Dye v. Clark

Filing 15

ORDER Denying (Doc. 1 ) Petition for Writ of Habeas Corpus and Denying (Doc. 13 ) Motion for Evidentiary Hearing. Signed by Magistrate Judge Barbara Lynn Major on 6/29/2010. (All non-registered users served via U.S. Mail Service)(cap) (av1).

Dye v. Clark

Doc. 15

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1 Petitioner named both the California Attorney General and Ken Clark, the warden of the facility where Petitioner is incarcerated, as respondents. Petition at 1. Rule 2 of the Rules following 28 U.S.C. § 2254 provides that the state officer having custody of petitioner shall be named as respondent. Rule 2(a), 28 U.S.C. foll. § 2254. The structure of the California penal system places prisoners in the custody of both the Secretary of the California Department of Corrections and Rehabilitation and the warden of the California prison where petitioner is incarcerated. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 895 (9th Cir. 1996). Thus, Ken Clark, the warden, is a proper respondent, whereas the Attorney General of the State of California, is not.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA THOMAS P. DYE, v. Petitioner, ) ) ) ) ) ) ) ) ) Case No. 09cv2483-BLM ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR AN EVIDENTIARY HEARING [Doc. No. 1, 13]

KEN CLARK, Warden, Respondent.

On November 4, 2009, Petitioner Thomas P. Dye, a state prisoner proceeding pro se and in forma pauperis, filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. Nos. 1, 1-1

("Petition" and "Pet.'s Mem."). Pursuant to the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the parties consented to the jurisdiction of a United States Magistrate Judge. 11; Doc. No. 8. Petition.1 Petition at

On February 19, 2010, Respondent filed an Answer to the On March

Doc. Nos. 11, 11-1 ("Answer" and "Resp.'s Mem.").

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19, 2010, Petitioner filed a Reply to the Answer ("Reply"), a memorandum of points and authorities in support thereof ("Reply Mem."), and a Motion for an Evidentiary hearing. See Doc. Nos. 13, 14. For the

reasons set forth below, the Court DENIES Petitioner's Petition for Writ of Habeas Corpus and Motion for an Evidentiary Hearing. STATEMENT OF FACTS The following facts are taken directly from the California Court of Appeal's opinion affirming Petitioner's conviction in The People v. Thomas P. Dye, Super. Ct. Nos. SCN172719, SCN147314. 1. Emily Phillips-counts 8 (residential burglary), 9, 10 (grand theft of personal property and an automobile) and 11 (unlawful taking and driving a vehicle)

In February 1999, Dye introduced himself to Phillips under a false name. Within a short period of time, Dye moved into her home and offered to help reduce her substantial credit card debt. Phillips gave Dye $4,700, believing his statement that he would give the money to an attorney friend to reduce her credit debt. Dye dropped Phillips off where she worked and borrowed her car to meet the attorney, but then failed to pick Phillips up as previously arranged. When Phillips returned home, she found that all of Dye's belongings were gone, as well as her car, social security card, passport, credit cards, driver's license, money and other items. Phillips immediately called the police and reported the theft. The following month, Dye responded to an ad for a roommate in Denver, Colorado using the name Tommy Phillips. The female landlord contacted the police after Dye questioned her about her financial affairs. When the police arrived, they ran the license plate number of the vehicle that Dye had been seen driving and learned that it was registered to Phillips and had been reported stolen. In August 1999, the People filed a felony complaint against Dye in San Diego for the crimes committed against Phillips (SCD147314). After the police arrested Dye in Denver, he bailed himself out of jail and then jumped bail. ... 3. Lilia Antillon-counts 1 (residential burglary), 2 (grant [sic] theft of personal property), 3 & 5 (forgery of

Accordingly, this Court sua sponte DISMISSES the allegations against the California Attorney General and TERMINATES him as a respondent in this case.

2

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checks), 4 & 6 (burglary), and 7 (failure to appear while on bail) In November 2002, while out on bail on the Phillips matter, Dye began dating Antillon in San Diego and, at some point, she moved enough clothing into Dye's room at the Island Inn to enable her to stay there for a couple of days at a time. As the relationship progressed, Dye started asking her lots of questions regarding her finances. In December 2002 and January 2003, Dye presented checks written from Antillon's account to the Island Inn for rent; the checks were written for more than the amount due and he received a total of $300 cash back. One day, Dye disappeared after stealing Antillon's driver's license and credit card. Although Antillon initially believed that Dye had also stolen her truck because he had the keys, she later found the truck but discovered that an expensive gold chain inside it was missing. After Dye's disappearance, Antillon discovered the earlier theft and forgery of her checks. On October 30, 2003, the People filed an information against Dye in San Diego for his crimes against Antillon (SCD172719). In August 2003, Chicago police arrested Dye for another offense and sent him back to San Diego for prosecution. Lodgment 7 at 2-3, 5-6. PROCEDURAL BACKGROUND In August 1999, the People of the State of California filed a complaint in San Diego charging Petitioner with the crimes relating to Phillips described above. Lodgment 1 at 650-54. In September 2001,

while Petitioner was in custody in Illinois and South Dakota on separate charges, Petitioner filed a motion in San Diego seeking dismissal of the pending San Diego charges on the basis that his Sixth Amendment right to a speedy trial had been violated. Id. at 858-64, 866-72, 875-77, 581-

92. In December 2001, Petitioner arrived in San Diego, was arraigned on the Phillips complaint, and renewed his motion to dismiss. Id. at 865,

602-30. In January 2002, a superior court judge presided over a lengthy evidentiary hearing addressing the speedy trial issues raised in

Petitioner's motion to dismiss.

Lodgment 3, Volumes 1-4.

On February

14, 2002, the court issued a written order denying Petitioner's motion 3
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to dismiss the complaint.

Lodgment 1 at 677-86.

In November 2002, Petitioner posted a $100,000 bond and was released from custody. Id. at 900-901. On January 22, 2003, Petitioner failed to appear for a court hearing and an arrest warrant was issued. Id. at 907-8. In August 2003, Petitioner was arrested in Illinois for Lodgment 7 at

a new crime and returned to San Diego in September 2003. 6.

On October 30, 2003, the People filed a new information charging

Petitioner with crimes committed against Antillon while he was out of custody on bail during the criminal proceedings on the Phillips charges. Id. On July 14, 2004, the prosecution filed an amended information joining the Phillips and Antillon cases after the trial court granted its consolidation motion. Volume 4 at 163-64. Lodgment 2 at 1-9; see also Lodgment 3,

In addition to the above-mentioned eleven counts,

the amended information alleged that Petitioner committed counts one through seven while out on bail, and that he had sixteen probation denial priors, five prison priors, three serious felony priors and three strike priors. Lodgment 2 at 1-9. Petitioner waived his right to a Lodgment 1,

jury trial and a bench trial commenced on July 20, 2004.

Volume 2 at 554-55; Lodgment 3, Volume 4 at 197-201; Lodgment 3, Volume 5 at 209. On July 29, 2004, the trial court found Petitioner not guilty of the residential burglary charge as to Antillon and its associated bail violation allegation (count one), but guilty of all other charges (counts two-eleven) and all associated allegations that he had committed the crimes while out on bail (counts two-seven). at 641-44; Lodgment 1, Volume 2 at 564. Lodgment 3, Volume 6

The trial court also found true

the allegations that Petitioner had five prison priors, two serious 4
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felony priors, and two strike priors. Lodgment 1, Volume 2 at 564.

Lodgment 3, Volume 6 at 645-48;

On October 12, 2004, the court dismissed

two strikes under California Penal Code section 1385 and then sentenced Petitioner to a total of 23 years in prison. 672-73, 676-80; Lodgment 1, Volume 2 567-68. The People appealed the court's finding that Petitioner's Illinois attempted robbery conviction did not qualify as a serious felony prior and a strike prior. Lodgment 6. The People further contended that the Lodgment 3, Volume 6 at

trial court abused its discretion when it struck two of Petitioner's prior strikes. Id. Petitioner also appealed the judgment, arguing that the trial court (1) violated his rights to a speedy trial and due process with respect to the Phillips convictions; (2) abused its discretion in consolidating for trial the crimes against both victims; (3) erred by admitting uncharged acts evidence; and (4) committed judicial misconduct. Lodgment 5. Petitioner also asserted that (1) the burglary convictions as to Antillon should be reversed because he had an absolute right to enter the premises; (2) the judgment should be reversed because he received ineffective assistance of counsel; and (3) the cumulative effect of all errors warranted reversal. Id.

The appellate court affirmed Petitioner's conviction on April 14, 2006, with the as exception a result of of a partial reversal and remand Lodgment for 7.

resentencing

the

People's

appeal.

Petitioner filed a petition for review with the California Supreme Court on May 17, 2006, presenting only the claim directed at his right to a speedy trial. 12, 2006. Lodgment 8. His petition was summarily denied on July

Lodgment 9.

On November 29, 2006, on remand for resentencing, the San Diego Superior Court denied Petitioner's motion to strike the three prior 5
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strike allegations.

Lodgment 2 at 120-21; Lodgment 4 at 39-42.

The

court sentenced Petitioner to a term of 150 years to life in prison under the three strikes law, consisting of consecutive terms of twentyfive years to life on counts two, three, five, seven, eight and ten. Id. The court also imposed an additional seventeen years, consisting of three consecutive serious felony prior enhancements (Cal. Penal Code § 667 (a)), plus two years consecutive for an "on bail" enhancement (Cal. Penal Code § 12022.1(b)). Id. All other counts and enhancements

were ordered stayed or stricken, pursuant to California Penal Code sections 654 and 1385, respectively. Id.

On January 2, 2008, Petitioner appealed his sentence, arguing that the court erred by reconsidering his entire sentence, finding true a prior strike conviction that previously had been stricken, and failing to strike his prior strike convictions.2 Lodgment 10. Petitioner also Id.

argued that his sentence constituted cruel and unusual punishment.

On August 14, 2008, the appellate court affirmed the judgment. Lodgment 12. Petitioner filed a petition for review with the California Supreme

Court on September 15, 2008 (Lodgment 13), which was summarily denied on October 22, 2008 (Lodgment 14). Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on April 29, 2009, arguing that the trial court erred by allowing evidence of uncharged acts and trial and appellate counsel provided ineffective assistance. Lodgment 15. On September 23, 2009, the California Supreme Court summarily denied the petition. Lodgment 16. On November 4, 2009, Petitioner filed the instant

petition for writ of habeas corpus.

Petition.

2 In his opening brief, Petitioner also argued that the People's appeal was untimely; however, with permission of the court, he withdrew this argument in a supplemental letter. See Lodgment 12 at 1.

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Legal Standard Title 28 of the United States Code, section 2254(a), sets forth the following scope of review for federal habeas corpus claims: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The Petition was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-- (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). merits. Summary denials constitute adjudications on the Where

See Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. 2002).

there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Nunnemaker, 501 U.S. 797, 801-06 (1991). A state court's decision is "contrary to" clearly established federal law if the state court: (1) "arrives at a conclusion opposite to that reached" by the Supreme Court on a question of law; or Ylst v.

(2) "confronts facts that are materially indistinguishable from a 7
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relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's]." Williams v. Taylor, 529 U.S. 362, 405 (2000).

A state court's decision is an "unreasonable application" of clearly established federal law where the state court "identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). "[A] federal

habeas court may not issue a writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly . . . . Rather, that application must be objectively unreasonable." Id.

(emphasis added) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412. Finally, habeas relief also is available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2); Wood A state

v. Allen, __ U.S. __, 2010 WL 173369, *2 (U.S. Jan. 20, 2010).

court's decision will not be overturned on factual grounds unless this Court finds that the state court's factual determinations were

objectively unreasonable in light of the evidence presented in state court. Rice v. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Collins, 546 U.S. 333, 341-42 (2006) (the fact that

"[r]easonable minds reviewing the record might disagree" does not render a decision objectively unreasonable). This Court will presume that the

state court's factual findings are correct, and Petitioner may overcome 8
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that presumption only by clear and convincing evidence. § 2254(e)(1). Discussion Petitioner raises three grounds for relief. Petition.

28 U.S.C.

He argues

that this Court should reverse his conviction because (1) his right to a speedy trial was violated, (2) his trial and appellate counsel provided ineffective assistance of counsel, and (3) his due process rights were violated by the admission of "prior bad act evidence." Id.

Respondent argues that this Court should deny the instant petition because Petitioner has failed to demonstrate that the decision by the California state courts rejecting [Petitioner's] claims on the merits was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts as presented in the state court proceeding. Resp.'s Mem. at 1. A. Speedy Trial Claim Petitioner complains that his constitutional right to a speedy trial was violated by the California state courts. Pet.'s Mem. at 4.

He explains that although his right to a speedy trial with respect to the crimes he committed against Phillips (counts eight-eleven) attached on November 24, 1999, he was not brought to California to face the charges until December 19, 2001, over two years later. Id. at 6. He

argues that this substantial delay prejudiced him in that his defense was "impaired" and he "remained in prison past his scheduled release date." Id. at 12. Respondent asserts that Petitioner's claim is

"meritless."

Resp.'s Mem. at 14.

[1]. Facts Relating to the Speedy Trial Claim On November 24, 1999, while in custody in Illinois on 9
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local charges, Dye was arraigned on a fugitive complaint regarding his crimes against Phillips, demanded a trial and refused to waive extradition to California. In December 1999, Dye pleaded guilty to the Illinois charges and was sentenced to prison. On January 5, 2000, the San Diego District Attorney's Office lodged a detainer against Dye seeking his temporary custody under the Agreement. (§ 1389, Art. IV(a).) Dye refused to waive extradition and refused to sign the "request for final disposition of charges" form that would have allowed his transfer to California. Between January and June 2000, the San Diego District Attorney's Office telephoned the Illinois Department of Corrections to check on the status of its transfer request, but corrections personnel initially indicated that they were not sure where Dye was being housed and then advised that he had been transferred to a prison in South Dakota to serve the rest of his Illinois prison term. In July 2000, the San Diego District Attorney's Office learned that the Illinois Department of Corrections had lost the request for temporary custody and was looking for it. During this time period, the San Diego District Attorney's Office made more telephone calls to the Illinois Department of Corrections to check on Dye's status. In August 2000, the San Diego District Attorney's Office received a letter from the Governor of Illinois indicating he "authorized" the transfer. The San Diego District Attorney asserted, however, that the letter did not give San Diego the authority to take custody of Dye and it was not the equivalent of an offer of temporary custody under the Agreement. Dye was unsure whether he or his attorney had requested a hearing under Cuyler v. Adams (1981) 449 U.S. 433 (Cuyler) to oppose the proposed transfer; nonetheless, as of September 2000, the Illinois Department of Corrections knew that such a hearing was to be held, but did not know whether it would occur in Illinois or South Dakota. Four months later, the San Diego District Attorney's Office learned that South Dakota would hold the Cuyler hearing once it obtained the necessary papers. In March 2001, Dye again refused to waive extradition, claiming prison personnel only provided him with a blank form without the required information regarding what charges he was facing in California. During this time period, Dye learned that he had a right to demand trial in California under the Agreement and filed a "federal enjoinment action." Dye also testified that he hired an attorney to contact officials in South Dakota and Illinois to ascertain if the necessary paperwork had come in under Article IV of the Agreement, discovered there was no detainer against him and did not learn about the detainer until just before his scheduled August 2001 release date. The Cuyler hearing was held in October 2001 and Dye 10
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appealed the resulting transfer order. On November 13, 2001, the Illinois and South Dakota Departments of Corrections issued offers "to deliver temporary custody" of Dye. On December 6, 2001, the San Diego District Attorney's Office accepted temporary custody and Dye appeared in San Diego the following week to answer the charges against him relating to Phillips. The Honorable Ronald L. Styn held a hearing on Dye's motion to dismiss and issued a ten-page order denying the motion. The trial court assumed that Dye had been subject to continuous restraint since November 1999, and that his right to a speedy trial triggered at that point. After evaluating the factors articulated in Barker v. Wingo (1972) 407 U.S. 514 (Barker), the trial court concluded that the delay was presumptively prejudicial, but was justifiable insofar as California was concerned because the negligence of Illinois could not be imputed to the California prosecutor. It also concluded that Dye's actions reduced the weight that should be given to his request for a speedy trial and that he failed to show actual prejudice. After Dye's reconsideration motion was denied, he waived statutory time for trial and time under the Agreement process. Lodgment 7 at 3-5. 2. The California Court of Appeal's Decision In evaluating the merits of Petitioner's claims, this Court must "look through" to the last reasoned state court decision. See Ylst, 501 U.S. at 801-06. Petitioner presented his speedy trial claim on direct

appeal to the California Court of Appeal and the California Supreme Court. See Lodgments 5, 8. Because the California Supreme Court

summarily denied his petition for review (Lodgment 9), the last reasoned state court decision came from the California Court of Appeal, Fourth Appellate District. See Lodgment 7. In its opinion, the appellate

court found that Petitioner's constitutional right to a speedy trial was not violated. Id. at 7-13. The court reasoned:

Here, the trial court assumed that Dye's right to a speedy trial attached in November 1999 when, while in custody in Illinois, he was arraigned on a fugitive complaint regarding this case and demanded a trial. For purposes of analysis, we also assume that Dye's right to a speedy trial attached at this point and examine the remaining Barker factors in light of the approximately two-year delay between 11
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his demand for a trial and appearance in San Diego. As to the reasons for the delay, there is nothing in the record suggesting that the prosecution deliberately failed to extradite Dye in order to hamper his defense and any delay engendered by negligence is weighed "less heavily" against the government. (Barker, supra, 407 U.S. at p. 531.) In reviewing whether the prosecution was negligent, we must examine the procedure it used to transfer Dye to California. Here, the prosecution lodged a detainer against Dye seeking his temporary custody under Article IV(a) of the Agreement in January 2000. The Agreement, codified by section 1389, establishes procedures for resolution of one jurisdiction's outstanding criminal charges against another jurisdiction's prisoner. (§ 1389, Art. I.) Once a detainer is lodged, the warden of the correctional institution in which the prisoner is incarcerated is required to inform the prisoner of all outstanding detainers and his or her right to request final disposition of the criminal charges underlying those detainers. (§ 1389, Art. III(c).) If the prisoner requests final disposition, then the receiving state is required to bring the prisoner to trial within 180 days of the request or dismissal will result, unless the receiving state moves for a continuance. (§ 1389, Art. III(a).) If the prisoner does not initiate procedures leading to transfer and disposition of the charges under Article III, the prosecutor may do so under Article IV and trial must then be commenced within 120 days of the arrival of the prisoner in the receiving state. (§ 1389, Art. IV(c).) Prisoners also have the right to a judicial hearing in which they can bring a limited challenge to the receiving state's custody request. (Cuyler, supra, 449 U.S. at p. 449.) The detainer lodged by the prosecution properly noticed its source and the charges against Dye. Dye acknowledged that in January 2000 and March 2001, he received forms whereby he could make a request for final disposition, but complained that he never received any information about the charges against him and refused to sign the forms for that reason. Assuming the veracity of Dye's assertions, this would have resulted only from negligence by the Illinois and South Dakota officials in failing to inform him of the contents of the detainer. However, negligent compliance with the Agreement by out of state officials generally does not preclude prosecution in another state. (Fex v. Michigan (1993) 507 U.S. 43, 51-52.) Nonetheless, Illinois and South Dakota officials were negligent in other respects. In 2000, the San Diego District Attorney's Office telephoned the Illinois Department of Corrections on numerous occasions to check on the status of Dye's transfer request, but the out of state personnel initially did not know Dye's location, lost the request for temporary custody and did not know where the Cuyler hearing would be held. In 2001, the San Diego District Attorney's 12
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Office made over 20 phone calls to South Dakota or Illinois checking on the status of its transfer request. Inexplicably, the Cuyler hearing was not held until October 2001. After Dye appealed the resulting transfer order, the Illinois and South Dakota Departments of Corrections issued offers "to deliver temporary custody" of Dye the following month. Within four weeks, the San Diego District Attorney's Office had accepted temporary custody and Dye appeared in San Diego to answer the charges. The issue is whether the negligence of these out of state officials can be imputed to California for the purposes of analyzing whether the prosecution caused the delay. In People v. Hill (1994) 37 Cal.3d 491, 497 (Hill), our high court concluded that the risk of negligence by the California Department of Corrections should be borne by the prosecution and not the defendant for speedy trial purposes. Hill, however, did not address the instant situation where another state, over which the prosecutor had no control, caused the delay. Significantly, the Sixth Amendment right to a speedy trial requires a state to make a diligent, good faith effort to bring a prisoner serving a prison term in another state to trial. (Smith v. Hooey (1969) 393 U.S. 374, 383.) Thus, the primary question is whether the prosecution here made a diligent, good faith effort to transfer Dye to California for trial. After considering all the evidence, the trial court specifically found that the prosecution acted in good faith and with due diligence and this implied finding of no negligence is reviewed with deference. (Doggett, supra, 505 U.S. at p. 652.) Dye complains that the prosecution did nothing besides making telephone calls and sending e-mails to enforce compliance with the Agreement and failed to use other means to secure his transfer. The specific purpose of the Agreement, however, is to expedite proceedings to secure speedy trials for defendants facing charges in one jurisdiction and already incarcerated in another. (§ 1389, Art. I.) Illinois did not know Dye's location for a period of time and Dye was incarcerated in both Illinois and South Dakota. Given these circumstances, Dye does not explain how a writ of habeas corpus ad prosequendum, governor's warrant, federal action or an executive agreement to obtain custody would have expedited his transfer. We must also examine Dye's desire for a speedy trial in light of his other conduct. (United States v. Loud Hawk (1986) 474 U.S. 302, 314.) Notably, after Dye's arraignment on the fugitive warrant and request for trial in November 1999, he never requested a prompt disposition of the California charges against him. Dye's failure to assert his right to a speedy trial indicates he might have believed that the delay was to his benefit, in which case he cannot now complain that his right to a speedy trial has been violated. (Barker, supra, 407 U.S. at pp. 521, 528-529, 531-532.) Had Dye truly been 13
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interested in a speedy trial on the California charges, he could have asserted his rights under Article III of the Agreement to start the 180-day clock for dismissal of his charges or waived the Cuyler hearing. Critically, over a year passed from the time that the Illinois Department of Corrections knew about the Cuyler hearing and the commencement of the hearing. Dye admitted that in March or April 2001, he learned of his right to demand trial in California under the Agreement and he knew "a lot" about the Agreement process when he refused to waive extradition in March 2001. Dye also admitted that he refused to waive extradition or his rights under the Agreement, refused to be transferred to California and appealed the results of the Cuyler hearing. Although Dye claimed he never attempted to delay his transfer to California and was unsure whether he or his attorney had requested the Cuyler hearing, the trial court disbelieved these assertions, concluding that Dye had insisted on the hearing and that his actions contributed to the delay of his prosecution. The trial court is in the best position to judge the credibility of the evidence and we give considerable deference to its findings. (See Doggett, supra, 505 U.S. at p. 653.) Moreover, Dye's actions after his return to San Diego (jumping bail and then committing crimes against Antillon) strongly show that proceeding to trial was the last thing he wanted. Where, as here, the prosecution proceeded with reasonable diligence, the defendant must show specific prejudice for his speedy trial claim to succeed. (Doggett, supra, 505 U.S. at p. 656; United States v. Aguirre (9th Cir.1993) 994 F.2d 1454, 1457, cert. denied, 510 U.S. 1029.) Prejudice is assessed in the light of the interests that the speedy trial right is designed to protect, including: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. (Barker, supra, 407 U.S. at p. 532.) Of these subfactors, "the most serious is the last, because the inability of a defendant [to] adequately ... prepare his case skews the fairness of the entire system." (Ibid.) Dye does not argue that he suffered anxiety and concern regarding the unresolved California charges and it is important to note that he was serving an Illinois sentence for all but the last three months of his incarceration before his transfer to San Diego. Although Dye was not released in August 2001 as he had expected because of the detainer against him, he does not argue that the additional three months of incarceration was oppressive. Dye asserts that the delay impaired his defense because his own ability to recall facts that occurred in 1999 was hampered and because he could not locate witnesses who could have testified that he did not return to Phillips's home on the day in question and that Phillips had financial troubles. Phillips, however, admitted she was a student with little or no money and $20,000 in 14
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credit card debt and testified that she gave Dye her money and allowed him to use her car for the sole purpose of reducing her debt. Although Dye complains that the passage of time prevented him from locating witnesses, he does not explain how these witnesses were critical to his defense against these charges. In summary, the conduct of Illinois and South Dakota personnel is insufficient to tip the scales in Dye's favor given the diligent actions of the prosecution in pursuing Dye under the Agreement. Dye also failed to assert a speedy trial right until after his transfer to San Diego, undertook actions that delayed any possibility of trial and suffered little or no prejudice resulting from the delay. After balancing all four factors, we conclude the trial court did not err in holding that Dye was not denied a speedy trial under the federal constitution. Id. at 8-13. 3. Federal Law and Analysis "The Sixth Amendment accused guarantees shall that, enjoy `[i]n the all right criminal to a

prosecutions,

the

speedy...trial....'" Doggett v. United States, 505 U.S. 654, 651 (1992) (citing the Sixth Amendment of the United States Constitution); see also United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993). This

right is "fundamental" and imposed by the Due Process Clause of the Fourteenth Amendment on the states. Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967). The Sixth Amendment Speedy Trial Clause is broad on its face; however, its breadth has been qualified by case law which recognizes the weight of four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to defendant. Doggett, 505 U.S. at 651; see None of the four

also Barker v. Wingo, 407 U.S. 514, 530-32 (1972).

factors are either a necessary or sufficient condition for finding a speedy trial deprivation. Barker, 407 U.S. at 533. They are "related

factors and must be considered together with such other circumstances as may be relevant." Id. 15
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However, the first factor, the length of delay, is a threshold question and Doggett breaks this inquiry into two steps. Doggett, 505 U.S. at 651-52; Beamon, 992 F.2d at 1012. To trigger a speedy trial

inquiry, an accused must show that the period between indictment and trial passes a threshold point of "presumptively prejudicial" delay. Barker, 407 U.S. at 530; Beamon, 992 F.2d at 1012. Prejudice normally

is presumed if the delay in bringing the defendant to trial has exceeded one year. Doggett, 505 U.S. at 652, n.1. If this threshold is not met, Id. at 651-

the court does not proceed with the other Barker factors. 52; Barker, 407 U.S. 530; Beamon, 992 F.2d at 1012.

If, however, the

threshold showing is made, "the court considers the extent to which the delay exceeds the threshold point in light of the degree of diligence by the government and acquiescence by the defendant to determine whether sufficient prejudice exists to warrant relief." 1012. The Interstate Agreement on Detainers ("IAD"), codified under California statutory law by § 1389, is "an agreement between California, 47 other states, and the federal government," facilitating the Beamon, 992 F.2d at

resolution of detainers, based on untried indictments, informations or complaints filed in one jurisdiction, against defendants who have been imprisoned in another jurisdiction. People v. Lavin, 88 Cal.App.4th Under the IAD, "`[a]

609, 612 (2001) (internal quotations omitted).

detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.' " Id. United States v. Mauro, 436 U.S. 340, 359 (1978)). (quoting

Section 1389 should

be read in light of Barker v. Wingo, which sets forth the guidelines for properly determining the speedy trial issue. 16 People v. MacDonald, 27
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Cal.App.3d 508, 511 (1972). The IAD establishes a procedure under which a prisoner, against whom a detainer has been lodged, may demand trial within 180 days of a written request for final disposition properly delivered to the

prosecutor and appropriate court of the prosecutor's jurisdiction. § 1389, Art. III, subd. (a); Lavin, 88 Cal.App.4th at 612. The

prisoner's only requirement under the IAD "is to advise the warden of his request for final disposition of the charges on which the detainer is based." People v. Wilson, 69 Cal.App.3d 631, 636 (1977).

Here, Petitioner's right to a speedy trial with respect to the crimes he committed against Phillips (counts eight-eleven) attached on November 24, 1999; yet, he was not brought to California to face the charges until December 2001. at 1-2. Lodgment 7 at 3, 5; Lodgment 1, Volume 1

The appellate court correctly determined that this two year

delay was "presumptively prejudicial" and that the Court therefore must consider the remaining Barker factors. Lodgment 7 at 3, 5; see Doggett, 505 U.S. at 652, n.1. With regard to the second factor, the "reasons for the delay," the appellate court determined that the California "prosecution acted in good faith and with due diligence" and that the delay was not due to the California prosecution's negligence but rather to the negligence of officials in Illinois and South Dakota. Lodgment 7 at 8-10. This Court

finds that this was a reasonable determination of the facts in light of the evidence presented in the state court proceeding. The judge

presided over a four-day hearing that included lengthy testimony from several witnesses, including Petitioner, numerous exhibits, and The

extensive arguments by counsel.

Lodgment 3, Volumes 1-4 at 1-403.

evidence showed that the California prosecutors made numerous attempts 17
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to transfer Petitioner to California, including lodging a detainer against Petitioner pursuant to Article IV(a) of the IAD and telephoning officials in Illinois or South Dakota on more than twenty occasions to check on the status of the transfer. that officials in Illinois and/or Id. The evidence also established Dakota failed to inform

South

Petitioner of the contents of the detainer, were unaware of Petitioner's location, lost the request for temporary custody, and inexplicably delayed the Cuyler hearing.3 Id. Accordingly, there was ample evidence

supporting the state court's findings and this Court finds the state court's findings and analysis on this point to be reasonable.4 Third, the court properly examined "[Petitioner's] desire for a speedy trial in light of his other conduct." Lodgment 7 at 11 (citing The court found

United States v. Loud Hawk, 474 U.S. 302, 314 (1986).

that Petitioner, although admittedly aware of his rights under the IAD, failed to assert his right to a speedy trial after his November 1999
3 In Cuyler v. Adams, 449 U.S. 433 (1981), the United States Supreme Court held that prisoners facing transfer by detainer pursuant to the IAD were entitled to a pretransfer hearing to challenge the charging state's custody request.

Petitioner also argues, as he did to the court of appeal, that the California prosecution should have used "other means," including a writ of habeas corpus ad prosequendum, governor's warrant, federal action or an executive agreement, to secure his transfer. Pet.'s Mem. at 7-10; Reply Mem. at 1-2. He cites a United States Supreme Court opinion, Smith v. Hooey, 393 U.S. 374 (1969), in support of this argument. Pet.'s Mem. at 7; Reply Mem. at 2. As the court of appeal noted, given the circumstances outlined above, there is no indication that any of these proposed "other means" would have expedited his transfer. Lodgment 7 at 10-11. Moreover, in Hooey, the petitioner was imprisoned in a federal penitentiary in Kansas when he was indicted in Harris County, Texas, on a charge of theft. Hooey, 393 U.S. at 375. He repeatedly asked to be brought to trial on the state charges; however, the state took no action. Id. The Court held that upon demand of a person incarcerated in a federal penitentiary who is charged with a state crime, the charging state is required to make a diligent, good faith effort to obtain the accused for trial on the pending state charge. Id. at 383. Unlike in Hooey, where the state "took no steps to obtain the petitioner's appearance...in the trial court," here, as detailed above, California made a diligent, good faith effort to secure Petitioner's transfer. Id. at 375. Accordingly, the Court finds that the court of appeal's decision is consistent with the Supreme Court's decision in Hooey.

4

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arraignment, failed to assert his rights under Article III of the IAD, and failed to waive the Cuyler hearing. Id. Additionally, Petitioner

refused to waive extradition or his rights under the IAD, refused to be transferred to California, and appealed the results of the Cuyler hearing. Id. The record contains extensive evidence, including Lodgment

Petitioner's own admissions, supporting the court's finding. 3, Volumes 1-4.

As the court of appeal stated, "[h]ad [Petitioner]

truly been interested in a speedy trial on the California charges," he would have taken actions in furtherance, not in contravention, of that interest. Lodgment 7 at 11. Essentially, by failing to take one or

more of these actions, Petitioner contributed to his delay and he "cannot now complain that his right to a speedy trial has been

violated."

Id. (citing Barker, 407 U.S. at 521, 528-29, 531-32).

Accordingly, this Court finds that the state court's findings and analysis on this point also were reasonable.5 Finally, the court determined that Petitioner did not suffer "specific prejudice" as a result of the delay. analyzing the prejudice factor, Barker Lodgment 7 at 12-13. three In

identified

interests

protected by the speedy trial rights: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern, and (3) limiting the possibility that delay will impair the defense. Barker, 407 U.S. at 532-33. Of these three subfactors, "the most serious is the last,

because the inability of a defendant [to] adequately...prepare his case skews the fairness of the entire system." Lodgment 7 at 12 (quoting id.

The Court also notes, as did the court of appeal, that Petitioner's actions after he returned to California to face the Phillips charges (jumping bail and then committing similar crimes against Antillon) "strongly show that proceeding to trial was the last thing he wanted." Lodgment 7 at 12.

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at 532).

The court of appeal applied these factors and found that

Petitioner did not establish any significant prejudice on either of the first two subfactors. Id. Regardless of the pending California

charges, Petitioner was serving an Illinois sentence for all but the last three months of his incarceration before his transfer to San Diego. Lodgment 3, Volumes 1-4. Petitioner did not present evidence that he

suffered anxiety and concern regarding the unresolved California charges nor did he establish that the additional three months of incarceration was oppressive. Id. Therefore, the Court finds that the state court's

analysis of these two subfactors was reasonable. With respect to the third subfactor, the court of appeal found that the delay did not impair Petitioner's defense. Lodgment 7 at 12-13.

Petitioner argues, as he did to the court of appeal, that the delay prejudiced his defense because his "own ability to recall the facts and circumstances surrounding the events of that period of time in 1999 [was] hampered" and because he could not locate witnesses who could have testified that he did not return to Phillips' home on the day in question and that Phillips had financial troubles. Pet.'s Mem. at 12.

Yet, with respect to "witnesses who could have verified that he did not go back to Phillips' house on the day in question," Petitioner did not identify any particular witness who could no longer be found.6 Id. Nor Id.

did he present evidence of efforts to find such witnesses.

Moreover, with respect to witnesses who could have testified "that Ms.

In a pretrial hearing, Petitioner's trial counsel generally alluded to "neighbors" who, "if they could be found and called as witnesses," would testify that Petitioner did not go back to Phillips' house on the day in question. Pet.'s Appendix 31. However, this speculative and conclusory statement is insufficient to demonstrate that Petitioner was prejudiced by the delay in bringing him to trial. Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (vague speculation or mere conclusions unsupported by record are not sufficient to state claim).

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Phillips was financially in trouble," Petitioner does not explain, nor can this Court discern, how these witnesses were crucial to his defense. Id. As the court of appeal stated, the testimony regarding Phillips'

financial troubles would have added little or no value as Phillips herself testified that she was a student in serious credit card debt and that she gave Petitioner her money for the sole purpose of reducing her debt. 23. Lodgement 7 at 12-13; see also Lodgment 3, Volume 5 at 218, 220Therefore, it is not likely that the testimony would have had an Finally, Petitioner's claim that he

impact on the outcome of the case.

was unable to recall facts that incurred in 1999 is conclusory as he fails to explain exactly what facts were forgotten or how these facts would have aided in his defense. Accordingly, the state courts'

determination that Petitioner did not suffer prejudice as a result of the delay was reasonable. The California Court of Appeal properly balanced the four Barker factors and reasonably concluded that Petitioner was not denied a speedy trial under the United States Constitution. Accordingly, this Court

finds that the court of appeal's determination was not contrary to or an unreasonable application of clearly established law, nor was it an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

Therefore, the Court DENIES habeas relief on this claim. B. Ineffective Assistance of Counsel Claim Petitioner alleges that he was denied his Sixth Amendment right to effective assistance of counsel because his trial attorney (1) failed to investigate and prepare for trial, (2) failed to adequately crossexamine Phillips and Antillon, (3) failed to file a written response to the prosecution's motion to admit evidence pursuant to California 21
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Evidence Code § 1101(b), and (4) delivered an inadequate closing argument.7 Pet.'s Mem. at 14-20. Petitioner also argues that his

appellate attorney provided inadequate representation because he failed to cite federal law in connection with the improper admission of prior bad act evidence claim. Id. at 20-21. Respondent argues that

Petitioner "has not shown that trial counsel's purported deficiencies resulted in prejudice." Resp.'s Mem. at 23.

1. The California Court of Appeal's Decision In its opinion, the California Court of Appeal concluded that Petitioner was not denied effective assistance of counsel. at 23-28. The court of appeal explained: Lodgment 7

In arguing for a continuance, Dye's prior counsel noted that the prosecution's motions were "no-brainers." After noting how old the case was, the trial court stated that defense counsel was "very capable [and] competent" and could immediately respond to the motions. Despite its comments, the trial court moved the hearing date a couple of weeks and told defense counsel that oral responses were "perfectly acceptable." On the date set for the hearing on the motions, defense counsel sought to withdraw based on a conflict. After granting the motion to withdraw, the trial court informed new counsel (noted to be the fourteenth or fifteenth counsel for Dye) that it would accept oral responses to the motions. Defense counsel later orally argued that consolidation would be unduly prejudicial and the uncharged acts evidence should
Petitioner also argues that trial counsel failed to contact prior counsel and investigators. Pet.'s Mem. at 17-18. However, as Respondent points out, this claim is not properly before this Court, as it was not fairly presented to the California Supreme Court. Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008); see Resp.'s Mem. at 27-28; Lodgments 8, 13, 15. In any event, the Court reviewed the record and finds that Petitioner's claim also fails on the merits. The record clearly reflects that trial counsel contacted Petitioner's previous attorneys. Lodgment 4, Volume 4C at 134. Trial counsel also contacted prior investigators, including Miriam Pasas, Tara Glasford, and Shannon Lodder. Id.; Pet. Mem. at 18; Lodgment 3, Volume 6 at 584. In fact, Ms. Lodder, ultimately testified in Petitioner's defense at trial. Lodgment 3, Volume 6 at 584-597. As Petitioner's fifteenth attorney (see Lodgment 3, Volume 4C at 142), it would have been unrealistic and unproductive to require him to contact all those who preceded him. For the above reasons, the Court finds that trial counsel's actions fell well within the wide range of reasonable representation. Hensley v. Crist, 67 F.3d 181, 184 (9th Cir. 1995). Moreover, Petitioner has not shown that counsel's conduct prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Therefore, Petitioner's claim fails.
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not be admitted. Although the trial court granted the consolidation motion, it did not admit all of the uncharged acts evidence. The record gives us no reason to believe that the trial court would have ruled differently had defense counsel filed written opposition or made longer arguments at the hearing and we reject Dye's suggestion that counsel was ineffective. Moreover, we examined the rulings regarding consolidation and the admission of uncharged acts evidence and found no error. Thus, Dye has not established that he was prejudiced by counsel's failure to file written opposition. (Supra, at parts IB & C.) Dye contends that counsel did not adequately prepare for trial because he failed to investigate potential exculpatory witnesses in the Antillon case, specifically individuals that would testify as to her bipolar attacks and lying and another individual that saw Dye and Antillon together nine weeks after he allegedly disappeared. Defense counsel indicated that the individuals Dye had listed could not assist the defense because they were not present during the time period in question. Regardless, defense counsel indicated he would have an investigator interview the witnesses on the Antillon case. On this record, there is no reasonable probability that the omission of these unnamed witnesses adversely affected the trial outcome. Finally, Dye contends that defense counsel failed to adequately cross-examine Antillon because he did not include any questions regarding a "jilted lover defense" and gave only a one-page closing argument. Decisions regarding the scope of cross-examination and closing argument are tactical in nature and where, as here, the record sheds no light regarding the reason for counsel's actions a claim of ineffective assistance must be rejected as we will not "second-guess" defense counsel's tactical decisions. (People v. Stewart (2004) 33 Cal.4th 425, 459.) Id. at 27-28. 2. Federal Law and Analysis For ineffective assistance of counsel to provide a basis for habeas relief, Petitioner must successfully meet a two-prong test. must show that counsel's performance was deficient. Washington, 466 U.S. 668, 687 (1984). First, he

Strickland v.

"This requires a showing that

counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." 23 Id. The

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"[r]eview of counsel's conduct is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation." Hensley v. Crist, 67 F.3d 181, 184 (9th Second, Petitioner must prejudiced the defense.

Cir. 1995); Strickland, 466 U.S. at 689. establish counsel's deficient performance

Strickland, 466 U.S. at 687.

This requires a showing that counsel's

errors were so serious they deprived Petitioner "of a fair trial, a trial whose result is reliable." Id. To satisfy the test's second

prong, Petitioner must show a reasonable probability that the result of the proceeding would have been different but for the error. 529 U.S. at 406; Strickland, 466 U.S. at 694. Williams,

A reviewing court "need

not decide whether counsel's performance was deficient when the claim of ineffectiveness may be rejected for lack of prejudice." Jackson v.

Calderon, 211 F.3d 1148, n.3 (9th Cir. 2000) (citing Strickland, 466 U.S. at 697). a. Failure to Investigate Petitioner complains that trial counsel failed to investigate potential exculpatory or impeaching witnesses. For example, Petitioner argues that trial Pet.'s Mem. at 14-17. counsel should have

investigated "potential witnesses in the Antillon case who could have testified as to her bipolar attacks and lying." Id. at 15. He

specifically identifies Milagro Morrow-Lezama, "a friend of Petitioner and cousin to Antillon whom [sic] introduced Petitioner and Antillon," as a witness who "would have testified as to Antillon's lying,

forgetfulness and problems." Id.

He also states that other witnesses,

including Rena Kastris, Andrew Scianemea, and Peter Morales, employees at the restaurant where Petitioner worked, "could have put Petitioner with Mrs. Antillon nine weeks after the alleged incident, refuting her 24
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claim of his disappearing [sic]."

Id.

Finally, Petitioner argues that

the testimony of a jewelry store owner and Maria De Los Reyes could have been used to impeach both Antillon and Gary Cates on several points.8 Id. at 15-16. Petitioner's arguments are not supported by the record. As the

court of appeal stated, trial counsel knew about the potential witnesses and determined that the they "could not assist the defense because they were not present during the time period in question." see also Lodgment 3, Volume 4C at 136-37. Lodgment 7 at 28;

He also determined that

"these are not the type of witnesses that can really help [Petitioner] in any fashion." Lodgment 3, Volume 4C at 136-37. Regardless, trial

counsel indicated that he intended to hire an investigator to interview the witnesses. 116. Id. at 149; Lodgment 7 at 28; Lodgment 3, Volume 4 at

In fact, trial counsel later stated that he hired "Dennis Sesma's Lodgment 3, Volume 4 at 201. During

office to do some investigation."

trial, counsel further stated that he had investigators "beating the bushes for [Petitioner] to find witnesses he's told us would be of assistance for him." Lodgment 3, Volume 6 at 542. Additionally,

although trial counsel may not have independently interviewed witnesses, interview statements taken by Petitioner's previous trial attorneys and investigators were made available to him. Lodgment 3, Volume 4 at 87,

101, 103; see also Pet.'s Appendix 44 (Declaration of Stephen G. Cline). Counsel's decision not to investigate further was not objectively

Gary Cates testified about facts relating to Petitioner's bail jumping charge and his efforts to locate Petitioner after Petitioner failed to appear on the Phillips case on January 23, 2003. Lodgment 3, Volume 5 at 406-424. Maria De La Reyes cosigned Petitioner's bond application and described herself as his girlfriend. Id. at 409-11. Ms. De La Reyes was contacted by Mr. Cates "by telephone in April 2003, three months after Mr. Dye failed to appear for a court hearing." Lodgment 1, Volume 2 at 484; see also Lodgment 3, Volume 5 at 411.

8

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unreasonable.

See Strickland, 466 U.S. at 691 ("Counsel has a duty to

make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."). As Respondent states, "[i]t is still unclear as to what efforts were ultimately made by trial counsel and to where those endeavors may have ultimately led." Resp.'s Mem. at 25. In any event, Petitioner

fails to present declarations by

Milagro Morrow-Lezama, Rena Kastris,

Andrew Scianemea, Peter Morales and the jewelry store owner that would substantiate their purported testimony, availability, and willingness to testify.9 In presenting a claim of ineffective assistance based on

counsel's failure to call witnesses, Petitioner must identify the witness, United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985), show that the witness was available and willing to testify, United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988), and show that the witness' testimony would have been sufficient to create a reasonable

Petitioner attaches a declaration by Ms. De La Reyes regarding Mr. Cates' trial testimony. Pet.'s Appendix 42; see also Lodgment 1, Volume 2 at 483-88. The declaration was filed in superior court on August 26, 2004. Lodgment 1, Volume 2 at 483. In her declaration, Ms. De La Reyes states that Mr. Cates fabricated numerous events, including a discussion "relating to Mr. Dye stalking [her], following [her], and trailing [her]." Id. at 485. Ms. De La Reyes maintains that such a discussion never occurred. Id. Her declaration conflicts with Mr. Cates' trial testimony on other small points as well. See id. at 483-87. The trial judge was made aware of Ms. De La Reyes' declaration and found that "it has absolutely nothing to do with his guilt or innocence in this case" and that "it doesn't change the testimony of the two primary victims...." Lodgment 3, Volume 6 at 655, 667. This Court agrees. Although Ms. De La Reyes' testimony may have been used to impeach Mr. Cates testimony on small points, the result of the trial would have been the same. As stated above, Mr. Cates testified regarding Petitioner's bail jumping charge and his efforts to locate Petitioner after he failed to appear on the Phillips case on January 23, 2003. Lodgment 3, Volume 5 at 406-424. He did not testify to the facts underlying the Phillips charges or the Antillon charges. See id. As to the bail jumping charge, Petitioner admitted that he skipped bail. Lodgment 3, Volume 4C at 129, 143. Moreover, Mr. Cates' testimony regarding Petitioner's whereabouts after he skipped bail was corroborated by numerous witnesses, including Susan Baddor, Lennie Bironne, Katherine Speaks and John Duffy. Lodgment 3, Volume 6 at 452-525. Therefore, the Court finds that it is not reasonably likely that the outcome of the trial would have been different had trial counsel called Ms. De La Reyes to testify.

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doubt as to guilt.

Tinsley v. Borg, 895 F.2d 520, 532 (9th Cir. 1990);

see also United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1989) (holding that where defendant did not indicate what witness would have testified to and how such testimony would have changed the outcome of the trial, there can be no ineffective assistance of counsel).

Generally, this requires submission of affidavits from the uncalled witnesses. Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000), cert.

denied, 531 U.S. 908 (2000); see also Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001), amended by 253 F.3d 1150 (9th Cir. 2001) (mere speculation of possible helpful information from potential witnesses is not sufficient to show ineffective assistance of counsel); Howard v. O'Sullivan, 185 F.3d 721, 724 (7th Cir. 1999) ("failure to submit supporting affidavits from [the] potential witnesses would severely hobble [the petitioner's] case."). Thus, Petitioner's claim that these

witnesses could have provided potentially exculpatory or impeaching testimony is merely speculation and without evidentiary support. Moreover, as the Court of Appeal reasonably found based on the record before it, there is no evidence that the omission of these witnesses adversely affected the trial outcome. Lodgment 7 at 28.

There was overwhelming evidence of Petitioner's guilt on counts two, three, four, five and six.10 Allen v. Woodford, 395 F.3d 979, 992 (9th

Cir. 2005), cert. denied, 546 U.S. 858 (2005) ("[T]o the extent that any claim of error ... might be meritorious, we would reject that error as harmless because the evidence of [petitioner's] guilt is

overwhelming."). In particular, the trial judge found Antillon to be "a

10

28

As stated above, Petitioner was acquitted on count one.

Lodgment 3, Volume 6

at 641.

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very credible witness."

Lodgment 3, Volume 6 at 643.

And, Antillon's

testimony was corroborated by several witnesses, including John Reese, Richard Metz, Deborah Walker, Christopher McGilvary, Jeffrey Bricker, Randy Gibson and Phil Sowers. Lodgment 3, Volume 5 at 288-323, 333-88; It also was corroborated by the

Lodgment 3, Volume 6 at 527­32, 609-19.

physical evidence, including the receipt for the purchase of the gold chain, showing that it cost $3,000. Lodgment 3, Volume 5 at 303-04.

The prosecution also introduced the two forged checks as well as testimony that handwriting analysis could not eliminate Petitioner as the person who wrote the checks. 527-32. Id. at 308-09; Lodgment 3, Volume 6 at

In light of the overwhelming evidence of Petitioner's guilt,

there is no indication that the outcome would have been different had these witnesses testified. Accordingly, the state court's determination that counsel did not provide ineffective assistance of counsel in this respect was not an unreasonable decision. b. Failure to File Written Opposition claim that trial counsel provided ineffective

Petitioner's

assistance of counsel when he failed to file a written opposition to the prosecution's motion for admission of uncharged acts evidence is without merit. Pet.'s Mem. at 20. The trial judge specifically told counsel Lodgment 3, Volume 4

that oral responses were "perfectly acceptable." at 38, 103, 162.

The record indicates that trial counsel followed the Lodgment 3, Volume

court's instruction and orally opposed the motion. 4 at 179-181.

And, counsel's oral opposition was partially successful

in that the judge prohibited the government from using some of the requested uncharged acts evidence. Id. at 181-185. Accordingly,

Petitioner has not and cannot establish that counsel's actions were "outside the wide range of professionally competent assistance" or that 28
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the alleged failure impacted the judge's ruling.

Strickland, 466 U.S.

at 689; see Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) ("[T]he failure to take futile action can never be deficient performance"). Moreover, as discussed below, this Court has determined that no federal or constitutional error occurred as a result of the trial court's admission of the uncharged acts testimony. See infra Discussion section C(3). Accordingly, this claim fails. c. Inadequate Cross-Examination i. Phillips Petitioner also argues that trial counsel conducted an insufficient cross-examination of Phillips. Pet.'s Mem. at 18. He argues that the

cross-examination was "astonishingly brief" and "irrational in light of the available impeachment evidence." Id. Although trial counsel's

cross-examination of Phillips was relatively short compared to the prosecution's direct-examination, the Court finds that it was not deficient. Trial counsel focused on counts eight (residential burglary) and nine (grand theft of personal property) and attempted to discount Phillips' account of the events in question. 240-42, 245-46. that For she example, did not trial have Lodgment 3, Volume 5 at questioned cards and Phillips' personal

counsel credit

contention

her

identification in her possession on the day in question. Id.