McDaniels v. Kirkland

Filing 46

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS re 1 Petition for Writ of Habeas Corpus filed by Robert McDaniels, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 8/25/09. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 8/25/2009)

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1 2 3 4 5 6 7 8 9 10 vs. R.J. KIRKAND, Warden, Respondent. / ROBERT McDANIELS, Petitioner, No. C 05-0904 PJH (PR) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA United United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is a habeas case filed pro se by a state prisoner. Petitioner was granted a stay of the case while he exhausted additional claims. After exhausting such claims, he filed an amended petition on June 12, 2006. The court reopened the case, dismissed four claims in the amended petition because they were not cognizable, and ordered respondent to show cause why the amended petition should not be granted based on the remaining, cognizable claims. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has responded with a traverse and a supporting memorandum. Respondent has replied to the traverse, and petitioner has filed a response to the reply. For the reasons set out below, the petition1 will be denied. BACKGROUND In 1997, petitioner and his co-defendant, Keelon Jenkins, were convicted of firstdegree murder and various related charges in Alameda County Superior Court. On appeal, the California Court of Appeal reversed their convictions after finding that the trial court had 1 The court hereinafter refers to the June 12, 2006 amended petition simply as the petition. 1 2 3 4 5 6 7 8 9 10 coerced the jury during the course of deliberations. In 2001, petitioner and Jenkins were re-tried in Alameda County Superior Court, and again the jury found them both guilty of first-degree murder (Cal. Pen. Code 187). The jury also found true the special circumstance allegations against Jenkins that he was an accomplice to the murder committed in the course of an attempted robbery, and that he had used a firearm. In addition, the jury convicted Jenkins of assault with a deadly weapon (Cal. Pen. Code 245). The trial court sentenced petitioner to a term of twenty-five years to life in state prison. The California Court of Appeal affirmed the conviction and sentence. Subsequently, the California Supreme Court of California denied the petition for review and a later petition for a writ of habeas corpus. The convictions of Petitioner and Jenkins stem from their bungled attempt to rob a Brinks truck in Berkeley, California. On the morning of September 20, 1994, the Brinks truck parked outside a branch of the Wells Fargo Bank, where petitioner and his codefendant Jenkins were waiting. Jeffrey Spencer, a Brinks guard, was unloading money from the back of the truck while the truck driver remained in the cab. Jenkins, disguised in women's clothing and a wig, approached the truck and pointed his gun at Spencer. While petitioner approached from a different spot, also with a gun, Spencer and Jenkins exchanged gunfire. Spencer fell to the ground and was later pronounced dead from gunshot wounds. The shooting was captured on the bank's video surveillance tapes, which was played to the jury. Upon hearing the gunfire, the Brinks truck driver, Antoine Narcisse, called for help. Jenkins and petitioner fled through the bank's parking lot. While running away, Jenkins dropped the gun that was later determined to have fired the shots that killed Spencer. Jenkins and petitioner got into a car, and petitioner drove it away. At about 10:50 that morning, the police found the car abandoned about three miles away, with the engine still warm. Petitioner's palm print was found on the inside of the driver's side door, and Jenkins's palm print was found on the outside of the passenger door. The car was identified as belonging to Sel Butler, an Oakland resident. Four days 2 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 earlier, on September 16, 1994, at approximately 1:30 a.m., Butler and his nephew were parked at a gas station in Oakland. Butler saw two men approach the car, one of whom he recognized as petitioner. The other man pulled out a gun, the two of them ordered Butler to give up the car, Butler and his passenger ran away, and petitioner and his companion drove off in Butler's car. Petitioner testified at trial that he did not participate in stealing Butler's car. He testified that when he and James Felix approached the gas station that evening, Felix, without warning petitioner, pointed his gun at Butler, ordered him out of the car, and drove Butler's car away by himself. Petitioner's aunt, Jeanelle Ingram, testified that on the evening of the Brinks incident, petitioner and his girlfriend were waiting for Ingram at her house in San Leandro when she returned from work. Petitioner explained to Ingram that he and another man had been observing the routine of the Brinks deliveries, and that they had intended to steal money but not hurt anybody. Ingram told petitioner to go to the police, but he wanted to go find his grandmother in Chicago. On September 27, 1994, petitioner was arrested at a train station in Chicago, at which time he gave the police a false name and date of birth. On February 15, 1995, Jenkins was arrested on a bus in Montana, wearing a wig and a penciled-in moustache, and holding a ticket under the alias William Wilder. Petitioner and Jenkins each testified in their own defense. According to both of them, a man named Valentine told them that he had a connection to a Brinks guard who would cooperate in a staged robbery. The plan, hatched by Valentine, was for Jenkins and petitioner to wait outside the bank until the Brinks truck arrived for a delivery. Jenkins was to approach the truck disguised as a woman, exchange a signal with the guard unloading the truck, and point an unloaded gun at the guard. Petitioner would then approach with a gun, also unloaded, disarm the guard, take the money and drive Jenkins and himself away. Jenkins and petitioner would then meet Valentine and divide the proceeds. Petitioner offered the use of the car that Felix had previously stolen as the getaway car. Petitioner testified that on the morning of the planned robbery, he and Jenkins, who 3 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 was dressed as a woman, parked the stolen car near the bank. When the Brinks truck arrived, he and Jenkins waited on a nearby street. As Spencer began to unload the truck, Jenkins ran toward Spencer pointing a gun, and petitioner followed a few seconds later. Spencer turned around, looked scared and shot his gun first. As this was not part of the plan, petitioner ran towards the getaway car and pulled out his gun. Petitioner saw Jenkins behind him, and when they were both in the car, petitioner drove off with Valentine following. He pulled over in a nearby race track, and petitioner and Jenkins got into Valentine's car and drove away. Valentine told them that he did not know what had gone wrong. Jenkins testified that prior to leaving for the robbery, Valentine gave him women's clothing and a gun. Jenkins saw real bullets in the clip of the gun, but none in the chamber. This would require Jenkins to choke the gun manually in order to fire it. Jenkins testified that he did not own a gun or have experience shooting one. Petitioner drove him to the bank in the stolen getaway car, and they got out. After the Brinks truck arrived and parked, Spencer got out and looked at Jenkins. Jenkins believed this was the signal for him to approach. He approached, pointing the gun at Spencer, and Spencer fired his gun at Jenkins and missed. Jenkins fired back using his right hand, even though he was lefthanded, without aiming. He turned and ran to the getaway car, and he collided with a pole and dropped the gun. Petitioner drove them to the parking lot where they got into Valentine's car. Jenkins then fled to Washington state, where he stayed for five or six months, and he was eventually arrested on a bus en route to Milwaukee. Evidence was presented with respect to the Brinks employees on duty at the time of the incident. Narcisse, the driver, testified that he was scheduled to be the "messenger", i.e. the employee who delivered the money from the truck to the bank. However, he hurt his back, so the dispatcher allowed him to be the driver and scheduled Warren Martin to be the messenger. The dispatcher then switched Martin to a different route and assigned Spencer to be the messenger with Narcisse. Martin testified that he had done the route to the Berkeley bank with Narcisse in the past, and that he did not know petitioner or Jenkins 4 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 and was not involved in the plan to rob the truck. Donna Smith was another Brinks employee who had previously done that route with Narcisse, and she also testified that she did not know petitioner or Jenkins and was not involved in the planned robbery. STANDARD OF REVIEW A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d). The first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falling under the second clause of 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 409. Under 28 U.S.C. 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in 5 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 light of the evidence presented in the state-court proceeding." Miller-El, 537 U.S. 322 at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir.2000). DISCUSSION Petitioner's remaining claims for habeas relief are as follows: (1) the trial court's denial of his motion for new counsel violated his right to effective assistance of counsel; (2) his constitutional right to represent himself was violated; (3) his counsel was ineffective because he (a) failed to prepare, (b) failed to object to prosecutorial misconduct, and (c) opened the door to introduction of "other crimes" evidence; (4) his Batson2 rights were violated; (5) his counsel was ineffective in failing to object to the concession by counsel for Jenkins that Jenkins and petitioner were guilty; (6) his due process rights were violated by the trial court's failure to sever the trial against him from the trial against Jenkins; (7) his due process rights were violated by prosecutorial misconduct in introducing propensity evidence; (8) his counsel was ineffective in his handling of prosecution witness Jeanell Ingram; (9) his right to a fair trial was violated by the trial court's failure to decide his motion for a new trial; (10) his counsel was ineffective in that he violated the attorney-client privilege and suborned perjury; (11) his due process rights were violated when the trial court did not allow him to argue his motion for substitution of counsel; (12) his due process rights were violated when the trial court gave an improper jury instruction; (13) his due process rights were violated when the trial court instructed the jury that in order to find him guilty of second-degree murder it first had to find that he had committed attempted grand theft; (14) his rights against double jeopardy were violated when the trial court permitted a retrial on a theory which had been rejected in the first trial; (15) his appellate counsel was United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Batson v. Kentucky, 476 U.S. 79, 84 n.4 (1986). 6 1 2 3 4 5 6 7 8 9 10 ineffective; (16) his double jeopardy rights were violated by the prosecution's use of carjacking charges which had been dismissed previously; (17) his Confrontation Clause rights were violated when the trial court would not allow testimony of James Felix at a motion hearing; and (18) his due process rights were violated when the state prevented his access to James Felix. I. Substitution of Counsel Petitioner claims that the trial court violated his Sixth Amendment right to counsel by denying his motion, pursuant to People v. Marsden, 2 Cal. 3d 118 (1970), to substitute appointed counsel, Marvin Levy. Petitioner made the motion prior to trial and, after a hearing, the trial court denied the motion. The denial of a motion to substitute counsel implicates a defendant's Sixth Amendment right to counsel and is properly considered in federal habeas. See Schell v. Witek, 218 F.3d 1017, 1024 (9th Cir. 2000) (en banc). A criminal defendant who cannot afford to retain counsel has no right to counsel of his own choosing. Wheat v. United States, 486 U.S. 153, 159 (1988). Nor is he entitled to an attorney he likes and with whom he feels comfortable. United States v. Schaff, 948 F.2d 501, 505 (9th Cir. 1991). The Sixth Amendment guarantees effective assistance of counsel, not a "meaningful relationship" between an accused and his counsel. Morris v. Slappy, 461 U.S. 1, 14 (1983). It is well settled that when a defendant voices a seemingly substantial complaint about counsel, the trial judge should make a thorough inquiry into the reasons for the defendant's dissatisfaction, as was done in this case. Bland at 1475-76. The ultimate inquiry is whether the petitioner's Sixth Amendment right to counsel was violated by the denial of the substitution motion. Schell, 218 F.3d at 1024-25. On habeas review, the court must determine whether the trial court's denial of the motion "actually violated [the petitioner's] constitutional rights in that the conflict between [the petitioner] and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Id. at 1026. To compel a criminal defendant to undergo a trial with the 7 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 assistance of an attorney with whom he has become embroiled in "irreconcilable conflict" is, in essence, to deprive the defendant of any counsel whatsoever. United States v. Moore, 159 F.3d 1154, 1159-60 (9th Cir. 1998). Here, there is no evidence in the record to show that petitioner and Levy had an irreconcilable conflict. Petitioner complains that Levy did not meet with him or call him between July 2000 and the January 2001, except at court appearances. Counsel explained at the Marsden hearing that he had just spent a week reviewing and indexing the police reports and other trial materials, that he discussed the case in depth with petitioner, and that he would be prepared for trial. The trial court then indicated that there was still another week before jury selection would commence, and that the trial court proceedings would be spread out, affording adequate time for Levy to be prepared. Moreover, the record indicates that Levy diligently advocated on his behalf at the pretrial hearings, filed various pretrial motions including a motion to sever his case from Jenkins's, a motion challenging the prosecutor's use of peremptory strikes, and successful motions to continue and to prevent the prosecutor from re-charging petitioner with special circumstances allegations. Levy also retained an investigator and opposed the prosecution's motion to introduce evidence of prior bad acts. Petitioner also complains that trial counsel failed to give him copies of the police reports, which reports petitioner had seen prior to his previous trial. Counsel explained, however, that there were over 1000 pages of such reports that would have to be redacted, and he indicated at the hearing that he would give petitioner copies of any specific reports he wanted. Petitioner also complains that they had disagreements about defense strategy, that during one such disagreement Levy said that he did not want petitioner to give him any more "bullshit," and that Levy did not take petitioner's Marsden motion seriously by pretending in court that the motion would hurt his feelings. While it appears they had heated disagreement about defense strategy at times, it did not cause a complete breakdown in communication, however, or other impediment to counsel's effective representation. To the contrary, the record shows that they continued to communicate 8 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 about and discuss the case and their strategy. In short, while petitioner felt that Levy did not spend enough time preparing for his case, the record indicates that their relationship not broken down. In addition, as explained below, Levy's representation did not amount to ineffective assistance of counsel, and the trial court specifically found his representation to be adequate. As there was no irreconcilable conflict or breakdown in the relationship between petitioner and Levy, and Levy provided effective assistance of counsel, the denial of petitioner's motion to substitute counsel did not deprive him of his Sixth Amendment right to counsel. Consequently, the state court's rejection of this claim was neither contrary to nor an unreasonable application of federal law. The court notes that petitioner has attached a declaration to his traverse in which he makes factual allegations concerning his relationship with Levy and concerning Levy's performance. The AEDPA precludes this court from considering any additional facts that he failed to present at his Marsden hearing in state court, at which he had the opportunity to present facts about Levy's performance and about any problems in his relationship with Levy. See 28 U.S.C. 2254(e)(2) (precluding federal habeas court from hearing new evidence unless claim relies either on a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review, or a factual predicate that could not have been previously discovered through the exercise of due diligence, and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense); Baja v. Ducharme, 187 F.3d 1075, 1077-78 (9th Cir. 1999). Petitioner has not established, or attempted to establish either of the narrow exceptions to this rule. Moreover, the court has reviewed the declaration and it largely duplicates the allegations made in the petition and at the Marsden hearing in state court, which allegations are addressed above and below in the discussion of petitioner's substitution of counsel and ineffective assistance of counsel claims. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 1 2 3 4 5 6 7 8 9 10 II. Self-Representation Petitioner alleges that he requested to represent himself, and he complains that the court summarily denied this request, in violation of his right to self-representation under Faretta v. California, 422 U.S. 806 (1975). After the trial court denied petitioner's Marsden motion, the following exchange occurred: McDaniels: All right. After this proceeding, is it possible that I go pro bono and self representation myself? The Court: We've already started now with him representing you. McDaniels: I understand that. It's never too late to represent yourself. I'd rather go pro bono. The Court: Here's what I want you to do. They won't be back until 3:30. I want you all to sit here and discuss things right here. You can make a list of things you need and then we'll go from there. ... The Court: Tell him [Levy] what you need and let's see if we can't work something out because I don't think you'd be very wise to be trying to represent yourself in this type of a case. McDaniels: Well, if I bring in a motion tomorrow, is it possible we could have a hearing on self representation or pro bono? The Court: What pro bono? McDaniels: I mean pro per. The Court: Pro per. Yeah, I'm just saying it's not a very wise decision. You can always ask for that. (Resp. Ex. B at 15.) The California Court of Appeal found that there was no violation of petitioner's right to represent himself because he did not unequivocally request self-representation. A defendant's request for self-representation must be unequivocal, in addition to knowing, voluntary, and timely. Faretta, 422 U.S. at 832. The state courts reasonably read petitioner's questions as an inquiry into the possibility of self-representation, and not an unequivocal motion to proceed pro se. When petitioner stated that he wanted to proceed pro se, the trial court instructed him to wait until later that day to raise the issue. The trial court could reasonably have surmised that petitioner might simply be reacting to the court having just denied his motion for substitution of counsel. Petitioner appeared to understand that he had not in fact made an unequivocal motion to proceed pro se insofar as he inquired about receiving a hearing "if I bring a motion tomorrow," which he never did. Also, the trial court did not rule that petitioner could not proceed pro se. Rather, it simply warned 10 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 petitioner that this would not be a wise course, and then informed him that he could request to proceed pro se at any time and that the court would hold a hearing. Under these circumstances, the state courts reasonably found that petitioner did not make an unequivocal request for self-representation, and thus that the trial court did not violate his rights under Faretta. Accordingly, petitioner is not entitled to habeas relief on this claim. III. Ineffective Assistance of Trial Counsel Petitioner claims that his trial counsel, Marvin Levy, provided ineffective assistance, in violation of his Sixth Amendment right to counsel. Specifically, petitioner complains that Levy failed to prepare for trial, failed to object to prosecutorial misconduct, and opened the door to introduction of "other crimes" evidence. A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim based on ineffectiveness of counsel, petitioner must establish two distinct elements. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Id. at 688. The relevant inquiry is not what defense counsel could have presented, but rather whether the choices made by defense counsel were reasonable. Babbitt v. Calderon, 151 F.3d at 1173. Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Id. at 697; Williams v. Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995) (noting with approval district court's refusal to consider whether counsel's conduct was deficient after determining petitioner could not establish prejudice). 11 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 a. Trial Preparation Petitioner complains that Levy did not adequately prepare for trial. Petitioner alleges that after Levy's appointment, he did not speak to petitioner or return petitioner's phone calls for approximately six months, until shortly before trial. Petitioner further alleges that Levy did not obtain recorded witness statements until just before trial, did not obtain a transcript of the first trial, and did not obtain discovery regarding the carjacking incident or regarding any money that might have been paid to prosecution witnesses. Even assuming these allegations are true, petitioner has not identified or demonstrated any prejudice. He does not, for example, indicate what he would have told Levy had Levy spoken to him more frequently prior to trial. He also does not identify what particular evidence, if any, Levy missed by not obtaining discovery sooner, much less demonstrate how such evidence would have helped the defense or that there is a reasonable probability that it would have altered the outcome of the trial. Petitioner identifies only one specific piece of information that Levy failed to discover. Petitioner faults Levy for failing to discover prior to trial that Valentine, the man whom petitioner and Jenkins claimed had orchestrated the robbery, had died in 1996. The California Court of Appeal explained why the evidence of Valentine's death had little impact on the verdict, and thus why Levy's failure to discover it earlier was not prejudicial: McDaniels contends Levy's failure to discover that a person named Frank Valentine had died gave the prosecutor an advantage while crossexamining defense witnesses. The defense theory was that Valentine had persuaded Jenkins and McDaniels to participate in the Brinks robbery by telling them a Brinks guard and a bank employee were in on the plan, and the money would be handed over without resistance. Jenkins' mother, Linda Armour, testified for the defense. On cross-examination, the prosecutor asked Armour about threatening phone calls she had received over the years since her son became a suspect in the Brinks incident. Armour said she had assumed Frank Valentine was the person making the calls, and the voice on the calls sounded like the same person each time. Armour testified she received these calls in 1994 afer the incident, a couple of times in 1995, once in 1996, and again in 1997 before she moved to Vacaville. At the end of Armour's cross-examination, Levy said: "I'm asking for a recess, your Honor. We just received some discovery that we've not seen before and we need to deal with it." Out of the presence of the jury, Levy told the court that just before Armour took the stand, the prosecutor handed the defense a copy of a death certificate showing Valentine had died in August 1996. DuBois said Armour was actually on the stand when he got the 12 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 certificate. After the recess. Levy rehabilitated Armour by questioning her about the certificate, establishing that she had not known about Valentine's death and had never been sure the threatening phone calls were all from the same person. Armour stated that was why she had consistently responded to the prosecutor's questioning by saying the voice "sounded like" Valentine. We discern no significant prejudice to the defense from this incident. The threatening phone calls were not a critical part of Armour's testimony. They were explored only on cross-examination. Armour's identification of Valentine as the maker of the calls was consistently hedged by explanations that she merely assumed it was him and that it sounded like his voice. Thus, her ignorance of the fact that Valentine had died in 1996 had only a minor impact on her credibility. There is no reasonable probability that McDaniels would have enjoyed a better result had Levy been aware of Valentine's death. (Resp. Ex. B at 16-17.) Petitioner argues that the evidence of Valentine's death in 1996 would have impeached Armour's credibility because it would have established that Valentine could not, contrary to Armour's testimony, have made the threatening calls to her. The evidence that Valentine had died in 1996 had only a minor impact on Armour's credibility because Armour testified only that the voice sounded like Valentine's, not that it was Valentine. Further, any impeachment value had virtually no impact on the outcome of the trial. Armour, Jenkins's mother, was a minor witness, and not one of the eyewitnesses to the incident. She simply corroborated Jenkins's account that Valentine planned the incident and that nobody was supposed to get hurt. The purpose of Armour's testimony was not to introduce evidence of the threatening phone calls; indeed, she did not testify about the calls at all on direct examination. Accordingly, the California Court of Appeal reasonably concluded that there is no reasonable likelihood that Levy's failure to discover this evidence sooner affected the verdict. b. Prosecutorial Conduct United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner also claims that Levy was ineffective in failing to move for a mistrial based on prosecutorial "misconduct." Petitioner points to the prosecutor questioning Jenkins why he did not look for Valentine prior to trial and questioning Armour about the threatening phone calls. Petitioner argues that these questions were improper because the prosecutor knew that Valentine had been dead since 1996. 13 1 2 3 4 5 6 7 8 9 10 Levy's failure to move for a mistrial on the basis of prosecutorial misconduct was neither ineffective nor prejudicial because such a motion would have been meritless. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (holding that trial counsel cannot have been ineffective for failing to raise a meritless motion); see also Knowles v. Mirzayance, No. 07-1315, slip op. 1, 11, 14-15 (U.S. 2009) (finding that the United States Supreme Court has never required defense counsel to pursue every nonfrivolous claim regardless of its merit, viability, or realistic chance of success). There was nothing improper about the question to Jenkins because Valentine's death did not preclude Jenkins or his attorney looking for him and discovering that he was dead -- or looking for him and interviewing him prior to his death. The prosecutor did not argue to the jury that Jenkins or petitioner were at fault for not investigating Valentine or for not calling him as a witness. Indeed, the prosecutor later erased any questions the jury might have had as to why the defense did not call Valentine as a witness when the prosecutor introduced the evidence that Valentine was dead. In addition, when the prosecutor questioned Armour about the threatening phone calls, including some that had occurred after Valentine's death, the prosecutor did not in any way suggest to Armour that she identify Valentine as the caller. Moreover, Armour only said the caller sounded like Valentine, and, as discussed above, the prejudice to petitioner's case from such testimony was minimal. Consequently, Levy's failing to move for a mistrial based on prosecutorial misconduct did not amount to ineffective assistance of counsel. c. Evidence of Prior Bad Acts United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner claims that Levy was ineffective because he questioned petitioner about him and Jenkins having regularly sold drugs on the street. Petitioner objects to the prejudicial nature of this evidence, and because it opened the door for the prosecutor's questioning petitioner about his prior arrests for drug sales, possession of a loaded firearm, and supplying the police with false information. The California Court of Appeal rejected petitioner's claim based on the following reasoning: 14 1 2 3 4 5 6 7 8 9 10 [E]ven when defense counsel elicits evidence adverse to his client an appellate court must be reluctant to second-guess counsel when a tactical choice led to the damaging testimony.[ ] Here, Levy's strategy, made explicit in his closing argument, was to portray McDaniels as a gullible young man, "selling drugs and just getting along," taken in by Valentine's promise that the staged robbery would yield easy money. We cannot say this tactic amounted to ineffective assistance of counsel. Levy could reasonably have deemed the prejudicial impact of the prior arrests to have been minimal, given his client's admitted participation in the Brinks incident. (Resp. Ex. B at 17-18 (citations omitted).) The record demonstrates that Levy had a tactical reason for introducing the evidence that petitioner and Jenkins sold drugs on the street. As described by the California Court of Appeal, in closing argument, he portrayed petitioner as a young, lowlevel drug dealer who would believe Valentine's assertion that the robbery would yield easy money, who would be afraid of Valentine's retribution, as Jenkins had testified, if he did not follow through with Valentine's plan, and who did not have the sophistication or background to plan and execute a Brinks heist and murder. Where there is indicia on the record that a decision by trial counsel was based upon tactical reflection, the decision is afforded a strong presumption that it falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; see also United States v. Palomba, 31 F.3d 1456, 1466 (9th Cir. 1994) (presumption of sound trial strategy not applicable where indicia of tactical reflection by counsel on issue absent from record). Here, the presumption of reasonable professional assistance applies because Levy's closing argument indicates that his decision to open the door to petitioner's minor criminal history and drug sales was based upon tactical reflection and was part of a defense strategy. In addition, as the California Court of Appeal correctly pointed out, petitioner admitted to the jury that he participated in holding up a Brinks truck at gunpoint, which led to the murder of one man. In this context, the prejudicial effect of his participation in more minor crimes would be significantly diminished. In sum, the state courts' denial of petitioner's claim of ineffective assistance of United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 1 2 3 4 5 6 7 8 9 10 counsel was neither contrary to nor an unreasonable application of federal law.3 Petitioner is not entitled to habeas relief on this claim. IV. Jury Selection Petitioner claims that the prosecutor used peremptory challenges to strike three African-American prospective jurors based on their race, in violation of the Equal Protection Clause. The Equal Protection Clause forbids the challenging of potential jurors solely on account of their race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). A party may raise an equal protection claim on behalf of a juror excluded because of the juror's race, regardless of whether the party and the excluded juror share the same race. Powers v. Ohio, 499 U.S. 400, 406 (1991). A violation of equal protection under Batson is established in a three-step process: (1) the defendant must make out a prima facie case that the prosecutor exercised peremptory challenges on the basis of race (or gender) "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose;" (2) if the prima facie case is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question; and (3) if the prosecutor carries the burden of showing a race-neutral explanation, the defendant has the burden to prove purposeful discrimination. Batson, 476 U.S. at 93-94, 97-98. Here, the trial court found a prima facie case of discrimination under the first step of the Batson analysis and proceeded to the second and third steps in which the prosecutor offered race neutral reasons and the trial court found no intentional discrimination. (See Resp. Ex. B at 3-5.) "Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot." Hernandez, 500 U.S. at 359. As a result, this court need not United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The declaration of George Young, another prisoner, attached to Petitioner's traverse, asserting that Levy provided ineffective assistance to Young in an unrelated case, does not, even if true, alter this conclusion. 16 3 1 2 3 4 5 6 7 8 9 10 dwell on the first step of Batson, but may proceed to the second and third steps. Petitioner challenges the state courts' findings that the prosecutor satisfied his burden of articulating race-neutral explanations for challenging the prospective jurors, and that petitioner did not carry his burden to prove purposeful discrimination. At Batson's second stage, the prosecutor's explanation need not be persuasive; unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. Purkett v. Elem, 514 U.S. 765, 768-69 (1995). In evaluating the race neutrality explanation, the court must keep in mind that proof of discriminatory intent or purpose is required to show a violation of the Equal Protection Clause, Hernandez, 500 U.S. 355-62, and that the persuasiveness of the prosecutor's non-discriminatory intent does not become relevant until the third step, Purkett, 514 U.S. at 768-69. A prosecutor must "state his reasons as best he can and stand or fall on the plausibility of the reasons he gives." Miller-El v. Dretke, 545 U.S. 231, 250-52 (2005). As summarized by the California Court of Appeal, the prosecutor supplied the following reasons for challenging the three prospective jurors at issue:4 Mr. W., whose brother had been an Oakland policeman, believed that policemen plant evidence. Mr. W. himself had been a victim of police brutality. Furthermore, during a break the prosecutor observed Juror W. Staring at the area behind the court reporter with a weird look on his face, which made the prosecutor uneasy. Ms. A., who the prosecutor noted did not appear to be AfricanAmerican but had listed that race among others on her questionnaire, seemed hesitant and intimidated on voir dire, and did not seem to fully comprehend the situation. Mr. R., during a break, had an interaction with the prosecutor that left the prosecutor feeling uncomfortable. The prosecutor explained, "being an African-American prosecutor we get used to certain looks, and Mr. R. Gave me a look and he looked me up and down as if how could I actually be a district attorney or how could I actually, it was just a weird interaction in that he looked at me from head to toe and kind of had a little I wouldn't say smirk but that uneasy feeling where we know that it wasn't. [Sic.]" The prosecutor The trial court found that there was a prima facie case of discrimination with respect to the prosecutor's challenging seven African-American prospective jurors, and the prosecutor offered his reasons for challenging each of them. Here, as on direct appeal, petitioner challenges the exclusion of only three of these prospective jurors: Mr. W, Ms. A, and Mr. R. 17 4 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 also observed that when asked whether he would be able to convict if he were sympathetic toward the defendants, Mr. R. had hesitated. The prosecutor noted this was an important issue for him, because a sympathetic juror had made the deliberations very difficult at the first trial. (Resp. Ex. B at 3-5.) The reasons offered by the prosecutor for challenging the prospective jurors are, on their face, race-neutral. Mr. W. distrusted police officers, had been a victim of police brutality, and gave the prosecutor a "weird" look that made the prosecutor "uneasy." (Resp. Ex. I at 338-39.) Ms. A was tentative in that she had to be prompted to speak into the microphone, and she stated that she did not understand that defendants are presumed innocent. (Resp. Ex. B at 6.) The prosecutor's discomfort with Mr. R stemmed from a "smirk" Mr. R. gave him during a recess which suggested to the prosecutor that Mr. R. believed that the prosecutor, as an African-American, could not be a prosecutor; also, Mr. R. had hesitated when asked if he were sympathetic toward the defendant. (Resp. Ex. I at 342-43.) These reasons are race-neutral in that they do not involve race nor are they inherently discriminatory. See, e.g., Purkett, 514 U.S. at 768-69 (prosecutor's explanation that he struck black juror because he had long, unkempt hair, mustache and beard was race-neutral and satisfied second step); United States v. Steele, 298 F.3d 906, 913-14 (9th Cir. 2002) (challenging jurors based on their opinions of the criminal justice system is race neutral, even where the opinion is that the system is racist). As a consequence, the state courts reasonably found that the prosecutor satisfied Batson's second step of proffering race-neutral explanations for his challenges. The state courts were also reasonable in finding that the prosecutor had not engaged in purposeful discrimination at Batson's third stage. To fulfill its duty at Batson's third step, the trial court must evaluate the prosecutor's proffered reasons and credibility under the totality of the relevant facts, using all the available tools including its own observations and the assistance of counsel. Mitleider v. Hall, 391 F.3d 1039, 1047 (9th Cir. 2004). At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge 18 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Purkett v. Elem, 514 U.S. 765, 768 (1995) (emphasis added). A finding of discriminatory intent turns largely on the trial court's evaluation of the prosecutor's credibility. Rice v. Collins, 546 U.S. 333, 340-41 (2006). Because determinations of credibility and demeanor of the prosecutor and jurors lie "peculiarly within the trial judge's province," the trial court's ruling on the issue of discriminatory intent must be sustained unless clearly erroneous. Snyder v. Louisiana, 128 S. Ct. 1203, 1208-11 (2008). On habeas review, the findings of the state trial court on the issue of discriminatory intent, including the trial court's evaluation of the prosecutor's credibility, are findings of fact entitled to deference. Purkett, 514 U.S. at 769. So are the findings of the state appellate court. Mitleider, 391 F.3d at 1050. Under AEDPA, therefore, a federal habeas court can only grant habeas relief "if it was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge." Rice, 546 U.S. at 338 (citing 28 U.S.C. 224(d)(2)). This standard is demanding, though not insatiable. Miller-El, 545 U.S. at 240. The court addresses the state courts' findings of no purposeful discrimination with respect to each juror, in turn. Mr. W. expressed distrust of police officers and described past experience as a victim of police brutality. (Resp. Ex. I at 377-82.) These answers could indicate that Mr. W. might be biased against prosecution witnesses or not regard police testimony fairly. As for Ms. A, her confusion about the presumption of innocence, a basic and fundamental concept at trial, could reasonably indicate that she might not be able to apply the law correctly. (Resp. Ex. B at 6.) As for Mr. R., the trial court's finding that he hesitated before he answered whether he would sympathize with the defendant is a factual finding entitled to deference on habeas review under 28 U.S.C. 2254(d)(2), and petitioner has not indicated why such a finding could not reasonably be supported by the record. See Purkett, 514 U.S. at 769; Mitleider, 391 F.3d at 1050. Such a hesitation could reasonably 19 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 suggest that there was a risk that Mr. R. might be biased towards the defense. Similarly, petitioner points to nothing in the record to suggest why the prosecutor's account of Mr. R. looking at him as though he believed that he could not be a prosecutor was not credible. Based on the foregoing record, the trial court could reasonably find that the prosecutor's race-neutral explanations for challenging the three prospective jurors were credible and that he did not have any discriminatory intent. Petitioner contends that only African-American potential jurors were asked whether they were sympathetic to the defendant and if this would prevent them from convicting him. Comparative juror analysis -- i.e., determining whether non-challenged jurors possess any of the characteristics on which the prosecution challenged jurors in the protected group -may tend to prove discrimination at the third Batson step. Snyder, 128 S. Ct. at 1212. (2008) Contrary to the view of the California courts, comparative juror analysis should take place on appeal even when the trial court did not engage in such analysis. Boyd, 467 F.3d at 1148-50. Here, however, the record does not support petitioner's contention. At least six other jurors, who were not African-American, were also asked whether they could convict even if they felt sympathy for the defendant. (Resp. Ex. B at 6.) Thus, a comparative juror analysis does not uncover any discriminatory intent in the prosecutor's challenges to the prospective jurors. As the state courts reasonably found no discriminatory intent in the prosecutor's challenges to the three prospective jurors, petitioner is not entitled to habeas relief on his Batson claim. V. Failure to Object to Opening Argument by Co-defendant's Counsel Petitioner claims that his attorney was ineffective because he failed to object to opening argument by Jenkins's attorney that Jenkins was only guilty of lesser offenses than murder. Specifically, Jenkins's counsel argued that Jenkins was not guilty of felony murder or first-degree murder, but rather simply of grand theft and a lesser homicide. (Resp. Ex. F United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 1 2 3 4 5 6 7 8 9 10 at 398-405.)5 Petitioner's counsel was not ineffective in failing to object to this argument because it was entirely consistent with petitioner's own testimony and defense theory. Petitioner (and Jenkins) claimed to have been duped into participating in the Brinks scheme, and they admitted that they had held up the Brinks guard and Jenkins shot him. Petitioner's counsel advanced the defense theory that this only warranted guilty verdicts for the lesser offenses of grand theft and voluntary manslaughter, and not robbery and murder. As described above, counsel's performance is deficient under the Sixth Amendment only if it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland, 466 U.S. 668, 686. There would have been no reasonable basis for petitioner's counsel to object to argument by Jenkins's counsel that supported petitioner's own defense theory. Consequently, counsel's failure to make such an objection did not deprive petitioner of effective assistance of counsel. Petitioner is not entitled to habeas relief on this claim. VI. Severance Petitioner claims that the trial court's failure to sever his case from that against his co-defendant violated due process.6 A joinder, or denial of severance, of co-defendants or counts may prejudice a defendant sufficiently to render his trial fundamentally unfair in violation of due process. Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997). In addition, the failure to sever must have had a substantial and injurious effect or influence in determining the jury's verdict. Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000). At trial, after Jenkins's motion to replace his attorney was denied, petitioner's counsel moved for severance on the grounds that the disagreement between Jenkins and Jenkins's attorney was prejudicial to petitioner. (Resp. Ex. F at 354.) Trial counsel did not explain how any conflict between Jenkins and Jenkins's attorney affected petitioner, let Jenkins himself objected to this argument by his own attorney, but the objection was overruled. (Id.) 6 5 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner advances this argument in sections "VI" and "VIa" of his petition. 21 1 2 3 4 5 6 7 8 9 10 alone how it might have prejudiced him. The trial court denied the motion. (Id.) Petitioner does not explain here how he might have been prejudiced from Jenkins's alleged conflict with counsel, nor is there any indication of such prejudice in the record. Rather, petitioner argues that he was prejudiced by the argument by Jenkins's attorney, described above, that Jenkins was guilty of lesser offenses. As described above, this argument was entirely consistent with petitioner's own testimony and defense theory that while he was involved in the incident, he did not plan to rob or kill the Brinks guard. This was not a case in which petitioner's co-defendant advanced a defense theory that was irreconcilable, or even inconsistent with his own. Cf. United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996) (severance warranted where defendant "shows that the core of the co-defendant's defense is so irreconcilable with the core of his own defense that the acceptance of the co-defendant's theory by the jury precludes acquittal of the defendant."). As there is no indication of prejudice from the failure to sever petitioner's trial such failure was not prejudicial and did not violate due process. Petitioner is not entitled to habeas relief on this claim. VII. Prosecutor's Introduction of Evidence of Prior Bad Acts Petitioner claims that the prosecutor committed misconduct, in violation of due process, by introducing evidence of petitioner's prior arrests. Petitioner testified that he was a low-level street "hustler" who sold small amounts of marijuana, but not cocaine, as part of his explanation for how he was duped and intimidated by Valentine. (Resp. Ex. F at 1758-63.) He testified that he did not use drugs, and did not sell cocaine. (Id. at 1763, 1826-27.) On cross-examination, the prosecutor questioned petitioner about his past arrests for possession of crack cocaine, which petitioner acknowledged. (Id. at 1826-29.) Defense counsel's objection to the evidence of the past arrests was overruled, and the trial court denied a motion for mistrial, finding that the evidence was proper impeachment evidence. (Id. at 1846.) A defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." Darden v. Wainwright, 477 U.S. 168, 181 (1986). 22 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 Similarly, the admission of evidence violates due process if it was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). Only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process, however. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Petitioner argues that the evidence of his prior arrests was subject to the impermissible inference that he had a propensity to commit the charged crimes. However, because the evidence of petitioner's arrests for possessing crack cocaine contradicted his testimony that he had not used or sold cocaine, the evidence had a permissible, impeachment purpose. As such, the jury could draw the permissible inference from the evidence that petitioner was not a credible witness. As petitioner's prior arrests were proper pieces of impeachment evidence, the prosecutor's introduction of such evidence, and its admission by the trial court, did not render the trial fundamentally unfair in violation of due process. Petitioner is not entitled to habeas relief on this claim. VIII. Witness Jeanell Ingram Petitioner makes four claims arising out of the testimony of prosecution witness Jeanell Ingram, petitioner's aunt, about an interview between her and petitioner's counsel, Marvin Levy.7 a. Background United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Out of the presence of the jury, the prosecutor made an offer of proof in which he stated that Ingram would testify that during her interview with Levy, Levy said that petitioner wanted to speak to Ingram to ask her to change her testimony. (Resp. Ex. F at 2429.) Over Levy's objection, the trial court allowed the prosecutor to examine Ingram on this subject, and denied Levy's motion for a mistrial. (Id. at 2429-30.) The prosecutor examined Ingram in front of the jury about the interview, and she testified that Levy and an investigator came to her home prior to trial. (Id. at 2450.) She told them that she knew that As these claims all concern trial counsel's interview of Ingram, the court discusses them together. The claims are listed above as claims 8, 10, 11 and 15. 23 7 1 2 3 4 5 6 7 8 9 10 petitioner wanted to see her, but that it was difficult for her to speak with him. (Id. at 245051.) She testified that Levy then said to her that petitioner wanted her to change her testimony. (Id. at 2451.) She said that she knew that and could not do it, and that there was no discussion of what petitioner wanted her to say. (Id.) Levy's continued objections and renewed motion for a mistrial were denied. On cross-examination by Levy and Jenkins's counsel, Ingram explained that prior to Levy's visit, she had believed that petitioner wanted her to change her testimony so she refused to answer his phone calls to her. (Id. at 2469.) She further explained that when Levy told her during their interview, Levy simply wanted to know what petitioner had said to her on the night of the robbery. (Id. at 2538.) She testified that when Levy said that petitioner wanted her to change her testimony, Levy was only "joking," and she admitted that she would not know if petitioner had ever asked Levy to visit her or ask her anything. (Id. at 2469-70, 2538.) She further testified that Levy said almost everything in a joking manner, and that he was probably trying to relax her and make it easier for her to talk. (Id. at 2538.) Ingram further explained that Levy showed concern regarding her family, and did not joke about that. (Id. at 2543-44.) She testified that she did not think that he was actually asking her to change her testimony, and that he never asked her to lie for petitioner. (Id. at 2538, 2546.) Levy's investigator then testified about the interview. She testified that Levy was generally jocular, that she did not recall him telling Ingram that petitioner wanted her to change her testimony, and that if he did say such a thing it would have been in jest. (Id. at 2551.) She testified that in over 25 interviews she had done with him, Levy had never asked a witness to change his or her testimony, nor had she even known him to do so, and that they had interviewed Ingram about what occurred the night of the incident. (Id. at 2552, 2556-60.) b. Ineffective Assistance of Counsel United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner argues that Levy's interview of Ingram constituted ineffective assistance of counsel because Levy violated the attorney-client privilege and suborned perjury in his 24 1 2 3 4 5 6 7 8 9 10 interview of Ingram. To establish ineffective assistance of counsel, a petitioner must demonstrate that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland, 466 U.S. at 688. It was entirely reasonable for Levy to investigate and interview Ingram, as she was a witness to whom petitioner had admitted that he participated in the crimes on the night of their commission. When Levy told Ingram that petitioner wanted her to change her testimony, he did not suborn perjury. The evidence was undisputed that Levy was joking, and that Ingram testified that she did not think that Levy wanted her to change her testimony. Ingram's testimony in this regard was corroborated by Levy's investigator, who also characterized any statement by Levy to Ingram as a joke and not an effort to change her testimony. Levy's joking statement also did not disclose any privileged attorney-client communications insofar as petitioner does not contend that he and Levy ever discussed requesting that Ingram change her testimony. Indeed, in his traverse, petitioner asserts that he did not tell Levy to contact Ingram. In addition, the record is clear that Levy was far from complacent about the introduction of Ingram's testimony. He argued vigorously against the admission of her testimony on several occasions, made multiple motions for a mistrial, and ultimately, when that failed, he effectively neutralized her testimony by eliciting the fact that Ingram knew he was joking and did not believe he was asking her to change her testimony. Based upon this record, Levy could not be characterized as having performed deficiently on behalf of petitioner in his handling of Ingram. Moreover, petitioner was not prejudiced by Ingram's testimony about her interview with Levy. In order to show prejudice from counsel's performance, a petitioner must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. There was very strong evidence of petitioner's guilt in this case: he admitted at trial that he participated in the crimes, he was identified as being involved in stealing the getaway car several days before 25 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 the incident, his hand print was found inside the car, and he fled the area after the incident occurred. In light of such evidence, it is unlikely that the guilty verdict rested at all on any inference the jury might have drawn from Ingram's testimony that Levy had jokingly told her that petitioner wanted her to change her testimony. Even if the jury had believed that petitioner in fact wanted Ingram to change her testimony against him, which would hardly be surprising considering that it was not favorable to petitioner, such evidence would have been a relatively minor addition to the already strong case against petitioner. Thus any deficiency by Levy in joking to Ingram that petitioner wanted her to change her testimony was not likely to have made a difference in the outcome of the trial. c. Petitioner's second Marsden motion United States District Court 11 For the Northern District of California Petitioner claims that his due process rights were violated when the trial court did not allow him to argue a second motion for substitution of counsel, raised during the discussions of Ingram's testimony. The record indicates, however, that petitioner was allowed to argue the motion. (Resp. Ex. F at 2462-63.) Specifically, he argued to the trial court that he wanted to substitute counsel based on Levy's saying to Ingram that petitioner wanted her to change her testimony. (Id.) The trial court, having just engaged in extensive discussions about Levy's statement to Ingram, including hearing offers of proof regarding those statements, denied the motion, and then denied further argument about the motion. (Id. at 2463-64.) Petitioner cites to no authority, and the Court is aware of none, providing that due process required the trial court to allow him more argument. Moreover, the denial of petitioner's Marsden motion did not violate petitioner's Sixth Amendment right to counsel. As described in greater detail above, the ultimate inquiry in determining whether a petitioner's Sixth Amendment right to counsel was violated by the denial of the substitution motion is whether the trial court's denial of the motion "actually violated [the petitioner's] constitutional rights in that the conflict between [the petitioner] and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Schell, 218 F.3d at 1026. The trial court denied 26 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 the motion, initially finding that Levy's representation had been effective and noting that trial was nearly over, and later finding that Levy and petitioner appeared to be communicating and working effectively together. (Resp. Ex. F at 2463-64, 2564.) For the reasons discussed above, Levy's joking statement to Ingram did not disclose any communication between Levy and petitioner, suborn perjury, or amount to ineffective assistance of counsel. Moreover, Levy and petitioner continued to confer throughout the discussions of Ingram's testimony, Levy continued to advocate vigorously on behalf of petitioner to block Ingram's testimony, and Levy assisted petitioner in communicating his Marsden motion to the court. As the record does not reflect anything approaching "total lack of communication" between petitioner and Levy or another similar breakdown in their relationship, the trial court did not violate petitioner's Sixth Amendment rights in denying his second Marsden motion. d. Ineffective Assistance of Appellate Counsel United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner claims that he received ineffective assistance from his appellate counsel because appellate counsel failed to raise the foregoing claim challenging the

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