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COLLINS v. HUSKEY

United States District Court, Northern District of California


March 31, 2003

CLAYTON JAY COLLINS, PETITIONER,
v.
J.W. HUSKEY, WARDEN, RESPONDENT.

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

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Alameda of felony failure to register as a sex offender after previously having been convicted of failure to register as a sex offender (Cal. Penal Code § 290(g)(2)). He also admitted two prior convictions (including a prior "strike" conviction for bank robbery) and, on October 6, 2000, was sentenced to four years in state prison.

Petitioner waived his right to appeal in return for the dismissal of trailing criminal charges in another case. He nonetheless collaterally challenged his conviction and sentence in the state courts. On August 29, 2001, the Supreme Court of California denied his final petition for state habeas relief.

Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on December 21, 2001, the court found that the petition, liberally construed, stated cognizable claims under § 2254 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.

BACKGROUND

The parties stipulated that on November 3, 1992, petitioner was convicted of misdemeanor annoying or molesting a child (Cal. Penal Code § 647.6) and was ordered to register as a sex offender for life. They also stipulated that on October 21, 1997, petitioner was convicted of failing to register as a sex offender (Cal. Penal Code § 290(g)(1)). The issue at trial was whether petitioner again willfully and unlawfully failed to comply with the registration requirements of California Penal Code section 290 after October 21, 1997, a felony under section 290(g)(2).

Alameda Detective Rick Cocanour, a member of the Alameda County sexual assault unit in charge of enforcing sexual offender registration requirements, testified that he was "flagged to [petitioner's] attention" by September 1998 DMV records showing that petitioner had changed his address from Oakland to Alameda and that he now lived at 1627 Santa Clara Avenue, Apartment A. Detective Cocanour ran a police record check and found that Alameda Police Officer Gee had contacted petitioner at 1627 Santa Clara Avenue, Apartment A to investigate an unrelated complaint of petitioner's. Detective Cocanour went to that address and, after speaking with the landlord, Geraldine Robinson, concluded that petitioner lived there. Detective Cocanour contacted the Bureau of Electricity and found that petitioner's name was on the application for electricity at 1627 Santa Clara Avenue, Apartment A. On November 30, 1998, Detective Cocanour set up surveillance at 1627 Santa Clara Avenue and arrested petitioner. There was no indication that petitioner lived elsewhere and the local United States Post Office confirmed that petitioner was receiving mail at 1627 Santa Clara Avenue, Apartment A.

Detective Cocanour obtained records from the California Department of Justice showing that on October 29, 1997 petitioner registered his address as 1618 61st Street in Oakland. Petitioner again registered the same address on March 31, 1998 and on June 1, 1998. Petitioner told Detective Cocanour at the time of the arrest that he had changed his address with DMV to obtain cheaper insurance, but that he lived in Oakland, where he was registered, and only occasionally stayed in Alameda with his girlfriend, Donella Collins.

James Palmieri, a United States Postal Service letter carrier, testified that he delivered mail in Alameda starting in late 1997 and that his route included 1627 Santa Clara Avenue. Mr. Palmieri saw petitioner at that address once or twice a week and had conversations with him. Mr. Palmieri placed petitioner's name inside the mailbox at Aparment A. Petitioner's name remained on the box until January 1999, when Ms. Robinson informed Mr. Palmieri that petitioner had moved. (Mr. Palmieri filled out a change of address card on January 28, 1999, indicating that petitioner had moved and had left no forwarding address.)

Bruce Maxwell testified that he moved into 1627 Santa Clara Avenue, Apartment C in September 1996. At that time, petitioner, a woman Mr. Maxwell knew as "Donella," and two children were living in Apartment A. Mr. Maxwell saw petitioner at the apartment two or three times a week, occasionally in the morning when it looked like petitioner was going to work. Between September 1996 and January 1999, Mr. Maxwell heard petitioner's voice in the apartment below "essentially every day that [Mr. Maxwell] was there."

Geraldine Robinson testified that she owned and managed the four-plex apartments at 1627 Santa Clara Avenue, and lived on a residence in front of the complex. In June 1996, Apartment A became available for rent and a woman who identified herself as Donella Collins contacted Ms. Robinson about the apartment. Ms. Collins and petitioner met with Ms. Robins to discuss renting the apartment. Petitioner inspected the apartment and "approved it." Both petitioner and Ms. Collins signed the rental application. Ms. Collins then executed the rental agreement and told Ms. Robinson that she signed the lease for petitioner. Ms. Collins also presented Ms. Robinson with documentation of petitioner's credit. Petitioner and Ms. Collins moved in the next day. They lived there from June 16, 1996 until January 13, 1999. During that time, Ms. Robinson saw petitioner at the apartment almost every day. (At some point after petitioner and Ms. Collins moved out, Ms. Collins called Ms. Robinson and asked her to take petitioner's name off the lease.)

Alameda Police Officer Wayland Gee testified that he was dispatched to 1627 Santa Clara Avenue, Apartment A on June 19, 1998. Officer Gee met with petitioner inside the apartment. Petitioner explained that he was receiving annoying telephone calls. Officer Gee suggested placing a "trap" on the telephone or changing the number. He then filled out an "incident card" and petitioner gave 1627 Santa Clara Avenue, Apartment A as his home address.

Joan Gregory, an employee of the Alameda Bureau of Electricity, testified that in June 1996 a person identifying herself as Donella Williams called her regarding an application for services at 1627 Santa Clara Avenue, Apartment A. Ms. Williams asked Ms. Gregory to open the account in the name Clayton Collins, and provided petitioner's background information, including his social security number and place of employment. Ms. Williams called back that same day and asked to have the account in her name, but indicated that petitioner would be living at that address as her "roommate." After the account was closed in January 1999, petitioner came into the Bureau of Electricity and asked to have his name removed from the Bureau records. Petitioner called again in March 2000 and asked to have his name removed from their records, claiming that he never lived there.

Petitioner chose not to testify. In his defense, however, Donella Williams (aka Donella Collins) testified that because she had credit problems, she asked petitioner is she could use his credit on the lease application for the apartment at 1627 Santa Clara Avenue in Alameda. Petitioner, who was living with his mother in Oakland, agreed to help. Ms. Williams represented that petitioner was her husband, when in fact they were just friends. When Ms. Robinson insisted on meeting petitioner, he went along to look at the apartment and participated in Ms. Williams' scheme. Petitioner did not move any of his personal items into the apartment, and he did not live there. (The exercise equipment in the apartment belonged to Ms. Williams' brother, not petitioner.)

About two years later, petitioner needed a place to work and Ms. Williams agreed to let him use the apartment. They started having a romantic relationship and he spent the night two or three times a week. She allowed him to receive personal mail there for his "business." Petitioner did not contribute to the rent.

Kennitta Vaughn, petitioner's niece, testified that she and her mother, Janice Collins, lived with petitioner at 1618 61st Street in Oakland from sometime in 1996 through 1998. Petitioner's mother also lived in that residence. Petitioner stayed in a small separate unit behind the main house, which had the same mailing address. He kept his personal belongings there. Ms. Vaughn did not know where petitioner slept because she stayed in the front unit and had to take care of her children. Petitioner moved out after his mother died in July 1999.

On cross examination, Ms. Vaughn explained that she could not remember where petitioner was living in 1994 through 1996. He "probably" was living at the 61st Street address in Oakland in 1996 and 1997. Her best recollection was that he lived there "a few years back" before moving out when his mother died. She saw petitioner, "on average," three or four times a week and had no idea where he was staying when she did not see him around the house.

DISCUSSION

A. Standard of Review

A 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 `reasonable 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 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 also be unreasonable." Id. at 411. 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." 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. Williams, 529 U.S. 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 seven claims for relief under § 2254: (1) denial of due process at the sentencing hearing; (2) imposition of an "excessive and unjust" sentence; (3) unknowing and involuntary admission of priors; (4) improper denial of motion to substitute counsel; (5) improper exercise of peremptory challenges; (6) use of perjured testimony; and (7) vindictive prosecution.

1. Sentencing hearing

Petitioner claims that the state trial court violated his constitutional right to due process "by failing to hold a formal sentencing hearing and entering into a plea bargain agreement without [his] knowledge or consent." The claim is without merit.

A criminal defendant is entitled to due process at sentencing. See Gardner v. Florida, 430 U.S. 349, 358 (1977). A federal habeas court accordingly may call into doubt a state sentence imposed in violation of due process; for example, if a state court imposed a sentence in excess of state law, see Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987); see also Marzano v. Kincheloe, 915 F.2d 549, 552 (9th Cir. 1990) (plea of guilty does not permit state to impose sentence in excess of state law despite agreement of defendant to sentence), or if it enhanced a sentence based on materially false or unreliable information or based on a conviction infected by constitutional error see United States v. Hanna, 49 F.3d 572, 577 (9th Cir. 1995); Walker, 850 F.2d at 477. Generally, however, a federal habeas court will not review a state sentence that is within statutory limits. See id. at 476.

Federal courts must defer to the state court's interpretation of state sentencing laws. Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993). "Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994).*fn1

Here, the record shows that, contrary to petitioner's assertion, the state trial court conducted a formal sentencing hearing in the presence of petitioner and his attorney. See Rep. Tr. (Oct. 5, 2000) at 1-5. Defense counsel waived "formal reading, arraignment," and the court asked whether there was any legal cause to object to sentencing and whether the parties had any evidence to present. Id. at 3. They said no. Id. The court then discussed the matter of an agreement between the parties that petitioner would waive his right to appeal in return for the dismissal of trailing criminal charges in another case:

THE COURT: Mr. Collins . . . I'm ready to sentence you on this matter. The only remaining thing was the other case, the 136321 matter. Let me advise you that you have a right to appeal. Now what we had talked about was giving up that right in order to have the DA dismiss the 136321, and we've talked about that before. Now you understand you have a right to appeal the 135229 matter? Any and all issues in that matter are going to be waived and you're not — you're giving up your right to appeal any issues in that particular case, and I'm going to sentence you in that case, and then the other matter's going to be dismissed.
THE DEFENDANT: Yes, Your Honor.

THE COURT: All right. Anything further then?

[DEFENSE COUNSEL]: No.

THE DEFENDANT: No.

Id. at 3-4.

The court then pronounced sentence and, on the prosecutor's motion, dismissed the charges in case number 136321. Id. at 4-5. The, court concluded by asking the parties whether they had anything further to add. Defense counsel replied, "No." Id. at 5.

Petitioner's claim that the trial court violated his right to due process by failing to hold a formal sentencing hearing and by entering into a plea bargain agreement without his knowledge or consent is belied by the record. The record makes clear that petitioner appeared at a sentencing hearing represented by counsel and that petitioner personally agreed to waive his right to appeal in return for the dismissal of trailing charges in case number 136321. It simply cannot be said that the state courts' rejection of petitioner's claim was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or that it involved an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner is not entitled to federal habeas relief on this claim.

2. "Excessive and unjust" sentence

Petitioner claims that he received an "excessive and unjust" sentence because the state trial court "did not take into consideration that [he] did not have any felony convictions within the last 5 to 10 years." The claim is without merit.

As previously noted, a federal habeas court generally will not review a state sentence that is within statutory limits and, "[a]bsent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws [will] not justify federal habeas relief." Christian, 41 F.3d at 469.

Here, the state trial court properly doubled petitioner's sentence to four years pursuant to California's Three Strikes Law. And, contrary to petitioner's claim, there is no indication that the court refused to take into account the fact that he did not have any felony convictions within the last five to ten years. The probation/sentencing report the court read and considered before sentencing petitioner showed clearly the dates of petitioner's prior convictions. That the court apparently declined to exercise its discretion and reduce petitioner's sentence in light of the date of his priors does not justify federal habeas relief. Accord Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (failure to abide by state requirement that trial court state reasons for sentencing consecutively does not rise to level of federal habeas due process claim because whether to impose sentences concurrently or consecutively is a matter of state criminal procedure and discretion not within the purview of federal habeas).

Petitioner is not entitled to federal habeas relief on his claim of "excessive and unjust" sentence. It simply cannot be said that the state courts' rejection of petitioner's claim was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or that it involved an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

3. Admission of priors

Petitioner claims that the state trial court imposed an "illegal enhancement" because he was not advised of his constitutional rights before he admitted the prior convictions. The claim is without merit.

Due process requires that a guilty plea be both knowing and voluntary because it constitutes the waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). It does not require a state court to enumerate all the rights a defendant waives when he enters a guilty plea as long as the record indicates that the plea was entered voluntarily and understandingly, however. See Rodriguez v. Ricketts, 798 F.2d 1250, 1254 (9th Cir. 1986); Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir. 1974).

The long-standing test for determining the validity of a guilty plea is "`whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Parke v. Raley, 506 U.S. 20, 29 (1992) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). A plea is "involuntary" if it is the product of threats, improper promises, or other forms of wrongful coercion, Brady v. United States, 397 U.S. 742, 754-55 (1970), and is "unintelligent" if the defendant is without the information necessary to assess intelligently "the advantages and disadvantages of a trial as compared with those attending a plea of guilty," Hill v. Lockhart, 474 U.S. 52, 56 (1985).

The transcript of the plea hearing plays a significant role in an inquiry into the validity of a plea:

For the representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (citations omitted).

Here, the record shows that before petitioner admitted the priors, the state trial court advised him of his right to a jury trial, his right to present evidence on his own behalf, his right to cross-examine the prosecution's witnesses with respect to the prior conviction allegation, and his right to remain silent. See Rep. Tr. at 1187-88. Petitioner then stated in open court that he understood his rights, expressly waived them, and admitted the prior convictions. See id. at 1188-90. There is no indication whatsoever that the admission was not knowing and voluntary. Cf. Parke, 506 U.S. at 31-34 (habeas petitioner bears burden of establishing that his guilty plea was not knowing and voluntary).

Petitioner is not entitled to federal habeas relief on his admission of the priors claim. It simply cannot be said that the state courts' rejection of petitioner's claim was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or that it involved an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

4. Motion to substitute counsel

Petitioner claims that he was denied "counsel of choice" when the state trial court denied his motion to substitute counsel and "forced [him] to go [through] trial with an attorney" with whom he "clearly had a broken down relationship." The claim is without merit.

"[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer he prefers." Wheat v. United States, 486 U.S. 153, 159 (1988). Put simply, the Amendment guarantees effective assistance of counsel, not a "meaningful relationship" between an accused and his counsel. Morris v. Slappy, 461 U.S. 1, 14 (1983).

To establish a violation of the right to effective assistance of counsel, a defendant ordinarily must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 685 (1984). However, "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice to obtain relief." Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980).

In order to establish a violation of the Sixth Amendment based on a conflict of interest, a defendant "must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Id. at 348 (footnote omitted). He must show that counsel "actively represented conflicting interests" and that this "adversely affected [counsel's] performance." Bragg v. Galaza, 242 F.3d 1082, 1086 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001).

In reviewing the state courts' rejection of petitioner's Sixth Amendment claim, this court's inquiry is not whether the state trial court abused its discretion in denying petitioner's motion to substitute counsel. Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir. 2000) (en banc) (overruling earlier circuit precedent that habeas court's inquiry was whether the state court's denial of motion to substitute counsel was an abuse of discretion). Rather, the "ultimate constitutional question" on federal habeas review is whether the state trial court's denial of the motion "actually violated [petitioner's] constitutional rights in that the conflict between [petitioner] and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Id. at 1026.*fn2

Here, the record shows that at an in camera hearing on petitioner's motion to substitute appointed counsel, Mr. Berger, petitioner explained that "his concern with Mr. Berger [was] not based on his competency or integrity or anything like that." Rep. Tr. (Apr. 11, 2000) at 4. Rather, petitioner's concern was based on Mr. Berger's "possibl[e]" political reluctance to investigate and file a motion to dismiss based on vindictive prosecution from the ill-will of a senior deputy district attorney and superior court judge. Id. at 4-6.

Mr. Berger stated that he had investigated petitioner's claim and, among other things, had interviewed the named deputy district attorney, the prosecutor who charged the case, and, on two occasions, the named superior court judge. In addition, Mr. Berger's investigator interviewed the officer who first investigated the case, as well as "various people in the city government and the city administrative establishment because Mr. Collins is confident that this conspiracy has tentacles that reach into city government, and that the city attorney's office, the city counsel, the Parks and Recreation Department all have agents who have been involved in seeking charges against him. Id. at 12-13. Mr. Berger explained, "I have found absolutely no credible evidence to support a Murgia [vindictive prosecution] motion or any other motion based on Mr. Collins' suspicions. I have told him that, although I will defend him to the best of my ability with my power and ethical restraints, I am not going to file a Murgia motion. And I believe that the motion that he wants me to file will be absolutely frivolous." Id. at 13.*fn3

Mr. Berger nonetheless opined that "there [was] a breakdown in the attorney-client relationship." Id. at 23. Mr. Berger explained that he believed petitioner had no confidence in him because petitioner believed that Mr. Berger was "fearful of [the people who are out to get him] and controlled by political forces." Id. at 24. When the court inquired whether any other attorney could do any better, Mr. Berger responded that he "really [didn't] know." Id.

The state trial court reviewed petitioner's documents in support of the motion to substitute counsel and denied the motion on the ground that the problem amounted to no more than a disagreement over tactics. The court explained:

. . . [W]hat I see here is the disagreement between Mr. Collins and Mr. Berger as to how this case ought to be tried. There are factual issues here, and there are also legal issues here. And Mr. Collins, as he points out, is not an attorney and may not appreciate the distinction. But there is on page 2 a long paragraph with probably, just by looking at it, maybe as many as 40 names, 30 to 40 names, of people that he would like to be subpoenaed and discussed with at the trial, that he would like each and everyone to be called. And it involves all levels of city government and many members of the District Attorney's Office and members of the court staff, Public Defender's Office, and private counsel, and others. And it speaks for itself.
The decision I have to make hearing a Mardsen motion [to substitute counsel] is to speak with you both and to decide whether or not the record clearly shows that Mr. Berger is not adequately representing Mr. Collins. Mr. Collins . . . wishes to pull all stops and to explore all avenues of things that might lead to his not being convicted of these charges. Some of that evidence may be relevant. Some of it may not be relevant. The question is, has Mr. Berger, through the hiring of an inspector and his own work on the case, adequately followed up to make the correct legal decisions within the confines of what he's allowed to do as a lawyer? I know Mr. Collins is going to disagree with it, but at this point I can't say that I find that he is not adequately representing Mr. Collins.
I recognize there has been some break down in communication here. My sense is that this is not going to change with any new lawyer either, that you're not going to find a lawyer that's going to want to — that's going to do all the things that you want. Perhaps if you were to hire[] your own lawyer and were able to provide him with the funds to work on your case full time, you might find somebody that will be willing to go out and spend a lot of time on stuff that's not going to come into evidence at trial.
Mr. Berger has made those decisions. He's a competent counsel because he indicated that he's been a lawyer, I think, about 25 years at this point. And he has, from what I've seen in the file, filed motions. And he's done some investigation on his own which protects your attorney-client privilege. He has an investigator who I personally know and know that he is the investigator and is also a lawyer. He's responded to motions.
He apparently has done a fair amount of work on your case from what I can see. And, again, I can't say that he is not adequately representing you from the record here. I don't feel that refusing your motion is going to deny or substantially impair your right to be represented by competent counsel. He is competent counsel. He's not acting at your beck and call to do everything you want done. On the other hand, he's the lawyer, and you're not a lawyer. And he has to make some decisions from a legal standpoint about what he can do and what he cannot do. For those reasons, the motion is denied. . . .
Id. at 30-31.

The state trial court's determination that there was no breakdown in the attorney-client relationship resulting in a violation of petitioner's Sixth Amendment right to effective assistance of counsel was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). After an extensive inquiry, the court reasonably concluded that new appointed counsel was not required because petitioner's dissatisfaction with Mr. Berger (the fourth attorney appointed for petitioner in the matter) stemmed solely from a disagreement regarding trial tactics and strategies, and the same disagreement would persist with another appointed attorney.*fn4 Cf. United States v. Smith, 282 F.3d 758, 763-64 (9th Cir. 2002) (affirming denial of substitution motion where alleged irreconcilable difference amounted to no more than disagreement about litigation tactics and breakdown in communication was caused by defendant's general unreasonableness or manufactured discontent); Hudson v. Rushen, 686 F.2d 826, 831-32 (9th Cir. 1982) (affirming denial of substitution motion where breakdown in communication was caused by defendant's voluntary conduct). The court also reasonably concluded that neither petitioner nor Mr. Berger demonstrated that "the conflict between [petitioner] and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Schell, 218 F.3d at 1026. After all, Mr. Berger proceeded to represent petitioner competently at trial, and petitioner does not suggest otherwise. Cf. Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970) (sufficient evidence of irreconcilable conflict found where defendant was forced to trial with assistance of lawyer with whom he was dissatisfied, would not cooperate, and would not, in any manner whatsoever, communicate). Even if this court agreed with petitioner that there was a breakdown in the attorney-client relationship, "it is at least reasonable to conclude that there was not, which means that the state court's determination to that effect must stand." Early v. Packer, 123 S.Ct. 362, 366 (2002). Petitioner is not entitled to federal habeas relief on this claim.

5. Peremptory challenges

Petitioner claims that the state trial court allowed the prosecutor to exercise his peremptory challenges "to remove all African Americans from the jury by allowing him to state [that] he `wanted a more conservative jury.'" The claim is without merit.

The Equal Protection Clause forbids the exclusion of jurors by peremptory challenge solely on account of their race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). Batson permits prompt rulings on objections to peremptory challenges under a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id. at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id. at 97.*fn5 Finally, the court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id. at 98.

It is in the third step, that the court reaches the "real meat" of the Batson challenge. Lewis v. Lewis, 321 F.2d 824, 830 (9th Cir. 2003). In the third step, the court has "the duty to determine if the defendant has established purposeful discrimination." Batson, 476 U.S. at 98. The court must evaluate the prosecutor's proffered explanations. A finding of discriminatory intent turns largely on the court's evaluation of the prosecutor's credibility. See id. at 98 n. 21. Accordingly, as with any credibility finding, the court's own observations are of paramount importance. See id. The persuasiveness of the prosecutor's proffered explanations or justifications is also relevant: "[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Purkett v. Elem, 514 U.S. 765, 768 (1995).*fn6

Here, the record shows that defense counsel objected to the prosecutor's use of three of five peremptory strikes to remove three potential black jurors. Rep. Tr. at 460-63. The state trial court found a prima facie case of racial discrimination and asked the prosecutor to justify the challenges. Id. at 464. The prosecutor then offered his explanations for challenging the three jurors:

[THE PROSECUTOR]: Well, Your Honor, with respect to Ms. Lambert, there are a number of reasons why the people challenged her. First of all, I simply was not comfortable with this juror during the course of questioning her. She would not look me in the eye. At several points there were uncomfortable pauses. I recall one specific question that I asked her with respect to the incident that involved her husband; that is that her husband was shot and whether he expressed any concern or anger over the way the Oakland Police Department handled his case. There was a very long pause.
At another point even in response to defense counsel's question whether she could be fair and impartial, her — there was another pause for some time and then she said something to the effect of: Well, I don't know what this case is about.
To me that question — or that answer was simply not responsive to Mr. Berger's simple question to her.
In addition, a number of the things that she said with respect to her background concerned me in that I am looking for a juror who tends to be more conservative in their attitudes and lifestyles. This juror certainly did not have that kind of background. It was obvious based on all the things she articulated.
And finally, Your Honor, in terms of the connection to her sister, her half sister, she indicated she flew up to Washington or to Alaska and spent several weeks there. At times to me her testimony with respect to the incident did not seem credible in many respects. I mean I asked her if her half sister ever expressed any concern that the other accused individuals arising out of that drug case in connection with which apparently they were all joined, whether or not she had — whether she has expressed to this particular juror any anger or frustration or discontent with the fact that she had pled guilty midway through the trial and the other — the other defendants went on and were acquitted. She said that they never even spoke about it. I mean it was — my impressions were at times she was evasive with respect to that.
It didn't make sense that she would go all the way up there and not talk to her about the case. So — and the fact also that her half sister was in possession of cocaine, as you know in this case we intend to impeach the defendant with respect to his being in possession of cocaine.
So, for all those reasons, Ms. Lambert, I was not comfortable with leaving Ms. Lambert on the jury.
As to Barbara Vernon, in her case, she had indicated that her husband was prosecuted by our office for involuntary manslaughter. That alone, in with my mind, I felt I was not comfortable having this juror remain on this jury panel. The fact that our office played a role in convicting her husband, even though it was sometime ago, made me very uncomfortable.
In addition, there were times when her behavior to me seemed odd. She was nonresponsive to questions that I asked her. At times she would answer simply yes or no. I was hoping to get more information out of this juror, but she was certainly not volunteering information.
And in addition, she indicated she was divorced and her ex-husband has been involved in the bar business. Again, something I was not comfortable with in seeking jurors that have a more conservative attitude.
I would note also that she came back late from lunch, at least on one occasion. So there were a number of reasons I excused Ms. Vernon as well.
Finally, Your Honor, with respect to Ms. Perkins, all of us commented on Ms. Perkins, even defense counsel commented on Ms. Perkins' quirky behavior. We were in chambers, Mr. Berger made a couple of comments with respect to Ms. Perkins. She constantly came back to the court even after we had begun our initial voir dire of her and asked the court questions. She seemed to be confused.
While she was well educated, obviously a very bright juror, at the same time the concern I had, as prosecutor, is that she seemed — she didn't seem to be following the court's directions or instructions or explanations with respect to the law and what the jury is supposed to do, how the jury is supposed to apply the law to the facts in this case.
She also expressed on at least one occasion that she was — she was not happy to be here. She didn't want to be a juror. She did not care for jury duty. Her behavior throughout the past two days manifested — also illustrated that point, because throughout the proceedings she was hunched over, she had her head turned. At some point while the questioning [sic] juror number 4, she turned her back to that juror, looked out the window.
There were a number of things that were obvious in her behavior in this case that, she did not want to be here. In fact, when she was excused, she said to me, "Bless you," as she walked out of the courtroom.
So those were the reasons I had exercised a challenge as to Ms. Perkins.
Id. at 464-68.

The court then added its own comments and observations for the record:

The court also will note that as to Ms. Lambert, for the record, the record does not reflect that between certain answers, there were very long pauses. And the court found that to be a little unusual in terms of the question and the longness of the pause. And that is as to Ms. Lambert.
The only other comment the court will make for the record is that as to Ms. Perkins, the court did note that in terms of questioning juror number 4, when she came up — and the record should reflect that juror number 4 is a female juror with — with short hair, who appears to look like a young teen-age boy, that the juror was seated two seats away from Ms. Perkins. The court noticed from its vantage point that as Ms. — as juror number 4 was stepping forward, that Ms. Perkins had, for at least half the questioning of juror number 4 by the court, had her back turned toward the — toward the juror. During the questioning of all the other jurors, and she, Ms. Perkins, was one of the original six — or one of the original 12 jurors selected, she had not done that.
Those are the court's comments.

Id. at 468.

The court then afforded defense counsel an opportunity to address the prosecutor's proffered explanations and, after defense counsel did so (arguing largely that he did not find any of the prosecutor's proffered explanations valid reasons to exclude any of the jurors at issue), denied the motion: "[T]he Wheeler-Batson motion will be denied. The court finds that [the prosecutor] had legitimate reasons for the excusing of Ms. Vernon, Ms. Perkins and Ms. Lambert." Id. at 472.*fn7

The state trial court's denial of petitioner's Batson challenge was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). The court properly followed the three-step inquiry set out in Batson and, after a comprehensive hearing, reasonably concluded that the prosecutor's proffered explanations were genuine and race-neutral. See, e.g., Stubbs v. Gomez, 189 F.3d 1099, 1105-06 (9th Cir. 1999) (lack of candor and disinterest valid race-neutral reasons to strike juror even if insufficient to meet the high standard of a challenge for cause); United States v. Smith, 223 F.3d 554, 569 (7th Cir. 2000) (conviction of family member and being "stand-offish" valid race-neutral reasons to strike juror); Jones v. Gomez, 66 F.3d 199, 201-02 (9th Cir. 1995) (reluctance to serve as juror valid race-neutral reason to strike juror); United States v. Changco, 1 F.3d 837, 840 (9th Cir. 1993) (inability to relate to other jurors valid race-neutral reason to strike juror). The court even took the time to make clear on the record that it agreed with the prosecutor that Ms. Lambert's "pauses" were unusual and that Ms. Perkins appeared to have trouble relating to at least one of the other jurors. Rep. Tr. at 468. There is simply no basis to disturb the trial court's finding that there was no discriminatory intent. See 28 U.S.C. § 2254(d); see also Purkett, 514 U.S. at 769 (findings of trial court on issue of discriminatory intent are findings of fact entitled to the presumption of correctness in federal habeas review). Petitioner's contention that the prosecutor was improperly allowed to strike the jurors because he wanted a "more conservative jury" does not compel a different result. Accord Purkett, 514 U.S. at 840 (prosecutor's proffered explanation that he struck juror because he had long hair, unkempt hair, a mustache and a beard was race-neutral); Smith, 223 F.3d at 569 (prosecutor's proffered explanation that he struck juror because juror was "social worker type" who he believed would be too sympathetic toward the defendants was valid and race-neutral). Petitioner is not entitled to federal habeas relief on this claim.

6. Use of perjured testimony

Petitioner claims that the prosecutor knowingly used perjured testimony from Detective Cocanour. The claim is without merit.

"[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976). The same result obtains when the prosecutor, although not soliciting false testimony, allows it to go uncorrected when it appears. See Napue v. Illinois, 360 U.S. 264, 269 (1959); see also United States v. LaPage, 231 F.3d 488, 492 (9th Cir. 2000) (if prosecutor knows that his witness has lied, he has a constitutional duty to correct the false impression of the facts).

Petitioner is not entitled to federal habeas relief because he "presents no argument or evidence for his proposition that the prosecutor knowingly put on false evidence." United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir. 1995). His conclusory claim of knowing use of perjured testimony cannot do. Id. Moreover, there is no showing, or even indication, of a "reasonable likelihood" that Detective Cocanour's testimony, if false, "could have affected the judgment of the jury." Agurs, 427 U.S. at 103. The overwhelming evidence of guilt presented at trial came from other sources, including the testimonies of the apartment complex manager and mail carrier, and documentary evidence showing that petitioner lived at 1627 Santa Clara Avenue in Alameda. It simply cannot be said that the state courts' rejection of petitioner's claim was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or that it involved an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

7. Vindictive prosecution

Petitioner claims that the prosecutor engaged in vindictive prosecution by filing more serious charges against him after he exercised his "legal right and defense against the original 290 failure to register charge." The claim is without merit.

A prosecutor violates a defendant's due process rights when he brings additional charges solely to punish the defendant for exercising a constitutional or statutory right. See Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). The defendant has the burden of showing that "charges of increased severity were filed because the accused exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness." United States v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir. 1982). He must prove that the prosecutorial conduct would not have occurred "but for" the prosecutor's "hostility or punitive animus towards the defendant because he has exercised his specific legal rights." Id. at 1168-69.

Here, the record shows that some time after charges for felony failure to register as a sex offender were filed in the instant case (superior court case #135229), the district attorney charged petitioner with six counts of unlawful sexual intercourse with a minor in a separate case (superior court case #136321). On November 30, 1999, before trial in the instant case commenced, the prosecutor moved to consolidate the cases; however, he subsequently withdrew the motion and case number 136321 "trailed" the proceedings in this case. After the jury convicted petitioner of felony failure to register as a sex offender, the prosecutor agreed to dismiss case number 136321 in return for petitioner's promise not to appeal the judgment in this case. Petitioner agreed.

Petitioner is not entitled to federal habeas relief on his claim that the prosecutor engaged in vindictive prosecution by charging him with a different offense after he asserted his right to defend against the felony failure to register charge. There is no showing, or even indication, that the prosecutor would not have charged petitioner with the new offenses "but for" the prosecutor's "hostility or punitive animus towards the defendant because he ha[d] exercised his specific legal rights." Id. at 1168-69. Petitioner does not even argue that there was no probable cause to charge him with the new offenses. It simply cannot be said that the state courts' rejection of petitioner's claim was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or that it involved an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

CONCLUSION

After a careful review of the record and applicable law, the court is satisfied that the petition for a writ of habeas corpus should be DENIED.

The clerk shall enter judgment in favor of respondent and close the file.

SO ORDERED.


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