Davis v. Adams
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 11/16/2011. (ndr, COURT STAFF) (Filed on 11/16/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. 08-01978 CW
SHERMAN L. DAVIS,
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Petitioner,
ORDER DENYING
PETITION FOR WRIT OF
HABEAS CORPUS;
DENYING CERTIFICATE
OF APPEALABILITY
United States District Court
For the Northern District of California
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v.
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DERRAL G. ADAMS,
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Respondent.
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/
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Petitioner Sherman L. Davis, an inmate at Corcoran State
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Prison, filed a pro se petition for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254, challenging the validity of his 2003
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state conviction.
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a traverse.
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the Court denies the petition and denies a certificate of
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appealability.
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Respondent filed an answer, and Petitioner filed
Having considered all the papers filed by the parties,
BACKGROUND
The following is a summary of the facts taken from the October
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21, 2005 state appellate court’s unpublished opinion on direct
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appeal and the transcript of Petitioner’s trial.
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People v. Davis, 2005 Cal. App. Unpubl. LEXIS 9593 at *1-11.
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I. California Bank and Trust Robbery
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Resp’s. Ex. B.
On October 16, 2001, Petitioner entered the Albany branch of
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the California Bank and Trust, went to a teller window and told
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teller Karen Nelson that he wanted to open a new account.
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Stephanie Sims, another bank employee, directed Petitioner to a
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desk.
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left the bank.
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bank.
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threatened to shoot her.
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After he pointed his gun at Nelson’s head and said that wasn’t
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enough, another employee gave him more money.
After speaking with Sims for five or ten minutes, Petitioner
Sims then saw Petitioner quickly walk back into the
Petitioner pointed a gun at Nelson, demanded money and
Nelson gave Petitioner nearly $4,000.
Petitioner received
United States District Court
For the Northern District of California
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a total of $12,734.
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safe deposit area, to lie down on the floor, and to wait three
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minutes or he would kill them.
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He told the five bank employees to go into the
He then left the area.
Sims, Nelson and another employee, Evelyn Herrera, identified
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Petitioner as the bank robber from a videotaped lineup.
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Chellew, the bank manager, initially identified another person in
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the lineup, realized on her way home that Petitioner was the
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robber, and called the police to correct her identification.
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four witnesses testified at Petitioner’s trial and identified him
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in court.
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II. Body Time Robbery
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Amelia
These
On October 26, 2001, Petitioner entered the Body Time shop on
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College Avenue in Oakland and told an employee, Sophia Marzocchi,
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that he was looking for something for his fiancee.
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about ten minutes with Petitioner discussing perfumes.
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Marzocchi left to ring up another customer, Petitioner said, “This
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is a robbery.
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Petitioner’s direction, the customers moved to an area behind a
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I have a gun.
Marzocchi spent
When
Everybody move to the back.”
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At
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curtain in the back of the shop, lay on their stomachs, and gave
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him their cash.
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threatening to kill her if she did not do so.
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safe.
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canvas Body Time bag.
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customers in the back of the store and told all of them not to
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leave, or he would shoot them.
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Petitioner told Marzocchi to open the safe,
Marzocchi opened the
Petitioner took the $310 that was inside it and put it in a
He told Marzocchi to lie down with the
Marzocchi and witness Luz Mendoza identified Petitioner in a
video lineup, and at his preliminary hearing and trial.
Michelle
United States District Court
For the Northern District of California
10
Romano, another witness, did not identify Petitioner in the lineup,
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but identified him at the preliminary hearing and the trial.
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other witnesses did not identify Petitioner.
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III. Ovation Robbery
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Two
On October 29, 2001, Petitioner entered the Ovation Clothing
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Store on College Avenue in Oakland and told a sales clerk, Ingjred
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Olsen, that he wanted a gift for his niece.
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showing Petitioner various items, he pulled out a gun, pointed it
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at another employee, Lesley Pulaski, and told Pulaski to give him
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the money out of the cash register.
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Pulaski put between $200 and $260 in an Ovation shopping bag and
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handed the bag to him.
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to get in the back.
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refused and, when she tried to leave the store, Petitioner hit her
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in the neck.
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into the back room.
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and customers, and they gave him what they had.
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directed them into the bathroom, closed the door from the outside,
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While Olsen was
At Petitioner’s direction,
Petitioner then told everyone in the store
One customer, Sophie Grossman-de Vries,
Grossman-de Vries then obeyed Petitioner and went
Petitioner demanded money from the employees
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Petitioner
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and told them to do nothing for ten minutes or he would come back
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and kill them.
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Olsen, Pulaski, Grossman-de Vries and Melissa Oehler, another
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customer in the shop, testified at Petitioner’s trial.
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Vries and Olsen identified Petitioner at a video lineup, the
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preliminary hearing and the trial.
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identify Petitioner in the lineup, but identified him at the
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preliminary hearing and trial.
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IV. Boogie Woogie Bagel Boy Robbery and Sexual Assault
United States District Court
For the Northern District of California
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Grossman-de
Pulaski and Oehler did not
On November 7, 2001, Jennifer W. was seated inside the Boogie
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Woogie Bagel Boy shop, on Piedmont Avenue in Oakland, where her
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boyfriend, Jeff Bjorlo, worked.
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into a parking spot.
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shop and ordered a bagel.
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the patio tables.
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to Jennifer’s, and began talking to her.
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began helping Bjorlo prepare to close the shop for the day.
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Petitioner came back inside to get a cup of coffee, went to his
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car, returned to the store and went to the cash register with a
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gun.
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get in the back and motioned them into the office area.
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Petitioner told Jennifer to lie down and went with Bjorlo to the
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cash register.
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$150 that was in the register into a brown bag on the desk.
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She noticed a gold Ford Probe pull
Petitioner got out of the car, came into the
Jennifer went outside and sat at one of
Petitioner came outside, sat at the table next
She went back inside and
He said, “This isn’t a joke,” and told Jennifer and Bjorlo to
Petitioner directed Bjorlo to empty the $100 to
Petitioner told Bjorlo to go into the bathroom.
Then, he told
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Jennifer to get on her knees, threatened her with his gun, put his
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penis in her mouth and told her to orally copulate him.
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She did
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so.
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arriving any minute.
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her to go into the bathroom and lie down, and left the store.
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Bjorlo called from the bathroom that the owner would be
Petitioner pushed Jennifer’s head away, told
Jennifer noticed some scars on Petitioner’s arm, and later she
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said that they matched those in a photograph of Petitioner.
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also identified a picture of Petitioner’s car as the car she saw
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him driving on the day of the robbery.
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Petitioner in a photo lineup and Jennifer tentatively identified
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Petitioner by putting a question mark on his photo.
She
Bjorlo identified
They
United States District Court
For the Northern District of California
10
identified Petitioner at the preliminary hearing and the trial.
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V. Arrest and Trial
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On November 8, 2001, Officer Eric Huesman of the Oakland
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Police Department saw a car parked at the Sleepy Hollow Hotel in
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Oakland matching the description provided by Jennifer.
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testified that he would have described the car as silver, but that
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it could be seen as gold.
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Petitioner’s unit.
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Huesman and looked nervous.
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Huesman heard muffled noises coming from inside.
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knocked a second time, Petitioner opened the door.
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acknowledged that the Ford Probe was his.
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Petitioner had “yellow teeth with a gap in them,” which matched the
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description Jennifer had given of her attacker.
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walked around to the back of the hotel and, on the ground
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underneath the window of Petitioner’s unit, he found a black
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semiautomatic pistol.
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He
Huesman knocked on the door of
Petitioner looked through the curtain, saw
Petitioner closed the curtain and
After Huesman
Petitioner
Huesman noticed that
Huesman later
Based on this information, Huesman decided to arrest
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Petitioner.
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front of the hotel, Huesman saw Petitioner pulling out of the
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parking lot in the Probe.
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Petitioner said he would, but instead drove away.
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ensued.
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car and ran.
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As Huesman and another officer walked back to the
Huesman asked Petitioner to pull over.
A car chase
After Petitioner’s car struck a curb, he got out of the
He was caught and taken into custody.
On June 4, 2003, a jury trial commenced.
The prosecutor’s
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case consisted of testimony by the victims and witnesses of the
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four robberies and sexual assault.
The defense case consisted of
United States District Court
For the Northern District of California
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the testimony of Martin Blinder, M.D., an expert in the field of
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eye witness identifications, who pointed out factors that would
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make eyewitness identifications less reliable.
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presented testimony that no fingerprints or other physical evidence
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connected Petitioner to the robberies or sexual assault.
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The defense also
On August 7, 2003, the jury found Petitioner guilty of ten
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counts of second degree robbery, two counts of attempted robbery,
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and one count of forcible oral copulation.
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Petitioner had personally used a firearm in the commission of those
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crimes and that he was an ex-felon in possession of a firearm.
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After a bench trial, the court found beyond a reasonable doubt that
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Petitioner had seven prior convictions.
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to an indeterminate term of 343 years to life, with a consecutive
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determinate term of 100 years.
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The jury found that
Petitioner was sentenced
PROCEDURAL HISTORY
Petitioner timely appealed his conviction to the California
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court of appeal.
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in an unpublished opinion, affirmed the judgment of conviction.
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On October 21, 2005, the state appellate court,
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On
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November 23, 2005, Petitioner filed a petition for review in the
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California Supreme Court, which was denied on February 1, 2006.
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On April 16, 2008, Petitioner filed the instant federal
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petition asserting eleven claims for relief.
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exhausted only two of these claims in his direct appeal.
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Court stayed the federal petition pending exhaustion of state
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remedies.
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in the state trial court.
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denied the petition, finding that it was untimely.
Petitioner had
This
On August 18, 2008, Petitioner filed a habeas petition
On October 20, 2008, the trial court
Resp.’s Ex. D.
United States District Court
For the Northern District of California
10
The court also stated, “Assuming that the petition was timely, or
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otherwise been exempt [sic] from the timeliness requirement, relief
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would be nonetheless denied on the merits for failure to state a
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prima facie case for relief.”
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filed a habeas petition in the California court of appeal, which
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was denied summarily on November 20, 2008.
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December 31, 2008, Petitioner filed a habeas petition in the
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California Supreme Court, which was denied summarily on July 8,
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2009.
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stay and ordered Respondent to show cause why the writ should not
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be granted.
Resp.’s Ex. F.
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On November 6, 2008, Petitioner
Resp.’s Ex. E.
On
On October 16, 2010, this Court lifted the
LEGAL STANDARD
A federal court may entertain a habeas petition from a state
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prisoner "only on the ground that he is in custody in violation of
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the Constitution or laws or treaties of the United States."
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28 U.S.C. § 2254(a).
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Penalty Act of 1996 (AEDPA), a district court may not grant habeas
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relief unless the state court's adjudication of the claim:
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Under the Antiterrorism and Effective Death
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“(1) resulted in a decision that was contrary to, or involved an
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unreasonable application of, clearly established Federal law, as
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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
5
determination of the facts in light of the evidence presented in
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the State court proceeding."
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Taylor, 529 U.S. 362, 412 (2000).
8
28 U.S.C. § 2254(d); Williams v.
A state court decision is "contrary to" Supreme Court
authority, that is, falls under the first clause of § 2254(d)(1),
10
United States District Court
For the Northern District of California
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only if "the state court arrives at a conclusion opposite to that
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reached by [the Supreme] Court on a question of law or if the state
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court decides a case differently than [the Supreme] Court has on a
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set of materially indistinguishable facts."
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state court decision is an "unreasonable application of" Supreme
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Court authority, under the second clause of § 2254(d)(1), if it
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correctly identifies the governing legal principle from the Supreme
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Court's decisions but "unreasonably applies that principle to the
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facts of the prisoner's case."
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habeas review may not issue the writ "simply because that court
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concludes in its independent judgment that the relevant state-court
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decision applied clearly established federal law erroneously or
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incorrectly."
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unreasonable" to support granting the writ.
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Id. at 411.
Id. at 413.
Id. at 412-13.
The federal court on
The application must be "objectively
Id. at 409.
"Factual determinations by state courts are presumed correct
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absent clear and convincing evidence to the contrary."
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v. Cockrell, 537 U.S. 322, 340 (2003).
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clear and convincing evidence to overcome the presumption of
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A
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Miller-El
A petitioner must present
1
correctness under § 2254(e)(1); conclusory assertions will not do.
2
Id.
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in determining whether a state court decision is objectively
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unreasonable.
5
2003).
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Ninth Circuit precedent remains relevant persuasive authority
Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.
If constitutional error is found, habeas relief is warranted
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only if the error had a "'substantial and injurious effect or
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influence in determining the jury's verdict.'"
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532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S.
United States District Court
For the Northern District of California
10
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Penry v. Johnson,
619, 638 (1993)).
When there is no reasoned opinion from the highest state court
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to consider a petitioner's claims, the court looks to the last
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reasoned opinion of the highest court to analyze whether the state
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judgment was erroneous under the standard of § 2254(d).
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Nunnemaker, 501 U.S. 797, 801-06 (1991).
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review under AEDPA is somewhat different where there is no reasoned
17
state court decision.
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federal court should conduct “an independent review of the record”
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to determine whether the state court’s decision was an objectively
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unreasonable application of clearly established federal law.
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Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006).
22
Ylst v.
However, the standard of
When confronted with such a decision, a
DISCUSSION
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Petitioner asserts that his counsel was ineffective for
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failing to: (1) call witnesses; (2) present evidence; (3) impeach
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witnesses; (4) move to suppress evidence; (5) investigate juror
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misconduct; and (6) conduct a pretrial investigation.
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asserts claims based on trial counsel’s conflict of interest;
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9
He also
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prosecutorial misconduct; juror misconduct; trial court error in
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denying his Faretta motion; trial court error in excluding him from
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court hearings; and "cumulative effect of error.”
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The two claims of trial court error were addressed on the
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merits in the appellate court's unpublished opinion on direct
6
appeal.
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on habeas review and must be reviewed independently by this Court.
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I. Ineffective Assistance of Counsel
9
United States District Court
For the Northern District of California
10
All other claims were denied summarily by the state courts
A. Legal Standard
A claim of ineffective assistance of counsel is cognizable as
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a claim of denial of the Sixth Amendment right to counsel, which
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guarantees not only assistance, but effective assistance of
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counsel.
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prevail on a Sixth Amendment ineffectiveness of counsel claim, a
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petitioner must establish two things.
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that counsel's performance was deficient, i.e., that it fell below
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an "objective standard of reasonableness" under prevailing
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professional norms.
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what defense counsel could have done, but rather whether the
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choices made by defense counsel were reasonable.
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Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).
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of counsel's performance must be highly deferential, and a court
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must indulge a strong presumption that counsel's conduct falls
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within the wide range of reasonable professional assistance.
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Strickland, 466 U.S. at 689.
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that he was prejudiced by counsel's deficient performance, i.e.,
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that "there is a reasonable probability that, but for counsel's
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Strickland v. Washington, 466 U.S. 668, 686 (1984).
Id. at 687-88.
To
First, he must establish
The relevant inquiry is not
Babbitt v.
Judicial scrutiny
Second, a petitioner must establish
10
1
unprofessional errors, the result of the proceeding would have been
2
different."
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sufficient to undermine confidence in the outcome.
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Id. at 694.
A reasonable probability is a probability
Id.
A court need not determine whether counsel's performance was
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deficient before examining the prejudice suffered by the petitioner
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as the result of the alleged deficiencies.
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Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995).
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B. Failure to Interview and Call Witnesses
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The duty to investigate and prepare a defense does not require
Id. at 697; Williams v.
United States District Court
For the Northern District of California
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that every conceivable witness be interviewed.
Hendricks v.
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Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995).
When the record
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shows that the lawyer was well-informed and the petitioner fails to
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state what additional information would be gained by the discovery
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he now claims was necessary, an ineffective assistance claim fails.
15
Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986).
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petitioner's mere speculation that a witness might have given
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helpful information if interviewed is not enough to establish
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ineffective assistance.
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Cir.), amended, 253 F.3d 1150 (9th Cir. 2001).
20
A
Bragg v. Galaza, 242 F.3d 1082, 1087 (9th
To establish prejudice caused by the failure to call a
21
witness, a petitioner must show that the witness was likely to have
22
been available to testify, that the witness would have given the
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proffered testimony, and that the witness’s testimony created a
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reasonable probability that the jury would have reached a verdict
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more favorable to the petitioner.
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862, 872-73 (9th Cir. 2003).
27
28
11
Alcala v. Woodford, 334 F.3d
1
1. Marie Mason
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Petitioner argues that the testimony of Marie Mason, a
civilian “drive-along” who accompanied Officer Huesman on the night
4
he arrested Petitioner, would have impeached Officer Huesman.
5
Petitioner states that, when Officer Huesman was in Petitioner’s
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motel room, he found crack cocaine and a crack pipe in a fanny-pack
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tied around Petitioner’s waist.
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testified that he found no drugs or contraband on Petitioner.
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Petitioner reasons that, if the jury heard that Officer Huesman
10
United States District Court
For the Northern District of California
3
lied about not finding the contraband, they would question the
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credibility of his testimony about finding a gun outside
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Petitioner’s motel window and a white tank top in Petitioner’s car
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that was similar to the one worn by the robber.
14
However, at trial, Officer Huesman
Petitioner provides no evidence that Officer Huesman found
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crack cocaine and a crack pipe in Petitioner’s possession on the
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night of his arrest.
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counsel cannot be faulted for failing to elicit testimony that he
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possessed contraband drugs.
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this would help his defense, it likely would have been more
20
prejudicial than helpful to him.
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ineffective for failing to call Mason as a witness.
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2. Prior Owner of Petitioner’s Ford Probe
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And, even if Petitioner is correct, his
Contrary to Petitioner’s theory that
Therefore, counsel was not
Petitioner argues the prior owner of his Ford Probe would have
24
testified that the car, which is silver, does not appear to be
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gold.
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testified that the suspect’s car was gold.
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showed her pictures of Petitioner’s car, she stated that it was not
28
12
This was important because prosecution witness Jennifer W.
When defense counsel
1
the robber’s car because the color was different.
2
Huesman testified that Petitioner’s car looked gold under certain
3
lighting conditions.
4
Petitioner’s car but they could not because it had been lost from
5
the police impound lot.
6
owner would refute Officer Huesman’s testimony.
7
However, Officer
During deliberations, the jury asked to see
Petitioner contends that the car’s former
Petitioner’s theory about the former owner’s testimony is pure
8
speculation.
9
counsel’s deficient performance or resulting prejudice.
United States District Court
For the Northern District of California
10
11
This speculation is insufficient to demonstrate
3. Eva Sheehan
Petitioner states that Balvinder Kaur told the police that,
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before the robbery of the Body Time shop, she saw the robber in the
13
bookstore next door talking to Eva Sheehan, who showed the robber
14
some books.
15
Kaur’s statement that “the only thing Petitioner had in common with
16
the suspect is that they were both black males.”
17
claim that Sheehan would so testify is mere speculation and
18
insufficient to support a showing of counsel’s deficient
19
performance or resulting prejudice.
20
Petitioner argues that Sheehan would corroborate
Petitioner’s
4. Crime Scene Photographer
21
Petitioner argues that the crime scene photographer could have
22
testified to the true color of Petitioner’s car and whether a white
23
tank top was found in Petitioner’s car.
24
the photographer would so testify is pure conjecture and
25
insufficient to state a claim of ineffective assistance of counsel.
26
27
28
Petitioner’s claim that
Therefore, the state court’s denial of the ineffective
assistance of counsel claim based on the failure to call witnesses
13
1
was not an objectively unreasonable application of clearly
2
established federal law.
3
C. Failure to Investigate and to Present Evidence
4
Failure to present probative, non-cumulative, available
5
evidence in support of a chosen defense strategy is deficient
6
performance absent a reasonable tactical justification.
7
334 F.3d at 870-71.
8
9
Alcala,
1. Jail Dental Records
Petitioner argues that defense counsel was ineffective for
United States District Court
For the Northern District of California
10
failing to present his jail dental records, showing that some of
11
his teeth were removed following his arrest, to impeach
12
identification witness Karen Nelson.
13
cross-examined Nelson at length, including about her description of
14
Petitioner’s teeth.
15
identification was based primarily on Petitioner’s face, not his
16
teeth.
17
Petitioner’s dental records would not have impeached Nelson’s
18
testimony, and counsel’s performance was not deficient for failing
19
to do so.
20
21
RT at 178-190.
However, defense counsel
Nelson was certain that her
RT at 179:21-23; RT at 185:21-23.
Presentation of
2. Rock Cocaine
Petitioner argues that counsel was ineffective for failing to
22
impeach Officer Huesman by presenting photographs of a crack
23
cocaine pipe and rock cocaine found in Petitioner’s motel room.
24
discussed previously, the fact that Petitioner was in possession of
25
cocaine and drug paraphernalia would have been more prejudicial
26
than helpful to his defense.
27
introduce the alleged photograph of contraband found in
28
As
Therefore, counsel’s decision not to
14
1
Petitioner’s possession does not constitute ineffective assistance.
2
3
3. Records from Ford Motor Company
Petitioner argues that evidence from the Ford Motor Company
4
showing that the 1992 Ford Probe was released to the public in
5
limited colors would have established that his Probe was silver,
6
not gold.
7
case given that defense counsel effectively cross-examined witness
8
Jennifer W. and elicited testimony from her that Petitioner’s car,
9
which was silver, could not have been the robber’s car because she
United States District Court
For the Northern District of California
10
11
This evidence would not have strengthened Petitioner’s
saw the robber drive a gold Probe.
Therefore, the state court’s denial of the ineffective
12
assistance of counsel claim based on failure to investigate or
13
introduce evidence was not an objectively unreasonable application
14
of clearly established federal law.
15
D. Failure to Impeach Witnesses
16
Great deference is afforded to counsel’s decisions at trial,
17
including whether to cross-examine a particular witness.
18
Uttecht, 530 F.3d 1031, 1036 (9th Cir. 2008).
19
Brown v.
1. Officer Huesman
20
Petitioner argues counsel should have impeached Officer
21
Huesman with the photograph of contraband in his hotel room.
22
discussed above, the impeachment of Officer Huesman with the
23
photograph of contraband would have been prejudicial to
24
Petitioner’s defense.
25
26
27
28
As
2. Amelia Chellew
Amelia Chellew identified another individual in the police
lineup, but later called the police station to say she had made a
15
1
mistake.
2
Petitioner contends that Chellew’s co-worker, Evelyn Herrera,
3
testified that, after the police line-up, she and Chellew left the
4
police station together, and Herrera had told Chellew that Chellew
5
had picked the wrong person.
6
ineffective for failing to impeach Chellew with her statement that
7
she had not spoken to anyone after she made her first
8
identification.
9
about the change in her identification and about the fact that she
She then identified Petitioner as the bank robber.
Petitioner argues that counsel was
However, defense counsel cross-examined Chellew
United States District Court
For the Northern District of California
10
may have been relying on information from other witnesses rather
11
than her own memory to make the second identification.
12
557.
13
RT at 553-
Therefore, counsel’s performance was not deficient.
3. Lesley Pulaski
14
Petitioner criticizes how counsel impeached Pulaski regarding
15
a 911 call she made to report the Ovation robbery, after she
16
testified that she did not make such a call.
17
disagreements regarding trial strategy, including the cross-
18
examinations of witnesses, are insufficient to support a claim of
19
ineffective assistance of counsel.
20
F.2d 369, 375 (9th Cir. 1981) (difference of opinion as to trial
21
tactics does not constitute denial of effective assistance);
22
Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984) (tactical
23
decisions are not ineffective assistance simply because, in
24
retrospect, better tactics are known to have been available).
25
However,
See United States v. Mayo, 646
Therefore, the state court’s denial of this claim was not an
26
objectively unreasonable application of clearly established federal
27
law.
28
16
1
E. Failure to Object to Evidence and to Seek Instruction
Regarding “Lesser Evidence”
2
1. White Tank Top
3
Petitioner contends that counsel was ineffective for failing
4
to object to the introduction into evidence of a white tank top
5
that connected him to the crimes at the Boogie Woogie Bagel Boy
6
shop.
He argues that the prosecutor introduced the tank top into
7
evidence without laying a foundation regarding who found it and how
8
it was connected to Petitioner.
However, Oakland Police Officer
9
Sam Francis testified that he searched Petitioner’s Ford Probe
United States District Court
For the Northern District of California
10
after Petitioner was arrested and recovered a white tank top from
11
it.
RT at 2766:8-25.
Officer Francis identified the white tank
12
top that the prosecutor showed him in court as the one he
13
recovered, based on the fact that it was the same size and color
14
and was marked with an evidence tag in his handwriting.
He stated
15
that after he recovered the shirt he turned it in to the Oakland
16
Police Department’s property section.
Because the prosecutor laid
17
a proper foundation for introducing the tank top into evidence,
18
defense counsel cannot be faulted for not objecting.
19
2. “Tainted” Photograph of Petitioner’s Car
20
Petitioner argues that counsel should have objected to the
21
admission into evidence of a “tainted” photograph of his car that
22
was taken under “false lighting” to give the appearance of a gold
23
tint.
However, counsel did object to the introduction of this
24
photograph.
RT at 1806-07.
The court overruled the objection, but
25
also admitted into evidence defense counsel’s photograph depicting
26
the car as silver in color.
Therefore, this claim of
27
28
17
1
ineffectiveness of counsel fails.
2
3
3. Photograph of Black Tote Bag
Petitioner argues that counsel should have objected to the
4
introduction of a photograph of a black tote bag found in his car
5
at the time of his arrest in lieu of the actual bag which had been
6
lost with his car.
7
evidence.”
8
evidence.
Petitioner claims the photograph was “lesser
This is not a valid objection to the admissibility of
Accordingly, the state court’s denial of the claim of
10
United States District Court
For the Northern District of California
9
ineffective assistance of counsel based on failure to object to
11
evidence was not an objectively unreasonable application of clearly
12
established federal law.
13
14
F. Failure to Prepare For Trial
1. Line-up Cards for Uncharged Bank Robberies
15
Petitioner faults counsel for failing to obtain the line-up
16
cards shown to witnesses of two bank robberies with which he was
17
not charged.
18
was not identified by any of the witnesses.
19
evidence would have proved that he was not involved in the
20
California Bank and Trust robbery.
21
Petitioner’s photograph appeared in those lineups and
He argues that this
The record shows that mid-trial counsel moved for discovery of
22
the police reports, photos and victim contact information
23
concerning the two uncharged bank robberies.
24
Counsel argued that, if it could be determined that the robber in
25
one or both of those robberies was the same person who robbed the
26
California Bank and Trust, it would cast doubt on the reliability
27
of the identifications of Petitioner as the California Bank and
28
18
RT at 2236-48.
1
Trust robber.
2
review of the evidence connected to the uncharged robberies and
3
found that it was not likely to lead to exculpatory evidence in
4
Petitioner’s case.
5
had counsel conducted a pre-trial investigation of the two
6
uncharged robberies, she would have been in a better position to
7
obtain exculpatory evidence is pure speculation.
8
moved for this information during trial, Petitioner cannot show
9
that her performance was deficient.
RT at 2235.
The trial court conducted an in camera
RT at 2548-52.
Petitioner’s contention that,
Because counsel
Nor has he shown that a pre-
United States District Court
For the Northern District of California
10
trial investigation would have yielded evidence that would have
11
changed the outcome of the jury’s verdict.
12
13
2. 911 Printout
Petitioner faults counsel for failing to obtain the printout
14
of Pulaski’s 911 call in order to impeach her.
15
previously, counsel cross-examined Pulaski regarding her 911 call,
16
although Petitioner disagreed with how she did it.
17
not reflect that counsel’s cross-examination of Pulaski was
18
ineffective.
19
20
As discussed
The record does
3. Investigator’s Report From Video Line-up
Petitioner faults counsel for not obtaining the investigator’s
21
report from a video line-up viewed by Grossman-de Vries, which
22
indicated that, after Grossman-de Vries identified Petitioner in
23
the line-up, she asked the investigator if she had picked the right
24
person.
25
would have created reasonable doubt.
26
that counsel did cross-examine Grossman-de Vries about her question
27
to the investigator.
28
Petitioner argues that, had counsel elicited this fact, it
RT at 1124.
19
However, the record shows
Therefore, counsel’s performance
1
was not deficient in this regard.
2
3
4. Loss of Petitioner’s Car Before Trial
Petitioner faults counsel for failing to discover before trial
4
that his Ford Probe had been lost.
5
have sought sanctions against the prosecutor for losing “the most
6
important evidence” concerning the robbery and sexual assault that
7
took place at the Boogie Woogie Bagel Boy shop.
8
record shows that, during the trial, counsel became aware of the
9
loss and used defense photographs of the Ford Probe to establish
He argues that counsel could
However, the
United States District Court
For the Northern District of California
10
that the car was silver.
11
not demonstrate prejudice from counsel’s alleged failure to learn
12
of the loss sooner or to move for sanctions against the prosecutor.
13
14
15
16
RT at 1806-08; 1827-30.
Petitioner does
5. Severance of Sexual Assault Charge
Petitioner argues that counsel was ineffective for failing to
move to sever the sexual assault charge from the robbery charges.
A misjoinder of counts may prejudice a defendant sufficiently
17
to render his trial fundamentally unfair in violation of due
18
process.
19
To prevail on such a claim, the petitioner must demonstrate such
20
prejudice, id., and that the misjoinder had a substantial and
21
injurious effect or influence in determining the jury's verdict.
22
Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000).
23
a "high risk of undue prejudice whenever . . . joinder of counts
24
allows evidence of other crimes to be introduced in a trial of
25
charges with respect to which the evidence would otherwise be
26
inadmissible."
27
Cir. 1986).
28
Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997).
There is
United States v. Lewis, 787 F.2d 1318, 1322 (9th
But joinder generally does not result in prejudice if
20
1
the evidence of each crime is simple and distinct, and the jury is
2
properly instructed so that it may compartmentalize the evidence.
3
Bean v. Calderon, 163 F.3d 1073, 1085-86 (9th Cir. 1998).
4
At the hearing on jury instructions, defense counsel stated
5
that, at the beginning of the trial, she should have moved to sever
6
the sexual assault count.
7
requested that the court give a limiting instruction.
8
agreed to instruct the jury with the following modification of
9
CALJIC No. 17.02:
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
RT at 3250.
To remedy this, counsel
The court
Each Count charges a distinct crime. You must decide
each Count separately and each Count must be proved
beyond a reasonable doubt. The defendant may be found
guilty or not guilty of any or all of the crimes charged.
The evidence introduced at trial may be relevant to more
than one Count. In deciding whether the defendant is
guilty or not guilty of any of the charged crimes you may
consider all relevant evidence. However, a verdict as to
any Count is not considered to be evidence and thus
cannot be considered by you in your determination as to
other Counts.
Your finding as to each Count must be stated in a
separate verdict.
17
CT at 701; RT at 3538.
18
The court also instructed the jury with CALJIC No. 2.91, as
19
follows:
20
21
The burden is on the People to prove beyond a reasonable
doubt that the defendant is the person who committed the
crimes with which he is charged.
22
23
24
25
26
27
28
If, after considering the circumstances of the
identification and any other evidence in this case, you
have a reasonable doubt whether the defendant was the
person who committed any crime charged by the
Information, you must give the defendant the benefit of
that doubt and find him not guilty of that crime.
CT at 686; RT at 3287.
Given these instructions and the fact that the sexual assault
21
1
charge was simple and distinct from the unrelated robbery charges,
2
any prejudice that was created by the joinder of the charges was
3
remedied.
4
Petitioner cannot show prejudice great enough to render his trial
5
fundamentally unfair or a reasonable probability that, but for
6
counsel’s error, the result of the proceeding would have been
7
different.
8
Even if counsel’s performance had been deficient,
6. Closing Argument Lacked Focus
Petitioner contends that counsel was unprepared for closing
10
United States District Court
For the Northern District of California
9
and, as a result, her argument lacked focus and was confusing to
11
the jurors.
12
and vigorously defended Petitioner in her closing argument.
13
3383-3518.
14
or prejudice from counsel’s closing argument.
However, the record shows that counsel was prepared
RT at
Petitioner fails to demonstrate deficient performance
15
Therefore, the state court’s denial of Petitioner’s claims
16
that counsel failed to prepare for trial was not an objectively
17
unreasonable application of established federal law.
18
G. Conflict of Interest
19
Petitioner argues that counsel “labored under a conflict”
20
because she was assigned this case by the public defender’s office
21
right before trial and did not seek a continuance to investigate
22
and prepare for it.
23
Petitioner’s individual claims of ineffective assistance have merit
24
and the trial record demonstrates that counsel competently defended
25
Petitioner.
26
not an objectively unreasonable application of established federal
27
law.
28
However, as discussed above, none of
Therefore, the state court’s denial of this claim was
22
1
II.
Juror Misconduct and Ineffective Assistance Based on Counsel’s
Failure to Investigate Juror Misconduct
2
Petitioner argues that prejudicial juror misconduct occurred
3
when several jurors conducted their own investigation.
4
A. Background
5
The following facts are taken from the appellate court’s
6
opinion addressing Petitioner’s claim that the trial court erred in
7
denying his post-verdict motion for access to confidential juror
8
information.1
9
After the jury returned its verdict, defense counsel moved the
United States District Court
For the Northern District of California
10
trial court for confidential juror information in order to question
11
the jurors because, during her discussions with jurors immediately
12
after the verdict, several told her that, during deliberations,
13
they looked for Ford Probes and silver cars “to see if they turned
14
gold.”
The court denied the motion without prejudice, stating that
15
the defense had the duty to try on its own to contact the jurors,
16
and that there had not been an adequate showing of misconduct.
17
One month later, defense counsel renewed the motion, stating
18
that the public defender’s office had been able to contact only six
19
of the twelve jurors.
At a hearing on the renewed motion, defense
20
investigator Paul Perez testified that he had spoken to several
21
jurors.
One juror told Perez that he was familiar with paints from
22
his work experience as a painter, and he knew that paints change
23
color under certain lighting conditions.
He said that he was not
24
25
1
26
27
28
The claim of juror misconduct was not before the appellate
court on direct appeal. However, the claim based on access to
confidential juror information is based upon the same facts as the
claim of juror misconduct.
23
1
aware of any outside information being brought into the
2
deliberations.
3
observations that car colors change under certain lighting
4
conditions, but that “this knowledge was not brought into the
5
case.”
6
jurors regarding past experiences, observing car colors,” but no
7
jurors actively went out and made observations that they discussed
8
in the jury room.
9
Another juror told Perez that she knew from her own
She said that there “may have been discussion between
The court gave defense counsel the first names of the
United States District Court
For the Northern District of California
10
remaining six jurors so that counsel could contact them.
11
Subsequently, the defense filed a motion for a new trial, attaching
12
a declaration from Perez.
13
relevant portion of Perez’ declaration as follows:
14
15
16
17
18
19
The appellate court summarized the
Juror No. 4 told Perez that during deliberations, the
foreperson told the group that he had seen a parked car
that was either gold or silver in color and had spent
some time looking at it, and that after doing so, the
foreperson was convinced that the colors gold and silver
looked similar under certain conditions. According to
Juror No. 4, another juror told the group that when he
was visiting a paint store on personal business, he asked
someone in the store if the colors gold and silver could
be mistaken for each other. Juror No. 4 did not recall
the answer, but the other juror shared it with the group
and it was “not favorable to [defendant].”
20
People v. Davis, 2005 Cal. App. Unpub. LEXIS 9593 at *36-37.
21
Juror No. 4 also stated that, during deliberations, another
22
juror said that she knew someone who worked at a clinic that dealt
23
with sexual assaults and that she had some knowledge in this area.
24
But, Juror No. 4 could not recall what details the other juror
25
shared with the group.
26
The trial court denied the motion for new trial.
27
28
24
1
B. Legal Standard
2
The Sixth Amendment guarantees to the criminally accused a
3
fair trial by a panel of impartial jurors.
4
Irvin v. Dowd, 366 U.S. 717, 722 (1961).
5
trial is defined as "extrinsic."
6
504 (9th Cir. 1987).
7
a defendant of the rights to confrontation, cross-examination and
8
assistance of counsel embodied in the Sixth Amendment.
9
Borg, 60 F.3d 608, 612 (9th Cir. 1995).
U.S. Const. amend. VI;
Evidence not presented at
Marino v. Vasquez, 812 F.2d 499,
Jury exposure to extrinsic evidence deprives
Lawson v.
Although jurors may bring
United States District Court
For the Northern District of California
10
their life experiences to a case, it is improper for them to decide
11
a case based on personal knowledge of facts specific to the
12
litigation.
13
2002).
14
established that the exposure to extrinsic evidence had a
15
"'substantial and injurious effect or influence in determining the
16
jury's verdict.'"
17
2000) (quoting Brecht, 507 U.S. at 623).
Mancuso v. Olivarez, 292 F.3d 939, 950 (9th Cir.
A petitioner is entitled to habeas relief only if it can be
Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir.
18
C. Analysis
19
Even if some of the jurors’ observations and discussions
20
regarding paints changing colors improperly brought extrinsic
21
evidence into the jury deliberation process, it did not add
22
anything to the evidence already presented to the jury, that the
23
silver color of the Ford Probe could appear to be gold under
24
certain lighting conditions.
25
establish that these observations were prejudicial.
26
by the juror who knew someone who worked at a sexual assault clinic
27
was general information based upon life experience.
28
Therefore, Petitioner cannot
25
The statement
Therefore,
1
Petitioner does not demonstrate that any extrinsic evidence had a
2
substantial and injurious effect or influence in determining the
3
jury’s verdict.
4
Furthermore, although Petitioner claims his counsel failed to
5
investigate juror misconduct, the record proves otherwise.
6
moved twice for the release of confidential juror information so
7
that her investigator could question the jurors regarding any
8
extrinsic information that was discussed during deliberations.
9
After counsel discovered that several jurors had discussed arguably
Counsel
United States District Court
For the Northern District of California
10
extrinsic information, she moved for a new trial based on juror
11
misconduct.
12
the fact that counsel diligently investigated and litigated this
13
issue on Petitioner’s behalf.
14
That the court denied the motion does not detract from
Therefore, the state court’s denial of the claims of juror
15
misconduct and ineffective assistance based on failure to
16
investigate it was not an objectively unreasonable application of
17
established federal law.
18
III. Prosecutorial Misconduct
19
Prosecutorial misconduct is cognizable in federal habeas
20
corpus.
21
defendant's due process rights are violated when a prosecutor's
22
misconduct renders a trial "fundamentally unfair."
23
Darden, the first issue is whether the prosecutor’s conduct was
24
improper; if so, the next question is whether such conduct infected
25
the trial with unfairness.
26
(9th Cir. 2005).
27
were undesirable or even universally condemned, the relevant
28
Darden v. Wainwright, 477 U.S. 168, 179 (1986).
Id.
A
Under
Tan v. Runnels, 413 F.3d 1101, 1112
“It is not enough that the prosecutors’ remarks
26
1
question is whether the prosecutors’ comments so infected the trial
2
with unfairness as to make the resulting conviction a denial of due
3
process.”
4
calling defendant “a vicious animal” deserved condemnation, but did
5
not render the trial unfair).
6
Darden, 477 U.S. at 179-80 (holding that prosecutor
Factors which a court may take into account in determining
whether misconduct constitutes a due process violation are (1) the
8
weight of evidence of guilt; (2) whether the misconduct was
9
isolated or part of an ongoing pattern, Lincoln v. Sunn, 807 F.2d
10
United States District Court
For the Northern District of California
7
805, 809 (9th Cir. 1987); (3) whether the misconduct related to a
11
critical part of the case, Giglio v. United States, 405 U.S. 150,
12
154 (1972); and (4) whether a prosecutor's comment misstated or
13
manipulated the evidence, Darden, 477 U.S. at 182.
14
constitutional error occurred, habeas relief is not available
15
unless the error had a substantial and injurious effect or
16
influence on the jury’s verdict.
17
930 (9th Cir. 1995) (citing Brecht, 507 U.S. at 638).
If
Johnson v. Sublett, 63 F.3d 926,
18
A. Describing Petitioner as a “Terrorist”
19
Petitioner argues that, during closing argument, the
20
prosecutor twice referred to him as a “terrorist” and that her use
21
of this word inflamed the jury’s fear and anger.
22
In the prosecutor’s closing argument, she described the manner
23
in which the robberies took place, stating, “First the manner of
24
his entry.
25
a service in a friendly way, and then he turns terrorist.”
26
3374.
27
to rob machines and money.
28
Every single time he goes in, he requests a product or
RT at
She also stated, “You know, this defendant is not choosing
He’s not, you know, choosing to get in
27
1
and out.
2
terrorize these people by putting them in a room, holding them
3
captive, essentially.”
4
He literally gets in and he goes out of his way to
RT at 3377.
The fact that the prosecutor chose inflammatory words to
5
describe the robber’s behavior is insufficient, under Darden, to
6
rise to the level of a constitutional violation.
7
Petitioner fails to demonstrate that the prosecutor used these
8
words as part of an ongoing pattern to inflame the jury or
9
misstated or manipulated the evidence.
United States District Court
For the Northern District of California
10
Furthermore,
The use of these words did
not render Petitioner’s trial fundamentally unfair.
11
B. Perjury
12
Petitioner argues that the prosecutor forced witness Marzocchi
13
to commit “perjury” in testifying that she recognized the robber’s
14
jacket, because the prosecutor showed the jacket to Marzocchi in
15
the courthouse prior to her testimony.
16
cross-examination, defense counsel established that the prosecutor
17
had shown the jacket to Marzocchi before she testified and
18
Marzocchi admitted that she couldn’t say that it definitely was the
19
jacket that the robber wore.
20
remedied any improper testimony the prosecutor caused in
21
Marzocchi’s identification of the jacket.
22
fails to establish that Marzocchi committed perjury or that her
23
identification of the jacket was contaminated by the act of the
24
prosecutor.
RT at 598.
RT at 645-46.
However, on
The cross-examination
Therefore, Petitioner
25
C. Loss of Ford Probe
26
Petitioner argues that the prosecutor committed misconduct by
27
28
losing or destroying his Ford Probe to keep the defense from
28
1
establishing that its true color was silver.
2
previously, defense counsel introduced two photographs of
3
Petitioner’s Probe to establish that it was silver-colored.
4
Therefore, Petitioner does not establish a due process violation
5
from the loss of his car.
However, as discussed
6
D. Interference with Defense Investigation
7
Petitioner argues that the prosecutor interfered with the
8
defense investigation of juror misconduct by sending a letter to
9
the jurors.
United States District Court
For the Northern District of California
10
After the judge ruled that the defense could contact the
11
jurors to investigate alleged juror misconduct, the prosecutor sent
12
a letter to the jurors.
13
not to discuss their deliberations or verdict with anyone and
14
requested an opportunity to be present if any juror chose to
15
discuss the case with the defense.
16
She informed them that they had the right
CT at 830.
Petitioner argues that the prosecutor’s letter told the jurors
17
not to speak to defense counsel until they contacted the district
18
attorney.
19
impede the defense investigation of juror misconduct.
20
after speaking to several jurors, the defense obtained enough
21
information to move for a new trial based on juror misconduct.
This mischaracterizes the letter.
The letter did not
In fact,
22
Therefore, the state court’s denial of the prosecutorial
23
misconduct claims was not an objectively unreasonable application
24
of established federal law.
25
IV. Denial of Faretta Motion
26
A. State Court Opinion
27
The following are the relevant facts taken from the appellate
28
29
1
2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
court’s opinion on direct appeal.
On June 2, 2003, the date his case was supposed to go to
trial, defendant appeared in court, represented by public
defender Judith Browne. The court asked the parties if
they were ready to proceed. Browne replied that she was
ready to try the case, but that defendant wanted to
address the court. Defendant stated that since he had
not been able to reach a satisfactory plea agreement, he
wanted to represent himself. According to defendant, he
had wanted to represent himself two and a half months
previously, but his case had been set for trial without
his presence in court. He expressed concern that his
current attorney had only been assigned to his case for a
short time, and questioned whether she was ready to
proceed to trial. According to defendant, he wanted to
call 17 witnesses in his defense. Defendant indicated he
would need at least 90 days to prepare for trial. The
trial court denied the motion as untimely, noting that
the case had been pending for a year and a courtroom was
available.
. . . The judge assigned to try the case noted that the
court minutes indicated that at the appearance at which
defendant’s trial date was set, defendant was represented
by his former counsel, Ms. Fasulis, but that defendant
had not been brought into the courtroom. . . .
[Subsequently, the case was assigned to Browne]. Browne
told the court she had spent several hours with Davis on
April 15 and that they had discussed the case, but that
defendant did not tell her he wanted to represent
himself. [S]he first heard of defendant’s desire to
represent himself on the day of trial, when she told him
of the offer of a 50-year sentence.
18
19
20
21
22
. . . [Davis] said that if he had been inside the
courtroom at the last hearing and had known the matter
would be bound over for trial, he would have exercised
his right to represent himself. However, he did not tell
his attorney of his desire to represent himself, and did
not contact her before the scheduled trial date.
People v. Davis, 2005 Cal. App. Unpubl. LEXIS 9593 at *10-13.
23
The court ruled as follows:
24
27
Defendant made his motion on the day his case was set for
trial. We agree with the trial court that the motion was
not made within a reasonable time before trial, and
therefore the trial court had discretion to deny it.
. . . We also conclude that the trial court did not abuse
its discretion. Defendant made the Faretta motion on the
day of trial, in response to his dissatisfaction with the
28
30
25
26
1
2
3
4
5
6
plea agreement he had been offered. The trial date had
been set two and a half months earlier, and defendant had
been aware of the date for more than two months. During
that time, defendant informed neither his counsel nor the
court that he wished to represent himself. Both the
prosecutor and defense counsel were prepared to proceed
on the date set for trial. Defendant estimated that he
would need at least 90 days to prepare for trial. While
it is true that defendant had shown no other proclivity
to delay trial, we conclude that in the circumstances,
the court was within its discretion to deny the motion as
untimely.
7
People v. Davis, 2005 Cal. App. Unpubl. LEXIS 9593 at *15-16.
8
B. Federal Authority
9
A criminal defendant has a Sixth Amendment right to selfUnited States District Court
For the Northern District of California
10
representation.
Faretta v. California, 422 U.S. 806, 832 (1975).
11
But a defendant's decision to waive the right to counsel must be
12
unequivocal, knowing and intelligent, timely, and not for purposes
13
of securing delay.
Id. at 835.
With respect to timeliness,
14
Faretta clearly established that, if all the requirements for a
15
Faretta motion are met, a court must grant a Faretta request when
16
it is made “weeks before trial.”
Marshall v. Taylor, 395 F.3d
17
1058, 1061 (9th Cir. 2005).
However, Faretta did not establish
18
when such a request would be untimely.
Id.
19
C. Analysis
20
Citing People v. Windham, 19 Cal. 3d 121, 128 n.5 (1977),
21
Petitioner argues that he was justified in making his Faretta
22
motion on the day his case was set for trial.
He reasons that,
23
because he had not been brought into the courtroom for the three
24
previous hearings, he did not know when his case was set for trial
25
and, thus, he had no other opportunity to make a Faretta motion but
26
on the day of the trial.
27
28
31
1
Petitioner’s citation to state authority is not relevant on
2
federal habeas review.
3
authority on this issue indicates that a Faretta motion is timely
4
if it is made weeks before trial.
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day of his trial, not weeks before.
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court’s denial of this claim was not contrary to or an unreasonable
7
application of Supreme Court authority.
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V. Petitioner’s Absence From Hearings
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United States District Court
For the Northern District of California
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The only established Supreme Court
Petitioner’s motion was made the
Therefore, the state appellate
A. State Court Opinion
The state appellate court recognized that a criminal defendant
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has a constitutional right to be present at any stage of the
12
proceeding that is critical to the outcome of his case, but noted
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that it is the defendant’s burden to show that his absence
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prejudiced him or denied him a fair trial.
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The court ruled,
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Defendant has failed to meet that burden here. . . . He
asserts [] that if he had been present at the [trial
setting] hearing, he would have realized that there was a
likelihood that his case would be tried on the scheduled
June 2, 2003, trial date, and that he would have asserted
his right to self-representation. In our view,
defendant’s assertions are speculative, and do not
support his claim. The record indicates that defendant’s
trial counsel advised him shortly after the March 18,
2003, hearing that the matter had been set for trial. It
also indicates that she met with him approximately three
weeks later and spent several hours discussing the case
with him, but that defendant did not tell her he wished
to represent himself until the day of trial. Finally, it
appears that defendant made no attempt to communicate to
either the trial court or his counsel his desire to
represent himself in the intervening period of more than
a month and a half. These facts do not suggest that
defendant would have asserted his right to selfrepresentation if he had been personally present at the
March 18, 2003, hearing. In the circumstances, we cannot
conclude that defendant’s presence at the hearing bore a
substantial relation to his ability to defend himself.
27
For the same reasons, we also reject defendant’s claim
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1
2
that he was deprived of his constitutional right to equal
protection because, as an in-custody defendant who had
not been released on bail, he was unable to make the
decision to attend the hearing.
3
People v. Davis, 2005 Cal. App. Unpubl. LEXIS 9593 at *18-19.
4
B. Federal Authority
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Due process protects a defendant's right to be present "at any
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stage of the criminal proceeding that is critical to its outcome if
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his presence would contribute to the fairness of the procedure."
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Kentucky v. Stincer, 482 U.S. 730, 745 (1987).
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C. Analysis
United States District Court
For the Northern District of California
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Petitioner argues that the appellate court erred by concluding
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that he did not establish that he would have asserted his Faretta
12
rights had he been present at the March 18, 2003 hearing and
13
faulting him for not telling his newly appointed attorney or the
14
court about his desire to represent himself.
He argues that he did
15
not expect that a special court date would have been set to hear a
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Faretta motion because he was not allowed in court for other
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hearings on his case.
He points to the fact that he made a motion
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for new counsel on the day of his preliminary hearing as proof that
19
he was dissatisfied with his defense counsel a year before his
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trial date.
21
The appellate court carefully considered the facts relating to
22
Petitioner’s request for self-representation.
It determined that
23
his presence at the trial-setting hearing would not have caused him
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to make his Faretta motion earlier.
This finding is not
25
objectively unreasonable.
Furthermore, the fact that Petitioner
26
had earlier moved under People v. Marsden, 2 Cal. 3d 118 (1970), to
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1
substitute another attorney for Ms. Fusuli, his former attorney, is
2
not relevant to his later alleged desire to represent himself
3
rather than be represented by Ms. Browne.
4
Therefore, Petitioner has failed to establish that the state
5
court’s denial of this claim was contrary to or an unreasonable
6
application of established Supreme Court authority.
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VI. Cumulative Error
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9
Although no single trial error is sufficiently prejudicial to
warrant reversal, the cumulative effect of several errors may still
United States District Court
For the Northern District of California
10
prejudice a petitioner so much that his conviction must be
11
overturned.
12
no single constitutional error, nothing can accumulate to the level
13
of a constitutional violation.
14
957 (9th Cir. 2002).
15
Alcala, 334 F.3d at 893-95.
However, where there is
Mancuso v. Olivarez, 292 F.3d 939,
As discussed above, Petitioner has not established the
16
existence of a single constitutional error.
17
court’s denial of this claim was not an objectively unreasonable
18
application of established federal law.
19
CONCLUSION
20
Therefore, the state
For the foregoing reasons, the petition for a writ of habeas
21
corpus is DENIED.
22
appealability.
23
28 U.S.C. foll. § 2254 (requiring district court to rule on
24
certificate of appealability in same order that denies petition).
25
A certificate of appealability should be granted "only if the
26
applicant has made a substantial showing of the denial of a
27
constitutional right."
28
The Court must rule on a certificate of
See Rule 11(a) of the Rules Governing § 2254 Cases,
28 U.S.C. § 2253(c)(2).
34
The Court finds
1
that Petitioner has not made a sufficient showing of the denial of
2
a constitutional right to justify a certificate of appealability.
3
The Clerk of the Court shall enter judgment, terminate all pending
4
motions, and close the file.
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IT IS SO ORDERED.
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Dated: 11/16/2011
CLAUDIA WILKEN
United States District Judge
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United States District Court
For the Northern District of California
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1
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
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3
SHERMAN L DAVIS,
Case Number: CV08-01978 CW
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Plaintiff,
CERTIFICATE OF SERVICE
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v.
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DERRAL G ADAMS et al,
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Defendant.
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United States District Court
For the Northern District of California
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/
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court,
Northern District of California.
That on November 16, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.
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Sherman Level Davis
CSP-Kern Valley (FBB1-209)
Prisoner Id D-40369
P.O. Box 5102
3000 West Cecil Ave.
Delano, CA 93216-6000
Dated: November 16, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk
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