Halbert v. Long

Filing 16

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY, re: 1 . Signed by Judge Hon. Lucy H. Koh on 4/13/2015. (sms, COURT STAFF) (Filed on 4/13/2015)

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FILED

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APR 13 2015

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RICHARD W. W!EKING
CLERK U.S. DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LAWRENCE HALBERT, SR.,

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Petitioner,
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v.
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WARDEN DAVID LONG,
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Respondent.
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No. C 13-2742 LHK (PR)

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ORDER DENYING PETITION FOR
WRit OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY

Petitioner, a state prisoner proceeding prose, filed a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Respondent was ordered to show cause why the petition should

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not be granted. Respondent has filed an answer, and petitioner has filed a traverse. Having

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reviewed the briefs and the underlying record, the court concludes that petitioner is not entitled

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to relief, and DENIES the petition.

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PROCEDURAL illSTORY
On June 11, 2010, petitioner was sentenced to a term of35 years to life in state prison

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after a jury convicted him of committing a lewd act upon a child, and it was found true that

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petitioner had two prior strikes. On December 1, 2011, the California Court of Appeal affirmed

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the judgment. On February 15, 2012, the California Supreme Court denied review. On June 25,

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2012, the United States Supreme Court denied petitioner's petition for writ of certiorari.

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Thereafter, petitioner filed unsuccessful state habeas petitions in Superior Court, the California
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Court of Appeal, and the California Supreme Court. Petitioner filed the underlying federal

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habeas petition on June 14, 2013.

BACKGROUND 1

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I.

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Prosecution Evidence
A. The Current Offense

On April 19, 2009, nine-year-old Jane Doe was entering a Costco store
with her parents and sister. Her father, Francisco, was behind her. Doe saw .
defendant leaving the store and walking toward her, carrying a cup in his left
hand. When defendant was a few inches away from Doe he switched the cup to
his right hand and then, as he passed, reached down with his left hand and
grabbed and squeezed Doe's buttocks.

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Doe was in shock and walked a few more steps when she heard her
father get mad. Defendant tried to leave, but Francisco would not let him.

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Francisco testified that he was three or four feet behind Doe as they
approached the store's entrance. He saw defendant approach Doe, transfer his
cup from his left hand to his right, swing his left hand back and grab and
squeeze Doe's bottom.

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Francisco stepped in front of defendant and angrily confronted him.
Defendant did not respond at first, but then he walked over to Doe and said
something to her. Doe looked scared. Another customer called the police while
Francisco prevented defendant from leaving. Defendant unlocked his bicycle
and tried to ride away, but Francisco grabbed the bike. Defendant then got off
the bike and tried to walk away, but a customer and the store manager stopped
him.

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Concord Police Officer Lisa Capocci arrived and spoke separately to
Francisco, Doe, and Doe's mother and sister. Doe said that defendant touched
her on the buttocks as he walked past her, and she applied pressure on Officer
Capocci's arm to show how defendant had touched her. Doe was trembling and
holding back tears during the interview.

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B. The Prior Offenses
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Defendant was convicted of sexual offenses in 1978, 1980, and 1989.
Two of the prior victims testified about the offenses.

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In 1978, 11-year-old J.G. was walking home from school. She was
wearing her school uniform over gym shorts. Defendant drove by her on a
motorcycle, pulled onto the sidewalk and stopped in J.G.'s path. He said his
motorcycle had broken down and asked J.G. to help him by holding a button
near the ignition. She complied, and bent down to press the button. Defendant
moved behind her, put one arm around her waist, reached underneath her skirt
and fondled her genitalia over her shorts. J.G. was very scared, started to cry
and told him to stop.

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The following facts are taken from the California Court of Appeal's opinion.

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After a couple of minutes defendant stopped and rode away. J.G. ran
home and told her parents what had happened. The incident resulted in
defendant's guilty plea to engaging in lewd conduct in a public place.
In 1980, 15-year-old S.F. was walking home from school when
defendant, her father's neighbor, drove up and offered her a ride. She accepted
and they drove around, eventually ending up in a deserted hilly area where
defendant stopped the car, said he had run out of gas, and left to call a friend for
help. When he returned they sat and waited for the friend. After about 45
minutes, defendant threatened S.F ., forced her to orally copulate him, raped her,
and masturbated with her bra. S.F. eventually escaped and ran to a nearby
house for help.

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S.F. testified that she always looked young for her age and that she still
looked like a child when she was 15. The jury was shown a photograph ofS.F.
at that age. Defendant entered a guilty plea to forcible rape.

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In addition to the testimony of J.G. and S.F., the parties stipulated that in
1989 defendant pleaded guilty to rape and annoying or molesting a child based
on a 1987 incident involving G.F.

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II.

Defense Case

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John Valentine was entering the Costco store when he saw the
confrontation between Francisco and defendant. He saw Francisco raise his
right hand, stick it in defendant's face and say, "Why did you do that?"
Defendant looked dumbfounded and did not respond. Francisco said, "You
touched my daughter" in a loud and confrontational voice. Francisco's two
daughters were looking at him with incredulous expressions.
Defendant testified that he was at Costco to get something to eat. As he
left the store he was carrying a soda in his left hand and his sunglasses in his
right. He was preoccupied, and did not notice Jane Doe or her family as he was
leaving. He moved the soda to his right hand so he could retrieve his bike keys
from his left hip, where he thought they were clipped to a belt loop. However,
as he reached for his keys he felt them in his right pocket, so he dropped his left
hand to his left side in order to switch the soda and his glasses to his left hand.
He felt the back of his pinky and ring finger hit something, but he thought it was
his own leg.
At that point a man approached him speaking in a loud and angry voice.
The man asked defendant why he did that and said something like "she's only
eight." Defendant responded to him, also with a raised voice, and then turned to
Doe and asked her if he had touched her. Doe looked scared.

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Defendant walked to his bike, with Doe's father following him. He
briefly attempted to leave on his bike because he was scared, but then he
realized that leaving was a bad decision and decided to stay. Doe's father
waited next to him until the police arrived.
Defendant admitted that he told police he did not touch Doe, but he said
he only meant he did not touch her with sexual intent. He admitted that he is
sexually attracted to young girls. He admitted that he molested J.G. and
forcibly raped S.F., and that in both cases he was unable to resist his sexual
urges. In 1987, when he was 29, defendant picked up 15-year-old hitchhiker,
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G.F., took her to a motel room, and forcibly raped her.
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People v. Halbert, No. A I28895, 20 II WL 6000868, at * I-*2 (Cal. App. Dec. I, 20 II).

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STANDARD OF REVIEW

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This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties ofthe United States." 28 U.S.C. § 2254(a). The

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petition may not be granted with respect to any claim that was adjudicated on the merits in state

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court unless the state court's adjudication of the claim: "(I) resulted in a decision that was

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contrary to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or (2) resulted in a decision that was

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based on an unreasonable determination ofthe facts in light ofthe evidence presented in the

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State court proceeding." 28 U.S.C. § 2254(d).

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"Under the 'contrary to' clause, a federal habeas court may grant the writ ifthe state

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court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of

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law or if the state court decides a case differently than [the] Court has on a set of materially

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indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 4I2-13 (2000). "Under the

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'reasonable application clause,' a federal habeas court may grant the writ if the state court

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identifies the correct governing legal principle from [the] Court's decisions but unreasonably

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applies that principle to the facts ofthe prisoner's case." !d. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its

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independent judgment that the relevant state-court decision applied clearly established federal

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law erroneously or incorrectly. Rather, the application must also be unreasonable." !d. at 4II.

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A federal habeas court making the "unreasonable application" inquiry should ask whether the

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state court's application of clearly established federal law was "objectively unreasonable." !d. at

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409.

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The only definitive source of clearly established federal law under 28 U .S.C. § 2254(d) is

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in the holdings (as opposed to the dicta) ofthe Supreme Court as ofthe time of the state court

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decision. !d. at 4I2. Clearly established federal law is defined as "the governing legal principle
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or principles set forth by the Supreme Court." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

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Circuit law may be "persuasive authority" for purposes of determining whether a state court

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decision is an unreasonable application of Supreme Court precedent, however, only the Supreme

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Court's holdings are binding on the state courts, and only those holdings need be "reasonably"

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applied. Clark v. Murphy, 331 F .3d 1062, 1069 (9th Cir. 2003).

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DISCUSSION

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Petitioner raises the following claims in his petition: (1) the trial court erred in failing to

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grant a mistrial or a new jury panel due to a prospective juror's statement of bias in open court;

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(2) the trial court's placement of a uniformed deputy next to petitioner during petitioner's

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testimony violated petitioner's right to a fair trial; (3) counsel rendered ineffective assistance by:

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(a) failing to conduct a reasonable pre-trial investigation, (b) failing to investigate a potentially

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meritorious defense, (c) failing to call character witnesses, (d) failing to call expert witnesses;

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and (e) counsel's assistance was so ineffective that it was presumptively prejudicial; and (4) the

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cumulative errors prejudiced petitioner.

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I.

Juror bias

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During voir dire, Juror No. 18 admitted that he had conducted internet research on

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petitioner prior to voir dire. Petitioner claims that Juror No. 18 made statements that tainted the

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jury panel. Petitioner moved for a new jury panel, but the motion was denied. Petitioner argues

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that the trial court's failure to dismiss the jury panel violated petitioner's right to a fair and

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impartial jury trial.

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The California Court of Appeal considered the claim and rejected it. It summarized the
proceedings and analyzed the claim as follows:

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A.

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Early in jury selection, before the court had provided any admonitions to
prospective jurors, the court asked a potential juror whether his acquaintance
with a retired sheriffs deputy would prevent him from being fair. The
following discussion ensued:

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Background

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"POTENTIAL JUROR: No. But I'm not sure I'll be fair in this
particular case.
THE COURT: Okay. Can you tell me why?
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POTENTIAL WROR: Background.

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THE COURT: When you say background, what do you mean?

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POTENTIAL JUROR: The defendant's background.

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THE COURT: Okay. Well, do you know anything about the
defendant's background?

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POTENTIAL WROR: Yes.
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THE COURT: Do you know the defendant?
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POTENTIAL JUROR: No.
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THE COURT: Okay. How is it that you know something about the
defendant's background?

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POTENTIAL JUROR: Internet.

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THE COURT: You looked it up?

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POTENTIAL JUROR: Yup."

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At that point the court admonished the prospective jurors that they
should not do any independent investigation. It then continued:

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"THE COURT: Okay. Mr. Henderson, I want to ask you a couple of
questions. [~] Ifl gave you an instruction that you are to disregard anything
that you found on the internet if you're seated as a juror, and that you're only to
consider the evidence that comes in to you through the vehicle of this trial,
could you follow that?

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POTENTIAL JUROR: Yes.
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THE COURT: You could follow that. And do you think ifyou could
follow that, that you could sit as a fair and impartial juror on this case?
POTENTIAL JUROR: I'm not sure."
Outside the presence of the jury panel, defense counsel argued that these
answers had tainted the other prospective jurors and asked the court to declare a
mistrial and convene a new jury panel. The court denied the motion and stated
four reasons for its ruling. "Number one, the jury did not get instructed not to
look it up on the internet or do any investigation, so he didn't contravene a
specific instruction by the Court. [~] Number two, the Oury] questionnaire
does imply prior convictions. Although we say it's not evidence, that it's not
the first time that that idea has been explicitly given to the jury, and by
questionnaire that was by agreement of counsel. [~] And, number three, I
would note that prior convictions are coming [in] in this trial anyway, so there's
going to be something in front of the jury. [~] And, number four, I'm not ruling
on the challenge for cause, but I did say- I did ask him, you know, could you
follow the instructions and only take the evidence that you take through the
vehicle of the trial and he said he would."

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Defendant eventually exercised a peremptory challenge to dismiss the
juror.

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B.

Analysis

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"[D]ischarging the entire venire is a remedy that should be reserved for
the most serious occasions of demonstrated bias or prejudice, where
interrogation and removal of the offending venirepersons would be insufficient
protection for the defendant," and the trial court has broad discretion to
determine whether or not possible bias or prejudice against the defendant has so
severely contaminated the entire venire that its discharge is required. (People v.
Medina (1990) 51 Cal.3d 870, 889, 274 Cal.Rptr. 849, 799 P.2d 1282.)
Accordingly, we review the denial of defendant's motion for mistrial and a new
jury panel under the abuse of discretion standard. (People v. Woodberry (1970)
10 Cal. App. 3d 695, 708, 89 Cal.Rptr. 330; People v. Nguyen (1994) 23 Cal.
App. 4th 32, 41, 28 Cal.Rptr.2d 140.)

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Defendant contends the prospective juror's comments about his internet
research required discharge of the entire jury panel because the other jurors
were "left to speculate as to what this horrific information was that made juror
no. 18 unable to be fair despite repeated inquiries by the trial court." The court
reasonably rejected that contention. The prospective juror gave no specifics
about what he found in his research, nothing he said was particularly
inflammatory, and he was ultimately dismissed by peremptory challenge. This
was simply not one of the "most serious occasions of demonstrated bias or
prejudice" that would require dismissal ofthe entire venire. (People v. Medina,
supra, 51 Cal.3d at pp. 888-889, 274 Cal.Rptr. 849, 799 P.2d 1282 [prospective
jurors made statements such as "even his own lawyers think he's guilty," and
"they ought to have [sic] him and get it over with" in front of other jurors;
dismissal of venire not required]; see also People v. Nguyen, supra, 23 Cal.
App. 4th at p. 41,28 Cal.Rptr.2d 140 [prospective juror stated he might fear
retaliation because defendant was from same ethnic group; court properly
denied motion to dismiss venire].) Moreover, the prospective juror's vague
comments about defendant's "background" could not conceivably have been
prejudicial in light of the details about defendant's prior offenses that were
admitted into evidence at trial.

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Halbert, 2011 WL 6000868, at *4-*5.

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The Sixth Amendment guarantees to the criminally accused a fair trial by a panel of
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impartial jurors. U.S. Const. amend. VI; see Irvin v. Dowd, 366 U.S. 717, 722 (1961). The

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Constitution "does not require a new trial every time a juror has been placed in a potentially
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compromising situation." Smith v. Phillips, 455 U.S. 209, 217 (1982). The safeguards of juror
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impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it
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is virtually impossible to shield jurors from every contact or influence that might theoretically
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affect their vote. !d. In addition, the Sixth Amendment guarantee of a trial by jury requires the
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jury verdict to be based on the evidence presented at trial. See Turner v. Louisiana, 379 U.S.
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466, 4 72-73 ( 1965). However, a petitioner is entitled to habeas relief only if it can be established

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that the exposure to extrinsic evidence had "'substantial and injurious effect or influence in

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determining the jury's verdict."' Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000)

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(quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). In other words, the error must result

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in "actual prejudice." See Brecht, 507 U.S. at 637.

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Evidence not presented at trial is deemed "extrinsic." See Marino v. Vasquez, 812 F.2d

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499, 504 (9th Cir. 1987). Jury exposure to extrinsic evidence deprives a defendant ofthe rights

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to confrontation, cross-examination and assistance of counsel embodied in the Sixth

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Amendment. See Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995). Several factors are relevant

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in determining whether the alleged introduction of extrinsic evidence constitutes reversible error:

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(1) whether the extrinsic material was actually received, and if so, how; (2) the
length of time it was available to the jury; (3) the extent to which the jury
discussed and considered it; (4) whether the material was introduced before a
verdict was reached, and if so, at what point in the deliberations it was introduced;
and (5) any other matters which may bear on the issue of ... whether the
introduction of extrinsic material [substantially and injuriously] affected the
verdict.

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Smith v. Swarthout, 742 F.3d 885, 894 (9th Cir. 2014) (citation omitted).
Here, the extrinsic material was "actually received" when Juror No. 18 stated in open

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court that he had conducted internet research on petitioner and read about petitioner's

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"background." The length oftime this extrinsic material was available to the jury appears to be

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minimal. Once Juror No. 18 stated he had learned about petitioner's background, the court asked

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follow up questions about whether Juror No. 18 could ignore what he learned on the internet and

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follow the court's instructions. Moreover, the record does not demonstrate that any further

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discussion was had regarding what Juror No. 18 learned, or that other jurors had commented on

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or discussed what Juror No. 18 learned. In addition, the extrinsic material was introduced before

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a jury was even selected, and Juror No. 18 was ultimately excused from the jury pool. Finally,

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the extrinsic material was so vague and general that its potential effect on the jury's impartiality

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is not inherently prejudicial.

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Moreover, even if it was erroneous not to replace the entire jury pool, petitioner has not
demonstrated that the error had a substantial or injurious effect of influence on the jury's verdict.
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See Brecht, 507 U.S. at 638. As the state court observed, the jury ultimately learned about

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petitioner's prior convictions, and the trial court instructed the jury to rely only on the evidence

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at trial to determine its verdict.
Accordingly, the state court's rejection of this claim was not contrary to, or an

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unreasonable application of, clearly established Supreme Court law.

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II.

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Presence of uniformed deputv during petitioner's testimony
When petitioner testified at trial, a uniformed deputy accompanied him to the witness

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stand and was positioned next to petitioner during petitioner's testimony. Petitioner claims that

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the deputy's presence next to petitioner violated petitioner's right to a fair trial.

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At trial, defense counsel objected to the deputy's presence, arguing that it would cast

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doubt on petitioner's credibility and was prejudicial. In response, the trial court stated that it

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believed the presence of a deputy was appropriate "given that [defendant] has felony convictions

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involving crimes with a forcible nature to them and a violence upon vulnerable victims under a

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certain age and including [an] enhancement with use of a knife.

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think it's just a good precaution for the courtroom. And ifyou wish, I can admonish the jury that

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they may have noticed the bailiff is standing there and that they shouldn't take this to be any

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particular reflection in terms of the credibility of the defendant." Halbert, 20II WL 6000868, at

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*7.

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indication of defendant's credibility. /d.

[~]

So based on that record, I

Indeed, the trial court did instruct the jury not to interpret the bailiffs presence as an

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The California Court of Appeal rejected petitioner's claim. It concluded that the trial

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court had the discretion to determine whether the security measure of stationing a guard at or

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near the witness stand outweighed potential prejudice to a testifying defendant. /d. at *8. The

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appellate court recognized that the trial court specifically explained its decision to use a

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uniformed deputy during petitioner's testimony. Id. Further, the trial court took the additional,

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though not required, step of admonishing the jury not to draw inferences from the deputy's

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presence. /d.

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Courtroom security arrangements at trial may be so prejudicial as to deprive a criminal

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defendant of a fair trial in violation of due process. See Holbrook v. Flynn, 475 U.S. 560, 569
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(1986)). "To be sure, it is possible that the sight of a security force within the courtroom might

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under certain conditions 'create the impression in the minds of the jury that the defendant is

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dangerous and untrustworthy."' !d. (citations omitted). A federal court's review of security

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arrangements is very limited, however. Ainsworth v. Calderon, 138 F.3d 787, 797 (9th Cir.),

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amended by 152 F .3d 1223 (1998). All it may do is look at the scene presented to the jurors and

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determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat

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to the defendant's right to a fair trial. See id. If the challenged practice is not found inherently

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prejudicial, and if the defendant fails to show actual prejudice, the inquiry is over. !d.

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As noted, this court's review is limited to the scene presented to the jurors and

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determining if it was so inherently prejudicial that it deprived petitioner of a fair trial. Here, the

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mere presence of one uniformed deputy behind petitioner as he testified was not inherently

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prejudicial. See, e.g., Holbrook, 475 U.S. at 569 (presence of four uniformed state troopers did

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not unconstitutionally deprive defendant of a fair trial); Williams v. Woodford, 384 F.3d 567,

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587-89 (9th Cir. 2004) (presence of four uniformed marshals and several other "plain-clothed"

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guards at trial not inherently prejudicial;.defense counsel's statements implying that security

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measures were extraordinary did not support ·a claim that the security measures at trial

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undermined the presumption of innocence). Moreover, petitioner has not demonstrated actual

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prejudice from the deputy's presence during petitioner's testimony. The trial court provided

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appropriate admonishments to the jury regarding the presence of the deputy, stating that the jury

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should not interpret the deputy's presence in any manner.

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Accordingly, the state court's rejection ofthis claim was not contrary to, or an

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unreasonable application of, clearly established Supreme Court law.

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III.

Ineffective assistance of counsel

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Petitioner alleges that counsel rendered ineffective assistance by: (a) failing to prepare

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for trial, (b) failing to investigate a potentially meritorious defense, (c) failing to call character

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witnesses, and (d) failing to call expert witnesses. Petitioner further claims that because

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counsel's representation was so ineffective, prejudice should be presumed.

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As an initial matter, the court will first address petitioner's argument that prejudice
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should be presumed. A claim of ineffective assistance of counsel is cognizable as a claim of
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denial of the Sixth Amendment right to counsel, wh~h guarantees not only assistance, but

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effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). Normally,

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in order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must

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establish two things. First, he must establish that counsel's performance was deficient, i.e., that

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it fell below an "objective standard of reasonableness" under prevailing professional norms. !d.

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at 687-88. Second, he must establish that he was prejudiced by counsel's deficient performance,

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i.e., that ''there is a reasonable probability that, but for counsel's unprofessional errors, the result

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

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probability sufficient to undermine confidence in the outcome. !d.
Here, petitioner alleges that counsel's ineffective assistance was so egregious, that her

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representation was presumptively inadequate. Where counsel's conduct is egregiously

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prejudicial, no showing that there is a reasonable probability that the outcome would have been

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different is required, and both prejudice and ineffective assistance are presumed. United States

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v. Cronic, 466 U.S. 648, 658-62 (1984). These will be those rare cases where counsel "entirely

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fail[ed] to subject the prosecution's case to meaningful adversarial testing." Id. at 659. In

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Cronic, the Supreme Court discussed three "circumstances [involving a defendant's counsel] that

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are so likely to prejudice the accused that the cost of litigating their effect in a particular case is

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unjustified." See id. at 658. The Supreme Court later summarized those three circumstances as

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follows:

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First and most obvious was the complete denial of counsel. A trial would be
presumptively unfair, we said, where the accused is denied the presence of
counsel at a critical stage, a phrase we used in [two prior cases] to denote a step
of a criminal proceeding, such as arraignment, that held significant
consequences for the accused. Second, we posited that a similar presumption
was warranted if counsel entirely fails to subject the prosecution's case to
meaningful adversarial testing. Finally, we said that in cases like Powell v.
Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. I58 (I932), where counsel is
called upon to render assistance under circumstances where competent counsel
very likely could not, the defendant need not show that the proceedings were
affected.

27

Bell v. Cone, 535 U.S. 685, 696-97 (2002) (internal quotations, citations, alterations and footnote

28

omitted).

22
23
24
25

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11

1

Petitioner points to no authority suggesting that his allegations of error are subject to

2

Cronic analysis. He does not allege that he was denied the presence of counsel at a critical stage.

3

Nor does he claim that counsel was called upon to render assistance under circumstances where

4

competent counsel could not. Trial counsel also did not "entirely fail[] to subject the

5

prosecution's case to meaningful adversarial testing," see Bell, 535 U.S. at 696, as evidenced by

6

trial counsel's having cross-examined witnesses called by the prosecution, offered petitioner's

7

testimony in the defense case, and made both an opening statement and a closing argument.

8

Accordingly, the court will use Strickland to analyze each of petitioner's ineffective

9

assistance of counsel claims.

10

A.

11

Petitioner argues that counsel failed to adequately prepare him to testify at trial.

12

Petitioner alleges that counsel would visit him for approximately 15-20 minutes at a time, and

13

they would rarely discuss specific things such as trial strategy or testimony. After trial started,

14

petitioner states that counsel had promised to visit him to discuss petitioner's testimony, but

15

counsel never did so. On the day petitioner was to testify, counsel asked him if he was ready,

16

and petitioner believed he had no choice, so he responded, "I guess so." As a result, alleges

17

petitioner, petitioner was unprepared for the prosecutor's questions.

18

Pre-trial preparation

"Adequate consultation between attorney and client is an essential element of competent

19

representation of a criminal defendant." Summerlin v. Schriro, 427 F.3d 623, 633 (9th Cir. 2005)

20

(quoting United States v. Tucker, 716 F.2d 576, 581 (9th Cir. 1983)). "While the amount of

21

consultation required will depend on the facts of each case, the consultation should be sufficient

22

to determine all legally relevant information known to the defendant." Tucker, 716 F.2d at 581-

23

82.

24

Here, petitioner does not specify what counsel should have done to adequately prepare

25

petitioner to testify or explain how counsel's preparation was unreasonable. The only specific

26

complaint petitioner gives is that petitioner was unprepared for the prosecution's question about

27

whether petitioner was attracted to young girls.

28

PROSECUTOR:

Fair to say that you're attracted to young girls?

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PETITIONER:

I have an attraction to young girls, yes.

2

PROSECUTOR:

And by young girls I mean 15 and under, correct?

3

PETITIONER:

Correct.

4

(Resp. Ex. L, RT 559.) Petitioner asserts that had trial counsel adequately prepared him to

5

testify, petitioner could have explained that it had been many years since he engaged in such

6

"abhorrent behavior." (Traverse at 12.) Petitioner further argues that, based on counsel

7

experience, she could have prepared a more appropriate response. (!d.) However, even if

8

counsel had prepared petitioner for these particular questions, petitioner still would have had to

9

answer truthfully, and in the affirmative, regardless of whether petitioner subsequently explained

10
11

that it had been "many years" since he was convicted of sexual offenses with young girls.
Regarding deficient performance, "O]udicial scrutiny of counsel's performance must be

12

highly deferential." Strickland, 466 U.S. at 689. The test is not whether another lawyer, with

13

the benefit of hindsight, would have acted differently, but whether "counsel made errors so

14

serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth

15

Amendment." !d. at 687. Here, counsel's preparation of petitioner to testify does not appear to

16

be unreasonable. Evidence of petitioner's two prior forcible rape convictions with young girl

17

victims and one prior molestation conviction with a young girl victim were admitted at trial.

18

During the prosecution's case-in-chief, two of the female victims testified about these prior

19

convictions. Counsel's decision to allow petitioner to testify that he was attracted to young girls

20

was reasonable considering that the jury would have already made that inference based on

21

petitioner's prior convictions. In light of petitioner's prior convictions against other young girls,

22

counsel could have reasonably decided that petitioner's unqualified and forthcoming admissions

23

about his attraction to, and prior sexual offenses against, young girls could restore petitioner's

24

credibility when he then testified that with respect to Jane Doe, petitioner had no intention of

25

touching her at all, much less with any sexual intent. Petitioner has not provided evidence that

26

counsel's performance fell below an objective standard of reasonableness. In the absence of

27

evidence that counsel gave constitutionally inadequate advice, petitioner cannot overcome the

28

presumption that counsel's conduct was within the range of reasonable professional advice. See
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13

Burt v. Titlow, 134 S. Ct 10, 17 (2013) (concluding that without any evidence demonstrating that

2

counsel gave inadequate advice regarding withdrawal of a guilty plea, there is strong

3

presumption that counsel's performance was not deficient).

4

Moreover, petitioner has not set forth any facts that would support a finding that

5

counsel's failure to adequately prepare petitioner to testify impacted the outcome of trial. At

6

trial, in addition to the two young female victims' testimonies about petitioner's prior

7

convictions, petitioner also testified in detail about the two prior forcible rape convictions with

8

the young girl victims and the prior molestation conviction with a young girl victim. Petitioner

9

admitted on direct examination that the molestation and forcible rape victims did not consent to

10

his touching, and that he knew that the girls were young. Even without petitioner's admission

11

that he was attracted to young girls, these testimonies plainly gave rise to an inference that

12

petitioner was in fact attracted to young girls. In addition, both Jane Doe and her father testified

13

that petitioner squeezed her buttocks with his hand. Despite petitioner's testimony that he

14

accidentally brushed Jane Doe's buttocks with his fingers, there is no reasonable probability that

15

counsel's alleged deficient preparation of petitioner prior to his testimony affected the outcome

16

of trial. Thus, petitioner has not shown that he was prejudiced by the alleged inadequate

17

consultation. See, e.g., Anderson v. Calderon, 232 F.3d 1053, 1086 (9th Cir. 2000) (holding that

18

petitioner did not demonstrate prejudice under Strickland where he made only "generalized

19

boilerplate claims ofharm to the attorney-client relationship" due to lack of pre-trial consultation

20

with counsel and failed "to identify any specific way in which his decisions [regarding pleas or

21

strategies] or defense would have differed" had counsel met personally with petitioner),

22

overruled on other grounds by Osband v. Woodford, 290 F.3d 1036, 1043 (9th Cir. 2002);

23

United States v. Mealy, 851 F.2d 890, 908-09 (7th Cir. 1988) ("[Defendant] fails to explain how

24

the lack of consultation affected the outcome of the trial. [Defendant's] conclusory allegations

25

regarding the time spent in consultation with his trial counsel do not show that he was prejudiced

26

at trial, and thus his ineffective assistance of counsel claim must fail.").

27
28

Thus, petitioner has not demonstrated that counsel's representation was deficient, or that
petitioner was prejudiced by counsel's failure to adequately prepare petitioner to testify.
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14

B.

Investigation of potential defense

2

Petitioner claims that counsel rendered ineffective assistance when she failed to

3

investigate petitioner's chronic medical issues. Specifically, petitioner states that he informed

4

counsel that he had chronic arthritis in his hips and suffered from back issues. Petitioner argues

5

that these ailments could have been used to suggest that petitioner's medical issues, combined

6

with his height of 6 feet tall made it unlikely that he could "contort[]" his body to touch Jane

7

Doe's buttocks when she was 4 feet, 9 inches tall. (Pet. Memo. at F.) Petitioner states that he

8

informed counsel about his medical ailments, including his previous back and knee surgeries.

9

Petitioner later asked counsel whether his medical ailments would be beneficial to his defense,

10

and counsel responded that she would not "be going that route," and that it was "out of the

II

question." (Pet. at 30.) At the time, petitioner believed that part of counsel's trial strategy was

12

not to raise the issue of petitioner's medical incapacity. (!d.) However, now, petitioner argues

13

that counsel was ineffective for failing to investigate this potentially meritorious defense.

14

Courts must afford tactical decisions by trial counsel considerable deference because

15

there is a strong presumption that counsel's attention to certain issues to the exclusion of others

16

reflects trial tactics rather than "sheer neglect." Harrington v. Richter, 562 U.S. 86, 109 (2011);

17

see Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011) ("There comes a point where a defense

18

attorney will reasonably decide that another strategy is in order, thus making particular

19

investigations unnecessary," and "those decisions are due a heavy measure of deference").

20

Here, as respondent points out, there is no evidence that counsel failed to investigate the

21

possibility ofusing petitioner's medical ailments as a defense. Petitioner's own statements,

22

combined with the strong presumption that counsel reasonably excluded the idea of a defense

23

based on petitioner's medical issues, lead to a conclusion that counsel's decision to bypass such

24

a defense was a tactical decision. See Richter, 562 U.S. at 109. Petitioner's medical records do

25

not demonstrate that petitioner was unable to grab Jane Doe's buttocks. At most, petitioner's

26

medical records show that petitioner had previous back and knee problems, but not that he had a

27

physical inability to commit the crime.

28

Thus, petitioner has not demonstrated that counsel's failure to investigate his medical
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ailments further was deficient. For the same reasons, petitioner also has not shown that he was
2

prejudiced by counsel's failure to pursue this theory of defense.

3

c.

4

Petitioner claims that counsel was ineffective because she failed to call Alec Maguire and

Potential witnesses

5

Mike Shannon, both of whom worked with petitioner, as character witnesses to testify about

6

petitioner's good character, work performance, physical abilities, and extracurricular projects on

7

which petitioner had been working. Specifically, petitioner alleges that both witnesses would

8

have testified that two days before the crime, petitioner and the witnesses were talking about

9

how petitioner's extracurricular activities were "taking too long," and petitioner needed to finish

10

them quickly. Petitioner argues that their testimonies would have corroborated petitioner's

11

testimony that petitioner was distracted on the day he touched Jane Doe's buttocks and therefore

12

had no specific intent to commit the crime.

13

However, petitioner has not presented any evidence of counsel's investigation, lack of

14

investigation, or her reasons for failing to call these witnesses to testify. Petitioner admits that

15

counsel had spoken with Maguire, that petitioner and counsel discussed the benefits of

16

Maguire's testimony, and that Maguire and Shannon's names were on the potential witness list

17

that was read at voir dire. Keeping in mind the strong presumption that counsel's attention to

18

certain issues to the exclusion of others reflects trial tactics rather than "sheer neglect," see

19

Harrington v. Richter, 131 S. Ct. 770, 790 (20 11 ), and based on the lack of evidence as to why

20

counsel did not call these witnesses to testify, the court cannot say that counsel's decision not to

21

call Maguire or Shannon was unreasonable. See, e.g., Lordv. Wood, 184 F.3d 1083, 1095 (9th

22

Cir.

23

that witness on the stand is entitled to deference because "[f]ew decisions a lawyer makes draw

24

so heavily on professional judgment as whether or not to proffer a witness at trial.").

25

19~9)

(recognizing that if a lawyer has interviewed a potential witness, the decision to put

More importantly, where a petitioner bases an ineffective assistance of counsel claim on

26

the failure to interview or call a particular witness, the petitioner must identify the witness and

27

allege what the witness's testimony would have been and how it might have changed the

28

outcome ofthe proceeding. See Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000). The
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petitioner must also show that the witness was available at the time of trial and willing to testify.
2

See United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988); see also Chaffordv.

3

Hedgpeth, No. 09-cv-01574 PJH, 2013 WL 791320, at *3 (N.D. Cal. Mar. 4, 2013) ("Where

4

there is no evidence that an individual will testify at trial, defense counsel's failure to call the

5

witness does not constitute ineffective assistance of counsel."). Petitioner does not satisfy these

6

requirements. Petitioner has not shown that either witness was available or willing to testify, nor

7

has he submitted affidavits from either witness as to the substance of the proposed testimony.

8
9
10

For these reasons, petitioner has failed to show that counsel was deficient for not calling
Alec Maguire and Mike Shannon as witnesses, and petitioner has failed to show that he was
prejudiced.
Expert witness

11

D.

12

Petitioner alleges that counsel was ineffective because she failed to have psychiatric

13

expert witness Dr. Raymond E. Anderson evaluate petitioner and testify about Dr. Anderson's

14

2005 18-page evaluation of petitioner that Dr. Anderson conducted for purposes of petitioner's

15

2006 Sexually Violent Predator ("SVP") trial. (Pet. Memo., Ex. B.) Petitioner claims that Dr.

16

Anderson would have opined that petitioner had matured and would have helped the jury believe

17

that petitioner's touching of Jane Doe was accidental. Petitioner states that counsel received a

18

copy of the 18-page evaluation, but dismissed it as "too technical."

19

Expert testimony is necessary when lay persons are unable to make an informed

20

judgment without the benefit of such testimony. See Caro v. Calderon, 165 F.3d 1223, 1227

21

(9th Cir. 1999). Where the evidence does not warrant it, the failure to call an expert does not

22

amount to ineffective assistance of counsel. See Wilson v. Henry, 185 F .3d 986, 990 (9th Cir.

23

1999) (stating that a decision not to pursue testimony by a psychiatric expert is not unreasonable

24

when the evidence does not raise the possibility of a strong mental state defense).

25

Here, petitioner states that it was necessary for the jury to see the 2005 evaluation so that

26

the jury could "ascertain the intent" of petitioner's touching of Jane Doe's buttocks. However,

27

there is no evidence to suggest that counsel did not review the evaluation and, in her reasonable

28

judgment, reject its usefulness. See Richter, 562 U.S. at 109. Moreover, a review of Dr.
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1

Anderson's evaluation shows that four years prior to the underlying crime, Dr. Anderson

2

concluded that, based on his examination, petitioner was not predisposed to commit sexually

3

violent offenses or engage in sexually predatory behavior. Dr. Anderson conceded, however,

4

that although the purpose of the evaluation was to predict the probability that petitioner would

5

commit another sexually violent act, "psychologists and psychiatrists are not particularly

6

knowledgeable, accurate or precise in making such predictions." (Pet. Mem., Ex. B.) While the

7

evaluation does provide an expert's opinion that petitioner does not suffer from a mental disease

8

such that he is predisposed to commit a sexually violent offense, Dr. Anderson could not have

9

stated or given an opinion on whether petitioner possessed the requisite specific intent at the time

10

of the crime. See Cal. Penal Code § 29 ("In the guilt phase of a criminal action, any expert

11

testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as

12

to whether the defendant had or did not have the required mental states, which include, but are

13

not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged."). In

14

addition, it was reasonable for counsel not to call Dr. Anderson to the stand because, had counsel

15

done so, it would have "opened the door" for the prosecution to call an expert who could have

16

opined that, in his or her opinion, petitioner was still a sexually violent predator who was

17

predisposed to engaging in sexually violent behavior.

18

Finally, it is unclear how Dr. Anderson's opinion and 2005 evaluation that petitioner did

19

not suffer from a sexual disorder would have changed the jury's mind that petitioner had the

20

specific intent to touch Jane Doe's buttocks. Dr. Anderson's examination was created for the

21

purpose of determining whether petitioner fit the definition of a "sexually violent predator,"

22

which includes having a "diagnosed mental disorder that makes the person a danger to the health

23

and safety of others in that it is likely that he or she will engage in sexually violent criminal

24

behavior." Cal. Welf. & Inst. § 6600(a){l). A "diagnosed mental disorder includes a congenital

25

or acquired condition affecting the emotional or volitional capacity that predisposes the person to

26

the commission of criminal sexual acts in a degree constituting the person a menace to the health

27

and safety of others." Id. at§ 6600(c). In other words, evidence that petitioner was not suffering

28

from a mental disorder in which he was predisposed to engaging in sexually violent criminal
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behavior does not exclude the jury from finding that petitioner did not or could not form the
2

specific intent to touch Jane Doe's buttocks. For these reasons, petitioner has failed to show that

3

counsel was deficient for not calling an expert witness, nor has petitioner shown that he was

4

prejudiced by counsel's failure to do so.
Accordingly, the state court's rejection of petitioner's ineffective assistance of counsel

5
6

claim was not contrary to, or an unreasonable application of, clearly established Supreme Court

7

law.

8

IV.

9

Cumulative errors
Petitioner's last claim is that he is entitled to habeas relief based on the cumulative effect

10

of the alleged state court errors. In some cases, although no single trial error is sufficiently

11

prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a

12

defendant so much that his conviction must be overturned. See, e.g., Alcala v. Woodford, 334

13

F .3d 862, 893-95 (9th Cir. 2003) (reversing conviction where multiple constitutional errors

14

hindered defendant's efforts to challenge every important element of proof offered by

15

prosecution). However, where no single constitutional error exists, as here, nothing can

16

accumulate to the level of a constitutional violation. See Mancuso v. Olivarez, 2~)2 F.3d 939,

17

957 (9th Cir. 2002).

18

CONCLUSION

19

The petition for writ ofhabeas corpus is DENIED. The federal rules governing habeas

20

cases brought by state prisoners require a district court that denies a habeas petition to grant or

21

deny a certificate of appealability ("COA'') in its ruling. See Rule 11 (a), Rules Governing §

22

2254 Cases, 28 U.S.C. foiL§ 2254. Petitioner has not shown "that jurists of reason would find it

23

debatable whether the petition states a valid claim of the denial of a constitutional right." Slack

24

v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED.

25

The Clerk is instructed to enter judgment in favor of respondent and close the file.

26

IT IS SO ORDERED.

27

DATED:

4/13,120 I)

28
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19