(§ 2244(d)(1)(A)’s reference to “direct review” includes the time for seeking review by the
United States Supreme Court through a petition for writ of certiorari); Wixom v. Washington, 264
-16-

F.3d 894, 897 (9th Cir. 2001) (a judgment becomes “final” for purposes of triggering the
AEDPA’s one-year statute of limitations either by the conclusion of direct review by the highest
court, including the United States Supreme Court, or by the expiration of time to seek such
review). The one-year statute of limitations began running the following day, on May 27, 2009,
Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (calculating the AEDPA’s one-year
limitations period according to Federal Rule of Civil Procedure 6(a)), and expired on May 26,
2010, excluding any time statutorily tolled. David filed his original Petition with this Court on
October 26, 2009, and it was therefore timely.
The filing of a petition for habeas corpus in federal court does not toll the statute of
limitations for federal habeas relief. Rhines v. Weber, 544 U.S. 269, 274 (2005). A stay and
abeyance of a mixed petition, as was granted here, allows a petitioner to return to state court to
exhaust the claims that were unexhausted in his original petition. Id. at 275-76. Once the
petitioner exhausts his state court remedies, the district court will lift the stay and allow the
petitioner to proceed in federal court as to the newly and previously exhausted claims. Id. Any
newly-exhausted claims which were not raised in the original petition must either be timely in
and of themselves or “relate back” to the claims in the original petition. Mayle v. Felix, 545 U.S.
644, 656-59 (2005). Amendments to the original petition made after the statute of limitations
has run relate back to the original pleading if the claims in the original and amended pleadings
arise out of the same “conduct, transaction or occurrence.” Id. at 655 (quoting FED. R. CIV. P.
15(c)(2)). The applicable test is whether the original and newly-asserted claims are united by a
“common core of operative facts.” Id. at 659 (citations omitted). “An amended habeas petition
. . . does not relate back . . . when it asserts a new ground for relief supported by facts that differ

-17-

in both time and type from those the original pleading set forth.” Schneider v. McDaniel, 674
F.3d 1144, 1150 (9th Cir. 2012) (quoting Mayle, 545 U.S. at 650)).
The AEDPA’s one-year statute of limitations is tolled during periods in which a
“properly filed” habeas corpus petition is “pending” in the state court. 28 U.S.C. § 2244(d)(2).
The time during which a state application is “pending” includes the interval between a lower
court’s denial of collateral relief and the filing of an original petition in a higher state court if the
prisoner complied with state timeliness requirements in proceeding from the lower court to the
higher court. Evans v. Chavis, 546 U.S. 189, 191-93 (2006). In California, an original petition
filed in a higher court is timely if it is filed within a “reasonable time” after the lower court’s
denial of collateral review. Id. at 192-93. The Ninth Circuit recently commented on the
“reasonable time” standard:
California’s use of the “reasonableness” standard has prompted the United States
Supreme Court to note that it is “more difficult for federal courts to determine just when
a review application (i.e., a filing in a higher court) comes too late.” [Carey v. Saffold,
536 U.S. 214, 223 (2002)]. The Supreme Court has suggested that “the California courts
themselves might alleviate the problem by clarifying the scope of the words ‘reasonable
time’ in this context or by indicating, when denying a petition, whether the filing was
timely. And the Ninth Circuit might seek guidance on the matter by certifying a question
to the California Supreme Court in an appropriate case.” Chavis, 546 U.S. at 199. To
date, however, “California courts have given scant guidance as to what the State
considers a ‘reasonable’ length of time to file an application for review.” Velasquez v.
Kirkland, 639 F.3d 964, 968 (9th Cir. 2011). Until such guidance is provided, the
Supreme Court has instructed federal courts to apply a thirty-to-sixty-day benchmark for
California’s “reasonable time” requirement, and courts in this circuit have developed a
large body of case law which follows that instruction. Id. (collecting cases).

Stewart v. Cate, ___F.3d___, 2014 WL 1707033, at *4 (9th Cir. May 1, 2014) (footnotes
omitted). California generally accepts a 30-to-60-day delay as reasonable, but also permits delay
beyond that length of time if the petitioner can establish “good cause” for the delay. Id.; see also

-18-

Velasquez, 639 F.3d at 968 (absent an “adequate explanation,” gaps of 91 days and 81 days were
unreasonable). In the absence of a clear indication by the state supreme court that a petition is
untimely, as is the case here, the federal court “must itself examine the delay in each case and
determine what the state courts would have held in respect to timeliness.” Chavis, 546 U.S. at
198.
Here, Respondent concedes that the one-year statute of limitations was statutorily tolled
between the time David filed his first petition for habeas relief with the superior court on
October 26, 2009, and the superior court’s denial of relief on December 4, 2009. David is also
entitled to interval tolling between the superior court’s December 4, 2009, denial of his petition
for habeas relief and the filing of his petition with the Court of Appeal if the interval was
“reasonable.” David, however, did not file his petition with the California Court of Appeal until
August 26, 2010, 266 days after the superior court denied him relief, which is far beyond the 30to-60-day delay generally considered reasonable by California courts. See Stewart, 2014 WL
1707033, at *4. David did not address timeliness in his Amended Petition and did not respond to
Respondent’s answer. He has asserted no explanation, much less good cause, for the lengthy
delay.
Nevertheless, this Court previously found that David established “good cause” for a stay
and abeyance because the superior court had rejected habeas relief on the ground that he had
failed to support his claims with documents from the record and that, dating back to early 2009,
he had “exercised due diligence in his efforts to obtain his [case] file” which he needed to
continue to pursue his claims in the state courts. David received his trial file, including his

-19-

transcripts, some time in July of 2010,6 and filed his petition with the Court of Appeal on August
26, 2010. Whether David filed his petition with the Court of Appeal within a reasonable time
after his claims were rejected as unsupported by the superior court is a close question which this
Court will resolve in David’s favor given that he is proceeding pro se. David is therefore
entitled to tolling for the entire period from October 26, 2009, when he filed his superior court
habeas petition, through September 23, 2010, when the Court of Appeal denied his petition, for a
total of 333 days. This extends the one-year AEDPA statute of limitations from May 27, 2010,
to April 24, 2011.
It is not clear when David filed his exhaustion petition with the California Supreme
Court. That court’s docket sheet shows that David filed his petition on May 11, 2011, and if this
Court were to go by that date, all of David’s new claims exhausted in his supreme court petition,
which he subsequently raised in his Amended Petition to this Court, would be untimely. Those
new claims would therefore be subject to “relation back” analysis before they could be
considered on the merits by this Court. However, this Court is obligated to give David the
benefit of the “mailbox rule” and assume that he “filed” his petition on March 11, 2011, the date
he signed it and presumably turned it over to prison authorities. See Anthony v. Cambra, 236
F.3d 568, 574-75 (9th Cir. 2000) (citing Houston v. Lack, 487 U.S. 266, 275 (1988)). Therefore,
the new claims he raised in his exhaustion petition and raised again in his Amended Petition to
this Court are timely and will be addressed on the merits.

6

According to David, the file he received in July of 2010 contained “over eighteen
thousand pages of transcripts . . . and police discovery[,] four banker boxes of research and
personal notes, and many exhibits.”
-20-

B.

Merits
1.

Strickland ineffective assistance of counsel standard of review

David’s Amended Petition is permeated with ineffective assistance of counsel claims. To
demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must
show both that his counsel’s performance was deficient and that the deficient performance
prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which
“counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by
the Sixth Amendment.” Id. The Supreme Court has explained that, if there is a reasonable
probability that the outcome might have been different as a result of a legal error, the defendant
has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376, 1385-86
(2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95.
Thus, David show that defense counsel’s representation was not within the range of competence
demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for
counsel’s ineffectiveness, the result would have been different. See Hill v. Lockhart, 474 U.S.
52, 57 (1985).
An ineffective assistance of counsel claim should be denied if the petitioner fails to make
a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697
(courts may consider either prong of the test first and need not address both prongs if the
defendant fails on one).
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
The question “is not whether a federal court believes the state court’s determination”
under the Strickland standard “was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” And, because the Strickland standard is
a general standard, a state court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.
-21-

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.
Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
It is through this highly deferential lens that a federal habeas court reviews Strickland
claims under the § 2254(d) standard. See Knowles, 556 U.S. at 123 (citing Yarborough v.
Gentry, 540 U.S. 1, 5-6 (2003)).
2.

Delay in arraignment (Claim 1)

David first argues that his trial counsel was ineffective for failing to investigate a 5-day
gap between his arrest and his arraignment. He additionally claims that a detainer was not in
place and trial counsel failed to investigate “this violation of agreement on detainers.” David
raised this claim in his petition for habeas corpus relief filed with the superior court. The
superior court denied relief, concluding that David had failed to support this claim with
documentary evidence. The Court of Appeal and California Supreme Court denied habeas relief
on this claim without comment.
According to the record before this Court, David was arrested on January 8, 2004, in
Richmond, California, pursuant to a Trinity County warrant. Either the same day or the
following day, David was taken into custody by the Trinity County police and transported to
Trinity County. It appears, although it is not entirely clear, that David was arraigned in Trinity
Court on January 14, 2004. Under California Penal Code § 825(a)(1), a “defendant shall in all
cases be taken before the magistrate without unnecessary delay, and, in any event, within 48
hours after his or her arrest, excluding Sundays and holidays.” California Penal Code § 821
provides that under some circumstances, if the defendant was arrested on a warrant in a county
other than where the crime was committed and bail is not an issue, the law enforcement agency
-22-

requesting the arrest must take custody of him within five days and take the defendant before a
magistrate. “Section 821 does not authorize a 5-day delay in all cases, but, rather, places a limit
upon what may be regarded as a necessary delay in a case where [the] defendant has been
arrested in another county; and a detention of less than five days, if unreason[ab]le under the
circumstances, would be a violation of the statute.” People v. Combes, 363 P.2d 4, 8 (Cal.
1961).
It is not clear if there was a violation of California Penal Code §§ 821 and/or 825 because
the warrant is not part of the record and the circumstances of David’s arrest and arraignment are
also not clear from the record. Even assuming that such a violation occurred, trial counsel was
not ineffective for failing to “investigate” and raise the issue, such as through a motion to
dismiss the charges prior to trial or moving to reverse after conviction, because such efforts
would have been futile. In California, non-compliance with the statutory time limits for
arraignment goes to the legality of the detention, not the legality of the prosecution, and does not
constitute grounds for dismissal of the charges prior to trial. People v. Valenzuela, 150 Cal.
Rptr. 314, 315-16 (Cal. Ct. App. 1978). When pre-arraignment delay is asserted as a ground for
reversal after conviction, “a defendant’s right to be taken before a magistrate within the time
specified by the law does not require a reversal unless he shows that through such wrongful
conduct he was deprived of a fair trial or otherwise suffered prejudice as a result thereof.” Id. at
316 (quoting Combes, 363 P.2d at 7). The state court would not have granted dismissal on
grounds of pre-arraignment delay prior to trial, and David has not asserted any prejudice which
would have warranted reversal on that ground after his conviction. Trial counsel will not be
deemed deficient for failing to raise any delay in David’s arraignment because such a claim

-23-

would not have been meritorious. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (to
show prejudice under Strickland from failure to file a motion, petitioner must show that (1) had
counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious,
and (2) had the motion been granted, it is reasonable that there would have been an outcome
more favorable to the petitioner); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (counsel
was not deficient for failing to take futile actions); see also Miller v. Keeney, 882 F.2d 1428,
1434-35 (9th Cir. 1989) (counsel’s failure to raise a weak issue did not constitute ineffective
assistance). David thus cannot prevail on his claim that his trial counsel was ineffective for
failing to assert, either prior to trial or after his conviction, that his arraignment was
unreasonably delayed under California law. See Schoppe-Rico v. Horel, No. C 07-5416, 2010
WL 4722476, at *9 (N.D. Cal. Nov. 15, 2010) (rejecting petitioner’s claim that counsel was
ineffective for failing to move to dismiss a charge on the grounds that he was not arraigned
within the time required by California law because “noncompliance with the speedy arraignment
statutes goes to the legality of the detention, not the legality of the prosecution, so [it] is not
grounds for dismissal of charges under California law” (citing Valenzuela, 150 Cal. Rptr. at 31516)); Johnson v. Mendoza-Powers, No. EDCV 06-00893, 2008 WL 5245991, at *7 (C.D. Cal.
Dec. 12, 2008).
David also argues that “there was never a detainer placed on [him],” and counsel was
ineffective for “failing to investigate this violation of agreement on detainers.” In support of his
argument, David cites United States v. Hach, 615 F.2d 1203 (8th Cir. 1980), a § 2255 case in
which the petitioner claimed, inter alia, that his indictment should be dismissed because the
government failed to comply with the Interstate Agreement on Detainers Act. Hach, however, is

-24-

distinguishable because David was not transferred between states, but rather between counties
within the State of California, and the Act was inapplicable to him. Trial counsel was not
ineffective for failing to investigate or raise this meritless issue. Lockhart v. Fretwell, 506 U.S.
364, 374 (1993) (O’Connor, J., concurring) (failing to raise a meritless objection cannot
constitute prejudice under a Strickland ineffective assistance of counsel claim). David therefore
cannot prevail on this claim.
3.

Claims related to the second photo array (Claims 2, 3, 13 & 17)

At trial, Detective Nawrock testified that on November 10, 2003, he showed Gonzalez a
six-pack photo array including a photo of David, but Gonzales did not identify anyone from the
array as having been involved in the incident. Detective Nawrock testified that Gonzales told
him that “if [the detective] had other pictures, maybe something showing more of David Jones’s
face, maybe his teeth, he might have a better opportunity at identifying [David].” On January
21, 2004, Detective Nawrock showed Gonzales another six-pack photo array containing a “more
recent” photo of David in which David is showing his teeth, and Gonzales identified David from
that array. Defense counsel did not move prior to trial to exclude Gonzales’s identification of
David from that photo lineup.
On cross-examination, Detective Nawrock testified that at the time Gonzales commented
about seeing other photos of David, David was being held at the Shasta County Jail, so the
detective “just sent down to them for another photograph, a more recent one.” Defense counsel
asked if there had been “any specific request that [David] smile or show his teeth in [the second
photo].” Detective Nawrock could not recall “if there was anything specific or we wanted a
more recent photograph of him. They took the photograph. I could have asked them that. I just

-25-

don’t recall that.” His report also did not indicate one way or another whether he had
specifically requested a photo of David showing his teeth. In response to questioning by defense
counsel, Detective Nawrock testified that in the second photo array shown to Gonzales, two of
the photographs showed men with their mouths “firmly shut.” He could see some teeth in the
other four photographs.
At trial, Gonzales identified David as the person who grabbed the bag of marijuana.
Gonzales had spoken with David for about an hour on the evening prior to the drug deal, and
David was also the person he primarily dealt with on the day of the deal. He smoked marijuana
with David on the day of the drug deal and the evening prior to the deal, where they talked for
about an hour while standing in line at a club. After Gonzales and Jarvis chased down David
and his cohorts, one of the men brandished a gun and killed Jarvis and shot Gonzales twice in the
back.
Gonzales testified that when he was shown the second photo array on January 21, 2004,
he recalled stating that the photo of David “stands out in my mind and he has very similar traits”
and that he identified David at that time as “the one that grabbed the marijuana.” The
prosecution asked Gonzales how he was able to identify David from the second photo array
where he could not identify him from the first photo array. Gonzales replied, “I don’t know. I
guess it just came back to me more.” Gonzales acknowledged that David was “smiling more” in
the second photo, and that that fact impacted his ability to identify David from the second photo
array. Gonzales stated, however, that he was able to identify David in court because he “ha[d] a
recollection of him,” and not because he had picked him out of the second photo array. Gonzales

-26-

stated, “He just - - you don’t forget people like that. And like I say, after I seen a different
picture of him, it did more justice.”
On cross-examination, Gonzales testified that in his initial police interview he stated that
one of the gentlemen he spoke with on the night prior to the drug deal had diamonds “or some
kind of jewelry” in his teeth. Gonzales testified that he could not recall whether, after he was
shown the initial photo array, there was any discussion about obtaining a second photo of
anyone. Defense counsel then asked Gonzales about how he was able to identify David from the
second photo array:
[Defense counsel]:

And was it because of the teeth?

[Gonzales]:

And it does a lot better justice in this photo. It brings out more
facial features due to him smiling.

[Defense counsel]:

Did you ever see [sic] anything about the teeth of the man that you
met at Yreka [sic], during your interviews?

[Gonzales]:

Yes. I believe I may have said he had gold teeth, I wasn’t sure.

Defense counsel also cross-examined Gonzales about his subsequent criminal history and
elicited from Gonzales that he had been “drinking pretty heavily” and smoking marijuana the
evening prior to the drug deal.
Defense counsel called Dr. Martin Blinder, a forensic psychiatrist, to testify as an expert
on eyewitness identification issues. Without commenting on the reliability of any specific
eyewitness, Dr. Blinder testified that people who smoke marijuana “have biological defects that
prevent them from moving from short- to long-term memory.” He testified that other factors
may also affect the memory of an eyewitness, including the presence of weapons during an
incident, because the presence of weapons tends to absorb a disproportionate amount of
-27-

perceptual energy, and whether the eyewitness sustained a gunshot wound or other injury during
an incident. In addition, according to Dr. Blinder, cross-racial identification is generally less
reliable than identification between people of the same race. Dr. Blinder also testified that
memory fades with time, and that “an increase in [an eyewitness’s] confidence [in identifying a
suspect] with the passage of time is suspect.”
Dr. Blinder also testified that the manner in which photo lineups are conducted can affect
the quality of what an eyewitness remembers. According to Dr. Blinder, some jurisdictions are
replacing six-pack photo lineups with the use of single, sequential photos, which forces an
eyewitness to compare each photo to his memory of the crime “rather than finding the one face
of six that might be most resembling of the fellow at the crime but not necessarily a good
match.” Defense counsel showed Dr. Blinder the first and second photo arrays which were
shown to Gonzales. Dr. Blinder testified that in the second photo array, only two individuals
were showing their teeth. Defense counsel continued:
[Defense counsel]:

So if teeth [were] something to go by, there is really only two
people with teeth to pick out of these six; is that - -

[Dr. Blinder]:

Right. It’s what we would call a function lineup of two. It would
appear to be a lineup of six, but functionally it’s two. . . . [T]he
witness is being asked to . . . pick from one of two faces, not one
of six, because the other four are immediately discounted. And
that’s not an adequate test. You need more than two choices in
order for the eye lineup to be valid.

In summation, defense counsel highlighted Dr. Blinder’s testimony regarding factors
which affect the accuracy of an eyewitness’s identification of a suspect. Defense counsel also
attacked Gonzales’s identification of David from the photo array, arguing in part as follows:
Mr. Gonzales is shown a lineup with [David] in it. He can’t pick anybody out.
He says, “Show me some pictures of people with teeth or more smiling, more mouth,”
-28-

words to that effect. They show him another lineup with [David], same spot, number
four, five changes. None of those people were involved in the earlier lineup. And
according to Dr. Blinder, who’s a physician among other things, says you can only see
teeth in two of those pictures. So it’s essentially a two-person lineup, because the other
four aren’t showing their teeth.
....
So if I understand the District Attorney’s contention with regard to Mr. Gonzales
and picking people out, if he looks at a photo lineup and my client, David Jones, is in it
and he doesn’t pick him out, that’s okay. If he looks at another one and does pick him
out, that’s okay too. And if he picks out the wrong guy, Dwayne Williams, that’s okay
too.
David now argues, as he did in his petition to the superior court for habeas relief, that the
police committed misconduct and “coerced [him] without a warrant or subpoena” to sit for the
second photograph showing his teeth. David additionally argues that trial counsel was
ineffective for failing to move pursuant to California Penal Code § 1538.5 to suppress
Gonzales’s identification as the fruit of a warrantless search and seizure or to otherwise request
an evidentiary hearing. David likewise argues that a discrepancy in dates of the photos and
accompanying discovery material demonstrate that the police “altered the evidence to fit [the
crime].” The superior court found that David failed to support these claims with documentary
evidence. The California Court of Appeal and Supreme Court summarily denied review of these
claims.
David additionally argues that trial counsel was ineffective for failing to argue that the
police altered the evidence, that trial counsel was ineffective for failing to request an “Evans
Lineup,” and that appellate counsel was ineffective for failing to argue on direct appeal that trial
counsel should have requested an “Evans Lineup.” David raised these claims for the first time in
his exhaustion petition to the California Supreme Court, which that court summarily rejected.

-29-

The second photo was taken after David was in custody, and he does not challenge the
lawfulness of that custody. It is not clear from the record if the second photo was taken as a
routine part of the booking process or was taken after David was booked at the request of
Detective Nawrock. It is not clear if Detective Nawrock requested that David smile or otherwise
show his teeth. Regardless, trial counsel would not likely have been successful in arguing that
requiring David to sit for a second photo to be used in a photo lineup amounted to a warrantless
search and seizure or otherwise violated David’s constitutional rights. In California, “[t]he
protections afforded by the Fourth Amendment to persons not incarcerated generally are not
applied in the same manner to persons held in lawful detention by the government.” People v.
West, 216 Cal. Rptr. 195, 197 (Cal. Ct. App. 1985). A prisoner, including one merely suspected
of a crime, has a reduced reasonable expectation of privacy which “specifically extends to that
person’s identity.” People v. King, 99 Cal. Rptr. 2d 220, 226 (Cal. Ct. App. 2000). The
California Supreme Court has specifically held that “a defendant generally has no right to refrain
from participating in a lineup.” People v. Hart, 976 P.2d 683, 731-32 (Cal. 1999) (rejecting
defendant’s claim that counsel was ineffective for failing to move to suppress evidence obtained
as a result of the defendant having been “coerced” by the police into participating in a post-arrest
lineup); see also Goodwin v. Superior Court, 108 Cal. Rptr. 2d 553, 557 (Cal. Ct. App. 2001) (no
court has found a due process right not to participate in a lineup); West, 216 Cal. Rptr. at 198-99
(as a result of the decreased expectation of privacy by inmates and the exigencies inherent in the
prison environment, the government is not required to obtain a warrant or establish probable
cause to conduct reasonable searches and seizures of inmates); see also Rigney v. Hendrick, 355
F.2d 710, 711-15 (3d Cir. 1965) (finding no violation of equal protection, due process, or the

-30-

right against self-incrimination where prisoners awaiting trial were required to participate in
lineups to be viewed by victims of other, unrelated offenses). Counsel was not ineffective in
failing to argue that the police required a warrant to take the second photo, or that David’s
participation in the photo lineup otherwise violated his constitutional rights, because failing to
raise such an argument would have been rejected by the trial court. Wilson, 185 F.3d at 990;
Lockhart, 506 U.S. at 374 (O’Connor, J., concurring). David thus cannot prevail on his
ineffective assistance of counsel claim.
David additionally states that he was the only one of six men in the second six-pack
photo lineup “with teeth showing . . . and in jail clothing.” Construing his petition liberally,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), David also appears to be arguing that trial counsel
was ineffective for failing to move to suppress Gonzales’s identification from the second photo
array on the ground that the array was impermissible suggestive. See Goodwin, 108 Cal. Rptr.
2d at 557 (although a defendant does not have a due process right to refrain from participating in
a lineup, he does have a due process right to suppress evidence obtained at an impermissibly
suggestive lineup). Due process prohibits the admission of eyewitness identifications obtained
after police have arranged identification procedures “so impermissibly suggestive as to give rise
to a very substantial likelihood of irreparable misidentification.” People v. Blair, 602 P.2d 738,
750 (Cal. 1979) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). “In deciding
whether an extrajudicial identification is so unreliable as to violate a defendant’s right to due
process, the court must ascertain (1) whether the identification procedure was unduly suggestive
and unnecessary, and, if so, (2) whether the identification was nevertheless reliable under the
totality of the circumstances.” People v. Carter, 117 P.3d 476, 508-09 (Cal. 2005) (citations and

-31-

internal quotation marks omitted), supereceded by statute on other grounds as recognized in
Verdin v. Superior Court, 183 P.3d 1250, 1257 (Cal. 2008).
California courts have consistently held, however, that a photo array is not unduly
suggestive merely because there are differences among the individuals shown in the
photographs. Blair, 602 P.2d at 751 (“there is no requirement that a defendant in a lineup must
be surrounded by people nearly identical in appearance” (citation omitted)); see Carter, 117 P.3d
at 509 (six-pack photo array not unduly suggestive where defendant was the only individual
wearing an orange shirt not otherwise identifiable as jail-issued clothing); People v.
Cunningham, 25 P.3d 519, 561 (Cal. 2001) (rejecting challenge to photographic lineup where the
defendant was the only one of the six men shown who had three of the features noted by the
eyewitness—glasses, a goatee, and a suit and tie—where all of the others had glasses and a
mustache, some had facial hair, and one wore a suit jacket); People v. Johnson, 842 P.2d 1, 1617 (Cal. 1992); supereceded by statute on other grounds as recognized in Verdin, 183 P.3d at
1257 (photo array not unduly suggestive where defendant was the only one shown wearing a
gold-colored prison-issued shirt and he was the only person who had been in the prior photo
array).
The copy of the photo array submitted by David is of such poor quality that it is
impossible to evaluate whether reasonable counsel would have moved to suppress Gonzales’s
identification as the fruit of an impermissibly suggestive photo lineup. The individuals certainly
share some characteristics. However, David is showing the most teeth, although it is not clear if
his teeth are distinctive in any way. In any event, David cannot establish that counsel’s failure to
do so prejudiced him. See Strickland, 466 U.S. at 697 (courts may consider either prong of the
test first and need not address both prongs if the defendant fails on one). At trial, defense
-32-

counsel vigorously undermined Gonzales’s identification of David. Counsel also presented Dr.
Blinder who pointed out problems that were relevant to Gonzales’s identification of
David—including that he was under the influence of marijuana when he interacted with David
both on the evening prior to the drug deal and on the day of the drug deal, that Gonzales saw a
weapon and was shot twice during the incident, which would have distracted him from
accurately perceiving the suspects, that he claimed to recall David better in the second lineup,
which was “suspect,” and that the identification was cross-racial and thus inherently less reliable.
Moreover, Gonzales claimed that he could identify David at trial based on his extensive
interaction with David on the evening prior to the drug deal and on the day of the deal, and not
from the photo lineup. Given the high bar in establishing a photo lineup as impermissibly
suggestive and the fact that Gonzales was sure of his identification based on the fact that he had
spent a substantial amount of time with David, it was not unreasonable for counsel to elect to
attack Gonzales’s identification through cross-examination and the introduction of expert
testimony rather than through a pretrial suppression motion. David thus has failed to overcome
the strong presumption that his counsel’s decision to undermine at Gonzales’s identification of
David at trial was not a tactical decision which this Court may not second-guess. Richter, 131 S.
Ct. at 787; Strickland, 466 U.S. at 690-91.
David also claims that the police altered the evidence relating to Gonzales’s
identification of David and that trial counsel “took no action whatsoever.” At trial, Detective
Nawrock testified that he issued Gonzales an admonishment prior to showing him the six-pack
lineup on January 21, 2004. Detective Nawrock testified that he misdated that admonishment as
having been given on November 11, 2003. He testified that David’s defense counsel mentioned
the discrepancy at a preliminary hearing, and that the detective subsequently conducted
-33-

“immediate[] research,” discovered that the error was on his part, and corrected it. There is no
evidence in the record that the police manufactured evidence or deliberately altered the evidence
to mislead the defense, and accordingly trial counsel was not obligated to raise this speculative
claim as grounds for suppression. Wilson, 185 F.3d at 990; Lockhart, 506 U.S. at 374
(O’Connor, J., concurring); Jones v. Barnes, 463 U.S. 745, 752 (1983).
Finally, David argues that trial counsel was ineffective for failing to move for an “Evans
Lineup,” and that appellate counsel was ineffective for failing ro raise on direct review the claim
that trial counsel was ineffective in this regard. In Evans v. Superior Court, the California
Supreme Court held that “due process requires in an appropriate case that an accused, upon
timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal
conduct can participate.” 522 P.2d 681, 686 (Cal. 1974). This right arises “only when
eyewitness identification is shown to be in material issue and there exists a reasonable likelihood
of a mistaken identification which a lineup would tend to resolve.” Id. (footnote omitted). The
problem in Evans was that the only testifying eyewitness, who saw the defendant through the
backseat of a police vehicle, observing only the back of his head and shoulders, then identified
the defendant as the culprit at a preliminary hearing. Id. at 683. The defendant requested a
pretrial lineup on the ground that the eyewitness’s identification of him at the scene from the
back of the police car was faulty and that the eyewitness would be reluctant to recede from his
position at later proceedings where the defendant appeared in jail clothing. Id. The trial court
found that the claim had merit but that it lacked the authority to grant the defendant’s motion for
such a lineup. Id. at 683-84. The California Supreme Court reversed, concluding that “[b]ecause
the People are in a position to compel a lineup and utilize what favorable evidence is derived
therefrom, fairness requires that the accused be given the reciprocal right to discover and utilize
-34-

contrary evidence.” Id. at 685. Evans merely sought to compel the People “to exercise a duty to
discover material evidence,” including faults or doubts in the eyewitness’s identification of him
at the scene, which no longer existed after the eyewitness identified him at the preliminary
hearing as the culprit. Id. at 686. “Should [Evans] be denied his right of discovery the net
effect would be the same as if existing evidence were intentionally suppressed.” Id.
Although David claims trial counsel was ineffective for failing to request such a lineup,
“the decision of whether to demand a pretrial live lineup is a matter of trial tactics and strategy
within counsel’s authority to control.” Osumi v. Giurbino, 445 F. Supp. 2d 1152, 1163 (C.D.
Cal. 2006) (quoting People v. Blomdahl, 20 Cal. Rptr. 2d 491, 494 (Cal. Ct. App. 1993)
(decision by counsel not to pursue his client’s request for a live lineup prior to the preliminary
hearing was a reasonable tactical decision)). Here, in contrast to Evans, a photo lineup was in
fact conducted by the police, and Gonzales could not identify any suspect from the array. This
fact was part of the record and favorable to David, as defense counsel highlighted at trial.
Requesting a live lineup would have given Gonzales a second bite at the apple to identify David,
and counsel’s decision to forgo such a request was reasonable under the circumstances. Defense
counsel instead wisely allowed the initial, favorable photo lineup to stand, and instead painted
both the circumstances of the second photo lineup as well as Gonzales’s identification from that
lineup as suspicious. David’s trial counsel was therefore not deficient in failing to request a live
lineup subsequent to the first photo lineup. Osumi, 445 F. Supp. 2d at 1163 (“[P]etitioner’s mere
speculation is insufficient to overcome the presumption that defense counsel exercised
reasonable professional judgment in opting not to seek a pretrial line-up in which [the victim]
would have another opportunity to identify petitioner.”); Martinez v. Scribner, CV 06-01715,
2009 WL 2423100, at *18 (C.D. Cal. Aug. 4, 2009).
-35-

Due to the fact that California courts consider whether to request a live lineup a matter of
trial tactics, Blomdahl, 20 Cal. Rptr. 2d at 494, and trial counsel vigorously undermined
Gonzales’s identification of David from the second lineup at trial, appellate counsel would not
likely have been successful in arguing that trial counsel was ineffective for failing to request
such a lineup, Wilson, 185 F.3d at 990. Because one of the main functions of appellate counsel
is to “winnow[ ] out weaker arguments on appeal,” Jones, 463 U.S. at 751, counsel is not
required to present every nonfrivolous claim on behalf of a defendant appealing his or her
conviction, see Smith v. Robbins, 528 U.S. 259, 288 (2000) (“[A]ppellate counsel who files a
merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from
among them in order to maximize the likelihood of success on appeal.”) (citation omitted);
accord Barnes, 463 U.S. at 754. David cannot prevail on his claim that appellate counsel was
ineffective in this regard.
4.

Claims related to the lack of African-Americans on the jury (Claims 4, 5, 12, 19,
20 & 21)

David, an African-American, was tried in Trinity County, which he claims is an
“extremely rural area” and “99.9% white.” He claims that trial counsel filed a motion for a
change of venue because he was “a black charged with killing of a white” and one of his codefendants had already been convicted in Trinity County. According to David, there were no
African-Americans in the jury pool or on the trial jury.
David raises a host of claims relating to the lack of African-Americans on the jury. First,
he argues that although trial counsel did file a motion for a change of venue, counsel was
ineffective because he “did not establish a prima facie case” for relief. Second, he argues that
trial counsel was ineffective for failing to renew the motion for a change of venue after the trial
-36-

court dismissed the original motion as premature. The superior court denied these two claims on
habeas review because David failed to support them with record evidence.
In his third claim, David argues that appellate counsel was ineffective for failing to raise
on direct appeal “this claim of change of venue and no African-American’s [sic] . . . in the trial
or jury pool.” Fourth, David claims that the prosecutor impermissibly struck potential jurors on
the basis of their race in violation of Batson, 476 U.S. at 86. Fifth, he argues that trial counsel
was ineffective for failing to make a Batson motion challenging the prosecution’s elimination of
African-American jurors. Sixth, he claims that because trial counsel did not make a Batson
motion, the trial court had a sua sponte duty to undertake a “comparative jury analysis” or
otherwise question “one of the prosecutor’s many peremptory challenges with respect[] to
African-American jurors.” David raised these claims for the first time in his exhaustion petition,
which the California Supreme Court summarily denied.
Although both parties concede that a motion for change of venue was made by defense
counsel at some point and denied by the trial court, neither the motion nor any related hearing is
part of the record before this Court. David has received his trial file and was warned by the
superior court that any claims related to the motion for a change of venue needed to be supported
by the record, but he has again failed to provide a copy of the motion in support of his Amended
Petition. Respondent states that the motion was not part of the record on appeal and that it could
not find any transcripts discussing the motion. The only evidence in the record of a motion for
change of venue is a notice by defense counsel that David joined in Steven’s motion for a new
trial and motion to dismiss. In that notice, defense counsel stated that he was adding a claim that
the trial court erred in denying the motion for a change of venue. However, the notice of joinder

-37-

fails to provide sufficient information to enable this Court to evaluate David’s claims relating to
the motion for change of venue.
A petitioner has the burden of establishing that he is entitled to federal habeas relief.
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). In an ineffective assistance of counsel claim,
a petitioner must show both that counsel’s performance was deficient and that counsel’s
performance prejudiced his defense. Strickland, 466 U.S. at 687. And in order to show
prejudice for failing to file a motion, a petitioner must show that (1) had counsel filed the
motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the
motion been granted, it is reasonable that there would have been an outcome more favorable to
the petitioner. Wilson, 185 F.3d at 990 (citing Kimmelman v. Morrison, 477 U.S. 365, 373-74
(1986)). A determination of whether defense counsel was ineffective in presenting the motion
for change of venue or failing to renew the motion requires consideration of the merits of the
motion. See Wright v. Hedgpeth, No. CIV S-09-3347, 2012 WL 1194853, at *30 (E.D. Cal. Apr.
10, 2012). Because David did not cite to the record or otherwise present support for his claim,
his claim is rejected. David has failed to meet his burden of showing what was and was not done
by counsel so that this Court can meaningfully review his claim, and this Court may not
speculate about deficiencies in counsel’s representation. Allegations such as this one which are
not supported by reference to the record or any document fail to meet the requirement of Habeas
Corpus Rule 2(c) that a petitioner “specify all the grounds for relief available to the petitioner”
and “state the facts supporting each ground.” Mayle, 545 U.S. at 655-56; Greenway v. Schriro,
653 F.3d 790, 804 (9th Cir. 2011); Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); see also
Premo v. Moore, 131 S. Ct. 733, 741-42 (2011).

-38-

David next argues that the prosecution impermissibly struck African-American jurors in
violation of Batson, 476 U.S. at 86, that trial counsel failed to make a Batson motion in response
to those race-based challenges, and that the trial counsel failed to sua sponte conduct a
comparative juror analysis in response to the prosecution’s challenges. The Equal Protection
Clause prohibits purposeful racial discrimination in the selection of the jury. Batson, 476 U.S. at
86. In Batson, the Supreme Court outlined a three-step process for evaluating claims that a
prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause:
1) a defendant raising a Batson claim must establish a prima facie case of discrimination; 2) once
a prima facie case of discrimination is established, the burden of offering race-neutral reasons
for the strikes shifts to the prosecutor; 3) after the prosecutor offers race-neutral reasons, the trial
court has the duty to determine if the defendant has established purposeful discrimination.
Paulino v. Harrison, 542 F.3d 692, 699 (9th Cir. 2008) (citing Batson, 476 U.S. at 98).
To establish a prima facie case of discrimination under Batson’s first step, the defendant
must show that: 1) the prospective juror is a member of a cognizable racial group; 2) the
prosecutor used a peremptory strike to remove the juror; and 3) the totality of the circumstances
raises an inference that the strike was on account of race. Batson, 476 U.S. at 96; Crittenden v.
Ayers, 624 F.3d 943, 955 (9th Cir. 2010). The prosecutor’s use of a peremptory strike to remove
an African American juror satisfies the first two prongs of the inquiry; the question would then
become whether the totality of the circumstances raises an inference that the strike was used on
account of race.
David has again failed to support his claim that the prosecution made impermissible racebased challenges to potential jurors. In fact, his claim that such challenges occurred is belied by
the record as well as his assertions in other portions of his Amended Petition. According to
-39-

David, there were no African-Americans in the jury pool whatsoever due to the fact that the
county was largely Caucasian. His statement is supported by the above-mentioned notice of
joinder, in which defense counsel argued that although two hundred and forty prospective jurors
were summoned, not one of them identified themselves in the juror questionnaire as AfricanAmerican or partly African-American. David’s statement is also supported by Steven’s defense
counsel’s statement during summation that Trinity County was “two percent black, if that.” The
prosecution could not have impermissibly stricken jurors on their classification as AfricanAmericans where there were none in the jury pool, and thus there would not have been any basis
for defense counsel to raise a Batson motion to otherwise conduct a comparative juror analysis.
Construing David’s claim liberally, Erickson, 551 U.S. at 94, he appears to argue that he
was entitled to a trial jury that included African-Americans. Although a petit jury “must be
drawn from a source fairly representative of the community,” a criminal defendant is “not
entitled to a jury of any particular composition.” Taylor v. Louisiana, 419 U.S. 522, 538 (1975);
see also Powers v. Ohio, 499 U.S. 400, 404 (1991) (although a criminal defendant has the right
to be tried by a jury whose members are selected by non-discriminatory criteria, a defendant
does not have a right to a right to a petit jury composed in whole or part of persons of the same
race). The “point at which an accused is entitled to a fair cross-section of the community is
when the names are put into the box from which the panels are drawn.” Lockhart v. McCree,
476 U.S. 162, 174 (1985) (citation omitted). The Constitution only requires that “the jury
wheels, pools of names, panels, or venires from which juries are drawn must not systematically
exclude distinctive groups in the community and thereby fail to be reasonably representative
thereof.” Taylor, 419 U.S. at 538. In order to prevail on this claim, David would have to
demonstrate that the manner of selecting the jury panels systematically excluded distinctive
-40-

groups. See id. David has not pointed to any evidence of systematic exclusion of AfricanAmericans from the jury pool; rather, it appears that the lack of African-Americans in the venire
was a result of the fact that, as David notes, there are very few African-Americans in Trinity
County. Moreover, David has failed to allege any factual basis for concluding that his trial jury
was anything but impartial. See Irvin v. Dowd, 366 U.S. 717, 722 (1961) (the Sixth Amendment
guarantees criminal defendants the right to a “fair trial by a panel of impartial, ‘indifferent’
jurors”). David is therefore not entitled to relief on any of his claims related to the lack of
African-Americans seated on his trial jury.
5.

Refusal to allow him to testify (Claim 6)

David next argues that his trial counsel was ineffective for refusing to allow him to
testify at trial. David argues that he “repeatedly” requested prior to and throughout trial that
defense counsel allow him to testify. David claims that trial counsel mistakenly informed the
court that he did not want to testify. He further argues that defense counsel and a private
investigator “double-teamed” him into declining to testify. David raised this claim in his petition
to the superior court for habeas review, which the superior court denied on the ground that David
had failed to support it with record evidence. David also raised this claim in his petitions to the
California Court of Appeal and Supreme Court, and both appellate courts summarily denied
relief.
After the prosecution had concluded its case-in-chief and defense counsel had called
several witnesses, the following exchange took place in chambers:
[Defense counsel]:

This is just to make a record that I have discussed with my client
his opportunity to testify on his own behalf and the contrary, his
Fifth Amendment right not to testify. And we’ve spoken about it
numerous times, both the investigator and myself, and as of last
night, after court, we went to the jail and talked extensively, and I
-41-

believe that my client is going to testify. But I just wanted to make
a record that both my investigating officer and I have talked to him
about the pros and cons of testifying and that essentially it is his
decision to make. And that’s all I need to say.
The court:

Do you have any questions, [David]? Do you understand what
your attorney has told you? There is no lingering issues out there
that are unanswered for you, for the evidence so far. And you
understand the prosecution has the right to cross-examine you fully
if you testify?

[David]:

Yes.

The court:

And it may very well have been your attorneys [sic] advice not to.
That’s what I’m presuming from what I heard so far.

[David]:

I just want to say I’m still not certain if I want to or not.

The court:

Okay.

[David]:

I’m not sure. If I feel like I need to, I will.

The court:

That’s still a decision for you to make. This is just a record to
show that you have been advised by counsel and your investigator
what they believe you should or shouldn’t do, and you are
informed that’s your choice.

[David]:

(Nods).

At the conclusion of evidence, the court asked defense counsel if he had any further
witnesses, to which defense counsel replied, “I don’t believe that we will be calling anymore
[sic] witnesses.” David did not assert his desire to testify.
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment . . . or
in the Compulsory Process or Confrontation clauses of the Sixth Amendment, . . . the
Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete
defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citation omitted); Jones, 229 F.3d at
-42-

120. The right to present a defense includes “an accused’s right to present his own version of
events in his own words.” Rock v. Arkansas, 483 U.S. 44, 52 (1987); In re Oliver, 333 U.S. 257,
273 (1948).
It is possible that defense counsel and his investigator did, in fact, advise David off the
record that it was against his interests to testify. On the one hand, a tactical decision exercised
by counsel deserves deference when counsel makes an informed decision based on strategic trial
considerations and the decision appears reasonable under the circumstances. See Sanders v.
Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). On the other hand, “it cannot be permissible trial
strategy, regardless of its merits otherwise, for counsel to override the ultimate decision of a
defendant to testify contrary to his advice,” United States v. Mullins, 315 F.3d 449, 453 (5th Cir.
2002), because “a defendant in a criminal case has the right to take the witness stand and testify
in his or her own defense,” Rock, 483 U.S. at 49. A defendant may, however, waive this right,
either explicitly or implicitly. See United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir.
1999). Such a waiver may be inferred from a defendant’s failure to testify at trial or to notify the
trial court of his desire to testify. See id. at 1094-1095. “Although the ultimate decision whether
to testify rests with the defendant, he is presumed to assent to his attorney’s tactical decision not
to have him testify,” unless he “reject[s] his attorney’s tactical decision by insisting on testifying,
speaking to the court, or discharging his lawyer.” United States v. Joelson, 7 F.3d 174, 177 (9th
Cir. 1993). California law is in accord. People v. Alcala, 842 P.2d 1192, 1231 (Cal. 1992).
Here, David has failed to demonstrate that counsel rendered prejudicially ineffective
assistance by advising him to waive his right to testify. The record indicates that David was
advised that it was his right to testify, indicated that he was still undecided, and never
affirmatively asserted his right to testify. While David may now wish, with the benefit of
-43-

hindsight, that he had testified at trial, the record reflects that he voluntarily waived that right.
David is therefore not entitled to federal habeas corpus relief on his claim that trial counsel
prevented him from testifying.
6.

Transported in shackles (Claim 7)

David next argues that he was transported to court each day in a police vehicle wearing a
suit but “visibly shackled.” The superior court denied this claim on the merits on habeas review,
concluding as follows:
[David] apparently seeks relief based on his claim that he was transported and
forced to appear at court appearances prior to trial wearing a jail jumpsuit and shackled,
citing People v. Duran (1976) 16 C 282 and Estelle v. Williams (1976) 425 U.S. 501.
[David’s] authority does not support his claim for relief; People v. Duran (citation is 16
C3d 282) addresses the issue of shackling at trial in the presence of jurors. [David]
makes no statements that can be understood to be a claim, nor any documents that may
support a claim, that [he] was unlawfully restrained at trial, or at any other evidentiary
hearing. Estelle v. Williams addresses the issue of a defendant compelled to stand trial
dressed in prison clothing; again the Petition does not claim that [David] was compelled
to stand trial dressed in jail or prison clothing.

The California Court of Appeal and Supreme Court summarily denied relief on this
claim.
According to the trial record, on February 6, 2006, John Webster, David’s co-defendant’s
counsel, inquired as to what security measures would be in place:
[Mr. Webster]:

Your Honor, I just had some questions about having not done a
criminal trial in this county before about what security measures
would be like for these two gentlemen and what the court layout is
anticipated to be. I figure next time we’re going to be here there is
going to be jurors present.

The court:

I presume. Counsel has or will obtain street clothes for their
clients?

[David’s counsel]:

Yes, sir.
-44-

[Mr. Webster]:

Not a problem.

The court:

Taken to the jail and be dressed in those. They’ll be transported
and brought in a door that’s not usually used by the jurors. It’s
possible the juror [sic] will find out they’re in custody.
As long as they’re not sitting here with orange on I think that’s
really the best we can hope for. We’re going to try to avoid at all
costs the jury finding out that they are in custody, you know, we’re
reasonable about it anybody charged with a murder case is usually
not free on bail.

[David’s counsel]:

I think what counsel is going to is some of the details, are they
going to be chained?

The court:

They’ll have electronic stun belts on.

[Mr. Webster]:

Does the county have two of them?

The court:

Different frequencies I hope.

On March 8, 2006, during the prosecution’s case-in-chief, Mr. Webster made a request
outside the presence of the jury:

Mr. Webster:

I had a couple of issues. One is that it seems that every morning,
as the jurors are gathering, a lot of them go outside to smoke
around here, and then the officers bring my client, and assuming
Mr. David Jones, through the parking lot in order to get back over
here. I’m wondering if they couldn’t just go - - so half a dozen
jurors saw my client this morning being hauled over. It seems they
could go another block and turn around.

The court:

The Acting Marshall talked to me about that this morning, and it
was drive another block, or tell the jurors they can’t smoke. And I
told him just to tell the transport officer to go ahead and drive them
all the way up - - it’s not all the way - - to the hospital come
around the full block, so they don’t go through the parking lot.

Mr. Webster:

That would probably do it. Thank you.

-45-

Finally, on March 29, 2006, as counsel and the court were settling jury instructions, the
court inquired, “Physical restraints, have they been noticeable?” David’s counsel responded, “I
don’t believe so.”
The Sixth and Fourteenth Amendments to the United States Constitution assure a
criminal defendant the right to a fair trial. See Estelle v. Williams, 425 U.S. 501, 503 (1976).
Visible shackling of a criminal defendant during trial “undermines the presumption of innocence
and the related fairness of the factfinding process” and “‘affront[s]’ the ‘dignity and decorum of
judicial proceedings that the judge is seeking to uphold.’” Deck v. Missouri, 544 U.S. 622, 63031 (2005) (quoting Illinois v. Allen, 397 U.S. 337, 344 (1970)); see also Larson v. Palmateer,
515 F.3d 1057, 1062 (9th Cir. 2008). The Supreme Court has therefore held that “the Fifth and
Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial
court determination, in the exercise of its discretion, that they are justified by a state interest
specific to a particular trial.” Deck, 544 U.S. at 629. Those interests include “physical security,
escape prevention, [and] courtroom decorum.” Id. at 628. Accordingly, criminal defendants
have “the right to be free of shackles and handcuffs in the presence of the jury, unless shackling
is justified by an essential state interest.” Ghent v. Woodford, 279 F.3d 1121, 1132 (9th Cir.
2002); see also Jones v. Meyer, 899 F.2d 883, 884 (9th Cir. 1990); Wilson v. McCarthy, 770
F.2d 1482, 1484 (9th Cir. 1985).
Ordinarily, however, only the shackling of a defendant in the courtroom during trial
when the trial court prejudicially failed to comply with established safeguards to ensure that only
the least restrictive alternatives are used in response to a compelling need concerns federal
habeas courts. See Dyas v. Poole, 317 F.3d 934, 937 (9th Cir. 2003) (per curiam) (finding
prejudice from a concededly unconstitutional shackling of the defendant during her trial where
-46-

the record was devoid of evidence that the trial court made attempts to conceal the defendant’s
restraints in the courtroom during the trial); see also Rhoden v. Rowland, 172 F.3d 633, 637-38
(9th Cir. 1999) (finding a defendant was prejudiced because the jury saw him shackled
throughout the entire trial); Spain v. Rushen, 883 F.2d 712, 728 (9th Cir. 1989) (finding a due
process violation when the trial judge failed to consider the less restrictive means of exclusion
from trial before imposing on the defendant shackling of “unparalleled” extent and duration).
Here, David was not visibly shackled at trial, but was apparently transported to the
courthouse in shackles. The state arguably had an essential interest in shackling during
transportation to the courthouse a defendant on trial for murder in order to prevent the
defendant’s escape and maintain physical security of the police and the public during
transportation. Deck, 544 U.S. at 628. Once counsel notified the court that some members of
the jury who were smoking outside might have seen the police vehicle arrive, the court took
immediate measures to change the transportation route so that both the state’s interests and
David’s due process rights would be protected. It is not clear if any of the jurors who were
smoking outside actually saw David in shackles through the window of the police vehicle.
Counsel for David’s co-defendant merely mentioned several jurors might have seen the codefendant being “hauled over,” but there is no evidence they actually saw either defendant in
shackles. In fact, David’s counsel represented during the settling of jury instructions that he did
not believe that physical restraints had been visible to the jury.
Nevertheless, even if a few members of the jury saw David shackled through the window
of the police vehicle in the mornings while they were outside smoking, the Ninth Circuit has
held that a few jurors’ brief glimpses of a defendant in shackles or handcuffs outside of the
courtroom do not amount to a due process violation warranting federal habeas relief. See Ghent,
-47-

279 F.3d at 1132 (no actual prejudice where “a few jurors at most glimpsed [the petitioner] in
shackles in the hallway as he was entering the courtroom”); United States v. Olano, 62 F.3d
1180, 1190 (9th Cir. 1995) (“a jury’s brief or inadvertent glimpse of a defendant in physical
restraints is not inherently or presumptively prejudicial to a defendant”); see also Castillo v.
Stainer, 983 F.2d 145, 147-48 (9th Cir. 1992) (finding no due process violation when some
members of the jury pool saw the defendant in shackles in a court corridor, and that although the
court committed constitutional error by permitting shackling during trial without weighing that
burden against less restrictive alternative, the error was harmless). The superior court’s denial of
relief on this claim was therefore neither unreasonable nor contrary to federal law, and David
accordingly cannot prevail on this claim.
7.

Prosecutorial misconduct (Claim 8)

David next argues that the prosecutor “did not even try to camouflage . . . misconduct
when it was mentioned, not once, not twice, not three time, but five times in closing that [David]
did not even take the stand in his own defense” and that his defense counsel failed to object or
request a curative instruction. David raised this claim in his petition to the superior court, and
the superior court denied relief on the ground that he failed to support his claim with reasonably
available documentary evidence. David also raised this claim in his petitions for habeas relief to
the California Court of Appeal and Supreme Court; both appellate courts summarily denied
relief.
The Fifth Amendment “forbids either comment by the prosecution on the accused’s
silence or instructions by the court that such evidence is evidence of guilt.” United States v.
Robinson, 485 U.S. 25, 30 (1988) (citation omitted). That is, the judge and prosecutor are
prohibited “from suggesting to the jury that it may treat the defendant’s silence as substantive
-48-

evidence of guilt.” Id. at 32 (citation omitted). However, not every reference by a prosecutor to
a defendant’s failure to testify violates the Fifth Amendment. Rather, where “the prosecutor’s
reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant
or his counsel, . . . there is no violation of the privilege [against compulsory self-incrimination].”
Id. “It is one thing to hold . . . that the prosecutor may not treat a defendant’s exercise of his
right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as
defendant does here, that the same reasoning would prohibit the prosecutor from fairly
responding to an argument of the defendant by adverting to that silence.” Id. at 34.
David does not identify the specific comments by the prosecution which he finds
objectionable. A review of the record indicates that the prosecutor did not make any comments
during his initial closing argument that referenced David’s decision to not testify. After counsel
for Steven and David gave their respective closing arguments, the prosecution gave a rebuttal
closing argument in which he noted defense counsels’ failure to present evidence or call
witnesses to testify or “explain” certain aspects of their theories of the case. The prosecutor’s
comments did not, however, violate David’s Fifth Amendment rights. The Ninth Circuit has
expressly held that “[p]rosecutors may comment on the failure of the defense to produce certain
evidence to support an affirmative defense so long as it does not directly comment on the
defendant’s failure to testify.” Cook v. Schriro, 538 F.3d 1000, 1020 (9th Cir. 2008). None of
the prosecutor’s comments in this case can reasonably be construed as a direct comment on
David’s failure to take the stand or a suggestion that his silence was indicative of guilt, and
accordingly there was nothing to which his counsel should have objected.

-49-

8.

Failure to request theft instruction (Claim 9)

David next argues that he lacked the specific intent to commit a robbery, and that his
counsel was ineffective for failing to request that the jury be instructed that theft is a lesser
included offense of robbery. David raised this claim in his habeas petitions to the California
Court of Appeal and Supreme Court. Both appellate courts summarily denied relief.
David’s claim is plainly contradicted by the record. His defense counsel did request
instructions on grand theft and petty theft as lesser included offenses of robbery, and the court
instructed the jury on those offenses. Moreover, his counsel’s theory of the case was that David
committed theft, not robbery, and should not be liable for anything more. In summation, defense
counsel argued that the taking of the marijuana did not amount to a robbery because it was not
“accomplished by means of force and fear.” Rather, defense counsel conceded that whoever
stole the marijuana had committed theft, and argued that the Gonzales and Jarvis then
“escalat[ed] the violence” by ramming their truck into the Taurus that Steven and David had
absconded in. According to defense counsel, Gonzales could have been charged with attempted
murder and the shooter killed Jarvis in self-defense. David’s counsel therefore requested the
instruction, the instruction was given, and counsel actively advocated that David’s actions
amounted to a theft rather than a robbery. David’s claim that counsel did anything less is
completely without merit.
9.

Allegations based on an “actual breakdown” in his relationship with counsel
(Claims 10-12, 16)

David claims that there was “an actual breakdown in the adversarial process” and he is
entitled to a presumption of prejudice because: 1) defense counsel exhibited a “wholesale lack of
meaningful representation”; 2) defense counsel “clearly took advantage of a position of trust”; 3)
-50-

defense counsel was “psychologically disoriented,” “appeared to experience blackouts,” and had
“memory lapses”; 4) the trial and appellate courts failed to grant him an evidentiary hearing
concerning his trial counsel’s “failure to assure a race-neutral jury”; 5) defense counsel failed to
file a motion to sever; and 6) defense counsel took no action with respect to “the issue of
mistaken identification and prosecutions [sic] willingness to alter known court documents.”
David raised these claims for the first time in his exhaustion petition, which the California
Supreme Court summarily denied.
In United States v. Cronic, 466 U.S. 648 (1984), which was decided on the same day as
Strickland, the Supreme Court “recognized a narrow exception to Strickland’s holding that a
defendant who asserts ineffective assistance of counsel must demonstrate not only that his
attorney’s performance was deficient, but also that the deficiency prejudiced the defense.”
Florida v. Nixon, 543 U.S. 175, 190 (2004) (discussing Cronic). Cronic held that a Sixth
Amendment violation may be found “without inquiring into counsel’s actual performance or
requiring the defendant to show the effect it had on the trial,” Bell v. Cone, 535 U.S. 685, 695
(2002), when “circumstances [exist] that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified,” Cronic, 466 U.S. at 658. Cronic
identified several such situations, including: 1) the complete denial of counsel at a critical stage
of trial; 2) where “counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing; 3) where counsel labors under a conflict of interest that affects his
performance; and 4) also “on some occasions when although counsel is available to assist the
accused during trial, the likelihood that any lawyer, even a fully competent one, could provide
effective assistance is so small that a presumption of prejudice is appropriate without inquiry into
the actual conduct of the trial.” 466 U.S. at 658-60. Under such circumstances, no specific
-51-

showing of prejudice is required because “the adversary process itself [is] presumptively
unreliable.” Id. at 659. But apart from circumstances of this magnitude, “there is generally no
basis for finding a Sixth Amendment violation unless the accused can show how specific errors
of counsel undermined the reliability of the finding of guilt.” Id. at 659 n.26.
As an initial matter, David’s claims that counsel exhibited a “wholesale lack of
meaningful representation,” “clearly took advantage of a position of trust,” and experienced
blackouts or was otherwise disoriented are not supported by a statement of specific facts. David
carries the burden of proving that he is entitled to relief on this claim. Pinholster, 131 S. Ct. at
1398. Again, Habeas Corpus Rule 2(c) requires that a petitioner “specify all the grounds for
relief available to the petitioner” and “state the facts supporting each ground.” Mayle, 545 U.S.
at 655. Conclusory allegations such as this one which are not supported by a statement of
specific facts do not warrant habeas relief. Greenway, 653 F.3d at 804. David has failed to
assert any specific facts—such as particular instances when counsel blacked out or appeared
inebriated—which would support his claim and enable this Court to meaningfully review his
assertions. Accordingly, he cannot prevail on these claims.
David’s remaining claims—that counsel failed to secure a “race-neutral” jury and that he
was not granted an evidentiary hearing on that ground, that counsel failed to move to sever his
trial and failed to take action with respect to his claim that the police altered evidence—amount
to disagreement with trial tactics rather than a wholesale deprivation of counsel which would
defy particularized analysis and necessitate reversal regardless of whether prejudice is shown.
For prejudice to be presumed, counsel’s failure must be complete, which is not the case here.
See Bell, 535 U.S. at 696-98. This Court must therefore apply Strickland rather than Cronic to
David’s remaining ineffective assistance of counsel claims.
-52-

Even under the Strickland standard, David’s claims must fail. It is not clear what more
counsel could have done to secure a “race-neutral” jury in a county which was largely
Caucasian. And again, David has not attached a copy of the motion for change of venue or
transcripts of the hearing which would allow this Court to determine if counsel was ineffective in
presenting that motion or evaluate what more reasonable counsel should have done. As already
discussed infra, there was no evidence that the police deliberately altered evidence, and counsel
was not deficient for failing to raise this speculative claim. Lastly, contrary to David’s assertion,
counsel did file a motion to sever David’s trial from Steven’s trial. In sum, David cannot
establish that his counsel’s performance was deficient, much less prejudicial, and this Court
therefore rejects his remaining claims under Strickland.
10.

Insufficient evidence (Claim 14)

David next argues that there was insufficient evidence to find him guilty of attempted
murder because he did not take any sort of “direct step” toward killing anyone and he did not
harbor the specific intent to kill. He raised this claim for the first time in his exhaustion petition
to the California Supreme Court, which that court summarily rejected.
As articulated by the Supreme Court in Jackson, the constitutional standard for
sufficiency of the evidence is whether, “after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the
original); see also McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard).
This Court must therefore determine whether the California court unreasonably applied Jackson.
In making this determination, this Court may not usurp the role of the finder of fact by
considering how it would have resolved any conflicts in the evidence, made the inferences, or
-53-

considered the evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when “faced with a
record of historical facts that supports conflicting inferences,” this Court “must presume–even if
it does not affirmatively appear in the record–that the trier of fact resolved any such conflicts in
favor of the prosecution, and defer to that resolution.” Id. at 326.
David’s argument is misguided because the jury was not required to find that he took a
step toward killing another person or harbored the specific intent to kill in order to find him
guilty of attempted murder. One of the theories of liability the prosecution proceeded on was
that David was liable for attempted murder because he aided and abetted one of the target
crimes, which included robbery, and the attempted murder was a natural and probable
consequence of that target crime. The court charged the jury that a person aids and abets the
commission or attempted commission of a crime when he, “with knowledge of the unlawful
purpose of the perpetrator, and with the intent or purpose of encouraging or facilitating the
commission of the crimes, and by act or advice aids, promotes, encourages, or instigates the
commission of the crime.” A jury could have found that David harbored the intent to facilitate
the robbery where he grabbed the bag of $12,000 worth of marijuana, jumped into the moving
Taurus, and his cohort fired at Jarvis and Gonzales as they chased after their property. A jury
could have also reasonably concluded that where one of his friends used a firearm to effectuate
that robbery by shooting at Jarvis and Gonzales as they attempted to run down the Taurus that it
was reasonably expected that the cohort would also use the firearm to attempt to kill them.
Thus, a rational jury could have found David guilty of attempted to murder in that he intended to
aid and abet in the robbery, and that the attempted murder of Gonzales was a natural and
probable consequence of the nature of the robbery.

-54-

11.

Counsel’s failure to investigate and introduce evidence at trial (Claim 15)

David next argues that his trial counsel failed “to investigate and introduce at trial
evidence central to [his] defense.” David also claims that his trial counsel failed to call
witnesses and present impeachment evidence and conducted “perfunctory cross-examination” of
the witnesses for the prosecution. To the extent David continues to complain of his counsel’s
conduct with respect to Gonzales’s identification of him from the second photo array, his claims
have already been addressed. To the extent David is referring to other, unaddressed complaints
with counsel, he has failed to raise any discernable claim. Rather, David’s arguments are vague
and conclusory and unsupported by a specific statement of facts. As already mentioned,
“[c]onclusory allegations which are not supported by a statement of specific facts do not warrant
habeas relief.” Greenway, 653 F.3d at 804 (9th Cir. 2011) (quoting James v. Borg, 24 F.3d 20,
26 (9th Cir. 1994). With respect to his claim that counsel failed to call certain unidentified
witnesses, the ultimate decision not to call witnesses to testify is well within counsel’s “full
authority to manage the conduct of the [proceeding].” Taylor v. Illinois, 484 U.S. 400, 418
(1988) (“Putting to one side the exceptional cases in which counsel is ineffective, the client must
accept the consequences of the lawyer’s decision . . . to decide not to put certain witnesses on the
stand . . . .”); Lord v. Wood, 184 F.3d 1083, 1095 (9th Cir. 1999) (“Few decisions a lawyer
makes draw so heavily on professional judgment as whether or not to proffer a witness at trial.”).
Moreover, David has not identified who should have been called and what they would have
testified to. See Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (rejecting petitioner’s
claim that counsel was ineffective for failing to call alibi witnesses where there was no evidence
that the witness existed and the petitioner provided no evidence that the witness would have
provided helpful testimony for the defense). David therefore cannot prevail on these claims.
-55-

12.

Additional instructional errors (Claims 18, 22 & 23)

David makes several instructional error claims. In Claim 18, he argues that the omission
of certain unidentified “lesser-included offense and specific intent element instructions” violated
his right to due process. In Claim 22, he argues that his trial counsel was ineffective for failing
to request CALJIC jury instructions 2.51, 3.35, 3.36, 8.45, 8.46, and 8.51. In Claim 23, he
argues that the trial court failed to sua sponte instruct the jury on involuntary manslaughter and
criminal negligence. The California Supreme Court summarily rejected these claims on habeas
review.
A challenged instruction violates the federal constitution if there is a “reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380
(1990). It is well established that not only must the challenged instruction be erroneous but it
must violate some constitutional right, and it may not be judged in artificial isolation but must be
considered in the context of the instructions as a whole and the trial record. Estelle v. McGuire,
502 U.S. 62, 72 (1991). This Court must also bear in mind that the Supreme Court has
admonished that the inquiry is whether there is a reasonable likelihood that the jury applied the
challenged instruction in a way that violates the constitution and that the category of infractions
that violate “fundamental fairness” is very narrowly drawn. Id. at 72-73. “Beyond the specific
guarantees enumerated in the Bill of Rights, the Due Process clause has limited operation.” Id.
at 73. Where the defect is the failure to give an instruction, the burden is even heavier because
an omitted or incomplete instruction is less likely to be prejudicial than an instruction that
misstates the law. See Henderson v. Kibbe, 431 U.S. 145, 155 (1977). In those cases, the
inquiry is whether the trial court’s refusal to give the requested instruction “so infected the entire
-56-

trial that the resulting conviction violates due process.” See id. at 156-57; Estelle, 502 U.S. at
72.
Contrary to David’s assertion, the court did instruct the jury on CALJIC 2.51 (“Motive”),
the elements of various lesser included offenses of murder, attempted murder, and robbery, and
the specific intent requirement for certain crimes, lesser included offenses, and special
circumstances. David’s assertion that counsel was ineffective for failing to request an instruction
on involuntary manslaughter (CALJIC 8.45) is belied by the record. Defense counsel for both
Steven and David discussed the possibility of an instruction on involuntary manslaughter on the
ground that the shooter intended to miss, thus only firing warning shots. The court stated, “I’m
not going to go for that [theory],” and declined to so instruct the jury. In addition, David’s claim
that counsel was ineffective for failing to request CALJIC 8.51 is somewhat misplaced. The
court did give CALJIC 8.50, which discusses the distinction between murder and manslaughter.
CALJIC 8.51 discusses the difference between murder and involuntary manslaughter. Because
the court had already declined to charge the jury with involuntary manslaughter, any instruction
on the distinction between murder and involuntary manslaughter would have been unnecessary
and confusing to the jury. This Court will not deem counsel deficient for failing to request a jury
instruction on a theory of liability already rejected by the trial court. Lockhart, 506 U.S. at 374
(1993) (O’Connor, J., concurring). (failing to raise a meritless objection cannot constitute
prejudice under a Strickland ineffective assistance of counsel claim).
David additionally argues that his trial counsel was ineffective for failing to request three
instructions on criminal negligence—CALJIC 3.35 (“Concurrence of Act and Criminal
Negligence”), CALJIC 3.36 (Criminal or Gross Negligence—Defined”), and CALJIC 8.46
(“Due Caution and Circumspection—Defined”). The court and counsel for all three parties
-57-

discussed CALJIC 3.35 and 3.36 on three occasions. On the third and final occasion it was
discussed, which occurred while the court was charging the jury, the court noted that CALJIC
3.35 was repetitive of the “general criminal intent instruction” which had already been given,
and asked “where does the criminal or gross negligence come in?” David’s defense counsel
argued that it could be considered criminally negligent to shoot into an occupied vehicle, and
that criminal or gross negligence could also support a first degree murder finding. The court
reserved its ruling, stating:
[T]here is so much repetition. [CALJIC 3.36] hasn’t been stated in what I’ve read
so far, so I’ll look at what we have left. If it’s not contained elsewhere within what’s
remaining, we’ll add it in where it is. If it’s redundant, we won’t.
The court never ultimately ruled on whether it would instruct the jury on CALJIC 3.36,
and neither parties brought this oversight to the court’s attention. CALJIC 3.36 was not included
in the packet of jury instructions submitted to the jury. Nevertheless, David’s claim that counsel
failed to advocate for criminal or gross negligence instructions is contradicted by the record.
He also claims, however, that the court erred in failing to charge the jury on involuntary
manslaughter and criminal negligence as lesser included offenses. David’s claim must fail,
however, because the United States Supreme Court has expressly declined to decide whether due
process requires lesser included instructions to be given in non-capital cases, Beck v. Alabama,
447 U.S. 625, 638 n.14 (1980), and the Ninth Circuit has declined to extend the holding of Beck,
which requires lesser included offense instructions supported by the evidence in capital cases, to
non-capital cases, see Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000) (the “failure of a state
court to instruct on a lesser offense [in a non-capital case] fails to present a federal constitutional
question and will not be considered in a federal habeas corpus proceeding” (quoting Bashor v.
Risley, 730 F.2d 1228, 1240 (9th Cir. 1984)). Although a criminal defendant may suffer a due
-58-

process violation if the court’s failure to give a requested instruction prevents a defendant from
presenting his theory of the case, Bashor, 730 F.2d at 1240, David makes no such argument here.
Defense counsel did not proceed on a theory that David might be found guilty of criminal
negligence or involuntary manslaughter rather than murder. Rather, he argued that although a
theft was committed, the owners of the marijuana reacted disproportionately and that David and
his cohorts engaged in justifiable self-defense. Given the absence of Supreme Court authority on
this issue, this Court cannot say that the California Supreme Court’s summary rejection of this
claim was “contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States” or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” Musladin, 549 U.S. at 77 (brackets and internal quotation marks omitted).
13.

Cumulative error (Claim 24)

David lastly argues that his “conviction should be reversed upon the cumulative effect of
errors committed at [his] trial.” David raised this claim for the first time in his exhaustion
petition, which the California Supreme Court summarily rejected.
“While the combined effect of multiple errors may violate due process even when no
single error amounts to a constitutional violation or requires reversal, habeas relief is warranted
only where the errors infect a trial with unfairness.” Peyton v. Cullen, 658 F.3d 890, 896-97 (9th
Cir. 2011) (citing Chambers v. Mississippi, 401 U.S. 284, 298, 302-03 (1973)). Such “infection”
occurs where the combined effect of the errors had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623 (citation omitted). In other
words, where the combined effect of individually harmless errors renders a criminal defense “far

-59-

less persuasive than it might [otherwise] have been,” the resulting conviction violates due
process. See Chambers, 401 U.S. at 294.
As discussed above, David does not allege any claims that amount to errors of
constitutional dimension. Accordingly, he demonstrates no errors that can accumulate to a level
of a constitutional violation, and the California Supreme Court therefore did not unreasonably
deny him relief on this claim. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002).
V. CONCLUSION AND ORDER
David has raised numerous issues in his pro se Amended Petition culled from case law
which, as discussed in this opinion, either find no support in the holdings of the United States
Supreme Court or, if supported by case law, are unsupported or even contradicted by the record.
David, therefore, is not entitled to relief on any ground raised in his Amended Petition.
IT IS THEREFORE ORDERED THAT the Amended Petition under 28 U.S.C. § 2254
for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the

-60-

issues presented are adequate to deserve encouragement to proceed further.’” (quoting MillerEl, 537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to
the Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: August 15, 2014.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

-61-