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March 31, 2003


The opinion of the court was delivered by: Vaughn R. Walker, United States District Judge


Petitioner, a state prisoner incarcerated at Mule Creek State Prison in Ione, California, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on October 11, 2001, the court found that the First Amended Petition stated colorable claims-for relief under § 2254, when liberally construed, and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.


Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Santa Clara of two counts of attempted murder, two counts of rape, one count of forcible oral copulation, one count of dissuading a witness, four counts of corporal punishment on a cohabitant, and one count of forcible penetration with a foreign object. The jury also found true allegations that the attempted murder of one victim was premeditated and that both attempted murders involved the personal infliction of great bodily injury.*fn1

On March 4, 1997, the court imposed a life term for the attempted premeditated murder and added a four-year enhancement for inflicting great bodily injury. As to the other counts, the court sentenced petitioner as follows: a seven-year term for the other attempted murder with an additional four-year enhancement for inflicting great bodily injury; four consecutive one-year terms for each count of violence against a cohabitant; a consecutive three-year term for dissuading a witness; and four separate and consecutive six-year terms for the two rapes, penetration with a foreign object, and oral copulation. The court also imposed a restitution fine of $1,000 and victim restitution of $1,664.54.

On April 5, 2000, the California Court of Appeal issued an opinion affirming the judgment of conviction and, on July 12, 2000, the Supreme Court of California denied review. The instant federal habeas petition followed.


Viewing the evidence in the light most favorable to the verdict, the California Court of Appeal summarized the facts of the case as follows:

Defendant and Yvonne Garcia met in the mid-1980's when they were teenagers. After 1990, they lived together and had two sons Matthew and Brandon. Before 1993, defendant hit Ms. Garcia and received counseling for domestic abuse. In 1993, defendant pleaded no contest to assaulting another person with a deadly weapon.
After May 1995, defendant's behavior became even worse. During this time, defendant and Ms. Garcia argued frequently. Defendant beat her with a bat, hit her with his hand, poked her with scissors, burned her with a hot spoon, and shocked her with a stun gun. Once, he made her disrobe and lie next to the stove, closed the doors and windows, turned on the gas, and started to flicker a lighter. She had to beg him to stop. Another time, he made her disrobe and threatened to stick a knife in her vagina if she did not keep quiet. One day defendant found a real estate broker's business card that Ms. Garcia had gotten from a coworker. He became angry and accused her of having an affair.
In June 1995, Ms. Garcia filled out an application for a restraining order against defendant, citing emotional, verbal, and physical abuse and threats. However, she never filed it. Despite his mistreatment, Ms. Garcia remained with defendant because she loved him and thought she could help him.
Ms. Garcia testified that on the night of June 28, 1995, she had a night-time meeting at Home Depot where she worked. Defendant and his father picked her up and then drove defendant's father to his residence, where he lived with his mother, defendant's grandmother, Mary Martinez. On the way, defendant interrogated Ms. Garcia about why she worked so late and accused her of having an affair with the manager. Later, at the house, defendant went into the bathroom with Ms. Garcia and ordered her to remove her pants so he could "check her." He inserted his finger in her vagina, choked, and beat her. When Mary Martinez knocked on the door, they left the bathroom. Meanwhile, defendant's father called Ms. Garcia's father Rudy Garcia and told him to pick her up before defendant killed her. Mr. Garcia immediately called the police.
Officer Lori Perfili of the San Jose Police Department arrived. Ms. Garcia, who was very upset, told Perfili what had just happened and accused defendant of previous domestic violence. Perfili arrested defendant and brought him to the station. There, he said that he and Ms. Garcia argued because he wanted her to stay home and not work. He admitted telling his father that he was going into the bathroom to "check it out," but he did not explain what that meant.
After the incident, Ms. Garcia told her father about it. She was nervous and upset. In a statement dated June 29, she reiterated what had happened and what she had told Perfili about defendant's prior abuse. Nevertheless, a few days later, Ms. Garcia pleaded with her father to post bail for defendant because he was the father of her children. Mr. Garcia agreed because he wanted to help them get ahead. After defendant was released, Ms. Garcia wrote a second statement, saying she had fabricated what happened to her to get even with him because she saw him talking to a woman outside Home Depot and suspected he was having an affair with her.
On direct examination at trial, Ms. Garcia confirmed her original-story about what happened on June 28. On cross-examination, however she recanted, saying she had concocted the charges because she was angry after finding a list of women's names and telephone numbers in his pocket. She suspected he was cheating on her and wanted to get him away from her. Later she felt guilty that he was in jail and asked her father to post bail. On redirect, Ms. Garcia reconfirmed her original story, including his accusations, beating, and digital penetration, and said that her written recantation was a lie. She said that defendant had asked her to write it, and she did so to make him happy.
After defendant's release on bail, he threatened to kill Ms. Garcia several times if she testified against him. He also threatened to kill her family, saying, "Do you want the baby to die?" Ms. Garcia then intended to lie for him and therefore thought the charges would be dismissed.
On July 21, 1995, defendant hid a tape recorder in his and Ms. Garcia's bedroom. On July 23, he retrieved the recorder, and throughout the day repeatedly played the tape for Ms. Garcia because he thought he heard a man's voice. He accused her of sleeping with their 13-year-old neighbor. Ms. Garcia heard nothing on the tape and denied his accusation. Defendant called her a liar, bitch, slut, whore, weasel, and mongrel. He punched her in the face, beat her with a bat and belt, poked her with scissors, and made her disrobe. He also confronted the neighbor boy. Defendant told Ms. Garcia that if he went back to jail, she would die. Frightened, she hid a kitchen knife from him. She did not leave the house, however, because she was naked, the doors were locked, and she did not want to leave her sons.
Ms. Garcia testified that during that day she had sexual intercourse with defendant two or three times and orally copulated him once. Although he beat her before they had sex, she denied that he forced her to have sex. However, she admitted that in a recorded statement she gave police and later at the preliminary hearing, she said defendant had used force or threatened to do so. She described defendant as "psycho" that day, which she attributed to drugs, although she did not see him use any that day.
At about 9:00 p.m. that evening, Ms. Garcia's father came by the house and knocked on the door. He had been at a barbecue and during the course of the day had consumed three or four beers. Defendant and Ms. Garcia were in the kitchen, and he told her not to answer the door. However, their son Matthew let Mr. Garcia in, and he began to play with both children in the living room. Matthew seemed nervous and upset and said that defendant had choked his mother. At this time, defendant told Ms. Garcia to act as if nothing had happened. He went to the living room and asked Mr. Garcia to go to the store. However, Ms. Garcia came out and begged her father not to leave. She was hysterical and said that defendant had stabbed her with scissors, cut her hair, and threatened to kill her. Defendant immediately pushed her into the bathroom and choked her. He tried to shut the door, but her foot was in the way. Mr. Garcia told defendant to leave her alone and pulled the door open. Defendant threatened him, pushed Ms. Garcia back out into the hallway, and then picked up Brandon, who was with Matthew nearby, and asked, "Do you want me to kill the babies too?" Mr. Garcia took Brandon from defendant and then brought both children to a neighbor and asked her to call the police.
Meanwhile, defendant pushed Ms. Garcia into their bedroom and onto the floor. He grabbed a sword that he kept there and stabbed her in the stomach, saying "Bitch, I told you not to say anything." Ms. Garcia screamed for her father. When Mr. Garcia entered the room, defendant was standing over Ms. Garcia, pulling the sword from her stomach, and appeared ready to stab her again. He called Ms. Garcia a bitch and said he would kill everyone. Mr. Garcia rushed to protect his daughter, but defendant hit him on the head with the sword and then struck him in the face, knocking out teeth and severing part of his tongue. Ms. Garcia tried to pull defendant away, but he pushed her down and stabbed her in the back. Mr. Garcia rushed at defendant again and was stabbed through the arm. He grabbed hold of the sword, and as he and defendant struggled for it, he was wounded in the neck and chest. Defendant was stabbed in the leg.
Ultimately, defendant released the sword, and when Mr. Garcia got control of it, he told his daughter to leave. Defendant fled past Mr. Garcia into the living room. At this point, Ms. Garcia tried to call the police, but defendant had previously disconnected the telephone. She also tried to use defendant's cell phone but could not get it to work. She then ran out of the house to the neighbor or help but no one answered the door. Mr. Garcia followed defendant out of the bedroom, and defendant tried to block him in the hallway with a large plastic children's slide. He begged Mr. Garcia not to kill him. Mr. Garcia tried to strike defendant with the sword, but defendant escaped out the front door.
Defendant joined Ms. Garcia outside and urged her to go with him, saying her father was going to kill him. As they walked together, Ms. Garcia collapsed. Defendant knelt next to her and begged her not to die because he loved her. Mr. Garcia came out of the house and was approaching defendant with the sword. However, by this time Officer Tom Rogers of the Campbell Police Department and other police officers had arrived, and Rogers ordered Mr. Garcia to drop the sword, which he did. Mr. Garcia told Rogers that defendant had stabbed Ms. Garcia and threatened to kill Brandon. Officer Harold Abbott of the Campbell Police Department attended to defendant and Ms. Garcia, and she told him that defendant had tortured her all day long and that her father had protected her from defendant. Abbott arrested defendant, and Ms. Garcia and her father were taken to the hospital. Officer Eric Pearson of the Campbell Police Department took custody of the children, and Matthew told him that "daddy choked mommy." Pearson later spoke to Ms. Garcia, who said defendant had hit her with a bat and stabbed her.
Police searched defendant's house, took photographs of the scene, and made a videotape of it. Among other things, they found a knife underneath a microwave oven in the kitchen, a stun gun, a baseball bat, two tape recorders, and electric shears. A test of defendant's blood revealed the presence of methamphetamine.
Ms. Garcia testified that after defendant's arrest, they spoke numerous times over the phone. He also sent her letters and cards from jail. She denied that he attempted to influence her testimony. However, she identified a group of letters she received just before she was supposed to testify that the police had found stuffed in a pillowcase in her bedroom. At first she said that she did not recognize who wrote them. Later she testified that defendant had written all or parts of each one. She equivocated about whether she glanced at, read some, or read all of them.
One of the letters (Exhibit 16) reads, "Yvonne[,] you need to study these very well (Questions)[.] There [sic] gonna be used by my lawyer in trial. The answers are all there baby. . . . Mijos need me out there jus [sic] remember that, I love you dearly momma." Thereafter, the letter contained questions and answers. For example, "Q# So your [sic] saying he never force[d] you? Answer = Yes, I wanted it to happen." In all, the document coached Ms. Garcia to say that she was upset with defendant, wanted to get even with him by fabricating the charges. However, she did not realize how serious the charges and wanted to tell the truth because he did not deserve to go to prison. Although she explained to the prosecutor that her allegations were false, he told her he would file perjury charges if she did not stick to her original story. "Q# Are you lieing [sic] for him now? Answer No."
In another letter (Exhibit 15), defendant says, in pertinent part, "I'm hoping that you'll be able too [sic] help me out on this situation. To be honnest [sic] with you I'm geting [sic] desperit [sic] about all these charges. As you can see I wrote questions for you to steady [sic]. I know your [sic] afraid about geting [sic] in trouble but I wrote it down so that cant [sic] happen to you. Especially the part about the D.A. your lawyer. Theres [sic] no way he can do that because when you explain that to the jury he wont [sic] be able too [sic] charge you. You wanted to tell the truth but he more or less said if you do now he well [sic]. He's forceing [sic] you to lie on the stand. I have the same paper and I'll give it to my lawyer to ask you! Keep steadying [sic] it and try to remember you don't [sic] have too [sic] remember word bye [sic] word but try and keep it mostly the way I wrote it."
In another letter (Exhibit 17), defendant explained that the prosecutor is charging him with dissuading a witness based on a claim that he coerced her into writing the recantation letter. After copying her written recantation verbatim, defendant wrote, "You need to more or less memorize your story so that [the prosecutor] cant [sic] perjure you. Like I said before he [sic] gonna try and say I made you write this and that I coerced you. The ball is in your court babe its [sic] up to you to make the next play."
Officer Kristan Gabrielson, a Santa Clara County Correctional Officer, testified that on July 26, 1995, she overheard a conversation between defendant and another inmate Binh Nguyen. Nguyen asked what defendant "was in for." Defendant answered he was there for stabbing his girlfriend. He then pointed to the right side of his torso and then to his back.
Richard Ferry, a licensed counselor, testified as an expert on battered women's syndrome. He explained that the syndrome is a collection of symptoms typically observed when there has been an abuse in an intimate relationship, including depression, free-floating anxiety, and exaggerated startle responses. He said victims often develop distorted thinking to explain the violence used against them. For example, victims think violence is normal and justified. They think they are responsible for and can control the abuse. And rather than blame perpetrators, they will blame drug use or other women.
Ferry noted that victims often learn to be helpless, stop resisting abuse, and decline to escape from it. He also described three phases of what he called the "cycle theory of violence." First is the tension building phase, where the perpetrator becomes argumentative, clipped, and hostile. In response, the victim tries to appease and mollify or minimize and avoid interaction. This usually aggravates the situation because the perpetrator feels abandoned and starts getting violent. As tension builds, the victim often precipitates the next phase of acute violence simply to "get it over with." Thereafter, the perpetrator experiences grief and remorse, promises to change, and tries to woo the victim back. The victim, in turn, succumbs and even assumes some responsibility for the violence.
Ferry also explained the concept of "traumatic bonding" between a powerful and a weak member of a couple. For example, children in abusive homes will often prefer them to foster homes; or hostages will sometimes remain with their captors despite the opportunity to leave. With respect to battered women, they may adopt the abuser's attitudes and perspective and feel truly in love with him. They may also try to protect him from the consequences of his conduct by recanting previous allegations of abuse.
Ferry opined that a recantation under circumstances of abuse like those described by Ms. Garcia was consistent with battered woman's syndrome.
The Defense
Defendant testified that he started using methamphetamine in March 1995. It gave him energy but made him grouchy and paranoid. He admitted having girlfriends, which made Ms. Garcia jealous, and as a result they often argued. Defendant said his relationship with Ms. Garcia deteriorated in May 1995 after he confronted Ms. Garcia about some stolen jewelry.
Defendant testified that on June 28, he was "curious" about Ms. Garcia's late-night meeting at Home Depot. His main complaint to her was that he wanted her to stay at home and take care of the children and not work. She got angry and brought up his affairs. At his father's house, they both had to use the bathroom, and inside he again asked about her meeting. When Ms. Garcia got angry and loud, he pushed her. However, he denied hitting or choking her making her pull her pants down, or digitally penetrating her. He admitted telling Officer Perfili that he went into the bathroom with Ms. Garcia to "check it out," but explained he only wanted to find out what had happened that evening
Defendant denied that after his release on bail he hit, beat, or shocked Ms. Garcia. He said he used methamphetamine on July 21 and planted the tape recorder to find out if Ms. Garcia was harassing his girlfriends. Later, when they listened to the tape, he questioned her about a noise he heard on it, and she spontaneously denied having an affair. This made him suspicious, and they argued most of the night.
On July 23, defendant was feeling tired and paranoid. They had consensual intercourse twice and orally copulated each other. He never hit her, used force, or threatened her. He said he asked Ms. Garcia about a missing drill, and later questioned the neighbor boy about whether he had ever been in the backyard or house but did not accuse him of having an affair with Ms. Garcia. Later, Ms. Garcia got angry because he did not take her to a church festival.
When Mr. Garcia arrived early that evening, defendant and Ms. Garcia were acting cool toward each other. Defendant testified that he asked Mr. Garcia to go to the store for him, and suddenly Ms. Garcia falsely accused him of torturing her, which, he testified, was not true. Mr. Garcia, who smelled like alcohol and seemed drunk, confronted defendant. He had once threatened to kill defendant if he ever hit his daughter. Ms. Garcia took the children into another room. Mr. Garcia then punched defendant in the face, and defendant pushed him back and ordered him to leave. When Mr. Garcia came back at defendant, defendant retreated to the bedroom. He denied that he pushed Ms. Garcia into the bathroom. Mr. Garcia pursued defendant into the bedroom, grabbed him, and slammed him against the wall. As they started to wrestle, Ms. Garcia screamed and became hysterical. Defendant told her to be quiet. She tried to push him, and he grabbed her by the throat. She in turn, grabbed his testicles and squeezed them. Mr. Garcia then picked up one of the boys, and as defendant tried to take him back, both Ms. Garcia and Mr. Garcia attacked him. He let go, and Mr. Garcia took both boys out of the house. Defendant asked Ms. Garcia why she had caused all of this commotion. At that point, Mr. Garcia returned to the bedroom, grabbed defendant's sword, and stabbed him in the leg. Defendant "snapped" and grabbed Mr. Garcia by the throat. Ms. Garcia started screaming at defendant calling him names and joined in a free-for-all fight, at one point getting between him and Mr. Garcia.
Defendant testified that he never got control of the sword and did not see how Mr. Garcia or Ms. Garcia received their wounds. He denied that he stabbed either of them and surmised that it must have happened when they were all struggling with each other. As the fight continued, he pushed Ms. Garcia, and she ran out the door. He was feeling dizzy, fled to the living room, and tried to block Mr. Garcia with a children's toy. Mr. Garcia followed, swinging the sword. Defendant yelled "No, don't Rudy. Don't." Defendant then went outside and met Ms. Garcia and told her that Mr. Garcia was going to kill him. She was helping him because of the injury to his leg, but she could not breathe and collapsed. Shortly there after the police arrived.
Defendant testified that Ms. Garcia wrote her own recantation, and he denied prompting her to do so. Defendant also denied writing two of the letters attributed to him (Exhibits 15 and 16) but admitted writing one (Exhibit 17). He did so because he did not want her to commit perjury. He wrote down what she had said to the defense investigator so that she would know the truth.
Defendant professed his love for Ms. Garcia. He said he never planned or intended to kill her or her father. He denied that he ever threatened anyone. He claimed that Ms. Garcia fabricated all allegations of abuse and specifically denied that he shocked her with a stun gun, hit her with a bat or belt, put a knife in her vagina, or threatened to blow up the gas stove. He also denied burning Ms. Garcia with a hot spoon, explaining that he had accidentally bumped into a hot frying pan. He said he was not jealous when he found the real estate agent's card; rather, he asked her about it because he was interested in getting his real estate license.
Mary Martinez, defendant's grandmother, testified that sometime after July 23, Ms. Garcia called her and said that her father had threatened to kill defendant, and when she stepped between them to protect defendant, her father inadvertently stabbed her.
Miriam Martinez, defendant's aunt, testified that after July 24, Ms. Garcia called her and said that defendant had stabbed her and had tried to chop off her father's head. However, Ms. Garcia called again later and said she had lied and that she had thrown herself between defendant and her father because her father was trying to kill defendant. Ms. Garcia told her she had tried to tell this to the prosecutor, but he refused to believed her. Ms. Garcia explained to Martinez that she had originally accused defendant because she did not want her father to go to prison and felt that defendant would "get off."
People v. Chaidez, No H016600, slip op at 2-12 (Cal Ct App. Apr 5, 2000) (alteration in original) (footnotes omitted) (Resp't Ex OO).


A. Standard of Review

A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

"[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, that application must be "objectively unreasonable." Id. at 409.

The only definitive source of clearly established federal law under 28 U.S.C. § 2254 (d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 317 F.3d 1038, § 1044 (9th Cir 2003). While circuit law may be persuasive authority for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.

B. Claims

Petitioner raises three claims for relief under 28 U.S.C. § 2254: (1) the trial court improperly denied petitioner's retained counsel's motion to withdraw and petitioner's motion to dismiss retained counsel; (2) the trial court's abuse of discretion errors conceded by the state appellate court resulted in cumulative prejudice; and (3) the trial court improperly failed to instruct the jury on the lesser-included offense of attempted voluntary manslaughter.

1. Refusal to dismiss petitioner's retained counsel

Petitioner claims that the trial court violated his Sixth Amendment right to counsel when it refused to dismiss petitioner's retained counsel, Stuart Kirchick, upon motions by Mr. Kirchick to withdraw, upon a motion by petitioner to dismiss Mr. Kirchick, and in the face of an insurmountable conflict of interest. Petitioner also claims that the trial court failed to make an adequate inquiry into the alleged conflict.

a. Background*fn2

Petitioner was represented by Deputy Public Defender Peggy Banks until February 1996, when retained counsel was substituted. At Mr. Kirchick's request, the trial date was then continued several times. After a pretrial conference in April 1996, an impasse was declared, and the case returned to stand-by on the Master Trial Calendar. In late July 1996, an impasse again was declared.

On August 26, 1996, Mr. Kirchick attempted to declare a conflict of interest, but petitioner was not present in court, and the matter was continued until August 28, 1996.

On August 27, 1996, Mr. Kirchick filed a motion to withdraw. In his supporting declaration, Mr. Kirchick stated that the case had been on trial stand-by for a month. He had received discovery, prepared a defense, and drafted motions in limine. Until then, he had no "extraordinary problems" representing petitioner. Mr. Kirchick further reported that on August 21, 1996, he visited petitioner in jail for 15 minutes and told him he would return the morning of August 23 and meet until noon. On that day, counsel arrived at 10:00 a.m., but there was no interview room available for the rest of the morning. Mr. Kirchick briefly met with petitioner, gave him some transcripts, and explained that they could not meet at that time. According to Mr. Kirchick, petitioner became agitated and did not believe his explanation. At the same time, a guard directed Mr. Kirchick to leave the area. As Mr. Kirchick started to leave, petitioner repeatedly asked what was happening. Mr. Kirchick explained that there was no available interview room and that he had been told to leave the area. Then, as Mr. Kirchick entered the elevator, petitioner "directed his arm straight towards me with his finger pointed at me and his thumb up as if he was holding a gun[.]" Mr. Kirchick interpreted the gesture as "a direct threat for my well being which I must take very seriously[.]" Mr. Kirchick dwelled on the incident for the next two days, becoming "more insecure and frightened" and then immediately filed his motion to withdraw.

Mr. Kirchick declared, "Given the current allegations against him, his past conduct with me and of course the latest threat, I do not believe I can zealously and adequately defend my client pursuant to the professional rules of ethics and my personal obligations to my client[.]" Consequently, Mr. Kirchick asked the court to permit him to withdraw as counsel due to a breakdown in the attorney-client relationship.

On August 28, 1996, the court summarily denied the motion:

(Whereupon, pursuant to the luncheon recess court reconvened and the following proceedings were had:)
THE COURT: 9, Ernesto Chaidez. Also 10.

MR. KIRCHICK: He's present in custody. Stuart Kirchick.

THE COURT: The request to withdraw is denied.

MR. KIRCHICK: Thank you, Your Honor.

THE COURT: This matter is on standby, and I will send it out for trial.
MR. ...

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