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BROWN v. TERHUNE

September 6, 2001

PAUL ANTHONY BROWN, PETITIONER,
v.
CAL TERHUNE, DIRECTOR OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS; ROY CASTRO, WARDEN, HIGH DESERT STATE PRISON, RESPONDENTS.



The opinion of the court was delivered by: Illston, District Judge.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING REQUEST FOR EVIDENTIARY HEARING

Currently before this Court is petitioner Paul Anthony Brown's second amended petition for a writ of habeas corpus under 28 U.S.C. § 2254. The parties have fully briefed the merits of this petition, and Brown has requested an evidentiary hearing. After considering the arguments of the parties, this Court hereby DENIES petitioner's petition for writ of habeas corpus and DENIES petitioner's request for an evidentiary hearing.

BACKGROUND

On February 18, 1992, at approximately 9:15 p.m., a man armed with a Calico .9 millimeter semi-automatic or automatic weapon entered Bosn's Locker bar in North Oakland and sprayed the bar with 49 rounds of ammunition; seven individuals were hit by gunshots, three of whom were killed.

A. Procedural History

On September 24, 1992, Brown, along with co-defendant Keith Barber, was charged by information with three counts of murder, one special circumstance of multiple murder, and four count of attempted willful, premeditated murder, along with other allegations. Trial in Alameda County Superior Court began on July 27, 1993. On September 8, 1993, the jury informed the trial court that it was deadlocked as to both defendants and the court declared a mistrial. On November 10, 1993, the court granted the prosecution's motion to dismiss all charges against Barber.

On March 7, 1994, Brown's second trial began. On March 29, 1994, the jury returned guilty verdicts on three counts of murder in violation of California Penal Code § 187 and four counts of willful and deliberate attempted murder under California Penal Code §§ 187 and 664. The jury also found true a multiple murder special circumstance allegation (Cal.Penal Code § 190.2(A)(3)); that Brown personally used a firearm in the commission of all the offenses (Cal.Penal Code § 12022.5); and that Brown inflicted great bodily injury during the commission of two of the four attempted murders (Cal.Penal Code § 12022.7). After the verdict and before the penalty phase, Brown, made a Marsden*fn1 motion based on trial counsel Arelene West's failure to investigate and present testimony by a witness named King McCarthy. West had been retained by Brown during municipal court proceedings and then appointed once Brown could no longer pay for her services. After holding a hearing on the issue, the trial judge denied Brown's Marsden motion.

On April 11, 1994, the penalty phase began. On April 21, 1994 the jury returned a verdict of life without the possibility of parole. After the jury's verdict, Brown renewed his Marsden motion, and a hearing was held on May 20, 1994. The court again denied Brown's motion. On July 6, 1994, the trial court denied Brown's motion for a new trial and motion to reduce the attempted murder verdicts, and sentenced him to three life terms without the possibility of parole for the three first degree murder convictions, with four year enhancements for firearm use on all three counts. The court also imposed life terms for the four counts of attempted murder, with four year enhancements for firearm use on all four counts, and three year enhancements for each of the two findings of infliction of great bodily injury The court ordered all sentences to be served concurrently to the first sentence of life without the possibility of parole. Brown is currently incarcerated at High Desert State Prison in Susanville California.

B. Evidence at Trial*fn2

Two individuals who were in the bar at the time of the shooting later served as witnesses for the prosecution at Brown's criminal trial. Winnie Tomlin, who was standing ten feet from the door through which the gunman entered, saw a tall man enter and, although her view of the gun was obstructed, heard the shooting begin. She testified that she looked into the face of the gunman for four or five seconds, and that the area where the gunman was standing was well lit by the disk jockey's equipment. Following the shooting, Tomlin was sent to the hospital to treat a superficial chest injury caused by the ricochet of a bullet, where she was administered a tranquilizer to calm her hysteria. Two hours after the shooting, she was interviewed at the hospital by Officer Joyner and she provided a physical description of the shooter: he was a dark-complexion black male, 18 to 25 years old, five feet eight inches tall, and 150 to 160 pounds, and wore a green hat with a bill, clear plastic goggle-type glasses, and a multi-colored jacket. Two days after "the shooting, Tomlin identified Brown as the shooter out of a photographic lineup but would not sign the back of the photograph, telling the homicide detective that she was not sure of her identification. Tomlin later claimed to have been afraid to identify Brown rather than uncertain. Tomlin also told a therapist that she could identify the gunman but did not want to do so. After Tomlin was subpoenaed to testify at a preliminary hearing, she informed defense counsel that she was unable to identify the shooter. She was not called to testify at the preliminary hearing. However, subsequently, Tomlin identified Brown as the gunman, attributing her change of heart to her anger at the deaths of two friends in the Bosn's Locker shooting. At trial, Tomlin testified that the gunman was tall, thin, light-skinned and dark around the beard area; that he wore a cap and a nylon jacket with green in it; and that he wore clear goggles over his eyes that were similar to plastic safety glasses used for target practice.*fn3 She identified Brown as the shooter. Tomlin was impeached by Tommietta Winston, a defense witness who had been with Tomlin at Bosn's Locker on the night of the shooting, who testified that Tomlin told her she could not be sure of her identification of the gunman.

Vernon Wallace, who had consumed three or four drinks before the shooting, hit the floor at the moment that the shooting began. At trial he testified that, after a few seconds, he crawled into a position where he could see the right profile of the gunman, whom he described as wearing a black pullover hat, like a ski mask rolled up, so that Wallace could only see his eyes. The gunman was approximately 16 to 18 feet away but the disk jockey's lights enabled him to view the shooter. After the shooting, Wallace described the gunman as light skinned and approximately six foot one or two. The next day, Wallace picked Brown's picture out of a photographic lineup. At trial, he identified Brown as the shooter. However, he was impeached with a number of prior inconsistent statements. When he called 911 immediately following the shooting, Wallace stated that he had not seen the gunman and could not identify him. His first description of the shooter to the police did not mention a ski mask, but stated that a black turtleneck pulled up just beneath the eyes hid most of the shooter's face. At the preliminary hearing, Wallace did not mention a ski mask and stated that he could not identify Brown as the shooter. At an evidentiary hearing, Wallace stated that the shooter had green eyes and identified Barber as the shooter, changing his mind only after the prosecutor showed him his signature on the back of Brown's photograph in the lineup. It was at that evidentiary hearing that Wallace first mentioned the ski mask.

Gwendolyn Williams also testified for the prosecution. She testified that on the night of the shooting she had been talking to her friends "Linda, Faye and Mary" on Faye Jamerson's porch, approximately one block from Bosn's Locker. Some time after 8:30 p.m., Brown drove up in a white Corvette and stopped to talk to Williams. Michael Baxter came by and told Brown, "There is some dude sitting in the bar." Brown walked in the direction of Bosn's Locker, and was gone for approximately ten minutes. When he was gone, Williams heard something that sounded like firecrackers. When Brown returned, he asked, "Did you hear that?" and told Williams that the sounds were gunshots. He then said, "I'm outta here," and drove away in his car. Williams stated that Brown did not have a gun with him that night.

Williams' testimony was impeached by Faye Jamerson and Mary Whitehead,*fn4 who testified that they had not been with Williams on the night of the shooting Jamerson testified that she had been in Arkansas attending her brother-in-law's funeral at the time of the shooting. After she had completed her testimony, and the defense tried to introduce the funeral program into evidence, the court noticed that the funeral service actually took place in Texas; the prosecution then successfully moved to introduce this exhibit to impeach Jamerson's testimony and referenced this discrepancy in discrediting her testimony during closing arguments. Jamerson was not recalled to explain the discrepancy because she was ill; instead, in her closing, defense counsel suggested that Jamerson might have gone from the funeral in Texas to visit her family in Arkansas. Whitehead testified that on the evening of the shooting, which took place on her wedding anniversary, she was at the Greyhound bus station picking up her grandchildren who had been on a school outing, and that at the time of the shooting she had gone to Safeway. During cross-examination, she could not remember her grandson's name.

The prosecution also called Michael Baxter as a witness, who testified that he had not seen or spoken with Brown the day of the shooting. The prosecution then impeached Baxter with the fact that he had dealt crack cocaine for Brown for three months prior to the shooting. Baxter testified that during this time period he made a few hundred dollars while Brown made $3000 to $4000 from drug dealing activities. The court advised the jury that this evidence was relevant only to Baxter's credibility.

Officer Gus Galindo of the Oakland Police Department testified that he arrested Brown three days after the shooting. He had also stopped Brown the day before his arrest, at which time he observed "a black knit-like skull cap" in Brown's car. A black ski mask was seized from Brown's car after his arrest.*fn5 When Brown was notified that he had been arrested on charges of murder and attempted murder, he responded that "he did not care what he was arrested for, that it was no big deal."

C. Post-Trial Appeals

On November 22, 1996, the California Court of Appeal modified petitioner's sentence by striking six of the gun use enhancements but otherwise affirmed the judgment. On March 12, 1997, the California Supreme Court denied Brown's petition for review without explanation. On March 9, 1999 the California Supreme Court denied a petition for a writ of habeas corpus without any briefing or issuance of an order to show cause.

On March 24, 1999, Brown filed an amended petition for writ of habeas corpus in this court, and an order to show cause was subsequently issued. On August 5, 1999, respondents filed a motion to dismiss the habeas petition on the ground that petitioner had failed to exhaust his state remedies for two of the claims asserted in his petition. After considering the arguments of both parties, on October 6 1999 this Court granted respondents' motion to dismiss but allowed petitioner leave to amend his petition to include only exhausted claims. On October 19, 1999, petitioner filed a second amended petition for writ of habeas corpus omitting the unexhausted claims, and on October 27, 1999 this Court issued an order to show cause. Respondents filed their answer on January 4, 2000. On February 8, 2000, Brown filed a traverse and a request for an evidentiary hearing. Brown filed a motion seeking leave to conduct a deposition of witness King McCarthy on June 1, 2000. On June 8, 2000, the Court granted Brown's motion for leave to conduct the deposition and request for financial assistance to conduct the deposition. On July 7, 2000, August 21, 2000 and September 19, 2000 Brown filed motions seeking extensions of time to submit evidence in support of his request for an evidentiary hearing. The first two requests were granted by the Court, but on February 2, 2001, the Court denied the third request for an extension of time. As of this date, Brown has not sought leave to submit additional evidence in support of his request for an evidentiary hearing. Brown's current petition alleges twelve grounds for relief.

LEGAL STANDARD

A petition for writ of habeas corpus may be granted "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 Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to this petition for habeas corpus, since it was filed after the AEDPA's effective date of April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In relevant part, 28 U.S.C. § 2254, as amended by AEDPA, states:

(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 proceedings.

The Supreme Court recently explained that the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have independent meaning:

A state court decision will be "contrary to" our clearly established precedent if the state court either "applies a rule that contradicts the governing law set forth in our cases," or "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." [citation]. A state court decision will be an "unreasonable application of" our clearly established precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case" [citation].
"[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." [citation]. Distinguishing between an unreasonable and an incorrect application of federal law, we clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable. [citation].

Penry v. Johnson, ___ U.S. ___, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001) (discussing Williams v. Taylor, 529 U.S. 362, 404-11, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The Ninth Circuit further interprets the "unreasonable application" clause to call for clear error analysis:

Under AEDPA we must reverse a state court's decision as involving an "unreasonable application" of clearly established federal law when our independent review of the legal question does not merely allow us ultimately to conclude that the petitioner has the better of two reasonable legal arguments, but rather leaves us with a "firm conviction" that one answer, the one rejected by the court, was correct and the other, the application of the federal law that the court adopted, was erroneous — in other words that clear error occurred.

Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir. 2000).

Assuming constitutional error occurred, habeas relief still cannot be granted unless the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1718, 123 L.Ed.2d 353 (1993). See also Shackleford v. Hubbard; 234 F.3d 1072, 1079 (9th Cir. 2000) (error which is harmless under Brecht analysis is not "contrary to" or "unreasonable application" of clearly established federal law); Bains v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000) (Brecht standard applies to all § 2254 cases).

DISCUSSION

A. Ineffective Assistance of Counsel

The Sixth Amendment guarantees the right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland framework is considered "'clearly established Federal law, as determined by the Supreme Court of the United States, for the purposes of 28 U.S.C. § 2254 (d) analysis.'" Wilson v. Henry, 185 F.3d 986, 988 (9th Cir. 1999). Under AEDPA, a state court's Strickland analysis generally would not fall within the "contrary to" clause of § 2254(d), but should be analyzed under the "unreasonable application" prong. Weighall v. Middle, 215 F.3d 1058, 1061-62 (9th Cir. 2000).

In evaluating the effectiveness of counsel, "[t]he benchmark for judging any claim for ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland; 466 U.S. at 686, 104 S.Ct. 2052.

To establish ineffective assistance of counsel ("IAC"), a petitioner must first demonstrate that counsel's performance was deficient by showing that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. 2052. To counteract the unfair influence of hindsight, judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. After establishing the deficiency of counsel's performance, a petitioner must then show that counsel's errors were so serious as to deprive him of a fair trial. See id. at 687, 104 S.Ct. 2052. While the petitioner need not show that counsel's deficient conduct more likely than not altered the outcome of the case, the petitioner must show that there is a reasonable probability that, but for counsel's deficient conduct, the result of the case would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. 2052; see also Brown v. Myers, 137 F.3d 1154, 1157 (9th Cir. 1998).

1. Failure to investigate and present King McCarthy's testimony (Claim 1)

According to Brown, his mother first informed his trial counsel, Arlene West, that King McCarthy might have exculpatory information in 1992.*fn6 Brown's mother has filed a declaration stating that in 1992 she learned of McCarthy's statements about the case in two ways: she heard from her cousin, Clarence Wells, that McCarthy had told her cousin's girlfriend, Germaine Baker, that he saw the shooters enter Bosn's Locker and that Brown was not present; and Jeffie Sanders, who worked a Oakland Bail Bonds, told Brown's mother that she had overheard McCarthy saying "they got the wrong man. He [Brown] showed up when everything was over." Pet. Ex. F (L. Brown Decl.) ¶¶ 5-7. Baker Sanders and Wells have filed declarations confirming that they overheard these statements by McCarthy and informed Brown's mother. Pet. Ex. G (Sanders Decl.) ¶¶ 3-6; Ex. H (Baker Decl.) ¶¶ 4-6; Pet. Ex. I (Wells Decl.) ¶¶ 4-5. Upon learning of these statements, Brown's mother contacted McCarthy directly; she states that he told her that Brown had not been present when the shootings took place, and that he was willing to help but would speak only to West, who had represented him in the past in some criminal matters. Brown's mother informed West about McCarthy and gave her his phone number. Pet. Ex. F (L. Brown Decl.) ¶¶ 12, 14.*fn7 Brown and his mother contend that West assured them that she would investigate this witness, advised them not to speak with the defense investigator about McCarthy and specifically promised to call McCarthy as a witness during the second trial. Pet. Ex. F (L. Brown Decl.) ¶¶ 14, 17(2); Pet. Ex. N (P. Brown Decl.) ¶¶ 7, 10, 12.

At the Marsden hearings, West stated that she had spoken with McCarthy on the phone and that he had implied that he knew of an exculpatory witness but that he himself had not actually witnessed the events. Ex. B at 2570. West complained that she was unable to meet with McCarthy in person because he was "literally hiding out" — McCarthy failed to appear at three meetings that she had scheduled with him and moved from the area in an apparent attempt to avoid her and her investigator. She also stated that she had unsuccessfully attempted to contact McCarthy by driving by the school where he picked up his child on at least three occasions, and that she had never known his address and only recently learned his phone number. Ex. B at 2570-71, 2575-76. West's May 1998 declaration sets forth the same explanation. Pet. Ex. J (West Decl.) ¶¶ 7-9. West's representations regarding her efforts to meet with McCarthy are contradicted by hearsay statements by McCarthy to Brown's mother, Baker, and another witness, Jacqueline Coleman; these witnesses claim that McCarthy told them that West was the one who failed to attend the arranged appointments. Pet. Ex. F (L. Brown Decl.) ¶ 15; Pet. Ex. H (Baker Decl.) ¶ 6; Pet. Ex. L (Olivier Decl.) ¶ 20.

After the defense rested but before the close of trial, West and/or T.J. Hicks, who had been employed as the investigator for the first trial, went to McCarthy's house to attempt to speak with him. When this effort failed, they pushed a subpoena through an open window. Pet. Ex. F (L Brown Decl.) ¶¶ 20-22; Pet. Ex. O (Hicks Decl.) ¶ 19; Pet. Ex. J (West Decl.) ¶ 11. After McCarthy failed to appear in response to this subpoena, West went to the trial judge to seek an arrest warrant. The court informed West that the witness's identity would be revealed to the district attorney if a warrant were pursued. Ex. B at 2571-72; Pet. Ex. J (West Decl.) ¶ 12. West decided not to seek a subpoena because she did not know whether McCarthy's testimony would be favorable and because the police or district attorney would have access to him before she would. Ex. B at 2571-72. Brown went along with this decision. Ex. B at 2571-72; Pet. Ex. J (West Decl.) ¶ 13; Pet. Ex. N (P. Brown Decl.) ¶ 17.

Brian Olivier, who replaced T.J. Hicks as the investigator for the second trial, was not told of McCarthy's existence until after the guilty verdicts were returned. Pet. Ex. L (Olivier Decl.) ¶ 14.*fn8 After Brown's mother informed him of McCarthy's statements, Olivier interviewed Baker, Coleman and Sanders in April 1994. Pet. Ex. L (Olivier Decl.) ¶¶ 16-20. On June 9, 1994, Olivier spoke with McCarthy, who was reluctant to speak with him but stated that he saw the gunmen approaching Bosn's Locker, that he closed his eyes and then drove off, and that he could not tell whether Brown was one of the gunmen. He denied making the statements attributed to him by Baker, Coleman and Sanders, and stated that he had wanted to meet with West but was unable to get her to schedule an appointment. Pet. Ex. L (Olivier Decl.) ¶¶ 21-23. This evidence was submitted to associate counsel Robert Braverman, who told Olivier that he would not use the information to file a motion for a new trial because Brown would have a better chance of obtaining relief on appeal. Pet. Ex. L (Olivier Decl.) ¶¶ 24-25. West has submitted a memorandum documenting a telephone call that she received from McCarthy on June 10 1994, the day after Olivier spoke with him:

Mr. McCarthy called me and was upset. Mr. McCarthy said investigators keep telling him that he said "they got the wrong guy." He said that is not true because he wasn't able to see the two men at the crime scene. He said he was in his car in the parking lot the night of the murders, waiting for a friend, when a car pulled up and two men got out and they had ski masks on. He didn't see any guns and was not able to see their faces. The next thing he heard were gun shots and he drove away immediately.

Pet. Ex. S (memorandum).

This Court concludes that the Court of Appeal's decision is not an unreasonable application on clearly established federal law. The government points out that the state courts that rejected Brown's Marsden claims credited West's representations as to the efforts that she made to contact McCarthy, the California Court of Appeal explicitly characterizing her explanation as "reasoned and credible" and the state trial court implicitly finding the same. These findings are entitled to deference and can be overcome only by clear and convincing evidence, which Brown has not produced. 28 U.S.C. § 2254 (e). The evidence that Brown has submitted which contradicts West's explanation consists entirely of hearsay statements by individuals who claim that McCarthy claimed that West had failed to keep her appointments with him, which are not more persuasive than West's sworn testimony to the contrary. Furthermore, the hearsay evidence is further undermined by Olivier and West's account of their conversations with McCarthy; they both claim that he denied having made the exculpatory statements that were attributed to him. Brown's second argument fails for the same reason. West has offered an explanation, found reasonable by the state courts, that she did not want to have McCarthy arrested because the prosecution would be able to speak with him first and she did not know what the nature of this testimony would be. Brown's response, that if West had conducted an adequate investigation she would have known what McCarthy's testimony would be, fails for the reasons previously articulated. Finally, Brown argues that McCarthy should have been compelled to testify in connection with the motion for a new trial, and that if he had denied making the exculpatory statements then other witnesses could have been called to testify about prior inconsistent statements. See People v. Zapien, 4 Cal.4th 929, 952, 17 Cal.Rptr.2d 122, 846 P.2d 704 (Cal. 1993) (upholding multiple hearsay evidence as proof of statement that witness denied having made). The government responds that such evidence would have been insufficient to justify the grant of a new trial and that West was therefore not ineffective for failing to present this evidence if connection with the motion for a new trial. Even if McCarthy had testified favorably or if his failure to testify favorably was impeached by other witnesses, there is no reasonable probability that the trial court would have granted a motion for a new trial on this basis.

2. Failure to investigate and present evidence of Brown's whereabouts at time of shooting (Claim 2)

At the first trial, West called witnesses to establish that Brown arrived in the area of Bosn's Locker shortly after the shootings. Angela Brown, who was attending a party next door to the bar, testified that after she heard gunshots she saw a man who was not Brown dressed in black running toward a burgundy colored car. Ex. A at 4483-84, 4539-42. She later saw Brown at the corner of 59th and Shattuck; he asked her, "What happened? Why is people making our neighborhood hot?" Ex. A at 4485-86. She also testified that she had been in Bosn's Locker that night. Ex. A at 4503. On cross-examination, the district attorney asked her to describe the bar's disk jockey, John Evaneski, who had been killed by gunshots that night; she responded, "an older man . . . brown skinned with gray hair" and responded affirmatively to the question whether he was black. Ex. A at 4504. In his closing argument, the district attorney pointed out that Evaneski was Caucasian. Ex. A at 4799. Linda Wadsworth testified that she went outside and saw Brown drive up in his Corvette after the shooting, and that Brown stopped her at Whitney and 59th Street and asked her what was happening at the corner. Ex. A at 4383-85. Mary Randolph testified that she began driving south on Shattuck Avenue from Berkeley at approximately 9:15 p.m. and that at approximately 9:30 p.m. saw two or three black men hurriedly come from the area of Bosn's Locker and get into a dark red car that was stopped in front of the bar, then speed down Shattuck. Ex. A at 4462-67. The prosecution's closing argument stated that Randolph saw Brown, Barber and a third individual getting into the car after the shooting. However, Brown points out that Randolph's testimony was that the perpetrators sped southbound on Shattuck, the opposite direction from the location where Wadsworth and Angela Brown testified that they saw Brown shortly thereafter.

West decided not to present any witnesses who would put Brown in the area of the bar at the second trial. She therefore did not call Angela Brown, Wadsworth or Randolph. Brown's declaration states that he told her that he disagreed with this strategy. Pet. Ex. N (P. Brown Decl.) ¶¶ 15-16. Brown now argues that this decision was unreasonable because it was made without adequate investigation and because there was no reason to abandon a successful strategy from the first trial. Brown also faults West's investigation for failing to contact Shirley Birchett, who has filed a declaration stating that she and her son Michael saw Brown in his Corvette a half mile away from Bosn's Locker on the night of the shooting and that when they later arrived at 59th and Shattuck they saw Brown standing there with Angie Brown. Pet. Ex. U (M. Birchett Decl.) ¶¶ 2-4; Pet. Ex. V (S. Birchett Decl.) ¶¶ 2-6. According to a declaration filed by petitioner's habeas investigator, Michael Birchett showed the investigator the route that he and his mother drove that night before again encountering Brown, which took approximately two to three minutes to drive. Pet. Ex. W (Koehler Decl.) ¶ 17. Brown further argues that West could have called Angie Brown again at the second trial, and countered the fact that she had misidentified the race of the disk jockey at Bosn's Locker by pointing out that Evaneski had light brown skin and that another witness had misidentified Evaneski as black. Ex. B at 2082.

However, as long as counsel's decision is reasonable, the decision whether to present a particular defense or to call a particular witness at trial generally falls within the realm of tactical choices to which courts should defer. See United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990); Morris v. State of Calif., 966 F.2d 448, 456-57 (9th Cir. 1991). Here, the witness testimony that would have established Brown's presence in the area shortly after the shooting would not have proven that he was not the shooter, and could have been viewed by jurors as ...


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