Singh v. Lopez, et al

Filing 14

ORDER signed by Magistrate Judge Timothy J. Bommer on 4/6/2012 DENYING Petitioner's petition for writ of habeas corpus; A certificate of appealability SHALL NOT issue; and the Clerk is directed to close this case. CASE CLOSED. (Reader, L)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

PARDEEP SINGH,

11
12
13
14
15

Petitioner,
vs.
RAUL LOPEZ, et al.,
Respondents.

ORDER

________________________________/

16
17

2: 11 - cv - 944 - TJB

I. INTRODUCTION
Petitioner is a state prisoner and is proceeding through counsel with a petition for writ of

18

habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner and

19

Respondent consented in May 2011 to have a United States Magistrate Judge conduct all further

20

proceedings in this case.

21

Petitioner was convicted by a jury of seven counts of attempted murder and one count of

22

shooting from a vehicle. He received a sentence of 170 years to life plus life with the possibility

23

of parole on his convictions. Petitioner raises two claims in this federal habeas petition. First,

24

Petitioner asserts that his Constitutional rights to due process and a fair trial under the Fifth and

25

Fourteenth Amendments were violated when the state court denied his request for a new trial

26

based on newly discovered evidence (“Claim I”). Second, Petitioner asserts that trial counsel
1

1

was ineffective (“Claim II”). For the following reasons, the habeas petition will be denied.

2

II. FACTUAL BACKGROUND1

3

This case involves a nighttime drive-by shooting of several people
in a parking lot of a Stockton restaurant on May 14, 2006.

4
The story begins earlier that day, at a kabaddi tournament in
Stockton. Kabaddi is a rugby-like game, popular with Punjabi and
Sikh cultures.

5
6

Defendants Pardeep and Kulwant [FN 1] attended the tournament,
and were seen throughout the day disputing the tournament
committee’s decision to bar a particular player. Defendant Pardeep
confronted Satwinder G. (also known as “John”), and defendant
Kulwant threatened a committee member, Manjit U., over this
issue. Satwinder is a longtime kabaddi supporter and an apparently
prominent, wealthy member of the Sikh/Punjabi community.

7
8
9
10

[FN 1] Because many of the people involved in this
case share the same last names, for clarity we will
use first names.

11
12

Later in the day, a physical fight broke out at the tournament. On
one side of the scuffle were defendants and two of their friends,
Sarwan S., who had a knife, and “Happy,” who brandished a gun.
After the fight, defendant Pardeep told committee member Manjit
that “[w]e’re not going to let [Satwinder] take the cup [first-place
trophy] today no matter what happens.” But that is what happened,
as the team sponsored by Satwinder won the tournament. Many of
the eyewitnesses to this fight were also eyewitnesses and/or victims
in the later shooting, and at least two of these eyewitnesses
(Gurdev A. and Belhar R.) actually fought against defendants’
faction.

13
14
15
16
17
18

At the tournament, it was announced there would be a posttournament dinner at the Sansar Restaurant in Stockton. And after
that dinner ended around 11:15 p.m, Satwinder, along with eight
other people who had been at the tournament, walked out to the
restaurant’s parking lot. At this point, a slow-moving silver BMW
drove by and its front and rear passengers discharged a barrage of
gunfire at Satwinder’s group.

19
20
21
22

Four of the people in Satwinder’s group – Satwinder himself,
Gurdeep S., Raghbir S., and Belhar R. – all of whom knew both
defendants, positively identified defendants as the shooters. Two

23
24
25
26

1

The factual background is taken from the Court of Appeal of the State of California,
Third Appellate District opinion dated March 8, 2010 which Petitioner attached to his federal
habeas petition.
2

1

others Gurdev A. and Gulwinder S. – identified defendant Kulwant
as a shooter.

2
3
4
5
6
7
8
9
10
11
12

The defense highlighted inconsistencies between these testimonial
identifications and some statements provided to law enforcement.
For example, Satwinder initially stated to law enforcement that he
did not see what the shooters were wearing, but several hours later
described defendant Pardeep’s attire; Gurdeep, while being treated
at the hospital, did not identify defendants and said he was unable
to get a good look at the shooters; Raghbir, while also at the
hospital being treated, was unable to describe the vehicle involved
though he did so at trial; Belhar told officers at one point he did not
know the people who were shooting (language comprehension may
have been an issue here); and Gurdev gave inconsistent statements
as to defendant Pardeep being a shooter. Furthermore, Satwinder
was close with all of these eyewitnesses. One other individual
Santokh J., who owned the Sansar Restaurant and who was not
close with these eyewitnesses, also witnessed the shooting. He was
standing near Satwinder, and was shot three times. Although
Santokh could not identify the shooters, he heard Satwinder
mention the names “Kulwant and Pardeep” right after the bullets
flew. Moreover, Santokh had told a police officer that one of the
shooters was an Indian male wearing an orange or yellow t-shirt
(which matched the description for both defendants).

13
14
15
16

A “tip” led officers to the silver BMW, and the car was towed to a
Department of Justice (DOJ) crime lab on May 16. The car was
apparently owned by a friend of defendants and sold about a month
after the shooting. [FN 2] A DOJ firearms expert and a DOJ
fingerprint expert did not obtain from the car any inculpatory
evidence within their respective realms, but both experts noted that
the car had been recently cleaned thoroughly.

17
18

[FN 2] The friend was Jasvir G., who was also
charged with the crimes. These charges, however,
were dismissed after the preliminary hearing.

19
20
21
22
23
24
25
26

Cell phone records for defendants were introduced. In addition to
listing calls made and received, cell phone records can show the
approximate location of a cell phone, which links to the nearest
cell tower during calls. Defendant Kulwant’s records displayed a
7:23 p.m. call on May 14 linked to a tower near the kabaddi
tournament, and calls at 10:51 and 10:52 p.m. that night linked to
another tower within a half mile of the Sansar Restaurant (these
two tower sites are on opposite sides of Stockton – Charter Way
and near Hammer Lane, respectively). Defendant Pardeep’s
records show a flurry of seven calls between his cell phone and one
particular phone number between 10:57 p.m. and 11:26 p.m. on
May 14. Defendant Pardeep’s cell phone received calls from this
number again at 11:27, 11:33 and 11:44 p.m. The Sansar
Restaurant shooting was first reported in a 911 call at 11:32 p.m.
3

1

There was also evidence that defendant Pardeep had changed his
appearance after the incident and before his trial – he shaved his
long beard and discarded his turban.

2
3

The defense theory was that Satwinder G. is a powerful figure in
the Sikh community who wanted defendants blamed for the
shooting after they had insulted him at the kabaddi tournament, and
that the other witnesses felt obliged to support Satwinder because
they knew him well. In support of this defense, defendants, as
noted, highlighted some inconsistencies between eyewitness
testimony and statements to law enforcement. Additionally,
defendant Pardeep offered Sarwan S. as an alibi witness (Sarwan
effectively testified he was with Pardeep for most of the May 14
night, but this defense was undercut by Sarwan’s additional
testimony that he did drop Pardeep off at Pardeep’s home earlier
that night and by Pardeep’s phone records indicating that Pardeep’s
cell phone called Sarwan’s cell phone at 9:02 p.m.). The defense
also questioned the lighting conditions at the site of the shooting,
and noted that Satwinder had launched his own investigation into
the shooting even though he had positively identified defendants as
the shooters to the police.

4
5
6
7
8
9
10
11
12
13

In rebuttal, Manjit U. testified that Sarwan S. came to the Sansar
restaurant after the shooting and told him, “I tried to stop them [i.e.
Kulwant, Pardeep and Happy], but they wouldn’t stop.

14

People v. Singh, No. C058988, 2010 WL 765453, at *1-2 (Cal. Ct. App. 3d Dist. Mar. 8, 2010).

15

III. PROCEDURAL HISTORY

16

After Petitioner was convicted and sentenced, he filed a direct appeal to the California

17

Court of Appeal. Petitioner raised one issue in that appeal, specifically, whether the trial court

18

improperly denied his request to admit evidence of third-party culpability. On March 8, 2010,

19

the California Court of Appeal affirmed the judgment.

20

As Petitioner was proceeding with his direct appeal, he also filed separate state petitions

21

for writ of habeas corpus. In those petitions, Petitioner asserted the claims he raises in this

22

federal petition. In June and August 2009, the San Joaquin County Superior Court denied

23

Petitioner’s state habeas petitions in written opinions.2 The California Court of Appeal

24

summarily denied the state habeas petition on November 25, 2009. The California Supreme

25
2

26

Petitioner attached copies of these Superior Court decisions to his federal habeas

petition.
4

1
2
3
4
5

Court summarily denied the state habeas petition on July 28, 2010.
In April 2011, Petitioner filed the instant federal habeas petition. Respondent answered
the petition in June 2011. Petitioner filed a reply in July 2011.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state

6

court can only be granted for violations of the Constitution or laws of the United States. See 28

7

U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v.

8

Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)).

9

Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism

10

and Effective Death Penalty Act of 1996 (“AEDPA”) applies. See Lindh v. Murphy, 521 U.S.

11

320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim

12

decided on the merits in the state court proceedings unless the state court’s adjudication of the

13

claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of,

14

clearly established federal law, as determined by the Supreme Court of the United States; or (2)

15

resulted in a decision that was based on an unreasonable determination of the facts in light of the

16

evidence presented in state court. See 28 U.S.C. 2254(d).

17

As a threshold matter, a court must “first decide what constitutes ‘clearly established

18

Federal law, as determined by the Supreme Court of the United States.’” Lockyer v. Andrade,

19

538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law’

20

under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court

21

at the time the state court renders its decision.’” Id. (citations omitted). Under the unreasonable

22

application clause, a federal habeas court making the unreasonable application inquiry should ask

23

whether the state court’s application of clearly established federal law was “objectively

24

unreasonable.” See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, “a federal court may

25

not issue the writ simply because the court concludes in its independent judgment that the

26

relevant state court decision applied clearly established federal law erroneously or incorrectly.
5

1

Rather, that application must also be unreasonable.” Id. at 411. Although only Supreme Court

2

law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in

3

determining whether a state court decision is an objectively unreasonable application of clearly

4

established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) (“While only

5

the Supreme Court’s precedents are binding . . . and only those precedents need be reasonably

6

applied, we may look for guidance to circuit precedents.”).

7

V. ANALYSIS OF PETITIONER’S CLAIMS

8

A. Claim I

9

In Claim I, Petitioner asserts that “the California Courts erred in failing to grant Singh a

10

new trial, because the newly discovered evidence of four witnesses called into serious questions

11

the identification at trial of Singh by several witnesses.” (Pet’r’s Mem. P. & A. at p. 9.) The last

12

reasoned decision on this Claim came from the two Superior Court decisions which analyzed

13

Petitioner’s state habeas petitions. In the first petition, the Superior Court stated the following::

14

In his Petition, Petitioner first alleges that his petition should be
granted due to the discovery of new evidence. Petitioner’s present
counsel made contact with three new witnesses. Each new witness
would testify that some of the prosecution’s witnesses told them
that it was not possible to identify the shooters and Petitioner was
identified as a shooter simply because of his involvement in the
brawl at the Kabadi tournament. Also, the new witnesses heard
comments that Petitioner was not involved in the shooting and
these comments were made in the presence of some of the
prosecution’s witnesses and they did not contradict these
statements. Hence, the testimony of these new witnesses would
effectively impeach the testimony of the eye witnesses the
prosecution called to the stand.

15
16
17
18
19
20
21
22
23
24
25
26

[N]ewly discovered evidence is a basis for relief
only if it undermines the prosecution’s entire case.
It is not sufficient that the evidence might have
weakened the prosecution case or presented a more
difficult question for the judge or jury. (In re Hall
(1981) 30 Cal.3d 408, 417 [179 Cal.Rptr. 223, 637
P.2d 690]; In re Weber (1974) 11 Cal.3d 703, 724
[114 Cal.Rptr. 429, 523 P.2d 229]; In re Branch
(1969) 70 Cal.2d 200, 215 [74 Cal.Rptr. 238, 449
P.2d 174].) “[A] criminal judgment may be
collaterally attacked on the basis of ‘newly
6

1

discovered’ evidence only if the ‘new’ evidence
casts fundamental doubt on the accuracy and
reliability of the proceedings. At the guilt phase,
such evidence, if credited, must undermine the
entire prosecution case and point unerringly to
innocence or reduced culpability.” (People v.
Gonzalez (1990) 51 Cal.3d 1179, 1246 [275
Cal.Rptr. 729, 800 P.2d 1159].)

2
3
4
5

In re Clark (1993) 5 Cal.4th 750, 766, 21 Cal.Rprt.2d 509.)
6
Petitioner’s new evidence comes in the form of witnesses who can
provide nothing more than hearsay. Were this evidence to be
admitted, it would simply impeach the credibility of some of the
prosecution’s witnesses. This is not enough to point unerringly to
Petitioner’s innocence. At most, this new evidence would simply
weaken the prosecution case or present a more difficult question
for the trier of fact. Moreover, Petitioner indicates that the
prosecution’s case rested on the testimony of its eyewitnesses. A
review of the trial transcripts reveals that the prosecution also
presented evidence of Petitioner and Gadri’s respective cell phone
call records from the day of the shooting, which revealed phone
calls between Petitioner and Petitioner’s alibi during the time they
were supposedly together and calls from Petitioner’s cell phone to
his home phone when he was supposedly at home. Further, the
prosecution introduced evidence that Petitioner and Gadri’s friend
owned a vehicle identical to the one involved in the shooting. It
was also shown that the friend’s vehicle was washed and
vacuumed prior to the police showing up and then sold a month
later. Thus, even if Petitioner’s new evidence undermined the
testimony of the prosecution’s eyewitnesses, it does not undermine
the prosecution’s entire case.

7
8
9
10
11
12
13
14
15
16
17
18

In re Singh, Case No. SF 102738C, slip op. at p. 1-2 (Super. Ct. Cal. County San Joaquin filed

19

June 9, 2009).

20
21
22
23
24
25
26

With respect to Petitioner’s second state habeas petition, the Superior Court stated the
following with respect to the remaining part of Claim I:
In the most recent Petition, Petitioner contends that he has
additional newly discovered evidence. The evidence is another
“new” witness, Sarwan Singh, who provided a declaration for this
petition. According to Sarwan’s declaration, two weeks after
Petitioner was found guilty, Sarwan had a face-to-face
conversation with Gulwinder Singh, one of the prosecution’s
eyewitnesses. Sarwan questioned Gulwinder as to if he actually
saw “Gadri” (Petitioner’s co-defendant) as one of the shooters.
Gulwinder said he identified Gadri because it “looked like him”
7

1
2
3
4

and on the day of the shooting, Gadri had been involved in a fight
at the Kabadi tournament. Also, Gadri’s bad appearance and
conduct at the trial convinced Gulwinder that Gadri was guilty.
Sarwan further states that he secretly recorded this conversation
and is still in possession of the recording.

13

[N]ewly discovered evidence is a basis for relief
only if it undermines the prosecution’s entire case.
It is not sufficient that the evidence might have
weakened the prosecution case or presented a more
difficult question for the judge or jury. (In re Hall
(1981) 30 Cal.3d 408, 417 [179 Cal.Rptr. 223, 637
P.2d 690]; In re Weber (1974) 11 Cal.3d 703, 724
[114 Cal.Rptr. 429, 523 P.2d 229]; In re Branch
(1969) 70 Cal.2d 200, 215 [74 Cal.Rptr. 238, 449
P.2d 174].) “[A] criminal judgment may be
collaterally attacked on the basis of ‘newly
discovered’ evidence only if the ‘new’ evidence
casts fundamental doubt on the accuracy and
reliability of the proceedings. At the guilt phase,
such evidence, if credited, must undermine the
entire prosecution case and point unerringly to
innocence or reduced culpability.” (People v.
Gonzalez (1990) 51 Cal.3d 1179, 1246 [275
Cal.Rptr. 729, 800 P.2d 1159].)

14

In re Clark (1993) 5 Cal.4th 750, 766, 21 Cal.Rprt.2d 509.)

15

Just as in Petitioner’s first Petition for Writ of Habeas Corpus,
Petitioner’s new evidence comes in the form of a witness who can
provide nothing more than hearsay. Were this evidence to be
admitted, it would simply impeach the credibility of one of the
prosecution’s witnesses. This is not enough to point unerringly to
Petitioner’s innocence. At most, this new evidence would simply
weaken the prosecution case or present a more difficult question
for the trier of fact. Moreover, Petitioner indicates that the
prosecution’s case rested on the testimony of its eyewitnesses. A
review of the trial transcripts reveals that the prosecution also
presented evidence of Petitioner and Gadri’s respective cell phone
call records from the day of the shooting, which revealed phone
calls between Petitioner and Petitioner’s alibi during the time they
were supposedly together and calls from Petitioner’s cell phone to
his home phone when he was supposedly at home. Further, the
prosecution introduced evidence that Petitioner and Gadri’s friend
owned a vehicle identical to the one involved in the shooting. It
was also shown that the friend’s vehicle was washed and
vacuumed prior to the police showing up and then sold a month
later. Thus, even if Petitioner’s new evidence undermined the
testimony of the prosecution’s eyewitnesses, it does not undermine
the prosecution’s entire case. Finally, a careful read of Sarwan’s
declaration “explains” why Gulwinder identified Gadri, but no

5
6
7
8
9
10
11
12

16
17
18
19
20
21
22
23
24
25
26

8

1

explanation is given as to why he identified Petitioner.

2

In re Singh, Case No. SF 102738C, slip op. at p. 1-2 (Super. Ct. Cal. County San Joaquin filed

3

Aug. 25, 2009) (emphasis in original).

4

The United States Supreme Court has expressly left open the question of whether an

5

actual innocence claim based on newly discovered evidence is cognizable for federal habeas

6

review in a non-capital case. See Dist. Attorney’s Office for Third Judicial Dist. v. Osbourne,

7

129 S.Ct. 2308, 2321 (2009) (stating whether federal constitutional right to be released upon

8

proof of “actual innocence” is an open question); Herrera v. Collins, 506 U.S. 390, 400 (1993)

9

(“Claims of actual innocence based on newly discovered evidence have never been held to state a

10

ground for federal habeas relief absent an independent constitutional violation occurring in the

11

underlying state proceeding.”). In the absence of Supreme Court authority establishing the

12

cognizability of a freestanding actual innocence claim on federal habeas review, the state court’s

13

rejection of this Claim could not be contrary to, or involve an unreasonable application of clearly

14

established federal law. See Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given the lack of

15

holdings from the Court regarding the [issue in dispute,] it cannot be said that the state court

16

‘unreasaonabl[y] appli[ed] clearly established Federal law.’”) (quoting 28 U.S.C. § 2254(d)(1));

17

Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) (“If no Supreme Court precedent creates

18

clearly established federal law relating to the legal issue the habeas petitioner raised in state

19

court, the state court’s decision cannot be contrary to or an unreasonable application of clearly

20

established federal law.” (citation omitted)).

21

Nevertheless, even if Petitioner did state a cognizable federal habeas argument within

22

Claim I, he still would not be entitled to federal habeas relief. The threshold to make out a

23

successful freestanding claim of actual innocence is “extraordinarily high” and the showing

24

needs to be “truly persuasive.” See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997).

25

Accordingly, “a habeas petitioner asserting a freestanding innocence claim must go beyond

26

demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.”
9

1

Id. (citing Herrera, 506 U.S. at 442-44 (Blackmun, J., dissenting)). Petitioner fails to make this

2

showing. Petitioner’s “newly discovered” evidence are affidavits from witnesses based on

3

hearsay. The Supreme Court has observed that affidavits based on hearsay are particularly

4

suspect because they are obtained without the benefit of cross-examination and the ability to

5

make credibility determinations. See Herrera, 506 U.S. at 417. The affidavits do not

6

affirmatively prove that he is probably innocent. Therefore, Petitioner is not entitled to federal

7

habeas relief on Claim I even if it did raise a cognizable federal habeas argument.

8

B. Claim II

9

In Claim II, Petitioner argues that his:

10
11
12

Federal constitutional right to effective assistance of counsel under
the Sixth and Fourteenth Amendments were violated by the actions
of his trial counsel during the state proceedings, when trial counsel
failed to secure the testimony of a critical witness, and when trial
counsel failed to object to the introduction by the state prosecutor
of prejudicial hearsay testimony.

13
14

(Pet’r’s Pet. at p. 7.) The last reasoned decision on these ineffective assistance of counsel

15

arguments was from the California Superior Court which analyzed Petitioner’s first habeas

16

petition. That court stated the following in analyzing Petitioner’s arguments:

17
18
19
20
21
22
23
24
25
26

Petitioner’s second grounds for requesting habeas corpus is
ineffective assistance of council. [sic] Petitioner claims that his
attorney failed to secure the extremely favorable and exonerating
testimony from Amritpal Singh. At the time of the shooting,
Amritpal was a 15 year old boy who was among the group in the
parking lot when the gun fire erupted. After the shooting, Amritpal
gave a statement to the police in which his description of the
backseat shooter did not match either Petitioner or Gadri. On
November 16, 2006, Amritpal reiterated his original statement to
the investigator hired by Petitioner’s then attorney. He further told
this investigator that he had seen pictures of the two men arrested
for the shooting and neither one of them was the man he saw
shooting from the backseat of the vehicle.
On February 22, 2007, Amritpal maintained his version of the facts
during his direct testimony at Petitioner and Gadri’s preliminary
hearing. During Amritpal’s cross-examination at this hearing, the
court took a break from proceedings which were set to resume the
following day. However, when court resumed the next morning,
10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Amritpal did not appear; instead, Amritpal’s aunt and father
appeared and informed the court that due to the stress of the
situation, Armritpal was unable to attend. This led to six (6)
continuances for resumption of Amritpal’s testimony, but he never
appeared. On May 22, 2007, the court refused any further
continuances, struck Amritpal’s testimony, and held Petitioner and
Gadri to answer to the charges.
On November 14, 2007, at Petitioner and Gadri’s second trial [FN
1], pursuant to a motion submitted by Petitioner’s counsel, the
court entered an Order directing the County Sheriff to serve a
defense subpoena on Amritpal based on the showing that he was
concealing himself to avoid service of subpoena. Pursuant to said
Order, on November 20, 2007, a deputy sheriff served a subpoena
on Amritpal’s father for Amritpal to appear in court as a witness.
Amritpal’s father failed to appear, and on February 20, 2008, the
court issued a bench warrant for his arrest.
[FN 1] Petitioner and Gadri’s first trial ended in a
hung jury. Their second trial ended in a mistrial due
to a conflict of interest for Petitioner’s counsel. The
third trial ended in a jury verdict of guilty on all
counts.
At Petitioner and Gadri’s third trial, the issue of Amritpal’s
testimony was discussed several times. Although defense counsel
maintained that Amritpal’s testimony was crucial to the defense,
after much discussion and several attempts, Amritpal never took
the stand.
Accordingly, it is Petitioner’s position that his attorney’s failure to
secure Amritpal’s testimony and call Amritpal as a witness at trial
amounts to ineffective assistance of counsel. Petitioner contends
that “it was incumbent on defense counsel to take every step
necessary to secure his attendance at trial.” As such, his attorney
should have made initial attempts to subpoena the witness for the
2008 trial and counsel should have also taken the necessary steps
to provide the necessary information to the police and sheriff
departments to serve the warrant issued on February 20, 2008.
Hence, Petitioner argues that counsel’s failure to follow these
recognized avenues to insure Amritpal testified in trial amounts to
ineffective assistance of counsel.

22
23
24

Moreover, Petitioner asserts that omission of Amritpal’s testimony
prejudiced Petitioner’s defense. The testimony was extremely
favorable and exonerating and would have also effectively
impeached the reliability and accuracy of the eyewitnesses’
identification of Petitioner and Gadri.

25
26

A claim of ineffective assistance of counsel has two
components: “‘First, the defendant must show that
11

1
2
3
4
5
6
7
8
9
10
11
12
13
14

counsel’s performance was deficient. This requires
showing that counsel made errors so serious that
counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient
performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose
result is reliable.’ [Citation.] [¶] To establish
ineffectiveness, a ‘defendant must show that
counsel’s representation fell below an objective
standard of reasonableness.’ [Citation.] To
establish prejudice he ‘must show that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.’ [Citation.]” (Williams
v. Taylor (2000) 529 U.S. 362, 390-391, 120 S.Ct.
1495, 1511-1512, 146 L.Ed.2d 389, citing
Strickland v. Washington (1984) 466 U.S. 668, 694,
104 S.Ct. 2052, 80 L.Ed.2d 674; In re Jones (1996)
13 Cal.4th 552, 561, 54 Cal.Rptr.2d 52, 917 P.2d
1175.) The ineffectiveness must “deprive the
defendant of a substantive or procedural right to
which the law entitles him.” (Williams v. Taylor,
supra, 529 U.S. at p. 393, 120 S.Ct. At p. 1513, fn.
omitted.)

15
16
17
18
19
20
21
22

In re Vargas (2000) 83 Cal.App.4th 1125, 1132-1133, 100
Cal.Rptr.2d 265.
First, Petitioner claims that his attorney should have subpoenaed
Amritpal prior to the start of the 2008 trial. However, Petitioner
fails to show that defense counsel’s decision to obtain a bench
warrant for Amritpal’s father, rather than a subpoena for Amritpal,
was anything more than a trial tactic.
Second, Petitioner asserts that although the bench warrant was
issued, defense counsel was obligated to ensure it the police and
sheriff’s departments had the necessary information to execute the
warrant. However, Petitioner provides no evidence to this claim
and himself admits that “[i]t is not clear if that information was
ever provided. . .”

23
24
25
26

Third, Petitioner has failed to show that there is a reasonable
probability that Amritpal’s testimony would have resulted in a
different outcome for Petitioner. Assuming Amritpal would have
testified as Petitioner claims he would have, this testimony would
have only served to impeach the credibility of some of the
prosecution’s witnesses. It would not have undermined the
12

1

prosecution’s entire case.

2

Finally, Petitioner also argues that he had ineffective assistance of
counsel because defense counsel failed to object to repeated
admissions of multiple hearsay statements. According to
Petitioner, “Counsel was also ineffective in failing to object to
hearsay testimony from several investigating officers. Testimony
was objectionable, and its admission tended to improperly bolster
the testimony of eyewitnesses. Reasonably competent counsel
would have objected to this testimony and the failure to do so
prejudiced [P]etitioner’s defense.”

3
4
5
6
7

Just like above, Petitioner has failed to show that defense counsel’s
actions were anything other than trial tactics. Furthermore, once
again, Petitioner has not shown that had the trial judge sustained
such hearsay objections, that the absence of such testimony would
have changed the ultimate result of the proceedings. Petitioner
himself states in his petition that the testimony simply bolstered the
testimony of eyewitnesses. However, Petitioner has not shown that
a lack of this bolstering would have changed the outcome. Again,
Petitioner ignores the fact that the prosecution put on other
evidence besides the testimony of eyewitnesses.

8
9
10
11
12
13

In re Singh, Case No. SF 102738C, slip op. at p. 2-4 (Super. Ct. Cal. County San Joaquin filed

14

June 9, 2009).

15

The Sixth Amendment guarantees effective assistance of counsel. In Strickland v.

16

Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating

17

ineffective assistance of counsel. First, the petitioner must show that considering all the

18

circumstances, counsel’s performance fell below an objective standard of reasonableness. See id.

19

at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result

20

of reasonable professional judgment. See id. at 690. The federal court must then determine

21

whether in light of all the circumstances, the identified acts or omissions were outside the range

22

of professional competent assistance. See id. “[C]ounsel is strongly presumed to have rendered

23

adequate assistance and made all significant decisions in the exercise of reasonable professional

24

judgment.” Id.

25
26

Second, a petitioner must affirmatively prove prejudice. See id. at 693. Prejudice is
found where “there is a reasonable probability that, but for counsel’s unprofessional errors, the
13

1

result of the proceeding would have been different.” Id. at 694. A reasonable probability is “a

2

probability sufficient to undermine the confidence in the outcome.” Id. “The likelihood of a

3

different result must be substantial, not just conceivable.” Harrington v. Richter, __ U.S. __, 131

4

S.Ct 770, 792, 178 L.Ed.2d 624 (2011). A reviewing court “need not determine whether

5

counsel’s performance was deficient before examining the prejudice suffered by defendant as a

6

result of the alleged deficiencies . . . [i]f it is easier to dispose of an ineffectiveness claim on the

7

ground of lack of sufficient prejudice . . . that course should be followed.” Pizzuto v. Arave, 280

8

F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 697). When analyzing a claim for

9

ineffective assistance of counsel where a state court has issued a decision on the merits, a habeas

10

court’s ability to grant the writ is limited by two “highly deferential” standards. Premo v. Moore,

11

__ U.S. __, 131 S.Ct. 733, 740, 178 L.Ed.2d 649 (2011). “When § 2254(d) applies the question

12

is not whether counsel’s actions were reasonable. The question is whether there is any

13

reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. (internal

14

quotation marks and citation omitted); see also Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)

15

(“Under § 2254(d)’s ‘unreasonable application’ clause, a federal habeas court may not issue the

16

writ simply because that court concludes in its independent judgment that the state-court decision

17

applied Strickland incorrectly. Rather, it is the habeas applicant's burden to show that the state

18

court applied Strickland to the facts of his case in an objectively unreasonable manner.”)

19

(citations omitted).

20

In order to show ineffective assistance of counsel, the Petitioner must show that the

21

particular witness was willing to testify, see United States v. Harden, 846 F.2d 1229, 1231-32

22

(9th Cir. 1988); would have testified, see Allen v. Woodford, 366 F.3d 823, 846 n. 2 (9th Cir.

23

2004), amended by, 395 F.3d 979, 1002 n. 2 (9th Cir. 2005); what their testimony would have

24

been, see United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987); and that their testimony

25

would have been sufficient to create a reasonable doubt of guilt. See Tinsley v. Borg, 895 F.2d

26

520, 532 (9th Cir. 1990). Petitioner fails to show that Amritpal would have testified at trial. The
14

1

record indicated that Amritpal would not have testified at trial. There was a subpoena issued for

2

his appearances along with six continuances which were ordered to obtain his presence.

3

Furthermore, a warrant was also issued and given to his father in an attempt to obtain Amritpal’s

4

presence at trial. Thus, Petitioner fails to show that Amritpal would have testified at trial. The

5

record as described above indicates that Amritpal would not have testified at trial. Accordingly,

6

under these circumstances, Petitioner fails to show that he is entitled to federal habeas relief on

7

this portion of Claim II.

8
9
10

Next, Petitioner argues as follows:
Counsel for Pardeep Singh was ineffective at trial for failing to at
least keep out of evidence the repeated, hearsay testimony of law
enforcement agents, who the prosecutor used to buttress the
questionable testimony of its witnesses.

11
12
13
14
15
16
17
18
19
20

At trial, the prosecutor introduced, without objection, (a) hearsay
testimony from Detective Reyes that Satwinder Gill told him that
the shooter wore a colored turban; (b) hearsay testimony from
Officer Hutto that Raghbir Shergill told him that the argument at
the kabaddi tournament might have led to the shooting, the color
and make of the car carrying the shooters, the path it took, and how
many people were injured; (c) hearsay testimony from Officer
Berry about descriptions of the shooters and the car from Santokh
Judge, Behar Ranu, and Gurdeep Shergill; (d) hearsay testimony
from Detective McDonald about statements from Belhar Ranu,
Santokh Judge, and Gary Shergill, about the argument at the
tournament and descriptions of the shooters and the car involved;
and (e) hearsay testimony from Detective Faine about statements
from Belhar Ranu, Gary Shergill, and Gurdeep Shergill about the
argument at the tournament and descriptions of the shooters and
the car involved.
(Pet’r’s Mem. P. & A. at p. 23-24.)

21

Petitioner’s argument centers around the statements that the police testified the

22

eyewitnesses told them regarding the shooting. However, the police officers’ testimony was

23

largely cumulative of the eyewitness testimony at trial. Eyewitnesses testified at trial regarding

24

the identification of the shooters, the car involved in the shooting and the argument at the

25

kabaddi tournament. By way of example only, Satwinder Gill testified at trial that Petitioner was

26

wearing a yellowish color turban. (See Reporter’s Tr. at p. 124.) Raghbir Shergill testified about
15

1

the argument at the kabaddi tournament, the color and make of the car that did the shooting as

2

well as the people that were injured by the shooting. (See id. at p. 710, 719, 721). Belhar Ranu

3

and Gurdeep Shergill testified at trial and identified Petitioner as a shooter. (See id. at p. 569-70,

4

820.) Ranu testified about the argument at the kabaddi tournament. (See id. at p. 598-99).

5

Additionally, Ranu and Judge described the color and make of the car where the shots came

6

from. (See id. at p. 578, 782.)

7

The failure to object to the purported hearsay testimony of what these witnesses told the

8

officers did not prejudice Petitioner. See Delgadillo v. Woodford, 527 F.3d 919, 930 n. 4 (9th

9

Cir. 2008) (ineffective assistance claim failed on the merits where the testimony was largely

10

cumulative). As the above citations indicate, several eyewitnesses directly testified as to the

11

argument at the kabaddi tournament, the color and make of the car, and perhaps most importantly

12

describing Petitioner as one of the shooters. Petitioner fails to show to a reasonable probability

13

that the outcome of the proceeding would have been different had counsel objected to the police

14

officers’ testimony on what these witnesses told them when they were questioned. These

15

witnesses testified at trial and what they told the police was largely cumulative of their trial

16

testimony which was not hearsay. Additionally, as previously noted, multiple eyewitnesses

17

identified Petitioner as the shooter at trial. As previously noted, to show prejudice, the likelihood

18

of a different result must be substantial, not just conceivable. See Harrington, 131 S.Ct. at 792.

19

Petitioner fails to meet that standard. For the foregoing reasons, this ineffective assistance of

20

counsel argument does not merit federal habeas relief.

21
22

VI. CONCLUSION
For the reasons discussed in this Order, Petitioner is not entitled to federal habeas relief.

23

Should petitioner wish to appeal to appeal the court’s decision, a certificate of appealability must

24

issue. See 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue where “the applicant

25

has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

26

The certificate of appealability must “indicate which specific issue or issues satisfy” the
16

1
2

requirement. 28 U.S.C. § 2253(c)(3).
A certificate of appealability should be granted for any issue that petitioner can

3

demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different

4

court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford,

5

290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In

6

this case, however, Petitioner failed to make a substantial showing of the denial of a

7

constitutional right with respect to any issue presented.

8

Accordingly, IT IS HEREBY ORDERED that:

9

1.

Petitioner’s petition for writ of habeas corpus is DENIED;

10

2.

A certificate of appealability shall not issue; and

11

3.

The Clerk is directed to close this case.

12

DATED: April 6, 2012

13
14
15

TIMOTHY J BOMMER
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22
23
24
25
26
17