Cornish v. Attorney General of the State of California

Filing 19

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/9/2014 RECOMMENDING that petitioner's 1 application for writ of habeas corpus be denied. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE CORNISH,

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Petitioner,

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No. 2:12-cv-2460-MCE-EFB P

v.
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,

FINDINGS AND RECOMMENDATIONS

Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction entered against him on

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July 16, 2010 in the Sacramento County Superior Court on charges of attempted murder and

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discharge of a firearm, with firearm use enhancements. He seeks federal habeas relief on the

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ground that his trial counsel rendered ineffective assistance by failing to investigate and present a

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defense of voluntary intoxication. Upon careful consideration of the record and the applicable

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law, it is recommended that petitioner’s application for habeas corpus relief be denied.

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I.

Background
In its unpublished memorandum and opinion affirming petitioner’s judgment of

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conviction on appeal, the California Court of Appeal for the Third Appellate District provided the

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following factual summary:

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On the night of March 12, 2008, defendant Jesse Cornish shot Jabarie Mike
in front of Mike’s home and continued firing as Mike retreated into his residence.
Defendant was convicted of attempted murder (Pen. Code, §§ 664/187, subd. (a))
and discharging a weapon at an inhabited dwelling (Pen. Code, § 246).1 The jury
also found that defendant personally used and discharged a firearm (§§ 12022,
subd. (b)(1), 12022.53, subds. (b), (c) & (d)) and caused great bodily injury (§
12022.7, subd. (a)). The trial court sentenced defendant to an aggregate term of 32
years to life in state prison.2

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Defendant shot Mike as the result of a verbal altercation between Mike and
defendant’s girlfriend, Arika Shaw. Mike worked with Shaw at an Applebee’s
restaurant in Elk Grove. On March 11, 2008, Mike complained to Shaw about a
coworker, Kjerstie Montgomery. When Shaw defended her, Mike stated she
should not be so quick to do so because Montgomery was not a good friend to
Shaw. In support of his claim, he related that Montgomery inappropriately had
shared with him a confidence about Shaw’s sex life. Shaw became angry with
Mike and went outside. Defendant was in the parking lot waiting to pick up Shaw
when her shift ended. Shaw told defendant about the altercation and then went
back inside.
Mike left to run an errand. Defendant confronted him and asked if he had a
problem with Shaw. Mike denied having a problem and cut off the conversation to
go run his errand. Shaw finished her shift and left work with defendant.
Thereafter, Mike telephoned her repeatedly and complained about defendant’s
conduct. Mike said he wanted to fight defendant and Shaw hung up on him. Mike
called back again and defendant took the phone from Shaw and spoke with him.
Mike yelled at defendant about the confrontation at work but defendant remained
calm.
Thereafter, defendant decided he wanted to fight Mike, asked Shaw to
show him where he lived, and she complied. When they arrived at Mike’s house,
defendant pulled out a gun, claiming it was only for self-defense if necessary.
Defendant got out of the car but then changed his mind about fighting with Mike,
telling Shaw he did not “want to do that in front of [her].”
The next night, Mike worked the night shift with Shaw and Montgomery,
and the atmosphere was “flat.” Montgomery told Mike her boyfriend had just
been released from jail and Mike should not have “opened up [his] mouth.” Mike
also felt threatened by defendant’s conduct the day before. Because he feared for
his safety, Mike called his girlfriend’s brother, Frederick Coner, to come to

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Undesignated section references are to the Penal Code.

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We note that the recent amendments to sections 2933 and 4019 do not apply to
defendant because he was convicted of violent and serious felonies. (§§ 667.5, subd. (c), 1192.7,
subd. (c), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 20092010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28,
2010].)
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Applebee’s and escort him home after work. Coner arrived and the two men drove
to Mike’s home in their respective cars after Mike’s shift ended around 9:00 p.m.
Mike lived nearby in a house he shared with his girlfriend, her mother, and
three other people. When Coner decided to leave he discovered his car would not
start. Around 10:30 p.m., Mike was helping Coner jump his car battery when he
noticed a small red car do a U-turn and stop across the street. Two men exited the
car and approached Mike, who was still wearing his Applebee’s uniform. One of
the men, who Mike later identified as defendant, had a “mean mug” expression.
Defendant walked toward Mike, raised his arm, and began firing the gun he was
holding. Mike turned and ran towards the house, but was shot through the thigh
before he reached safety. Defendant continued shooting at the house after Mike
went inside.
Neighbors heard multiple gunshots about 10:30 p.m., witnessed a red car
speeding away, and called 9-1-1 to report a shooting. When the police responded,
they found Mike wounded and several slugs in the structure of the house.
Mike spoke briefly with the police before being transported to the hospital
and spoke with them again at the hospital. He did not remember exactly what he
said because he was in pain and in shock. Mike recalled telling a police officer
that a light skinned black man shot him and he was accompanied by a Hispanic
male. At that time he did not tell the police he thought the shooter was defendant.
However, when a detective visited him at home midday the next day, Mike told
the detective that he thought Shaw’s boyfriend shot him and that if he saw him he
could identify him. A few days after the shooting, Mike viewed a photographic
lineup and selected defendant as his assailant. Mike could not identify the man
who accompanied defendant, and Coner was unable to identify anyone from the
lineup. At trial, Mike adamantly identified defendant as his assailant.
Detectives Sanchez and Bearor questioned defendant, who waived his
Miranda rights. Defendant denied shooting Mike and claimed he did not know
where he lived. Defendant stated that on the night of the shooting, he drove from
his mother’s house in Rancho Cordova to the Applebee’s in Elk Grove to return
Shaw’s car around 7:00 p.m. Then he went to Fresno with his brothers, Meshach
and Ammiel, and Ammiel’s girlfriend in her car. According to defendant, a trip to
Fresno takes about 90 minutes. When they reached Fresno, they ran a few errands
for about 30 minutes before returning to his mother’s house in Rancho Cordova.
They arrived back about 10:00 or 10:30 p.m. Defendant called Shaw around 10:40
p.m. and asked her to pick him up after her shift ended. Defendant stated he had
his cell phone with him during the trip.
Cell phone records and signals from nearby cell phone towers indicated
that defendant did not go to Fresno. Rather, Shaw called defendant when Mike
left the restaurant around 9:00 p.m., after which defendant’s cell phone (and
presumably defendant) traveled from Rancho Cordova to Elk Grove. Defendant
was in the vicinity of Mike’s house when Mike was shot. Defendant then traveled
back to Rancho Cordova.
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Defendant’s mother, Priscilla Cornish, owns a red Hyundai and Mike’s
assailants were in a small red car. Cornish works at an assisted living facility in El
Dorado Hills. Her work shift is four days, for 24 hours a day, beginning on
Wednesday and ending on Sunday. Cornish testified that sometimes one of her 16
children would drive her to work in her car and then pick her up several days later
when her shift ended. According to Cornish, she drove herself to work on
Wednesday, March 12, 2008. According to Cornish’s supervisor, however, the red
car was not parked at the facility on Thursday morning and she did not see it until
she arrived at work on Friday morning. Defendant’s cell phone records indicate he
went to El Dorado Hills on the evening of Thursday, March 13.
Shaw, who pleaded guilty to being an accessory after the fact, testified as a
prosecution witness pursuant to the terms of her plea agreement. Shaw related her
verbal altercation with Mike, admitted taking defendant to Mike’s house the night
before the shooting, and testified defendant had a gun. She stated that defendant
came with her to work on March 12 and his brother followed in their mother’s red
Hyundai. Defendant wanted to confront Mike but Shaw told them, “This is my
job. Take it somewhere.” Defendant left with his brother, but subsequently
contacted Shaw and asked her to let him know when Mike left the restaurant.
Shaw did so and then became concerned when she heard sirens, saw “cop cars
flying on the freeway,” and she received a text telling her to erase all of her
messages.
Shaw went to defendant’s house in Rancho Cordova around 11:30 p.m.,
after her shift ended. She was waiting for defendant outside in her car when he
suddenly appeared next to her car. They went inside, where around 10 people had
gathered and were all “amped.” Shaw and defendant left and went to her house.
Shaw did not know that Mike had been shot and defendant did not mention it. The
next day, Mike told her about the shooting and said he thought defendant was the
assailant.
ECF No. 13, Opinion at 1-3.

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Petitioner subsequently raised his ineffective assistance of counsel claim in a petition for

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writ of habeas corpus filed in the California Superior Court. ECF No. 1 at 30-31, Opinion dated

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Mar. 26, 2012. The Superior Court denied the petition, reasoning as follows:

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A petitioner seeking relief by way of habeas corpus has the burden of
stating a prima facie case. (In re Bower (1985) 38 Cal.3d 865, 872.) A petition
should attach as exhibits all reasonably available documentary evidence or
affidavits supporting the claim. (People v. Duvall (1995) 9 Cal.4th 464, 474.) To
show constitutionally inadequate assistance of counsel, a defendant must show that
counsel’s representation fell below an objective standard and that counsel’s failure
was prejudicial to the defendant. (In re Alvernaz (1992) 2 Cal.4th 924, 937.) It is
not a court’s duty to second-guess trial counsel and great deference is given to trial
counsel’s tactical decisions. (In re Avena (1996) 12 Cal.4th 694,722.) Actual
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prejudice must be shown, meaning that there is a reasonable probability that, but
for the attorney’s error(s), the result would have been different. (Strickland v.
Washington (1984) 466 U.S. 668, 694.) To evaluate a claim of failing to
investigate a possible defense, a court must examine the reasonableness of the
investigation in light of counsel’s actual strategy. (In re Lucas (2004) 33 Cal. 4th
682, 725.) It is not sufficient for a petitioner to show that counsel could have
conducted a more thorough investigation. The more important issue is whether it
was reasonable to “forgo further investigation in light of the defense strategy
counsel ultimately adopted.” (In re Andrews (2002) 28 Cal.4th 1234, 1255.)
Petitioner’s 2010 conviction of attempted murder, discharge of a firearm,
and firearm use enhancements was affirmed on appeal in August 2011 and became
final in November 2011. Petitioner now claims that although he informed trial
counsel that on March 12, 2008, the date of the charged offenses, he had been
heavily abusing alcohol, marijuana and PCP, counsel did not investigate or present
any evidence of Petitioner’s intoxication. He further states that using those
substances often rendered him unable to recall what he had done or where he had
been. In addition to his own declaration, he has attached the declarations of two
potential corroborating witnesses, Harvey Alvarez and Keith Gibson. Alvarez and
Gibson state that they were with Petitioner at Petitioner's mother's home in Rancho
Cordova on March 12 and that Petitioner consumed large amounts of alcoholic
beverages and smoked marijuana and PCP in the afternoon and up until
approximately 9 or 9:30 p.m., which would have preceded the 10:30 p.m.
shooting. Petitioner argues that evidence of voluntary intoxication would have
been relevant to disprove intent to commit attempted murder.
Petitioner fails to acknowledge that he initially told detectives that he was
in Fresno at the time of the shooting, but that his cell phone records indicated that
he was in the vicinity of the victim Jabarie Mike’s residence in Elk Grove, where
and when Mike was shot. Due to the absence of witnesses who could corroborate
Petitioner’s alibi and the contradictory cell phone records, counsel adopted a
defense of misidentification based on Mike’s failure to immediately identify
Petitioner at the hospital and a witness’s inability to identify any perpetrators from
a lineup. Petitioner now proposes that instead of the defense of mistaken
identification, defense counsel should have presented a defense of voluntary
intoxication. First, the mere fact that counsel did not present the defense does not
mean that he failed to investigate the defense. As with the defense of alibi,
counsel may [have] determined that it was not reasonable to pursue that defense.
Second, even if counsel’s failure to investigate and/or present evidence was
unreasonable, Petitioner has not shown that he was prejudiced. At trial, Mike
“adamantly” identified Petitioner as the perpetrator; Petitioner’s then-girlfriend
testified about Petitioner’s verbal altercation with Mike, showing Petitioner where
Mike lived, and telling Petitioner she did not want him to confront Mike at her
workplace on the day of the shooting; and according to the opinion on appeal, “the
evidence of [Petitioner’s] guilt was overwhelming.” Given the evidence of
Petitioner’s conduct and motive, he has not shown that counsel’s conduct resulted
in prejudice to his case.

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Id. Petitioner subsequently raised his ineffective assistance of counsel claim in petitions for a

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writ of habeas corpus filed in the California Court of Appeal and California Supreme Court. ECF

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Nos. 14, 18 (“Lodged Docs.”) 14, 16. Those petitions were summarily denied. Id., Nos. 15, 17.

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II.

Analysis

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A.

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An application for a writ of habeas corpus by a person in custody under a judgment of a

Standards of Review Applicable to Habeas Corpus Claims

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

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U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

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application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010);

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Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir.

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2000).

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Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:

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An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim -

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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.

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For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

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holdings of the United States Supreme Court at the time of the last reasoned state court decision.

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Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S.

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___, 132 S. Ct. 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v.

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Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, “circuit court precedent may be persuasive in

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determining what law is clearly established and whether a state court applied that law

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unreasonably.” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir.

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2010)).
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A state court decision is “contrary to” clearly established federal law if it applies a rule

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contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

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precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).

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Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the

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writ if the state court identifies the correct governing legal principle from the Supreme Court’s

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decisions, but unreasonably applies that principle to the facts of the prisoner’s case.1 Lockyer v.

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Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002

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(9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that

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court concludes in its independent judgment that the relevant state-court decision applied clearly

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established federal law erroneously or incorrectly. Rather, that application must also be

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unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473

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(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent

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review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”).

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“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as

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‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

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Richter, 562 U.S.___, ___, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541

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U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal

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court, a state prisoner must show that the state court’s ruling on the claim being presented in

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federal court was so lacking in justification that there was an error well understood and

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comprehended in existing law beyond any possibility for fairminded disagreement.” Richter,131

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S. Ct. at 786-87.

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If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

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court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

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527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

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(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of

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Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
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§ 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by

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considering de novo the constitutional issues raised.”).

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The court looks to the last reasoned state court decision as the basis for the state court

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judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If

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the last reasoned state court decision adopts or substantially incorporates the reasoning from a

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previous state court decision, this court may consider both decisions to ascertain the reasoning of

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the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When

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a federal claim has been presented to a state court and the state court has denied relief, it may be

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presumed that the state court adjudicated the claim on the merits in the absence of any indication

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or state-law procedural principles to the contrary.” Richter, 131 S. Ct. at 784-85. This

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presumption may be overcome by a showing “there is reason to think some other explanation for

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the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797,

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803 (1991)). Similarly, when a state court decision on a petitioner’s claims rejects some claims

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but does not expressly address a federal claim, a federal habeas court must presume, subject to

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rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___,

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___, 133 S. Ct. 1088, 1091 (2013).

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Where the state court reaches a decision on the merits but provides no reasoning to

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support its conclusion, a federal habeas court independently reviews the record to determine

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whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

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Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

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review of the constitutional issue, but rather, the only method by which we can determine whether

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a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no

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reasoned decision is available, the habeas petitioner still has the burden of “showing there was no

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reasonable basis for the state court to deny relief.” Richter, 131 S. Ct. at 784.

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When it is clear, however, that a state court has not reached the merits of a petitioner’s

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claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

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habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462

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F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
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B.

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Petitioner claims that on the day of the shooting, he “had been engaged in the heavy use of

Petitioner’s Ineffective Assistance of Counsel Claim

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alcohol, marijuana, and PCP . . . .” ECF No. 1 at 14.2 He claims he was “so intoxicated” that he

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“could not clearly recall” the events of the day, and that he so informed his trial counsel. Id.

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Petitioner’s claim for federal habeas relief is that his trial counsel rendered ineffective assistance

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in failing to investigate and present evidence of his voluntary intoxication. Id. at 4. Petitioner

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argues that such evidence could have negated the intent element on the attempted murder charge.

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Id. at 17.

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The clearly established federal law for ineffective assistance of counsel claims is

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Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant

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must show that (1) his counsel’s performance was deficient and that (2) the “deficient

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performance prejudiced the defense.” Id. at 687. Counsel is constitutionally deficient if his or

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her representation “fell below an objective standard of reasonableness” such that it was outside

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“the range of competence demanded of attorneys in criminal cases.” Id. at 687–88 (internal

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quotation marks omitted). “Counsel’s errors must be ‘so serious as to deprive the defendant of a

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fair trial, a trial whose result is reliable.’” Richter, 131 S. Ct. at 787-88 (quoting Strickland, 466

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U.S. at 687).

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A reviewing court is required to make every effort “to eliminate the distorting effects of

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hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

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conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 669; see Richter, 131 S.

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Ct. at 789. Reviewing courts must “indulge a strong presumption that counsel’s conduct falls

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within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. There

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is in addition a strong presumption that counsel “exercised acceptable professional judgment in

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all significant decisions made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing

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Strickland, 466 U.S. at 689). This presumption of reasonableness means that the court must “give

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the attorneys the benefit of the doubt,” and must also “affirmatively entertain the range of

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Page number citations refer to those assigned by the court’s electronic case management

system.
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possible reasons [defense] counsel may have had for proceeding as they did.” Cullen v.

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Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1407 (2011) (internal quotation marks and alterations

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omitted).

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Defense counsel has a “duty to make reasonable investigations or to make a reasonable

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decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. Counsel

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must, “at a minimum, conduct a reasonable investigation enabling him to make informed

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decisions about how best to represent his client.” Hendricks v. Calderon, 70 F.3d 1032, 1035 (9th

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Cir. 1995) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (internal citation and

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quotations omitted). See also Porter v. McCollum, 558 U.S. 30, ___, 130 S. Ct. 447, 453 (2009)

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(counsel’s failure to take “even the first step of interviewing witnesses or requesting records” and

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ignoring “pertinent avenues for investigation of which he should have been aware” constituted

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deficient performance). On the other hand, where an attorney has consciously decided not to

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conduct further investigation because of reasonable tactical evaluations, his or her performance is

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not constitutionally deficient. See Siripongs v. Calderon, 133 F.3d 732, 734 (9th Cir. 1998)

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(Siripongs II); Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998); Hensley v. Crist, 67

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F.3d 181, 185 (9th Cir. 1995). “A decision not to investigate thus ‘must be directly assessed for

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reasonableness in all the circumstances.’” Wiggins v. Smith, 539 U.S. 510, 533 (200) (quoting

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Strickland, 466 U.S. at 691).

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A reviewing court must “examine the reasonableness of counsel’s conduct ‘as of the time

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of counsel’s conduct.’” United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990) (quoting

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Strickland, 466 U.S. at 690). Furthermore, “‘ineffective assistance claims based on a duty to

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investigate must be considered in light of the strength of the government’s case.’” Bragg v.

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Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (quoting Eggleston v. United States, 798 F.2d 374,

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376 (9th Cir. 1986)). See also Rhoades v. Henry, 638 F.3d 1027, 1036 (9th Cir. 2011) (counsel

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did not render ineffective assistance in failing to investigate or raise an argument on appeal where

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“neither would have gone anywhere”)

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Under AEDPA, “[t]he pivotal question is whether the state court’s application of the
Strickland standard was unreasonable.” Richter, 131 S. Ct. at 785. “[B]ecause the Strickland
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standard is a general standard, a state court has even more latitude to reasonably determine that a

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defendant has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

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Prejudice is found where “there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different.” Strickland, 466

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U.S. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the

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outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.”

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Richter, 131 S. Ct. at 792.

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As set forth above, in considering his state habeas petition the Sacramento County
Superior Court observed that petitioner initially set up an alibi defense by telling the detectives

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that he did not know where Mike lived and that he was in Fresno at the time of the shooting.

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Because this alibi could not be corroborated, trial counsel presented a defense of mistaken

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identity due to Mike’s failure to immediately identify petitioner and another witness’ inability to

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identify anyone involved in the shooting. The Sacramento County Superior Court concluded that,

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like the alibi defense, trial counsel may have determined that it was not tactically wise to present

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a voluntary intoxication defense, as it would have been inconsistent with the defense of mistaken

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identification. Given these circumstances, petitioner has not shown that trial counsel’s decision to

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forego a voluntary intoxication defense amounted to deficient performance. See Butcher v.

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Marquez, 758 F.2d 373, 376-77 (9th Cir. 1985) (counsel was not ineffective in declining to

19

request instructions that conflicted with petitioner’s alibi defense).

20

The Sacramento County Superior Court also explained that “the mere fact that counsel did

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not present the defense does not mean that he failed to investigate the defense.” ECF No. 1 at 30-

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31, Opinion dated Mar. 26, 2012. Further, the court reasoned that “even if counsel’s failure to

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investigate and/or present evidence was unreasonable, Petitioner has not shown that he was

24

prejudiced,” citing to the “overwhelming” evidence of petitioner’s guilt. Id. Indeed, there was

25

ample evidence of petitioner’s motive, intent, and conduct presented at trial. Petitioner’s then

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girlfriend testified that prior to the shooting, petitioner learned about a problem between her and

27

Mike and that petitioner got into a verbal altercation with Mike. Further, petitioner had decided

28

on the night before the shooting that he wanted to fight Mike. He also found out where Mike
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1

lived, and carried a gun to Mike’s house. Mike also “adamantly” identified petitioner as the

2

perpetrator at trial. Id. Thus, it is not reasonably probable that petitioner would have obtained a

3

different result at trial had he presented a defense of voluntary intoxication and petitioner has not

4

shown that counsel’s conduct resulted in prejudice to his case. Accordingly, the state court’s

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rejection of petitioner’s ineffective assistance of counsel claim was reasonable and petitioner is

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not entitled to federal habeas relief.

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III.

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9

Conclusion
For all the reasons set forth above, IT IS HEREBY RECOMMENDED that petitioner’s

application for a writ of habeas corpus be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. Failure to file

16

objections within the specified time may waive the right to appeal the District Court’s order.

17

Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

18

1991). In his objections petitioner may address whether a certificate of appealability should issue

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in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

20

Section 2254 Cases (the district court must issue or deny a certificate of appealability when it

21

enters a final order adverse to the applicant).

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Dated: April 9, 2014.

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